Friday, June 30, 2006

Treaties (including Geneva) are still part of the Supreme Law of the Land

[Bumped w/ Update]

From Article VI:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

In perhaps its most significant decision this term, Hamdan v. Rumsfeld, the Supreme Court held today (.pdf of decision here) that the Guantanamo military tribunals violate the laws of war. Most importantly, as discussed by Marty Lederman at SCOTUSblog and Glenn Greenwald at Unclaimed Territory, the Court held that Common Article 3 of the Geneva Conventions governs as a matter of treaty obligation to all conflicts, including those involving so-called "enemy combatants," the category invented by Administration lawyers to skirt Geneva's rules and allow the President to order prohibited conduct.

The implication is that a wide range of torture and harsh interrogation techniques that arguably do not violate constitutional "due process" obligations remain illegal under Geneva, in which we agreed with the majority of the nations of the world to set higher standards for ourselves--including in conflicts with non-signatory combatants such as Al Qaeda. Additionally, as Greenwald notes: "the Court severely weakened, if not outright precluded, the administration's legal defenses with regard to its violations of FISA," and it "repeatedly emphasized the shared powers which Congress and the Executive possess with regard to war matters."

This is good news for fans of separation of powers and constitutional checks and balances.

Further analysis (via

Michael Froomkin, Hamden Highlights
Steve Vladeck, After Hamdan: Reclaiming Congressional War Power
Marty Lederman, Legislative Supremacy, The Laws of War, and the Geneva Holding
Jack Balkin, Hamdan as a Democracy-Forcing Decision


Here's some further reading on Hamden:

Aziz Huq has more at the ACS Blog: Hamdan and the Youngstown Framework

Orin Kerr: Justice Kennedy, Youngstown, and Article II

Mark Graber: Hamdan As What We Make It

Lyle Denniston: Analysis: What Hamdan did not decide

Hilzoy in Hamdan: Clearing Up A Few Points tries to clear up some misconceptions about the decision.

Thursday, June 29, 2006

Get your Death Ray!

Good stuff.

They even have test footage.

(via Pharyngula, where Doc Myers also has some great video of a giant centipede catching a bat).

Wall Street Journal: Pension Shortfalls Largely Caused by Executive Pensions

To help explain its deep slump, General Motors Corp. often cites "legacy costs," including pensions for its giant U.S. work force. In its latest annual report, GM wrote: "Our extensive pension and [post-employment] obligations to retirees are a competitive disadvantage for us." Early this year, GM announced it was ending pensions for 42,000 workers.

But there's a twist to the auto maker's pension situation: The pension plans for its rank-and-file U.S. workers are overstuffed with cash, containing about $9 billion more than is needed to meet their obligations for years to come.

Another of GM's pension programs, however, saddles the company with a liability of $1.4 billion. These pensions are for its executives.

This is the pension squeeze companies aren't talking about: Even as many reduce, freeze or eliminate pensions for workers -- complaining of the costs -- their executives are building up ever-bigger pensions, causing the companies' financial obligations for them to balloon.

Companies disclose little about any of this. But a Wall Street Journal analysis of corporate filings reveals that executive benefits are playing a large and hidden role in the declining health of America's pensions.
It's worth reading the whole thing.

More from David Sirota and PsiFighter37,

Tuesday, June 27, 2006

Unblogged topics

Living up to the name of this blog, some recent things I haven't had the time to blog about:

Washington Post: Warnings on WMD 'Fabricator' Were Ignored, Ex-CIA Aide Says

New York Times: Bank Data Is Sifted by U.S. in Secret to Block Terror

New York Times: Cheney Assails Press on Report on Bank Data

Jack Balkin: The Administration That Cried Wolf and Detention for Dangerous Speech?

Eschaton: Stand Up

James Wolcott: Gripes of Wrath

Hume's Ghost: Prosecute journalists ... or else?

Glenn Greenwald: The Bush lynch mob against the nation's free press

Dan Froomkin: Bush’s signing statements: Constitutional crisis or empty rhetoric? (Also, see Nuke the Messenger)

Publius: OK, This Is Starting to Get Scary

Billmon: The Swiftboating of Kos

Finally, Digby quits the grand left-wing conspiracy in Premature Anti-Blogofascism


Oh yeah, Committee Vote on Net Neutrality Tomorrow


Juan Cole: Defending Markos and the Discourse Revolution

Video of Rick Santorum claiming to be revealing a classified document on Fox News (Santorum: "I’ll show you the classified documents right here…")

Troop Withdrawals

With the Democratic Party's proposals to set some goals and deadlines in Iraq defeated and derided as "cut and run", and with an election year upon us, its time once again to leak rumors about troop withdrawals. Sound familiar? It's not just you. The "Godot routine" continues.

Constitutional Convention

Anti-gay activists want to call a Constitutional Convention, going over the heads of Congress to write an amendment banning gay marriage. Prof. Froomkin explains what he thinks it would take for a convention to happen and declares his candidacy for delegate from Florida in the event that the one actually does:
So, you heard it here first: If the call for a Second Constitutional convention happens, and if it survives its trip through the courts, then I'm going to be running to be a delegate. (Assuming we even get to elect our delegates, of course.)

What the heck, count me in as candidate for Delegate from Pennsylvania.

Thursday, June 22, 2006

Great Expectations

Georgetown's preseason rank on ESPN: 6.

• Let's start with big men Jeff Green and Roy Hibbert. Tell us a pair of better forwards.
• The losses of Brandon Bowman and Ashanti Cook won't be as dramatic as it seems with a stable recruiting class on board led by Vernon Macklin.
• John Thompson III. He's that good a coach. His system works. Look, we're talking about Georgetown again. That's because of JT3.

In Defense of Unions

High Court Approves New Electronic Discovery Standards

Analysis of the new amendment to Rule 26, which goes into effect December 1, can be found at

Rule 26(b)(2)(B) will state:
A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

Diverging Views on High Court's New Knock and Announce Rule

"An odd mix of liberal, conservative and libertarian bloggers have joined on both sides of a continuing argument over the Supreme Court's decision last week in Hudson v. Michigan..."

My column for this month for the Legal Intelligencer is now online, and has been placed outside the subscription-only firewall for your convenience.

Citation list:

Wednesday, June 21, 2006

Slouching towards Constitutional Checks and Balances

Glenn Greenwald highlights a few incipient positive developments for those who favor a government that doesn't feature a lawless Executive.

Tuesday, June 20, 2006

Yet Another Secret Spying Program Revelation

Via AMERICAblog, which did some key early reporting on this issue, the AP is reporting:
Numerous federal and local law enforcement agencies have bypassed subpoenas and warrants designed to protect civil liberties and gathered Americans' personal telephone records from private-sector data brokers.

These brokers, many of whom advertise aggressively on the Internet, have gotten into customer accounts online, tricked phone companies into revealing information and even acknowledged that their practices violate laws, according to documents gathered by congressional investigators and provided to The Associated Press.

The law enforcement agencies include offices in the Homeland Security Department and Justice Department — including the FBI and U.S. Marshal's Service — and municipal police departments in California, Colorado, Florida, Georgia and Utah. Experts believe hundreds of other departments frequently use such services.

John in DC notes that after AMERICAblog obtained Gen. Wes Clark's cell phone records on the internet to demonstrate the ease of obtaining anyone's private records,
As a result, there was a big media uproar, the US House passed legislation unanimously, 409-0, to fix the problem, and the Senate was even considering legislation.

. . .

Now, this gets even more interesting. While the House passed one bill that would address this issue, a second piece of legislation was due to be debated on the House floor on the same day that US[A] Today revealed that Bush was using AT&T and other phone companies to spy on you. That day the House legislation suddenly disappeared and never was to be seen again. No one knows how it disappeared or who pulled it (though it had to be a Republican, like Denny Hastert, since they control the House). And even more interesting, for some unexplained reason the Senate legislation has gone nowhere. Bill Frist just won't move it.

So, let's get this straight: the cell phone records on the internet scandal and the NSA spying scandal suddenly appear closely connected, and the Congress suddenly changes course and decides that its none of their business.


This month, the Republican-led Congress voted itself its seventh straight salary increase to match inflation and increasing costs of living.

House Republicans are preventing an "up or down vote" on increasing the minimum wage from $5.15 to $7.25 per hour.

This will be the tenth straight year without a cost of living or inflationary adjustment in the minimum wage.

A How-to Guide to Getting Educated on Evolution

Prof. PZ Myers provides a guided tour of all the resources where skeptics can get their fill of evidence for evolution.

Bad Apple in Chief

Points made in Ron Suskind's new book, THE ONE PERCENT DOCTRINE, as described in Barton Gellman's Washington Post book review, as helpfully collected by Matthew Yglesias:
  • Al-Qaedist Abu Zubaydah was captured in March 2002.
  • Zubaydah's captors discovered he was mentally ill and charged with minor logistical matters, such as arranging travel for wives and children.
  • The President was informed of that judgment by the CIA.
  • Two weeks later, the President described Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States."
  • Later, Bush told George Tenet, "I said he was important. You're not going to let me lose face on this, are you?" and asked Tenet if "some of these harsh methods really work?"
  • The methods -- torture -- were applied.
  • Then, according to Gellman, "Under that duress, he began to speak of plots of every variety -- against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty."
  • At which point, according to Suskind, "thousands of uniformed men and women raced in a panic to each . . . target."
More from Gellman's review:
Abu Zubaydah, his captors discovered, turned out to be mentally ill and nothing like the pivotal figure they supposed him to be. CIA and FBI analysts, poring over a diary he kept for more than a decade, found entries "in the voice of three people: Hani 1, Hani 2, and Hani 3" -- a boy, a young man and a middle-aged alter ego. All three recorded in numbing detail "what people ate, or wore, or trifling things they said." Dan Coleman, then the FBI's top al-Qaeda analyst, told a senior bureau official, "This guy is insane, certifiable, split personality."

Abu Zubaydah also appeared to know nothing about terrorist operations; rather, he was al-Qaeda's go-to guy for minor logistics -- travel for wives and children and the like. That judgment was "echoed at the top of CIA and was, of course, briefed to the President and Vice President," Suskind writes. And yet somehow, in a speech delivered two weeks later, President Bush portrayed Abu Zubaydah as "one of the top operatives plotting and planning death and destruction on the United States." And over the months to come, under White House and Justice Department direction, the CIA would make him its first test subject for harsh interrogation techniques.

. . .

"I said he was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. . . . And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."
As if the fresh news wasn't enough that the President approved torture-in-the-name-of-not-losing-face, the book review reveals a few other new points about Bush's negligence in the conflict with Al Qaeda:
The book's opening anecdote tells of an unnamed CIA briefer who flew to Bush's Texas ranch during the scary summer of 2001, amid a flurry of reports of a pending al-Qaeda attack, to call the president's attention personally to the now-famous Aug. 6, 2001, memo titled "Bin Ladin Determined to Strike in US." Bush reportedly heard the briefer out and replied: "All right. You've covered your ass, now." Three months later, with bin Laden holed up in the Afghan mountain redoubt of Tora Bora, the CIA official managing the Afghanistan campaign, Henry A. Crumpton (now the State Department's counterterrorism chief), brought a detailed map to Bush and Cheney. White House accounts have long insisted that Bush had every reason to believe that Pakistan's army and pro-U.S. Afghan militias had bin Laden cornered and that there was no reason to commit large numbers of U.S. troops to get him. But Crumpton's message in the Oval Office, as told through Suskind, was blunt: The surrogate forces were "definitely not" up to the job, and "we're going to lose our prey if we're not careful."
"I'm the Decider, and I decide what is best."


Suskind discussed some more horrible decisions from the Decider on Wolf Blitzer's June 20 show. Suskind's reporting confirmed the long-suspected belief (discussed for example in the documentary Control Room) that the Bush Administration deliberately targeted Al Jazeera journalists for death:

BLITZER: One of the other explosive charges you have in the book is that the U.S. deliberately bombed the Al Jazeera offices in Kabul to make a point. You write this: 'On November 13, a hectic day when Kabul fell to the Northern Alliance and there were celebrations in the streets of the city, a U.S. missile obliterated Al Jazeera's office. Inside the CIA and White House there was satisfaction that a message had been sent to Al Jazeera.'

Are you suggesting that someone in the U.S. government made a deliberate decision to take out the Al Jazeera office in Kabul?

SUSKIND: My sources are clear that that was done on purpose, precisely to send a message to Al Jazeera, and essentially a message was sent.

What are we fighting for?

With Saddam captured, his sons and Zarqawi dead (and scores of Zarqawi's "number twos"), the alleged weapons of mass destruction still nonexistent, elections won by Iran-friendly religious extremists, and ethnic cleansing campaigns well-underway across the country (including by our ostensible "allies"), what remains of our ever-shifting purpose for being in Iraq?

Bush says "stay the course," or, "when the Iraqis stand up, we will stand down." These have always been simple-minded evasions rather than a real exit strategy. If the Iraqis stand up for civil war, ethnic cleansing, religious repression, and rule by militia, what is our response? Do we stand with them? Or do we stand down?

The US Embassy in Iraq provides a disheartening snapshot into the lives of actual Iraqis, employees in the Green Zone. Via Juan Cole:

a 121430Z UN 06



E.O. 12958: N/A TAGSt P14GM. PRE ,. ASEC. AMGT, IZ
SUBJECTS Snapshots from the Office: Public Affairs Staff Show Strains of Social Discord


1. (SBU) Beginning in March. and picking up in mid-May, Iraqi staff in the Public Affairs Section have complained that Islamist and/or militia Groups have been negatively affecting their daily routine. Harassment over proper dress and habits has been increasingly pervasive. They also report that power cuts and fuel prices have diminished their quality of life. Conditions vary by neighborhood, but even upscale neighborhoods such as Mansur have visibly deteriorated.

Womens Rights

2. (SBU) The Public Affairs Press Office has 9 local Iraqi employees. Two of our three female employees report stepped up harassment beginning in mid-May. One, a Shiite who favors Western clothing, was advised by an unknown woman in her upscale Shiite/Christian Baghdad neighborhood to wear a veil and not to drive her own car. Indeed, she said, some groups are pushing women to cover even their face, a step not taken in Iran even at its most conservative.

3. (SBU) Another, a Sunni, said that people in her middle-class neighborhood are harassing women and telling them to cover up and stop using cell phones (suspected channel to licentious relationships with men). She said that the taxi driver who brings her every day to the green zone checkpoint has told her he cannot let her ride unless she wears a headcover. A female in the PAS cultural section is now wearing a full abaya after receiving direct threats in May. She says her neighborhood, Mhamiya, is no longer permissive if she is not clad so modestly.

4. (SBU) These women say they cannot identify the groups that are pressuring them many times. the cautions come from other women, sometimes from men who they say could be Sunni or Shiite, but appear conservative. They also tell us that some ministries, notably the Sadrist controlled Ministry of Transportation, have been forcing fem1es to wear the hijab at work. Dress Code for All?

5. (SBU) Staff members have reported that it is now dangerous for men to wear shorts in public; they no longer allow their children to play outside tn shorts. People who wear jeans in public have come under attack from what staff members describe as Wahabis and Sadrists.


6. (SBU) One colleague beseeched us to weigh in to help a neighbor who was uprooted in May from her home of 30 years, on the pretense of application of some long-disused law that allows owners to evict tenants after 14 years. The woman, a Fayli Kurd, says she has nowhere to go. no other home, but the courts give them no recourse to this new assertion of power. Such uprootings may be a response by new Shiite government authorities to similar actions against Arabs by Kurds in other parts of Iraq. ( NOTE: An Arab newspaper editor told us he is preparing an extensive survey of ethnic cleansing, which he said is taking place in almost every Iraqi province , as political parties and their militias are seemingly engaged in tit-for-tat reprisals all over Iraq. One editor told us that the KDP is now planning to set up tent cities in Irbil, to house Kurds being evicted from Baghdad.)

Power Cuts and Fuel Shortages a Drain on society --

7. Temperatures in Baghdad have already reached 115 degrees. employees all confirm that by the last week of May, they were getting one hour of power for every six hours without. That was only about four hours of power a day for the city. By early June, the situation had improved slightly, In Hai Si Shaab. power has recently improved from one in six to one in three hours. Other staff report similar variances. Central Baghdad neighborhood Bab al Muathama has had no city power for over a month. Areas near hospitals, political party headquarters, and the green zone have the best supply, in some eases reaching 24 hours. One staff member reported that a friend lives in a building that houses a new minister; within 2l hours of his appointment, her building had City power 24 hours a day.

(SBU) All employees supplement City power with service contracted with neighborhood generator hookups that they pay for monthly. ‘ One employee pays 7500 ID per ampere to get 10 amperes per month (75,000 10 = USD 50/month). For this, her family gets 6 hours of power per day, with service ending at 2 am. Another employee pays 9000 ID per ampere to get 10 amperes per month (90.000 USD 60). For this, his family gets 8 hours per day, with service running until 5 am.

9. (SEW Fuel lines have also taxed out- staff, One employee told us May 29 that he had spent 12 hours on his day off (Saturday) waiting to get gas. Another staff member confirmed that shortages were so dire, prices on the black market in much of Baghdad were now above 1,000 Iraqi dinars per liter (the official, subsidized price is 250 ID).

Kidnappings, and Threats of Worse

10. (SBU) One employee informed us in March that his brother in law had been kidnapped. The mean was eventually released, but this caused enormous emotional distress to the entire family. One employee, a Sunni Kurd, received an indirect threat on her life in April. She took extended leave, and by May, relocated abroad with her family. Security Forces 4istrusted

11. (SBU) In April, employees began reporting a change in demeanor of guards at the green zone checkpoints. They seemed to be more militia-like, in some cases seemingly taunting. One employee asked us to explore getting her press credentials because guards had held her embassy badge up and proclaimed loudly to nearby passers-by ‘Embassy’ as she entered Such information is a death sentence if overheard by the wrong people.

Supervising a Staff At High Risk

12. (SBU) employees all share a common tale their lives: of nine employees in March, only four had family members who knew they worked at the embassy. That makes it difficult for them, and for us. Iraqi colleagues called after hours often speak Arabic as an indication they Cannot speak openly in English.

13. (SBLT) We cannot call employees in on weekends or holidays without blowing their cover. Uikewise, they have been unavailable during multiple security closures imposed by the government since February. A Sunni Arab female employee tells us that family pressures and the inability no share details of her employment is very tough; she told her family she was in ’ Jordan .then we sent her on training to the February. Mounting criticisms of the U.S. at home among family members also makes her life difficult. She told us in mid­June that most of her family believes the U.S. ­- which is widely perceived as fully controlling the country and tolerating the malaise ­- is punishing populations as Saddani did (but with Sunnis and very poor Shiitenow at the bottom of the list), Otherwise, she says, the allocation of power and security would not be so arbitrary.

14. CSBU) Some of our staff do not take home their American cell phones , as this makes them a target. Planning for their own possible abduction , they use code names for friends and colleagues and contacts entered into Iraq cell phones. For at least six months, we have not been able to use any local staff members for translation at on-camera press events.

15. (SBU) More recently, we have begun shredding documents printed out that show local staff surnames. In March. a few staff members approached us to ask what provisions would we make for them if we evacuate.

Sectarian Tensions Within Families

16. Ethnic and sectarian fault lines are also becoming part of the daily media fare in the country. One Shiite employee told us in late May that she can no longer watch TI! news with her mother, who is Suruti, because her mother blamed all government failings on the fact that Shiites Are in charge. Many of the employees immediate family members, including her father, one sister, and a brother, left Iraq years ago. This month, another sister is departing for Egypt, as she imagines the future here is too bleak,

Frayed Nerves and Mistrust in the Office

17. (SBU) Against this backdrop of frayed social networks, tension and moodiness have risen. One Shiite made disparaging comments about the Sunni caliph Othman which angered a Kurd. A Sunni Arab female apparently insulted a Shiite female colleague by criticizing her overly liberal dress. One colleague told us he feels “defeated’ by circumstances, citing the example of being unable to help his two year old son who has asthma and cannot sleep in stifling heat. 1$. (SBU) Another employee tells us that life outside the Green Zone has become emotionally draining. He lives in a mostly Shiite area and claims to attend a funeral every evening,’ He, like other local employees, is financially responsible for his immediate and extended families. He revealed that ‘the burden of responsibility; new stress coming from social circles who increasingly disapprove of the coalition presence, and everyday threats weigh very heavily.This employee became extremely agitated in late May at website reports of an abduction of an Iraqi working with MNFI, whose expired Embassy and MNFI badges were posted on the website Staying Straight with Neighborhood Governments and the ‘Alasa

19. (SBU) Staff members say they daily assess how to move safely in public. Often, if they must travel outside their own neighborhoods, they adapt the clothing, language, and traits of the area. In Jadriya, for example, one needs to conform to the SCIRI/Badr ethic; in Yusufiya, a strict Sunni conservative dress code has taken hold Adhawiya and Salihiya, controlled by the secular Ministry of Defense, are not conservative. Moving inconspicuously in Sadr City requires Shiite conservative dress and a particular lingo. Once­upscale Mansur district, near the Green Zone, according to one employee, by early June was an unrecognizable ghost town.

20. (SBU) Since Samarra, Baghdadis have honed these survival skills. Vocabulary has shifted to reflect new behavior. Our staff ­- and our contacts -- have become adept in modifying behavior to avoid A1asae, informants who keep an eye out for outsiders” in neighborhoods. The Alasa mentality is becoming entrenched as Iraqi security forces fail to gain public confidence.

21. (SBU) Our staff, report that security and services are being rerouted through local provider whose affiliations are vague. As noted above, those who are admonishing citizens on their dress are not known to the residents. Neighborhood power providers are not well known either, nor is it clear how they avoid robbery or targeting. Personal safety depends on good relations with the neighborhood governments, who barricade streets and ward of f outsiders. The central government, our staff says, is not relevant; even local mukhtars have been displaced or co-opted by militias. People no longer trust most neighbors.

22. (SBtJ) A resident of upscale Shiit/ Christian Karrada district told us that outsiders” have moved in and now control the local mukhtars, one of whom now has cows and goats grazing in the streets. When she expressed her concern at the dereliction, he told her to butt out.

Comment 23. (SBtJ) Although our staff retain a professional demeanor , strains are apparent. We see that their personal fears are reinforcing divisive sectarian or ethnic channels, despite talk of reconciliation by officials. Employees are apprehensive enough that we fear they my exaggerate developments or steer us towards news that comports with their own worldview. Objectivity, civility, and logic that make for a functional workplace may falter if Social pressures outside the Green Zone don’t abate.

Stay the course.

Taking this mindless slogan to heart, the House Republicans uncritically voted their continued support for the Iraq War in a sham debate. The Republican-led House pressed the boundaries of inanity and specious reasoning in voting to declare that we must complete "the mission to create a sovereign, free, secure and united Iraq."

Simply reading that list of goals invites the obvious conclusion that our Congress is living in a fantasy world without semblence to reality. Congress is not grappling with--and it is not forcing the President to grapple with--realistic goals. Congress is not doing its job. It still has yet to ask the most basic questions about why we are there, what we are fighting for, what we can accomplish, and whether what we want to do is doable by force of arms or Congressional resolutions. If these questions remain unasked by those in power, they will not be answered. Until then, we cannot begin to start talking about our goals, when they can be completed, and when we can pull out. Congress is not supporting the troops.

Josh Marshall nails one of the problems:
Kevin Drum was right a couple days ago when he said that the key problem for Democrats in coming up with a unified message on Iraq is that they're not unified. That's life. And it's not terribly surprising that they're not unified. We've gotten into an incredible fix in Iraq. And extricating a country from a predicament like this isn't easy. We have Democrats who think the whole idea was a disaster from the start and that we should leave immdiately, others who think it was a plausible idea bungled through incompetence, others who speak of timelines for withdrawal.

But the White House is making and has made its stand quite clear -- American troops in Iraq at least through 2009, and probably for the indefinite future; and no reevaluation of the basic concept of why we went in. So, a good idea to start with and we'll stay there more or less forever. (Saying we'll be there until 2009 and then having no plan to leave after that = forever.) That position is so out of sync with where the country is and so disastrous for the country's security and future prosperity, that I don't think anyone should be afraid to go to the country opposing it. The truth is that the president doesn't have any policy beside denial about how we got into this jam.

The House Republicans' speeches on Iraq would be laughable if their negligence on Iraq was not so deadly to our troops. For example, Speaker Dennis Hastert, explaining Congress's "steely resolve" (no, really) in patting itself on the back for its unquestioning support for the Iraq War is just like the steely resolve of the heros of 9/11:
We in this Congress must show the same steely resolve as those men and women on United flight 93, the same sense of duty as the first responders who headed up the stairs of the Twin Towers. We must stand firm in our commitment to fight terrorism and the evil it inflicts around the world.

Then there's that lovable TV personality Bill O'Reilly, who thinks the Iraq problem is not enough Saddam:
O'Reilly: Now to me, they're not fighting it hard enough. See, if I'm president, I got probably another 50-60 thousand with orders to shoot on sight anybody violating curfews. Shoot them on sight. That's me... President O'Reilly... Curfew in Ramadi, seven o'clock at night. You're on the street? You're dead. I shoot you right between the eyes. Ok? That's how I run that country. Just like Saddam ran it. Saddam didn't have explosions - he didn't have bombers. Did he? because if you got out of line, your dead.

Yeah, that'll teach em to love democracy. That, and a few hundred House Republicans lining up to explain "We'll either fight terrorists there or we'll fight them here," which is loosely translated as "We invaded Iraq so terrorists would invade it too," and which ignores evidence that the vast majority of the fighting in Iraq involves various factions of Iraqis, not international terrorists. You would think that history had nothing to offer (even ignoring the obvious analogy to Vietnam) with its stories of the perils of occupying hostile territories for ambiguous purposes--from the Soviet invasion of Afghanistan, the French in Algiers, or the British occupation of....Iraq.

Finally, going to the videotape evidence... Cheney was asked, and he still thinks the insurgency is in its "last throes":
REPORTER: About a year ago, you said that the insurgency in Iraq was in its final throes. Do you still believe this?

CHENEY: I do. What I was referring to was the series of events that took place in 1995 [sic – 2005]. I think the key turning point when we get back 10 years from now, say, and look back on this period of time and with respect to the campaign in Iraq, will be that series of events when the Iraqis increasingly took over responsibility for their own affairs. And there I point to the election in January of ‘05 when we set up the interim government, the drafting of the constitution in the summer of ’05, the national referendum in the fall of ‘05 when the Iraqis overwhelmingly approved that constitution, and then the vote last December when some 12 million Iraqis in defiance of the car bombers and the terrorists went to the polls and voted in overwhelming numbers to set up a new government under that constitution. And that process of course has been completed recently with the appointment by Prime Minister Maliki of ministers to fill those jobs. I think that will have been from a historical turning point, the period that we’ll be able to look at and say, that’s when we turned the corner, that’s when we began to get a handle on the long-term future of Iraq.

Cheney's lame and false excuse for the failing to plan for an insurgency in Iraq is the same as Bush's lame and false excuse for failing to respond to New Orleans' breached levees, that "nobody" expected it:
Q: Do you think that you underestimated the insurgency's strength?

Cheney: I think so, umm I guess, the uh, if I look back on it now. I don't think anybody anticipated the level of violence that we've encountered....

Of course, as we all remember, many people both in and outside of government predicted that occupation would lead to a prolonged insurgency. Heck, *even Tim Russert* managed to predict it, and asked Cheney about it directly. Cheney refused to consider the prediction, because he had talked to one or two Iraqi exiles who assured him that invasion and occupation would be welcomed in Iraq:
Russert: If your analysis is not correct, and we’re not treated as liberators, but as conquerors, and the Iraqis begin to resist, particularly in Baghdad, do you think the American people are prepared for a long, costly, and bloody battle with significant American casualties?

Cheney: Well, I don’t think it’s likely to unfold that way, Tim, because I really do believe that we will be greeted as liberators.

I’ve talked with a lot of Iraqis in the last several months myself, had them to the White House. The president and I have met with them, various groups and individuals, people who have devoted their lives from the outside to trying to change things inside Iraq. And like Kanan Makiya who’s a professor at Brandeis, but an Iraqi, he’s written great books about the subject, knows the country intimately, and is a part of the democratic opposition and resistance. The read we get on the people of Iraq is there is no question but what they want to the get rid of Saddam Hussein and they will welcome as liberators the United States when we come to do that."

As noted at Crooks and Liars, *even Dick Cheney himself* predicted an Iraqi insurgency and cited it as a key reason not to topple Saddam after the first Gulf War:
"And the question in my mind is how many additional American casualties is Saddam worth?" Cheney said then in response to a question.

"And the answer is not very damned many. So I think we got it right, both when we decided to expel him from Kuwait, but also when the president made the decision that we'd achieved our objectives and we were not going to go get bogged down in the problems of trying to take over and govern Iraq."

And so the Administration wilfully chose to ignore this very real and likely possibility. And now here we are, debating what our role should be, bogged down in a growing civil war after taking over and trying to govern Iraq.


Prof. Cole has more on Karl Rove and the Republicans' ugly responses to Democratic proposals for phased withdrawals with clear goals and timetables. A taste:

The old traitor Karl Rove, who revealed the identity of covert CIA operative Valerie Plame to the Iranians (and everyone else), castigated the Democrats' proposals as "cut and run." Rove wants us to go on spending $5 billion a week in Iraq, and to go on losing thousands of maimed young people.

Here are some other examples of cutting and running:

The United States withdrew from the Philippines in 1946.

Britain withdrew from India in 1947.

France withdrew from Morocco and Tunisia in 1956.

France withdrew from Algeria in 1962.

. . .

Either, Mr. Rove, the US is a Republic among independent nations, or it is a Colonial Power intent on subjecting other peoples. If it is a Republic, it should be leaving Iraq to the Iraqis. If it is a Colonial Power, then it is doomed. Because no instance of successful foreign colonialism on the nineteenth-century model has been implemented in the past 50 years, for the simple reason that the peoples of the global south are socially and politically mobilized-- literate, urban, industrial, skilled, networked-- in a way they never were before in history. And no mobilized people can be successfully occupied.

The US military presence in Iraq is retarding a political settlement. It makes the Shiites and Kurds cocky and unwilling to compromise with the Sunni Arabs. It keeps the Iraqi army weak and ineffective, lacking proper armor or an air force. And US military tactics of search and destroy are turning progressively more Iraqis against us over time. The longer the US stays in Iraq, the more likely it is that one day one of our cities will be attacked by Iraqi terrorists bearing a grudge for Fallujah or Tal Afar or whatever other Iraqi cities we plan to destroy.

Air Torture

Prof. Froomkin links to Amnesty International's "insufficiently fictional" parody airline:
Air Torture is the premiere airline transporting detainees to select torture chambers around the world. Organizations such as Amnesty International like to call our business "outsourcing torture" because we deliver all our customers to countries where torture is routinely practiced - but our partners at the U.S. government have come up with a much better name: "extraordinary rendition."

Thanks to the Bush Administration, the "war on terror" has been a big boon to our business. All flights are fully funded by unsuspecting taxpayers in the United States.

Monday, June 19, 2006

Intelligencer's Efforts Rebuffed to Bolster Civil Jury Verdict Stories with Statements from Jurors

As discussed at the Legal Intelligencer Blog.

Still, the paper hopes it will "at some point in the future, be able to provide our readers with insights from jurors who have participated in civil trials that have gone through to verdict."

Sunday, June 18, 2006

You know those three Guantanamo suicides that we were told were asymmetrical warfare rather than acts of desperation?

This stuff is inhuman. Guantanamo's very existence defames our country and the very principles it is meant to defend.

One of the three men who committed suicide at Guantanamo Bay, a Saudi, had been cleared to leave Guantanamo after four years of detention without seeing a lawyer or any due process. (Correction: they had "due process" to the extent the President of the United States provides due process when he signs a document hundreds of miles away collectively declaring hundreds of people "enemy combatants" without any individual hearing, evidence, witnesses, or findings of fact).

This man was never told that he was leaving Gitmo.

Another, a Yemani, had a lawyer but was never told so. The third was captured as a teenager fighting with the Taliban.

And we're supposed to believe that these weren't acts of desperation?

From the Miami Herald:

The Yemeni captive who killed himself at Guantanamo Bay, Cuba, had an attorney arranging to visit him in August, but did not know it when he committed suicide.

One of the Saudis, Mani Shaman al Utaybi, 30, had been approved for transfer to a jail back home, but also had never been told he was cleared to depart the U.S. detention center.

As the Pentagon was silent Thursday on the repatriation of the bodies of the three men from the island prison, their lawyers questioned whether their isolation and lack of knowledge about their status contributed to their deaths.

The three men hanged themselves in Camp 1 with nooses made from shredded bedsheets and towels on Saturday in what the military called a choreographed group suicide. Rear Adm. Harry Harris Jr., the camps' commander, described it as an act of "asymmetrical warfare."

But attorneys for the men_who the military initially said had no lawyers_say that had the detainees known of legal efforts on their behalf, they might be alive today.

"As far as we know he (Ali Abdullah Ahmed) did not know he had an attorney. We certainly never got through to him to advise him of that fact," said Dave Engelhardt of Washington, D.C., who had filed a habeas corpus petition for Ahmed, the 29- or 30-year-old Yemeni.

"Perhaps he would have not have committed suicide if he had known the facts of his representation of counsel and the progress that is being made in the American courts for the detainees."

. . .

Both Engelhardt and attorney Jeff Davis of Charlotte, N.C., said government lawyers had thwarted repeated attempts to see their clients.

Davis said his firm was notified more than a month ago that Utaybi was approved for transfer back to Saudi Arabia. But the notice came under a seal of secrecy, said Davis, so Utaybi, who had never met his lawyer, did not know he would be sent home - which The Miami Herald confirmed independently.

"I think the humane thing to do when you've decided to change those conditions of confinement, you tell him, particularly if the change is to send him home," said Davis.

. . .

As of Thursday, the most current count of captives at Guantanamo stood at "approximately 460."

Via TalkLeft.

Hudson River Girl

An update on a crazy bit of gossip from last summer at Inside Opinions Legal Blog Watch concerning a University of Virgina 2L who "reportedly drank too much, undressed too much and dove into the Hudson River while attending a party hosted by the firm where she was a summer associate."


Some great photos from New Orleans JazzFest by Greg Aiello.

Via Elliot in Baton Rouge.

Tuesday, June 13, 2006

Rove Escapes Indictment

Contra the apparent misinformation posted here, the New York Times reports:
In a statement, Mr. Luskin said, "On June 12, 2006, Special Counsel Patrick Fitzgerald formally advised us that he does not anticipate seeking charges against Karl Rove."

Mr. Fitzgerald's spokesman, Randall Samborn, said he would not comment on Mr. Rove's status.

Tuesday, June 06, 2006

Bad Apples: Deleting Geneva from the Army Field Manual

The Los Angeles Times reports that the Pentagon is deleting anti-torture language from the Army Field Manual that is drawn from the Geneva Conventions.

The Geneva Conventions, if you do not know, were treaties instituted following the atrocities, degradations and mistreatment seen during World War 2 that were created in large part by America's leadership in creating international legal rules and standards for the treatment of prisoners of waar and captured stateless combatants. The United States continually chides other nations for failing to meet international legal standards, for example, in the yearly State Department reports and in the case for war brought against Saddam Hussein. Nevertheless, reports the LA Times:
WASHINGTON — The Pentagon has decided to omit from new detainee policies a key tenet of the Geneva Convention that explicitly bans "humiliating and degrading treatment," according to knowledgeable military officials, a step that would mark a further, potentially permanent, shift away from strict adherence to international human rights standards.

. . . [T]he State Department fiercely opposes the military's decision to exclude Geneva Convention protections and has been pushing for the Pentagon and White House to reconsider, the Defense Department officials acknowledged.

. . .

The directive on interrogation, a senior defense official said, is being rewritten to create safeguards so that all detainees are treated humanely but can still be questioned effectively.

President Bush's critics and supporters have debated whether it is possible to prove a direct link between administration declarations that it will not be bound by Geneva and events such as the abuses at Abu Ghraib or the killings of Iraqi civilians last year in Haditha, allegedly by Marines.

But the exclusion of the Geneva provisions may make it more difficult for the administration to portray such incidents as aberrations. And it undercuts contentions that U.S. forces follow the strictest, most broadly accepted standards when fighting wars.

"The rest of the world is completely convinced that we are busy torturing people," said Oona A. Hathaway, an expert in international law at Yale Law School. "Whether that is true or not, the fact we keep refusing to provide these protections in our formal directives puts a lot of fuel on the fire."

You may also remember that the recent McCain anti-torture bill pegged standards of behavior to....guess what?

That's right, the Army Field Manual!:
McCain last year pushed Congress to ban torture and cruel treatment and to establish the Army Field Manual as the standard for treatment of all detainees. Despite administration opposition, the measure passed and became law.
Convenient time to make this deletion, eh?
For decades, it had been the official policy of the U.S. military to follow the minimum standards for treating all detainees as laid out in the Geneva Convention. But, in 2002, Bush suspended portions of the Geneva Convention for captured Al Qaeda and Taliban fighters. Bush's order superseded military policy at the time, touching off a wide debate over U.S. obligations under the Geneva accord, a debate that intensified after reports of detainee abuses at Guantanamo Bay, Cuba, and at Iraq's Abu Ghraib prison.

Among the directives being rewritten following Bush's 2002 order is one governing U.S. detention operations. Military lawyers and other defense officials wanted the redrawn version of the document known as DoD Directive 2310, to again embrace Common Article 3 of the Geneva Convention.

That provision — known as a "common" article because it is part of each of the four Geneva pacts approved in 1949 — bans torture and cruel treatment. Unlike other Geneva provisions, Article 3 covers all detainees — whether they are held as unlawful combatants or traditional prisoners of war. The protections for detainees in Article 3 go beyond the McCain amendment by specifically prohibiting humiliation, treatment that falls short of cruelty or torture.
The JAGs come off looking pretty good:
The military lawyers, known as judge advocates general, or JAGs, have concluded that they will have to wait for a new administration before mounting another push to link Pentagon policy to the standards of Geneva.

"The JAGs came to the conclusion that this was the best they can get," said one participant familiar with the Defense Department debate who spoke on condition of anonymity because of the protracted controversy. "But it was a massive mistake to have withdrawn from Geneva. By backing away, you weaken the proposition that this is the baseline provision that is binding to all nations."

Derek P. Jinks, an assistant professor at the University of Texas School of Law and the author of a forthcoming book on Geneva called "The Rules of War," said the decision to remove the Geneva reference from the directive showed the administration still intended to push the envelope on interrogation.

"We are walking the line on the prohibition on cruel treatment," Jinks said. "But are we really in search of the boundary between the cruel and the acceptable?"

The military has long applied Article 3 to conflicts — including civil wars — using it as a minimum standard of conduct, even during peacekeeping operations. The old version of the U.S. directive on detainees says the military will "comply with the principles, spirit and intent" of the Geneva Convention.
This all goes back to the Bush Administration's key misinterpretation of the Conventions when Bush's lawyers (Yoo, Gonzalez, Bybee) concocted their various apologies for why torture of persons captured in Afghanistan isn't prohibited:
In his February 2002 order, Bush wrote that he determined that "Common Article 3 of Geneva does not apply to either Al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and Common Article 3 applies only to 'armed conflict not of an international character.' "

Some legal scholars say Bush's interpretation is far too narrow. Article 3 was intended to apply to all wars as a sort of minimum set of standards, and that is how Geneva is customarily interpreted, they say.
We all know what is going on. It's not just a few bad apples who are responsible for acts of torture and affronts to human dignity:
"The overall thinking," said the participant familiar with the defense debate, "is that they need the flexibility to apply cruel techniques if military necessity requires it."

Sunday, June 04, 2006

Tea Party with the DHS Funding Committee

DHS cuts New York City's anti-terrorism funding. . . . and blames New York. Publius at Legal Fiction scripts the scene.

Unfortunately, this is beyond parody. I mean, look at this nonsense:

New York has no national monuments or icons, according to the Department of Homeland Security form obtained by ABC News. That was a key factor used to determine that New York City should have its anti-terror funds slashed by 40 percent--from $207.5 million in 2005 to $124.4 million in 2006.

. . .

The formula did not consider as landmarks or icons: The Empire State Building, The United Nations, The Statue of Liberty and others found on several terror target hit lists. It also left off notable landmarks, such as the New York Public Library, Times Square, City Hall and at least three of the nation's most renowned museums: The Guggenheim, The Metropolitan and The Museum of Natural History

NSA Spying Case Continues (at least for now) Despite Assertion of State Secrets Privilege

Some good news for fans of executive oversight (where are you Congress?) from the Detroit News:
DETROIT -- A federal judge in Detroit said she will proceed with hearings in a suit that challenges a domestic spying program run by the National Security Agency, despite assertions from the Bush administration that doing so would reveal "state secrets" that affect national security.
Via TalkLeft

I Like Pat's Better Anyway

(above: a delicious Pat's steak).

I don't get it. So, Geno's won't serve you your cheesesteak if you don't order in English?:

Vento insists his customers order in English. No pointing at the menu items. Speak English, a sign at Vento's popular, curbside counter reads.

I guess somehow the immigrants will be dissuaded from crossing the border if they know that if they come to Philadelphia, they'll have to cross the street to get a cheesesteak without learning to say "steak, wit."

Via Atrios.

Saturday, June 03, 2006

Gov't to Internet Providers: Preserve Customers' Internet Records

The Los Angeles Times reports on online privacy.

The government is saying, 'Keep everything about everyone and we'll sort it out later.' "

. . .

"What's special here is the scale," said Ohio State University law professor Peter Swire, a privacy expert who attended Thursday's meeting at the Justice Department. "The Justice Department is discussing requiring records for chat, e-mail, and Web surfing — that's billions of encounters per day."

Thursday, June 01, 2006

Was the 2004 Presidential Election Stolen?

"Yes," concludes Robert Kennedy, Jr. in the new issue of Rolling Stone.

Give a read to the article and make up your own mind.

Voting, as Thomas Paine said, ''is the right upon which all other rights depend.'' Unless we ensure that right, everything else we hold dear is in jeopardy.


"No," replies Farhad Manjoo at Salon, in a thoughtful response to Kennedy's article, raising what appear to be strong points undercutting many of the key statistics and claims cited by Kennedy.

Steve Gilliard has further criticism.

The Editors have more.

I think the conclusions are fair and well-documented that there were voter suppression efforts in Ohio and elsewhere and that reform and oversight are necessary to keep voting easy and reliable. Kennedy's overreach (relying on the polling data and questionable evidence Manjoo refutes) is the conclusion that the suppression and the logistical problems in Ohio changed the election result. Manjoo does seem to glide a bit easily past the implications of the firmer conclusions.

Second update:

Kennedy has now responded to Majoo's response, and Manjoo has replied to Kennedy again.

Here's Tristero's take:
Bottom line: I'll anger a lot of you, but based on the information in Kennedy's first article, Manjoo's response and this new article, I believe it is a seriously open question as to what actually happened in Ohio in 2004. Without further, extensive investigation honest people will disagree on whether it was stolen or whether Bush would have won anyway. If the latter, it seems it would have been a squeaker.

What is beyond dispute either by Kennedy or Manjoo are two points. First, what happened in Ohio (if not elsewhere) stinks to high heaven. Agreed. Second, if America is still a democracy, then election [re]form is what the president of the United States should be using his bully pulpit to advocate, not ways to use the Constitution to empower gay bashing. Agreed.

More from the Editors.

The Mystery Pollster weighs in (Part I).

"Catapulting the Propoganda"

Guest posting at Unclaimed Territory, Hume's Ghost comments on the FCC's investigation of the Bush administration's and large corporations' alarmingly extensive use of "covert propoganda" in the form of videos disguised as "news" and run on television as news stories by local news stations without any attribution of their source.