Author Archives: Michael Froomkin

Dumbest FOIA Excuse Ever?

Posted on June 29, 2004 by Michael Froomkin

David Sklar, Justice Department's Fragile Read-Never Database. This must surely be a candidate for the dumbest FOIA excuse ever:

The Center for Public Integrity filed a Freedom of Information request to get a copy of the Foreign Agent Registration database, which includes information on activities by registered lobbyists on behalf on foreign governments.

The Justice Department said that it couldn't provide a copy of the entire database because doing so could destroy the database.

Meanwhile, you can go to the appropriate office in Washington DC and pay fifty cents a page to make copies of documents. The information is available in (expensive) page-by-page drips, but not as a whole.

I am curious to learn about the quantum database software in use that could subject the data to changes by reading it. Or perhaps the 8 inch floppies that the data is stored on would get too hot and melt if they had to spin so fast to copy entire files?

It's hard to imagine what's behind this. Terminal incompetence? Cussed desire to undermine FOIA? Halliburton provided the equipment?

Or could it be a Rovian fear that someone will cross-index the database with, say, the lists of donors to the Bush campaign?

Posted in Politics: US | 4 Comments

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

Posted on June 28, 2004 by Michael Froomkin

“What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And the answer to that question is “affirmative.”

So Guantanamo is not like the Antarctic, a place with no law (cf. Smith v. US). I strongly think this is the right result, but I'm not entirely happy with how the majority got there.

Continue reading →

Posted in Guantanamo, Law: Constitutional Law, Law: International Law | 1 Comment

‘When can I keep an enemy combatant?’ The Color Chart Version

Posted on June 28, 2004 by Michael Froomkin

Aaron Swartz, the man who brought blogdom NYT permalinks and cool tools for finding them, presents, When can I keep an enemy combatant?.

This is a lot easier to follow than the pure text kind of analysis.

Posted in Law: Constitutional Law | 7 Comments

Other Voices On Today’s Decisions

Posted on June 28, 2004 by Michael Froomkin

Now that I've sorta figured out what I think, other takes on today's decisions:

Scrivener's Error,

Like Gaul—or, more the the point, gall—the detainee mess is divided into three parts. One division is the obvious one: Hamdi (PDF, 822kb), Padilla (PDF, 517kb), and Rasul (PDF, 520kb). That's certainly the way the three decisions will be divided in the media. However, there is a much more logical and important division into three parts: civil procedure, government power, and military necessity. Just to be different, that's how I'm dividing things. I also think it gives some interesting perspectives on exactly what was going on.

Lots at SCOTUS Blog

Greg Goelzhauser, Did Congress authorize indefinite detention?

Marstonalia on Hamdi

What happens to Hamdi himself — and what sort of rules exist for future cases of this sort — will now be heavily dependent on what kind of procedure is implemented below. Four members of the Court explicitly left the door open to military tribunals (see p. 31), and Thomas could probably be relied upon to provide a fifth vote. But the government is on notice that four members of the Court — and possibly more, depending on the views of those who joined O'Connor's opinion — are not going to be deferential.

Legal Theory Blog has a round-up of the votes and other comments.

Update: Read Balkin

Posted in Law: Constitutional Law | 3 Comments

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