Supreme Court

I had the good fortune to be at the Supreme Court this morning for the announcement of decisions in numerous momentous cases, followed by a small question and answer session with Justice Ginsburg.

Of course everyone is all over the detention cases, but I was equally gratified to be there to hear the outcomes of Patane and Seibert, two very important Miranda cases that I studied in CrimPro.

I do not have a lot to add to the commentary being contributed by others (especially at ScotusBlog), but I can say it was quite a day to have been in the court. Tom Goldstein summarizes well:

There were an array of opinions from the bench in the detention cases today. By far, the most striking and passionate were those of Justice Scalia concurring in Hamdi and Justice Stevens dissenting in Padilla. Justice Scalia argued forcefully that the government must charge Hamdi with treason in court, and the Great Writ of Habeas Corpus has a vital tradition and could be suspended only by Congress through democratic means. Justice Stevens, using exceptionally strong rhetoric, argued that the detention of Padilla incommunicado amounted to the �tools of a tyrant.�

The speeches of both Scalia and Stevens were stirring. Justice Ginsburg was entertaining (but appropriately reserved). All in all, a wonderful experience.

SG Resigns

Solicitor General Ted Olson has resigned:

Olson said he informed Attorney General John Ashcroft and Vice President Dick Cheney of his plans on Wednesday and told members of his staff on Thursday morning.

"It seemed like the right time to do it," Olson, 63, told Legal Times Thursday. "I love the job. I love the people. I love the Court. It's good to go when you're happy."

I found this passage particularly interesting:

Before the Court, Olson argued numerous important cases -- 41 in all during his private and public career -- and on Thursday he singled out Zelman v. Simmons-Harris, the 2002 school voucher case, and McConnell v. FEC, the 2003 campaign finance reform case, as his biggest successes as solicitor general.

"Some people thought we wouldn't have our heart in defending the [campaign finance] law, but it was an act of Congress we were proud to defend," Olson said.

That is what a good lawyer should do for his client, but it is still interesting to hear him single out that case.

Olson also implies that Deputy Solicitor General Paul Clement might be a good candidate to replace him. I think that is somewhat unlikely. As this article suggests, Clement has been the point man in defending the administration's tactics in the war on terror. And during oral argument, he specifically denied that our government uses even mild forms of torture.

Not the sort of thing I think the administration wants to have discussed in the next SG confirmation hearing, though they have thumbed their noses (and shouted expletives) at the Senate Democrats plenty of times before.

England is Out

If you happened to miss the good news, England went crashing out of Euro 2004 last night (with the ever pretty David Beckham missing his third straight penalty for Queen and Country). For a unique and bizarrely addictive look at the match, check out the BBC's Virtual Replay feature. Especially cool is watching Sol Campbell's disallowed goal at full speed from the first person perspective of Campbell himself.

Under the Robes

They don't teach you how to deal with this in Trial Ad:

While seated on the bench, an Oklahoma judge used a male enhancement pump, shaved and oiled his nether region, and pleasured himself, state officials charged yesterday in a petition to remove the jurist. According to the below complaint filed by the Oklahoma Attorney General, Donald D. Thompson, 57, was caught in the act by a clerk, trial witnesses, and his longtime court reporter (these unsettling first-hand accounts will make you wonder what's going on under other black robes). Visitors to Thompson's Creek County courtroom reported hearing a "swooshing" sound coming from the bench, a noise the court reporter said "sounded like a blood pressure cuff being pumped up." Thompson, the complaint charges, even pumped himself up during an August 2003 murder trial.

And they want him removed from office? That's like trying to remove Judge Roy Bean! They'll miss him when he's gone.

Unbelievable: IRR to Iraq

In my mind, this is the most disturbing piece of military manpower news yet:

A group of Army Reserve soldiers rarely tapped for duty could soon be heading to Iraq, Pentagon officials said Wednesday.

The troops, part of the Individual Ready Reserve (IRR), could be called to fill holes in units deploying to Iraq as part of the upcoming rotation of troops later this year.

I do not know how IRR works for enlisted personnel. Officers commissioned through ROTC with scholarships and assigned to active duty are obligated to spend four years on active duty, which everyone knows. That's why whenever someone asks me how long my military obligation is, I say four years.

But that is not really true, and the reality is hitting home with a vengeance for some IRR personnel right now. You see, in reality every Army ROTC scholarship contract is actually for eight years of service: four years of active duty, and four years in the IRR.

So when you hear that the Army is going to call up IRR troops, this is what the Army is saying: our manpower is so threatened that we are reactivating soldiers who already served their contracted active duty time, and who have effectively left the military behind and begun new lives. These are not members of the Army Reserve, training with their units every month. These are men and women who have become completely detached from military service, except for the fact that their name remains on the IRR rolls. And now we are going to call them back.

If it sounds like this is just one step short of the draft, I can understand why. It's not quite at that pitch, but it's one step closer. Combined with our redeployments from South Korea and various training centers, I am frankly quite concerned.

Clinton and Garcia-Marquez

My girlfriend passed along this tidbit from Clinton's new book, interesting to those of us in the ever thriving law student book nerd community:

Page 186: "Once, instead of paying attention to class, I read Gabriel Garcia Marquez's One Hundred Years of Solitude. At the end of the hour, Professor Chirelstein asked me what was so much more interesting than his lecture. I held up the book and told him it was the greatest novel written in any language since William Faulkner died. I still think so."

It certainly is a good book.

Recalling the Moon

One of the recurring themes in Borges' Dreamtigers is the notion that no description (and thus no poem, no story, no novel) can fully capture the essence of the object being described. A particularly eloquent invocation of this theme can be seen in the opening lines of his short poem, "The Moon":

History tells us how in that past time
When all things happened, real,
Imaginary, and dubious, a man
Conceived the unconscionable plan

Of making an abridgment of the universe
In a single book and with infininte zest
He towered his screed up, lofty and
Strenuous, polished it, spoke the final verse.

About to offer his thanks to fortune,
He lifted up his eyes and saw a burnished
Disc in the air and realized, stunned,
That somehow he had forgotten the moon.

Well said. I very much enjoyed this book and look forward to reading the short fiction that made Borges famous.

Reciprocal Torture is Not the Problem

One of the points Senator Biden made in his questioning of the Attorney General yesterday was that using torture puts our troops in danger of being tortured themselves. This is quite right, but there are other pragmatic reasons as well. I made this point during the early days of the war in Iraq, but unfortunately it is still fully applicable.

The best reason for abiding by the Geneva Convention (and other prohibitions on torture) is NOT the prevention of reciprocal violations. Even if the Iraqis began torturing our troops, there is a very good strategic reason for treating our prisoners properly: We want those still at large to surrender.

If an Iraqi militiaman thinks he is going to be mistreated by the coalition, or shipped off without rights to a Caribbean island for indefinite detainment, he is much less likely to surrender. Why not simply fight to the death?

The best historical example is the final assault on Germany. German POWs were treated well by American and British forces, and our forces received relatively good treatment in return. But even more importantly for present purposes, as the German regime began to crumble, Germans were willing to surrender to American and British forces. By the end of the war we had over 400,000 POWs in America (German and Italian), not to mention thousands of prisoners still in Europe.

Not so on the Eastern front. Years of brutality and summary execution of prisoners on both sides convinced Germans (probably correctly) that they would be mistreated or killed if they surrendered to the Russians. Thus they fought to the last man, inflicting significant Russian casualties in the process. That, or they fled west in hopes of surrendering to British or American forces.

So I think the real question is, not whether our treatment of the Guantanamo detainees (and now, the Abu Ghraib prisoners) makes America hypocritical or risks retribution, but whether fear of that fate might discourage Iraqi militiamen and their leaders from surrendering.

Now that we are at least partially into an occupation/nation-building mode, this same effect might also discourage sympathetic Iraqis from cooperating with us. If they thought their neighbor or cousin would be dealt with properly, perhaps they might tip off coalition forces. If they think he is going to be tortured, they are probably less likely to turn him in.

UPDATE: Perhaps I should add that like Another Rice Grad, I think principle alone should suffice to rule out the use of torture. I offer the pragmatic argument merely for those who see the issue of principle in more shades of gray.

Book Bargains III

Another good deal from Books-a-Million's remainder department: David Garrow's Pulitzer Prize-winning biography of Martin Luther King, Jr., Bearing the Cross for $4.99. Again, for free shipping on any one order (even under $25, which is their normal promotion), use coupon code: BPSUMMER. It comes from the back of their monthly magazine (BookPage) and expires 6/30/04.

I also think their Millionaire's Club is well worth the annual $10 fee. You get an additional 10% off all online or retail store purchases. I get it free as a military discount, but would definitely have bought it by now (and it would easily have paid for itself).

And for those wondering, I have no affiliation whatsoever with BAMM and will get no financial reward if you click any of the links I provide to them. I simply think they have a great remainders department, and I also appreciate that they give soldiers, sailors, and airmen a 10% discount through our online exchange.

I only have an associate relationship with Amazon, which actually tends not to have very good book bargains very often. So I'll be passing on good prices I find no matter where I find them (so long as I know it is a reputable source).

The Witness

A beautiful passage from Borges' Dreamtigers, making a sad, poignant and intriguing point about human mortality:

Events far-reaching enough to people all space, whose end is nonetheless tolled when one man dies, may cause us wonder. But something, or an infinite number of things, dies in every death, unless the universe is possessed of a memory, as the theosophists have supposed.

In the course of time there was a day that closed the last eyes to see Christ. The battle of Junin and the love of Helen each died with the death of some one man. What will die with me when I die, what pitiful or perishable form will the world lose?

I am only twenty pages into it, but this is good stuff.


I am intentionally laying low about Ronald Reagan. I do not yet know enough about his presidency to make any informed comment, and I know even less about what kind of man he was. His death has brought out a plethora of amazingly stupid, inane and/or insensitive commentary from journalists and bloggers of all ideological stripes. I think pretty much everyone would be better off keeping quiet, so that is what I am going to do.

The Joint Strike Fighter has all the details on one of the most exciting and ambitious military engineering projects of recent years, Lockheed Martin's Joint Strike Fighter. Imagine trying to design an aircraft to meet these demands:

1. The Air Force needed an aircraft to replace the A-10 Thunderbolt II and the F-16 Falcon in the role of ground attack operations, as well as complement the advanced capabilities of the F-22 air superiority fighter. In addition, the new aircraft's performance had to be significantly better than the F-16C fighters in the current Air Force inventory.

2. The Navy was looking for a multi-role stealthy attack platform to complement its existing fleet of F/A-18E/F Super Hornets, optimized for carrier operations. Essential features included good low-speed handling, the ability to handle the stress of catapault launches, and enough fuel to give it twice the range of the F-18C Hornet.

3. The Marine Corps/UK variant presented the greatest engineering challenge: To replace the current Marine Corps A/V-8 Harriers and F/A-18C/Ds (as well as the British Sea Harrier), the JSF would have to be capable of not only vertical takeoffs and landings, but supersonic flight as well.

Suffice it to say that if Lockheed pulls this off (a big if), it will be a marvelous feat. Check out their F-35 homepage for more details.

Book Bargains II

Books-a-Million has remaindered copies of a very nice paperback omnibus of The Lord of the Rings for $7.99. I own this edition and think it the best available way to have the whole trilogy in a portable copy. I have a free shipping coupon around here somewhere (it applies even for orders under $25). I'll try to find it and post it tonight or tomorrow morning.

UPDATE: Okay, here it is. For free shipping on any one order, use coupon code: BPSUMMER. It comes from the back of their monthly magazine (BookPage) and expires 6/30/04.

Night Vision Goggles?

I understand the problem with music and film piracy. I really do, and I am sympathetic to some industry efforts to stem the tide. When they go overboard, however, as they seem so happy to do, I can't help but laugh. Case in point:

MPAA director John Malcolm said the industry has vowed to vigorously prosecute video pirates, and has encouraged theater owners to use metal detectors and night-vision goggles to secure screenings.

Yeah, that's the ticket. Charge us $10 to watch your crappy movie and $5 for bad popcorn. Then make us all pass through metal detectors to get to the theater. Nothing the moviegoer wants more than airport-like security at the cinema. And to top it off, give night vision goggles to the teenage theater ushers and have them roam around during the movie to try and catch film pirates. That's just a brilliant, brilliant plan. I have really got to hand it to these industry folks, they have successfully expelled all sense of reality from their minds.

Force Relocation

I thought the deployment away from Korea was shocking. Well the hits just keep on coming:

The Pentagon has proposed a plan to withdraw its two Army divisions from Germany and undertake an array of other changes in its European-based forces, in the most significant rearrangement of the American military around the world since the beginning of the cold war, according to American and allied officials.

Phil Carter has a detailed analysis. Suffice it to say that these are truly momentous changes being suggested.


Nick Confessore says that Republican reaction to Herseth's victory in South Dakota is quasi-racist:

Something similarly offensive is going on when Rep. Tom Davis, (R-Va.), the former National Republican Campaign Committee Chairman, says of Stephanie Herseth's narrow win in South Dakota, "If you take out the Indian reservation, we would have won."

I wonder if that tag applies equally to Kos, whose post concerning the same topic was titled "Native Americans deliver SD to Herseth."

UPDATE: That's weird. Josh Marshall has essentially repeated Confessore's post, a day later. Too bad he doesn't mention Kos' post either (maybe he doesn't read other blogs).

Book Bargains I

As some of you may know, I have a moderate to serious addiction to buying books, so I spend a lot of time surfing online bookstores. I thought one potentially redeeming aspect of this would be to share the better bargains I run across on books that readers might be interested in. I ran across two such books today on Amazon (I am a member of their associate program, but plan on passing on bargains even at stores with which I have no such relationship).

Right now they have new copies of the gorgeous centennial edition of John Steinbeck's East of Eden for $6.40, and remaindered copies of David McCullough's John Adams for $4.99. Both are highly recommended.

Bizarre Citation

In an otherwise brilliant and informative introduction to Oedipus the King (especially useful for its discussion of how Sophocles used sleight of hand to sidestep the free will/fate paradox implicit in the Oedipus myth), Bernard Knox has just quoted "the late J. Edgar Hoover." That's just plain weird.

Tenet Resigned? Not Likely

The official line is that Tenet resigned, but I think we will hear a lot of this over the next few days:

Former CIA Director Stansfield Turner said the timing of Tenet's resignation -- just five months before the presidential election -- cast doubt on the explanation that it was a personal decision.

"I think he's being pushed out or made a scapegoat," said Turner, who led the CIA during the Carter administration. "That is, that the president feels he's got to have somebody to blame, and he's doing it indirectly by asking Tenet to leave. ... I don't think he would pull the plug on President Bush in the middle of an election cycle without having been asked by the president to do that."

That's absolutely right. If Tenet had any redeeming quality for this administration, it was his loyalty. Now, all of a sudden, he decides he will split and run? No way.

Of course, now that he is no longer a member of the administration, I think it high time he wrote a book. A nice long book, with lots of details. I'll even promise to buy it when it comes out in mid-October. What do you say, George?

Padilla and the Constitution

Phil Carter has worthwhile thoughts on the frighteningly Kafka-esque arguments being employed in favor of continued detention of Jose Padilla. His key paragraph:

There is a term of art that lawyers use to refer to a case that can only be proven by ill-gotten evidence: "bootstrapping". If there was ever a textbook case of bootstrapping, this is it. The Justice Department declined to indict Jose Padilla in May 2002 when it had the chance, and instead has deployed lawyers to fight for the White House's right to hold him as an enemy combatant. Now, it has built a criminal case against him, but only by questioning him in violation of his Constitutional rights in a way that means this evidence can never be used in court. Without this evidence, the Justice Department can't make its case. And indeed, without this evidence, the entire case against Jose Padilla probably goes away. The irony of that is that good police work and Constitutional interrogation might have been able to crack Mr. Padilla, while leaving open the possibility of a criminal trial should he eventually be charged in federal court. But more importantly, this evidence (gathered through admittedly unconstitutional means) is not being used in court � it's being used to justify Mr. Padilla's continued detention without any court proceedings at all. I can't figure out which cart is before which horse, because so many things are backwards here.

I can't figure it out either.

Sierra Club Update

Apropos the new charity buttons on the sidebar, I should give an update regarding The Battle For the Sierra Club, which I wrote about earlier this year. In a victory for environmentalists (and everyone that benefits from their efforts), traditional Sierra Club values defeated the anti-immigration candidates trying to usurp the Sierra Club's board. In fact, the results were not even close. And thank goodness for that.

William Manchester

The world has lost a great historian with the death of William Manchester, but CNN's obituary does include a silver lining for the many readers of his books:

Poor health had kept him from completing the third volume of his best-selling Churchill series, "The Last Lion, Volume III." Paul Reid, a feature writer at The Palm Beach Post, was chosen last month to help finish the book.

An immensely popular series, I think it was almost universally believed that the trilogy would remain incomplete. I have no knowledge of Paul Reid or his qualifications, but we can at least hope that he does justice to Manchester's work.

JAG Central

The Centrist, "a Captain in the US Army, a former Army helicopter pilot, and a student at UCLA School of Law," has moved his blogging to a new site called JAG Central, which he describes as the "world's first weblog devoted to military justice and military law issues." Those are certainly topics of interest around here, so I'll be keeping my eyes on what could become an excellent resource.


I have finished the first couple chapters (~100 pages) of Karnow's Vietnam and can already heartily recommend it to anyone with an interest in that conflict, our present military engagements, and the future of our foreign policy. I will not begin making much comment until I have gotten further into the book, but one thing has already been made abundantly clear: I know too little about Iraq.

So does just about everyone I hear commenting on the war there, and probably most of the people at the Pentagon (and maybe even Foggy Bottom). Karnow's history of the Vietnam conflict starts in the 14th-century, and I have no doubt even a basic understanding of the history of that country would require reading several books that do not get to the 20th-century at all.

The same must be true of Iraq, and the unbridled ignorance of the American people (myself included) and most of our leaders regarding the social, political, and religious motivations of the various factions in Iraq may doom us to failure there just as it (arguably) did in Vietnam.

Early in Karnow's account he frames the Vietnam experience with a clear dichotomy between those who think the war was winnable if the military had not been handicapped by politicians, and those who think it was simply an unwinnable war. This reminds me quite a bit of Kevin Drum's objections to Dan Drezner's argument that the Iraq war is (or at least was) winnable, but President Bush screwed it up. This seems like such a threshold question: is the war winnable? Yet even once this question is answered (a huge and perhaps impossible project that has divided analysts since the Persian Gulf War), so many questions remain. If it is not winnable now, was it ever? If it is winnable, are we winning? That these questions were never really resolved in more than a decade of combat in Vietnam gives me pause about expecting to know the answer about Iraq after 15 months.

It is abundant food for thought and I will have some more on this as I progress through Karnow's book (and the other Vietnam texts I've been acquiring). It has become quite obvious to me that it is that conflict, and no other, which has the most to tell us about Iraq.

TV News v. Entertainment

I do not watch a lot of television, but I have to side with the critics who charge that Dateline NBC "may have besmirched its reputation with its series of shows about the network's entertainment fare."

I come at it from a perspective rather hostile to the entertainment side of television, so it should not be surprising that I find the blurring of news and entertainment to be regrettable. But I am not the only one:

"The 'Dateline' brand is cheapened every time it's prostituted to shill for other NBC shows, and the last thing anyone at the network should want is to drag down the reputation of NBC News," wrote columnist Phil Rosenthal of the Chicago Sun-Times.

What's disappointing is that each hour represents less time that NBC News could be digging into the fragile state of the world, said Marquette University professor Philip Seib, author of "Beyond the Front Lines: How the News Media Cover a World Shaped by War."

Of course, it is hard to place the blame entirely on the network when it is the public at large which is clamoring for this pap:

"The shows we did that people have issues with, the audience certainly watched," Shapiro said. "There's no doubt about that. The ratings speak for themselves." (Each of the shows, which ran as specials, outrated the typical fare in their time slots).

Though normally I would take this as yet another sign of America's intellectual decline (and I am rather tempted to do so here), perhaps I can put a positive spin and suggest that the Internet (including blogs, but particularly journalistic websites) is filling a large portion of the pure news demand that previously might have been attracted to television news. Of course, as a non-television viewer, I have always thought (and still think) that one is better off with a good old greasy newspaper than anything on NBC. So maybe I am just being proven correct.

Weekend in DC

It was a very good weekend to be in DC. Because of the World War II Memorial dedication on Saturday, there were lots of veterans in town, giving this Memorial Day weekend a particularly direct poignance. On more than one occasion I found myself brimming with pride at the sight of these older men who served our country so well, served the world so well. That kind of pride has been a bit lacking for me after weeks of bad news coming out of Iraq, bolstering my doubts about the righteousness and efficacy of our endeavors in that desert land. It was a welcome and much needed reminder that America has been a force for good in the world, that light does come from the darkness, that strength endures.

On that note, I visited the World War II Memorial the weekend before its dedication, knowing it would be less crowded. I thought it represented the perfect blend of respect and honor. It shows respect for the sacrifices that were made and the lives lost, yet has an atmosphere not so somber as the Vietnam Memorial. As such, the memorial also does honor to the splendid freedom for which the sacrifices were made. It is a place where three or four generations can come together, where one can pay solemn homage to those who died for a righteous cause while at the same time children laugh and play in the water, perfectly epitomizing the joy and independence America stands for. I think it is a wonderful place.

Phil Carter has some excellent thoughts on the holiday weekend.

Congressional Scrutiny of Federal Judges

It looks like severely reduced discretion in sentencing was not the last effort by congressional Republicans to apply pressure to the federal judiciary, and their latest efforts regarding judicial discipline might be having an effect:

Chief Justice William Rehnquist was offering an olive branch to Congress last week when he created a committee to evaluate the federal judiciary's discipline system. But it may have come too late.

Rehnquist was responding to startlingly blunt criticism of the judiciary in recent months, especially from House Republicans who seem intent on taking the judicial branch down a notch or two and giving it the kind of congressional scrutiny it usually does not get.

The key speech signalling this intent was given by House Judiciary Committee Chairman James Sensenbrenner:

Instead of the usual blandishments offered by outsiders who address the conference, Sensenbrenner went down a list of recent judicial ethics missteps. One of the judges involved was in the audience. Sensenbrenner said the judiciary's handling of ethics complaints raised "profound questions with respect to whether the judiciary should continue to enjoy delegated authority to investigate and discipline itself."

Sensenbrenner also defended the right of Congress to oversee the judiciary. "Federal judges in a democracy may be scrutinized and may even be unfairly criticized," Sensenbrenner said according to the text of his speech, released afterward.

According to one judge in attendance, Sensenbrenner's speech was greeted with "stunned silence" by the judges. Another said, "We're not used to being dressed down on our own turf like that."

But as dumbfounded as the judges were by Sensenbrenner's speech, Rehnquist apparently took it to heart as a sign of the strains between the judiciary and Congress -- especially the House of Representatives. And in a series of steps since then, culminating in creation of the new discipline study committee, Rehnquist has moved to repair the breach.

It is hard to know what to make of all this. On the one hand, I am pretty skeptical of the motivations of House Republicans in applying any pressure to the judiciary in this way. We certainly did not hear any uproar from them over the Scalia/Cheney duck-hunting trip. On the other hand, this is a government of checks and balances, and there is nothing inherently wrong with Congress using its duly delegated authority to provide some supervision and oversight. The key there is "some," because both the letter and the spirit of Article III make abundantly clear that the judiciary is to be a fully equal and independent branch, and the line between supervision and control is a thin one indeed. Rehnquist may be just the person to craft a compromise that satisfies congressional desires and judicial independence.

Stealing Clients

Turns out stealing clients from other law firms is not only unethical, it is expensive:

A jury has awarded a law firm $1.4 million in damages because several of its clients were stolen by a rookie lawyer at another firm.

Rosenberg Minc, a personal injury firm, had sued another personal injury firm, Mallilo & Grossman, and one of that firm's lawyers for carrying out the client theft scheme.

Vogt said trial evidence showed Pimsler, a 1997 graduate of Touro Law School, called Rosenberg Minc's answering service every weekend between March 1998 and May 1999, pretended to be a partner in the firm and collected messages.

Pimsler used the messages to contact Rosenberg Minc's potential clients, meet them and get them to sign retainer agreements for Mallilo & Grossman, Vogt said.

Well that was innovative, to say the least. It also got Pimsler disbarred. Sometimes thinking outside the box takes you too far outside.