Author Archives: Michael Froomkin

The Bush DC Circuit Nominee Who Neglected to Renew His License to Practice Law

Posted on June 21, 2004 by Michael Froomkin

I happen to think the bar exam is a little silly. I happen to think that the division of the Union into 54 or more jurisdictions that keep out lawyers from elsewhere is anti-competitive. I also understand the rules we have are formalities I better take seriously or I am in trouble, and make sure to renew my NY and DC bar memberships as soon as the notices come in — just to make sure I don't misplace them.

Looks like DC Circuit nominee Thomas B. Griffith didn't get that last part, leading the Washington Post to report that Judicial Nominee Practiced Law Without License in Utah.

Fundamentally, this is just careless. But it's the sort of carelessness in a lawyer, given our existing rules, that rises to pretty serious negligence. It suggests corner-cutting, or an attitude of being above the rules, or just general disorganization … any of which I think is sufficient reason to reject even an otherwise qualified nominee. Furthermore, practicing law without a license is usually a fairly serious offense in most states. In this case, though, there may be a dispute about the extent to which Mr. Griffith actually engaged in authorized practice or instead managed to cover himself with local counsel.

Unauthorized practice is a subject near and dear to my heart, as I practiced international law for three years in the London office of a US firm, without an English law degree and without being either a solicitor or barrister. Unlike the US, the UK allows that — the offense there is holding yourself out as something you are not. But even so, to the great amusement of my English colleagues, I refused to sign any letters that contained opinions on English law, even if I had done all the research and drafted them. My English supervisors signed them, laughing all the while at my American formalism and punctilio.

Of course, Republicans, who preached so much about the need for exacting regard for state formalies during the recount period in the last Presidential election, will undoubtedly be the first to take a similar approach, and to say that this nomination should not go forward.

(And I have a bridge to sell you.)

Posted in Law: Ethics | 1 Comment

The Marines Knew How to Do It Right

Posted on June 20, 2004 by Michael Froomkin

One thing I hear a fair amount1 is people saying that since the Iraqis/Arabs/whatevers are so inhuman to “us”, it's ok, indeed both just and desirable, for “us” to do “whatever it takes” or “give them what they deserve”. I take that to mean that because there are some vicious Islamic terrorist groups out there, and because some Arab governments repress their own peoples, it follows that the citizen-soldiers of our democracy should regress to bestiality either for retribution or deterrence. Neither one of which I find either persuasive or even palatable.

Our country's history offers a better lesson, documented in a wonderful New York Times story in today's paper, Enemies in the Heat of Battle, Friends for 60 Years.

The campaign to get the Japanese out of their caves on the islands near Japan was as brutal and vicious as any in the second world war. The Japanese were considered by many to be exceptionally vicious fighters who didn't always obey the laws of war (albeit more so in other theaters, those in which they had held the upper hand). Everything being said about Iraqis or Al Qaeda today was said about the Japanese sixty years ago, and worse.

Takeo Sato, then a Japanese officer, was part of the Japanese effort to defend Saipan, captured when part of his cave fell in due to naval shelling. He became the prisoner of Marine Lt. John Rich, who ultimately befriended his captive. When fortune found a demobilized Mr. Rich in Japan a few months after the war, he went to the homes of six POWs it had been his job to question, and told their families their sons were still alive. From this sprang an improbable but enduring friendship. Now Rich and his former prisoner, both in their eighties, are revisiting Saipan with their extended families.

It's hard to imagine that we'll be reading any stories like this about Iraq in our dotage. And therein lies part of the problem…

1 [Update: Here's Trent Lott in today's NYT Magazine:

You recently created a stir when you defended the interrogation techniques at Abu Ghraib.

Most of the people in Mississippi came up to me and said: “Thank Goodness. America comes first.” Interrogation is not a Sunday-school class. You don't get information that will save American lives by withholding pancakes.

But unleashing killer dogs on naked Iraqis is not the same as withholding pancakes.

I was amazed that people reacted like that. Did the dogs bite them? Did the dogs assault them? How are you going to get people to give information that will lead to the saving of lives?

Charming. (Incidentally the answers to the questions about the dogs are yes and yes.)]

Posted in Iraq Atrocities | 4 Comments

Snark Shortage a Myth: Official

Posted on June 19, 2004 by Michael Froomkin

Billmon reports that not only is he back to snark hunting full time, but that there is plenty of snark to go around. (And if there isn't we can always throw money at the problem.)

Link to great epic poem

Link to snarky software

Link to academic write-up of snark hunting

Link to Hi-test snark

Snark dating??? Must be a joke…

Posted in Blogs | 1 Comment

An Account of an NSA Job Application

Posted on June 19, 2004 by Michael Froomkin

Via Majikthise (nice blog), I find Interviewing with the National Security Agency, which purports to be an inside account of the lengthy process required to get hired by the NSA.

While my opinion of the CIA is pretyy low, my opinion of the NSA is much higher. It's not just that they have good taste in lawyers or that the folks they send to meetings seem smart and sensible, but that from what one hears their work contributes to US security, and maybe even world peace. (Unlike the CIA, for which I have my doubts about both.)

Posted in National Security | 1 Comment

I Agree With Lynn Nofziger (About Cheney Giving Orders)

Posted on June 18, 2004 by Michael Froomkin

It isn't often I agree with Lynn Nofziger, but today is one of those days. Well, mostly. Nofziger muses,

I keep wondering. Was it constitutionally proper for Vice President Cheney to order Air Force jets to shoot down high-jacked passenger planes? Or was he exercising authority that belongs solely to the president.

Yes, the president apparently gave him permission to issue the order. But how did the Air Force generals know? The fact is, they didn't. they had to accept Cheney’s word.

In this instance and under those particular circumstances it was probably all right. But it seems to me that this sets a dangerous precedent.

In the future what is to prevent an overly ambitious vice president or one who is at odds with the president from picking up the phone and issuing orders which, if carried out could result in the death of the president.

Not possible, you say. Who would have thought the events of nine/eleven were possible? Not likely is better. But not likely events occur every day.

It seems to me that the person who should have issued the order was the commander in chief, President George W. Bush. If he could talk to Cheney he could talk directly to the military, leaving no doubt who was in charge.

I think that was the voice of inexperience at work. I don’t think it will happen again.

The last paragraph strikes me as too charitable, but otherwise, I pretty much agree.

Posted in National Security | 14 Comments

Shorter Harvard Federalist Society

Posted on June 18, 2004 by Michael Froomkin

Shorter Eric Soskin, Harvard Federalist Society, writing in Ex Parte:

Given that Iraq had nothing to do with 9/11, Bush's official statement to Congress (a certification required by law as a precondition for force), that invading Iraq was “consistent with” a resolution that authorized force against “international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” wasn't “unambiguously false” but just legalistic and misleading—so why is everyone getting so worked up about it?

I think the guy has a future in the OLC if Bush is re-elected.

[Update (6/22): A read writes to complaint about the "re-". Point taken.]

Posted in Politics: US: GW Bush Scandals | 1 Comment