« August 2005 | Main | October 2005 »
September 30, 2005
Hypocrite.
Posted by Eric at 8:33 AM | Comments (5)
The Corpses-for-Porn Story Keeps Moving.
Read it.
Check out this piece from The Guardian too. An excerpt, describing one of the images submitted by what seems to be a U.S. soldier so that he could get 90 days of free amateur pornography:
"A burnt and crumpled Arab face rests in a blue kitchen bowl. It doesn't look as if the back of the head is there, but it's impossible to be sure because everything behind the eyes is hidden in a pool of blood and everything below the jaw is missing."
Morley's piece adds this:
"There's some dispute about whether all of the pictures are real," Brown wrote [in The Guardian], "but it seems beyond doubt that most of the posters claiming to be soldiers actually are, not least because the American Army tries to stop its soldiers accessing the site and posting captions like "this is an Iraqi driver and passenger that tried to run a checkpoint during the first part of OIF [Operation Iraqi Freedom]. The bad thing about shooting them is that we have to clean it up. The car was shot at with 5.56mm and 7.62 mm rounds. The 7.62 did his head' - but the viewer must take on trust that the head existed."
Note Morley's conclusion: "At home and abroad, this story may be far from over."
Posted by Eric at 8:20 AM | Comments (3)
My Little Fluffy White Doggie Was On CNN!
ABBI TATTON, CNN INTERNET CORRESPONDENT: Questions about this site and the stories around, really getting a lot of traction online last week when the "Online Journalism Review" piece came out. Also there have been bloggers looking at the Web site and pushing the story.Isthatlegal.org -- this is the blog of University of North Carolina law professor Eric Muller. He's been looking at the site and asking questions.
Posted by Eric at 8:06 AM | Comments (1)
September 29, 2005
Corpses-for-Porn Is Not Upsetting Just to Muslims!
It is not just "Muslim advocacy groups" who are outraged by the notion that American soldiers are using photographs of pieces of enemy soldiers as tokens to stick into the pay slot of an amateur porn forum.
Does this story concern or upset or sicken you? If so, call or write to your media outlet(s) of choice, and your Representative and Senators, and tell them. You might even mention that you're outraged, and you're not a Muslim advocacy group (if in fact you are not).
Posted by Eric at 9:09 PM | Comments (2)
September 28, 2005
Gory-Photos-for-Porn: Let's Hear From W. Hays Parks
The military inquiry into the gore-for-porn photos lasted a couple of days, and it's over. Nothing to see here, says the military.
Oh really?
I call for commentary from W. Hays Parks, Special Assistant for Law of War Matters to the U.S. Army Judge Advocate General, who gave the following testimony before the Senate Committee on Governmental Affairs back on April, 10 2003:
In addition to the GPW, there are other Geneva Conventions relevant to the current conflict. In particular, the United States and Iraq are both parties to the 1949 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. The title of this Convention is a bit misleading because it also provides protection for the dead. In particular, this Convention:
-- Requires parties to the conflict to protect the dead against pillage and ill-treatment; and
-- Requires parties to ensure that the dead are honorably interred, their graves respected, and information as to their identity, etc., provided to the International Committee of the Red Cross.DOD Policies in Conflict with Iraq
The United States and Coalition forces conduct all operations in compliance with the law of war. No nation devotes more resources to training and compliance with the law of war than the United States.
Both the United States and Iraq are parties to the GPW, which the United States fully observes in this conflict....
Our aims and acts are precisely the same in the current conflict [as in Desert Storm]: We are providing, and will continue to provide, captured Iraqi combatants with the protections of the Geneva Conventions and other pertinent international laws. ...
Iraqi Violations of the Geneva Conventions and Related Laws of War
Unfortunately, the Iraqi regime is not complying with the Geneva Conventions. Before turning to a summary of the Iraqi violations, I should note that in Desert Storm in 1991, the Iraqis mistreated U.S. and Coalition forces in numerous respects, including physical abuse and torture, forced propaganda statements, food deprivation, denial of ICRC access until the day of repatriation, and much more. The Iraqis similarly mistreated Iranian POWs during the 8-year Iran-Iraq war in the 1980s. The Iraqi regime has thus displayed a pattern of systematic disregard for the laws of war.
Based upon briefings and reports in the media, it appears that Iraq has once again committed violations of the Geneva Conventions and related laws of war. I will mention just three.
-- First: Iraqi Television and al-Jazeera have aired a lengthy tape of deceased U.S or coalition service members. I understand that some of you have seen the tape; I will not describe it in any detail. Suffice it to say that this tape, which was apparently made with the consent or at the direction of the Iraqi regime, shows fundamental violations of the Geneva Convention obligations, including prohibitions on pillage and ill-treatment of the dead, the duty to respect the personal dignity of all captured combatants, and possibly the prohibition against willful killing, torture, inhumane treatment, or the willful causing of great suffering or serious injury to body or health of a POW.
Mr. Parks? Your thoughts about the photos on nowthatsfuckedup.com? (Note: the offending site is currently down.)
Posted by Eric at 7:32 PM | Comments (5)
Gore-for-Porn Hits the MSM
Not sure why the role of bloggers in developing the story isn't getting more attention ... maybe if Powerline had discovered the story it'd be different.
In any event, I'm pleased to see that the story is getting the attention it deserves.
UPDATE: CNN has the story now too.
Posted by Eric at 1:20 PM | Comments (4)
Seeing the World through the Lens of Yale
(Note: This is happily something I no longer much fear; I now simply accept it. A more advanced stage of scholarly grieving. )
So I called one of my old Yale Law School professors--a very sympathetic sort--for advice. Why, I asked him, did nobody who "mattered" seem to know what I was doing? And how could I change that?
I will never forget his first piece of advice: "Well, Eric, why don't you publish an opinion piece in the New York Times? People seem to notice those."
I mention this because I think it reveals in a single sentence how rarefied and artificial the atmosphere can be at Yale Law School. This professor--truly a kind and sensitive man--simply assumed that I could snap my fingers and publish an opinion piece in the New York Times. He was so accustomed to people paying attention to his thoughts and words--or, in any event, so persuaded that people pay attention to his thoughts and words, without regard for whether people actually do--that he assumed that everyone's life was basically like his.
An awareness of this, I think, is what is missing from David Bernstein's "preemptive defense" of the Federalist Society that he published yesterday at the Volokh Conspiracy. Bernstein defends what he sees as the broad ideological diversity of the Federalist Society by listing and describing the students who were active in it in the Yale class of '91. (He does this to try to head off debate about the significance of the next Supreme Court nominee's potential Federalist Society membership.)
Bernstein's mistake is to generalize from the experience of Yale Law School. Perhaps the Class of '91 Federalists at Yale were the eclectic and eccentric bunch that David describes. But that is not so much a reflection of the Federalist Society as it is a reflection of Yale Law School. Yale Law School attracts far more than its share of eclectics and eccentrics. That is probably the major part of the school's charm. (That, and New Haven.)
My observation of the Federalist Society chapters at the two state schools where I have taught--and I'm judging here by the public programs they sponsor--suggests considerably less ideological diversity than the melting pot that David Bernstein enjoyed at Yale.
I am not suggesting that a more uniform ideological cast to the Federalist Society at schools other than Yale is a bad thing or a good thing. I'm just arguing that the Federalist Society at Yale Law School in 1991 was no more "standard" a model of the Federalist Society than Yale Law School itself is a "standard" model of a law school.
Posted by Eric at 8:33 AM | Comments (10)
Converge.
Posted by Eric at 8:14 AM
September 26, 2005
The Times, They Aren't A-Changin'
Posted by Eric at 2:06 PM | Comments (4)
Malkin at Manzanar, and the Irrelevant First Amendment
Two quick comments about the piece, which is generally quite good and accurate.
First: Speaking of the correspondence that Manzanar has received about the controversy, the article reports this:
[T]he vast majority of the correspondence, to the surprise of park officials, has been in support of the government's decision to carry the book, a former bestseller.Duh. Gee, I wonder how that happened? Could it be because Malkin asked the very large readership of her blog to email Manzanar in support of their decision to stock the book?
It surprises me that an official at Manzanar still confesses suprise at this. When I met Frank Hays, Manzanar's superintendent, at an internment-related event in San Francisco a few months ago, I pointed out to him that Malkin had called on her blog readership to write in, and he told me he was aware of that. So what's this lingering "surprise" about?
Second: Behind Malkin's book, the Boston Globe article tells us, the Manzanar National Historic Site has placed a letter explaining that in the view of the Historic Site, not carrying the book "could ironically be viewed as denying the First Amendment rights to free speech."
People (especially historians) often complain about what happens when lawyers profess expertise about history, but here's an example of the danger of historians professing expertise about law. There is no way that a decision by the Manzanar National Historic Site not to stock Malkin's pro-internment book could "deny the First Amendment right to free speech." If the First Amendment confers on authors a right to have their books stocked in government-run bookstores, why, I have got causes of action in spades, as does every other author in the country who has published a history book that every relevant government-run bookstore does not stock.
Michelle Malkin has no right at all for any bookstore anywhere--public or private--to carry her book.
The folks at Manzanar might believe it wise, helpful, provocative, or even profitable to carry Malkin's book. For those reasons, they can choose, in their discretion, to stock her book if they wish (as they have done). But if they think stocking the book is a good idea, then they should own up to their choice, rather than hiding behind the First Amendment, which has nothing to do with the situation.
(Note: Whether Manzanar, having initially decided to stock the book, may remove it from its shelves presents a slightly different question. In such a situation, I can envision a colorable argument that the First Amendment might stand in the way of such a decision if the basis of the removal decision were disagreement with the book's content. I'm not sure that this would be a correct argument, but it's certainly a closer question than the question of whether the First Amendment requires the book to be stocked in the first place.
Of course, once Manzanar sells out the copies it has got on its shelves, I would imagine that, as with the original stocking decision, the bookstore would be under no First Amendment obligation to restock the book in perpetuity.)
Posted by Eric at 9:37 AM | Comments (5)
September 25, 2005
Another Reason Why John McCain Should Not Be President.
One wonders: if McCain's torturers had been from a North Vietnamese intelligence agency, would that have made it different?
Posted by Eric at 8:27 PM | Comments (3)
September 23, 2005
Don't Tell Me Some Dumb Crap About "Mood," Either. That Just Doesn't Make Sense.
Why do fancy restaurants turn their lights lower as it gets darker outside?
UPDATE: And allow me to clarify: I'm not suggesting that restaurants should turn their lights up as it gets darker outside. I just don't understand why they turn them down.
Posted by Eric at 8:47 PM | Comments (17)
September 22, 2005
The Artwork of Roger Shimomura
My talk is called "Thinking About Internment With Left and Right Brain." (Feel free to leave snarky comments about the title in the comments!) It's free and open to the public, and there's a reception afterwards. Best of all, the artist will be there. The event starts at 6:30 at the gallery. If you're at Clemson, stop on by. If you know someone at Clemson, let them know about the event!
UPDATE: I do not know what they are slipping into the drinking water at Clemson, but the event last night was the best-attended talk I've ever given on any campus anywhere about the Japanese American internment--including on campuses in California. Two hundred fifty people--most of them undergrads--filled every seat in the hall and people were standing in the back. It helped, I think, that Roger Shimomura (the artist whose work is being exhibited) had visited a number of classes on campus earlier in the day, and that Clemson freshmen had been given writing assignments based on his paintings. Still, I was just overwhelmed by the attendance.
I was also overwhelmed by Shimomura's artwork. I will link to a few images below, but seeing them "in person" on the wall of a gallery is a totally different experience from seeing them in miniature on a computer screen.
"Housing Discrimination" (2003)
"The History of Art, Version 2" (2003)
"Memories of Childhood" (1999)
"Memories of Childhood" (1999)
Posted by Eric at 8:10 AM | Comments (2)
September 21, 2005
Inaccu-weather
"An Idaho weatherman says Japan's Yakuza mafia used a Russian-made electromagnetic generator to cause Hurricane Katrina in a bid to avenge itself for the Hiroshima atom bomb attack -- and that this technology will soon be wielded again to hit another U.S. city."
Posted by Eric at 9:30 AM | Comments (6)
September 20, 2005
The Next Abu Ghraib?
Respect for remains means, among other things, preventing the remains from being despoiled and from being exposed to public curiosity.
At this website, which in the last hour seems to have (temporarily?) gone belly-up,** U.S. soldiers in Iraq and Afghanistan are encouraged to send in gory pictures of dead enemy soldiers.
And they do. Lots and lots of them.
Why? So that they can get free access to pornography.
Here's the invitation the site issues to American soldiers:
"If you are a U.S. Soldier stationed in Iraq, Afghanistan, or any other combat area and would like free SUPPORTER access for the site, you can post real pictures you or your buddies have taken while you have been deployed.This section is for the gory ones so that people who do not wish to see that kind of stuff can just not go in here. I also do not want already published pictures that were taken by news people. This is supposed to be an area where we can see pictures posted by the solders themselves.
Just post your pics like you normally would and when I see them I will approve you for free access to the wife and g/f area. There have only been a few people cheat from this but I do now know what kind of pics to expect from the guys over there. So please do not waste my time if you are not a military person by just posting iraq pics you found on CNN or something."
Note that the site only wants photos of enemy dead. You don't get your free porn if you post a photo of a dead American, and they take the pictures down as quickly as they can.
"This site will not let pics of our dead or wounded be posted here. That is watched very close, and if someone did sneak one in, just PM a mod and they will get it taken off right away."
I did not have the stomach to check out more than two of the photos, and even those two I looked away from almost immediately. (It seems, though, that there's a lot of this sort of thing going around: U.S. soldiers are making a regular practice of filming and photographing enemy corpses and sharing the images with each other, their friends, and their families.)
If publishing photos of dead enemy soldiers on the web in order to get free porn is not disrespecting their remains and "exposing them to public curiosity," I do not know what is.
Is this the next Abu Ghraib?
**UPDATE: At 9:15 p.m. Eastern, the site is now up again, but in case it goes back down, I've got a cache of the picture forum index page here.
Posted by Eric at 9:00 PM | Comments (22)
Not Writing on a Clean Slate.
For what it's worth, I admire much of what Lithwick writes. But hey ... I'm available if they're looking for someone in addition to Lithwick! Surely there's room at Slate for, maybe, me and Froomkin?
Posted by Eric at 3:47 PM | Comments (2)
"Tracking" Ethnicity and Loyalty?
It's hard to know how to evaluate what Masugi is talking about, because he does not tell us what he has in mind by "tracking ethnicity and loyalty to the U.S."
Ken: what are you talking about?
UPDATE: Ken Masugi clarifies:
By "tracking" ethnicity and loyalty, I was merely referring to the dual loyalties felt by many Americans for the land of their ancestors and the U.S. In the case of ethnic Japanese (many of whom held dual citizenship), that loyalty was severely tested in WW II. Some went over to Japan, others staunchly held to America. Others wavered. Sorry for the sloppy use of "tracking"-- "correlate" sounds overly precise.In the case of Middle Eastern immigrants and citizens and Muslims today, the same issue arises.
Posted by Eric at 1:02 PM | Comments (29)
September 19, 2005
Michelle Malkin's Ever-Shrinking Defense of Racial Internment
This document (further) devastates the revisionist claims of Michelle Malkin in her book "In Defense of Internment." (You can read the rest of the devastation here.) Malkin argues that McCloy was the chief architect of the Japanese American internment, and that he settled on the policy of evacuation and internment because of top-secret decrypted evidence of Japanese American spying (the so-called "MAGIC" diplomatic cables) to which he, and a very few others, were privy.
That Robinson's document helps kill Malkin's thesis is obvious: Five months after the launch of the policy of evacuation and internment, McCloy tells a superior at the War Department that the main reason for the policy was an out-of-control white population in California.
Malkin has finally posted a response to Robinson's document and Ramsey's column. There are lots of words, but in the end she says two main things. First, she tries to create doubt about the authenticity of the handwritten note by emphasizing that the copy of the McCloy memo that Robinson found in the Patterson papers was an office copy in which the handwritten note had been typed in after the fact. Second, she diminishes the significance of McCloy's admission because it came as a postscript to a memo about whether the government was adequately feeding the internees rather than as the focus of a memo about security.
On the first point—the authenticity of the handwritten note—we expect a Dan-Ratheresque disquisition about kerning and typeface, but Malkin gives up the game before really even starting it. When all is said and done, she says this:
"I would venture a guess that McCloy probably wrote the note. But unless someone locates the original, we cannot be certain. In failing to acknowledge this uncertainty, Ramsey and Robinson are either being sloppy or dishonest."
Ramsey and Robinson are being sloppy or dishonest?
Let's do a reality check: Malkin builds her defense of the racial detention 110,000 people on three key propositions:
1. Assistant Secretary of War John J. McCloy actually saw and read perhaps half a dozen out of the thousands upon thousands of intercepted and decoded MAGIC messages.
2. McCloy understood them to indicate that American citizens of Japanese ancestry were participating in spy rings.
3. McCloy understood the mass removal and detention of 110,000 people as an appropriate and proportionate response to the threat stated or implied in the MAGIC decrypts.
What contemporaneous evidence does Malkin adduce for any of these essential propositions?
None.
Not a shred, on any of the three points. We do not know for sure that McCloy actually saw any of the specific MAGIC messages Malkin highlights. If he saw them, we have no evidence of what he understood them to mean. And if he understood them to mean that some American citizens of Japanese ancestry were spying for Japan, we have no evidence this led him to conclude that every man, woman, and child of Japanese ancestry on the West Coast—the elderly, the senile, the gravely ill, the orphans—needed to be forced from their homes and their hospital beds and their orphanages and shut behind barbed wire.
And yet according to Malkin, it is Ramsey and Robinson who are being "sloppy or dishonest."
On the second point—the significance of the admission—she says this:
"A handwritten note scrawled on the bottom of a memo about food is not the venue for discussing state secrets such as the MAGIC messages which revealed extensive Japanese espionage activity on the West Coast."
This is priceless, because the point Malkin makes in her book is that there was no venue at all, anywhere, ever, for discussing state secrets such as the MAGIC messages. They were too top-secret, she maintains, and thus nobody with access to them could write anything down about them or talk about them to anybody who did not have clearance.
So her claim is really this: Out of many thousands of decoded Japanese diplomatic cables, there were several that mentioned the idea of Japanese American espionage. We have no idea whether they were true, or whether anyone actually saw them, or what meaning anyone ascribed to them at the time, or what action anyone thought they required. We can't have any idea about those things, because the cables were too top-secret for anyone to mention in any document or conversation that appears in the historical record. But surely those messages, and not the hysteria, racism, and economic opportunism that scholars have documented, just must have been the justification for the evacuation and internment!
Maybe this sort of reasoning suffices for an appearance on Hannity & Colmes or a column at VDare. But for a work of history, which "In Defense of Internment" purports to be, it doesn't even pass the giggle test.
Malkin also says this on the subject of the significance of the memo:
"Ramsey and Robinson believe the note on the bottom of an obscure food memo by an unknown author trumps everything else that McCloy said or wrote during the 1940s and the 1980s."
No. Ramsey and Robinson believe that the note on the bottom of an obscure food memo by an author even Malkin concedes "probably" to be the Assistant Secretary of War further corroborates the already overwhelming case that the evacuation and internment of Japanese Americans was not a decision grounded primarily in actual military necessity. Nobody needs to "trump" the vague and self-protective ramblings of an 87-year-old John McCloy. In the scholarly study of the Japanese American internment, McCloy's memories do not dictate a truth that scholars need to overturn. Quite the opposite is true. McCloy's memories are so out of step with the overwhelming body of evidence about the internment that it is McCloy's memories about the impact of MAGIC that need to be corroborated. Malkin has never even tried to do that.
Finally, it's interesting that Malkin nowhere even mentions the other direct evidence about what prompted the internment that Robinson cites—the February 1943 admission by McCloy's top assistant to an officer in the Provost Marshal General's Office that a key basis for the evacuation had been economic:
"That [sic] West Coast saw a way to get rid of the Japs, they got rid of them, now they don't want them out there, they want to take the property over."
We continue to wait for Malkin's explanation of that one.
Posted by Eric at 8:57 AM | Comments (12)
September 18, 2005
Greensboro Tries Truth
City residents have recently launched a truly remarkable effort: a Truth and Reconciliation Commission, which is holding public hearings and plans to issue a final report next year.
Ed Cone's blogging about the process has been excellent, and his Sunday newspaper column of today is especially good. He sees the possibility of real healing, and some local politicians who are missing a very important boat.
Posted by Eric at 12:54 PM | Comments (1)
September 17, 2005
The UNC Newspaper Controversy
In the column, she quotes three people of Arab ancestry whom she intereviewed. She quotes all of them as supporting racial profiling.
It turns out that she misled her interviewees about the focus of her column, and misused their words to create a meaning other than the one they intended.
The editor who fired her has himself come under fire, and announced yesterday afternoon that he's taking the week off.
My bottom line:
(1) Really bad and immature journalism by the columnist.
(2) Excessive punishment by the editors. A suspension--and more careful editorial supervision--would have done the trick just fine.
(3) The excessiveness of the punishment suggests to me that, in at least some measure, she is being punished not just for breaking the rules of good journalism, which is an appropriate basis for punishment, but for giving offense to her readers, which most definitely is not.
Posted by Eric at 12:40 PM | Comments (8)
September 16, 2005
Sometimes A Cigar Is ...
"Who Is Mahmoud Maawad?" asks internment advocate Michelle Malkin.
Read the "disturbing details" in the story linked on Malkin's site, and you learn that Mahmoud Maawad is ... an Arab guy who is into airplanes:
Since June, Maawad ordered $3,300 of merchandise over the Internet from Speedy’s Pilot Shop in San Diego, including a private pilot course, flight simulator software, a flight gear bag, several DVDs, a $239 Navy leather flight jacket, a $19.95 DVD on “How an Airline Captain Should Look and Act,” and instructional programs on “airplane talk.” His email address was pilot747_200@hotmail.comIsn't it just like those sneaky Arab terrorists to be so obvious? After all, wasn't Mohammed Atta's email address "9_11_WTC_kaboom@hotmail.com?"
It wasn't?
UPDATE: It is just the oddest thing. Michellemalkin.com just will not register a trackback to this blog. Hmm. Why would that be?
Posted by Eric at 3:08 PM | Comments (4)
It's the Moment We've All Been Waiting For.
UPDATE:
Here's a photo from the broadcast.
That's Voice Guy Extraordinaire Jim Ward on the right. His impersonations of the President had the house in stitches. And his Schwarzenegger simply has to be heard to be believed.
Here I am with the radio goddess herself.
I'm not worthy.
(Photo credits to the multi-talented Sally Greene.)
Posted by Eric at 8:05 AM | Comments (3)
"Käse" darft man nicht sagen.
Do you really need to click on this link to know which one it is?
Posted by Eric at 12:01 AM | Comments (8)
September 15, 2005
I Propose The Government Maintain a List of Everyone Who Eats Baba Ghanouj
Naturally, the Boston Globe article reporting on this charming proposal casts those alarmed by the proposal as "civil libertarians" and "immigrants' rights advocates."
Have we really reached the point where it's just "civil libertarians" who get nervous when powerful politicians propose the suspicionless wiretapping of houses of worship?
Posted by Eric at 10:48 AM | Comments (5)
September 14, 2005
John Roberts, You're No John Adams.
Consider these excerpts:
ROBERTS: The memo you refer to -- I was working in the White House Counsel's Office then. The White House Counsel's Office is charged to be vigilant to protect the executive's authority, just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch.
* * *
ROBERTS: Senator, you will recall, at the time -- this was 23 years ago -- I was the staff lawyer in the Justice Department. It was the position of the Reagan administration for whom I worked, the position of the attorney general for whom I worked, that the Voting Rights Act should be extended for the longest period of its extension in history without change.I was a lawyer on his staff. According to this memorandum -- and again, I don't remember anything independently of this 23 years ago. But the memorandum suggests that to a staff lawyer to his boss that this is inconsistent with what you have said. Again, I guess I would regard that as good staff work rather than anything else.
* * *
BIDEN: What was your position on Reagan's civil rights chairman, Clarence Pendleton, suggesting that we appeal the decision of the circuit court, narrowly applying it only to the admissions office?ROBERTS: Senator, I was a staff lawyer. I didn't have a position. The administration had a position, and the administration's position was the two-fold position that you set forth.
* * *
ROBERTS: Well, I think so, Senator. The position that you're reading from there was the position of the administration. I was one of nine lawyers on the brief in that case. It was reflecting the position that had been advanced in four prior cases, up to that point, by the administration.My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked. And in some instances those are consistent with personal views. In other instances, they may not be. In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.
* * *
ROBERTS: Senator, you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships. I was not shaping administration policy. The administration policy was shaped by the attorney general, on whose staff I served. It was the policy of President Reagan.
Now hold on a second. I understand perfectly well that no lawyer has absolute control over his or her caseload, and that when young lawyers sign up to work at the local public defender's office or the county D.A.'s office or the big litigation firm downtown, they don't have a lot of say over which cases come their way. (This was certainly true for me in private practice at a mid-size NYC litigation firm and in the Appeals Division at the U.S. Attorney's Office in NJ--though there I did decline to work on a death penalty case that was in the office at the time.)
But we are talking here about a man who left a clerkship with then-Associate Justice William Rehnquist to become a Special Assistant to the Attorney General of the United States under President Reagan, and who left that position to join the White House staff as Associate Counsel to the President.
These are no ordinary "staff attorney" positions. Nobody gets jobs of this sort just by being a talented young lawyer (as they do at the D.A.'s office, the Public Defender's Office, or the litigation firm downtown). These are, in their nature, ideological positions.
And let us not forget that even the talented young D.A.'s and public defenders and law firm associates sometimes tire of the legal positions their jobs require of them, or the clients their jobs foist on them, and leave for a different line of work. John Roberts has done nothing but be offered, and then accept, internal promotions.
I vividly remember a poster on the walls of Yale Law School announcing some sort of meeting or discussion about career options. "A Lawyer Is Not A Taxi," it said. The role of the lawyer is not simply to take paying passengers wherever they want to go. This is especially true for those of us fortunate enough to have attended schools like Yale and Harvard (Judge Roberts' alma mater); most of us graduate with lots of options and the ability to make choices about what we want to do and what and whom we wish to represent.
Judge Roberts compared himself to John Adams yesterday:
ROBERTS: You know, it's a tradition of the American bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients. The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. And he did that for a reason, because he wanted to show that the revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law. Our founders thought that they were not being given their rights, under the British system, to which they were entitled. And, by representing the British soldiers, he helped show that what they were about was defending the rule of law, not undermining it. And that principle, that you don't identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of a client, is critical to the fair administration of justice.
An odd analogy: Ronald Reagan and William French Smith were the Redcoats, I guess, and the young John Roberts was defense lawyer John Adams. John Adams was trying to demonstrate something about the American revolutionaries' adherence to the rule of law.
What was the principle John Roberts was trying to demonstrate?
Posted by Eric at 8:26 AM | Comments (12)
September 13, 2005
Senator Leahy Bungles the Korematsu Question
LEAHY: In his book, All the Laws But One, Chief Justice Rehnquist, the late chief justice, concluded with this sentence, The laws will not be silent in time of war but they'll speak with a somewhat different voice. He offers a somewhat different voice, of course -- the Supreme Court decision, an infamous decision, a horrible decision in my estimation, Korematsu. As we know, in that case, the court upheld the internment of Japanese-Americans in detention camps, not because of anything they had done, not because of any evidence that they were at all disloyal to the United States, but solely based on their race, as sometimes this country has legislated very, very cruelly and very wrongly solely on the question of race. Now, the Korematsu majority's failure to uphold the Bill of Rights I believe is one of the greatest failures in the court's history. Now, we can't -- I don't believe -- have a Supreme Court that would continue the failings of Korematsu, especially when we're engaged on a war on terror that could last throughout our lifetime; probably will.We'll always face -- we'll always -- this country, all the Western world, all democracies will face terrorist attacks, whether internal, as we had in Oklahoma City, or external at 9/11. I just want to make sure you're not going to be a Korematsu justice, so I have a couple of questions. Can I assume that you will hold the internment of all residents of this country who are interned just because they have a particular nationality or ethnic or religious group -- you would hold that to be unconstitutional?
ROBERTS: The internment of a group solely on the basis of their...
LEAHY: Nationality or ethnic or religious group?
ROBERTS: I suppose a case like that could come before the court. I would be surprised to see it. And I would be surprised if there were any arguments that could support it.
Ugh. Ugh. Ugh.
I'm glad we know that Senator Leahy thinks Korematsu was wrongly decided.
It would be nice to know, though, what Judge Roberts thinks. His equivocal "I would be surprised..." response to the lame and abstract question posed by Sen. Leahy gives me very little comfort.
If he were pressed, I'd be shocked if Judge Roberts said Korematsu was a correct ruling. (Every sitting Supreme Court justice has condemned it.)
So that leads the money question: if Korematsu was wrong, then what about Hirabayashi--decided one year before Korematsu--which upheld a race-based curfew on Japanese Americans? Was that one also wrong?
If he declined to answer the Hirabayashi question, then I'd play out a string of Brown v. Board hypotheticals:
"Would you agree, Judge Roberts, that the separate-but-equal theory of Plessy v. Ferguson was wrong as applied to public schools?" (Presumable answer: yes.)
"Well, would you agree, then, that the separate-but-equal theory of Plessy was wrong as applied to public golf courses?" (Presumable answer: yes.)
"Well, would you agree, then, that the separate-but-equal theory of Plessy was wrong as applied to any public facility of any sort? (Presumable answer: yes.)
"And Judge Roberts, you have said that Court incorrectly ruled that the race-based internment of Japanese Americans was constitutional?" (Presumable answer: yes.)
"Well then, Judge Roberts, was the Court also incorrect in holding that a race-based curfew of Japanese Americans was constitutional?"
(Answer: ?????)
UPDATE: In response to a question from Senator Feingold, Judge Roberts just said that he agrees that Korematsu is in a category of wrongly decided cases alongside Dred Scott and Plessy v. Ferguson.
Maybe someone will follow up about Hirabayashi tomorrow.
Posted by Eric at 12:23 PM | Comments (9)
Tempted by the Blog of Another
Posted by Eric at 11:23 AM
September 12, 2005
Hirabayashi
Posted by Eric at 9:55 AM | Comments (2)
Celebration Understandable. Methods Deplorable.
I look forward to the day when Israel has wise enough leadership, and enough confidence in its capacity to survive, to make comparable moves in other territories it has occupied since being attacked by its neighbors in 1967.
But I deplore, if only for its symbolism, the exultant burning of synagogues in Gaza.
Posted by Eric at 9:00 AM | Comments (12)
September 10, 2005
On Padilla, and Remembering Ex parte Endo
I think the court is mistaken, primarily because it misreads the U.S. Supreme Court's decision in Ex parte Endo, 323 U.S. 243 (1944), the case that held unlawful the detention of Japanese Americans during World War II.
Padilla: the Background
If you've not been following this case, here's the scoop, very briefly:
A week after the 9/11 terrorist attacks, the Congress passed a resolution that read as follows:
[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
You'll notice that the resolution says nothing specifically about the power to detain, let alone to detain American citizens.
The question before the Fourth Circuit (and, probably, soon back before the Supreme Court) is whether the language of the congressional resolution should be read to have conferred on the President a power indefinitely to detain a person he believes to be an illegal enemy combatant, without charging him with any sort of crime in the civilian justice system,where that person is a U.S. citizen and is apprehended in the United States.
The Supreme Court recently held that the resolution authorized the detention of Yaser Hamdi, a U.S. citizen who was an alleged illegal enemy combatant and was captured overseas.
The crucial distinction in the Padilla case, obviously, is the place of arrest: Padilla was arrested at O'Hare Airport.
The Relevance of the Japanese American Internment and Ex parte Endo
Think now, for a moment, about precedents: when in U.S. history has the executive asserted an authority to arrest and indefinitely detain U.S. citizens on American soil without charging them with any sort of crime?
This is what the government did to some 70,000 American citizens of Japanese ancestry in WWII. The theory was, of course, not that Japanese Americans were "illegal enemy combatants"; the theory was, in a sense, that they had the potential to be such—subversives for a foreign enemy, on U.S. soil.
In Ex parte Endo, 323 U.S. 283 (1944), the U.S. Supreme Court unanimously** held that Executive Order 9066, authorizing the evacuation of Japanese Americans from the West Coast, and the legislation Congress passed to enforce that Order, could not be read to confer on the War Relocation Authority ("WRA") a power indefinitely to detain Mitsuye Endo, an American citizen of Japanese ancestry in one of the WRA's Japanese American camps.
The problem in Endo was not that Endo's detention violated her constitutional rights. The Court didn't need to address that question, because it found that the WRA had no power to detain her at all.
But the Endo Court didn't see Endo's constitutional rights as irrelevant to the case. Quite the contrary. It began its analysis this way:
Broad powers frequently granted to the President or other executive officers by Congress so that they may deal with the exigencies of war time problems have been sustained. And the Constitution when it committed to the Executive and to Congress the exercise of the war power necessarily gave them wide scope for the exercise of judgment and discretion so that war might be waged effectively and successfully. Kiyoshi Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382. At the same time, however, the Constitution is as specific in its enumeration of many of the civil rights of the individual as it is in its enumeration of the powers of his government. Thus it has prescribed procedural safeguards surrounding the arrest, detention and conviction of individuals. Some of these are contained in the Sixth Amendment, compliance with which is essential if convictions are to be sustained. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241. And the Fifth Amendment provides that no person shall be deprived of liberty (as well as life or property) without due process of law. Moreover, as a further safeguard against invasion of the basic civil rights of the individual it is provided in Art. I, Sec. 9 of the Constitution that 'The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.' See Ex parte Milligan, supra.We mention these constitutional provisions not to stir the constitutional issues which have been argued at the bar but to indicate the approach which we think should be made to an Act of Congress or an order of the Chief Executive that touches the sensitive area of rights specifically guaranteed by the Constitution.
The Court continued:
This Court has quite consistently given a narrower scope for the operation of the presumption of constitutionality when legislation appeared on its face to violate a specific prohibition of the Constitution. We have likewise favored that interpretation of legislation which gives it the greater chance of surviving the test of constitutionality. Those analogies are suggestive here. We must assume that the Chief Executive and members of Congress, as well as the courts, are sensitive to and respectful of the liberties of the citizen. In interpreting a war-time measure we must assume that their purpose was to allow for the greatest possible accommodation between those liberties and the exigencies of war.
The Fourth Circuit's Misapplication of Endo
In Padilla, Judge Luttig made short work of Endo. Luttig assumed that the important language in Endo was the language that directly followed what I just quoted, when the Court said, "We must assume, when asked to find implied powers in a grant of legislative or executive authority, that the law makers intended to place no greater restraint on the citizen than was clearly and unmistakably indicated by the language they used." This would seem on its face to doom the claim of executive power in Padilla: surely language of the congressional resolution after 9/11 did not "clearly and unmistakably indicate" a power to detain U.S. citizens arrested on American soil.
And yet Judge Luttig brushes this language aside, seizing upon a different sentence in the Endo opinion: "The fact that the Act and the [executive] orders are silent on detention does not of course mean that any power to detain is lacking. Some such power might indeed be necessary to the successful operation of the evacuation program." This language seems to negate what went before, in a way quite helpful to the government in Padilla. The fact that the congressional resolution was silent on the President's power to detain U.S. citizens does not mean, under Endo, that it did not give the President such a power.
Fair enough.
But the language Luttig seizes upon decidedly does not negate the Endo Court's assertion that "in interpreting a wartime measure we must assume that [Congress's] purpose was to allow for the greatest possible accommodation between [an individual's] liberties and the exigencies of war."
And how is the Court to give force to that assumption?
Here the Endo Court is quite explicit – and tellingly, Judge Luttig does not even cite the Court's language. The unanimous Endo opinion said that "[i]f there is to be the greatest possible accommodation of the liberties of the citizen with this war measure, any such implied power must be narrowly confined to the precise purpose of the evacuation program.
This language should look familiar to any student of constitutional law: it is the rudiments of what we call "strict scrutiny"—a requirement that a law serve its purpose as narrowly and carefully as possible in order to survive judicial review. Typically we see strict scrutiny deployed as a test of a law's constitutionality; in Endo the Court uses it as a way of construing the language of an Executive Order and its implementing statute to avoid directly confronting constitutional problems.
The U.S. District Court Judge in this case held back in February that Padilla's indefinite detention was unlawful. He reasoned that the ready availability of the civilian criminal courts made Padilla's indefinite detention unnecessary:
"Petitioner in this action was captured in the United States. His alleged terrorist plans were thwarted at the time of his arrest. There were no impediments whatsoever to the Government bringing charges against him for any one or all of the array of heinous crimes that he has been effectively accused of committing. Also at the Government's disposal was the material witness warrant. In fact, the issuance of a material witness warrant was the tool that the law enforcement officers used to thwart Petitioner's alleged terrorist plans. Therefore, since Petitioner's alleged terrorist plans were thwarted when he was arrested on the material witness warrant, the Court finds that the President's subsequent decision to detain Petitioner as an enemy combatant was neither necessary nor appropriate.""[W]hereas it may be a necessary and appropriate use of force to detain a United States citizen who is captured on the battlefield, this Court cannot find, in narrow circumstances presented in this case, that the same is true when a United States citizen is arrested in a civilian setting such as an United States airport."
Judge Luttig in the Fourth Circuit dismissed the district court's holding:
"[W]e believe that the district court ultimately accorded insufficient deference to [the President's] determination [that Padilla should be indefinitely detained as an enemy combatant], effectively imposing upon the President the equivalent of a least-restrictive-means test. To subject to such exacting scrutiny the President’s determination that criminal prosecution would not adequately protect the Nation’s security at a very minimum fails to accord the President the deference that is his when he acts pursuant to a broad delegation of authority from Congress, such as the [resolution Congress passed after 9/11].
But Endo makes plain that a least-restrictive-means test is precisely what a court should use in a situation like this.
Does the President's order in Padilla pass such a test? Surely it does not. At Balkinization, Marty Lederman demonstrates powerfully that over the course of the litigation, purported purpose of Padilla's detention has switched from a theory of preventing him from pursuing his alleged plans here in the United States to a theory of preventing him from "returning to the battlefield" in Afghanistan. The latter theory, as Marty shows, is an invention of Judge Luttig's; and the change of theories mid-stream tends strongly to undermine the notion that the government really has a crucial purpose at all. (Think, for a moment, of how the government followed its dire claims about the peril posed by Yaser Hamdi with a decision to free him and send him to Saudi Arabia with the warning that he should be a good boy from now on.)
In addition, the government does not explain why preventive steps well short of indefinite military detention—criminal prosecution, for example—would fail to protect the nation.
It is difficult to overstate the significance of Judge Luttig's ruling. With nothing more than congressional silence to go on, Judge Luttig endorses the proposition that a President may single out an American citizen, grab him on American soil, and do something close to making him "disappear."
A couple of years back, Professor Pat Gudridge of the University of Miami urged us to "Remember Endo" in an essay (with that title) in the Harvard Law Review. This would be an especially good moment for the Supreme Court to heed Gudridge's advice.
**As a commenter notes, "unanimously" is slightly misleading. All nine Justices agreed that the government lacked the power to detain Endo under Executive Order 9066 and its impementing legislation. Eight Justices joined Justice Douglas's Opinion for the Court, which held that the government lacked the power to detain because no law had authorized it. Justice Roberts concurred in the result, but reached the conclusion that the government lacked the power to detain because the Constitution forbade it.
(post updated slightly to describe Marty Lederman's point more accurately.)
Posted by Eric at 9:45 PM | Comments (9)
Why Does the National Park Service Hate 9/11 Victims?
And while we're at it, why is the National Park Service--intentionally or unintentionally--mocking the victims of Flight 93 by making their memorial in the shape of Raggedy Ann's hair?
Seeing is believing.
Posted by Eric at 11:37 AM | Comments (4)
The Key to the City?
Yes, the Louis Farrakhan who says and believes this stuff. And this stuff.
On hand was Durham mayor Bill Bell, who presented Farrakhan with the key to the city.
And somehow, none of this was controversial.
Posted by Eric at 9:27 AM | Comments (7)
Maybe IsThatLegal Should Apply for a 9/11 Loan?
the Wieben Chiropractic Clinic in Cheyenne, Wyoming,
Wild Horizons Expeditions, an outfitter in Jackson Hole, Wyoming,
Kistler Tent and Awning Co., an equipment rental place in Casper, Wyoming,
and Fantastic Sam's, a hair salon in Rock Springs, Wyoming,
all have in common (apart from all being in Wyoming)?
Answer: They all got Small Business Administaton loans earmarked for businesses adversely affected by the terrorist attacks of September 11, 2001. Which they weren't.
Posted by Eric at 9:09 AM
September 9, 2005
Padilla
The decision rests, in part, on a reading of Ex parte Endo (1944) that wouldn't get a "C" on a law school exam. (Endo was the case in which the Supreme Court held that the federal War Relocation Authority had no power to detain Japanese Americans who had been certified as loyal.)
I'll write more about this over the weekend when I have the time.
Posted by Eric at 4:30 PM | Comments (5)
September 8, 2005
The Creep of Repression
Posted by Eric at 9:53 AM | Comments (11)
Michelle? (Jesse?) Hello?
Malkin's response: silence.
Posted by Eric at 9:13 AM | Comments (1)
September 7, 2005
Important Internment-Related Document Discovered in Library of Congress
The revisionist claim has been around for years, but it was vaulted to celebrity last year when Michelle Malkin made it the centerpiece of her book "In Defense of Internment." The claim is that a select few at the very top of the federal government--primarily President Roosevelt, Secretary of War Henry Stimson, Ass't Secretary of War John J. McCloy, and a few other high-level advisors--had access to top-secret decrypted Japanese diplomatic messages (the "MAGIC" cables) that referred to Japanese American spies. These decrypts, the argument goes--and not hysteria, racism, and economic jealousies along the West Coast--were what led the War Department to propose, and the President to approve, mass internment.
Here is a document that Greg Robinson, author of "By Order of the President," found in file 137 of the papers of Robert Patterson, the Undersecretary of War, in the Library of Congress:
The key part is the handwritten note (typed on this office copy) at the bottom:
So here the Assistant Secretary of War--who had access to the "MAGIC cables" and was instrumental in the design and implementation of the internment policy--tells the Undersecretary of War--who was superior to McCloy in the War Department hierarchy, and presumably also had MAGIC access--that the main reason for removing all people of Japanese ancestry from the West Coast was an inability "to control our own white citizens in California."
And why could public opinion in California not be "controlled?"
Consider this excerpt from a telephone conversation on February 4, 1943, between the top executive to Assistant War Secretary John J. McCloy and a top assistant to the Army's Provost Marshall General. (National Archives, Record Group 389, Entry 480, Box 1757) They are talking about the huge wave of hostile telegrams pouring in to the War Department after the government announced a program of screening the loyalty of Japanese American internees so that they could leave the internment camps for the military or for jobs:
Col. Scobey: You know what's back of that. The protest will come from the West Coast, of course.Sobering evidence of what can pass for "security measures" in a time of crisis.Col. Miller: Yes, that's right.
Col. Scobey: And there's a lot back of that and part of it is economic. The West Coast saw a way to get rid of the Japs, they got rid of them, now they don't want them out there, they want to take the property over. It isn't all patriotic, by any means.
Col. Miller: That's right.
Col. Scobey: Of course, they couch their protests under the guise of security and patriotism.
UPDATE: Greg Robinson blogs about his find here and here.
FURTHER UPDATE: David Neiwert blogs about the significance of this document here.
Posted by Eric at 7:39 AM | Comments (14)
September 6, 2005
Vu Den?**
**The title's Yiddish.
Posted by Eric at 10:46 PM
Here's A Little Song I Wrote, Hope You Learn It Note for Note ...
And yet every time I see it, I laugh.
I am a bad person.
Posted by Eric at 10:01 PM | Comments (3)
Here Is The Text of a FOIA Request I Faxed to DHS this Morning. (I'm Not Holding My Breath...)
Departmental Disclosure Officer
The Privacy Office
U.S. Department of Homeland Security
Arlington, VA 22202
Re: FREEDOM OF INFORMATION ACT REQUEST
Dear Sir or Madam:
I request production of any and all documents in the possession of the Department of Homeland Security pertaining to "Purple Crescent," a DHS-cosponsored exercise held in New Orleans, Lousiana in October 2003, and to "Purple Crescent II," a DHS-cosponsored exercise held in New Orleans, Louisiana on October 27, 2004.
"Purple Crescent" modeled a terrorist attack against the New Orleans Jazz & Heritage Festival.
"Purple Crescent II" modeled a hurricane followed by a terrorist attack on computer networks.
I request a waiver of search and duplication fees because disclosure of the information sought is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Specifically, the requested documents, which I intend to write about and publish on my weblog, http://www.isthatlegal.org, will assist the public in understanding the types of preparations that DHS was engaged in for the City of New Orleans in the event of a natural or man-made disaster.
I also request that this FOIA request be expedited because the matter involved is one of exceptional need or urgency. Specifically, there is currently intense public debate about the degree of preparedness of various federal, state, and local agencies for catastrophic flooding of New Orleans in the wake of Hurricane Katrina. The prompt dissemination of information about DHS's specific disaster scenarios for New Orleans ("Purple Crescent" and "Purple Crescent II") is crucial to an accurate public understanding.
Sincerely,
Eric L. Muller
George R. Ward Professor
University of North Carolina School of Law
CB #3380
Chapel Hill, NC 27599
(919) 962-7067
Posted by Eric at 11:51 AM | Comments (4)
Looking for a former student
Posted by Eric at 9:09 AM | Comments (1)
September 5, 2005
"The turkey buzzard schmucked him in the face."
Posted by Eric at 10:54 AM | Comments (2)
Find Out More About "Purple Crescent!"
Why have you said that a "double catastrophe" in New Orleans was unforeseeable when the Department of Homeland Security has been preparing for a double catastrophe in New Orleans?Why was the federal government preparing for a terrorist attack in the wake of a hurricane in New Orleans rather than a flood in the wake of a hurricane in New Orleans?
Posted by Eric at 7:59 AM | Comments (2)
September 4, 2005
The Department of Homeland Security Was Preparing for "Two Catastrophes" in New Orleans
On Face the Nation, he said this:
Secretary MICHAEL CHERTOFF (Department of Homeland Security): Well, this was not
just one catastrophe. It was actually two catastrophes. There was a hurricane of force 4 which
slammed into Louisiana, slammed into Mississippi, caused enormous destruction. The
hurricane started to depart the area on Monday, and then Tuesday morning the levee broke
and the water started to flood into New Orleans. So the initial operation, to rescue people based
on the hurricane, was all of a sudden complicated by the fact that we now had an ongoing flood
situation which prevented resupply operations.SCHIEFFER: Well, doesn't this have--mean that you're going to--at the very least going to
have to start over on planning for things of this kind? I mean, the president said the results are
unacceptable. I think a lot of people around the country would use even stronger language.Sec. CHERTOFF: I think that the lesson of this hurricane, which we will clearly look at as we
go over an after-action evaluation, is going to be very valuable in moving forward. I mean, this
was an ultra-catastrophe, but we have to be prepared even for ultra-catastrophes, even things
that happen once in a lifetime and once in a generation. So, yes, we will be studying that.
On Meet the Press, Chertoff put it this way:
"Well, I think if you look at what actually happened, I remember on Tuesday morning picking up newspapers and I saw headlines, 'New Orleans Dodged The Bullet,' because if you recall the storm moved to the east and then continued on and appeared to pass with considerable damage but nothing worse. It was on Tuesday that the levee--may have been overnight Monday to Tuesday--that the levee started to break. And it was midday Tuesday that I became aware of the fact that there was no possibility of plugging the gap and that essentially the lake was going to start to drain into the city. I think that second catastrophe really caught everybody by surprise. In fact, I think that's one of the reasons people didn't continue to leave after the hurricane had passed initially. So this was clearly an unprecedented catastrophe."
"What caught people by surprise in this instance," Chertoff said, "was the fact that there was a second wave--the failure of the levees and the resulting flooding.
"Caught by surprise." An unforeseeable "second wave." "Something to study."
It turns out, though, that the Department of Homeland Security has extensively studied how to cope with a "second wave" following a major hurricane in New Orleans.
Guess what the second wave was.
You guessed it. Not a breached levee, but terrorism.
Read this article from the New Orleans Times Picayune of October 19, 2003:
Terror Drill to Include Variety of GroupsOrganizations from the Navy to BellSouth on Wednesday will hold the first Purple Crescent exercise, designed to test the region s'ability to protect public services and utilities, and prepare for their reaction to terrorist attacks.
Sponsored by the Gulf Coast Regional Partnership for Infrastructure Security, a nonprofit group, the "tabletop" exercise is based on fictitious attacks and the subsequent disruption of various public services such as electrical power and telecommunications.
Purple Crescent will be held in the Space and Naval Warfare Systems Information Technology Center at the Lakefront and is closed to the public. Participants include the Coast Guard, Harbor Police, U.S. Secret Service, and local, state and federal agencies and private companies.
Here is the scenario that Purple Crescent modeled, according to an article that appeared in the New York Times Magazine on February 8, 2004:
Paula Scalingi, the former director of the Department of Energy's Office of Critical Infrastructure Protection, now works as a consultant running disaster-preparedness exercises. Last year she helped organize ''Purple Crescent'' in New Orleans, an exercise that modeled a terrorist strike against the city's annual Jazz and Heritage Festival. The simulation includes a physical attack but also uses a worm unleashed by the terrorists designed to cripple communications and sow confusion nationwide. The physical attack winds up flooding New Orleans; the cyberattack makes hospital care chaotic. ''They have trouble communicating, they can't get staff in, it's hard for them to order supplies,'' she says.
That was Purple Crescent.
In October 2004, disaster planners gathered in New Orleans again for Purple Crescent II. Here's a description:
"Purple Crescent II Exercise is an exercise to test and evaluate the various agencies in Southeastern Louisiana and their ability to handle a major natural disaster such as a hurricane during a high terrorist threat environment. What happens when terrorist or would be hackers attempt to disrupt communications infrastructure concurrent with a natural disaster taking place in or around the City of New Orleans, Louisiana? The effects of a large natural disaster are already devastating as we are seeing along the Gulf Coast after Hurricane Ivan made landfall. How much worse could it be if domestic or international terrorists attempted to impede preparations before the storm, or the recovery after the storm, by utilizing cyber-terrorism? All agencies, including government, law enforcement, EMS, public health, commercial banking, petro-chemical, and private enterprises are welcome to participate in this DHS monitored and supported exercise."
Note that list thing: "this DHS monitored and supported exercise." Yes, that's right. Purple Crescent and Purple Crescent II were co-sponsored by the federal Department of Homeland Security. DHS brags about Purple Crescent II here, for example:
"[DHS] co-sponsored Blue Cascades II and Purple Crescent II, two regional tabletop cyber exercises in Seattle, WA and New Orleans, LA. Each exercise brought together more than 200 government and private sector officials to examine cyber security readiness and response procedures, highlight the importance of cyber security in critical infrastructure protection, and discuss solutions for integrating physical security and cyber security. Region-specific coordination and communication plans between first responders, the federal government, and critical infrastructure owners/operators were exercised."
So the idea that Mike Chertoff and DHS were "caught by surprise" when a second catastrophic event followed a catastrophic hurricance and complicated hurricane recovery is just plain false.
Mike Chertof and DHS were preparing for just such a scenario.
It's just that they were thinking of a hurricane followed by a terrorist attack, rather than a hurricane followed by a flood.
In the coming days, reporters should be asking Mike Chertoff and the President some tough questions about "Purple Crescent," "Purple Crescent II," and why they thought a terrorist attack was a likelier follow-up to a New Orleans hurricane than a breached levee.
UPDATE: Michael Benson puts a finer point on it.
Posted by Eric at 6:01 PM | Comments (12)
You Can't Cross-Examine A Hurricane
Mike Chertoff is probably one of the 2 or 3 smartest people I have ever known.
Mike Chertoff is a career prosecutor, and an outstanding one by any measure. He is a law enforcement guy in every fiber of his being. It's how he made his name. It's how he got his most important training as a professional. It's how he thinks. It's how he sees the world.
It's the reason he was attractive to the President as head of Homeland Security. September 11 defined homeland security as a problem of protecting the nation from human enemies. Mike Chertoff knows the pursuit of human enemies like B.B. King knows the blues.
Mike Chertoff doesn't know natural disasters. This is why he would say, without seeing the absurdity of it, that a hurricane followed by breached levees was an unforeseeable succession of catastrophes, rather than foreseeable parts of the same catastrophe.
So what do I think? I think that we are seeing what happens when a career prosecutor tries his hand at civilian disaster relief. And more generally, I think we are seeing what happens when a nation gets so fixated on its human enemies that it forgets its other vulnerabilities.
Posted by Eric at 12:16 AM | Comments (9)
September 3, 2005
CJ Rehnquist Dies.
Posted by Eric at 11:37 PM | Comments (5)
"A Single, Lonely Piece of Equipment"
"Perhaps the greatest disappointment stands at the breached 17th Street levee. Touring this critical site yesterday with the President, I saw what I believed to be a real and significant effort to get a handle on a major cause of this catastrophe. Flying over this critical spot again this morning, less than 24 hours later, it became apparent that yesterday we witnessed a hastily prepared stage set for a Presidential photo opportunity; and the desperately needed resources we saw were this morning reduced to a single, lonely piece of equipment."
This is obscene.
Posted by Eric at 9:13 PM | Comments (5)
September 2, 2005
Oud Huis
This has been a fascinating series.
Posted by Eric at 10:42 PM | Comments (1)
Richly Deserved.
Korematsu passed away earlier this year.
Posted by Eric at 10:32 PM
Katrina: The View from Columbia, SC
Posted by Eric at 5:20 PM | Comments (5)
White House Disaster Response: The Musical Version
Click here to listen to the chord that the President was about to strum. I kid you not.
(If you don't believe me, and you're a guitarist, look at the President's left hand and pick up your own guitar, like I did.)
Talk about a tin ear.
Posted by Eric at 10:59 AM | Comments (12)
Sniff ... sniff ... What's That I Smell? Could It Be Rome Burning?
Oddly, I couldn't find it. But I did find this one on the site of some 80s-style big-hair band called "Aska." The band thinks the photo looks like the President strumming a guitar, but to me it looks more like fiddling.
Posted by Eric at 9:24 AM | Comments (3)
September 1, 2005
What Orin Kerr Says ... And Then Some.
Posted by Eric at 5:14 PM | Comments (20)
Dying Debts?
We doctors are taught to cure, to heal, when possible to restore patients to a full and active life in society. We are also taught, if we cannot establish health, to allow patients a good death.But we pay little attention to what dying patients owe their loved ones. Leo Tolstoy understood this. In his novella "The Death of Ivan Ilyich," the protagonist, dying slowly, makes life miserable - complaining, criticizing, screaming - for his family until the last day, when he realizes that they love him. He then understands what he owes his wife and children: a good death.
In the end he dies quietly, blissfully, a good death for him and his family.
The late Mrs. Zaroff's passing sounds quite remarkable, and it's nice to know that her method of handling things worked so well for her, and for her son.
But Dr. Zaroff should speak for himself. There are, I would imagine, as many "good" ways of dying as there are people who die. I do not expect that my parents, whenever they should reach their final days, will entirely conceal from me the reality of what they're going through--even if it includes fear, pain, sadness, whatever--in the name of protecting me from the hard parts of being alive.
I do not expect them--or anyone--to die "blissfully."
If people manage blissfulness in the dying process, why, so much the better. But it is inhuman to expect it, and I would never dream of speaking of blissfulness and ease as something a dying person "owes" me.
Posted by Eric at 10:41 AM | Comments (3)
Post-Katrina Blogs for Tulane and Loyola-New Orleans Law School Communities
The Tulane blog is at http://www.isthatlegal.org/tulanelaw.
The Loyola-New Orleans blog is at http://www.isthatlegal.org/loyno.
Please help spread the word to anyone in the affected communities. Tell them that they can post to the blog by sending an email to tulanelaw at isthatlegal dot org or to loyno at isthatlegal dot org, or by phoning me at (919) 962-7067 and leaving a message.
Posted by Eric at 12:32 AM | Comments (5)