LAW FROM THE CENTER

Today, the Intel Dumper gives a right-on pan of William Rehnquist's All The Laws But One. Of the book, he writes:

Unfortunately, I found this book to be quite superficial and conclusory. It added little to the legal history that I have been able to glean from other sources, such as Lawrence Friedman's many books and the cases themselves.

As I told you here, Rehnquist has written another book that's lacking in the substance department and chock full of nitnoid detail, The Supreme Court. But I digress. Let's get back to why Rehnquist is no war jurisprudence scholar:

Moreover, Justice Rehnquist's book obscures certain areas (e.g. the Lincoln Assasination trials) with too much detail and glosses over other important areas (like the WWII internments) with too little detail. He also devotes an inordinate amount of text to biographical detail about justices on the Supreme Court through history, ostensibly because those details reveal something about their character and jurisprudence. But in doing so, he downplays the legal reasoning and facts of these cases. Obviously, the sitting Chief Justice knows a lot about judicial decisionmaking, and maybe he thinks that these personalities are paramount. But it seemed odd to me, because I've learned in law school that facts and law have at least some bearing on the outcome of a case.

Yeah, facts and law sometimes have a bearing on the outcome of a case; that is, until you get to Supremeville. Then all the bets are off (just read Bush v. Gore then try and say otherwise; there were at least five better ways to hand Bush the presidency if they wanted).

Why does this matter? Because the two Guantanomo cases before the Supreme Court this term (Padilla & Hamdi) will require the Court to revisit the old WWII jurisprudence on this matter, the Japanese Interment Cases:

So... the Chief Justice thinks the Supreme Court did the right thing in deferring to executive/military authority in upholding President Roosevelt's Executive Order 9066, the Japanese internment order. And presumably, he would apply the same logic today, where the government has articulated a similar need to pro-actively defend citizens (albeit on the basis of individualized suspicion) whom it deems to be waging war against the United States as an agent of Al Qaeda.

After reading this book, I now see something about to happen in the Supreme Court this spring that I hadn't seen before. On the one hand, you have a movement within the law to overturn the precedents of Korematsu and Hirabayashi -- two stains on American jurisprudence that live on as "good law" (in a strictly precedential sense) to this day. Within the Court, I can count a few votes against the government in Hamdi and Padilla that partly rest on the desire to overturn these two decisions. On the other hand, I can also see a part of the Court (led by Justice Rehnquist) siding with the government's position in these cases, under the theory of judicial deference. Justice Rehnquist appears to have had no problem with such deference during WWII (when he served as a sergeant in the Army Air Corps). And the fight right now is not over the wisdom or efficacy of these policies -- it's over whether the President has the power to make them, and whether the courts have the power to review them. With the battle lines drawn that way, I think Justice Rehnquist's book makes it clear how he will come out.

I couldn't have said it better myself. Anyone holding out hope that Rehnquist will follow reason when ruling for the government better think again. As was the case in Bush v. Gore, the conservatives on the court won't be happy with simply ruling for the government while devising precedent more tolerant that Korematsu and Hirabayashi; they'll most likely give the government more than it wants and stand firm behind these cases that have been marked suspect by scholars and historians alike.

Word early this morning that Osama was captured long ago appears to be a false alarm, according to a senior Defense official (Bloomberg). And I was about to do the dance of joy this morning.

The buzz is hitting campuses everywhere: Today's Daily Texan runs a story that is much more balanced in its portrayal of our amicus brief then yesterday's story in the Harvard Crimson, which I told you about here.

Word from today's NY Times that FBI Agents took pieces of World Trade Center rubble home with them, and that the FBI is finally instituting a policy to deal with it:

Thirteen agents from the Federal Bureau of Investigation took mementos, debris or valuables from the Staten Island landfill that held the rubble of the World Trade Center, and the F.B.I. now plans to formally ban the removal of crime-scene items as a result, officials said on Wednesday.

Among the items taken from the rubble, officials said, were a Tiffany globe paperweight, an American flag, chunks of concrete, bags of dust, bolts and pieces of metal, investigators from the Justice Department inspector general's office found.

The department first began investigating charges of possible theft last year after receiving a complaint that the Tiffany globe wound up on the desk of an F.B.I. secretary in Minneapolis. But the inspector general's investigation found that the removal of World Trade Center evidence was more widespread than previously realized and that the problem was a longstanding one at the F.B.I. at other crime scenes as well.

The results of the investigation, first reported Wednesday night by NBC News, outraged some survivors, who saw the removal of items from the rubble as insensitive to the memories of the nearly 3,000 people killed in the Sept. 11 attacks.

"I would have hoped that the F.B.I. was more concerned with conducting an investigation and gathering evidence, not gathering mementos to sit on their bookshelves as a relic from the worst national tragedy in the country's history," said Kristen Breitweiser, whose husband died in the trade center and who has helped lead a group of survivors pushing for more answers about the attacks. "This speaks to a real lack of focus by the F.B.I. in getting to the bottom of what really happened on Sept. 11," she said.

I couldn't have said it better myself. For what it's worth, the military has had a similar provision in place for years. Ever since Operation Desert Shield/Desert Storm, theater commanders of deployed units have instituted an order generically referred to as General Order #1, that prohibits a host of activities which may be deemed by the local population as culturally insensitive. Such prohibited activities usually include "[r]emoving, possessing, selling, defacing, destroying archeological artifacts, or national treasures," and, "[i]n the event of armed conflict, taking of war trophies." Other prohibited activities often include gambling, the consumption of alcohol, and entrance into local houses of worship. Desert Storm commanders found the policy so effective that in every armed conflict or humanitarian deployment since, some form of the order has been enacted. Hopefully, agencies like the FBI can learn from the military's success in this area.

A few hours ago, Reuters reports that more military defense lawyers are speaking out against the imminent tribunals that will take place. Two days ago, President Bush ordered two Guantanomo detainees to stand trial. Now, their appointed counsel are speaking up.

Army Maj. Mark Bridges said he and Sundel plan a defense case that not only challenges evidence presented against al Bahlul, but attacks the foundation of the tribunal process.

"We do envision raising a lot of motions related to the rules and the procedures themselves," Bridges said in an interview.

But he doubted these motions will not get a fair hearing because the rules do not permit a truly independent review. He said the same Pentagon official who approved the charges against his client also may rule on these types of motions.

Prosecuting JAGs disagree.

"I think military commissions provide a full and fair process," said Maj. John Smith, a lawyer and spokesman for the Pentagon's office of military tribunals.

"We have the presumption of innocence. We have the highest burden of proof in criminal court -- proof of guilt beyond a reasonable doubt. We have representation by zealous defense counsel. They have the ability to present evidence and call witnesses."

Marine Major Michael Mori, the "Marine with Balls" I told you about here, obviously disagrees.

Marine Corps Maj. Michael Mori, who represents Australian Guantanamo prisoner David Hicks, echoed the criticism. Hicks, one of four Guantanamo prisoners given lawyers, has not yet been charged.

"When you use an unfair system, all you do is risk convicting the innocent and providing somebody who's truly guilty with a valid complaint to attack his conviction. It doesn't help anybody. It only helps the people who created the system to predict the outcome," Mori said.

ANALYSIS: As I told you here, the defense attorneys who are representing these detainees are showing amazing zealousness of representation, perhaps in violation of military policy. Even when defending soldiers who are US citizens, military attorneys generally have to keep their mouths shut in the media while defending their clients due to military regulations. These attorneys are risking their careers by not only defending their clients in the court of public opinion, but putting the policies of their bosses on trial as well. These are potentially career-ending moves on their part.

I need help with something: when someone clicks one of my permalinks, the browser goes to the top of the archive page, instead of automatically scrolling down to the specific post the permalink refers to. Any ideas?

Today's Harvard Crimson Online has an article about the recent amicus brief in support of the Solomon Amendment filed by law school veterans organizations, which I told you about here. One of the most troubling aspects about the article is the statement by the President of the Harvard Law Veterans Association:

Earlier this month, the HLSVA told the UCLA pro-Solomon Amendment activists that it would not become involved in the widening legal battle.

“Our organization maintains a strict policy of not taking sides on controversial issues,” said the group’s president, second-year Harvard Law School (HLS) student Andrew S. Friedberg.

Hmmm...interesting. I've had some private correspondence with Andrew that would be improper for me to share here (even though he shared a private copy of the draft brief with the Harvard Crimson that I specifically told him to keep in confidence). I will say that it is most troubling that a student organization that purportedly advocates for its members, and that is made up of law students who are supposedly this nation's best and brightest, and whose members will soon graduate and have to litigate the most cutting-edge, controversial litigation this nation can offer, would have a "strict policy of not taking sides on controversial issues."

NOTE: The language quoted by the Harvard Crimson does not reflect the actual, final language of the brief. For the real brief, click here.

UPDATE 1: I think the former En Bancer, the Law Dork, quotes it best: "The hottest places in hell are reserved for those who in time of great moral crisis maintain their neutrality." -Dante Aligheri

Re: my post on the failure to negotiate a SOFA with the Iraqi provisional authority, Pershing6 comments:

Do you really think that a SOFA would have a whole lot of meaning prior to the transition of sovereignty? A SOFA is a treaty, and thus requires at least two sovereign parties. By agreeing to a SOFA now, the U.S. would basically be acknowledging that a de facto handover has already occurred.

Besides, I don't think the Iraqi Governing Council is going to allow U.S. personnel to be tried under Islamic law in the interim; at least not if they can help it. Of course there's always a chance that U.S. soldiers could fall into the hands of some rogue faction, but a SOFA won't prevent that.

As I replied to Pershing6, that's the argument the Coalition authority is making. But that misses the point of my argument. Instituting the SOFA now is not supposed to protect troops NOW...it's supposed to protect troops from a legal "no-man's land" between the time sovereignty occurs and that sovereign authority agrees on a SOFA. Since SOFAs are usually sticky subjects politically, they may take several months to institute. That leaves soldiers vulnerable for months. A SOFA is insurance against an event we hope will never come, but will be terrible for any soldier involved and highly embarrassing for the nation if it does come. While it may be nice to play nice with the Iraqis, the safety and rights of soldiers demand we negotiate and implement a SOFA now, BEFORE its needed.

Today, word comes from the AP (via Boston Globe) that the Iraqi Governing Council and Ambassador Bremer have decided to delay the negotiation of a Status of Forces agreement. This is the agreement that defines the legal relationship that American troops have with the host nation.

The lack of agreement will not affect the presence of U.S. forces, but it could leave their relationship with Iraqi security forces undefined along with rules of engagement. There also could be a question of who would prosecute U.S. soldiers charged with crimes while serving in the country.

Top American occupation and military officials seemed unconcerned that an agreement would not be signed before the transition, saying U.S. troops will stay in Iraq as long as they are welcome.

''The consensus is there is a role for U.S. forces here,'' said Dan Senor, a spokesman for the U.S.-led coalition.

Iraqi Governing Council member Adnan Pachachi said the status of forces agreement should wait until a provisional government takes power June 30 because the U.S.-picked 25-member council ''is not considered sufficiently representative.'' The council serves as a temporary Iraqi administration.

ANALYSIS: The US authorities tell us not to worry. THERE IS cause for concern, however. Status of Forces Agreements (SOFAs) are usually Priority One for JAG attorneys deploying into an area of operations. Without a SOFA, US troops could be completely subject to local laws should they fall into local custody. In underdeveloped or unstable countries like Iraq, SOFA agreements usually require that US troops be tried in US courts-martial due to concern about the fairness and propriety of local courts. Other procedural safeguards for US troops are secured as well. The consensus between Iraq and the US seems to be that the SOFA will be worked out AFTER the transfer of sovereignty. If that happens, however, troops who get separated from their unit, or who may even be kidnapped, might be subject to Islamic Law in an Iraqi court. That should be cause for concern. The safest route is always to have the SOFA be in force BEFORE sovereignty is handed over.

Given the unintended timing of the filing of our Amicus Brief with President Bush's statement in support of a gay marriage ban, I'm afraid the merits of our argument for the Solomon Amendment may get lost in the uproar over discrimination against homosexuals. Here's where the Centrist stands:

- I support the right of two men or two women to enter a committed relationship together and have that relationship recognized by the law.

- I oppose a Constitutional Amendment banning gay marriage. The political capital required to pass such a measure could better be spent on other issues Republicans should focus on. While I'm not sure that the 14th amendment requires actual marriage rights for same-sex couples, I am sure that a policy that divides people instead of unites them should not be enshrined in our most sacred political document.

- I oppose the military's ban on homosexuals serving openly. The main argument - unit cohesion - is a red herring in my experience. I have served with many men, officers and enlisted, who were gay, some openly, and their service did nothing to ruin unit cohesion. The "gay bashing" at Fort Campbell is an anomaly; most soldiers will respect a competent comrade even if they are gay, and will despise an incompetent one even if they are straight. In my experience, the gay ban is used selectively against soldiers that commanders want out of a unit in the most expeditious fashion, and is ignored for those who are liked by a command.

- My position on the Solomon amendment is not inconsistent with my views on "Don't ask, don't tell." You shouldn't be able to fight homosexual discrimination by conducting equally invidious discrimination against current and former members of the military. There's nothing wrong with protesting the homosexual ban. There is something wrong with not allowing members of the military to take part in the same debate. The free marketplace of ideas requires that EVERYONE, including those with who we disagree, be able to participate.

Today, Howard Bashman of How Appealing fame, filed a brief on behalf of three law school veterans associations supporting the constitutionality of the Solomon Amendment in FAIR v. Rumsfeld, a case currently before the US Court of Appeals for the Third Circuit. For those unaware of the issue, the Solomon Amendment requires all universities receiving federal funding to provide access to military recruiters to ensure our Armed Forces have access to our nation's best and brightest. Many law schools have traditionally excluded military recruiters on the basis that they do not allow homosexuals to serve openly, in violation of school discrimination policy for employers.

The brief advances three main arguments in support of the Solomon Amendment (quoted from Press Release):

- The military will suffer from the JAG corps' inability to effectively recruit on law school campuses, both in its operational needs for lawyers and its obligation to provide effective legal representation to military personnel.

- Law students interested in the economic and educational opportunities of military service will suffer if law schools restrict their access to military recruiters on campus, or if career service offices decline to offer critical information about the military to students to best situate them for future career decisions.

- Veterans enrolled in law school will suffer from having an organization they served in summarily removed from campus solely because the military complies, as required by federal law, with the "Don't Ask/Don't Tell" statute, which has been deemed constitutional by every court that has considered its legality.

Veterans organizations from UCLA School of Law, College of William & Mary School of Law, and Washburn University Law School are represented in the brief. The amicus brief of the veterans organizations, as well as the press release describing the brief, can be found at the UCLAW Veterans Society web site.

DISCLOSURE: The Centrist is a member of the UCLAW Veterans Society, a party in the amicus brief, and is a contributing author to the brief.

Don't trust the pundits: read Bush's Statement for yourself via CNN.com.

Today, word from MSNBC that the Army has decided to scrap the 25 year, $8 billion behemoth that is the Comanche Reconnaissance Helicopter. There will be much military analysis and finger pointing over this one; I'd like to sidestep the political issue and deliver a much more personal epitaph for the much-troubled helicopter.

When I first arrived at West Point 11 years ago, I thought that I would become an Engineer; I had pretty good math grades and that's what my dad always told me I would be good at. About three months into my plebe year, I went to the bookstore and bought my first computer game for my first IBM clone computer: NovaLogic's Comanche. I got hooked on that game, and from then on I knew I was going to be an Army Aviator, if for no other reason than to fly that dream piece of machinery. In January of 1994, the Owner's Manual of that software game said that Comanche would enter production in 1997. I could just taste it-the minute I graduated, I would be thrust into that technological Mercedes of the sky.

Well, 1997 came and went, I graduated and reported to Fort Rucker for flight training. Comanche wasn't here yet, so all of the really sharp officers decided to apply for Kiowa Warrior training. This is a 1970's era helicopter that has been modified with early 90's-style computerized instruments and weaponry. We knew that if we picked this aircraft, we'd be first in line for Comanche training when it was promised to us: late 2002. We were steely-eyed and rearing to go, knowing that after our first tour, Army Aviation would finally realize the dream of Force XXI, and we'd be flying the top of the line helicopter in the world.

Fast forward to 2002. After serving in two demoralizingly mundane peacekeeping missions in the Balkans, the steely-eyed romanticism of Army Aviation had worn off. We were sitting in a room, listening to a lecture by a Chief Warrant Officer from Project Comanche who was assuring us that this was still the top priority of the Army leadership and that it would be around in 2007. But we had heard enough lies by then. We saw the writing on the wall. There was a new SecDef in town and he wasn't very happy with Crusader or Comanche.

Never mind that Apache was based on 1970's technology and that all of our Kiowa airframes were built between 1968 and 1970. Never mind that our reconnaissance aircraft would wear out in 2012-2014 and there were no replacements on the horizon. Never mind that in the four years I spent flying the Kiowa, maintenance costs per flight hour more than doubled due to airframe aging. Never mind that we were flying our aircraft three-times the annual flight hour program that they were allotted. Once again, we knew we would soon be asked to do more with less.

We all knew this Warrant Officer talking to us was either lying through his teeth or hopelessly in denial (like we were a few short years before). There were a variety of reactions to the writing being on the wall. Some lucky few were selected for special ops aviation, where modernization actually happens instead of being a buzzword. Some jetted out of the Army completely, totally disillusioned with the process. Some of us (like myself) still wanted to serve our nation, but only in a branch with a future that the top leadership would support. A courageous few are still in the trenches, fighting the good fight, unsupported by any kind of vision for the future for Aviation.

What does all this mean? It could just be a story of naivete lost, of a junior officer realizing one ugly aspect of budgetary realities. Maybe the Comanche is an old war relic. Maybe it is based on old technology and costs too much. But if that's the case, then what IS the future? Are our soldiers doomed to flying aging aircraft that, over the years, will more and more resemble the "flying coffins" that General Billy Mitchell warned against? Clearly, with the death of Comanche, Aviation is no longer part of Force XXI modernization. What will the Army do to bring Aviation back into the modernization plan? How will they capture the imagination of our nation's best and brightest, who, like I did long ago, yearn to fly the best of the best?

NOTE: Thanks to Unlearned Hand for the heads up.

From Michelle Boardman of Volokh Conspiracy membership, informs us about a Web Program that asks: Which Federal Rule of Civil Procedure are You? I'm Rule 15:

YOU ARE RULE 15! You're a very helpful rule! You allow the attorney to amend their complaint once as a matter of course at any time before the answer is filed, and also allow amendments in other cases. If a claim relates back to the original transaction or occurrence outlined in the complaint, you can amend the complaint, even though the statute of limitations has run. Like a good friend, you're always there to help out in a bind.

Much ado about Nader's announcement to run for President has been made in the blogosphere today, but another, equally earth-shattering admission was made on NBC's Meet the Press was made as well. Governor Arnold Schwarzenegger, in his first Sunday talk show appearance as a sitting governor, admits that any foreign-born citizen should be able to run as well, and that he would support a constitutional amendment for that end. "There are so many people in this country that are now from overseas, that are immigrants, that are doing such a terrific job with their work, bringing businesses here, that there's no reason why not," said Schwarzenegger. "Look at the kind of contribution that people like Henry Kissinger have made, Madeleine Albright," he said. When asked about a run for the White House, he said he was too busy with "California's problems," and that "I have no idea, I haven't thought about that at all."

Yeah, Arnold, you're so busy with California's problems that you're suing mayors over gay marriage and showing up on Sunday talk shows to talk about a Constitutional Amendment to help you run for an office you'd be a frontrunner for but are somehow "too busy" to think about. Arnold, stick to one Constitutional Amendment at a time. You should probably concentrate your efforts on props 57&58 too, cause if you don't win those, you'll lost your job because you spent too much time getting your next one.