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November 30, 2007
Dali Squeeze Magritte
Posted by Eric at 6:47 PM
November 28, 2007
Upcoming book talks -- Southern California
The first will be tomorrow, Thursday, Nov. 29, at UCLA's Young Research Library, from 5:30 to 7:00 p.m., in the library's Presentation Room, which is Room 11348. The talk is part of the Aratani Endowed Chair Speaker Series, and is co-sponsored by the Charles E. Young Research Library, the Asian American Studies Center and Department, and the UCLA Law School's Critical Race Studies Program. UCLA law professor Jerry Kang has kindly agreed to moderate the event.
The second is a panel discussion at the University of Southern California on Friday, November 30, from 6:00 to 8:00 p.m., in the Garden Court of the Commons. The panel's called "History Lessons for the War on Terror: Military Tribunals, Language Interpreters, Covert Operations." The two other panelists will be Roger Dingman of USC, who'll be talking about Japanese Americans' roles as foreign language interpreters in World War II, and Brian Hayashi of Kyoto University, who'll be talking about Japanese, Chinese, and Korean American intelligence agents in World War II. Steven Lamy of USC will offer some comments. This panel is jointly co-sponsored by USC Department of Asian American Studies, Center for International Studies, Asian Pacific American Studies Services, Asian Pacific American Alumni Association, Department of History, East Asian Studies Center, and USC College of Letters, Arts, & Sciences.
Finally, on Saturday afternoon, December 1, at 2:00 p.m., I'll be giving a talk at the Japanese American National Museum in Little Tokyo.
If these are events that might interest someone you know, please do mention them!
Posted by Eric at 9:55 AM
November 26, 2007
"Keep on Talkin', Michelle Malkin"
Advantage: Shimomura.
The entire exhibit is stunning. My favorite is, I think, this one. No, wait. Maybe this one.
Posted by Eric at 2:56 PM
November 25, 2007
Guns in DC
UPDATE: To be clear, I think what the student was pointing out was not the worrisomeness of the Klan having handguns, but the worrisomeness of the Klan (or, for that matter, anyone) having handguns in the shadow of the Capitol. The photo supports, at least indirectly, one of the points of Judge Henderson's dissent.
Posted by Eric at 9:28 PM
November 19, 2007
Why Do the People at Webster's Hate America?
the subjection of a prisoner to mental torture . . . or physical torture (as . . . deprivation of sleep) in an effort to wring a confession from him.Yes, sleep deprivation -- like waterboarding -- has also long been considered physical torture in America. Or used to be.
Its historical pedigree was recounted in a 1961 opinion of the Supreme Court in Arkansas. Quoting the findings of the Wickersham Commission from 1930 in Binns v. State, 344 S.W.2d 841 (Ark. 1961), the court reversed the defendant's conviction because his confession was secured by torture, i.e., sleep deprivation.
Here's what the Wickersham Commission wrote in 1930:
It has been known since 1500 at least that deprivation of sleep is the most effective torture and certain to produce any confession desired.
Let those words hang in the air: ". . . certain to produce any confession desired." If that's the case, then why bother -- because the proverbial ticking time bomb certainly won't wait.
A couple other points. The Wickersham Commission was populated by some fairly high profile, mainstream men. *Wickersham* was George Wickersham -- U.S. Attorney General for President William Howard Taft and co-founder of the Wall Street firm of Cadwalader Wickersham & Taft. Roscoe Pound, the great legal scholar, was also on the commission. The founder of the international law firm of Baker & Hostetler, Newton Baker, was a member. Frank Loesch, a famous Chicago organized crime buster, signed the report. An 8th Circuit judge and former U.S. Senator, William Kenyon, also served with Wickersham.
And, finally, before anyone trashes Webster's TNID for its definition of the *third degree*, recent history shows it to be the "go-to" dictionary for every justice on the Supreme Court. For example, Justice Alito relied on it in his concurring opinion last term in Microsoft Corp. v. AT & T Corp., 127 S.Ct. 1746, 1761 (2007). He also relied on WTNID in his dissent in Hamdan v. Rumfeld, 126 S.Ct. 2749, 2850 (2006) (Alito, J., dissenting). Justice Kennedy likewise relied on WTNID in his concurrence in the Hamdan case. Id. at 2801 (Kennedy, J., concurring). In fact, since 1966, WTNID has been relied on in more than 150 Supreme Court opinions by justices of every political stripe.
History will not look favorably upon us -- whether the year 1500 is pre-9/11 or not.
Posted by shertaugh at 5:51 PM
November 14, 2007
"Law Enforcement Is Looking Ahead to the Next Terror Attack with a Menu and a Map."
UPDATE: Grr. It looks like the Bee might put its content behind a registration wall. Here's the text of the op-ed:
Law enforcement is looking ahead to the next domestic terrorist attack with a menu and a map.This month, reports have surfaced about two controversial counterterrorism initiatives in California. In one, Congressional Quarterly's national security editor reported that the FBI had mined data from San Francisco grocery stores to look for spikes in sales of Middle Eastern food that, together with other data, might imply the presence of extremists. In the other, the Los Angeles Police Department is using census and other demographic data to map Muslim communities in order to pinpoint the neighborhoods of potential extremists.
These might look like two new methods for identifying the enemy within, but they are nothing new, and they are not likely to do much but inflame the communities they affect.
The first of them – I suppose we could call it "tahini tracking" – is just a disturbing replay of a 60-year-old mistake.
As I explain in my new book "American Inquisition: The Hunt for Japanese American Disloyalty in World War II," the federal government created a secret system of tribunals in 1943 to decide which of the tens of thousands of Japanese Americans behind barbed wire were "loyal" and which were "disloyal."
Things never got much more sophisticated for these tribunals than the food Japanese Americans ate. Religious and cultural affiliations with Japan scored negative loyalty points; "American" affiliations produced positive ones. Little League baseball coaches got positive points; judo teachers got negative points. Members of Japanese-named organizations got negative points; members of the Rotary Club got positive points. If you were a Buddhist, you got negative points; if you were a Christian, positive.
The system did not deduct points for sushi consumption, but it came awfully close. It equated the most basic components of Japanese religious and cultural identity with danger to national security. Applying this system, bureaucrats condemned more than one out of every four American citizens of Japanese ancestry as disloyal and potentially dangerous. The consequences were prolonged detention behind barbed wire, ineligibility for jobs in war production and, even as the war reached its end, continued exclusion from the West Coast.
The second method, neighborhood mapping, also bears a resemblance to some of the flawed methods of 60 years ago. In the months before Pearl Harbor, the FBI compiled its so-called "ABC lists" of thousands of Japanese aliens identified for arrest in the event of outbreak of war. Many of the men populating those lists were the business, religious and cultural leaders of the Japanese neighborhoods and communities of the West Coast's cities.
To be sure, the Los Angeles Police Department maintains that it is mapping Muslim neighborhoods to help their residents, not arrest them. The idea is to identify hot spots of discontent where extremism might grow, and then to increase social services to those neighborhoods in order to combat radicalization.
In principle, this strategy is sensible. But the residents of these neighborhoods have already seen six years of suspicion and scrutiny, and they are not likely to appreciate the principle. They're likely to see the mapping project as a prelude not to assistance but to repression.
And if some Americans are having a hard time telling bombs from baba ghanouj, who can blame them?
Posted by Eric at 7:54 AM
November 12, 2007
If It Was Torture in Mississippi, Then It's Definitely Torture, Right?
Waterboarding, known ironically in earlier times as "the water cure", remains -- in the view of this administration and many supporters -- not torture. And if it's not torture, then it's not cruel and unusual punishment or a violation of due process.
But here's the rub.
In 1926, the Mississippi Supreme Court called the water cure torture. No qualifiers. No hedging. Just plain, good ol' fashion torture . . . and therefore a forbidden means for securing a confession. These men were hardly a group I'd call *activist* or *liberal* and certainly not bent on subverting our country in the name of coddling criminals.
In a case called Fisher v. State, 110 So. 361, 362 (Miss. 1926), Mississippi's highest court ordered the retrial of a convicted murderer because his confession was secured by a local sheriff's use of the water cure.
Here's the court:
The state offered . . . testimony of confessions made by the appellant, Fisher. . . [who], after the state had rested, introduced the sheriff, who testified that, he was sent for one night to come and receive a confession of the appellant in the jail; that he went there for that purpose; that when he reached the jail he found a number of parties in the jail; that they had the appellant down upon the floor, tied, and were administering the water cure, a specie of torture well known to the bench and bar of the country.
Fisher relied on a case called White v. State, 182, 91 So. 903, 904 (Miss. 1922), in which the court took -- as I understand history in those parts -- the unusual step of reversing the murder conviction of a young African-American male, charged with killing a white man (it appears), because his confession was secured by *the cure*. The court said:
. . . [T]he hands of appellant were tied behind him, he was laid upon the floor upon his back, and, while some of the men stood upon his feet, Gilbert, a very heavy man, stood with one foot entirely upon appellant's breast, and the other foot entirely upon his neck. While in that position what is described as the “water cure” was administered to him in an effort to extort a confession as to where the money was hidden which was supposed to have been taken from the dead man. The “water cure” appears to have consisted of pouring water from a dipper into the nose of appellant, so as to strangle him, thus causing pain and horror, for the purpose of forcing a confession. Under these barbarous circumstances the appellant readily confessed . . .
If "the cure" was seen as a barbarous form of torture in Mississippi in the 1920's, I guess I'm at a loss to understand exactly how our attitudes about the process have progressed to see it as an acceptable means of interrogation 80 years later.
I suppose, in light of this administration's position on waterboarding, that both Fisher and White are teetering on irrelevance. Truly amazing.
Posted by shertaugh at 3:24 PM
Michelle Obama and the "Fear of Possibility"
"What we're dealing with in the black community is just the natural fear of possibility. There's always that doubt in the back of the minds of people of color... that you believe that somehow someone is better than you... I think that it's one of the legacies of racism and discrimination and oppression."It's not clear what Ann thinks of the quote; she has posted it without her own commentary. But her readers are mostly scoffing at it.
Obama's comment seems to me to reflect something that is possible. I have read that one consequence of this nation's institutionalized racism against African Americans is that that community has itself come to internalize some of the negative images that the white majority has imposed on it.
And I've not only read it, but I once heard it, quite directly. It's a moment that shocked me and that I therefore remember quite vividly. It was in September of 2001 -- just a couple of days before 9/11, actually -- and I was in a van on the way from BWI airport to downtown DC for a meeting. There were two other passengers -- an African-American man and an African-American woman who had also flown up from North Carolina but whom I did not know. Both looked to be in their early sixties. They were talking with each other about air travel, and sharing the sorts of complaints that travelers typically share. I was not part of the conversation; I was a row ahead of them.
The man then brought up the subject of some new airline that was then under development and that was to be owned by black entrepreneurs. The woman then said, and I remember her words precisely, "that ain't never gonna work; no way I'm ever going on no plane flown by a black man." The man agreed, and they both laughed heartily.
I couldn't believe my ears at first. And then, when the import of what she'd said sank in, it made me very, very sad.
Maybe this is what Michelle Obama was talking about?
Posted by Eric at 11:56 AM
November 8, 2007
"American Inquisition" Reviewed
Posted by Eric at 10:43 PM
November 7, 2007
"I Could Just Strangle You," Said The Teacher
Really, if waterboarding doesn't shock the conscience anymore, is it any surprise that a teacher strangling an 8th grader for not doing what she said isn't conscience shocking?
Posted by shertaugh at 1:58 PM
November 5, 2007
Lawlessness Rules. So Ordered.
SUPREME COURT OF PAKISTAN, ISLAMABADN O T I C E
It is notified for the information of all concerned Advocates/Advocates-on-Record/litigant public that the Court Programme issued by Dr. Faqir Hussain, Former Registrar on Orders of Former Chief Justice on 03.11.2007 conveying sitting of the Hon’ble Judges stands cancelled and withdrawn. The Revised Court Programme of Hon’ble Judges will follow.
2. This issues with the Order of Chief Justice.
sd/-
(Ms SARAH SAEED)
Acting RegistrarIslamabad. 03.11.2007
Posted by Eric at 9:07 AM
"Due to changed circumstances."
Posted by Eric at 8:52 AM
November 3, 2007
A State of Emergency in America
But in an emergency session, Pakistan's supreme court acted quickly to declare Musharraf's actions unconstitutional. What did Musharraf do? He suspended the justices after they refused to sign new oaths. Musharraf is in command of all parts of that government now. He is Pakistan.
Could what Musharraf did happen here in the United States? Stupid question, you say? Maybe. Maybe not.
In a recent post, I focused on the answer of Bush-nominee for Attorney General Michael Mukasey to the question of whether a president has the constitutional power to indefinitely detain without charges -- meaning no lawyer, no contact with the outside world -- a U.S. citizen seized on U.S. soil solely based on the president's "finding" that this person is an enemy combatant. Mukasey refused to say no.
Wow, I thought. If that's what the Bush administration believes, then -- as my Russian immigrant grandmother used to say -- anything really is possible in America. So Musharraf's action got me thinking.
Consider this. A U.S. president secretly issues an executive order defining "enemy combatants" as any person who presents a clear and present danger of interfering with the defense of the United States in war time. The president does so under his, or her, *inherent* Article II powers to defend the nation as commander-in-chief of the armed forces.
Next, the president determines that a *state of emergency* exists on American soil. He, or she, nationalizes all state national guards and mobilizes the troops at the various military bases around the country.
Then, the president suspends the Constitution under an executive order declaring martial law across the nation.
But wait. The State of Delaware files an original action in the Supreme Court under Art. III, Sec. 2 to declare the president's conduct unlawful. The Justices promptly issue an order, without waiting for any response, holding the president's action a violation of pretty much every clause in the Constitution.
The president then makes a *finding* that the Justices present a clear and present danger to the defense of the people of the United States. The Marines seize them and the Justices disappear.
Why is that so hard to believe? Because America has a Bill of Rights that trump the government's powers? Because in America, we have the rule of law? Because in America, we have elections every four years?
Those certainly have been the *traditions* of America, no? But have not the past six years proven that even grand legal traditions may, one day, have to yield to national security?
Posted by shertaugh at 11:50 AM
November 1, 2007
Online Requests for Information About Holocaust Victims
Posted by Eric at 6:33 PM
And Down the Slope They Come!
I mention this trademark call because the nomination of Michael Mukasey for Attorney General shows me just how far and how fast we are racing down the slippery slope of constitutional liberty toward despotism.
This week, nominee Mukasey responded to written questions from the Senate Judiciary Committtee. Marty Lederman at Balkinization has the nominee's responses here.
Mukasey has been under pressure from Democrat[ ] Senators to state unequivocally that waterboarding is torture.
But it seems to me that the nominee's answer to a different question offers a far more dangerous glimpse at the future.
On pg. 16, the question is asked whether a president -- any president -- has the constitutional authority to imprison indefintely and without charges a U.S. Citizen, seized on American soil, solely on the president's say-so that the citizen is an enemy combatant. Mukasey did not say "no". He wrote this:
I believe that the Supreme Court in Hamdi left this as an open question. . . .
That, sadly, was no answer at all. The Supreme Court was not faced with that question in Hamdi and so had no need to answer it. Clearly, Mukasey was asked.
But he could not muster the courage to say "no, the Fifth Amendment's due process clause bars such lawlessness." He could not say "no" to this administration and "yes" to the Constitution he must swear to uphold.
Perhaps Mukasey was being coy. Perhaps, as with waterboarding, this administration has already seized and imprisoned indefinitely and without charges U.S. Citizens on American soil; but we just don't know about it yet.
But if the answer to that question is "yes," we as a nation will be headed most definitely, and perhaps irreversibly, toward a world of concentration camps and gulags filled with nonpersons and no dissent. Whatever the good intentions of Mr. Mukasey, the road ahead that he's paving with those words leads to darkness.
Posted by shertaugh at 11:28 AM