IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also a lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"
"Relentlessly sensible and often important."
-- Michael Froomkin of "discourse.net"

My daughter Abby asks this question: if a mockingbird were raised in a silent room, would it produce its own song? Or can it only mimic other birds?

Anyone know?

In yesterday's Hamdi/Padilla arguments, I was most taken by Justice Souter's questioning of Deputy Solicitor General Paul Clement about the duration of the detentions. Souter's point, as I understood it, was that even if the congressional resolution that Congress passed just after 9/11 might be read as authorizing presidential detentions of US citizens for some period of time at and after the peak of the crisis, at some point further and more explicit congressional authorization would be required to support long-continuing detention (or new detentions inititated a while after the peak of the crisis). I would imagine that Souter might see such congressional authorization as necessary if only in order to avoid the questionable constitutionality of an unreviewable presidential power to detain citizens indefinitely.

Souter didn't mention it by name, but Ex parte Endo would be helpful precedent for such a position. Endo was the case that brought the incarceration of tens of thousands of American citizens of Japanese ancestry to an end late in 1944. (Most Japanese Americans were not released and permitted to return to the West Coast until '45, however.) In Endo, the Court held that while Executive Order 9066 and its supporting legislation may have supported restrictive action against Japanese Americans in the wake of Pearl Harbor, when the loyalties of Japanese Americans had not been (and, according to the government, could not be) individually determined, the Order and its supporting legislation could not be read to support the long-continuing detention of Japanese Americans who had been determined to be loyal.

Some of Endo's language is quite relevant to today's controversies, and is worth quoting in full:

We do not mean to imply that detention in connection with no phase of the evacuation program would be lawful. The fact that the Act and the 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. At least we may so assume. Moreover, we may assume for the purposes of this case that initial detention in Relocation Centers was authorized. But we stress the silence of the legislative history and of the Act and the Executive Orders on the power to detain to emphasize that any such authority which exists must be implied. If 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.

As I was driving my kids to school this morning, we were listening to our local NPR station, which is running one of its semiannual on-air fundraising drives. As donors began phoning in, the phones started ringing in the background, and I noticed that they were all the metallic-jingly-bell-type ring that phones used to have back when I was growing up. I found myself wondering whether my kids would have any idea at all what all those bells ringing in the background were.

Where else but on NPR fundraisers do we still hear that outmoded ring?

If I kick in a donation, will they maybe buy themselves some new phones?

An absolutely stunning photo essay of a young woman's motorcycle trip through the devastation of Chernobyl. Link via the always interesting Michael Froomkin.

Here's what I don't get about Mohammar Qaddafi.
Why is he still just a colonel?
Don't you think he would have promoted himself to, like, Brigadier General or something by now? At least?

I'll be on the public radio program "The World" tonight, talking about the Hamdi and Padilla cases. We don't get the program here in Chapel Hill, so if you happen to hear it, drop me a line and let me know if I made any sense.

UPDATE: The link to the segment is available here. It's the 7th item down.
I made a little bit of sense.

Today's National Radio Project show "Making Contact" is called "Courage Under Fire: Resistance to War." The show looks at resistance in Rwanda during the nationwide call for genocide in 1994, Japanese American activism during World War II, and the legacy of resistance to the draft and conscientious objection since the Vietnam War.

The show prominently features the story of the several hundred young Japanese American internees who resisted the draft from inside their concentration camps during World War II in order to protest the incarceration of Japanese Americans. It's the story I tell in my book Free to Die for their Country.

Edward Hasbrouck, who resisted registration for the draft when it was reinstituted during the Reagan Administration and was punished for his resistance, also speaks at length about post-Vietnam resistance. Ed is not only fascinating on the subject of resistance, but is also a major international travel guru, a blogger, and a generally good guy. (And he's my first cousin Ruth's partner.)

Give it a listen. It's fascinating. You can find out here whether the show broadcasts in your area. If they post the story on the web in streaming audio, I'll update with a link.

UPDATE: Here's a link to the streaming audio.

You can hear me talking about the Guantanamo cases on the public radio program "The World" if you go here and click on the third link down.

As the Supreme Court takes up the Guantanamo cases, Hamdi, and Padilla, the Justices would be well advised to read (and heed) the words of my colleague Richard Kohn, the former chief of Air Force History and now Professor of History and Chair of UNC-Chapel Hill's Curriculum on Peace, War, and Defense:

The very permanence of the danger accentuates the peril. Our government has stated frankly that the struggle is unlike any we have ever faced and will go on indefinitely. If the judiciary accepts uncritically a state of war which lacks all the normal parameters of location, character and duration as the basis for redefining the relationship between the individual and the state, even without a catastrophic event federal judges may find themselves presiding over a permanent change in the nature of American government, a diminution of freedom, step by small step.

Yesterday, April 18, was Yom Ha-Shoah, the holiday in the Jewish calendar that commemorates the Holocaust.

This is my great-uncle Leopold Muller. He was my grandfather's brother. My middle name, Leigh, comes from the name Leopold.

As you can see, he lost the use of his left arm fighting for Germany in World War I.

The World War I military service didn't do him a whole lot of good when World War II rolled around.

He and his wife Irene, along with the rest of the Jews from the Bavarian town of Bad Kissingen, were deported east from the city of Wurzburg in the spring of 1942. (Source of linked photo: United States Holocaust Memorial Museum.)

Leopold and Irene perished at Izbica, a transit camp in Poland, on the trip to the death camp Belzec.

NYTimes headline: Administration Considers a Post for National Intelligence Director

A stump, a box of rocks, and a sack of hammers also applied, but the post has the inside track.

(Who writes these headlines? The staff of The Daily Show?)

I, for one, would like to know what Red Ted was trying to accomplish in teaching Nazism the other day.

I can think of lots of moods I might be in when teaching about Nazism. Silly ain't among 'em.

Twenty-five years ago this past Tuesday, the body of my buddy John Allore's big sister Theresa was discovered in a ditch near Compton, Quebec.

John remains haunted by the unsolved crime and determined to solve it.

Some might say he's obsessed and should "just move on."

I think what he's doing is admirable.

Visit his blog. Leave him a comment and let him know he's doing something good and noble.

Today, April 15, take some time and go check out Paul Caron's new TaxProf Blog. Even if it means you end up having to file for an extension.

(A blug, by the way, is a plug for a blog. According to me.)

There are calls for Jamie Gorelick to resign from the 9/11 Commission because of her involvement in counterterrorism policy while a Deputy Attorney General in the Clinton Administration.

People don't seem to be citing it much, but the Commission actually has a policy on recusals. It provides as follows:

Commission Guidelines on Recusals

Commissioners, senior staff, and other covered staff have all fully complied with Senate Ethics rules for disclosure of their employment histories and financial information. Beyond this disclosure, the Commission seeks to avoid damaging conflicts of interest in the conduct of its work by respecting three principles:

1. Financial Interests

Commissioners and staff will recuse themselves from participating in matters as to which they have a financial interest.

2. Conflicts Arising from Prior Government Service

Commissioners and staff will recuse themselves from investigating work they performed in prior government service.

3. Personal Connections

Where a commissioner or staff member has a close personal relationship with an individual, or either supervised or was supervised by an individual, the commissioner or staff member should not play a primary role in the Commission interview of that person.

Questions about the application of these principles in specific cases will be resolved by the Commission’s General Counsel.

Under these guidelines, it certainly seems to me that Ms. Gorelick should not be participating in the portion of the Commission's investigation that focuses on law enforcement's role in counterterrorism. I think it would have been wise for her not to be present at the hearing yesterday.

On the other hand, she's a very smart lawyer and her participation in other hearings has, to my eye, been very focused and helpful.

I think the calls for her outright resignation are exaggerated. On the other hand, I think she should confess that she ought not be playing a role in the Commission's law-enforcement-related inquiries, and should recuse herself from all further deliberation on the matter.

This is not me.

But the artwork is pretty.

Authorities have a theory about who al Qaeda's next group of victims in Spain will be.

Both members of the affected group have been notified.

May I just say that after thirty years of hearing "The Night the Lights Went Out in Georgia" on the radio, I still don't understand what actually happened?

Glenn Reynolds approvingly quotes Andrew McCarthy's rant against the Justice Department's "wall" that kept information developed by intelligence agents out of the hands of domestic prosecutors. (This "wall" is the subject of much discussion at today's 9/11 Commission hearings.)

McCarthy says (and Glenn quotes him) that the "wall was . . . a deliberate and unnecessary impediment to information sharing. . . . It told national-security agents in the field that there were other values, higher interests, that transcended connecting the dots and getting it right."

Umm, well, yeah. Those "other values" are little things called "civil liberties," and what makes them "higher" is that they're reflected in the highest law of the land, the Constitution.

If you read this blog, you'll know that I'm no "sky-is-falling" civil libertarian who has howled about everything law enforcement has done since 9/11. But I am very worried by the direction that today's testimony before the 9/11 Commission is taking, and by what seems to be the Commission's emerging self-appointed role to diagnose problems and recommend changes in law enforcement practices.

My concern is this: The Commission is rightly focused on how law enforcement failed to detect and prevent the planned 9/11 attacks. With a mission like that, any impediment to detection and prevention is naturally going to look like a very bad thing. But it is not part of the Commission's mandate to determine why the law might place impediments in the way of detection and prevention of crime. Nor is it the Commission's mandate to care about the appropriate balance between crime prevention and civil liberties.

McCarthy claims (and it seems to be a sub-theme of the 9/11 Commission's staff reports of today) that the "wall" was an "unnecessary impediment to information sharing." What McCarthy does not note, however--and of course, neither does the 9/11 Commission--is the long and shameful history of domestic surveillance and harassment of social and political dissidents and critics of government policy that was facilitated by the blending of intelligence and law enforcement functions.

Has McCarthy never heard of COINTELPRO? Or is he just not bothered by government surveillance of critics of government policy?

McCarthy apparently doesn't worry about abusive law enforcement practices because of what he sees as the "reality that in the law-enforcement realm, because it is hopelessly lawyerized and hyper-vigilant about civil liberties, we actually are forced to worry about such things as the privacy rights of drug dealers." McCarthy is a former federal prosecutor. So am I. He apparently sees the federal law enforcement establishment as "hyper-vigilant about civil liberties." That was certainly not my experience. I don't mean to suggest that the federal prosecutors with whom I worked cared nothing for the rights of those they prosecuted. But I certainly wouldn't call them hyper-vigilant.

As we listen to today's hearings and read the Commission's reports, I desperately hope that people will remember that the Commission is not tasked with hyper-vigilance about civil liberties, or even ordinary vigilance. Anything on the subject of law enforcement that emerges from the Commission's work--and especially any reforms the Commision suggests--will have to lead to a very serious national conversation about the balance of security and freedom. Right now, the conversation is just about security.

George W. Bush was pressing his aides for a link between Iraq and the September 11 attacks on September 12, Richard Clarke told us.

Turns out that InstaPundit beat the President to the punch by almost 24 hours!

I think the 9/11 commission should ask the President whether he read InstaPundit on September 11.

I never thought I'd see the day when a journalist admitted that journalists have no business schmying around in the work of juries.

My hat is off to Daniel Okrent, the Public Editor of the NY Times.

Special exemptions for Saudis to fly around in otherwise locked-down U.S. airspace on 9/13/01, and then out of the country.

Can this story be true?

Folks are starting to chatter about Sen. Christopher Dodd's praise of Sen. Robert Byrd, comparing it to Trent Lott's praise of Strom Thurmond. I thought it might be useful to reprint exactly what Dodd said:

Mr. DODD.
Mr. President, I add my voice as well to my seatmate, if I may. I sit in this chair by choice. Senator
Byrd sits in his chair by choice as well, but he makes the choice before I do. I wanted to find out where he was going to sit so I could sit next to him. I did that because I wanted to sit next to the best, to learn everything I possibly could about the ability of this institution to provide the kind of leadership I think the country expects of us.
Several thoughts come to mind. This is a day of obvious significance in the number of votes that have been cast, 17,000, but it is far more important to talk about quality than quantity. Quantity is not an insignificant achievement, but the quality of my colleague and friend's service is what I think about when the name ROBERT C. BYRD comes to my mind.
I carry with me every single day, 7 days a week, a rather threadbare copy of the United States Constitution given to me many years ago-I can't even read it well now; it is so worn out-I may need a new copy-given to me by *S3541 my seatmate, ROBERT C. BYRD. I revere it. I tell people why I carry it because it reminds me of the incredible gift given to me by the people of Connecticut to serve in this Chamber, to remind me of the importance of an oath we all made, and that is to do everything we can to preserve, protect, and defend the principles upon which this Nation was founded. ROBERT C. BYRD, in my mind, is the embodiment of that goal.
It has often been said that the man and the moment come together. I do not think it is an exaggeration at all to say to my friend from West Virginia that he would have been a great Senator at any moment. Some were right for the time. ROBERT C. BYRD, in my view, would have been right at any time. He would have been right at the founding of this country. He would have been in the leadership crafting this Constitution. He would have been right during the great conflict of civil war in this Nation. He would have been right at the great moments of international threat we faced in the 20th century. I cannot think of a single moment in this Nation's 220-plus year history where he would not have been a valuable asset to this country. Certainly today that is not any less true.
I join my colleagues in thanking the Senator from West Virginia for the privilege of serving with him. He has now had to endure two members of my family as colleagues. Senator
Byrd was elected to the Senate in 1958 along with my father. He served with my father in the House. I have now had the privilege of serving with Senator
Byrd for 24 years, twice the length of service of my father. That is an awful lot of time to put up with members of the Dodd family. We thank Senator
Byrd for his endurance through all of that time.
There is no one I admire more, there is no one to whom I listen more closely and carefully when he speaks on any subject matter. I echo the comments of my colleague from Massachusetts. If I had to pick out any particular point of service for which I admire the Senator most, it is his unyielding defense of the Constitution. All matters come and go. We cast votes on such a variety of issues, but Senator
Byrd's determination to defend and protect this document which serves as our rudder as we sail through the most difficult of waters is something that I admire beyond all else.
I join in this moment in saying: Thank you for your service, thank you for your friendship, and I look forward to many more years of sitting next to you on the floor of the Senate.
I yield the floor.

150 Cong.Rec. S3538-01

On balance, I think the comparison to Lott's praise of Thurmond is fair. What clinches it for me is when Dodd says, "Some were right for the time. ROBERT C. BYRD, in my view, would have been right at any time." Here, I think, Dodd makes clear that, unlike the views of some, which may have seemed right in their moment but were later revealed to be mistaken, Byrd's views have been timelessly correct.

UPDATE: I've now re-read Dodd's comments several times, and I can see a different gloss on his meaning: he may be using the word "right" in the sense of "appropriate and qualified and well-positioned." On this view, Dodd is saying that Byrd had the qualities for greatness as a senator at every moment in American history--not that he would have had the "right" (in the sense of correct or just) views at every moment in American history. That's a more defensible assertion, because certainly people can be "great" even when they're wrong. (It's still an odd thing to say of a member of the KKK. Lots of other senators managed to praise Byrd for his accomplishment of voting 17,000 times in the Senate without making such silly and sloppy paean to Byrd's timeless greatness.)

Yesterday morning, the chief engineer for the Wyoming Department of Transportation sat down to work at an office desk in the middle of the eastbound lane of traffic on Second Street in Casper, Wyoming.

Really.

John Cleese was apparently unavailable.

I heard on NPR that Merle Haggard and Billy Dee Williams share a birthday. It's today. They're both 67.

Will they be celebrating together?

I just learned that poet and nationally syndicated columnist Charles Levendosky passed away in mid-March after a long battle with cancer. He will be missed.

These guys should probably call Click and Clack and tell 'em what the noise sounds like.