Author Archives: Michael Froomkin

Basic Evil

Posted on June 7, 2004 by Michael Froomkin

While we lawyers get all het up about how people with a JD and a basic knowledge of the Constitution could sign a torturer's charter, and whether this is a banal evil or virulent evil, or both, Kevin Drum has his eye on the basics:

But put aside the technical analysis and ask yourself: Why has torture been such a hot topic since 9/11? The United States has fought many wars over the past half century, and in each of them our causes were just as important as today's, information from prisoners would have been just as helpful, and we were every bit as determined to win as we are now. But we still didn't authorize torture of prisoners. FDR, Truman, Eisenhower, LBJ, Reagan — all of them knew it wasn't right, and the rest of us knew it as well.

So what's different this time? Only one thing: the name of the man in the White House. Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong. It's time to reclaim it.

And just imagine what those guys will do if they don't have to worry about re-election.

Posted in Guantanamo, Iraq Atrocities, Law: Constitutional Law | 7 Comments

Pride Goeth Before A Fall

Posted on June 7, 2004 by Michael Froomkin

Fellow Citizens: Are you proud of the way your government treats foreign reporters? Or, like me, are you angry and ashamed by this disgrace to our nation, and this offense to our allies? [Update: Link fixed!]

Posted in National Security | 2 Comments

Another How-To-Torture Memo

Posted on June 7, 2004 by Michael Froomkin

INTEL DUMP summarizes a Wall Street Journal account of a 100+ page memo that purports to explain how torture of detainees at Guantanamo could be legally justified.

The core of the argument is little more than the old Nixonian one that the President is above the law, so that he can authorize actions that would otherwise be illegal. It's dressed up with some sophistication, but that's about what it amounts to.

Phil says all the right things, so I won't repeat them. But there is one aspect that he missed. According to the WSJ:

The lawyers concluded that the Torture Statute applied to Afghanistan but not Guantanamo, because the latter lies within the “special maritime and territorial jurisdiction of the United States, and accordingly is within the United States” when applying a law that regulates only government conduct abroad.

As summarized by the WSJ, the crux of the government's position in this memo is that the executive has full unreviewable power in Guantanamo, not subject to check by the courts (at least absent some congressional action?). That this might be legally possible does not make it legally or morally correct.

Thus, it appears that the memo somewhat undermines the argument that the government made before the Supreme Court, where it argued that Gitmo was outside the jurisdiction of the courts because, being subject to residual Cuban sovereignty albeit US control, it was not part of the US for jurisdictional purposes. It's not impossible to have different conceptions of 'domestic' jurisdiction for the reach of a statute and judicial review — but it's uncomfortable and IMHO presumptively wrong.

This memo may also strengthen the case, set out by Eric Muller, that Deputy Solicitor General Paul D. Clement knew or (more likely) should have known that he was making a false statement when he said “[i]t's … the judgment of those involved in this process [of interrogating POW's and enemy combatants] that the last thing you want to do is torture somebody or try to do something along those lines.”

Someone — Congress? — really needs to get to the bottom of all this.

Posted in Guantanamo | 6 Comments

Movies as a Campaign Finance Law End-Run

Posted on June 6, 2004 by Michael Froomkin

Daily Kos says,

Farenheit 9/11 will one day be the subject of a thousands acedmic papers, especially if Kerry wins the White House. The movie's first trailer is already the most effective anti-Bush commercial ever made.

Of course, that trailer won't be shown on TV. It's a 2-minute piece designed for movie theaters, not television (though it'll bear watching whether theaters show the trailer). The real fireworks will hit, I'm sure, when this movie's ad campaign hits television.

Done right (and I do trust Moore to do it right), those 30-second movie commercials, run nationally, could be some of the most effective political advertising of the season (without being, legally, political advertising). Watch stations try to block the ad, in the face of a concerted GOP effort to suppress its showing.

Meanwhile, Digby points to the trailer of The Hunting of the President, which I see as another example of the same phenomenon. This movie is apparently only showing in a few cities, but the DVD is promised to be out by election time.

Kos again:

If the movie has a measurable impact on the elections, watch the concept become a new CFR loophole. Say we have President Kerry in office. A bunch of rich Republicans (the “haves” and the “have mores” or, as Bush likes to call them, his “base”) make an anti-Kerry movie in 2008, and release it, oh, at about this time. Then they run $100 million in ads promoting the anti-Kerry bit, all outside the reach of campaign finance laws and the FEC.

A loophole it will be next to impossible to close.

Posted in Politics: US: 2004 Election | 5 Comments

Medals Update

Posted on June 6, 2004 by Michael Froomkin

Back in January, I wrote about Campaign Medals for the 'War on Terror', complaining that

not only is the administration trying to lump the Afghanistan and Iraq wars under a single global ‘war against terrorism’ rubric for the purpose of campaign medals — a break with tradition — but that it also wants the backroom armchair warriors in that ‘war’ to be able to get the same medal as people who got shot at.

Looks like half of this is getting fixed: there will be separate campaign medals for Iraq and Afghanistan. Don't bet on the other half, though.

Posted in Politics: US | Comments Off on Medals Update

Let’s Translate This Phoenix International School of Law Ad

Posted on June 6, 2004 by Michael Froomkin

This ad popped into my mailbox:

Faculty Positions. Phoenix International School of Law (PISL) seeks candidates for full-time and visiting faculty positions. Applicants should be (1) student-centered; (2) skilled instructors and effective mentors; (3) comfortable with change; (4) attracted by the unique challenges and opportunities of a start-up institution; (4) multiculturally competent; and (5) committed to management and faculty development based on a best practices model. They also should have the capacity not only to educate but inspire, share the institution's priorities of graduating practice-ready lawyers, possess interpersonal skills that contribute to positive group dynamics, and appreciate the need for processes that facilitate a nimble and agile institution. PISL is committed to meeting all standards necessary for approval by the American Bar Association, including those governing job security and academic freedom. It seeks to attract individuals, however, who understand that these interests are optimized not by formal safeguards but upon the quality of group dynamics. PISL anticipates commencing operations with a small part-time division in Spring 2005 and full-time and part-time divisions in Fall 2005. Please submit applications to Donald E. Lively, Dean, at cwarner@carolynwarner.edu.

Despite the stuff about “meeting all standards necessary for approval by the American Bar Association, including those governing job security and academic freedom” this doesn't sound like they believe in tenure, does it? That should set the cat among the pigeons.

As it happens I agree that it's group dynamics — esprit de corps, shame even — that keeps some tenured people being good citizens, teaching well, and being productive long after their salaries have maxed out in real dollar terms. (For most, though, it's their natural obsessive-compulsive tendencies.) But an ad that feels a need to make a point of this stuff, plus the reference to “comfortable with change” and “committed to management and faculty development based on a best practices model,” well, that looks like code for something I don't think I'm going to like the looks of.

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Posted in Law School | 4 Comments