Author Archives: Michael Froomkin

Administration Approved Repeated Almost-Drowning as a Non-Torture Interrogation Method

Posted on June 28, 2004 by Michael Froomkin

Meanwhile, back at torture… USATODAY.com – Memo lists acceptable 'aggressive' interrogation methods. In an as yet-unreleased August 2002 legal memo, the administration approved the CIA repeatedly dunking detainees under water, for periods long enough to make them think they might drown, in order to make them talk:

The techniques discussed were “aggressive” but “lawful,” the former official said. A current Justice official who knows the memo's contents said it specifically authorized the CIA to use “waterboarding,” in which a prisoner is made to believe he is suffocating.

…

Initially, the Office of Legal Counsel was assigned the task of approving specific interrogation techniques, but high-ranking Justice Department officials intercepted the CIA request, and the matter was handled by top officials in the deputy attorney general's office and Justice's criminal division.

…

White House counsel Alberto Gonzales said the thrust of the publicly released documents was that President Bush insisted on humane treatment of all prisoners, even though legal opinions from Justice and the Pentagon said there was wide latitude in wartime within the limits of anti-torture laws and treaties.

Well if the way Bush governs is “compassionate” I guess it is no less Orwellian to call repeated near-drowning “humane”.

A vote for Bush is a vote for waterboarding.

Posted in Iraq Atrocities | 7 Comments

Today’s Trifecta–What Does it All Mean? (Pt. I: Hamdi)

Posted on June 28, 2004 by Michael Froomkin

It's safe to say that today's trifecta of opinions wasn't predicted by anyone. Bottom line: It's still a free country. And this is still a formalist court, which (like anti-formalism) has its virtues and vices.

Full texts of opinions:

Although Padilla seemed to raise the most critical issues, the court ducked them, so (at first glance) by far the most important opinion of the Hamdi-Padilla-Guantanamo trilogy turned out to be Hamdi. Click “more” for a long, first-impressions, post on Hamdi. I'll post subsequently, and more briefly, about the other two. Updated

Continue reading →

Posted in Civil Liberties, Law: Constitutional Law | 14 Comments

Padilla Loses … For Now

Posted on June 28, 2004 by Michael Froomkin

Padilla loses on what will to many seem to be a technicality: his lawyer filed in New York when he should have filed in Charleston, SC. The majority does not reach the merits.

That is consistent with long-standing rules of habeas jurisdiction, but it's a darn shame the Court couldn't find it in itself to go the merits when they are so clear; the majoritydoesn't consider this case exceptional enough for an exception to the “custodian” rule, while the dissenters do.

Two of the five justices in the majority write a concurrence noting that if the government had been moving the detainee around to make jurisdiction hard, they would make an exception, but that this isn't that case — he's been stationary.

The appropriate district court will now have consider Padillia's case in light of the ruling in Hamdi, which ought to put him in a better position than he was the last time his case went to district court.

Four justices dissent, reaching the merits. More when I've read it all.

Posted in Civil Liberties, Law: Constitutional Law | 4 Comments

Guantanamo is NOT a Lawless Place

Posted on June 28, 2004 by Michael Froomkin

The main opinion is by Stevens. The whole LONG thing is here (.pdf). I'm reproducing the syllabus in the jump.

Continue reading →

Posted in Law: Constitutional Law, Law: International Law | Comments Off on Guantanamo is NOT a Lawless Place

Hamdi Wins

Posted on June 28, 2004 by Michael Froomkin

Enemy Combatants Can Challenge Detentions. Reuters (via Washington post) reports:

The Supreme Court ruled Monday that an American captured overseas in President Bush's war on terrorism cannot be held indefinitely in a U.S. military jail without a chance to contest the detention.

Key points from the summary (the opinion isn't online yet):

  • Four justices (only four???) say due process rights requires that a citizen held in the United States as an enemy combatant must be given “a meaningful opportunity” to contest the case for his detention before a neutral party. [From this summary, this could mean anything, including much less than a real trial.]
  • “Two more justices agreed that the detention of American citizen Yaser Hamdi was unauthorized and that the terror suspect should have a real chance to offer evidence he is not an enemy combatant.” I have no idea what that means — is that more or less of a hearing?
  • Presumably that means three Justices would let the government lock up Yaser Esam Hamdi — in the brig for more than two years and only recently allowed to see a lawyer with military eavesdroppers present and a censored list of subjects (e.g. lawyer couldn't ask if he'd been tortured) — and throw away the key based on their unsupported word that he deserved it. No trial, no arraignment, no lawyer, no rights.

But there's no substitute for reading the opinions; they should be available soon.

Update: The New York Times has a totally different spin saying “Supreme Court Partially Sides With Bush on American Detainee Case” with the majority opinion by O'Connor with Rehnquist and Breyer; with Souter and Ginsburg writing the concurrence. That would be 5-4? Only it's hard to imagine Stevens not siding for the detainee if Rehnquist and Breyer did. (But see flag burning…)

Posted in Civil Liberties, Law: Con Law: Marriage | 5 Comments

Supreme Court Decides Padilla This Week

Posted on June 28, 2004 by Michael Froomkin

Most of the big cases I mentioned last week remain to be decided. That means they will be decided this week, maybe today.

I think that the Padilla case is so important that I almost titled this item “Supreme Court to decide if this is still a free country”. I am an optimist about big things, although not always about small, and something of a patriot, so I persist in the belief that the Supreme Court will get this one right. Just about all the lawyers I talk to agree, although no one thinks it will be the 9-0 vote that it deserves to be. Estimates cluster at 6-3 or 7-2.

If we're wrong in our predictions, and it goes badly, it's time to raise hell, or we will be remembered as the generation that let the American Experiment go sour.

Posted in Law: Con Law: Marriage | 1 Comment