Author Archives: Michael Froomkin

NYT Runs Correction on Gonzales Impeachment

I guess I should be grateful for minor victories. Today's NYT has this correction:

A news analysis article yesterday about the testimony of Attorney General Alberto R. Gonzales before the Senate Judiciary Committee referred incorrectly to the power of Congress to remove an attorney general from office. Under the Constitution, civil officers of the United States government may be removed upon impeachment by the House of Representatives and trial in the Senate. Congress is not powerless to remove the attorney general.

Posted in The Media | 3 Comments

Rumsfeld’s House of Lies and Inhumanity

British lawyer Clive Stafford Smith has 36 clients in Guantánamo. He's written a book called “Bad Men” about what a twisted place it is, and the Guardian is running excerpts,

In Guantánamo, the military began with smaller lies and worked upwards. I was visiting Camp Echo one day and they had messed up the visitation schedule. The client I was meant to see was not there, although I had sent the schedule for my visits several weeks before. I thought I might as well go ahead and see Shaker Aamer [British resident captured in Afghanistan], whom I was not meant to meet until later in the week. So I asked the SOG (the sergeant of the guard, in charge of the camp) whether Shaker was in his normal cell. “No, he's not here,” the SOG replied. I settled down for another wasted hour, waiting for the military to bring over someone I could see. It was hot even under the umbrella at the “picnic table” – the area behind one of the cells in Camp Echo where they made lawyers wait. I watched a lizard crawling up the green mesh on the wire fence. I thought about the spider in Robert the Bruce's cave, continually battling to spin its web and teaching patience to the early Scottish nationalists.

The next day I saw Shaker. “Were you here yesterday?” I asked. “Yeah, of course. I've been here for weeks,” he replied. …

The dissembling disease got worse as time passed. First there was the effort to suppress the truth, with censorship or silence rather than any overt falsehood. Then there was the lie by semantics, where the US military redefined the language to provide plausible deniability. Finally, there was the bare-faced lie. This kind of culture does not germinate in a vacuum. Rumsfeld is responsible for a reconstitution of the English language. …

In a December 2004 press conference, the US navy secretary Gordon England tried to defend conditions in Guantánamo by producing the novel argument that the camp was rehabilitative: “People have learned to read and have learned to write, and so it's not just being incarcerated. We do try to get people prepared for a better life.” Prisoners had some difficulty exercising their new-found abilities. Indeed, contrary to England's statement, prisoners in Guantánamo were certainly not considered “people” and the guards were not even allowed to call them “prisoners”. …

Meanwhile the authorities exercised rigid control over any information that the prisoners received. Each time I went to visit, I would take a suitcase full of reading materials. I maintained a log reflecting the fate of each publication. Magazines awarded the stamp DENIED included National Geographic, Scientific American and Runner's World. On one occasion it seemed justified, since that month's National Geographic had a story about building an atomic bomb, but the editions about whales and African tribes hardly seemed a threat to national security. One soldier explained the censorship of Scientific American to me: the prisoner might learn about some hi-tech weapons system. Banning Runner's World was less obvious, given the naval base was surrounded on one side by a Cuban minefield and on the other three by ocean.

…I dropped off an anthology of first world war poetry for Omar Deghayes that included Wilfred Owen's poem Futility, about the ghastly violence of war. It was returned DENIED.

Omar was born in 1969 and was a British refugee from Libya. His father was tortured and killed by Muammar Gadafy in 1980, and as a teenager Omar moved with his family to Brighton and studied law. He had not completed his law exams, so I brought his books so he could study, ready for his release. Law books, though, were not permitted, least of all a subversive tome about the legal rights of prisoners.

The only Australian left in Guantánamo, David Hicks, was facing a military con-mission, like Binyam, and his lawyer was banned from giving him Scott Turow's legal thriller Presumed Innocent. The basis for censoring The New Dinkum Aussie Dictionary was less clear. Perhaps the strangest decision involved four books returned with the notation: “These Items were not Cleared for Delivery to the Detainee(s).” They were Puss in Boots, Cinderella, Jack and the Beanstalk, and Beauty and the Beast – all in Arabic translation. As one FBI agent admonished me: “You know that Arabic script is full of squiggles, and it can easily hide messages to the prisoners.” Could it be, I wondered, that Cinderella was secretly an enemy combatant? Eventually the military barred us from bringing books for our clients altogether.

And then there was the secrecy: lawyers were neither allowed to repeat anything the prisoners said to them, nor even to keep their own notes, which were all shipped to DC to be scrutinized by a declassification group before they'd be let out into the open.

All this was to control the flow of bad news out of Guantánamo. From the beginning Joe Margulies, the other civilian lawyer working for Binyam Mohamed, encapsulated the proper response to this: if we could open up the prison to public inspection, the government would close it down.

And there was a lot to hide. For example,

The way the military had pretended to torture his wife in the next room, even information about American soldiers murdering two prisoners in front of Moazzam, was considered a “method of interrogation” that could not be revealed.

Amnesty International's report, USA: Cruel and Inhuman — Conditions of Isolation for Detainees in Guantanamo Bay is grim. I wish every member of Congress could be persuaded to read it.

Despite being provided with what the US government has called “high quality” medical care, adequate food, sanitation and access to religious items, most detainees have languished in harsh conditions throughout their detention, confined to mesh cages or enclosed maximum security cells. Moreover, in December 2006, a new facility opened on the base. This facility, known as Camp 6, has created even harsher and apparently more permanent conditions of extreme isolation and sensory deprivation in which detainees are confined to almost completely sealed, individual cells, with minimal contact with any other human being.

At the time of writing, about 300 of the Guantánamo detainees — nearly 80 per cent of the current detainee population — were believed to be held in isolation in Camps 5, 6 or Camp Echo. According to the Pentagon, 165 detainees had been transferred to Camp 6 from other facilities on the base by mid-January 2007. Around 100 detainees are held in Camp 5, and some 20 more are believed to be held in isolation in Camp Echo, a facility set apart from others on the base, which was originally used to hold detainees selected for trial by military commissions. Fourteen “high value” detainees transferred from years of secret detention to Guantánamo Bay in September 2006 are also held in isolation on the base, although their exact location is unknown.

The isolation, and other psychologically damaging aspects of the treatment are literally driving the prisoners crazy. It is no surprise that there are suicides and growing hunger strikes.

I do not believe that this sort of treatment can be justified under any moral standard, however elastic.

Posted in Guantanamo | 2 Comments

One More Update

Got a nice email from Sheryl Gay Stolberg acknowledging the error and saying she's asked for a correction to run.

Posted in The Media | Comments Off on One More Update

Times Update (& More About the Belknap Case)

Well, the NYT has silently corrected the online version of the Stolberg story I complained about this morning in my posting “Times Reporter Forgets That Gonzales is Impeachable”. When I correct stuff here (more than five minutes after posting it), I indicate the changes with strikeout or “update”. The online NYT seems to operate by different rules. Something to keep in mind when citing it.

The old version can (for the moment at least) be viewed at the International Herald Tribune.

Meanwhile, I've found an interesting article by John Dean which discusses the (hitherto unknown to me) details of the impeachment of Secretary of War William Belknap,

Impeachment of Secretary of War William Belknap, in the aftermath of the Civil War, is the only precedent for using these proceedings against subordinate executive officers. Belknap was said to be involved in a kickback scheme involving military contracts. Just hours before the House was to vote to impeach him, Belknap resigned. Nonetheless, on March 2, 1876, the House impeached the former cabinet officer, and the five articles of impeachment were presented to the Senate.

The Senate trial lasted five months. (Today, such a trial would likely be handled by a trial committee of twelve senators, with a final debate and vote by the full Senate.) A central issue in the Belknap case was whether his resignation had terminated the jurisdiction of the Congress, and whether impeachment was still appropriate when his removal was no longer at issue. The Chairman of the House Judiciary Committee, Representative J. Proctor Knott, who was trying the case before the Senate, explained the controversy as follows:

“Was the only purpose of this disqualification simply to preserve the Government from the danger to be apprehended from the single convicted criminal?” Knott rhetorically asked. “Very far from it, sir. That in reality constituted but a very small part of the design. The great object, after all, was that his infamy might be rendered conspicuous, historic, eternal, in order to prevent the occurrence of like offenses in the future. The purpose was not simply to harass, to persecute, to wantonly degrade, or take vengeance upon a single individual; but it was that other officials through all time might profit by his punishment, might be warned by his political ostracism, by the ever-lasting stigma fixed upon his name by the most august tribunal on earth, to avoid the dangers upon which he wrecked, and withstand the temptations under which he fell; to teach them that if they should fall under like temptations they will fall, like Lucifer, never to rise again.”

By two votes, Belknap escaped conviction in the Senate. Had he not resigned, however, there is little question he would have been found guilty, removed and disqualified. Belknap's proceedings are a clear precedent for impeaching and disqualifying “civil officers,” but the case has not resolved the issue of merely disqualifying an official who has resigned from holding future office.

There's lots of other interesting stuff about the politics of impeachment in Dean's Findlaw article too.

Posted in Law: Constitutional Law, The Media | 1 Comment

Times Reporter Forgets That Gonzales is Impeachable

I spotted a real howler in this morning's NY Times, and emailed the following request for a correction:

In “On a Very Hot Seat With Little Cover and Less Support” Sheryl Gay Stolberg writes,

“Congress has no power to remove the attorney general”

[URL]

This is not accurate. The Constitution provides a mechanism by which all civil officers of the United States can be removed by Congress. It is called impeachment. Article II, Section 4 of the Constitution specifies that “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

The Congress has only used this power against a Cabinet member once — William W. Belknap, secretary of war, was impeached by the House but acquitted by the Senate in 1876 — but the power unquestionably exists.

While this may seem a small matter, to a law professor, and I'd imagine any lawyer, it's a pretty big one. It may even matter politically.

Please run a correction in the print edition (I spotted the error in the print version) and append a fix to the online version.

Thank you.

Don't reporters who cover the federal government have to know the Constitution?

Oh well, Stollberg is still better than Elisabeth Bumiller whom Stollberg replaced on the White House beat.

Posted in Law: Constitutional Law | 9 Comments

Brian Leiter Cares About Rankings

E-mail from Brian Leiter:

I am writing to ask if you would be willing to use your blog to help establish my law school ranking site as a result for those searching my name; oddly it is not at present. You can simply cut and paste from the post here:

http://leiterlawschool.typepad.com/leiter/2007/04/law_school_rank.html

Thanks so much, and sorry for the bother.

That link takes you to this text:

So, dear reader with a blog, please post a link to Brian Leiter with the hyper-link to www.leiterrankings.com, for the benefit of all those souls in Cyberspace in search of my law school ranking site. 

Which all reminds me: Over a year ago, I stopped promoting this blog by sending out emails when I thought I had something worthy of attention. Traffic and links soon sagged — I lost maybe a third of it. But I'm much happier.

Posted in Blogs | 5 Comments