Austan is at it again!

March 18, 2009

Hilarious — the Nobel Prize for Evil.

I think we may be out of free content space — i might go back and delete some embedded video to save room

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Anne Applebaum On What The Rule Of Law Requires

March 17, 2009

Since electrons are free, I hope no one will mind if I cut and past all of Anne Applebaum’s column from today’s Washington Post. My only comment is that the guilty can’t be forced to testify, as Ms. Applebaum proposes, since they have the right not to incriminate themselves under the Fifth Amendment.

“America is a shining city upon a hill whose beacon light guides freedom-loving people everywhere.”

— Ronald Reagan, 1974,

echoing John Winthrop, 1630

From the earliest days of our republic, Americans have been drawn to the idea of their nation as different, exceptional, an example for others. Sometimes that view has been shared by outsiders, who really did strive to be guided by our “beacon light,” and sometimes not. Never mind: We came up with the notion of ourselves as an exception, and over time we have become exceptional — though not because we are morally superior to anyone else. We are exceptional because we periodically feel obliged to hold our most senior leaders to standards with which others might not comply. We made Nixon resign. We made Clinton testify. Sooner or later, we will also have to hold accountable the American leaders who ordered American citizens to torture prisoners who were captured in Afghanistan and elsewhere, in violation both of our Constitution and of international conventions we ratified long ago.

I say “American leaders” quite deliberately: Before any investigation has taken place, it is pointless to name names and needlessly politicize what should in principle be a neutral legal process. That crimes were committed is no longer in doubt. Mark Danner, writing in the New York Review of Books, has just published excerpts from a previously confidential report by the International Committee of the Red Cross on the interrogation methods used by the CIA in its “black site” prisons. Unlike Guantanamo Bay in its current incarnation, these prisons did not ever officially exist. They are, or were, in the cellars of military bases in Afghanistan or in the back rooms of Thai, Moroccan or perhaps Eastern European jails.

They may not have held hundreds or even dozens of prisoners. The Red Cross report, based on interviews its officials conducted in 2006, mentions only 14 detainees. Yet the horror of the CIA interrogation tactics in these places lies not in their scale but in the doggedness with which they defied American and international law. “Waterboarding” is one of the more benign methods on a list of “alternative” interrogation methods that included many hours of forced standing, nudity, beating and kicking, confinement in a box, sleep deprivation, and exposure to cold. Detainees spoke of being “strapped to a bed, in a very white room,” of being smashed “repeatedly against the hard walls of the room,” of being forced to listen to unbearably loud music and deprived of solid food. Describing these techniques, Red Cross officials deliberately use the word “torture,” with all of its legal and moral connotations.

These techniques, horrific in and of themselves, did deep political damage. As I have written before, and as Danner concurs, there is still no evidence that information obtained through torture was of any special value: People under extreme physical stress will say anything to make the pain stop. On the other hand, there is plenty of evidence that the use of torture damaged some of the central goals of what I am still happy to call the war on terror. Certainly the use of these techniques made it impossible to publicly try the 14 men, so that the whole world could hear of their horrific crimes and feel disgust for their cause. The confessions of Khalid Sheikh Mohammed — mastermind of the Sept. 11 attacks and one of the 14 “special” detainees — were widely ignored two years ago precisely because many people assumed, rightly, that these confessions were obtained using torture. Certainly the knowledge that Americans use torture alienated millions of potential allies, in the Muslim world and outside it, convincing them that America is “no different,” after all, from the fanatics it is fighting. As Danner put it, “we freely chose to become the caricature they made of us.”

But the political rights and wrongs of this failed policy are no longer the point. What matters now is that our laws be enforced. The United States is not and never was a fascist state, and the CIA prisons were not and never were the Gulag. These 14 men were not tortured as part of an ordinary and accepted routine, in other words, but according to special rules and procedures, set up at the highest level of government, by people who surely knew that they were illegal; otherwise, they would not have limited them so carefully. What we need now, therefore, is not an endless, politicized circus of a congressional investigation into every aspect of George W. Bush’s White House but a carefully targeted legal investigation of the CIA’s invisible prisons: who gave the orders to use torture, who carried out the orders, what exactly was done, who objected. The guilty, however senior, should be named, forced to testify and called to account — because the rule of law, and nothing else, is what makes us exceptional.


A Regular Working Lawyer No More

March 16, 2009

I have ascended to the heights of my profession — I have been allowed to write a big check for the privilege of becoming a Fellow of the ABF. Since this blog teems with ABFer’s, I expect to be treated with a little more respect around here in the future.


News vs Entertainment & Komoto Dragons

March 14, 2009

Is anyone out there?  If so, I would love to hear your thoughts on the latest debate about news reporting.  During the Bush years, I seemed to have only two choices:  one, the Comedy Channel with Jon Stewart & Steven Colbert; or two, the News Hour with Jim Lehrer.  The latter, like the NY Times, didn’t hold people’s feet close enough to the fire to suit me, but it felt better than any other network’s attempts to get at the truth.

So this morning, Phil Bronstein’s blog on SF Gate just got me riled up again.  You know Phil Bronstein, right?  Married & divorced from Sharon Stone, editor of the SF Chron, got his big toe bitten by a Komodo Dragon at the LA Zoo, etc.  Anyway, this morning, he mulls over reporters’ obligation to ask tough questions as Jon Stewart did of Jim Cramer this week & trys to distinguish reporters from entertainers.  I found the responses from readers after his commentary the most interesting.  I’d love to hear your thoughts!


Crimes and misdemeanors

March 10, 2009

David Cole was here giving a lecture last night about what to do with the Guantanamo detainees and the civil liberties violations of the Bush administration in the war on terror. He had lots of interesting stuff to say and it has me thinking about what to do going forward with the people who completely threw our constitution out the window (yes, I originally had a more colorful phrase, but I am showing restraint).

So, the underside of the George Bush Office of Legal Counsel (OLC) is finally dribbling out. We now have the memos in which George Bush relied on his clever lawyers to write memos (1) allowing torture in violation of domestic and international law; (2) allowing the US military to engage in law enforcement activity on domestic soil without regard to the first and fourth amendments to the United States Constitution; (3) allowed for the suspension of federal law on warrant-less wiretaps in violation of federal law and the constitution (and blatant disregard for the lesson Nixon learned on this one); and more. You can read the memos here and I highly recommend it. Don’t forget, these were secret memos! We did not know that these were the policies and they could not be challenged because they were not public. Amazing how that works. It seems like our constitution is specifically designed for power sharing but these memos ALL are huge power grabs from the other branches — “the president gets to decide what torture is” (even though interpreting law is constitutionally left up to the courts and passing laws with definitions is left up to congress and both had large bodies of work on these matters).

There is supposedly an unreleased memo making the “legal argument” for rendition (in violation of federal and international law).

What in God’s name were these lawyers thinking? And what will happen to them now. The NYTimes had a piece on this yesterday. It is interesting to think about the appropriate thing to happen going forward.

Surely they will be indicted internationally as war criminals (as Sapin indicted Pinochet). Is that good? What about the War Crimes Tribunal? Will the be indicted by International Courts? Should there be criminal investigation here (as David Cole pointed out last night, this is very politically tricky for Obama and may not be a good move even if we think it is justified). Also, Bush, Cheney, Rummy and the gang will use the defense of, “well, we asked our lawyers and then we followed their advice.”

Which gets me to the most interesting question — what should happen to these lawyers? We know what happens to lawyers who advocate lawless activity in business (Andy Fastow, Enron, this ringing any bells?), but what about in government? At what point can a lawyer no longer say, “I was making the strong advocacy point for my client; it was up to him to decide?

It seems that there is general agreement from the courts, from congress, and from the American people that these guys stepped out of the professional lines. Is this the political equivalent of perpetrating a fraud on the court?

Perhaps we should let the political process take care of it — that plan is already working — we elected someone who is un-doing all of this damage, but the down side is that, as David Cole said last night, that means we have torture when we have a president who believes in it and we don’t have torture when we have a president that doesn’t believe in it.

Other options – truth commissions, public shunning (WTF was Chevron thinking hiring one of these criminals? Hope he will not be required to travel abroad because he could be transported to the Hague any minute!). It is harder for Boalt to fire Yoo because of that whole “academic freedom” thing but it seems like the students of Berkeley are just as feisty as when I was there and they are making it hell of unpleasant, hence his visiting position at Chapman. Rumor has it he has resigned from the CA bar (in anticipation of being disbarred), but I can’t say that for sure.

So, dear controlling authority folk — what to wish for?


Free Austan Goolsbee!!

March 6, 2009

Ok, ABF’ers and Legal Studies enthusiasts, it’s time to start calling Dick Durbin TODAY.

http://www.bloomberg.com/apps/news?pid=newsarchive&sid=apcb9hrlTZvQ

“Obama’s Economy Team Lacks Top Aides as Senate Delays”

Austan’s confirmation is being held up by anonymous holds in the Senate, in retailiation for Bush-era stalled nominations.  If they won’t confirm him, we want him back–but I think he really needs to be helping the President fix the country right now.

I’m on the phone to Dick Lugar today.


John Yoo – Legal and Academic Ethics

March 3, 2009

Some people think I am wacky about loyalty, ethics, and principles. I have been told I have a “low threshold for ambiguity” regarding some rules and standards. This is true. At some point, I think we cross certain ethical lines and pretending like it is all ambiguous and complex is just blowing smoke. SOMETIMES it is just over the line — and it is black and white. (watching Weeds lately — Nancy just hit her ethical standard — human trafficking).

So today the Bush 9/11 memos came out. These 9 memos (most famous is the torture memo, but there are memos in there that allow the suspension of all kinds of constitutional rights — pretty much all of them) authorizing the military use of force ON UNITED STATES SOIL and revocation of our 4th and 1st amendment rights — all in violation of the Constitution we hold dear.

This led me to a long lecture today about lawyers’ ethical obligations. When the Bush administration asked the White House Counsel to tell them if they could do all of this stuff (warrant-less wiretaps, suspend habeaus, and torture) did the lawyers (Yoo, Gonzalez) have an ethical/professional/moral obligation to say, “NO! This is a total end-run around separation of powers.” I argued today in class that they did. Just like the Japanese internment camps, we are beginning to recognize these moves for what they were — horrendous violations of constitutional authority. Even the Bush administration itself admitted this a few days before Obama took the oath and repudiated the Yoo/gonzalez legal reasoning. But I think there was a preexisting moral and professional ethic that they violated when they wrote these memos advocating lawless activity in violation of federal and international law.

But how does this relate to academic ethics?

I am an academic. What are the things that would make me complicit if I stood by and watched? What is my obligation to my profession? What if my university were engaging in employment discrimination? research in violation of human subjects protection? What if the administration was telling departments who to hire and fire based on political activity or position? What if my university banned students from political protest? What are our ethical standards as academics? What are the things that could happen that I have an obligation to speak out about? I’m serious . . . what are the activities that could go on at a university that (if they were ignored) would make me the John Yoo of academics? I’m looking for input.