Thursday, November 30, 2006

New Hope for New Orleans Policyholders

Bumped up

In a monumental win for policyholders from New Orleans seeking insurance coverage for the destruction of their homes and businesses, the Honorable Stanwood R. Duval, Jr. provided a "glimmer of hope" yesterday, ruling that the insurance companies should pay for the widespread water damage. The Judge, in effect, has found coverage for the vast majority of the homeowners in the five parish area surrounding New Orleans, which is estimated to include approximately 250,000 homes. The policyholders are represented by my law firm, Anderson Kill & Olick, P.C.

At issue are so-called "flood exclusions" in all-risk insurance policies--which the insurance industry claims apply to the New Orleans devastation--despite the fact that it was admittedly caused by human negligence (such as the Army Corps of Engineers' negligent construction) leading to a breach of levees. "Flood" is a word with many different definitions. Several of those in Websters, for example, reference "overflowing" or "overtopping", clearly contemplating a natural event caused by rain or tide. A reasonable interpretation of the exclusion, therefore, is that it only refers to natural "acts of God." Water damage losses caused by the negligence of third parties, on the other hand, would be covered.

Indeed, as a key tenet of insurance law, exclusions in an insurance policy--which limit the coverage you would otherwise receive--must be read narrowly, and ambiguities must be resolved against the insurance company, which drafted the ambiguous language.

Accordingly, Judge Duval narrowly interpreted the flood exclusion against its drafters--the insurance companies. However, he did carve out exceptions for State Farm and the Hartford insurance companies, reasoning that their policies, unlike the other insurance companies', explicitly state that they do not provide coverage for flooding "regardless of cause."

From the Times:
Lawyers for more than a dozen homeowners and Xavier University, which had business insurance, hailed Judge Duval’s decision as a victory.

“This is a major breakthrough,” said John N. Ellison, a member of the team of lawyers representing storm victims and a partner at Anderson Kill & Olick in New York. “Our hope is that this ruling may help get the redevelopment of the houses and the city going so the city can come back to life.”

The ruling was the first by a court in Louisiana on damage from Hurricane Katrina. It ran counter to rulings by a federal judge in Mississippi that supported the industry’s contention that most property insurance policies do not provide coverage for flooding.

But the judge in Mississippi, L. T. Senter of Federal District Court, disagreed with the insurers’ contention that any damage due to flooding nullified the coverage. He cleared the way for trials early next year to determine how much damage to flooded homes and businesses resulted from high winds.

The rulings differ, in part, because the nature of the flooding was different. In Mississippi, the storm drove water from the Gulf of Mexico ashore and wiped out tens of thousands of homes unprotected by artificial barriers. In New Orleans, flood waters breached some levees and poured into the city as the storm was moving away. The water lingered in parts of the city for weeks.

Mr. Ellison, the lawyer for the homeowners, said he believed that the New Orleans case would go to the United States Court of Appeals for the Fifth Circuit “on an expedited basis” and that deliberations could begin in the spring.

More than 200,000 homes and thousands of businesses were damaged or destroyed by the flooding in New Orleans. The insurers have refused to pay claims for water damage and the relatively small amounts that homeowners and businesses received for wind damage have been far from enough for most people to rebuild. The federal government has stepped in with promises of several billion dollars in assistance, but little of the money has reached the people who need it.
. . .

Judge Duval, who was appointed to the federal court by President Bill Clinton in 1994, said in an 85-page decision that the insurers could have made clear “that ‘flood’ means water damage caused by negligent acts or omissions.” But, he said, they “chose not to do so.”

Nearly a dozen insurance companies had sought dismissal of the lawsuits over flood losses. But Judge Duval ruled in favor of only two, State Farm, the largest home insurer in Louisiana, with about 20 percent of the market; and Hartford, a unit of the Hartford Financial Services Group, which has a much smaller share.

Judge Duval said he cleared the way for an immediate appeal because “there is a substantial ground for a difference of opinion.”

Patent Law Blogs

My latest column for the Legal looks at some of the popular Patent Law Blogs.

Sunday, November 26, 2006

Hamdan's next case

From Lyle Denniston at SCOTUSblog:
Lawyers for Salim Ahmed Hamdan, in a sweeping challenge to the new Military Commissions Act, on Friday added a handful of new fundamental constitutional complaints as they filed the first full-scale brief by opponents. Hamdan, whose case led last June to perhaps the most important Supreme Court ruling ever on presidential war powers, is facing war crimes charges before a military commission to be set up by the new Act.

The new 45-page brief seeking to head off that trial was filed in U.S. District Court; his case (04-1519) returned to the Washington court after the Supreme Court ruling. (UPDATE: A new amicus brief, filed by four retired generals, two retired admirals and a retired Central Intelligence Agency officer, supports Hamdan's claim that he has a right to continued protection under the Geneva Conventions. That brief can be found here.)

The Justice Department takes the view, expressed in a number of pending cases, that the new Act stripped the federal courts of all jurisdiction to hear any habeas challenge by any war-on-terrorism detainee, no matter where that captive was taken prisoner. It notified the judge handling Hamdan's case, U.S. District Judge James Robertson, and other federal judges in Washington of the passage of the new court-stripping provisions. Robertson, in turn, treated that notice as a motion to dismiss, and called for briefs on it. The government's reply is due on Dec. 1.
Read the rest here.

"The 'Unbearable' Everydayness of Blogging"

Dennis Kennedy is meta-blogging. Also, here.

What is the precedential value of Bush v. Gore?

Chad Flanders has an interesting article in the Yale Law Journal's Pocket Part, "Please Don’t Cite This Case! The Precedential Value of Bush v. Gore." A brief excerpt:
Bush v. Gore is not, as some critics have alleged, a merely incoherent opinion; it is contradictory, both setting down a rule and denying that any rule had been set down.

The Court has so far behaved as if Bush v. Gore does not exist, not yet having cited it (pro or con) in any case. If Stewart v. Blackwell is not the case that ultimately forces the Supreme Court to show its hand, some other case will have to be.

1983 (A Litigant I Should Turn to Be)

Lawsuit to decide who owns Jimi Hendrix's music.

Law blogger wants OJ book

"Surely, this book will go down in history as the greatest subjunctive confession of all time."

Norm Pattis is one of many e-Bay bidders eager to get their hands on loose copies of the recalled O.J. book.

Old News I Just Noticed

Not that it's necessarily significant of anything, but law schools across the country are reporting decreased applications, which appears to be developing into a trend.

Editing down Hamdan

Prof. Tung Yin at Prawfsblog discusses the difficulties inherent in editing down the 96-page Hamdan decision for law students.

If you're in law school, read the whole thing. Lots of interesting stuff in there.

Tuesday, November 21, 2006

Your TALON database at work

Government says it spies on terrorists; instead, spies on peace-lovin' hippies. But hey, they have cause!: "it seems like this protest will be peaceful, but some type of vandalism is always a possibility." I see. Better dispatch a field agent. (And better put their names onto the database for the super-secret illegal eavesdropping.)

The New York Times reported that the Pentagon's current position is that "those operating the database had misinterpreted their mandate."

I feel safer already.

California Supreme Court Protects Bloggers from Libel Laws

This is a fairly important decision for vigorous free speech online in blogs, bulletin boards, newsgroups and other websites:
The California Supreme Court ruled Monday that bloggers and participants in Internet bulletin board groups cannot be sued for posting defamatory statements made by others.

In deciding a case closely watched by free speech groups, the court said a federal law gives immunity from libel suits not only to Internet service providers, like AOL, but also to bloggers and other users of their services.

"Subjecting Internet service providers and users to defamation liability would tend to chill online speech," today's unanimous ruling said.
Read the decision here and read more about it here.

FBI Helped Frame Four Innocent Men (40 Years Ago)

FHA suit against Craigslist dismissed

A case brought against Craigslist under the Fair Housing Act (FHA) by the Chicago Lawyers Committee for Civil Rights was dismissed, as reported at Legal Blog Watch.

The gist is that Craigslist falls under an FHA exception as an "interactive computer service" under the Communications Decency Act of 1996, and therefore isn't considered a "publisher."

The FHA prohibits discrimination "in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents of legal custodians, pregnant women, and people securing custody of children under the age of 18), and handicap (disability)."

Monday, November 20, 2006

More than a little bit unseemly

President Bush is eager to demonstrate just how well he's learned all the wrong lessons about Vietnam -- while visiting Vietnam:
In Hanoi, powerful reminders remain of the fighting three decades ago, the longest U.S. war and one that -- like Iraq -- divided Americans.

Asked if the experience in Vietnam offered lessons for Iraq, Bush said, "We tend to want there to be instant success in the world, and the task in Iraq is going to take awhile.

"We'll succeed unless we quit," the president said.

So, now back to Vietnam -- both the metaphor and the country.

Isn't this trip a really odd venue for the president to be arguing that staying the course basically forever is the only acceptable solution? . . .

. . .

And yet here we have President Bush, stepping on to Vietnamese soil to further our rapprochement with Vietnam, and arguing, in so many words, that the lesson of Vietnam is that we should still be there blowing the place up thirty years later.

We're really deep into the primitive brainstem phase of our long national nightmare of presidential denial and mendacity on Iraq. Poetically, politically and intellectually it's appropriate that Henry Kissinger is now along for the ride.

Indeed, to Kissinger, the only similarity between Iraq and Vietnam is how much our country's citizens are the ones responsible for "losing" their leaders' stupid wars:
"For me, the tragedy of Vietnam was the divisions that occurred in the United States that made it, in the end, impossible to achieve an outcome that was compatible with the sacrifices that had been made," former Secretary of State Henry Kissinger told CNN's "Late Edition with Wolf Blitzer."
And it should be noted that Bush's Vietnam-coulda-been-won-if-we-had-just-stayed-the-course-like-I-want-to-do-in-Iraq lesson is something he has been thinking about. Considering that this is the third Vietnam comparison he's made or accepted in recent weeks, it probably wasn't a comment offered off the top of his head.

Even if historical accuracy isn't the goal, you would still think his advisors could have fed him a more diplomatic answer than "Nice country you got here. It's a shame we didn't keep bombing it."


The stupid is contagious.

From Prof. Cole:
AP says that Secretary of State Condi Rice asserted Saturday that Iraqis only have a future if they stay within a single state. She pointed to Vietnam's success in reforming its economy and making up with the United States and held it out as a model to Iraq.


Rice surely knows that the way in which Vietnam achieved national unity was . . . for the radical forces to drive out the Americans, overthrow pro-American elements, and conquer the whole country. They only went in for this capitalism thing fairly recently. Rice, a Ph.D. and former Provost of Stanford University, shouldn't be saying silly things like that Iraq should emulate Vietnam. I guess if you hang around with W. long enough, you catch whatever it is that he has.

Friday, November 17, 2006

Bill Introduced to Restore Habeas Corpus

We've talked about why it needs to be done.

Senator Dodd (D-CT) now appears to be moving towards repealing the Military Commissions Act, introducing instead the "Effective Terrorists Prosecution Act."

The net effect is the restoration of the right to habeas corpus.
“We in Congress have our own obligation, to work in a bipartisan way to repair the damage that has been done, to protect our international reputation, to preserve our domestic traditions, and to provide a successful mechanism to improve and enhance the tools required by the global war on terror,” Dodd said.

Prof. Michael Froomkin has the full text of Dodd's bill.

Thursday, November 16, 2006

Voting Law News

A manual recount with a non-existent paper trail is occurring right now in Florida's 13th. Think about that.

Meanwhile, Representative Holt is calling for a national standard for elections with paper trails.

Via VoteLaw.

Head of Guantanamo Bay Military Commissions Quits

From the WSJ:
As the Bush administration gears up for another try at prosecuting suspected terrorists at Guantanamo Bay, it’ll have to proceed without the retired Army major general who’s run the effort since 2004.

John Altenburg said that when he accepted the job as “appointing authority” for the military commissions, he expected Guantanamo trials to start in short order—and that he’d be back at his job at the Washington law and lobbying firm Greenberg Traurig by mid-2005. Instead, the military commissions collapsed under a concerted assault by military and civilian defense attorneys, who eventually won a landmark Supreme Court decision in June declaring the entire project unlawful.
via Jeralyn at TalkLeft.

"Sir, prove to me that you are not working with our enemies"

I can hardly believe this:
On the November 14 edition of his CNN Headline News program, Glenn Beck interviewed Rep.-elect Keith Ellison (D-MN), who became the first Muslim ever elected to Congress on November 7, and asked Ellison if he could "have five minutes here where we're just politically incorrect and I play the cards up on the table." After Ellison agreed, Beck said: "I have been nervous about this interview with you, because what I feel like saying is, 'Sir, prove to me that you are not working with our enemies.' " Beck added: "I'm not accusing you of being an enemy, but that's the way I feel, and I think a lot of Americans will feel that way."
So Beck's very first "question" to a newly elected Congressman after congratulating him on his recent win is "I'm not accusing you of being the enemy, but that's the way I feel"?? What does that even mean? He's not accusing him of being the enemy, he's just feeling that he's the enemy? And I'm sure he's got lots of evidence that "a lot Americans" also feel that way about him--a Congressman most Americans probably never heard of until he was pointlessly smeared as maybe possibly kinda feels like a traitor by CNN's Glenn Beck. That's cutting edge programming there, guys.

Media Matters has the transcript:
BECK: History was made last Tuesday when Democrat Keith Ellison got elected to Congress, representing the great state of Minnesota. Well, not really unusual that Minnesota would elect a Democrat. What is noteworthy is that Keith is the first Muslim in history to be elected to the House of Representatives. He joins us now. Congratulations, sir.

ELLISON: How you doing, Glenn? Glad to be here.

BECK: Thank you. I will tell you, may I -- may we have five minutes here where we're just politically incorrect and I play the cards face up on the table?

ELLISON: Go there.

BECK: OK. No offense, and I know Muslims. I like Muslims. I've been to mosques. I really don't believe that Islam is a religion of evil. I -- you know, I think it's being hijacked, quite frankly.

With that being said, you are a Democrat. You are saying, "Let's cut and run." And I have to tell you, I have been nervous about this interview with you, because what I feel like saying is, "Sir, prove to me that you are not working with our enemies."And I know you're not. I'm not accusing you of being an enemy, but that's the way I feel, and I think a lot of Americans will feel that way.

ELLISON: Well, let me tell you, the people of the Fifth Congressional District know that I have a deep love and affection for my country. There's no one who is more patriotic than I am. And so, you know, I don't need to -- need to prove my patriotic stripes.
Lest I pick on CNN too much, did you see Fox News' leaked memo telling its anchors to look for evidence that the terrorists are "thrillled" with the Democratic congressional victories? Check it out. Pretty shameless:

Almost as cynical as the pre-planned pegging of Dems as the terrorists' favorite American political party is the sniffing about how the question for Democrats for the rest of Bush's term is "what's the plan for Iraq?" --a question Fox News would never think to ask the man who actually has to make those decisions, and who never thought to think of a plan before he got us there.

Wednesday, November 15, 2006

Post Removed

(Post removed on 3/20/07 at request of author of piece being discussed)

Another brilliant blog-generated idea

Right wing nuts propose taking up a collection to keep previously-rejected UN Ambassador-turned-recess-appointee John Bolton at the UN through yet another recess appointment designed to avoid yet another rejection by the Senate. James Wolcott provides the necessary snark.

The Republican Re-Embrace of Trent Lott

Lott: When Strom Thurmond ran for president, we voted for him. We're proud of it. And if the rest of the country had followed our lead, we wouldn't have had all these problems over all these years, either.
Video here.

After losing his leadership post in the Senate in disgrace only four years ago for publicly endorsing Sen. Strom Thurmond's racist Dixiecrat platform, Senator Lott is again a member of the Senate Republican leadership, winning the Minority Whip post by one vote.

As Atrios put it:
Well, after being demoted from the #1 Republican spot all the way down to the #4 Republican spot, Trent Lott has triumphantly clawed his way back to the #2 spot.
Scott Lemieux of Lawyers, Guns & Money has posted the Dixiecrats' platform from 1948. Here are the three most odious planks:
4. We stand for the segregation of the races and the racial integrity of each race; the constitutional right to choose one's associates; to accept private employment without governmental interference, and to learn one's living in any lawful way. We oppose the elimination of segregation, the repeal of miscegenation statutes, the control of private employment by Federal bureaucrats called for by the misnamed civil rights program. We favor home-rule, local self-government and a minimum interference with individual rights.

5. We oppose and condemn the action of the Democratic Convention in sponsoring a civil rights program calling for the elimination of segregation, social equality by Federal fiat, regulations of private employment practices, voting, and local law enforcement.

6. We affirm that the effective enforcement of such a program would be utterly destructive of the social, economic and political life of the Southern people, and of other localities in which there may be differences in race, creed or national origin in appreciable numbers.
Scott makes the obvious point that there's little question that the "these problems over all these years" referenced by Lott were Brown v. Board and the Civil and Voting Rights Acts. But Lott says he was just trying to make an old man feel good at a party. Whatever.


Outgoing Arkansas governor and presidential aspirant Mike Huckabee (R) is complaining about muckraking news reports on several "wedding" registries at Target and Dillard in his and his wife's names. I'd be more sympathetic of his complaints--if his wedding wasn't THIRTY-TWO YEARS ago.

Bad Apple Tree

This is not a surprise.

The evidence has been pointing that way for some time: President Bush personally authorized the CIA torture (ahem, alternative interrogation) techniques that migrated into Army practices at Abu Ghraib prison, Guantanamo Bay, and extra-judicial "black" detention sites.
The Central Intelligence Agency has acknowledged for the first time the existence of two classified documents, including a directive signed by President Bush, that have guided the agency’s interrogation and detention of terror suspects.

. . .

The contents of the documents were not revealed, but one of them is “a directive signed by President Bush granting the C.I.A. the authority to set up detention facilities outside the United States and outlining interrogation methods that may be used against detainees,” the A.C.L.U. said, based on its review of published accounts.

The second document, according to the group, is a Justice Department legal analysis “specifying interrogation methods that the C.I.A. may use against top Al Qaeda members.”

A.C.L.U. lawyers said they would urge public disclosure of the contents of the documents. “We intend to press for release of both of these documents,” Jameel Jaffer, a lawyer for the group, said in a statement. “If President Bush and the Justice Department authorized the C.I.A. to torture prisoners, the public has a right to know.”
The buck stops with the President.

Bush and his political appointees lied about the "few bad apples" when the Abu Ghraib story broke. There is no question of a few "bad apples"; the question is how rotten is the whole tree, from root to branch?

Bush and his political appointees shamelessly opted to blame servicemen and women for using the wrongful acts they had deliberately chosen to unleash in Cuba and deliberately chosen to export to Iraq. Abu Ghraib was the clear and easily foreseeable consequence (and indeed it was foreseen) of a chain of bad decisions made by Bush, Rumsfeld, Ashcroft, Tenet, Gonzalez, and a host of others.

As Newsweek reported in May:
[T]he single most iconic image to come out of the abuse scandal—that of a hooded man standing naked on a box, arms outspread, with wires dangling from his fingers, toes and penis—may do a lot to undercut the administration's case that this was the work of a few criminal MPs. That's because the practice shown in that photo is an arcane torture method known only to veterans of the interrogation trade. "Was that something that [an MP] dreamed up by herself? Think again," says Darius Rejali, an expert on the use of torture by democracies. "That's a standard torture. It's called 'the Vietnam.' But it's not common knowledge. Ordinary American soldiers did this, but someone taught them."

Who might have taught them? Almost certainly it was their superiors up the line. Some of the images from Abu Ghraib, like those of naked prisoners terrified by attack dogs or humiliated before grinning female guards, actually portray "stress and duress" techniques officially approved at the highest levels of the government for use against terrorist suspects. . . . Bush, along with Defense Secretary Rumsfeld and Attorney General John Ashcroft, signed off on a secret system of detention and interrogation that opened the door to such methods. It was an approach that they adopted to sidestep the historical safeguards of the Geneva Conventions, which protect the rights of detainees and prisoners of war. In doing so, they overrode the objections of Secretary of State Colin Powell and America's top military lawyers—and they left underlings to sweat the details of what actually happened to prisoners in these lawless places. . . .

The Bush administration created a bold legal framework to justify this system of interrogation, according to internal government memos obtained by NEWSWEEK. What started as a carefully thought-out, if aggressive, policy of interrogation in a covert war—designed mainly for use by a handful of CIA professionals—evolved into ever-more ungoverned tactics that ended up in the hands of untrained MPs in a big, hot war. Originally, Geneva Conventions protections were stripped only from Qaeda and Taliban prisoners. But later Rumsfeld himself, impressed by the success of techniques used against Qaeda suspects at Guantanamo Bay, seemingly set in motion a process that led to their use in Iraq, even though that war was supposed to have been governed by the Geneva Conventions. Ultimately, reservist MPs, like those at Abu Ghraib, were drawn into a system in which fear and humiliation were used to break prisoners' resistance to interrogation.

. . .

With the legal groundwork laid, Bush began to act. First, he signed a secret order granting new powers to the CIA. According to knowledgeable sources, the president's directive authorized the CIA to set up a series of secret detention facilities outside the United States, and to question those held in them with unprecedented harshness. . . .

The administration also began "rendering"—or delivering terror suspects to foreign governments for interrogation. Why? . . . Tenet suggested it might be better sometimes for such suspects to remain in the hands of foreign authorities, who might be able to use more aggressive interrogation methods. By 2004, the United States was running a covert charter airline moving CIA prisoners from one secret facility to another, sources say. The reason? It was judged impolitic (and too traceable) to use the U.S. Air Force.

. . .

The Pentagon's resistance to rougher techniques eroded month by month. In part this was because CIA interrogators were increasingly in the same room as their military-intelligence counterparts. But there was also a deliberate effort by top Pentagon officials to loosen the rules binding the military.

Toward the end of 2002, orders came down the political chain at DOD that the Geneva Conventions were to be reinterpreted to allow tougher methods of interrogation. "There was almost a revolt" by the service judge advocates general, or JAGs, the top military lawyers who had originally allied with Powell against the new rules, says a knowledgeable source. The JAGs, including the lawyers in the office of the chairman of the Joint Chiefs, Gen. Richard Myers, fought their civilian bosses for months—but finally lost. In April 2003, new and tougher interrogation techniques were approved.

. . .

While the interrogators at Gitmo were refining their techniques, by the summer of 2003 the "postwar" insurgency in Iraq was raging. And Rumsfeld was getting impatient about the poor quality of the intelligence coming out of there. . . . So he directed Steve Cambone, his under secretary for intelligence, to send Gitmo commandant Miller to Iraq to improve what they were doing out there. Cambone in turn dispatched his deputy, Lt. Gen. William (Jerry) Boykin—later to gain notoriety for his harsh comments about Islam—down to Gitmo to talk with Miller and organize the trip. In Baghdad in September 2003, Miller delivered a blunt message to Brig. Gen. Janis Karpinski, who was then in charge of the 800th Military Police Brigade running Iraqi detentions. According to Karpinski, Miller told her that the prison would thenceforth be dedicated to gathering intel. (Miller says he simply recommended that detention and intelligence commands be integrated.) On Nov. 19, Abu Ghraib was formally handed over to tactical control of military-intelligence units.

By the time Gitmo's techniques were exported to Abu Ghraib, the CIA was already fully involved. On a daily basis at Abu Ghraib, says Paul Wayne Bergrin, a lawyer for MP defendant Sgt. Javal Davis, the CIA and other intel officials "would interrogate, interview prisoners exhaustively, use the approved measures of food and sleep deprivation, solitary confinement with no light coming into cell 24 hours a day. Consequently, they set a poor example for young soldiers but it went even further than that."
There is little to zero doubt that Bush and his appointees must have known immediately after the Abu Ghraib torture scandal broke into the news that the actions depicted in those photographs were the result of their own decisions. They knew it--but made a deliberate decision to obfuscate, lie, and scapegoat the troops to save their own political necks.

There is no defending what the soldiers in the photographs did, and I won't begin now. Indeed, some did choose not to participate in torture (this soldier, Army Spc. Alyssa Peterson, an Arabic-speaking translator, reportedly committed suicide after refusing to participate in torture at a prison at Tal-afar airbase in Iraq; she "objected to the interrogation techniques used on prisoners," but the "records of those techniques have now been destroyed"). However, there is also no defending the people who deliberately inserted ambiguity into the rules of detention, who deliberately blurred the lines between appropriate interrogation and torture, who deliberately authorized what had previously been forbidden, who deliberately placed soldiers into such untenable and morally repugnant situations, and who denied all knowledge of these deliberations in the course of framing the soldiers' actions as unexpected, unAmerican, rogue behavior.

It has been said that the torturer is the enemy of mankind. The men who provide the soldier with the idea (and order) that torture is their lawful duty--and who then scapegoat and prosecute the soldier for the crimes they authored--are even worse.

The new Congress needs to provide some oversight on this issue.

Tuesday, November 14, 2006

America without Habeas Corpus

From the AP (courtesy the outgoing Republican Congress, President Bush, and a few too many Democrats):
WASHINGTON - Immigrants arrested in the United States may be held indefinitely on suspicion of terrorism and may not challenge their imprisonment in civilian courts, the Bush administration said Monday, opening a new legal front in the fight over the rights of detainees.

In court documents filed with the 4th U.S. Circuit Court of Appeals in Richmond, Va., the Justice Department said a new anti-terrorism law being used to hold detainees in Guantanamo Bay also applies to foreigners captured and held in the United States.

Ali Saleh Kahlah Al-Marri, a citizen of Qatar, was arrested in 2001 while studying in the United States. He has been labeled an "enemy combatant," a designation that, under a law signed last month, strips foreigners of the right to challenge their detention in federal courts.

That law is being used to argue the Guantanamo Bay cases, but Al-Marri represents the first detainee inside the United States to come under the new law. Aliens normally have the right to contest their imprisonment, such as when they are arrested on immigration violations or for other crimes.
The right of a prisoner to petition a court for redress is the very essence of Liberty. To paraphrase Chief Justice Marshall: Without a remedy, a right does not exist.

The Constitution is a covenant among the nation's citizens, but also a promise to "our posterity," setting a moral obligation to keep and preserve the "justice" and "blessings of liberty" described in the Preamble for future generations. In addition to setting out governmental structure and processes intended to best check the worst impulses of those with Power, the document contains guarantees embodying fundamental human rights and standards of due process.

There is no justification for denying fundamental rights to our immigrants or our guests. Yes, citizenship accords one with certain unique political rights, but human rights do not end with citizenship.

One, there's the hypocrisy. Our Declaration of Independence trumpets the "separate and equal station to which the Laws of Nature and of Nature's God entitle" peoples from different states. One of the document's stated purposes is satisfying "a decent respect to the opinions of mankind." It extols as "self evident" that "all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness," and that government is instituted by the People "to secure these rights."

The Military Commissions Act violates not mere technical rules of criminal procedure, but the very core of what "liberty" means. A law stating that basic human rights end depending on your citizenship shows a total lack of respect for the opinions of mankind.

Then, there's the fact that the MCA is unconstitutional. The Bill of Rights itself has long been held by the Supreme Court to apply to non-citizens. See, most recently, Rasul vs. Bush ("Aliens held (in Guantanamo), no less than American citizens, are entitled to invoke the federal courts' authority.").

Repealing the horrible Military Commissions Act and reinvigorating the right to habeas corpus relief should be one of the first priorities for the new Congress. I don't want this to simply be forgotten as politically sensitive why-bring-that-up-again-now "old business."

Friday, November 10, 2006

Stem Cells Return Sight to Blind Mice

Wednesday, November 08, 2006

Chief Justice Roberts considers detention of U.S citizens in Iraq

Lyle Denniston explains an interesting habeas case at SCOTUSblog:
Chief Justice John G. Roberts, Jr., is considering a request to keep a U.S. citizen now in a military prison in Iraq from being turned over to Iraqi officials, to face execution after being convicted in an alleged plot to kidnap three Romanian journalists. The case of Mohammed Munaf, now pending in the D.C. Circuit Court, raises basic issues about the right of a U.S. military detainee to challenge in U.S. courts his detention by the U.S. and allied coalition force in Iraq and his impending transfer overseas to another government.
Read the rest here.


Destroying Incipient Myths about Last Night

"The Democrats who won have one thing in common -- aggressive and unapologetic opposition to what the Republicans have become."

Glenn's right: this win signals that the voters have had enough with the old ruling party. This was not a win for mealy-mouthed centrism. There will not be some kind of non-confrontational kum-bah-yah session where everyone sits down with Bush and agrees that all we need to do to fix Iraq is replace Rumsfeld.

First of all, how are Democrats supposedly going to "work with" a President who has steadfastly refused to work with them? Who has questioned the patriotism of anyone willing to question his wars? Who has said if the Democrats win, America loses? Who has refused to even inform Congress of his spying programs that violate federal law? Who has long since abandoned any vestiges of bipartisonship in favor of Grover Norquist's theory that it is a form of "date rape"?

Tom Delay has as much as dared the new 110th Congress to investigate his 109th: “My only answer to that,” DeLay replied, “is make my day.” (Here's a handy rundown of 109 of the 109th Congress' misdeeds). Cheney has already vowed not to appear if he is subpoenaed for testimony.

There is no evidence that voters do not want aggressive oversight of Bush's failures and the Republican scandals such as the constitutional oversteps on domestic spying and legalized torture, the destruction of habeas corpus, the rampant corruption, the unchecked war profiteering, the K Street Project, the Medicare donut, universal healthcare, energy independence, the never-investigated ethics violations, the failure to raise the minimum wage, etc. etc.

For that matter, who, exactly, was behind the forged Niger documents that helped drag us into the war? What about the promised-but-never-undertaken Phase 2 of the pre-war Iraq intelligence investigation--the one investigating how the "flawed" intelligence was used? And now that we're there in Iraq, how do we get out without making matters even worse?

Exit poll after exit poll show that voters are worried about Iraq and they are worried about corruption. These were the issues driving people to vote. Problems like these are not fixed without aggressive hearings to look into them. These are not issues that can be fixed without hurting the feelings of or embarrassing the people who made them problems in the first place. There isn't a polite way of uncovering your colleagues' corruption or the corruption of their campaign contributors.

The Republican Congress has been rightfully maligned and rejected for failing to provide any checks on the idiocy and criminal acts (see: warrantless domestic wiretapping and data-mining) of the Bush Administration. Why would voters who just voted them out of office be expecting the new Democratic Congress to just quietly go along with the status quo? Among other things, voters want the Democrats to start doing what the Republicans largely gave up on--supervising the President.

And yet here we have Rahm Emanuel in the Washington Post, the day after a historic Democratic victory, lowering expectations, and stabbing ranking House members in the back as being "too liberal":
In private talks before the election, Emanuel and other top Democrats told their members they cannot allow the party's liberal wing to dominate the agenda next year. Democrats will hold 30 or 35 seats that went for Bush in the past, meaning that Democratic candidates such as Brad Ellsworth in rural Indiana are likely to face competitive races again in 2008. Still, their interests are likely to collide with those of veteran liberals such as Reps. Henry A. Waxman (Calif.) and John Conyers Jr., (Mich.), who will chair committees.
Where does Rahm get off criticizing Charlie Rangel and Henry Waxman before they even sit down in their new committee chairmanships? Until yesterday, Rahm couldn't condemn DNC Chair Howard Dean or his 50-State Strategy quickly enough--the very strategy that got them where they are today. The meme then was that Dean and the liberal bloggers were wasting money on unwinnable races. Now, with those "unwinnable" races won, we are to believe that it's because America is not interested in the changes promised by the winners?

And the spin that this was a win for "moderates" simply because pro-war Lieberman and pro-life Casey won ignores substantial evidence that voters were rejecting moderates with Rs after their name. Democratic challengers sweep into House seats in districts that everybody but Howard Dean and progressive-minded internet bloggers had largely written off only a few weeks ago. Lincoln Chafee, the ultimate Republican moderate--lost. DeWine, a so-called GOP moderate from a swing state--lost his Senate seat in a landslide to one of the most liberal voices from the House, Sherrod Brown. The entire northeast has turned a deep, deep blue. A socialist just won a Senate seat in Vermont.

The culture of corruption, the lies and false assurances about Iraq, the pro-torture pronouncements from what are supposed to be leaders of the country... all of this was rejected, and in dramatic fashion.

This was an unprecedented shut out. There is no spinning that away.

Look at the results: the Republicans failed to pick up a single governorship or a single House or Senate seat. That has never happened before. Look at the results: 32 million Americans voted for Democratic Senate candidates, while only 24 million voted for Republicans. That's over a 13% margin of victory!

Bush, for once, will be the one who will have to compromise.


Markos destroys the myth about just how "conservative" the new Democrats are. Obviously they are "moderate" or "conservative" in comparison the wild-eyed right-wing fringe that has been operating unimpeded for the last six years, but they are hardly "conservatives" as that term has come to be known. Ezra Klein has more on this topic. More from Dave Neiwert. More from Mimikatz at the Next Hurrah.

Rick Perlstein of TNR credits the "netroots" and blogs for the victories before Rahm Emanuel.

Second Update:

Digby takes to the issue too:
. . . Democrats come back into the majority in the House with a huge, decisive victory and the Senate is poised to tip as well and the press seems to be interpreting this election as a .... repudiation of the soft and squishy hated liberals. (Again, they are taking their cues from Rush Limbaugh who is also spinning the election as a loss for liberals.) The narrative is suspended in amber.

It's wrong, of course, just as the earlier one was. This election proves that the Democrats are the mainstream political party. We just elected a socialist from Vermont and a former Reagan official from Virginia to the US Senate. We elected a number of Red State conservatives, true, but we are also going to have a Speaker of the House from San Francisco. We cover a broad swathe, ranging from sea to shining sea with only the most conservative old south remaining firmly in the hands of the Republican party. The idea that this is some sort of affirmation of conservatism is laughable. It's an affirmation of mainstream American values and a rejection of the Republican radicalism this country has been in the grips of for the last 12 years.

And I'm sorry to have to inform all the kewl kidz and insiders, but this is largely due to the re-emergence of an active, vital, progressive base. Despite the fact that we aren't goosestepping around shouting about our Victory For The Homeland the way the Gingrich Juden did in 1994, a revolution --- not of ideology, but necessity --- is underway

. . .

And regardless of our pragmatism, make no mistake: real fighting progressives are once again active players in this game, coming in with money and energy and ideas. As Perlstein's piece shows, this new group of energized progressives are not children, 60's hippies or fools. We are not asking for a seat at the table. We're not begging for a voice. Neither are we crazed ideological revolutionaries in the Gingrichian mold. We're simply progressive American citizens who are taking our seat and demanding our say after 12 long years of being shunted aside as if we have no place in this party or this country.
There's quite a bit more here.

Tuesday, November 07, 2006

No lawyer for tortured detainee because detainee's torture is classified

Unbelievable. I'm going to post in full the first few grafs of this Marty Lederman post:

You Call It "Torture"; We Call It "Coming Into Possession of Classified Information"

Why can't Majid Khan have a lawyer, according to the Department of Justice? Because he might tell the lawyer how he was treated by the U.S. government. Think about that for a second.

The theory of the government's case here is contained in the remarkable tenth paragraph of the Declaration of Marilyn Dorn, CIA Information Review Officer. Dorn writes:

Information relating to the CIA terrorist detention program has been placed in a TOP Secret/SCI program to enhance protection from unauthorized disclosure. Because Majid Khan was detained by the CIA in this program, he may have come into possession of information, including locations of detention, conditions of detention, and alternative interrogation techniques, that is classified at the TOP SECRET/SCI level.
Joe Marguiles, quoted in the Post article, is right: This goes beyond Orwell into Lewis Carroll territory, topping the formidable list of jaw-dropping Bush Administration euphemisms.

Khan "came into possession" of top secret classified information, eh? And how might that have happened? Part of his job at the CIA? A leak from a rogue CIA employee? By finding a lost memo sitting around some blind alley somewhere?

Or is it, perhaps, that he "came into possession" by virtue of the fact that he is the "classified information"? That is to say, it was the CIA's torture of Khan -- sorry, its "application of alternative interrogation techniques against him" -- that was how Khan "came into possession" of our most closely guarded secrets.

As DOJ sees it, Khan can't have a lawyer because of the risk that he'll tell the lawyer about that classified info that he now "possesses." (Here's the DOJ Brief.)

Read the rest.

Seems to me that the government declassified the "information" the moment it was applied to an individual who did not have clearance to "receive" it.

Political Theory: Kant and Morgenthau

Prof. Scott Horton at Balkinization turns to political theory to analyze the Bush presidency, and determines that he fails Kant's three-point "political scoundrel" test.

Had Enough? Vote Today.

Iraq as Work of Art

BAGHDAD, Nov 2 (Reuters) - A senior U.S. general compared Iraq on Thursday to a "work of art" in progress, saying it was too soon to judge the outcome and playing down violence and friction with Iraqi leaders as "speed bumps" on the road.

"A lump of clay can become a sculpture, blobs of paint become paintings which inspire," Major General William Caldwell, chief military spokesman, told his weekly Baghdad news briefing.

. . .

"Every great work of art goes through messy phases while it is in transition," Caldwell said.

Monday, November 06, 2006

The American Conservative and The Simpsons vs. the Undecided Voter

Via AMERICAblog:

From The American Conservative, a magazine founded by Pat Buchanan. I can't believe I agree with this editorial. But it's rather brilliant.

GOP MUST GO....It should surprise few readers that we think a vote that is seen—in America and the world at large—as a decisive “No” vote on the Bush presidency is the best outcome....

Faced on Sept. 11, 2001 with a great challenge, President Bush made little effort to understand who had attacked us and why—thus ignoring the prerequisite for crafting an effective response. He seemingly did not want to find out, and he had staffed his national-security team with people who either did not want to know or were committed to a prefabricated answer.

As a consequence, he rushed America into a war against Iraq, a war we are now losing and cannot win, one that has done far more to strengthen Islamist terrorists than anything they could possibly have done for themselves. Bush’s decision to seize Iraq will almost surely leave behind a broken state divided into warring ethnic enclaves, with hundreds of thousands killed and maimed and thousands more thirsting for revenge against the country that crossed the ocean to attack them. The invasion failed at every level...

The war will continue as long as Bush is in office, for no other reason than the feckless president can’t face the embarrassment of admitting defeat. The chain of events is not complete: Bush, having learned little from his mistakes, may yet seek to embroil America in new wars against Iran and Syria.

Meanwhile, America’s image in the world, its capacity to persuade others that its interests are common interests, is lower than it has been in memory. All over the world people look at Bush and yearn for this country—which once symbolized hope and justice—to be humbled....

There may be little Americans can do to atone for this presidency, which will stain our country’s reputation for a long time. But the process of recovering our good name must begin somewhere, and the logical place is in the voting booth this Nov. 7. If we are fortunate, we can produce a result that is seen—in Washington, in Peoria, and in world capitals from Prague to Kuala Lumpur—as a repudiation of George W. Bush and the war of aggression he launched against Iraq....

On Nov. 7, the world will be watching as we go to the polls, seeking to ascertain whether the American people have the wisdom to try to correct a disastrous course. Posterity will note too if their collective decision is one that captured the attention of historians—that of a people voting, again and again, to endorse a leader taking a country in a catastrophic direction. The choice is in our hands.
More importantly, it looks like The Simpsons agree too.

(full Tom Tomorrow cartoon can be found here)

Famous Trials

Douglas O. Linder of the UMKC law school has a comprehensive website detailing history's most famous trials.

Friday, November 03, 2006

The Chaos Quotient

Updated below on 11/6/06

The New York Times published this graphic (above) showing our military's assessment of the truth on the ground in Iraq--an inexorable slide toward chaos.

Now, some of the blowhards who only weeks and months ago were deeming Iraq War critics unserious, cowardly, terrorist-loving, cut-and-run, latter-day-Chamberlains, are finally engaging with some of the realities of the Iraq they helped wrought.

Of course, as Glenn points out, few are acknowledging the irony of their sudden shift, or apologizing for their prior demonization of their political opponents--opponents who were politically, culturally and historically astute enough to foresee where we are today and wisely counsel against the course that brought us here. I doubt there will be many mea culpas issued from the Right to the likes of Howard Dean, Russ Feingold or Jim Webb.

The so-called "experts" predicting cakewalks, sweets, flowers, massive caches of WMDs, minimum casualties and an entirely Iraqi oil-financed war, rather than being hounded from public life for their egregious errors of judgment, rather than being ignored in all future public debate about important matters of state, simply change position and divorce themselves from their prior views.

Being right is irrelevant if you can just ignore that you were ever wrong. But at least you can say that this group (eventually) acknowledged what many of us have known for quite some time.

Other of the blowhards, however, continue apace in their personal realities, whistling past the Iraqi graveyards, calling the New York Times traitors for publishing the unfortunate truth (see above) about the situation in Iraq. After all, it's much easier to lie about what the military's opinion is of Iraq when you prohibit the public from knowing.

Meanwhile, President Bush laments the "tone" in Washington, within a day of saying his opponents want the terrorists to win.

As the Times puts it in one of its stronger editorials, "Since he can’t defend the real world created by his policies and his decisions, Mr. Bush is inventing a fantasy world in which to campaign on phony issues against fake enemies."

In other news, in the hopes of distracting attention from one of the most monumental failures of foreign policy and executive decisionmaking in the nation's history, Bush is now angling to flaunt the upcoming death sentencing for Saddam Hussein--postponed until November 5, two days before the congressional elections.

Here's the take from Think Progress:

Asked today whether the verdict would be a factor in the U.S. elections, White House Press Secretary Tony Snow said, “You are absolutely right, it will be a factor.” Snow said the verdict “may fit into a larger narrative about an Iraqi government that has been doing what the president has said all along.” He portrayed the decision as yet another turning point for Iraq. “This is a benchmark episode, where the Iraqi people are taking control of their own destiny,” he said.

. . .

The day Hussein was captured, President Bush addressed the nation. He said the capture “marks the end his of the road…for all who bullied and killed in his name.” For ordinary Iraqis, it was “further assurance that the torture chambers and the secret police are gone forever.” Bush said, “A hopeful day has arrived. All Iraqis can now come together and reject violence and build a new Iraq.”

In the three years since, all of these claims have come undone. Since Hussein was captured:
2,358 U.S. soldiers have died, roughly 85 percent of the total U.S. fatalities during the Iraq war.
Iraq has “become the “cause celebre” for jihadists, breeding a deep resentment of US involvement in the Muslim world and cultivating supporters for the global jihadist movement.” [Link]
Torture in Iraq “may be worse now than it was under Saddam Hussein, with militias, terrorist groups and government forces disregarding rules on the humane treatment of prisoners,” the U.N.’s anti-torture chief said in September. [Link]
Prospects for the “new Iraq” have fallen sharply. The 10-member bipartisan commission that is charged with assessing Bush’s Iraq strategy has reportedly “ruled out the prospect for victory.” [Link]

Finally, it seems that the so-called "Army of Davids" (read: bloggers with lots of spare time and a passionate unwillingness to understand they were wrong about the WMDs) enlisted by the government to find a post-hoc rationalization for the war, has been happily disseminating nuclear secrets--written in Arabic--across the world. After a year, the government has finally pulled the plug on this REAL breach of national security.

The election is in four days.


So the office in charge of routing out corruption in Iraq has been given the axe. The recent military appropriations bill contained language inserted by Republicans terminating the Office of the Special Inspector General for Iraq Reconstruction, "over the objections of Democratic counterparts during a closed-door conference, and it has generated surprise and some outrage among lawmakers who say they had no idea it was in the final legislation."

It's harder to be corrupt when somebody is looking for it. And what's a few hundred billion dollars between friends?

Vanity Fair has an interesting article on the neoconservatives rushing to blame others for their war in Iraq. Remember what Colin Powell said, guys: "You break it, you bought it."

As Kevin Drum and Digby point out, "this pathetic attmpt by the neocons to separate themselves from the architects of the war should be drowned in the bathtub."
It's worth saying very plainly what's going on here: the neocons are using these interviews to make the case that neoconservatism is in no way to blame for the disaster in Iraq. If they had been in charge things would have been different.

This baby needs to be strangled in its crib. The 1997 "Statement of Principles" of the Project for a New American Century, the neocon Bible, was signed by, among others, Dick Cheney, Donald Rumsfeld, Paul Wolfowitz, Zalmay Khalilzad, Scooter Libby, and Elliot Abrams. All of these men were deeply involved in the formulation, planning, and execution of the Iraq war. The neocon creed was part and parcel of every move they made.

. . .

The failure of Iraq is inherent in the naive idealism and fixated ideology of neoconservatism, and shame on us if we let them get away with suggesting otherwise. This is one rehabilitation project that needs to be stopped dead in its tracks.
Before we get too carried away, Tristero discusses the limits of schadenfreude here.

That being said, neoconservative Michael Ledeen is caught lying about whether he was actually against the Iraq War all along. Nope. Here he is in the National Review before the war started, mocking Brent Scowcroft for wisely advising against the war:
It's always reassuring to hear Brent Scowcroft attack one's cherished convictions; it makes one cherish them all the more. . . .

So it's good news when Scowcroft comes out against the desperately-needed and long overdue war against Saddam Hussein and the rest of the terror masters. As usual, Scowcroft has it backwards: He's still pushing Saudi Arabia's Prince Abdullah's line that you've just got to deal with the Palestinian question. Blessedly, President Bush knows by now that the Palestinian question can only be addressed effectively once the war against Saddam and his ilk has been won. And then Scowcroft says "Saddam is a problem, but he's not a problem because of terrorism."

This is the head of the President's Foreign Intelligence Advisory Commission? Doesn't he read the newspapers? He doesn't seem to realize that Saddam is actively supporting al Qaeda, and Abu Nidal, and Hezbollah.

However, nobody is perfect, and Scowcroft has managed to get one thing half right, even though he misdescribes it. He fears that if we attack Iraq "I think we could have an explosion in the Middle East. It could turn the whole region into a caldron and destroy the War on Terror."

One can only hope that we turn the region into a cauldron, and faster, please. If ever there were a region that richly deserved being cauldronized, it is the Middle East today. If we wage the war effectively, we will bring down the terror regimes in Iraq, Iran, and Syria, and either bring down the Saudi monarchy or force it to abandon its global assembly line to indoctrinate young terrorists.
His "cauldron" has now led to hundreds of thousands of dead Iraqis, thousands of dead and wounded American servicemen, an inflamed Middle East angry at our country, and a world that no longer trusts us. And yet he is so lacking in shame that he says this:
I do not feel "remorseful," since I had and have no involvement with our Iraq policy. I opposed the military invasion of Iraq before it took place and I advocated—as I still do—support for political revolution in Iran as the logical and necessary first step in the war against the terror masters.
Swing and a miss. It would be funny if thousands weren't dead because these jokers thought that warfare was a game of Risk, or a marketing strategy for electoral success. Remember this? (from CNN before the war):
Why did the Administration wait until September to make its case against Iraq? White House chief of staff Andrew Card told The New York Times last week, "From a marketing point of view, you don't introduce new products in August."

. . .

To those who say, we want more evidence that there's a real threat, the Administration says, we can't wait for a smoking gun to turn up. "We don't want the smoking gun to be a mushroom cloud," National Security Advisor Condoleeza Rice said on CNN's Late Edition recently.

To those who smell politics, the administration's answer is, sure, a crisis may benefit the president politically. So what? An issue of this magnitude should be the focus of a political campaign. What's wrong with that?
These are the people that want your trust in the voting booths tomorrow.

Finally, looking around the internets, I see that Iraqi blogger Riverbend is not exactly heartened by the curiously-timed news of Saddam's impending execution.