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Saturday, June 14, 2008
Are "White Shoe" Law Firms "Conservative"?:
There is a prevalent myth that large law firms, especially old, "white shoe" firms, are bastions of patrician conservatism. This may have been true forty years ago, but the evidence suggests that the vast majority of big law firms are firmly, institutionally, on the Left, whether judged by the political content of their pro bono work, the voting and contribution patterns of their partners, or their willingness to embrace politically correct agendas, such as racial preferences in hiring. Walter Olson offers a case in point: Clifford, Chance honoring heroes of the radical left. AmLaw Daily reports that "Clifford Chance sponsored the book party on the advice of a consultant who advises the firm on art and diversity," the very existence of which should tell you something.
As an aside, given that several of the honorees were PLO propagandists, back in the days when the PLO didn't even pretend to want a peaceful settlement with Israel, I wonder whether the diversity consultants considered the sentiments of Jewish partners and associates. (The PLO folks may or may not have been treated unfairly, I'm not familiar with the relevant story, but merely fighting a First Amendment battle successfully does not make you a "hero" worthy of having your picture in the lobby of Clifford, Chance. Or should I be sending the firm photos of the Nazis who won the Skokie case, for proud display?)
UPDATE: As a further aside, do you think any major law firm is going to honor the Boy Scouts of America as heroes of the First Amendment for winning what I think is one of the most important First Amendment cases of the last two decades, Boy Scouts of America v. Dale? No? Actually, it's almost unthinkable, despite the BSA's overall "mainstreamity". That, combined with Clifford Chance's honoring "heroes of the radical left" for their First Amendment battles, should give readers an idea of how "conservative" big law firms are.
What to Watch for in DC v. Heller:
That's the topic of an excellent analysis by Prof. Michael O'Shea, of the Oklahoma City University School of Law. Professor O'Shea and I will both be contributing articles to forthcoming symposium on Heller in the Syracuse Law Review.
Friday, June 13, 2008
More on Kozinski:
I don't have a great deal more to add to what Eugene [and Larry Lessig] have already said about this; there's nothing here that impugns Kozinski's status as a judge (or should cause him to recuse himself from an obscenity trial), and I agree that we should let the private story and its private embarrassments die. But there's one interesting angle here, that I haven't heard anyone comment on. This past March, I spoke at a very interesting conference at UC Santa Clara Law School, on law and cyberspace and virtual worlds and the like, and Judge Kozinski was the keynote speaker. I was really looking forward to hearing him; we had never met, though I've always been something of an admirer of his, and think of him as certainly one of the more interesting, and capable, members of the federal judiciary. Plus, I knew enough about him to know that at least we'd be entertained, if not necessarily enlightened, by his talk.
Judge Kozinski's talk centered on the increasing difficulty, these days, of finding and navigating the line between what is private and what is public. I don't have his text in front of me [I believe it will be published in the Santa Clara Computer and High Technology Law JOurnal, along with the other symposium stuff], but the examples I recall him focusing on included Google Earth [he described, vividly, Barbra Streisand's discomfort at discovering that her carefully hidden home was basically available for all to peer into through this little piece of software), and he also spent a fair bit of time decrying the habits of those who feel no compunction whatsoever about revealing, while talking on a cell phone at high volume in a public space, pretty intimate details of their lives to total strangers who happening to be, say, sitting in the airplane seat next to them. He also talked at some length about the fuss he made, as Chief Judge of the 9th circuit, when he found out that federal agents were routinely monitoring the Internet traffic into and out of the federal courthouse buildings, and about his role in getting that to stop.
In truth, I found the talk a little disappointing -- a little on the whiny side about the cell phones, a little too much on the theme of "things were a lot better in the old days." But that's neither here nor there; the talk does look different in light of recent events. The story here, to the extent there is a story, is precisely "about" the difficulty of navigating between private and public spheres, and in particular about Judge Kozinski's confusion (which, I hasten to add, he shares with millions of people) about what, on this "internet" thing, is private, and what isn't. Had he done what millions of people do -- store photos, some salacious and some not, on their hard drives, or in hard-copy in a locked file cabinet -- then there is, of course, no story here at all. You wouldn't think it would matter that he chose a different storage medium -- a "private" (or is it "public"?) webpage -- for those photos, but in some ways it does matter, and I think Kozinski was, as he seemed to be indicating back in March, quite genuinely confused on the matter -
Sometimes A Picture Really Is Worth A Thousand Words:
My co-blogger Jonathan Adler earlier noted the quite puzzling decision by Ohio state court judge James Burge blocking the state's death penalty. After seeing the picture accompanying the USA Today's coverage of the decision, however, I think I understand. (Hat tip: Bench Memos)
Legal Right to Physically Discipline One's Children:
An interesting 4-to-1 decision from the Indiana Supreme Court. Here are the facts: Sophia Willis is a single mother raising her eleven-year-old son, J.J., who has a history of untruthfulness and taking property belonging to others. The events at issue in this case began at an elementary school Friday, February 3, 2006. On that date J.J.’s fifth grade teacher, Ms. McCuen, saw J.J. giving a bag of women’s clothing to a classmate. Finding this to be an “odd exchange,” Ms. McCuen contacted J.J.’s mother. Willis met with Ms. McCuen and identified the clothing as hers.
Experiencing ongoing disciplinary problems with J.J., Willis sent him to her sister’s home over the next two days to ponder her options. When J.J. returned on Sunday Willis had a long conversation with her son and questioned him about his conduct. J.J. denied taking the clothing and instead concocted a story that shifted blame to other students. Willis warned that if he did not tell the truth he would be punished. J.J. again gave the same story. In response Willis instructed J.J. to remove his pants and place his hands on the upper bunk bed. J.J. complied, and Willis proceeded to strike him five to seven times with either a belt or an extension cord. [Footnote: The evidence on this point is in conflict.] Although trying to swat J.J. on the buttocks, his attempt to avoid the swats resulted in some of them landing on his arm and thigh leaving bruises. J.J. testified that during this exchange his mother was “mad.” Tr. at 9. Willis countered that she was not angry but “disappointed.”
The following Monday J.J. returned from gym class and asked to see the school nurse. Showing the nurse the bruises, J.J. told her that he received a “whooping” from his mother “[b]ecause I had took some clothes and I had lied.” The nurse contacted child protective services that in turn contacted the Indianapolis Police Department. Willis was tried in a bench trial for felony child battery; the judge convicted her, but exercised his discretion to treat the crime as a misdemeanor, and sentenced Willis to eight days in jail plus 357 days probation.
The Indiana Supreme Court reversed the conviction. The court agreed with lower courts that the "legal authority" defense recognized by an Indiana statute covered reasonable corporal punishment of a minor, and tried to clarify the scope of the defense: [We adopt the Restatement (Second) of Torts view:] “A parent is privileged to apply such reasonable force or to impose such reasonable confinement upon his [or her] child as he [or she] reasonably believes to be necessary for its proper control, training, or education....In determining whether force or confinement is reasonable for the control, training, or education of a child, the following factors are to be considered:
(a) whether the actor is a parent;
(b) the age, sex, and physical and mental condition of the child;
(c) the nature of his offense and his apparent motive;
(d) the influence of his example upon other children of the same family or group;
(e) whether the force or confinement is reasonably necessary and appropriate to compel obedience to a proper command;
(f) whether it is disproportionate to the offense, unnecessarily degrading, or likely to cause serious or permanent harm. We hasten to add that this list is not exhaustive. There may be other factors unique to a particular case that should be taken into consideration. And obviously, not all of the listed factors may be relevant or applicable in every case. But in either event they should be balanced against each other, giving appropriate weight as the circumstances dictate, in determining whether the force is reasonable....
Thus, to sustain a conviction for battery where a claim of parental privilege has been asserted, the State must prove that either: (1) the force the parent used was unreasonable or (2) the parent’s belief that such force was necessary to control her child and prevent misconduct was unreasonable.
The court then went on to apply the factors and conclude that the force used was reasonable, because (1) J.J. was eleven (rather than younger), (2) "most parents would likely consider as serious their eleven-year-old child’s behavior in being untruthful and taking property of others" and "a parent might consider that such behavior could set the stage for more aberrant behavior later in life" (especially where, as here, the child was already "not a first offender"), (3) Willis "used progressive forms of discipline," including "send[ing] J.J. to his room, ground[ing] him, [and] withhold[ing] privileges such as television, games, and time spent outdoors," and swatted him with the belt or electric cord only when these had failed, and (4) the punishment wasn't degrading, likely to be seriously harmful, or disproportionate to the offense.
In any case, an interesting case on a difficult legal question. I'm not sure how helpful the test the court announces will be, but I'm not sure how the court could have done better.
Kozinski:
I've tried to avoid blogging about the Judge Kozinski story, because I'm so obviously biased on the subject. I clerked for the Judge. The Judge officiated at my wedding. I talk to him often. I consider him a close friend, he's taught me a huge amount, and he's helped me tremendously in my career, and not just by giving me a valuable credential. What I say on the matter will naturally and properly be discounted because of my bias. Still, I can't help myself any longer, so I'll pass along what I think, and you can give it whatever credit you think is due.
Here's what seems to me to have happened:
A lawyer (Cyrus Sanai) who has long had a grudge against Judge Kozinski finds out that the Kozinski family has a network server with various files on it. The controversial files on that server aren't linked to from the Web, and aren't indexed on search engines. They are generally meant only for family members and a few other people who get specific pointers to them. [UPDATE: Patterico reports that the directory's index was available on Yahoo, though apparently not Google, deep in the results of a search for "alex.kozinski.com"; I presume this was because of some error in kozinski.com's robots.txt file. The lawyer, though, didn't find the files this way, and the files themselves weren't indexed.]
But the lawyer figures out the private server's internal directory structure, rummages around, finds some of the files, and downloads them. And some of the files contain what is basically — if what I saw at Patterico's site is representative — visual sexual humor. There are some spoofs, for instance of the MasterCard commercials, some puns, some absurdities. Kozinski, or someone in his family, apparently got them sent to him, and decided to save them alongside a bunch of other stuff he found interesting or amusing.
Now the fruit of this disgruntled lawyer's rummaging through someone else's personal files somehow becomes a national news story. Why? Because Kozinski is presiding over an obscenity trial? All this stuff — the sort of sexual humor that gets circulated all the time — is not remotely in the same league as what the defendant is being criminally prosecuted for. Recall that the defendant is being prosecuted precisely because his sex-and-defecation movies are so far out even by modern standards of actual pornography. Sanai's discoveries are similar to someone's finding that a judge who's presiding over a drunk driving trial has some screw-top bottles of rosé wine in his cupboard at home, shamelessly displayed in a way that the whole world can see them, if the whole world stands on its tiptoes and peers through a back window. The news value of that would be what, exactly? (Yes, I know screw-tops are becoming legit, but pretend it's ten years ago.)
OK, people are saying, it was careless of Kozinski not to make sure that the site (which was apparently managed by one of Kozinski's grown sons) was properly secured. Sure, in retrospect, whenever something leads to this sort of media circus, by definition one would have been wise to take more care to prevent it. But surely even otherwise reasonable people might fail to plan for their enemies' rummaging around through the files on a private family server.
It's kind of like your parking your car on the street, locking it, but forgetting to close a back window — or like your throwing out something in the trash without shredding it and leaving the trash cans by the curb. Then someone who has a grudge against you comes by and starts using the open window to rummage around in the stuff you have piled up in the back seat, or starts rummaging through your trash. (Note that to my knowledge such rummaging probably isn't even a crime in many places.)
Lo and behold, one of the items your enemy finds is a notebook in which you've pasted some visual sex jokes that people have sent you. He takes pictures of all the pages and then runs to the newspaper; because of your high-profile job, the newspapers all cover this. Should you have closed the back window? Should you have shredded the stuff before putting in the trash? In retrospect, sure. But how many of us live like that in everything we do?
Jeez, folks, Kozinski has a quirky sense of humor, and keeps some joke pictures and videos on his computer rather than throwing them away. I'm sure they aren't the kinds of things some people would enjoy seeing. But he wasn't trying to show them to those people! He was just minding his own business, keeping some files on his own private server. And now it's a national news story.
Enough already. As Larry Lessig puts it, no-one should be put in the position of "hav[ing] to defend publicly private choices and taste" in a situation like this. We should all leave Kozinski to his own privately expressed sense of humor, as we'd like the world to leave us to ours.
Lessig on the Kozinski Kerfuffle
Larry Lessig has a blog post on what he calls, The Kozinski Mess, by which he means "the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel - and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage."
Here is how he explains the situation: Here are the facts as I've been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski's son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.
Cyberspace is weird and obscure to many people. So let's translate all this a bit: Imagine the Kozinski's have a den in their house. In the den is a bunch of stuff deposited by anyone in the family — pictures, books, videos, whatever. And imagine the den has a window, with a lock. But imagine finally the lock is badly installed, so anyone with 30 seconds of jiggling could open the window, climb into the den, and see what the judge keeps in his house. Now imagine finally some disgruntled litigant jiggers the lock, climbs into the window, and starts going through the family's stuff. He finds some stuff that he knows the local puritans won't like. He takes it, and then starts shopping it around to newspapers and the like: "Hey look," he says, "look at the sort of stuff the judge keeps in his house."
I take it anyone would agree that it would outrageous for someone to publish the stuff this disgruntled sort produced. Obviously, within limits: if there were illegal material (child porn, for example), we'd likely ignore the trespass and focus on the crime. But if it is not illegal material, we'd all, I take it, say that the outrage is the trespass, and the idea that anyone would be burdened to defend whatever someone found in one's house.
Because this is in many ways the essence of privacy. Not the right to commit a crime (though sometimes it has that effect). But the right not to have to defend yourself about stuff you keep private. If the trespasser found a Playboy on the table in the den, the proper response is not to publish an article reporting this fact, and then shift the burden to the home owner to defend the presence of the Playboy (a legal publication, harmless in the eyes of some, scandalous in the eyes of others). The proper response is to give the private party the benefit of privacy: which is, here at least, the right not to have to explain.
This analogy, I submit, fits perfectly the alleged scandal around Kozinski. His son set up a server to make it easy for friends and family to share stuff — family pictures, documents he wanted to share, videos, etc. Nothing alleged to have been on this server violates any law. (There's some ridiculous claim about "bestiality." But the video is not bestiality. It lives today on YouTube — a funny (to some) short of a man defecating in a field, and then being chased by a donkey. If there was malicious intent in this video, it was the donkey's. And in any case, nothing sexual is shown in that video at all.) No one can know who uploaded what, or for whom. The site was not "on the web" in the sense of a site open and inviting anyone to come in. It had a robots.txt file to indicate its contents were not to be indexed. That someone got in is testimony to the fact that security — everywhere — is imperfect. But this was a private file server, like a private room, hacked by a litigant with a vendetta. Decent people — and publications — should say shame on the person violating the privacy here, and not feed the violation by forcing a judge to defend his humor to a nosy world.
When it comes to government invasions of our privacy, we are (and rightly) a privacy obsessed people. We need to extend some of that obsession to the increasingly common violations by private people against other private people. There is nothing for Chief Judge Kozinski to defend because he has violated no law, and we live in a free society (or so he thought when he immigrated from Romania). A free society should feed the right to be left alone, including the right not to have to defend publicly private choices and taste, by learning not to feed the privacy trolls. (Hat tip to Glenn)
Thirty-three years ago today,
on a Friday the 13th (like today), my family, including Eugene and me, left the Soviet Union.
How the Irish Saved Civilization, Again
The Irish Times reports that the Lisbon Treaty has been defeated in a referendum held in the Republic of Ireland. The Lisbon Treaty is a new version of the proposed EU Constitution, which had previously been rejected by the voters of the France and the Netherlands. This time, the French and Dutch governments refused to allow a popular vote. In the U.K., the Labour Party had promised a referendum, but that promise was broken. Former French President Valery Giscard d'Estaing explained: "Public opinion will be led to adopt, without knowing it, the proposals that we dare not present to them directly... All the earlier [EU Constitution] proposals will be in the new text [Lisbon Treaty], but will be hidden and disguised in some way."
Treaty proponents lamented that Ireland, with only 1% of the EU population, could derail a 27-nation treaty. But the very fact that only 1% of the EU's population was allowed to vote on a treaty which would massively reduce national sovereignty and democratic accountability was itself an illustration of the enormous "democratic deficit" of the EU in general, and the Lisbon Treaty in particular. According to French President Nicolas Sarkozy, the Lisbon Treaty would be defeated in every EU nation if referenda were allowed.
The referendum debate in Ireland involved some Irish-specific issues, such as the Treaty's impact on farmers, its threat to Ireland's official foreign policy of neutrality, and the danger that Ireland might be forced to raise its low corporate income tax rate of 12.5% (which almost everyone agrees has been an essential part of the economic success of the Celtic Tiger). But the broader opposition seemed to stem from the sheer incomprehensibility of the Treaty. Even Taoiseich (Prime Minister) Brian Cowen admitted that he had not read the Treaty, which is over 400 pages long and deliberately written to be obscure. Treaty proponents included both of the two largest political parties (Fianna Fail and Fine Gael), and they appealed to the Irish people's strong support of trade with Europe, and to Ireland's optimistically internationalist orientation.
A group named Libertas was formed to lead the opposition, and Libertas agreed with the principles of international trade and Ireland's integration into Europe. But Libertas was successful at convincing Irish voters that the Treaty was perilous threat to the democratic sovereignty which is the glory of European civilization, and for which the Irish had struggled for so many centuries to win for themselves.
More coverage at the excellent British site EU Referendum (which astute readers may remember for its outstanding work in exposing media complicity in cooperating with Hezbollah to create staged pictures of the alleged Israeli atrocities at Qana, Lebanon).
Boumediene Insta-Symposium:
Opinio Juris is hosting an "Insta-Symposium" on yesterday's Boumediene decision. Contributors include Steve Vladeck, Deborah Pearlstein, Ted White, Eric Freedman, and the Opinio Juris regulars, among others, with more to come. Check it out.
Inaccurate Statement by Brady Campaign's head
The Brady Campaign's preemptive announcement of defeat in District of Columbia v. Heller contains an interesting bit of spin:
But given that McCain stood by his support for closing "the gun-show loophole" during a recent speech to the N.R.A., the Brady Campaign president hopes that new gun restrictions can make headway regardless of who wins in November.
"For John McCain to be the political candidate of the NRA shows how things have changed," Helmke said.
Plus ca "change," plus c'est la meme chose. In 2000, the NRA endorsed Texas Governor George W. Bush, who supported a similar provision regarding gun shows. Accordingly, the NRA's endorsement of McCain is not good evidence that gun control is more popular in 2008 than it was in 2000.
Property Rights and Climate Change Revisited:
A few years back, I challenged the traditional "conservative" or "libertarian" approach to global warming. I wrote: The scientific debate over global warming is not so much over whether anthropogenic emissions will affect the climate. Rather it is over the nature and magnitude of the likely effects. Even the most ardent global warming skeptics within the scientific community believe that the increased accumulation of greenhouse gases in the atmosphere will have some effect. The policy question, then, is what (if any) measures are justified to prevent or mitigate such effects.
Most on the "right" argue that the best response is to do little or nothing. While some advocate various "no regrets" policies to improve the efficiency of energy markets (and perhaps pave the way for alternative fuels) -- as I did here -- few conservatives, libertarians, or other free-market advocates believe the most reliable climate forecasts justify drastic measures to suppress the use of carbon-based fuels. The costs of such measures, many argue, are likely to swamp the costs of climate change, and more direct measures to address global ills that could be exacerbated by climate change (disease, flooding, weather extremes, etc.) would be far more cost-effective than reducing greenhouse gas emissions.
As an analytical matter, these assessments are probably correct -- it is hard to justify one Kyoto on economic grounds, let alone the dozen or so that would be necessary to stabilize greenhouse gas concentrations in the atmosphere -- but that does not mean the proper "free market" climate policy is to "do nothing."
If property rights lie at the heart of free market environmentalism (FME), then FME advocates should think seriously about the normative implications of human-enhanced climate changes that could disproportionately harm those portions of the world that have (at least thus far) contributed least to the problem. Even if a modest warming were, on balance, beneficial, the impacts would not be uniform. It may well be, as some argue, that increases in crop productivity and reduced energy costs in temperate regions will be greater than the costs to tropical regions, but this does not address the property rights concern absent some system whereby industrialized nations would compensate or indemnify less-developed nations. No such system exists -- nor is it likely that existing international institutions could implement such a system -- but that does not mean it would not be the first-best approach to climate change from an FME perspective. Various folks, from Tyler Cowen to Brad DeLong to Carl Pope, responded favorably to this approach. My FME allies, not so much.
This week, the Reason Foundation is hosting a roundtable on the issue, featuring an exchange between me ("Climate Change As If Property Rights Mattered") and my friend Indur Goklany ("Climate Change: No Harm, No Claim"), with an introduction by Shika Dalmia. Ronald Bailey comments on Hit & Run here. I'll also be drafting a response to Goklany in the next few days.
FEC BCRA Regs Sent Back (Again):
This morning the U.S. Court of Appeals for the District of Columbia Circuit once again invalidated several Federal Elections Commission regulations implementing the Bipartisan Campaign Reform Act of 2002 (BCRA, aka "McCain-Feingold") in Shays v. FEC. The opinion for the court, by Judge Tatel, begins as follows:
Congress passed the McCain-Feingold Act, formally known as the Bipartisan Campaign Reform Act of 2002 (BCRA) in an effort to rid American politics of two perceived evils: the corrupting influence of large, unregulated donations called “soft money,” and the use of “issue ads” purportedly aimed at influencing people’s policy views but actually directed at swaying their views of candidates. The Federal Election Commission promulgated regulations implementing the Act, but in Shays v. FEC (“Shays II”), we rejected several of them as either contrary to the Act or arbitrary and capricious, concluding that the Commission had largely disregarded the Act in an effort to preserve the pre-BCRA status quo. Now the FEC has revised the regulations we earlier rejected and issued several new ones, three of which are before us here: (1) a “coordinated communication” standard, the original version of which we rejected in Shays II; (2) definitions of “get-out-the-vote activity” and “voter registration activity”; and (3) a rule allowing federal candidates to solicit soft money at state party fundraisers. Although we uphold one part of the coordinated communication standard known as the “firewall safe harbor,” we reject the balance of the regulations as either contrary to
the Act or arbitrary and capricious. We remand these regulations in the hope that, as the nation enters the thick of the fourth election cycle since BCRA’s passage, the Commission will issue regulations consistent with the Act’s text and purpose.
I expect that Rick Hasen's Election Law Blog will have more on this later today.
"We've Lost the Battle on What the Second Amendment Means,"
says the president of the Brady Campaign, a leading gun control group. "Seventy-five percent of the public thinks it's an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically." The story continues:
If the Supreme Court strikes down the D.C. gun ban, the Brady Campaign is hoping that it will reorient gun control groups around more limited measures that will be harder to cast as infringements of the Second Amendment.
"The NRA [National Rifle Association] won't have this fear factor," [Campaign president Paul] Helmke said.
Bob Cottrol made a similar argument nearly 20 years ago (though he's generally a pro-gun-rights scholar, and probably has a different view than the Brady Campaign about which limited gun control measures are sound). Related Posts (on one page): - Inaccurate Statement by Brady Campaign's head
- "We've Lost the Battle on What the Second Amendment Means,"
Thursday, June 12, 2008
An Amazing Celtics Comeback:
I won't annoy our many California readers by rhapsodizing about it at length - or at least I won't annoy them more than "the public Safety may require":). But I do want to congratulate the Celtics for achieving the greatest comeback victory in the history of the NBA finals, overcoming a 24 point deficit to defeat the favored Lakers on the road. The Celtics were down by 20 as late as the middle of the third quarter. Considering the size of the deficit, the importance of the game, and the quality of the opponent, it's also probably the most impressive single-game comeback in the 125 year history of major professional sports in Boston. Go Celtics!
UPDATE: Judging by some of the comments, I suppose I have to spell out the obvious: For Boston fans, nothing can ever top the Red Sox comeback from 3-0 down in the 2004 American League Championship Series against the Yankees. However, the Reversal of the Curse was not a "single-game" comeback (a crucial qualification in the original post). In none of those four individual games did the Red Sox overcome a deficit nearly as great as that which the Celtics faced tonight. In the pivotal Games 4 and 5, the Red Sox never trailed by more than two runs. In games 6 and 7, the Sox led all the way. As a series, the 2004 ALCS was a vastly more important comeback than anything the Celtics do in the current series could be. But no single game in that series included as great a comeback as the one the Celtics just made.
Could Congress Suspend the Writ of Habeas Corpus in the War on Terror?
In my last post on the Court's decision in Boumedienne, I suggested that Congress could, if it wanted to, revoke War on Terror detainees' rights to a hearing in federal court by suspending the writ of habeas corpus. In his own more recent post, Jonathan Adler raises some interesting questions about whether Congress really could suspend the writ. As Jonathan puts it:
The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This language seems to impose two separate conditions on the use of the clause: 1) "Rebellion or Invasion" and 2) "public Safety." Assuming, for the sake of argument, that these requirements are justiciable (an assumption I don't necessarily accept) what showing would the government have to make?
Before trying to address this issue, I should note that the meaning of these two requirements of the Suspension Clause have never been litigated in the Supreme Supreme Court, and that I am not a habeas expert. Therefore, I'm far from certain that I'm right about what I say below, and would welcome correction from specialists in the field.
That said, I think Jonathan asks exactly the right questions. However, I am less skeptical than he is that the requirements in question could be met. The War on Terror surely doesn't qualify as a "Rebellion," but Al Qaeda's attacks on New York and Washington DC and its attempts to attack other targets in the United States could potentially qualify as an "Invasion." A relatively small invasion to be sure (in terms of the number of enemy combatants involved). But a big one in so far as it has killed more Americans than any other incursion of enemy forces onto US soil in our history, at least since the War of 1812.
One could potentially interpret the requirement of "Rebellion or Invasion" to mean that the writ can only be suspended in those areas where the invasion is ongoing; Jonathan, in his post, seems to make this assumption or at least raise the possibility that it is correct. If the assumption is valid, it rules out suspension of the writ with respect to enemy personnel captured abroad or anywhere in the United States other than New York City and Washington, DC on the day of September 11, 2001 itself. However, I don't think the assumption is valid. No such restriction on the scope of the suspension power is is evident in the text. And it would be somewhat absurd to hold that Congress can only suspend the write of habeas corpus in those parts of the United States where US authorities have no ability to detain people anyway because the areas in question are occupied by enemy forces. I also don't think that the constitutional validity of suspension depends on whether the detainees are held at Guantanamo or some other site. Nothing in the clause suggests that suspension is only permitted if the detainees are held in the same general area as the location of the rebellion or invasion that triggered the Suspension Clause in the first place.
A related question is whether the "invasion" has ended now that (as far as we know) al Qaeda forces are no longer present on US soil in any significant numbers. My tentative view is that the emergency triggered by an invasion can continue so long as the war that the invasion was a part of does. It doesn't necessarily require the continued presence of enemy forces on US soil, though it probably does require a continued serious threat that they may return as part of the same ongoing conflict.
The second requirement - that "the public Safety may require" suspension - is even more difficult to assess. Much depends on the question of how much deference courts should grant to executive or congressional determinations that the public safety really would be threatened if the writ is not suspended. It seems to me that the text does mandate some degree of deference because it states that the standard is that "the public Safety may require" suspension. This suggests that the government need not definitely prove that suspension is essential to public safety.
At the same time, I don't think that the language of the Suspension Clause justifies near-absolute judicial deference to a congressional determination that the public safety requires suspension. My best guess is that the "public safety" prong of the Clause could be satisfied by something similar to proof by a preponderance of evidence. As a practical matter, I think that the Court would defer to Congress' judgment if the suspension were narrowly targeted and supplemented by some other form of due process protection for detainees.
As Jonathan indicates, the above analysis assumes that these issues are justiciable at all. It could be argued that they are within the exclusive judgment of Congress. I won't argue this issue in detail. But I doubt that the rebellion/invasion and "public safety" requirements of the Clause are completely nonjusticiable. If they were, Congress could decide that virtually any real or imagined emergency is a threat to "public safety" and then use it as an excuse to suspend the writ of habeas corpus.
To say that suspension of the writ would (probably) be constitutional is not to say that it should be done. I'm not sure that it should be enacted at all. If Congress does attempt suspension, I believe that any such effort should be narrowly focused, and supplemented with other types of protections for the rights of detainees.
Today's Other Habeas Decision:
Overshadowed by the Supreme Court's 5-4 decision in Boumediene was the Court's unanimous opinion in Munaf v. Geren, another habeas case arising out of the war on terror. In Munaf, the Court considered whether U.S. courts have jurisdiction over habeas corpus petitions filed on behalf of U.S. citizens challenging their detention in Iraq by the U.S. military and, if so, whether a U.S. district court may issue an injunction prohibiting the military from transferring such individuals to Iraqi authorities.
In an opinion by Chief Justice Roberts, the Court first concluded that U.S. courts may entertain habeas petitions brought by U.S. citizens in military custody overseas. The Court rested its decision on 28 U.S.C. 2241(c), which explicitly extends such jurisdiction to habeas petitions brought by individuals held "in custody under or by color of the authority of the United States," or "in custody in violation of the Constitution or laws or treaties of the United States." The government had sought to argue that this provision does not apply here because U.S. forces in Iraq are participating in a multi-national force, but the Court readily dispatched this argument noting that the petitioners "are American citizens held overseas in the immediate 'physical custody' of American soldiers who answer only to an American chain of command."
While the Court upheld federal jurisdiction, it nonetheless rejected the petitioners' ultimate claims, concluding that district courts could not issue the injunctions sought. The traditional remedy for a habeas violation is release. Yet that would not do the petitioners much good here, as to be released by U.S. troops would place the petitioners in danger of being apprehended by Iraqi authorities, producing the precise result they sought to avoid -- potential detention and trial by the Iraqi government. As Roberts concluded, "Habeas corpus does not require the United States to shelter such fugitives from the criminal justice of the sovereign with authority to prosecute them." That the petitioners alleged they could be subject to torture or other inhumane treatment may make them more sympathetic, but the Court rejected any suggestion such fears strengthened their legal claim. Thus, in the end, the Court concluded that the petitioners "state no claim in their habeas petitions for which relief can be granted," and ordered their petitions dismissed.
Can Congress Suspend Habeas in Guantanamo?
In his post below, Orin suggests that if Congress were to object to the Court's Boumediene decision, it could "formally suspend the Writ as it applies to Guantanamo Bay" under the Constitution's Suspension Clause. I am not so sure.
The Suspension Clause provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." This language seems to impose two separate conditions on the use of the clause: 1) "Rebellion or Invasion" and 2) "public Safety." Assuming, for the sake of argument, that these requirements are justiciable (an assumption I don't necessarily accept) what showing would the government have to make? Would Guantanamo itself have to be invaded or subject to a rebellion? Or would a rebellion or invasion somewhere else suffice? Even if not justiciable, the application of these requirements to Guantanamo seems problematic at a conceptual level. And insofar as Boumediene could be used support the application of the Suspension Clause's requirements to other territories outside of the de jure sovereignty of the United States, it seems to me that the conceptual problems would only increase. Am I missing something?
Lawrence panel at ACS:
Tomorrow at the annual convention of the American Constitution Society in Washington there will be a panel on the impact of Lawrence v. Texas five years after the decision. The panel is scheduled for 2:45 pm to 4:15 pm. The panelists are: Nan Hunter, Paul Smith, Joseph Guerra, H. Alexander Robinson, and me. If you're a reader and will attend, come by and say hello.
It's Unlikely, But Worth Noting:
In today's debates on Boumediene v. Bush, I think it's worth noting that there's a way in which Congress could still go back to the pre- Rasul or pre- Boumediene state of the law: Congress could formally suspend the Writ as it applies to Guantanamo Bay. The Suspension Clause does not require the writ of habeas corpus; rather, it states that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." (emphasis added) As far as I know, the Court has never analyzed whether the "public safety" exception is justiciable or is a political question, or what standards could apply to judicial review of it. (See my colleague Amanda Tyler's article, Is Suspension a Politcal Question?, for more.) But if the political branches wanted to go back one more time, they could, subject to the possibility of judicial review of their assessment of the need for the suspension. To be clear, I'm not recommending this; and I think it's extremely unlikely that it would happen for political reason. But I think it's worth noting that it's possible.
Boumediene, Executive Power, and Congressional Power:
I have not yet had a chance to fully study the Court's opinion in Boumediene v. Bush. But I will note one very important aspect of this case that differs from the Court's previous war on terror decisions rebuking the Bush administration. In earlier cases such as Rasul v. Bush, Hamdi v. Rumsfeld, and Hamdan v. Rumsfeld, the Court invalidated unilateral actions taken the by the executive, repudiating the Bush Administration's ultra-expansive interpretation of wartime executive power. However, Hamdan specifically left open the possibility that the administration's Guantanamo policies might be constitutional if authorized by congressional legislation. The Republican Congress (for the most part) provided that authorization in the Military Commissions Act of 2006.
In Boumediene, the Court challenges congressional power as well as the executive. It strikes down as unconstitutional several provisions of the Detainee Treatment Act of 2005 and the MCA. This is a nearly unprecedented situation where the Court rejected an important assertion of wartime power backed by both of the other branches of government. To my knowledge, virtually every previous case in which the Court ruled an important wartime policy unconstitutional was one where the policy in question was adopted by the executive acting alone.
As a political matter, the majority justices might might well have reasoned that they could avoid a dangerous interbranch confrontation because the Republican Congress which enacted the DTA and MCA is now gone, and the Bush Administration has only a few months remaining. But even a Democratic administration and Congress might be reluctant to give terrorist detainees as much protection as Boumediene requires.
The fact that the decision challenges congressional power as well as executive power doesn't mean that it is necessarily wrong. On that question, I am divided in my own mind. The difficult question is whether habeas corpus applies to enemy combatants seized in operations abroad (I don't doubt that the Bush Administration was wrong to assert that it doesn't apply to US citizens accused of terrorist acts and captured in the US).
Importantly, the Court does leave Congress a way out. If it wants to, Congress could still strip detainees of the protection they get under Boumediene by enacting a statute suspending the writ of habeas corpus under the Suspension Clause. With a Democratic Congress, I suspect that we might get a new detainee law that suspends the writ for certain categories of terror detainees, but also perhaps gives them more procedural rights than they got under the Republican-enacted MCA. For a variety of reasons, I doubt that the Democrats will be willing to take the risk of allowing the detainees to retain full habeas rights. If they don't act and a terrorist released as a result of a habeas petition commits some atrocity, the Dems will take a predictable political hit. Especially if Obama wins the presidential election, expect the Democrats to enact some sort of partial suspension of habeas corpus, combined with new, but limited statutory procedural rights for detainees. At least that is my tentative prediction.
UPDATE: Some commenters cite Ex Parte Milligan as an example of a case where the Court invalidated a joint congressional-executive wartime policy. In a narrow technical sense, they have a point. However, it is important to recognize that Milligan was decided only after the war in question (the Civil War) was over. The Court would have been much more reluctant to take on both of the other branches if the war had still been ongoing (as of course it still is in the Boumediene case).
UPDATE #2: As Marty Lederman points out in an e-mail to me, the Milligan decision actually held that the president lacked congressional authorization for his actions in so far as the Habeas Corpus Act of 1863 forbade him to subject civilians to military jurisdiction in states where the civilian courts continued to operate. The Court also ruled that, in some situations, even Congress would lack the power to subject civilians to military trials; but it emphasized that Congress had not taken any such action in the case before it. Be that as it may, it is significant that even in Milligan, the Court did not repudiate both of the other branches of the federal government head on, in the way it has now done in Boumediene.
SSRN Citation:
This is completely nonsubstantive, but I note that the Court's majority opinion in Boumediene cites a draft article up on SSRN: See Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. (forthcoming 2008) (hereinafter Halliday & White) (manuscript, at 11, online at http://papers.ssrn.com/sol3 /papers.cfm?abstract_id=1008252 (all Internet materials as visited June 9, 2008, and available in Clerk of Court’s case file) (noting that “conceptually the writ arose from a theory of power rather than a theory of liberty”)). As far as I know, that's the first Supreme Court citation to a forthcoming article that is on SSRN. I would guess that the citation will be changed to the final version by the time the Boumediene case is compiled into the U.S. Reports, so in the end the Court's opinion will cite an article as published that wasn't when the opinion was handed down. Kinda cool.
Key Quotes from Boumediene v. Bush:
In this post, I want to excerpt the key passages from the majority opinion in Boumediene v. Bush. Boumediene is a remarkably long opinion — 70 pages, probably Justice Kennedy's longest majority opinion ever. Here are the key sections: First, in Justice Kennedy's majority opinion, the Court concludes that the detainees have a Constitutional right to habeas relief at Gitmo. Here's the holding stated in the majority opinion: Petitioners present a question not resolved by our earlier cases relating to the detention of aliens at Guantanamo: whether they have the constitutional privilege of habeas corpus, a privilege not to be withdrawn except in conformance with the Suspension Clause, Art. I, §9, cl. 2. We hold these petitioners do have the habeas corpus privilege. Congress has enacted a statute, the Detainee Treatment Act of 2005 (DTA), 119 Stat. 2739, that provides certain procedures for review of the detainees’ status. We hold that those procedures are not an adequate and effective substitute for habeas corpus. Therefore §7 of the Military Commissions Act of 2006 (MCA), 28 U. S. C. A. §2241(e) (Supp. 2007), operates as an unconstitutional suspension of the writ. We do not address whether the President has authority to detain these petitioners nor do we hold that the writ must issue. These and other questions regarding the legality of the detention are to be resolved in the first instance by the District Court. The Court then goes on to talk a lot about the history of habeas, and then distinguishes Eisentrager very much along the lines of Justice Kennedy's concurrence in Rasul v. Bush. The Court then concludes that the detainees have a constitutional right to habeas: It is true that before today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. But the cases before us lack any precise historical parallel. They involve individuals detained by executive order for the duration of a conflict that, if measured from September 11, 2001, to the present, is already among the longest wars in American history. See Oxford Companion to American Military History 849 (1999). The detainees, moreover, are held in a territory that, while technically not part of the United States, is under the complete and total control of our Government. Under these circumstances the lack of a precedent on point is no barrier to our holding.
We hold that Art. I, §9, cl. 2, of the Constitution has full effect at Guantanamo Bay. If the privilege of habeas corpus is to be denied to the detainees now before us, Congress must act in accordance with the requirements of the Suspension Clause. . . . The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is. Petitioners, therefore, are entitled to the privilege of habeas corpus to challenge the legality of their detention. The Court then looks to whether the alternative to traditional habeas is adequate and effective, which the Court interprets as asking if the alternative is similar to traditional habeas. The Court concludes that the law Congress passed, the Detainee Treatment Act (DTA), is not adequate and effective alternative to traditional habeas: Congress intended the Court of Appeals to have a more limited role in enemy combatant status determinations than a district court has in habeas corpus proceedings. The DTA should be interpreted to accord some latitude to the Court of Appeals to fashion procedures necessary to make its review function a meaningful one, but, if congressional intent is to be respected, the procedures adopted cannot be as extensive or as protective of the rights of the detainees as they would be in a [habeas] proceeding. Otherwise there would have been no, or very little, purpose for enacting the DTA. The Court then details ways in which the DTA is insufficiently protective, and concludes that the problems with the DTA are too major to allow minor tinkering: [E]ven if it were possible, as a textual matter, to read into the statute each of the necessary procedures we have identified, we could not overlook the cumulative effect of our doing so. To hold that the detainees at Guantanamo may, under the DTA, challenge the President’s legal authority to detain them, contest the CSRT’s findings of fact, supplement the record on review with exculpatory evidence, and request an order of release would come close to reinstating the §2241 habeas corpus process Congress sought to deny them. The language of the statute, read in light of Congress’ reasons for enacting it, cannot bear this interpretation. Petitioners have met their burden of establishing that the DTA review process is, on its face, an inadequate substitute for habeas corpus.
Although we do not hold that an adequate substitute must duplicate §2241 in all respects, it suffices that the Government has not established that the detainees’ access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effects an unconstitutional suspension of the writ. Finally, near the end of the decision, the Court gets to the timing of habeas review. Can a court step in with a habeas proceeding immediately, or do they have to wait for CSRT hearings? Here's what Justice Kennedy concludes: In cases involving foreign citizens detained abroad by the Executive, it likely would be both an impractical and unprecedented extension of judicial power to assume that habeas corpus would be available at the moment the prisoner is taken into custody. If and when habeas corpus jurisdiction applies, as it does in these cases, then proper deference can be accorded to reasonable procedures for screening and initial detention under lawful and proper conditions of confinement and treatment for a reasonable period of time. Domestic exigencies, furthermore, might also impose such onerous burdens on the Government that here, too, the Judicial Branch would be required to devise sensible rules for staying habeas corpus proceedings until the Government can comply with its requirements in a responsible way.
Our holding . . . should not be read to imply that a habeas court should intervene the moment an enemy combatant steps foot in a territory where the writ runs. The Executive is entitled to a reasonable period of time to determine a detainee’s status before a court entertains that detainee’s habeas corpus petition. The CSRT process is the mechanism Congress and the President set up to deal with these issues. Except in cases of undue delay, federal courts should refrain from entertaining an enemy combatant’s habeas corpus petition at least until after the Department, acting via the CSRT, has had a chance to review his status. However, the Gitmo detainees have been held for up to 6 years, and they deserve a prompt hearing: While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing. Justice Kennedy's opinion concludes with a message to the Bush Administration: Officials charged with daily operational responsibility for our security may consider a judicial discourse on the history of the Habeas Corpus Act of 1679 and like matters to be far removed from the Nation’s present, urgent concerns. Established legal doctrine, however, must be consulted for its teaching. Remote in time it may be; irrelevant to the present it is not. Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief derives.
Our opinion does not undermine the Executive’s powers as Commander in Chief. On the contrary, the exercise of those powers is vindicated, not eroded, when confirmed by the Judicial Branch. Within the Constitution’s separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person. . . The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part of that law.
Soccer. Soccer. And More Soccer.
My last posting about the European soccer championships generated some of the usual soccer/anti-soccer comments, which I had hoped to avoid so that we could talk about the games, instead of talking about whether we should be talking about the games . . . Listen, I understand that some of you don’t like soccer – that’s your loss, as far as I’m concerned, but there you go. Watching sports is fundamentally an aesthetic experience, and some like Radiohead and some people don’t, some like Rauschenberg and others like Bellini, some can watch an NBA game and actually enjoy the experience, others (like me) are unable to do so. There’s really not much point in arguing about it. What can be said about comments like:
“Even pro-soccer articles make it sound horrible. Exciting 1-0 games! Inspiring 2-0 games!”
My response to someone who can’t even imagine an exciting 1-0 game is much like my response to someone who says they can’t listen to Wagnerian opera or the symphonies of Beethoven – man, you’re missing something pretty amazing, but what can I say? I don’t get NASCAR – some people do. Or this:
“Soccer is a game with flawed rules and I can prove it. First of all a team can be man down for an entire game and not be assured of losing. That means that the rules are set too far in favor of the defense, there is no other sport that you could play with 1 fewer player all game and still be competitive or actually win.”
It’s true – teams that are a man down can, sometimes, actually prevail. That’s a bad thing because ? ? ?
Anyhow, on to the games. I’m going to keep writing about the Euro2008, because it’s a global event of significant magnitude for hundreds of millions of people, and because the soccer is so damned good. [And if you are posting comments, please do respect the “Tivo courtesy” rules – don’t give away any scores, please, in case some of those reading the comments have yet to see the games. [Uefa.com, incidentally, has a nice “replay” subscription you can buy, 20 euros for a streamed version of every game, beginning 6 hours or so after the final whistle]
The Netherlands destroyed Italy, 3-0 – with many interesting back stories flying around, not the least of which was that the crucial first goal was (notwithstanding UEFA’s declaration to the contrary, the result of a blown offside call). Not only had the Dutch not beaten the Italians in 30 years (since the days when they were led by the great Johann Cruyff), but they had been knocked out of the 2000 championships by Italy under the cruelest of circumstances. I actually attended that game, and it was without question the most extraordinary sporting event I have ever witnessed. It’s the semifinal, the game is in Amsterdam, the Dutch have looked completely unbeatable (they took Yugoslavia apart, 6-1 I think it was, in the quarterfinals), and the Dutch – who have produced some remarkable teams, but only one European champion to go along with their zero World Cups) – were delirious. Amsterdam was in a frenzy all day long. At the Amsterdam Arena (capacity 55,000), there are 50,000 people dressed entirely in orange, waving little orange flags, singing in unison, beginning an hour or so before kickoff. And one little tiny patch of blue – the Italians, maybe 3,000 strong. The Dutch play beautifully – but simply cannot put the ball in the net. Bergkamp hits the post . . . Kluivert hits the crossbar. There are not one but TWO penalties awarded to the Dutch – and they miss them both!! The feeling in the stadium was palpable, and unlike anything I’ve ever experienced – dread and foreboding and a kind of horrified resignation that it wasn’t to be. The Dutch players – quite visibly – began to tighten up, to get frustrated and angry. The game ends 0-0, and the Dutch, predictably, make a horrible hash out of the penalty shootout, missing three of their four attempts. It was ghastly. The crowd, walking back to the subway, was silent. Not quiet – completely silent. It was quite terrifying, actually. At about 3 AM I walked from the train station in Rotterdam to my hotel; not a soul on the street except for me and one old man, who, as he walks by me, just puts up his hand with all five fingers spread out in the air, and grunts “Funf!” [referring, of course, to the 5 penalty kicks they missed].
I’ve always pulled for the Dutch, and I think they could make a run for it this time. It’s a hell of a squad they’ve got – though their defense is suspect, and they are in a true “Group of Death” with Italy, France, and Romania in the first round. My money, though, is still on Spain (who looked wonderful in taking apart the Russians). Look for a Spain-Netherlands semifinal – that would be a helluva matchup. Related Posts (on one page): - The Euros March On:
- Soccer. Soccer. And More Soccer.
- One - Nil:
As Expected:
Based on a very quick skim, it looks the Court's opinion in Boumediene v. Bush is pretty much exactly what I predicted would happen in my Senate testimony over a year ago. Nothing I've seen in the Court's opinion so far is at all surprising, and it's a big defeat for the Bush Administration. This doesn't mean I have some amazing powers of observation; rather, I think this was a defeat that you could see coming from miles (or in this case, years) away. Or perhaps that whatever happened inside the Court on the road to the opinions, the result is pretty much what was expected.
Another 5-4 Opinion Today:
Among today's opinions, the Supreme Court also issued a 5-4 decision in Irizarry v. United States, a sentencing case. Here's the line-up: Justice Stevens wrote the opinion for the Court, joined by the Chief Justice and Justices Scalia, Thomas, and Alito. Justice Breyer dissented, joined by Justices Kennedy, Souter, and Ginsburg.
BREAKING - Gov't Loses Boumediene 5-4:
Details on SCOTUSBlog (where else), as they become available. Justice Kennedy wrote the majority opinion. The opinions are here.
UPDATE: The Chief Justice and Justice Scalia wrote dissenting opinions (each joined by the usual suspects). Justice Souter wrote a concurrence joined by Ginsburg and Breyer.
FURTHER UPDATE: Lyle Denniston is giving insta-analysis of the opinions here. While it was generally anticipated that the government would lose the case, he calls the decision a "stunning blow to the Bush Administration in its war-on-terrorism policies."
LAST UPDATE: As I (super-quickly) skim Justice Kennedy's opinion for the Court, it appears to hold that Guantanamo detainees have habeas rights, that these rights can only be denied through a valid suspension of habeas rights (under the Suspension Clause of the Constitution), that the procedures created by the Detainee Treatment Act were not an adequate substitute for habeas, and therefore Section 7 of the Military Commission Act is an unconstitutional suspension of the detainees' habeas rights. I'm sure I (and others) will have more to say about this case in subsequent posts.
A Day in the Life:
So here’s a summary of my 24 hours, beginning this past Sunday morning. I was going from my home in DC to New York, where I was meeting some friends and going out to the soccer game (U.S. v. Argentina) that evening at the Meadlowlands. The following morning, I had to take the train to Windsor Locks CT – my car was parked at Bradley Airport outside of Hartford, and I was going to pick it up.
The Acela from DC to NYC arrived 45 minutes late – due in at 348 PM, it arrived around 430. My friends and I were driving to the game – there is some public transportation to the Meadowlands, but it’s limited to a bus from Port Authority terminal in New York, and we’ve heard too many horror stories of people stranded for hours after events, waiting for the bus, to want to risk it. Traffic to and from the stadium is a complete nightmare – everyone is diverted into a large 4-story parking garage, and we sit in traffic for around 45 minutes or so, creeping along at 2-5 mph. [Wasting insane amounts of gasoline in the aggregate, needless to say]. Having left the Upper West Side at 6 PM, we get to the traffic knot at around 6:20 or so, but we don’t make it to our seats until 7:35, precisely at kickoff.
Getting out, as you might guess, was even worse – we sat, literally motionless, for over an hour on one of the garage ramps. And my train to Windsor Locks the next morning? Again, an hour or so behind schedule. Not to mention the utter bleakness of the built environment through which you pass; there are some lovely spots along the way, but the stations in Stamford, Bridgeport, New Haven, and Hartford, and the landscapes around them, are about as ugly as anything you’d see in Moldova or Indonesia -- not quite "third world," but surely not top drawer.
This country is starting to feel second-rate to me, and it’s not a pleasant feeling. The worst part of this entire experience was that nobody really seems to give a damn, or be in the least surprised, about complete breakdowns like these. There’s nothing in the newspaper the next day: “Thousands Stranded at Stadium – Meadowlands Operators Apologize for ‘Appalling Inefficiency.’” Why would there be? It happens like this all the time. It’s just the way it is. Folks sitting in their cars, listening to the radio, and the guys with the flashlights who are supposedly guiding the traffic just standing around, doing absolutely nothing. If you want to go to an event in the Meadowlands, just plan on wasting a minimum of 3 or 4 hours sitting in your car. What can you do? The Windsor Locks train (the “Vermonter”) arrives on schedule, according to Amtrak’s own figures, about 20% of the time. Think about that for a second – running a train that keeps to its schedule 1 day out of every 5. [And I strongly suspect that Amtrak's definition of "on time" is something like (within 1/2 hour of the schedule). Well, what can you do? It’s just the way it is.
Really, our public infrastructure – our public life – is in the process of deteriorating, and we don’t seem to be able to summon up the energy required to do anything about it. Maybe I’m wrong about that. I work in Philadelphia, probably the world capital of “what can you do? it’s just the way it is” – the public transportation system in Philadelphia is a grotesque monstrosity, filthy, noisy, and monumentally unpleasant, and the general feeling seems to be that it would be a miracle if we could find some way just to keep it from getting any worse – so maybe I’m oversensitive to the problem. But if I had had a guest with me from overseas on this trip, I would have been appalled and embarrassed by the state of decay into which we, collectively, have allowed things to fall.
Maybe it had something to do with the fact that we were playing Argentina – Argentines, after all, understand all too well how first-rate countries can become second-rate countries, in the blink of an eye. In 1920, Argentina was the sixth- or seventh-richest country in the world; by the end of the century, it was far, far down the list. .
Are the Chinese Drilling of Florida's Coast?
It's become a regular talking point in energy policy debates that China and Cuba are drilling for oil only 60 miles off of Florida's coast. If true, it would mean that China is drilling for oil closer to Florida than any U.S. firm. But this report from the McClatchy news service says it's just an urban legend.
no one can prove that the Chinese are drilling anywhere off Cuba's shoreline. The China-Cuba connection is "akin to urban legend," said Sen. Mel Martinez, a Republican from Florida who opposes drilling off the coast of his state but who backs exploration in ANWR.
"China is not drilling in Cuba's Gulf of Mexico waters, period," said Jorge Pinon, an energy fellow with the Center for Hemispheric Policy at the University of Miami and an expert in oil exploration in the Gulf of Mexico. Martinez cited Pinon's research when he took to the Senate floor Wednesday to set the record straight. . . .
China's Sinopec oil company does have an agreement with the Cuban government, but it's to develop onshore resources west of Havana, Pinon said. The Chinese have done some seismic testing, he said, but no drilling, and nothing offshore. . . .
Cuba's state oil company, Cupet, has issued exploration contracts to companies from India, Canada, Spain, Malaysia and Norway, according to diplomats.
But many oil companies from those countries have expressed reservations about how to turn potential crude oil into product. Cuba doesn't have the refinery capacity, and the Cuban embargo prohibits the oil from coming to U.S. refineries, Pinon said.
The most recent high-profile contract with Cuba went to Brazil's state oil company, Petrobras. Cuba inked a contract with Petrobras in January, allowing the Brazilian energy giant to search for oil in the deep waters of the Gulf of Mexico that are within Cuba's sovereign territory.
Is the NBA Trying to Silence Donaghy?
I've discussed the recent controversy about the NBA game fixing in a couple of recent posts — a subject being batted around in the blogosphere. What has not been widely discussed is Donaghy's additional allegations that the NBA is trying to silence him. Whatever one makes of the other allegations, this one rings true.
Sentencing in the case was originally set for November 2007. The NBA did not request any restitution. Sentencing was postponed, presumably to allow Donaghy to cooperate with the government. On May 19, 2008, Donaghy sent his letter describing his "cooperation" to the sentencing judge — a letter which included the sensational allegations about NBA game fixing. The result? On June 5, 2008, the NBA sent a letter to the probation officer working on the case requesting — for the first time — $1 million in restitution. The NBA argues that this was the cost of the "internal investigation" that it had to conduct to determine who was involved in illegal gambling.
I'm an advocate for crime victims. I believe that the victims should be fully reimbursed for losses that they have suffered as a consequence of the crime. But as the NBA's lawyers must know, current federal law does not allow for restitution of consequential damages — such as the costs of an internal investigation.
I testified about this very problem back in April before the Crime Subcommittee of the House Judiciary Committe. My testimony can be found here. The problem is that current federal restitution law only allows a victim to recover for losses that fall into certain narrow pigeon holes — lost income, medical expenses, and the like. Consequential damages are simply not authorized.
In light of all this, I agree with Donaghy's lawyers that the NBA's belated request for $1 million in restitution is a "transparent effort to intimidate Mr. Donaghy." A copy of Donaghy's lawyer's letter can be found here.
Update: Here is an interesting analysis of the issue from the Opposition Brief.
Wednesday, June 11, 2008
Was Ralph Nader Right About the NBA's Failure to Investigate Bad Refs?
As mentioned in my earlier post, disgraced NBA referree Timothy Donaghy has essentially accused the NBA of fixing games. In his sentencing letter (linked in my earlier post), he makes a thinly-veiled reference to game six of the Lakers-Sacramento series in 2002:
Referees A, F, and G were officiating a playoff series between the Team 5 and Team 6 in May of 2002. It was the sixth game of a seven-game series, and a Team 5 victory that night would have ended the series. However, [I] learned from Referee A that Referees A and F wanted to extend the series to seven games. [I] knew Refereees A and F to be "company men," always acting in the interest of the NBA, and that night, it was in the NBA's interest to add another game to the series.
Ralph Nader complained about this game to NBA Commissioner Stern at the time in a letter that can be found here. What he wrote at the time takes on a whole new cast now:
Calls by referees in the NBA are likely to be more subjective than in professional baseball or football. But as the judicious and balanced Washington Post sports columnist Michael Wilbon wrote this Sunday, too many of the calls in the fourth quarter (when the Lakers received 27 foul shots) were "stunningly incorrect," all against Sacramento. After noting that the three referees in Game 6 "are three of the best in the game," he wrote: "I have never seen officiating in a game of consequence as bad as that in Game 6....When Pollard, on his sixth and final foul, didn't as much as touch Shaq. Didn't touch any part of him. You could see it on TV, see it at courtside. It wasn't a foul in any league in the world. And Divac, on his fifth foul, didn't foul Shaq. They weren't subjective or borderline or debatable. And these fouls not only resulted in free throws, they helped disqualify Sacramento's two low-post defenders." And one might add, in a 106-102 Lakers' victory, this officiating took away what would have been a Sacramento series victory in 6 games.
This was not all. The Kobe Bryant elbow in the nose of Mike Bibby, who after lying on the floor groggy, went to the sideline bleeding, was in full view of the referee, who did nothing, prompted many fans to start wondering about what was motivating these officials.
Wilbon discounted any conspiracy theories about the NBA-NBC desire for a Game 7 etc., but unless the NBA orders a review of this game's officiating, perceptions and suspicions, however presently absent any evidence, will abound and lead to more distrust and distaste for the games in general.
Nader makes a point that I agree with: The NBA should not prohibit coaches and players from criticizing referees, on penalty of substantial fines.
Donahy's suggestions, contained in his letter, are less helpful. He suggests "that the league train referees to treat all players equally, regardless of popularity. This policy would help ensure that referees officiate games fairly." Well, yeah, but how are you going to do that?
UPDATE: As pointed out by a VC reader, there's a good, balanced discussion of the issue over at Salon, found here. Related Posts (on one page): - Is the NBA Trying to Silence Donaghy?
- Was Ralph Nader Right About the NBA's Failure to Investigate Bad Refs?
- Does the NBA Rig Games?
Does the NBA Rig Games?
Yesterday defendant Tim Donaghy (and former NBA ref) submitted a letter to the federal judge who will sentence him shortly for various federal offenses involving match fixing. While one "bad apple" can exist among referees in any sport, Donaghy's letter makes some allegations that go to the very core of the integrity of the NBA.
For example, Donaghy alleges that certain referees were known as "company men" who always acted in the business interest of the NBA. Accordingly, these referees acted to extend a playoff series because that would be good for the NBA. Similarly, Donaghy stated:
league officials would tell referees that they should withhold calling technical fouls on certain star players because doing so hurt ticket sales and television ratings. . . [T]here were times when a referee supervisor would tell referees that NBA Executive X did not want them to call technical fouls on star players or remove them from the game. In January 2000, Referee D went against these insturctions and ejected a star player in the first quarter of the game. Refereee D later was reprimanded privately by the league for that ejection.
[i]n other instances . . . the manipulation was more subtle. If the NBA wanted a team to succeed, league officials would inform referees that opposing players were getting away with violations. Refreees then would call fouls on certain players, frequently resulting in victory for the opposing teams.
The full text of Donaghy's letter can be found here.
I am frequently skeptical of claims made by defendants to save their own skin shortly before sentencing. But here Donaghy through his attorney is describing what "cooperation" he provided to the FBI (under penalty of perjury) after his indictment.
As someone who lives in small market NBA town (Salt Lake City), I have always wondered whether the Utah Jazz are disfavored when they play a big market team (i.e., the L.A. Lakers). NBA basketball turns so heavily on foul calls, that even a slight emphasis for one team or another can easily make or break a team. In fact, I find it hard to watch NBA basketball any more, because its level of subjectivity approaches that of figuring skating (Was that a charge on Carlos Boozer? Or a blocking foul on Kobe? Do you like Sasha Cohen? Or Michele Kwan?)
One interesting thing about Donaghy's claim is that he lists several specific games in which the NBA favored one team or another. Will anyone go back and watch the videotapes of those games and see whether his claims seem true?
"Attention Anonymous Internet Posters and Bloggers,"
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