Author Archives: Michael Froomkin

Guantanamo is NOT a Lawless Place

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

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

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

The Barometer

Michael Moore's movie is a box office smash: The Political 'Fahrenheit' Sets Record at Box Office. Preaching to the choir, or a signal about the election?

Posted in Politics: US: 2004 Election | 9 Comments

Jack Balkin Connects the Dots

Jack Balkin connects the dots: If large numbers of administration lawyers were aware of the torture memo, and if (as I speculated) one of the motivations for it was retrospective justification of CIA methods, e.g. refusing pain medicine to someone shot in the groin, then something is indeed rotten in the SG's office:

Now go back and reconsider this exchange in front of the Supreme Court, two years later, on April 28th, 2004 in this light:

when
Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement
in the Hamdi cases whether judicial review should be foreclosed even in
cases of alleged torture, Clement dodged the question. “Our executive,”
he insisted, doesn't engage in torture. “Judicial micromanagement” was
inappropriate in wartime; “you have to trust the executive.”

Meanwhile the unnamed leakers are out in force complaining that their hands are tied by 'uncertainty' about how much pain they can inflict, and as a result that torrent of intelligence we were previously enjoying is now just a little trickle. Given the very high quality of recent intelligence (something that the NYT's article on its Officially Sanctioned Leak just somehow neglects to mention), I am very very sceptical indeed about this planted story.

You know, it's getting to the point where I'm actually wondering why I subscribe to the New York Times…

Posted in Law: Ethics | Comments Off on Jack Balkin Connects the Dots

Torture Memo Enthusiastically Approved at Highest Levels; CIA Getting Cold Feet

Dana Priest has so many scoops in one story, there’s a danger some may get lost:

First, the CIA is getting nervous and has decided to stop doing whatever undisclosed things its has been doing to its prisoners in its series of secret camps in undisclosed foreign locations, pending legal review:

The “enhanced interrogation techniques,” as the CIA calls them, include feigned drowning and refusal of pain medication for injuries. The tactics have been used to elicit intelligence from al Qaeda leaders such as Abu Zubaida and Khalid Sheik Mohammed.

“Everything's on hold,” said a former senior CIA official aware of the agency's decision. “The whole thing has been stopped until we sort out whether we are sure we're on legal ground.” A CIA spokesman declined to comment on the issue.

CIA interrogations will continue but without the suspended techniques, which include feigning suffocation, “stress positions,” light and noise bombardment, sleep deprivation, and making captives think they are being interrogated by another government.

Meanwhile, back in Washington D.C. the coverup over the Torture Memos continues to unravel. Let’s start with the Bybee Memo — which was approved all the way up to the top (Cheney’s office):

Although the White House repudiated the memo Tuesday as the work of a small group of lawyers at the Justice Department, administration officials now confirm it was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel's office and Vice President Cheney's office.

And that royalism stuff about how if the President says it’s legal people who rely on that shouldn’t’ be prosecuted, and how Congress, even when approving or implementing treaties (“the supreme Law of the Land” – US Constitution) has no ability to in any way limit the full, plenary, unstoppable power of the President when acting as Commander in Chief? Well, all that was not just approved but demanded and applauded from the top:

A Justice Department official said Tuesday at a briefing that the [OLC] went “beyond what was asked for,” but other lawyers and administration officials said the memo was approved by the department's criminal division and by the office of Attorney General John D. Ashcroft.

In addition, Timothy E. Flanigan — then deputy White House counsel — discussed a draft of the document with lawyers at the Office of Legal Counsel before it was finalized, the officials said. David S. Addington, Cheney's counsel, also weighed in with remarks during at least one meeting he held with Justice lawyers involved with writing the opinion. He was particularly concerned, sources said, that the opinion include a clear-cut section on the president's authority.

What did all this mean on the ground? Tell me this isn’t a form of torture:

Abu Zubaida was shot in the groin during his apprehension in Pakistan. U.S. national security officials have suggested that painkillers were used selectively in the beginning of his captivity until he agreed to cooperate more fully

That’s not the view of the self-satisfied armchair warrior cadre in DC, however. They don't see any torture here:

At the same time, the former official said, “we never had a situation where we said, 'You can do anything you want to.' We never, ever did that. We were aggressive, but our people were very scholarly and lawyerlike.”

“Scholarly”? “Lawyerlike”? Sorry, but the “selective” use of painkillers for someone shot in the groin isn't like any Socratic Method I recognize.

Posted in Iraq Atrocities | 26 Comments