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"

Pretend you're a graphic designer. Pretend your assignment is to design a new national flag for an old nation that is now a new nation. Good luck.

Coming to us via SouthNow, North Carolina's own Jesse Helms, who is working on his memoirs, has some words about taxes:

"As right as Bush was on war, Helms says, he’s wrong on taxes. 'I would not have voted for the tax cut, based on what I know. I think he was eager for attention, so the fellow down at the pool hall could say, "Boy, that fellow has guts." There is no doubt that the people at the top who need a tax break the least will get the most benefit.'"

Jane Jacobs agrees. One of the causes of the coming dark age, she argues, is "tax systems that do not distribute money fairly."

I have a yellowing copy of Anthony Lewis' last "Abroad at Home" column for the New York Times (it was after Sept. 11 but I didn't note the date). It concludes, after citing Justice Holmes for saying, "Beyond the vision of battling races and an impoverished earth I catch a dreaming glimpse of peace," like this:

"In the end I believe that faith in reason will prevail. But it will not happen automatically. Freedom under law is hard work. If rulers cannot be trusted with arbitrary power, it is up to citizens to raise their voices at injustice. The most important office in a democracy, Justice Louis Brandeis said, is the office of citizen."

I'm glad that today Mr. Lewis came out of retirement to write this column. Eric will be pleased to see that he contrasts the Supreme Court's opinion in Hamdi with the Court's 1944 decision upholding Roosevelt's order to confine Japanese-Americans. The Court has registered a truly historic "No" to unbridled executive-branch power. Thanks to Citizen Lewis for reminding us how important that is.

every year, i watch a parade of overachieving, socially aware, well-spoken teenagers go through my office. every year, i'm amazed that i ever got into college, if my competition was anything like these kids. i was more interested in dressage and art than in anything that involved thinking beyond myself at that age.

so, a dangling preposition notwithstanding, i'd like to share with eric's readers a short essay written by a 12-year-old. it's impressive in its simplicity and directness.

New texting speed record set

"A Singaporean student appears to have thumbed her way into the Guinness Book of Records after smashing the previous fastest time for text-messaging a 160-character text on a mobile phone."

nope, i'm not talking about trial lawyers. i'm talking honest-to-goodness leeches. the black slimy kind. only the FDA is calling them a "medical device."

i love how things get categorized to fit legislation.

I've been wondering if Cass Sunstein's idea of "constitutive commitments" could be used to apply to dicta, particularly "strong dicta" such as the kind five members of the Supreme Court dispensed with handily the other day in Hiibel. Certainly there is an argument that the corollary to the rule of a Terry "stop" is, or had been understood to be, that the person stopped has a right not to answer. What the majority has chosen to dismiss, writes Justice Breyer for the minority, is "the kind of strong dicta that the legal community typically takes as a matter of law." A five-member majority was not willing to remain faithful to this level of vigilance in protecting a defendant's rights—and so the commitment no longer binds.

Today in Padilla, the same majority of five holds tightly to precedent (admittedly not dicta) in concluding that the case should have been filed in South Carolina against the brig commander who had immediate custody of him. They can find no wiggle room. Justice Stevens, dissenting, wonders why not. He finds "ample precedent for affording special treatment to this exceptional case." He raises questions about timing—about whether the government was straight with Padilla's lawyer about transferring him to South Carolina, which might have resulted in her filing the case in the right forum—and takes the government to task for not being more forthcoming. Conceding that there is evidence that the lawyer knew, before filing the habeas petition, that her client was in South Carolina, Stevens is concerned that the information came from the media, not the government, which "shrouded those facts in secrecy." Once again, the minority opinion points to a "constitutive commitment" that would have worked in favor of a vigilant approach to a defendant's rights.

But all is not lost. The blogosphere is rightly praising the conclusion of Justice Stevens' dissent. (Seems to me like footnote 10, a citation from a 1949 case, Watts v. Indiana, might be a telegraph to the Justice Department: "There is torture of mind as well as body; the will is as much affected by fear as by force. And there comes a point where this Court should not be ignorant as judges of what we know as men.") Ditto the holding of Hamdi--"We hold that . . . due process demands that a citizen in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decisonmaker."

As expected, this morning the Supreme Court issued its opinions in Hamdi, Padilla, and assorted other cases. Here's a cool audio blog from SCOTUSblog on a couple of Miranda-related cases. Hamdi seems like a clear defeat for the administration; Padilla is more puzzling. Until I can get my lame thoughts around that one, see what they're saying on SCOTUSblog and discourse.net.

Moore to turn guns on U.S. health system

"The director and author will attempt to save as many lives as he can by simply intervening with his camera crew during the course of 90 minutes of filming."

Question: if you showed up at the emergency room with Michael Moore at your side, would your chances go up or down?

By now you've seen it, read about it, thought about it as much as you can stand. So you are excused to wander off to something completely different if you like. But this movie is a cultural event that demands a response, even if only cathartic.

Mine is puzzlement at those on either polarized end of the spectrum who say Moore is preaching to the converted. How does that explain Lila Lipscomb, who proudly upheld her military family as part of "the backbone of America" until her son lost his life in the downing of a Black Hawk helicopter. "And for what?" she rightly asks, in a disillusionment that her son, through his last letter, showed that he shared, but too late.

She goes to Washington, to the gates of the White House--with the camera at her back, of course, to the end that a skeptical woman enters the picture and complains that "This is all staged." Well, yes and no. Lila Lipscomb's grief is genuine, as is her change of heart.

Critics of the movie call it propaganda. Then why does it seem so resoundingly consistent with the conclusions of the 9/11 Commission: that there were no meaningful links between Al Qaida and Iraq? Why is there so much static preventing the connections between the Bush family and the Saudi oil family from getting heard?

Last spring, an old college suitemate found me through the internet. She lives in a Dallas suburb and has found Jesus. She was proud to tell me that her son, 17, had decided to enlist, and later, that he was on his way. I sent her a heartfelt wish for his safe return, but other than that, I have left her alone, and vice versa. My heartfelt wish now is that she, and all mothers and fathers like her, and their children, could view this movie with an open mind, ignore the hyperbole, and think about the truth of the story that is told.

"Have you ever noticed how anybody driving slower than you are is an idiot?" --George Carlin

Let's face it: we don't hold ourselves to the same standards that we do everybody else. "When you see other people doing things, you think they are doing it for selfish reasons, but when you do it, you feel you are on morally high ground," says a Rutgers professor. It's called the actor-observer paradox.

Well, he is out of the country . . . but Eric Muller would have been a great person for Adam Liptak of the New York Times to interview for his story of June 25, "Legal Scholars Criticize Memos on Torture." After all, he said on June 9, "Someday, when a full history of this incredible period is written, surely there will be a small chapter devoted to the injury that this Justice Department is inflicting on the role and reputation of the government lawyer."

But Eric has had good company all along, including Jack Balkin and Cass Sunstein, who are interviewed; see the report yesterday on Balkinazation. And today's Times dissects the August 2002 memo in useful detail as front page news, with excerpts, a guide to the timeline with links to prior coverage, and a followup analysis by Liptak. Liptak calls the memo "a seminal legal document guiding the government's thinking on interrogation," despite the White House's disavowals.

See Michael Froomkin for more.

Self-effacing web designer Jason Kotte has a blog that consists almost entirely of links to other blog items--all of them interesting. (There's also a version that has more of himself in it.)

In light of the class action against Wal-Mart, he brings us Jim Hightower on Costco.

And we need to know about the inventor of the Segway's latest: a one-wheeled technologically enhanced scooter.

He also has a column of "not recommended at all" blogs--fortunately neither isthatlegal.org nor any here in Eric's column to the right make that list!

(For the record--I still think "blog" is one of the most awkward, unlovely words in the language, but don't mind me.)

The editor of The Art Newspaper worries that art is letting us down in this time of international crisis. "What has art done to give us an antidote to the terrible images that flashed around the world of the Twin Towers collapsing, of the naked man on a leash in Abu Ghraib, of the American having his throat cut?" she asked in The Independent recently.

The short answer is it's too early to tell. But if she is urging artists to address the political didactically, much as American artists, including writers, did in the 1930s, then I think a longer answer would have to challenge some of her assumptions about the proper ends of art.

Here in Chapel Hill, I'm Reading Lolita In Tehran. This is a thoroughly absorbing account of an American-trained Iranian literary scholar's teaching career before, during, and after the revolution. As her university becomes taken over by the forces of fanatical intolerance, she is at first mystified. She watches as

"America, the place I knew and had lived in for so many years, [was] suddenly turned into a never-never land by the Islamic Revolution. The America of my past was fast fading in my mind, overtaken by all the clamor of new definitions. That was when the myth of America started to take hold of Iran. Even those who wished its death were obsessed by it. America had become both the land of Satan and Paradise Lost."

Mike Gold, the now-forgotten editor of the radical American journal of the 1930s The New Masses--the subject of her Vietnam-era dissertation--she now finds far less relevant than less "political" American writers. And so, while on the one hand her students are negotiating their own relationships with the Iranian Revolution, on the other they are asked to read The Great Gatsby.

This work of art is so troublesome to some of them that they demand a response: a trial. They put the novel on trial! Can it stand up to the moral rigors of the Revolution? No, says the prosecutor. "This book preaches illicit relations between a man and a woman. First we have Tom and his mistress, the scene in her apartment—even the narrator, Nick, is implicated. He doesn't like their lies, but he has no objection to their fornicating and sitting on each other's laps, and, and, those parties at Gatsby's . . . remember, ladies and gentlemen, this Gatsby is the hero of the book—and who is he? He is a charlatan, he is an adulterer, he is a liar . . . this is the man Nick celebrates and feels sorry for, this man, this destroyer of homes!"

The book defends itself by pointing out that the novel allows us to make judgments, principally through Nick, the narrator, who claims at least to be "honest." Through his eyes, we see that indeed the rich are not like you and me—they are "careless." The professor herself speaks for the book: "You don't read Gatsby," she/it said, "to learn whether adultery is good or bad but to learn about how complicated issues such as adultery and fidelity and marriage are. A great novel heightens your senses and sensitivity to the complexities of life and of individuals and prevents you from the self-righteousness that sees morality in fixed formulas about good and evil."

There was no verdict—only heated discussion, which to the professor was the best outcome of all.

The professor (this is, the author; her name is Azar Nafsi) has further thoughts. Jay Gatsby "should never have tried to possess his dream," she concludes. He is so caught up in its romance that he doesn't see the reality until it is too late. "What we in Iran had in common with Fitzgerald was this dream that became our obsession and took over our reality, this terrible, beautiful dream, impossible in its actualization, for which any amount of violence might be justified or forgiven. This is what we had in common, although we were not aware of it then."

At one level this is a political reading, but this novel is not the kind that "teaches peasants to use tractors" and "does a hundred other useful tasks," as Mike Gold prefers. This is a reading of a novel that asks us to confront essential, if old-fashioned, questions about our own motives and values, about choices and consequences--and it doesn't guarantee any answers.

Later in the book Nafsi writes,

"It is said that the personal is political. That is not true, of course. At the core of the fight for political rights is the desire to protect ourselves, to prevent the political from intruding on our individual lives. Personal and political are interdependent but not one and the same thing. The realm of imagination is the bridge between them, constantly refashioning one in terms of the other. Plato's philosopher-king knew this and so did the blind censor, so it was perhaps not surprising that the Islamic Republic's first task had been to blur the lines and boundaries between the personal and the political, thereby destroying both."

Perhaps it requires a position of safety, comfort, and privilege in order to profitably treat literary works dispassionately as political statements. Or perhaps all it requires is a perspective from which the answers are already given. For Nafisi and especially for the young women that she ends up teaching illegally, in secret--how wonderful the image of these women shedding their dark robes and veils to reveal their colorful individuality in Nafisi's living room--the passion is the point, each line of these novels a lifeline.

A WUNC-FM reporter has been to eastern North Carolina to talk politics. In Rocky Mount, she finds a lot of distrust of Kerry and even our own John Edwards. It seems to be "a class thing," she reports today: they feel that Bush is more in touch with the common man.

We've heard this is true, but why? Why can't anyone but a millionare see that Bush is not their friend? I have some ideas, but they're not as helpful as Arlie Hochschild's:

"Paired with this is an aggressive right-wing attempt to mobilize blue-collar fear, resentment and a sense of being lost--and attach it to the fear of American vulnerability, American loss. By doing so, Bush aims to win the blue-collar man's identification with big business, empire, and himself. The resentment anyone might feel at the personnel officer who didn't have the courtesy to call him back and tell him he didn't have the job, Bush now redirects toward the target of Osama bin Laden, and when we can't find him, Saddam Hussein and when we can't find him... And these enemies are now so intimate that we see them close up on the small screen in our bedrooms and call them by their first names.

"Whether strutting across a flight deck or mocking the enemy, Bush with his seemingly fearless bravado--ironically born of class entitlement--offers an aura of confidence. And this confidence dampens, even if temporarily, the feelings of insecurity and fear exacerbated by virtually every major domestic and foreign policy initiative of the Bush administration. Maybe it comes down to this: George W. Bush is deregulating American global capitalism with one hand while regulating the feelings it produces with the other. Or, to put it another way, he is doing nothing to change the causes of fear and everything to channel the feeling and expression of it. He speaks to a working man's lost pride and his fear of the future by offering an image of fearlessness. He poses here in his union jacket, there in his pilot's jumpsuit, taunting the Iraqis to "bring 'em on"–-all of it meant to feed something in the heart of a frightened man. In this light, even Bush's 'bad boy' past is a plus."

This essay was written in Dec. 2003. A possible scenario she imagined is that

"this won't work. For one thing, the war may turn out to have been a bad idea, Bush's equivalent of a runaway plant. For another thing, working men may smell a skunk. Many of them may resent those they think have emerged from the pack behind them and are now getting ahead, and they may fear for their future. But they may also come to question whether they've been offered Osama bin Laden as a stand-in for the many unfixed problems they face. They may wonder whether their own emotions aren't just one more natural resource the Republicans are exploiting for their profit.

"What we urgently need now," she concluded, "is a presidential candidate who addresses the root causes of blue-collar anger and fear and who actually tackles the problems before us all, instead of pandering to the emotions bad times evoke."

Is John Kerry that man?

google news has become my preferred method for getting a quick idea of what's making news across the globe. now, an application called "newsmap" presents that information in a cool graphic format. check it out -- it's pretty neat.

Well! Cass Sunstein has hopped over to Jack Balkin's site as well. But that's not the only reason to visit. See Professor Balkin's excellent post from June 22, on why the next presidential election is so critical: because "it concerns the American Constitution."

"The Bush Administration has promoted a highly controversial constitutional vision of the Presidency. It seeks to push the envelope of presidential power while preventing oversight by the Judicial and Legislative branches of government. This vision of the Presidency is organized around the notion that the Commander-in-Chief can do pretty much whatever he likes in time of emergency, and what constitutes an emergency is determined by the Commander-in-Chief. It is the constitutional equivalent of Bush's repeated declaration that he is a War President and his is a War Presidency, that 9-11 'changed everything' and that the President must be free to do whatever he can to protect the Homeland."

And further,

"If President Bush is reelected in 2004, there is no reason to think that we will not see an even more aggressive attempt to redefine the powers of the Presidency at the expense of accountability and transparency."

Once upon a time we had a president--a Republican, imagine that--who worried, as Catherine Lutz recounts in her pre-9/11 Homefront: A Military City and the American 20th Century, that the growing defense industry establishment would "leave the nation a militarized husk, hardly worth defending."

...what's the point? and i say: huzzah!

a potentially useable naturally decaffinated coffee plant has been discovered. it may be five years before it's commercially produced, though -- five, long years until i can enjoy the full flavor of a naturally decaf brew.

see, according to my doc, i shouldn't have caffeine in my diet. but i love coffee, and most decaf tastes... well, it tastes flat.

Oh wow . . . Cass Sunstein is guest-blogging at the Volokh Conspiracy! He's talking about his forthcoming book on FDR and his Second Bill of Rights. Fascinating stuff.

What interests me about the majority opinion in Hiibel is its rhetorical structure—the way it manages to override, without overruling, Fourth Amendment precedent. Of course, any supreme court is apt to do that, sooner letting itself off the hook than it would an inferior court that attempted the same. But let's take apart what goes on here.

1. The narrative introduction: an "unidentified man" caught in a suspicious circumstance. Eleven times he is asked for his identification, and 11 times he refuses. (In justifying an act of law enforcement against a potential defendant, it's always good to begin with a focus on the danger inherent in the situation.) Here in the highest court, the drama is safely over, the mask removed: "[w]e now know that [he] is Larry Dudley Hiibel."

2. He was arrested pursuant to a Nevada statute that required him to identify himself. Lots of states have "stop and identify" statutes like this, the court notes. They have a solid foundation in the form of (1) the Uniform Arrest Act (dated at or prior to 1942? what is its status now?) and (2) a model ALI code (proposed, not adopted anywhere) that would require not only identification but also "a reasonably credible account" of the person's conduct (though we come to understand further on that at least the latter requirement would be unconstitutional). Moreover, they have historic "roots" (nice organic metaphor) in the old English vagrancy laws, though as we all know, those are usually stricken for vagueness. This one is not vague; it is "narrow" and "precise."

4. With statutory authority thus established, as a secondary inquiry the court turns to the constitutional issues. Terry v. Ohio "permits the officer to stop the person for a brief time and take additional steps to investigate further." Not for several paragraphs do we learn that Terry doesn't require that the person answer the question.

5. This is where it gets really interesting. Every prior suggestion in case law that an answer cannot be compelled, from Justice White's concurrence in Terry to clear statements in later opinions, is "mere dicta," according to the majority.

6. With the troublesome cases dismissed as nonbinding, the court is able to declare this "stop and identify" statute constitutional.

But it is at least arguable that the provision that the person doesn't have to answer the question was integral to the holdings in, for example, Berkemer v. MaCarty, 468 U.S. 420 (1984), Kolender v. Lawson, 461 U.S. 352 (1983), and Illinois v. Wardlow, 528 U.S. 199 (2000). These are cases cited in Justice Breyer's dissent when he says, "There is no good reason now to reject this generation-old statement of the law." (He could have added Florida v. Royer, 460 U.S. 491 (1983), a plurality opinion accompanied by a separate opinion by Justice Brennan that emphasizes the limited reach of a Terry stop.)

Professor Volokh seems persuaded by the majority on the Fourth Amendment argument (though not the Fifth, and I agree with his analysis on that). Or perhaps it's better to say that he doesn't think a serious substantive argument has been made to the contrary. He finds Justice Breyer's dissent lacking a cogent rebuttal to the arguments that the intrusion at issue "isn't very severe" and that an "important government interest" is being furthered.

But surely to Justice Breyer, and Souter and Ginsburg, who joined him, the precedent is the substance:

"The majority presents no evidence that the rule enunciated by Justice White and then by the Berkemer Court, which for nearly a generation has set forth a settled Terry-stop condition, has significantly interfered with law enforcement. Nor has the majority presented any other convincing justification for the change."

If anything, Justice Breyer's argument could have made more forceful use of the rhetoric of this line of cases, beginning with Terry itself, which emphasizes that "[e]ven a limited search . . . constitutes a severe, though brief, intrusion upon cherished personal security." But at least he and two colleagues were not fooled by the rhetorical structure and semantic subtleties of the majority argument. To the credit of Justice Kennedy, its author, four other justices were.

congresscritters claim they were duped into attending a coronation ceremony for the rev. sun myung moon, held in the dirksen senate office building in late march.

how duped can you really be, when it appears that moon is tight with the bush administration?

how odd. and someone out there is interested enough in the topic to run a whole blog devoted to moon's influence inside the beltway. stills and video from the coronation ceremony can be found there.

The world's most difficult word to translate has been identified as "ilunga" . . .

"bizarre political groupings for $600, please."

doris day
estee lauder
vartan gregorian
arnold palmer
pope john paul II
(and seven others)

in all fairness, it's no worse than previous groupings. and it only caught my eye because of vartan. but it's an awfully funny list.

the best vampire movies are over the top. consider murnau's nosferatu, polanski's fearless vampire killers, tony scott's the hunger. and especially whedon's first run through buffy.

unfortunately, the TNT adaptation of salem's lot doesn't rank in my top-flight vamp movies. despite rutger hauer's big bad and donald sutherland as big bad's butt-monkey (hauer and sutherland, together again in a vampire flick!), it was a total snooze. sutherland's wild-haired smarminess, as much fun as it was to watch, couldn't save the movie from unengaging characters, a dreary rob lowe voiceover, and some strange plot changes from the book.

you know a movie's in trouble when the most compelling character is a house. now that was creepy.

Just checking in from on the road.
I see that Sally and Jenny are keeping the place hopping. Far more interesting stuff, in fact, than my usual fare. I hope you're all enjoying!
A tip:
If you ever travel to Toledo, Spain, ditch the hotels and paradors and stay here. It is way cool. An attractively decorated, modern studio apartment with kitchenette in the old city, in a maze of tiny winding cobblestone streets. A real find.

So how did you mark the summer solstice? A far-flung correspondent in Nome, Alaska, reports that swimming in the Bering Sea is a tradition there. "A
hundred miles south of the Arctic Circle, Nome sees the sun set and rise,
but light bending around the top of the globe keeps us in daylight 24 hours." Anne Lowenthal, a scholar in New York City, ritually rotates an abstract painting that's meant to be "right" on all four sides.

Edmund Spenser wrote his "Epithalamion" in 1594. An epithalamion is a poem celebrating a wedding. Spenser's novel twist is that his is to his own bride--and it occurs on the summer solstice: "But for this time it ill ordained was / To chose the longest day in all the yeare / And shortest night, when longest fitter weare."

In case you wondered about that funny-looking bracelet Bill Clinton was sporting last night on Sixty Minutes, here's the story, from an interview in The Guardian:

"We ask him about the red and blue crocheted band around his right wrist--an incongruous clash with the statesman attire. For the first time in the interview he becomes emotional, the voice catching and his eyes redening. 'I've worn it for two years. I went there [to Colombia] and met these unbelievable kids from a village on the edge of the rainforest where the narco-traffickers are dominant,' he says. 'They sang and danced for peace and I fell in love with these kids. I asked them to perform at the White House one Christmas. They came with the culture minister, a magnificently attractive woman called Consuelo. The bad guys hated these kids because they made them look like what they are. The guerillas couldn't kill these children, so they murdered her ... I can still hardly talk about this.

"'Two years ago they asked me back and I said, "I'll come, but you've got to bring those kids to see me." So I turn up--and the children greeted me at the airport, along with the new culture minister--the niece of the murdered woman. And they gave me this bracelet, which I've never taken off.'"

As I sit here on hold with Cigna, my HMO, to try to find out if a clinic I want to be referred to is covered by my plan . . . I pause to emote about the victory of Cigna et al. today in Aetna Health, Inc. v. Dalvila. The court decides unanimously that ERISA preempts patients from suing their employer-sponsored HMO in state court for damages caused by denials of needed coverage. The court holds that the decisions at issue were not medical decisions, they were administrative decisions related to benefit coverage, with health benefits being no different from any other kind of benefits. So much for the "patient rights" of some 72 million Americans!

As Justice Ginsberg points out in a concurrence joined by Justice Breyer, it's up to Congress to summon the will to solve this problem. She joins "the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime."

Any lawyer who has ever tangled with ERISA on any issue can concur with that.

A poem published in today's Raleigh News & Observer by the beloved father of my child, Paul Jones. Enjoy.

I've been to The Mountaintop, and I share the outrage that Bush Asked for Vatican's Help on Political Issues. "It is just unprecedented for a president to ask for help from the Vatican to get re-elected, and that is exactly what this is," said the Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State.

It was even more outrageous for Bush to give the Pope the Medal of Freedom:

"A devoted servant of God, His Holiness Pope John Paul II has championed the cause of the poor, the weak, the hungry, and the outcast. He has defended the unique dignity of every life, and the goodness of all life. Through his faith and moral conviction, he has given courage to others to be not afraid in overcoming injustice and oppression. His principled stand for peace and freedom has inspired millions and helped to topple communism and tyranny."

What kind of response could the Pope give to this appeasing gesture, after he has made his opposition to Bush's war of aggression (not to mention our "prisoner abuse" of late) so well known? A diplomatic one, of course:

"Mr. President, as you carry out your lofty mission of service to your nation and to world peace, I assure you of my prayers and cordially invoke upon you God's blessings of wisdom, strength and peace."

Though the American Christian fundamentalists seem closer in some ways to conservitave Catholics today than ever, there's really not that much in common between our fundamentalist Methodist president and the Pope when it comes to fundamental issues of war and peace.

The truest Christian I know, who happens to be a Methodist, is Stanley Hauerwas--an uncompromising pacifist. He had it right from the beinning, shortly after Sept. 11.

"So [Bush] said, 'We are at war.' Magic words necessary to reclaim the everyday. War is such normalizing discourse. Americans know war. This is our Pearl Harbor. Life can return to normal. We are frightened, and ironically war makes us feel safe. The way to go on in the face of September 11, 2001, is to find someone to kill. Americans are, moreover, good at killing. We often fail to acknowledge how accomplshed we are in the art of killing. Indeed we, the American people, have become masters of killing. In our battles, only the enemy has to die. Some in our military are embarrassed by our expertise in war making, but what can they do? They are but following orders.

"So the silence created by destruction was soon shattered by the need for revenge--a revenge all the more unforgiving because we cannot forgive those who flew the planes for making us acknowledge our vulnerability. The flag that flew in mourning was soon transformed into a pride-filled thing; the bloodstained flag of victims transformed into the flag of the American indomitable spirit. We will prevail no matter how many people we must kill to rid ourselves of the knowledge Americans died as victims. Americans do not die as victims. They have to be heroes."

--Hauerwas, "September 11, 2001: A Pacifist Response," in the South Atlantic Quarterly 101:2 (Spring 2002) (special issue, "Dissent from the Homeland: Essays after September 11").

Not the Lemon laws, though of the same era. Suddenly I remembered why Justice Thomas on the establishment clause confused me: Lemon v. Kurtzman, 403 U.S. 602 (1971), surely still good law, is barely mentioned! Only in a footnote: "We have selectively invoked particular tests, such as the 'Lemon test,'" etc. The plaintiff in Lemon, by the way, was an individual—a parent representing a minor schoolchild (luckily, without custody problems). In order to past muster under this test, a law has to

1) have a bona fide secular or civic purpose,
2) in primary effect neither advance nor inhibit religion, and
3) avoid excessive government entanglement with religion.

Nor does he mention Everson v. Board of Education of Ewing Township, 330 U.S. 1 (1947) (except for a nod to its dissent), which says, for starters, "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion."

Cutting close to the bone for Justice Thomas are the latter-day cases that take the logic farther, up through Lee v. Weisman, 505 U.S. 577 (1992), which he would like to overrule. Lee applies a "coercion" test. The Court here clearly intends to protect the freedom of conscience of the individual:

"The principle that government may accommodate the free exercise of religion does not supersede the fundamental limitations imposed by the Establishment Clause, which guarantees at a minimum that a government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which "establishes a [state] religion or religious faith, or tends to do so."

Justice Thomas pretty clearly tells us that he thinks Lee is bad law. Indeed, he concedes that if Lee is the law, then the plaintiff in Elk Grove (given standing, as he would) should win.

Not satisfied with that, he then makes his next move to say that the establishment clause isn't really incorporated after all. He appeals to history by citing Justice Story (as someone here has already pointed out); and, in an example of constitutional jurisprudence making strange bedfellows, he appeals to Akhil Amar.

This morning, while congressional hearings proceed on the issue of how the attacks of Sept. 11 were dealt with by our military, it's a good time to think about Elaine Scarry. In Who Defended the Country, an essay published (with responses from others) by Beacon Press in 2003, she makes an elegant argument that the citizens who brought down their own plane in Pennsylvania were acting in ways both truer to our democratic ideals and more effective than our highly centralized and authoritarian military was able to do.

What she argues is that we have been led by our government to believe that we have no choice but to sacrifice a certain amount of participatory democracy and due process to the higher military authorities, because that's just the way it is: in our nuclear age, decisions have to be made quickly. When decisions must be made "in a matter of minutes," Constitutional procedures become optional. There is no time for process or deliberation. But is that really the case, Scarry asks. She argues that we need to ask what we are giving up by these arrangements, and whether we are sure it is worth it.

The best way to appreciate her argument is as a metaphor. As a metaphor, I find it very helpful in setting forth the kinds of choices we as a nation have made with regard to our military defense and the likely consequences of those choices in the near and the long term.

You can listen to Scarry speak from her essay in a WGBH forum from last October. The following are some notes I took from it, to get you started.

"For the last 50 years we've talked endlessly about things that have to take place in a matter of minutes. This kind of vocabulary is used descriptively, as in names of weapons, like the 'Minuteman,' and as in terms such as 'supersonic,' 'hair-trigger,' all of which convey great and nimble speed. Very importantly, this vocabulary is also used normatively. Over the past 50 years our arrangements for defense have slipped more and more out of civilian control and become more and more centralized. We no longer have a declaration of war, not since World War II; only shadows of a declaration of war. That kind of slippage is repeatedly justified by saying that there's no time for deliberations, for archaic constitutional procedures. So one of the things that are tremendously revelatory about 9/11 is that the very arguments use to set aside legal, ethical, constitutional considerations--the arguments of speed, and realpolitick—turned out not to be very real at all. Our defense wasn't able to operate in matter of minutes.

"The Pentagon was not able to defend the Pentagon, let alone the rest of the country. This needs to be stated clearly and held firmly in view. The amount of time they had that day was actually large compare to the standards we have used to set aside constitutional procedures. They had more than minutes. One hour and 20 minutes passed between the comment 'we have some planes' (more than one plane) and the moment the Pentagon was hit."

How could an English major forget? Today is Bloomsday, again, 100 years later. Re-Joyce! Go to Dublin for more . . .

Before he absconded, Eric quoted a lovely passage from Roger Angell's essay in the June 7 New Yorker. It is a great essay. I'd like to back up a couple of paragraphs:

"Memory is fiction--an anecdotal version of some scene or past event we need to store away for present or future use. John McCrone, a British science correspondent, writing in a recent issue of the Times Literary Supplement, calls memories 'cognitive reconstructions,' and goes on to say that our brains, though not well evolved for retrospection or contemplation, never give up a reshuffling process in their effort to extract what is general and what is particular about each passing life."

How much of what we know, what we remember, is really a reconstruction? My brother says he never wants children because of the time our younger cousin, a toddler, annoyed him by hugging him when we spent the night with them once. My mother says we never spent the night in that house.

Sunday's NYT had a story about how the "Reagan legacy motivates some born in the 1980s." These twentysomethings were pracically toddlers when their giant roamed the land. One of them "said that Mr. Reagan was accessible to elementary students because of the simple language of his speeches and the sincerity of his tone." How are their memories going to shape, shuffle, and reshuffle our collective future?

as a rising 2L, i'm becoming more aware of the behaviors of law firms, particularly the advertising practices of personal injury lawyers. growing up with parents who have devoted the larger part of their adult lives to women's reproductive health and family planning, i have long been very aware of issues in the world of contraception.

this morning, those two parts of my life collided in a radio advertisement for a personal injury firm that is looking for people who may have adversely impacted by personal or family member use of ortho evra, the contraceptive patch.

the ad trumpeted the first death linked to patch use since the product hit the market in 2001. just think -- if you, or a member of your family has been injured by using the patch, you could be eligible to collect significant financial compensation! the firm's website will tell you all about it.

ortho mcneil has never tried to hide the potential dangers of the patch. in no fewer than two places in their users' pamphlet (and in all package inserts), they state:

"The contraceptive patch contains hormones similar to those in birth control pills. Hormonal contraceptives are not for everybody. Most side effects of the
contraceptive patch are not serious and those that are, occur infrequently. Serious risks, which can be life threatening, include blood clots, stroke or heart attacks and are increased if you smoke cigarettes." (emphasis added)

women's health is an issue near and dear to my heart, and i believe that women have long been abused by the medical and pharmaceutical systems (DES is a good example). however, there are risks with any drugs, and when the risks are well-known and properly communicated by the manufacturer to the doctor, and the doctor to the patient, the patient ultimately assumes those risks. i am angered by what seems to be attorney-encouraged rejection of personal responsibility and the growing acceptance of the idea that "someone must pay." i also worry that the consequences of such advertisements and lawsuits will be a chilling effect on both reproductive services research and the use of contraception.

*sigh* stepping down from the soapbox now.

The day before Reagan's funeral, I had coffee in the gracious Charleston, S.C. home of Jack Bass, author of (among other things) a biography of one of my heros, Judge Frank Johnson. Mr. Bass recalled that the first stop Reagan made as a presidential candidate was in Philadelphia (Neshoba County), Miss. Can that be said? I wondered. Happily, it has been.

Said Derrick Z. Jackson of the Boston Globe:

"His first major speech after receiving the nomination for president in 1980 was delivered at the Neshoba County Fair in Mississippi. Neshoba County was where civil rights workers James Chaney, Andrew Goodman, and Michael Schwerner were murdered in 1964. The county fair was legendary for segregationist speeches and Dixie ditties.

"The fair was a more comfortable fit for Reagan than the mainstream press has ever admitted. On his way to California's governorship, he opposed the Civil Rights Act of 1964 and the Voting Rights Act of 1965. At the fair, Reagan declared, 'I believe in states' rights.'"

Leonard Pitts of the Miami Herald noted the same speech, adding that "another Reagan" is "conspicuous by his absence" from the media showers of late.

Reagan spread sunny, youthful individualism, but it always seemed hollow to me. I prefer Frank Johnson, who said in 1990 that the "welfare of the individual is the final goal of group life," that we have an "obligation to build social institutions designed to guarantee equality of opportunity to all citizens. Without this opportunity, freedom becomes an illusion."

UPDATE: see the most forwarded article on commondreams.org this week, as well as another article calling for "a more nuanced assessment of the former president."

The eagerly awaited Supreme Court decision in the California case on the constitutionality of "under God" came down today in a fizzle. (Elk Grove Unified School District v. Newdow.)

Mr. Newdow, who has been arguing the case on behalf of his daughter, lacks "prudential standing." He has joint custody but his ex, who doesn't support his argument, has legal custody. Since domestic issues are squarely the business of state courts, the Court bows out. But three justices--Rhenquist, O'Connor, Thomas—take this opportunity to defend the offending language. (O'Connor calls it "ceremonial deism.")

At least two things are remarkable about this opinion. One is the quote from a 1942 joint congressional resolution ("the first appearance of the Pledge of Allegiance in positive law") that instructs us in the full proper hand motions:

"That the pledge of allegiance to the flag, 'I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all,' be rendered by standing with the right hand over the heart; extending the right hand, palm upward, toward the flag at the words 'to the flag' and holding this position until the end, when the hand drops to the side."

I'm not quite sure how to picture this motion. Is it like blowing a kiss? or evangelical praise worship? Has anybody living ever seen this done?

The second remarkable thing is that Justice Thomas believes that the establishment clause has not been "incorporated" to reach through the 14th Amendment to produce an individual right to complain against what seems like coercive state-sponsored religion: " Quite simply, the Establishment Clause is best understood as a federalism provision--it protects state establishments from federal interference but does not protect any individual right."

What "state establishments" does he mean? Quite simply, I am confused.

a few weeks ago, my husband and i decided we needed a new car. edward, my trusty (and slightly rusty) '94 wrangler, gets awful gas mileage and isn't particularly child-friendly (yes, we're at the "considering kids" stage). tara, his ultra-comfy '97 e-class, is very expensive to fix and also doesn't get the greatest mileage. enter eco-consciousness, my husband's desire to one-handedly undermine the middle eastern oil economy, and the fact that most of our driving is of the commuter variety.

we test drove both the civic hybrid and the toyota prius. the civic was your basic honda -- everything comfortable, everything where it should be, and entirely without character. the back seats didn't fold down, a definite minus for our lowes habit. the prius was a surprise. although it's a hatchback (something neither of us were really considering), it has great cargo space and a comfortable passenger space. the space-age design of the cockpit was neither here nor there (the joystick gearshift is a bit odd, and the idea that you don't have to actually insert the key to start the car a bit disconcerting). the engine is also almost completely silent -- a big change from my soft-top.

unfortunately, the wait time on the prius is 6-8 months. we should be taking possession of the car by december at the earliest.

do any isthatlegal? readers have experience with the prius (or other hybrids)? they're still scarce enough that there aren't a whole lot of owner reviews online, and i'm curious what people think of the cars.

A front-page story in today's N.Y. Times: "Diversity Plan Shaped in Texas is Under Attack."

"Seven years ago, after a federal court outlawed the use of race in the admissions policies of the state's public universities, the Legislature came up with an answer: It passed a law guaranteeing admission to the top 10 percent of the graduating class from any public or private high school. . . . The law looked like a success.

"But the 10 percent rule, which seemed to skirt the tricky issue of race so deftly, is coming under increasing attack these days as many wealthy parents complain that their children are not getting a fair shake."

This is news?

"The dispute shows how hard it is to come up with a system for doling out precious but scarce spots in elite universities without angering someone."

Indeed.

Lani Guinier had some interesting thoughts on the subject when she spoke recently in Chapel Hill. These are my notes:

"Affirmative action is a means, not an end. The Texas Ten Percent plan is a means, not an end. We have to be willing to question our assumptions and to experiment with alternative means that are necessary to fill in the gaps--so that we are not devoted to protecting our means only.

""The miner's canary is an important metaphor for connecting means to end and connecting to race and the way we rethink the role of race. The experience of people of color in this society is the experience of the canary. We’d better fix the canary! Give it a gas mask. Affirmative action is like the gas mask. But ultimately we have to fix the atmosphere in the mines. That way we are also fixing the atmosphere to benefit the miners.

"Consider [linguist] George Lakoff’s notion of 'reframing.' People think in frames: the frame is your conceptual model. We have framed the canary as a problem and therefore whenever something happens with regard to the canary we pathologize the canary. Every symptom we see, we interpret that as reinforcement of why the canary is inferior. The only way we can change that frame is to reframe.

"Race is the diagnostic tool that enables us to see the problem. It is not the problem. We have to acknowledge that the way we have used race thus far is a decoy. It is a distraction. It is a way to avoid dealing with the atmosphere in the mines. Race in our society becomes the explanation for failure. Beth [someone] interviewed white Little Rock students . . . thirty years later they were disappointed in not having realized the American dream. The American dream is an important narrative that motivates people to seek opportunity. But it is individualistic. If you fail, then you as an individual were a failure. The frame says it’s all about the individual. Then race comes in. so these people think the reason they have not succeeded is that black people stole the American dream.

"This traditional frame is the way in which the affirmative action narrative has been told. White working class people did not get in to the school of their choice. They failed under the rules that the university was applying. So how do they interpret their failure? Black people etc. stole their opportunity to go to school. How do you get out of that frame?

"The challenge for us is that we have to be diligent about reframing the narrative of success and failure and we have to use race not as decoy but as a diagnostic tool. How? Think about the affirmative action narrative. A white working class student doesn’t get in. What they did in Texas when they were told by the 5th Circuit when Hopwood came along [Cheryl J. Hopwood v. State of Texas, 1996], that it was unconstitutional to consider race, they began to reframe. A group of black and Latino activists and legislators and professors started to challenge the frame of merit that was being used not only to reject Cheryl Hopwood but being used to admit most of the students who were in fact monopolizing access to the school. They found that 150 or 10 percent of the high schools were furnishing 75 percent of the freshman seats at the state university. Nationally 74 percent of college students come from the top 25 percent socioeconomic class at the 146 most selective colleges and universities. The top 20 percent is families making $160,000 a year.

"Of the students at the 146 most selective high schools, three percent come from the bottom 25 percent of socioeconomic indicators. Ten percent come from the bottom half of the indicators. Conclusion: public education is a gift from the poor to the rich. Hopwood, Grutter [see University of Michigan Affirmative Action Lawsuit], and others have a complaint. They are from working class families being locked out of this educational opportunity. They simply have the wrong diagnosis of the problem.

"We need to help them understand that this is a problem affecting poor people. The problem is that the standards for so-called merit have enabled those who are already privileged to perpetuate their own privilege in the name of merit. And the danger is not only that they are monopolizing more than they should, but the message they are sending the people who are being rejected. It’s one thing if their goal is simply to use college as a means of perpetuating wealth. Just ask them to submit their tax returns. At least that is honest. Now we use the equivalent, your SAT scores, but SAT scores correlate more strongly with your grandparents’ socioeconomic status than they do with your first-year college grades. We use these scores and we call it merit, so if you don’t get in it’s not that you’re poor, you’re stupid.

"That’s the frame that the people in Texas challenged effectively. They said if 10 percent of the high schools are providing 75 percent of the student body, then why don’t we redistribute that and say anybody in the top 10 percent of any school in the state is eligible.

"That’s the plan that was passed and signed by Gov. Bush. Passed because this group of canary watchers were able to show that what was happening to blacks and Latinos in terms of making it difficult for them to get into college was also happening to poor and working class whites, especially those in rural parts of the state. So you had a coalition being built between urban and rural Texas. The deciding vote came from a Republican legislator who represented a rural district in west Texas because he had been shown that none of his constituents had been admitted to the UT Austin in the period prior to the Hopwood decision.

"This is how to reclaim the public in public education."

Guinier's discussion of the role of admissions policies in helping to shape a democratic populace is continued in "Admissions Rituals as Political Acts: Guardians at the Gates of our Democratic Ideals," 117 Harvard Law Review 113 (2003), which I recommend.

Jest testing with some multicultural poetry:

"Remorse"

A painful sadness
Can't fit big screen TV through
Double wide's front door

"Blaze"

Distant siren screams
Dumbass Vern's been playing with
Gasoline again

"Alone"

Seeking solitude
Carl's ex-wife Tammy files for
Restraining order

"Desire"

Damn, in that tube-top
You make me almost forgeet
That you're my cousin

These (and more!) were sent to me by Lee Smith, who admires them but hasn't the slightest idea whose literary jewels they are.

--Sally

Unsure that he has yet done enough damage to the rule of law, Professor John Yoo now elaborates on his views in the L.A. Times. Michael Froomkin takes him to pieces.

This guy needs to learn to quit when he's behind.

I'm very pleased to introduce you to two very talented people who will be guest-blogging here at IsThatLegal for the next three weeks. (I'll be pretty much absent on travel, although I hope to check in from time to time from the road to make sure the place is still standing...)

Jenny Foreit is a fellow graduate of Brown University, a law student, and the owner of two neurotic cats, and says she's
"perpetually befuddled by the goings-on in her home city of DC." This is a good place to share befuddlement! Oh, and she's also an established blogger herself: her regular place is over here.

Sally Greene is an attorney who lives here in Chapel Hill and, among many other things, a member of the Chapel Hill Town Council. Exactly 20 years ago, she graduated from GWU Law school. She chose GW over Georgetown because as a night student she feared she wouldn’t be able to find a parking place there. Only too late did she learn that Georgetown’s law school is on Capitol Hill, on the Metro. For this failure in basic researching skill she has been trying to compensate ever since. It meant that rather than cutting her professional teeth on the wisdom of Mark Tushnet and in the early days of Critical Legal Studies, she learned the ropes of government procurement law. This was just as well since her first job was doing government contract litigation for Ross Perot’s computer company, EDS. She gave it three years and still didn’t like it a bit. So she came to UNC-Chapel Hill and got a Ph.D. in English. She published a collection of essays on Virginia Woolf, who remains her personal and political hero.

In addition to serving on the Chapel Hill Town Council she practices a little law, but her heart is still in legal and academic research.

I leave you in good hands. See you (if not sooner) in July!

Kyron Huigens and Kim Ferzan over at Punishment Theory are nicely dissecting the criminal law portion of the DoD Torture Memo, just as Michael Froomkin did with the portion of the memo dealing with presidential power.

I share much of Kyron and Kim's specific disagreement with the analysis of criminal intent and self-defense. But something much broader troubles me as well. It is the "feel" of this section of the memorandum--the sense in which the author is pushing doctrine into areas where it has never before gone, lifting abstract principles from a hornbook and then massaging and manipulating them into a theory that justifies torture. (Note, by the way, that the memo is developing a claim that torture is justified--that is, the right and moral thing to do--and not merely a claim that torture might, under certain conditions, be excusable--that is, a wrong and immoral thing for which a perpetrator may nonetheless be pardoned.)

This is the sort of thing one might expect to see a young lawyer do in a "brainstorming" sort of memo--and that one would expect to see a more senior lawyer react to by saying, "Very creative. I like how you're thinking outside the box. But none of this is going to fly in the real world. Please go back and rewrite this into something we can actually use."

The memo is marked "draft"--so maybe all of this too-clever manipulation of hornbook law ended up in the back of a filing cabinet of non-starter ideas. Somehow I don't think it would have been leaked if that were true, though.

Do the authors of this memorandum not realize that if we get to spin criminal law theories from whole cloth, others do too? Maybe there's a memorandum in the al Qaeda files somewhere that lays out a case for an attack on the World Trade Center and the Pentagon, on the theory that the United States is an "aggressor" and an attack on the United States is therefore "necessary" to repel our aggression. Or that American policy in the Middle East is a greater harm that the lesser harm of an attack on the United States would avert.

Crazy, you say? Sure. But if we get to manipulate legal doctrine, so does everybody.

UPDATE: Well, it turns out there is an al Qaeda memo.

Just remember: It's the Democrats who use a politician's death and funeral for political advantage. Right? (That's the link to the official Bush/Cheney website.)

Thanks to buddy Brad for pointing this out to me.

Curmudgeonly Clerk takes Michael Froomkin and Kevin Drum to task for implying that there's something uniquely and unprecedentedly evil going on in the Bush Administration. Straying, I must say, onto my home field, Clerk notes that the Roosevelt Administration (among other things) placed more than 100 thousand Japanese Americans into camps during World War II. Clerk doesn't defend this episode, but says it shows that "the Bush administration's alleged wartime moral failings are [neither] unprecedented [nor] unique."

For a moment, though, let's confine our focus to the Justice Department. In that Department we are seeing unique and unprecedented moral failings. No episode reveals this more clearly than FDR's treatment of Japanese Americans.

Under the leadership of Francis Biddle, FDR's Attorney General, the Justice Department opposed the eviction and incarceration of American citizens of Japanese ancestry. Biddle's top assistants went toe-to-toe with the War Department's top brass, and ultimately the War Department won the fight. But the Justice Department fought the plan, stated in no uncertain terms that they thought the plan illegal and unnecessary, and wanted no part in the evacuation or in the enforcement of exclusion orders that they viewed as unconstitutional. Take a look at the words of Attorney General Biddle here (you have to scroll down a little bit to the entry for Biddle).

The leadership of this Justice Department, by contrast, appears to have been only too eager to provide Defense and the President with a rationale for whatever they wanted to do.

For many of us who are lawyers, these are unique and unprecedented failings in a department that is supposed to protect the rule of law.

My favorite (and I use that word loosely) sentence from the DoD memorandum:

"Moreover, we think that pushing someone to the brink of suicide (which could be evidenced by acts of self-mutilation), would be a sufficient disruption of the personality to constitute a 'profound disruption' [within the meaning of the federal anti-torture statute]." (page 16)

Really? Ya think?

Good God!
A committee of high-ranking attorneys for the government of the United States of America wrote this!
What is happening to us?
How can we stop it?

Someday, when a full history of this incredible period is written, surely there will be a small chapter devoted to the injury that this Justice Department is inflicting on the role and reputation of the government lawyer.

I know we've all grown accustomed to the idea that the ambulance-chaser who advertises on the back cover of the phone book lacks a moral compass. There's not a whole lot of damage to the image of the private attorney in our society that this crew at DOJ can do that we as a profession haven't already done to ourselves.

But the government lawyer -- that's a different story. Or was.

Remember: Attorney General Francis Biddle insisted to President Franklin Roosevelt that the War Department's plan to evict and incarcerate American citizens of Japanese ancestry was illegal and unnecessary. The Justice Department's two top leaders resigned rather than carry out President Nixon's order to fire the late Archibald Cox.

How can we square such stories of courage and independence with this Justice Department's sorry efforts to provide a legal theory that would justify torture?

The Washington Post gets it entirely right:

"There is no justification, legal or moral, for the judgments made by Mr. Bush's political appointees at the Justice and Defense departments. Theirs is the logic of criminal regimes, of dictatorships around the world that sanction torture on grounds of "national security." For decades the U.S. government has waged diplomatic campaigns against such outlaw governments -- from the military juntas in Argentina and Chile to the current autocracies in Islamic countries such as Algeria and Uzbekistan -- that claim torture is justified when used to combat terrorism. The news that serving U.S. officials have officially endorsed principles once advanced by Augusto Pinochet brings shame on American democracy -- even if it is true, as the administration maintains, that its theories have not been put into practice."

I haven't yet had time to read the DoD memo carefully; real life keeps intervening somehow. But it's hard to imagine I'll have much to say about it that Michael Froomkin hasn't already said.

Marty Lederman sent me this nifty little bibliography on the legal questions, which I pass along to you. You'll need Westlaw, Lexis, or a law library to find these sources:

John T. Parry & Welsh S. White, INTERROGATING SUSPECTED TERRORISTS: SHOULD TORTURE BE AN OPTION?, 63 University of Pittsburgh Law Review 743 (2002)

John T. Parry, WHAT IS TORTURE, ARE WE DOING IT, AND WHAT IF WE ARE?, 64 University of Pittsburgh Law Review 237 (2003)

Sanford Levinson, "PRECOMMITMENT" AND "POSTCOMMITMENT": THE BAN ON TORTURE IN THE WAKE OF SEPTEMBER 11, 81 Texas Law Review 2013 (2003)

Seth F. Kreimer, TOO CLOSE TO THE RACK AND THE SCREW: CONSTITUTIONAL CONSTRAINTS ON TORTURE IN THE WAR ON TERROR, 6 University of Pennsylvania Journal of Constitutional Law 278 (2003)

Marcy Strauss, TORTURE, 48 New York Law School Law Review 201 (2003/2004)

Alan Dershowitz, THE TORTURE WARRANT: A RESPONSE TO PROFESSOR STRAUSS, 48 New York Law School Law Review 275 (2003/2004)

John Yoo and John Ashcroft, TORTURE, SCHMORTURE: THIS SORT OF KVETCHING JUST HELPS TERRORISTS!, 1 Baghdad University Law Review 55 (June 2004).

(OK, OK, so I made the last one up. So sue me.)

Here, in pdf format, are the first 56 pages of the Working Group Report on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations, dated March 6, 2003. (It's a big file. 56k-dialup types beware!)

This is the report about which The Wall Street Journal reported yesterday, and about which Phil Carter, among others, has written.

I'm going to try to read it this evening, and maybe I'll have something to say about it later. Or tomorrow. But why read me, when you can read it yourself?

UPDATE: Actually, it looks like msnbc/newsweek beat me by a half hour. And they've got the whole thing, not just the first 56 pages. It's linked here.

The important Wall Street Journal to which Phil Carter drew our attention this morning is now available without a subscription here.

Read it.

Much is being said about it in the blogosphere, but I'd just like to harp on two things.

(1) The article reports that Justice Department lawyers reviewed this opinion on specific interrogation practices in or before April of 2003. Deputy Solicitor General Paul Clement told the Supreme Court that the Executive did not engage in "mild torture" or "things of that nature" in April of 2004. We now have further evidence that this was a false representation by DOJ. The memorandum described in the WSJ article carefully parses what does and does not amount to "torture" technically defined -- so when the Justice Department told the Court that DOJ does not engage in "mild" torture "or things of that nature," this was at the very least grossly misleading, and more likely recklessly false. (I say "recklessly" because there's still no reason to think that Clement himself actually knew what he was saying was false. But if he didn't know, he certainly could and should have known.)

(2) How any constitutional lawyer could maintain that the President had the authority to authorize these sorts of practices that (even in the eyes of the administration's own lawyers) skate up to the edge of torture (and in my eyes go far beyond the edge) without some sort of congressional authorization is quite simply beyond me.

Devoted IsThatLegal readers may recall my quixotic efforts to use the Freedom of Information Act to learn about the potential involvement of DOJ's and other branches' lawyer's roles in approving of interrogation tactics that amount to torture.

I got my first response today! A lovely letter, from Robert P. Richardson at the Defense Intelligence Agency:

Dear Mr. Muller:
We have received your Freedom of Information Act request regarding the interrogation of individual [sic] suspected of association with the Taliban, Al Qaeda and/or enemy forces in the War in Iraq since September 12, 2001 and assigned it case number XXXX-XX. Please use this number in all future correspondence with us about this matter.
There is a substantial delay in processing requests, and it is impossible for us to forecast when your case will be completed. We solicit your patience and understanding and assure you that we will process your request as soon as possible.
Sincerely,
ROBERT P. RICHARDSON
Chief, Freedom of Information Act Staff

Does this mean I should stop holding my breath?