Author Archives: Michael Froomkin

More on Free Speech Zones (not)

Posted on July 22, 2004 by Michael Froomkin

A note from Joel Sipress, whom I mentioned in Land of the Free (except near Bush).

Dear Professor Froomkin,

I came across your blog while doing a google search looking for coverage of the Duluth, Minnesota anti-Bush protests. I saw the entry/discussion of the fact that my mug shot was circulated by Secret Service at the Bush rally in Duluth. Thought you might be interested in hearing some more details. The most likely explanation of how I ended up on the Secret Service list is that I was identified in our local newspaper a few days before Bush's visit as the organizer of an anti-Bush protest (as was Joel Kilgour, another one of the three people whose mug shots were circulated). The protest that I helped organize was held about six blocks from Bush's event with the knowledge and approval of our local police force (who, by the way, went to considerable lengths to make sure that local people could gather and speak freely during Bush's visit). Apparently, organizing a legal event at which citizens gather and speak their minds is now enough to get one labelled a security risk. Pretty serious stuff, at least as I see it. (Our rally, by the way, drew about 1500 people, with several hundred more doing sidewalk protests around town.) Feel free to use this information as you see fit.

Best Wishes,

Joel Sipress
Duluth, Minnesota

Incidentally, this is part of a trend. Seems that even wearing the wrong t-shirt can cause the SS to bar you from a rally to which you have a valid ticket (spotted via Dan). Or even get you taken away in handcuffs. Oh, and then you lose your federal government job (FEMA) too.

Note: the Secret Service's official line is that they’d “do the same thing at a Kerry rally.” Has this in fact ever happened at a Kerry rally?

Posted in Law: Free Speech | 8 Comments

At Least He Didn’t Use a Truck

Posted on July 21, 2004 by Michael Froomkin

Just as I think lawyers should keep their law licenses current, or shouldn't be judges, so too I think that people who handle classified documents ought to play by the rules. Of course, the rules for classified documents in many cases are even sillier than the state bar system, since the government records system is rampant with over-classification.

So I'm not inclined to be all that charitable about Sandy Berger's admitted misdeeds, even as I think he's entitled to be presumed innocent of the ones he denies.

That said, just as there's a context in which every lawyer knows he's supposed to keep his bar membership current, so too there seems to be a context in which NCS types are sometimes a little fast and loose with the very same meaningless classifications they help create. And part of the context of the standard of this trade is the exploits of Henry Kissinger, who at the end of his government service made off with a truckload of secret documents (prepared by government workers at government expense) on the specious grounds that they were his personal property and had them conveyed to the David Rockefeller estate so that Kissinger could write his memoirs without fear of contradiction. (Kissinger also arranged for the illegal transfer of unique records to the National Archives in order to frustrate FOIA requests.) It took a lawsuit to make him give them back.

There's also a telling contrast between what Berger did when confronted (cooperate with the FBI to the best of his ability, it seems) and what Kissinger did when confronted by the National Security Archive (stonewall for all he was worth). And of course no one ever called the FBI on Kissinger, even though his purloining the documents (the only copies of the documents!) seemed criminal to me then, and seems criminal now.

Posted in National Security | Comments Off on At Least He Didn’t Use a Truck

Today’s Quiz: Who Said It?

Posted on July 21, 2004 by Michael Froomkin

Who said this?

it “is beyond me” why the huge contract awarded to Brown and Root of Houston and other U.S. firms to build air fields and other facilities in [the war zone] “has not been and is not now being adequately audited. The potential for waste and profiteering under such a contract is substantial.”

Answer below.

Continue reading →

Posted in National Security | 3 Comments

Eyewitness to ‘Iraqitraz’

Posted on July 20, 2004 by Michael Froomkin

Sadly No! posts the text of an email from from John Heacock, “who served for nearly a year in Iraq with the 267th MP Company from the Tennessee National Guard.” It has very credible-sounding details about the treatment of under-18 detainees in Iraq.

The writer blames the mistreatment of detainees on three causes:

1) soldiers asked to be guards without proper training responding to their own fear by trying to be as intimdating to prisoners as possible;

2) bureaucratic failure: no one made any decent plans to cope with a number of forseeable contingencies, e.g. child prisoners; and

3) what I see as plain bad faith on the part of ranking officers (see the end of this paragraph):

The problems with the treatment of the kids at Camp Bucca was about the same as the flaws with the other prisoners: lack of a policy regarding standards of guilt or length of imprisonment, bureaucratic indifference, laziness of those of high rank whose job it was to process prisoners, scarce resources, and conflicting guidance from above. Consequently, we had hundreds if not thousands of prisoners that we didn't know why they were being held, who would never be convicted of a crime under any civilized standard of proof, and who spent more time awaiting a hearing than they would have been held in prison if convicted. A typical example: men held for months for stealing gasoline or butting in lines, when their sentence would have been 2 weeks or 30 days. I once asked the sole JAG attorney (a 1st Lt., BTW, the lowest rank for JAG) why we weren't following the Geneva Convention rules about hearings and length of incarceration, and he expressed shock; when I told him he could go to either the main camp or Iraqitraz [the nickname for the high-threat detention area], to see the shortcomings for himself, he told me that the camp commander wouldn't let him into either site. It's hard to do your job ensuring that the military follows its rules when you can't even see what's going on.

Posted in Iraq Atrocities | Comments Off on Eyewitness to ‘Iraqitraz’

The Man Who Would Own Eros

Posted on July 20, 2004 by Michael Froomkin

I will never forget my college political philosophy professor mocking John Locke's attempt to ground the foundations of property on the admixture of labor or property to unclaimed resources by asking whether, were he to legitimately acquire a can of tomato paste and pour it into the ocean, he could therefore claim the ocean as his own.

Think that's silly? How about Gregory Nemitz of Carson City, Nevada, who claims to own Eros, and wants NASA to pay him $20 for “parking and storage fees” now that it has landed the NEAR Shoemaker spacecraft on “his” asteroid. Basically, the basis of Nemitz's claim to ownership of Eros is, well, that he claims to own it, and that he's expending resources to pursue the claim, so it must be his. Oh yes, and that the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies of 1967, which precludes private ownership of celestial bodies, sounds in the Communist Manifesto, so it must be illegal.

This would be funny if the guy were not (it seems) funded by the sale of beef jerky (I am not making this up, see the bottom of his web site), and appealing (pro se) the loss of his district court case up to the 9th Circuit. Where I confidently predict he will lose again.

(The words “sui juris” on his brief are by the way a giveaway that the appellant is in the grip of a legal cult, akin to the common law court cultists, or the people who think that writing “Without Prejudice UCC 1-207” will somehow have a magic effect on their debts, or who think that they can avoid paying taxes by eschewing Social Security numbers and claiming to be just a state citizen not a citizen of the US.)

Posted in Law: International Law | 1 Comment

Never Trusted Those Voting Machines Anyway

Posted on July 19, 2004 by Michael Froomkin

Peter Shane has a cautionary article in today's Washington Post. In Usurping the Voters, Prof. Shane conjures up a scary hypo based on a close reading of Bush v. Gore,

Under that decision, there is no guarantee that the electors who are decisive in choosing the next president of the United States will themselves be selected by the people of the United States. That's because the justices ruled in that case that state legislatures have unlimited authority to determine whether citizens in their respective states shall be allowed to vote for president at all.

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States,” the court said, “unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”

Imagine, now, a state in which the same party controls both houses of the legislature and the governor's office. There would presumably be no partisan impediment to the state legislature, with the governor's approval, deciding that the majority party in state government shall control the state's electoral vote, regardless of any popular vote in the state. If the Supreme Court's declaration is an accurate statement of the law, there would not be any legal impediment either.

The impedement of course is, as he notes, “outrage” but look how far that's gotten us in the last four years…

Posted in Law: Constitutional Law | 9 Comments