Author Archives: Michael Froomkin

Balkin on Gonzales

Jack Balkin considers the Gonzales nomination. A taste:

But however fine a fellow he is, he has done something that is, in my mind, inexcusable. He commissioned and put his name on a series of despicable legal memos that justified torture and prisoner abuse and that tried to avoid America's obligations under international law. In ordinary times, this would in itself be disqualifying. But, alas, these are not ordinary times.

It is time for those who think the Bush Administration has gone too far to stand up to the President, to make the legal case against his Administration's policies and appointments. For years conservatives railed against judicial activism. It is time for liberals to start railing against government officials— including judges— who show disrespect for basic Rule of Law values, who flout basic protections of American constitutional law and international human rights law, and who seek to concentate ever greater power in an unaccountable executive.

Even if (and especially if) Gonzales is confirmed, it is vitally important to make these points loudly and often. Liberals must stand for something other than the correctness of Roe v. Wade.

Posted in Law: Ethics | 4 Comments

Adventures in Consuming: BellSouth DSL

This past week my DSL service degraded to the point that it felt like dialup. This happens from time to time, but never this bad, and it usually fixes itself. But this time it didn't.

So I called tech support. This led to a nasty two hours during which I had conversations with three clueless people, and one with a bit of a clue who still couldn't help me. The first guy seemed to be in an Indian call center, and read from scripts. While he purportedly ran various tests I spent a total of about an hour on hold, although never more than 10 minutes at a time (and even those were interrupted every 3 minutes by reassurances that they were working on it — ie. no way to concentrate on anything else). Over the course of this delightful interlude I was told at least three things that were patently false (including the suggestion that the reason my download speeds were measurably rotten must be due to my using “unsupported software” ie Firefox!).

The call center guy eventually got rid of me by transferring me to sales — maybe I should order faster service? The sales droid said my account was locked and they couldn't alter it, let me transfer you to customer service.

Customer service said that my records showed I had “Lite” service even though I was paying for “Ultra” (i.e. regular). For a minute I thought we had identified the problem, but no, after further investigation it seems Bell South believed it was delivering the “Ultra” service I was paying for … although the download speed was below what they advertise for “Lite”. And no, there's no way to guarantee that if I paid the Danegeld to upgrade to “Xtreme” it would solve my problem.

So it was back to tech support. This time I got a friendly and sensible fellow named Brent based in Shreveport. Brent also had his scripts, but had the sense to know which steps to skip in light of what I'd told him. So we spent 30 minutes trying things and nothing worked. But he was real nice about it.

Bottom line: after the ordeal, all I had to show for it was an appointment to talk with Level 2 tech support this morning.

The level 2 guy fixed it in ten minutes by resetting a port.

Posted in Shopping | 2 Comments

WTO Says US Prohibition of Online Gambling Violates GATS

JURIST reports

The WTO sided with the island nation of Antigua and Barbuda, ruling that US legislation that criminalizes online gambling is in violation of global trade law. In a 287-page report released Wednesday, the WTO concluded that the US inconsistently applied gaming law so as to prejudice foreign countries, in violation of the General Agreement on Trade in Services (GATS).

I guess I have to read it now. And GATS.

Posted in Law: International Law, Law: Internet Law | 1 Comment

Lest We Forget: Gonzales Appeared to Obstruct Justice in the Plame Affair

Do not forget that Gonzales — nominated to be the nation's top cop — is the guy who when the Plame investigation was bearing down on the White House ensured that the guilty parties had all the time they could want to shred everything incriminating:

Senator Harkin, quoted in the Congressional Record (emphasis added):

Let me give a quick recap of the timeline. It started with the President's deception in his State of the Union Address in January. In his remarks, Mr. Bush stated Iraq tried to buy uranium from Niger. A few months later, in July, former Ambassador Joseph Wilson's op-ed appears in the New York Times, questioning the President's assertion.

Then in order to discredit Wilson and “seek revenge'' on Wilson, senior administration officials leaked to the press the identity of Wilson's wife and the fact she was a CIA operative, thereby undercutting our national security and clearly violating Federal law.

This happened in early July. Let's see what happened since.

On July 24, Senator Schumer calls on the FBI Director to open a criminal investigation into the leak of a CIA operative based on that column.

In late July, the FBI notified Senator Schumer that they had done an inquiry into the CIA.

Then it appears nothing happened for 2 months.

On September 23, the Attorney General says he and CIA Director Tenet sent a memo to the FBI requesting an investigation.

On September 26, the Department of Justice officially launches its investigation.

Interestingly, it took 4 days after that “official'' launch for the Justice Department to call White House Counsel Gonzales and notify him of the official investigation. Gonzalez then asked for an extra day before the Justice Department gave the White House the official notice, which means all documents and records must be preserved.

A recent letter was sent to the President from Senators Daschle, Schumer, Levin, and Biden which also expresses concern about this break from regular procedure.

They wrote:

Every former prosecutor with whom we have spoken has said that the first step in such an investigation would be to ensure all potentially relevant evidence is preserved, yet the Justice Department waited four days before making a formal request for documents.

Interestingly, the letter goes on:

When the Justice Department finally asked the White House to order employees to preserve documents, White House Counsel Alberto Gonzales asked for permission to delay transmitting the order to preserve evidence until morning. The request for a delay was granted. Again, every former prosecutor with whom we have spoken has said that such a delay is a significant departure from standard practice.

That is what has been happening—departure from standard practice.

I am also troubled that the White House Counsel's Office is serving
as “gatekeeper'” for all the documents the Justice Department has requested from the White House. Mr. Gonzales' office said he would not rule out seeking to withhold documents under a claim of executive privilege or national security.

What kind of a zoo is this outfit?

Mr. Gonzales says he can withhold these documents from this investigation on the basis of national security.

Don't care about liberal goo-goo stuff like Geneva conventions and torture? How about outing CIA agents and obstruction of justice?

Posted in Politics: US | 5 Comments

Confirmation Blitzkrieg Alert

In Ashcroft exits stage right, with a controversial successor waiting in the wings, The Carpetbagger Report spreads the rumor that the White House may be thinking of White House counsel Alberto R. Gonzales as the next Attorney General.

That would be the same Gonzales who is up to his eye teeth in not just the torture memos, but also the idea that the US can unilaterally decide that the Geneva convention doesn't apply to people we designate as 'terrorists' even if they are captured on a battlefield.

I find this rumor very plausible. From the White House's perspective it's a can't-lose proposition. It makes a great trial run for Supreme Court nominations on multiple dimensions.

If the Democrats lie down on this one, it signals they may be patsies on far-right Justices. And, it substantially inoculates Gonzales himself if he turns out to be the Hispanic appointee the White House is said to desire: after all, if he was kosher enough to be the AG, why all of a sudden object to him on the Court?

On the other hand, if the Democrats dare to act like an opposition party faced with the most ideological and extreme government in the history of this nation, then the GOP can try to tar them as anti-Hispanic. Plus, when they filibuster a future paleoconservative Supreme Court nominee, the fight over Gonzales can be cited as evidence that those poor benighted Democrats just don't like anyone and are being continually obstructionist.

The lesson for the Democrats seems clear to me: if you are going to take damage either way, better to be hung for a lion than a lamb. Not to mention that Gonzales's conduct in office has been immoral. To allow him to hold office requiring confirmation is to partake of his taint.

UPDATE: Kos says it's official. Here we go…..

Posted in Politics: US | 5 Comments

First They Rebated the Scientologists, Next…

Paul Caron has an interesting post up about a lawsuit by an orthodox Jew seeking the same tax exemption the IRS has given the Scientologists:

A lawyer for an Orthodox Jewish couple claimed Monday that the Internal Revenue Service has violated the First Amendment by refusing to allow tax deductions for their children's religious schooling. The IRS should allow the deductions because it permits members of the Church of Scientology to write off the cost of spiritual counseling sessions, attorney Jeffrey Zuckerman said during the first day of a non-jury trial in U.S. Tax Court before Judge John O. Colvin. The First Amendment prohibits the IRS from discriminating on the basis of religion, Zuckerman said.

Coincidentally, we were talking about this case at lunch before the faculty seminar yesterday. It has all sorts of implications….

Posted in Law: Tax | 2 Comments