LAW FROM THE CENTER

JAG CENTRAL - Launches June 1st!

2004-05-12T09:21:00.000-07:00

Law From The Center will be discontinued May 30!

June 1, look for the new weblog, JAG Central, the world's first weblog devoted to military justice and military law issues! Reviews of court opinions, recent developments, as well as "hot topics" such as military tribunals and the Iraqi prison scandal. A resource you can't miss!

SOFA NEEDED SOON FOR US TROOPS IN IRAQ

2004-04-23T16:00:00.000-07:00

Fox News runs a story today about the progress (or lack of) of negotiating a Status of Forces Agreement (SOFA) with the emerging Iraqi government. After the transfer of authority on June 30, Iraqis will be in charge of the criminal justice system. Without a SOFA, US troops who commit crimes in Iraq could, at least in theory, be tried by Iraqi courts. Although a SOFA was originally supposed to be in place by March 30, three months before sovereignty transfer, members of the governing council have indefinitely shelved the issue (I wrote about that development here and here). Some options in place of a sofa:

1. Prior UN Resolutions. Since prior UN resolutions governing Iraq have never been technically repealed, US forces could cite the language in them describing us as an "occupying force," granting us exclusive criminal jurisdiction over our own troops.

2. SOMA (Status of Mission Agreement). Assuming that the US is successful in getting the UN a greater role in the development of a successor Iraqi government, a SOMA could grant us exclusive criminal jurisdiction. A SOMA is an agreement with the UN similar to a SOFA with a specific nation.

As I wrote earlier, we need to promulgate some theory of exclusive criminal jurisdiction soon, to ensure that our troops our not stuck in a legal "no-man's land."

MY BOSS, THE "SECRETARY OF SWEET TUNES"

2004-04-22T21:59:00.000-07:00

You heard it on MSNBC's Countdown; you heard it this morning on NPR. Now hear it yourself. That's right, The Poetry of Donald Rumsfeld a collection of songs by an enterprising Santa Monica musical duo, of which the lyrics are taken verbatim from Pentagon press briefings with Secretary of Defense Donald Rumsfeld. Click here to hear the most popular song, "The Unknown:"

As we know,
There are known knowns.
There are things we know we know.
We also know
There are known unknowns.
That is to say
We know there are some things
We do not know.
But there are also unknown unknowns,
The ones we don't know
We don't know.

CENTRIST MEDIA WATCH: SETTING THE CHAPLAIN "GAG ORDER" STRAIGHT

2004-04-21T20:57:00.000-07:00

Today, ABCNEWS.com ran a story regarding the warning memorandum issued to Chaplain James Yee, which I told you about here. The story reads:

The letter, received on April 6, informed Yee that as a soldier he is ordered — with threat of punishment under the Uniform Code of Military Justice — to refrain from any speech violating what sound like fairly vague and malleable criteria.

"Speech that undermines the effectiveness of loyalty, discipline, or unit morale is not constitutionally protected," Whitaker wrote. "Such speech includes, but is not limited to, disrespectful acts or language, however expressed, toward military authorities or other officials."

(Read the letter sent to Yee.)

Yee is also barred from any "(a)dverse criticism" of the Department of Defense "or Army policy that is disloyal or disruptive to good order and discipline."

Yee's attorney, Eugene Fidell, told ABCNEWS: "The punch line is, 'Pal — you're walking in a minefield and we're not going to tell you where the mines are, proceed at your own risk.' "

Fidell says the letter defines prohibited speech so broadly, Yee is effectively barred from saying anything about his ordeal since "adverse criticism" of the "Army policy" that resulted in his detention would certainly qualify in the list of forbidden topics.

Well, maybe... but, the Army isn't treating him any different than any other soldier either. The memo, after every item, cites the source of the warning. The particular orders in the memo correspond almost verbatim to the cited regulation. Chaplain Yee is simply being warned of the restrictions on speech that apply to any soldier. Mr. Fidell's statement that his client doesn't know "where the mines are" is simply not true. Chaplain Yee spent 4 years at West Point. He knows exactly when to keep his mouth shut and when it's OK to open it. Besides, he has the Johnnie Cochrane of the military world to talk for him. Click here to see the memo for yourself.

10TH CIRCUIT UPHOLDS MY LAI CIVIL SUIT DISMISSAL

2004-04-19T20:17:00.000-07:00

Nearly 33 years after the My Lai massacre in Vietnam and the court-martial of Lieutenant Calley, the US Court of Appeals for the 10th Circuit upheld (from AP) the dismissal of a civil suit against Calley and other soldiers by Vietnamese citizens. The sole basis for the ruling appears to be that the 10-year statute of limitations has well passed, and that the poverty and unfamiliarity with the American legal system of the Vietnamese survivors cannot overcome this procedural bar. No word yet on whether or not the group will petition for certiorari.

McDONALDS' CHIEF PASSES AWAY...

2004-04-19T19:46:00.000-07:00

...of a heart attack. My condolences go to the Cantalupo family. That said, does anyone else see the irony?

WHY YOU SHOULD ALWAYS CHECK GOOGLE NEWS BEFORE YOU BLOG

2004-04-12T16:21:00.000-07:00

David Bernstein from the Volokh Conspiracy writes at 12:08 p.m. PDT:

Justice Scalia really ought to apologize to the reporters whose recordings of his speech were illegally seized and erased by federal marshals.

Nikki Maute writes in the Hattiesburg American at 1:41 p.m. CDT (11:41 p.m. PDT): "SCALIA CHANGES PRESS POLICY; Plans to apologize to American reporter."

ARMY TELLS GUANTANOMO CHAPLAIN TO KEEP QUIET

2004-04-10T01:30:00.000-07:00

Ann Woolner of Bloomberg News writes a fairly partisan column about the supposed inability of the Bush administration to "apologize." Without getting into the politics of the matter, her column uncovers another key fact in the Chaplain Yee case. Chaplain Yee's superiors have told him to shut his mouth about the case:

If Yee has a problem with any of this, the Army has advised him to keep it to himself. This week his commander wrote Yee, advising him to squelch any ``adverse criticism'' or face possible discipline.
. . . .
What Yee has received from higher-ups is a memorandum from the commander at his new assignment near Seattle advising him to be careful what he says in public.

``Speech that undermines the effectiveness of loyalty, discipline, or unit morale is not constitutionally protected'' under military law, Lieutenant Colonel Marvin Whitaker said in the memo released by Fidell.

``Adverse criticism'' of the military ``that is disloyal or disruptive to good order and discipline'' is also restricted.

What in the world could Yee possibly say that might be the least bit critical of the military?

I hadn't heard about the memo yet, but I must say that I'm not the least surprised, nor do I disagree with the memo. The memo falls short of prior restraint by merely advising Chaplain Yee on the state of military law regarding disloyal statements about the chain of command. Since it's not a gag order, it seems appropriate. Until the day Chaplain Yee takes off his uniform (which will be as soon as his reprimand appeal is over), he is an officer in the US Army and is expected to maintain the highest standards of personal discipline. It may seem like a slap in the face to shove this memo in Chaplain Yee's face after he has been subjected to pretrial confinement for a capital offense, only to have all charges dropped later. But it remains Chaplain Yee's duty to support the service until he leaves. I'm confident he'll let old Mr. Fidell do the talking for him.

CENTRIST PROPAGATING THE SPECIES

2004-04-09T09:58:00.000-07:00

It's official - the Centrist is going to be a daddy. What to plan for the new child? Dave Barry suggests handing it to famous people and taking photos.

UPDATE - MARINE CLEARED OF PARACHUTE SABOTAGE CHARGES

2004-04-08T20:55:00.000-07:00

A court-martial panel cleared a Marine Rigger Sergeant of charges involving the sabotage of 13 parachutes. Story from The New Bern Sun Journal. I predicted the opposite result here. Shows what I know.

CAAF CLARIFIES (OR MUDDLES) INEFFECTIVE ASSISTANCE OF COUNSEL

2004-04-08T20:20:00.000-07:00

Today, the Court of Appeals for the Armed Forces (CAAF) handed down an opinion in U.S. v. Adams, a case involving ineffective assistance of counsel. The case involves an Army Specialist who was convicted of rape and adultery. At trial, he contested the voluntariness of his confession. He wished to assign error to the trial military judge's refusal to exclude the confession, and hired a civilian lawyer to represent him before the Army Court of Criminal Appeals. Unfortunately, the civilian lawyer never confirmed that the military lawyer (you always keep your military lawyer even if you hire a civilian lawyer as lead counsel) actually filed the appeal after he sent it over e-mail. To make matters worse, the civilian lawyer and the two subsequent military lawyers never communicated to each other or tried to fix the mistake. Pretty ineffective, right? NO. CAAF held that for many reasons, the error did not rise to the level of "ineffective assistance of counsel."

According to the Supreme Court as laid out in Strickland v. Washington, 466 U.S. 668 (1984), the claim of ineffective assistance of counsel has two components. First, a convictee must prove both deficient performance and prejudice. To the court's credit, they correctly pointed out that after the trial judge allowed the confession in, the defendant pled guilty in a provident manner, thereby waiving the ability to challenge the ruling on appeal. Since the ruling could not be challenged, and that was the only assignment of error that was raised on appeal to CAAF, the court had no choice but to find that there was no prejudice. If the court had stopped there, everything would be fine.

Unfortunately, Judge Erdmann included some truly troubling dicta that threatens to erode the court's jurisprudence on ineffective assistance of counsel, only days after the Army Court of Criminal Appeals ruled the other way in the Fort Bragg Ranger Murder death penalty case. First, the court suggests that simply because a military lawyer was assigned, and because he filed some cursory paperwork, that this was effective assistance:

Addressing those facts, we said, “Where, as in this case, appellate counsel do nothing, an appellant has been effectively deprived of counsel, and prejudice is presumed.” May, 47 M.J. at 481.

Adams, however, was not wholly unrepresented before the Court of Criminal Appeals. At all times he had detailed military appellate defense counsel who undertook various actions in the case. The initial military counsel communicated with Mr. Cassara, ascertained that Mr. Cassara would represent Adams before the Army court and thereafter filed several motions for continuance. The next military counsel did not contact Adams or Mr. Cassara, but did file three motions for continuance.

Frankly, the notion that simply filing motions of continuance equates to effective assistance of counsel is troubling, especially considering the horrific performance of the attorneys in this case. It certainly comes closer to "doing nothing" than it does to actively defending the client.

Second, the court (as have previous courts in case after case) relies heavily on the Strickland v. Washington doctrine, developing a body of case law that largely parallels that of the various civilian Courts of Appeal. This alone should be cause for concern. Civilian courts have been very hostile to ineffective assistance of counsel claims. Military appeals courts face a different set of public policies. Military members "ha[ve been] provided . . . with counsel rights broader than those available to their civilian counterparts . . . [because of the] unique nature of military life, in which members are subject to worldwide assignment and involuntary deployment under circumstances when civilian counsel are not readily available." U.S. v. Spriggs, 52 M.J. 235, 237 (C.A.A.F. 2000). Military members receive rights greater than civilian defendants in the areas of rights warnings and pretrial discovery. In the realm of counsel, military members receive military counsel regardless of the ability the pay, unlike the civilian arena where you only get one if you can't afford an attorney, and only at the "critical stage." Given this background of broad rights, and after the Army Court's opinion two weeks ago in Kreutzer, why would CAAF write such dicta? Why doesn't the court depart from civilian jurisprudence (a doctrine that is almost uniformly assailed by the academic community) and fulfill the promise of the UCMJ in guaranteeing truly effective assistance of counsel?

MARINE RIGGER BEGINS DEFENSE IN SABOTAGE COURT-MARTIAL

2004-04-06T00:34:00.000-07:00

Via the AP, word comes that the prosecution has rested in the court-martial of a Marine accused of conspiring to sabotage military parachutes:

Three Marines nearly died when they used parachutes allegedly damaged at the behest of Cpl. Clayton A. Chaffin, a 28-year-old air delivery specialist from Franklin, Ohio. Reserve chutes slowed their descent. He's charged with conspiring to cut the lines on at least 13 parachutes used during a Sept. 21, 2002 training exercise. The prosecution also accuses Chaffin of trying to frame another Marine for the crime.

Gunnery Sgt. Keith Johnson, a former 2nd Air Delivery Platoon sergeant, testified on Monday that Chaffin's command frequently counseled him about his finances and certain military issues. He also said officials declined to recommend Chaffin for promotion to sergeant five or six times before incident.

Johnson testified that pre-jump equipment protocol focused on external checks, meaning "any internal tampering would go undetected."

This is truly a bizarre case. The article says that the Marine is only being charged with, among other things, assault likely to produce grievous bodily harm (Art 128, UCMJ, 10 USC 928). Not having the case before me, I think a good case could be made for attempted murder (Arts. 80 & 118, UCMJ, 10 USC 880, 918). Any rigger would know that cutting the lines on a parachute would be likely to cause death, and I think an argument is easy that because of this knowledge, the rigger premeditated the deaths of the jumping Marines.

Another thing about this case catches my attention. The article notes that the accused Marine's platoon sergeant thought that "pre-jump equipment protocol focused on external checks, meaning 'any internal tampering would go undetected.'" That may be so, but there usually is another check on this process. I know that in Army Airborne units, riggers must be Airborne qualified. This is because they are subject to no-notice jumps when they must jump with a randomly-selected parachute that that very rigger has packed. Does this procedure exist in the Marines? If not, I think this case would be argument for it to be instituted. Riggers are less likely to screw with the chutes if their own lives are on the line.

JOKE'S OVER...

2004-04-02T23:14:00.000-08:00

...How Appalling is no more.

WHAT'S IN A (FIRST) NAME

2004-04-02T14:45:00.000-08:00

Will Baude of CrescatS writes about using blogger's first or last names. Speaking specifically about professors like Eugene Volokh:

Co-bloggers nearly always refer to one another by first name, but I can't imagine referring to a post by Volokh with "Eugene says," even if I were commenting on a Jacob Levy post that used precisely that phrase.

Being a UCLA student and having Prof. Volokh as a professor, I must add that I couldn't imagine calling him Eugene. He has invited me to several times. For instance, when he calls me on the phone to discuss Law Review stuff, he always says, "Eugene here." But I always call him Prof. Volokh. It's the same with my Law Skills prof; he always says Jason but I call him Prof. Light. Maybe it's my long years in the military, or just my desire to be a professor myself someday, but I just can't shake the social order of the university.

WHY I'M GLAD I'M GOING TO UCLA...

2004-04-02T11:28:00.000-08:00

...I get to escape infantile BS like this. David Bernstein talks about rankings hysteria not only in law school, but when looking for a job. How sad.

MORE THOUGHTS ON NEWDOW

2004-03-30T23:03:00.000-08:00

DC Law Studentwrites:

I agree with the Government that recital of the pledge is a patriotic exercise, not a religious one. Just because "under God" is contained in the pledge does not alter the inherent patriotism of the event. Students are affirming their belief in the values and ideals of our country, and vowing to honor the symbols that reflect those beliefs. If they disagree with the notion that belief in a supreme being heavily influenced the founding of our Nation, they can simply not recite those two words in the Pledge, or not recite it at all. But I do not buy that these two options amount to an unconstitutional coercion. Yes, peer pressure sucks, but there must be more than a stare, giggle, or finger-pointing to violate the First Amendment.

Finally, I want to mention the fact that I am an adherent to the concept of "ceremonial deism." I believe that there are some religious words, phrases and practices that, although appearing religious on their faces, and perhaps orginally started as a purely religious matter, after continuous repetition throughout history in a secular manner become non-religious in nature.

This reminds me of an interview President Reagan did on TV. He was telling a story about how he met Gorbachev in Reyjavik, Iceland during the famous summit there. He was having a "private" conversation with Gorbachev, and Reagan heard the translator say, "God willing." Reagan was taken aback. Don't Communists disavow God as a construct of the bourgeoisie to persecute the proletariat? Reagan asked about the phrase, and Gorbachev told him that it was just a figure of speech, and that he had no belief in a higher being.

Even in Communist Russia, the leader of the world's most powerful Marxist regime used the word "God". Using the word does not turn you into Pat Robertson.

GOVERNMENT FILES BRIEF IN HAMDI CASE

2004-03-30T22:17:00.000-08:00

Late Monday, the Solicitor General filed a brief in the Hamdi case, challenging the ability of the government to hold US citizens labeled enemy combatants without contact with a lawyer or a prompt filing of charges.

"When the commander-in-chief has dispatched the armed forces to repel a foreign attack on this country, the military's duty is to subdue the enemy and not prepare to defend its judgments in a federal courtroom," wrote Solicitor General Theodore Olson, on behalf of the government, which is seeking affirmation of a lower court ruling saying the detention of Yaser Hamdi is constitutional.

The brief continues:

"In this extraordinarily sensitive national security context, the [Supreme] Court should be wary of adopting a means of testing the validity of an enemy combatant's detention that defeats one of the important military functions served by that detention," Olson wrote.

The actual brief can be found here. The Government's arguments seem rather solid. First, it argues that the Court has said in two cases during the WWII/Korea War era that US citizenship provides no immunity from detainment in a POW camp. Classic stare decisis, and wartime stare decisis is the strongest kind. Second, it argues that, in accordance with Justice Jackson's opinion in Youngstown Sheet & Tube Co., the President's power is at its zenith during times of war. Since determining whether someone is a enemy combatant is an area where the military (as agent for the President) has a unique competency in, and that arguably most Article III judges have zero experience with, the decision of the Executive in this area demands the highest degree of deference. Finally, DOJ concedes that SOME level of habeus review is warranted. However, since the military deserves high deference, the government should only have to show a rational basis for the detention, supported by SOME showing of factual basis. Not the typical preponderance that is required in habeas procedings.

This brief was far better written than the last DOJ brief that I told you about here in Rasul v. US (the Guantanomo non-citizen case). Instead of following a scorched-earth policy that flips the bird to the court, in this week's brief, the DOJ conceded what it had to concede in order to gain credibility with the tribunal. By conceding limited jurisdiction to the court, it allows the Supreme Court to institute an extremely deferential standard in Habeas proceedings. Given the Rehnquist court's current war on habeas, I think the outcome in this will be easy to predict. And while, in other habeas cases, the liberals on the court have dissented, I don't think this is a sympathetic case. I predict at least a 7-2 decision, if not 9-0.

A VISIT FROM ON HIGH...

2004-03-28T21:44:00.000-08:00

Tonight, looking at my SiteMeter statistics, I noticed I was visited by a nameless surfer from "Supreme-court.gov." Click here for the proof.

How humbling. Could it be that one of the mysterious 9 is perusing my site? Perhaps pondering intently over my musings about military jurisprudence? After all, they did load the site twice, and spent over 1 minute viewing the contents! Maybe they are using me to channel the long-forgotten intent of our dead white framers! Might my infamous post, THIS MARINE HAS BALLS, find its way into the United States Reports? One can only dream...

CENTRIST STILL SCRATCHING HIS HEAD...

2004-03-28T21:12:00.000-08:00

For those who can't get enough of Log Cabin Republicans, surf on over to Right Side of the Rainbow, "News & commentary on law and politics by a right-of-center, gun-owning, gay Texan." OK, now my head hurts.

HUMAN INTEREST PIECE ABOUT OUTSPOKEN MARINE LAWYER

2004-03-27T22:41:00.000-08:00

Raymond Bonner of the NY Times runs an intriguing article examining the personal side of Marine Major Michael Mori (I've written about him here, here, and here), the outspoken JAG attorney representing an Australian Guantanomo detainee coming up for a military tribunal:

What you see is not necessarily what you get.

That was the common reaction here to Maj. Michael Mori, an intense, energetic, 38-year-old American who became a near celebrity in Australia when he was here earlier this month.

He is an officer in the United States Marine Corps and looks it - powerful physique, chiseled features, military haircut. But when he speaks, he sometimes sounds like a lawyer for the American Civil Liberties Union, sharply criticizing the Bush administration's policy toward the detainees at GuantÀanamo Bay, Cuba, calling the military tribunals before which some will be tried ``kangaroo courts.''

``We can't work it out,'' said Minna Muhlen-Schulte, an art student at the University of New South Wales, referring to the disconnect between Major Mori's image and his views. Having seen him on the news, she had come to hear him in person.

Major Mori sees no contradiction. He is an American, and he is a marine. But he is also a lawyer for David Hicks, an Australian who was captured in Afghanistan more than two years ago and has been held at GuantÀanamo since. Major Mori was in Australia to investigate the case, and has been besieged by television, radio and print journalists.

``What I'm saying about the system isn't leftist,'' he said one recent morning here, speaking of the tribunals. ``It offends my understanding of what justice is that's been ingrained in me by the Marine Corps and by my legal training.''

Major Mori describes himself as apolitical - he says it does not matter to him if there are four more years of President Bush, ``followed by eight years of Jeb,'' or if Senator John Kerry is the next president. He says his objections to the military commissions are the same as those the Bush administration has to the International Criminal Court. Both have unchecked power, and both can be misused for politically motivated prosecutions, he said.

THE OTHER SIDE OF THE SCALIA RECUSAL DEBATE

2004-03-27T21:20:00.000-08:00

As any good centrist, I offer the other side a chance to voice their opposing viewpoint. I gave you my thoughts about Scalia here. From the Orange County Register, a cartoon response to my views.

Thanks to Howard for the heads up.

BLAWG SATIRE

2004-03-27T20:16:00.000-08:00

I nearly fell out of my chair when I saw this one: How Appalling, a to-the-T spoof of Howard Bashman's How Appealing. Even though this man represented my organization in Federal court, I highly recommend the spoof blog. Thanks to De Novo for the heads' up.

3000 HITS IN 9 WEEKS...

2004-03-27T19:11:00.000-08:00

Thanks everyone!!!

BLATANTLY MISQUOTING MARINES?

2004-03-25T23:40:00.000-08:00

Marine Major Michael Mori, who I've told you here and here is displaying incredible courage in uncharacteristically publicly defending his Guantanomo detainee clients, is speaking up again. The Mail and Guardian (South Africa) reports:

Earlier Major Mori said that labelling the defendants as terrorists had allowed the US government to lower its standards of justice. He said the system lacked checks and balances, such as a truly independent appeal process.

'The appointing authority, who approves the charges, is the same person who gets to rule on defence motions,' he said. 'He is basically reviewing his own decisions ... it's like letting the bowler call leg before wicket."

HUH? "Call leg before wicket?" OK, whoever you are from South Africa, little lesson in Journalism 101: If you're going to blatantly misquote somebody, make sure you do so with a figure of speech that that person actually uses in his or her native country. That way, everyone in America won't catch your apparent lack of ethics. Something tells me Major Mori didn't learn how to play cricket in Quantico, Virginia, or at any other Marine training for that matter.

UPDATE 1: My further research shows that this South African story is taken verbatim from a story which the Guardian (UK) ran here. So is the Guardian guilty of blatant misquoting? I'm writing the editor to clear this up. Maybe the good Marine actually used a cricket analogy to curry favor with his Australian defendant's countrymen, but I doubt it. Stay tuned...

HOUSE COMMITTEE VOTES TO EXPAND SOLOMON AMENDMENT

2004-03-25T22:46:00.000-08:00

The Yale Daily News today reported that last week, the House Armed Services Committee approved a bill that expands the Solomon Amendment power to withhold federal funding from schools that block access to military recruiters. Currently, the Solomon Amendment only affects DoD funds. If the "ROTC Military Recruiter Equal Access to Campus Act" passes, Homeland Security, CIA, and DOT funding could be cut as well.

As I've told you here and here, and here, I helped write our Amicus Brief in the FAIR v. Rumsfeld case, the case that is challenging the original Solomon Amendment. Generally, I support all efforts to help military recruiters to fight the good fight and recruit the best possible candidates for service. Unfortunately, while I think the bill's intentions are noble, I think the timing may be bad. One of the Solomon Amendment opponents' key arguments is the slippery slope argument: if they give up "academic freedom" on this issue, it will be taken away more and more easily in the future. This bill only gives that argument more ammunition. Also, this bill may actually weaken the Solomon Amendment, as it specifically defines a violation as refusing to give equal access to military recruiters. The Solomon Amendment has a much more bright-line standard, allowing DoD to cut funding any time military recruiters are blocked, not just for failing to give "equal access." Finally, this bill expends precious political and media capital that could be better spent on defending the current Amendment in court and in the media.

All leaders, military or Congressional, need to know when and how to engage the enemy. This may be a battle to avoid so that the war for military equality and veterans rights can be won.

BUSH TV ADS MEET QUIZNO'S RATS

2004-03-25T14:33:00.000-08:00

UPDATE ON BUTLER TRIP TO SCOTUS

2004-03-25T11:39:00.000-08:00

I consider Amanda Butler an e-friend, so she should consider the following reprint from the Volokh conspiracy as friendly ribbing:

How do University of Chicago students spend their spring breaks?

Well, Crescat's Amanda Butler went to the oral arguments for Newdow, and files this extended report.

UPDATE: Will Baude and Amy Lamboley went to the Met instead, though Will spent last Spring Break at the Supreme Court. Meanwhile, Slate has sent a reporter to cover the other side of Spring Break, reporting on activities I'm told some non-Chicago students indulge in.

I should note for the record that when I went to college, US News And World Report did a survey of 300 colleges to determine the top party schools. My alma mater, the United States Military Academy at West Point, was rated #299. The dead last school: you guessed it, the University of Chicago. I mean, come on, what kind of mascot is a Maroon anyways?

NEWDOW MAKES SCOTUS LAUGH, REHNQUIST SCORN - WITH INACCURACIES

2004-03-24T19:09:00.000-08:00

From transcripts and secondary sources, it appears that Dr. Michael A. Newdow delivered an eloquent and masterful argument before the U.S. Supreme Court today, even if it fell mostly on deaf ears. Most justices from both sides of the political and ideological aisle expressed extreme skepticism at his hardline stance against the words "under God" in the Pledge of Allegiance. The highlight of the argument happened when Chief Justice Rehnquist tried to pick apart Newdow's contention that the words "under God" are divisive (story here via NYTimes.com):

For example, when Dr. Newdow described "under God" as a "divisive" addition to the pledge, Chief Justice William H. Rehnquist asked him what the vote in Congress had been 50 years ago when the phrase was inserted.

The vote was unanimous, Dr. Newdow said.

"Well, that doesn't sound divisive," the chief justice observed.

"That's only because no atheist can get elected to public office," Dr. Newdow shot back.

The courtroom audience broke into applause, an exceedingly rare event that left the chief justice temporarily nonplussed. He appeared to collect himself for a moment, and then sternly warned the audience that the courtroom would be cleared "if there's any more clapping."

The Times did a good job of capturing the Courtroom moment. However, it appears that nobody did a good job of researching Dr. Newdow's contention. Indeed, it appears that atheists can get elected to very high office. Culbert Olson was elected Governor of California in 1938 and held office for four years. He was raised in the Mormon Church but rejected religion at an early age. After serving as Governor, he served as President of the United Secularists of America. Anyone know of any Federal officeholders who were atheist? NOTE: The Centrist is NOT an atheist, although he rarely wakes up from his drunken hangover early enough to attend church.

UPDATE 1: Amanda Butler of CrescatS spent her Spring Break hearing oral arguments in the Pledge Case. Her extended report of the arguments beats hands down any professional journalism of the case that you will see.

UPDATE 2: Will Baude of CrescatS has this post on this particular exchange between Rehnquist and Newdow.

Still, Supreme Court Justices (especially those who are relatively skeptical about the use of legislative history) should be wary when using 50-year-old history about the actions taken by publicly elected officials during a time of political persecution.

Valid point...they should especially be wary when the attorney (Newdow) makes the crowd laugh with a completely erroneous assertion of history. The fact is, many atheists have been elected, and many many more are probably just going through the motions when they talk about the Almighty.

CHAPLAIN'S CHARGES DROPPED - ADMINISTRATIVE REPRIMAND ISSUED.

2004-03-23T20:04:00.000-08:00

Story Here.

DE NOVO IS BORN

2004-03-15T17:46:00.000-08:00

If you've been hiding under a rock in the blawgosphere lately, the former En Banc crew has launched probably what is the best, most insightful, and most thoroughly non-agenda-seeking blawg out there, De Novo. Check it out.

ARMY DEATH SENTENCE OVERTURNED

2004-03-12T13:49:00.000-08:00

The US Army Court of Criminal Appeals overturned both the conviction and death sentence of Army Sergeant William J. Kreutzer, convicted of killing an Army Major and wounding 17 others when he played sniper and shot into a formation of defenseless soldiers conducting morning physical training. See the NYTimes.com article here. Thanks to the Intel Dumper for the heads up. More to follow...

ARMY CONSIDERS DROPPING GUANTANOMO CHAPLAIN CASE

2004-03-12T13:00:00.000-08:00

Looks like Army Muslim Chaplain James Yee might be completely cleared of all criminal charges, according to the NY Times (registration required).

The military is considering settling the case of Capt. James J. Yee by dropping all charges against him and allowing him to leave the Army with an honorable discharge, officials said. Captain Yee, who was the Muslim chaplain at the naval base at Guantánamo Bay, Cuba, had been suspected of espionage but was charged with transporting classified information without a required secure container. He was also charged with adultery and keeping pornography on his computer.

ANALYSIS: I predicted this outcome here from the remarks of his lawyer, Mr. Eugene Fidell. As my colleague the Intel Dumper commented, the Army really shit the bed on this one. What they should have done was kept their big mouth shut and lower expectations, instead of doing the perp walk on him. That was just setting their case up for failure. Kudos goes to the accused for picking Mr. Fidell, probably the best lawyer you could find in this kind of situation. It will be interesting to see how long the settlement will take, and what Chaplain Yee will do with his life once he is out.

"FRAGGER" COURT-MARTIAL DATE SET

2004-03-10T17:07:00.000-08:00

The trial date has been set for Army Sgt. Hasan Akbar, who I told you about here. News from Fayetteville (NC) Online. Sgt. Akbar will face trial July 12. The case is projected to last 8 days. Motions will be heard April 15-16 and April 28-30. While the arraignment took place at Fort Knox, KY, the trial will take place at Fort Bragg, NC. The defense attorney asked for a fall trial in order to have more time to review evidence, but the military judge denied the request. That does not mean that a later request to delay will not be granted.

CHIEF JUSTICE PITCHES NEW BOOK ON TODAY SHOW

2004-03-10T11:31:00.000-08:00

For those who get up too early in the morning, or too late, to watch the Today Show on NBC, they had an exclusive interview with Chief Justice William Rehnquist, which held some telling clues about some controversies himself and his court are facing.

1. The Scalia recusal crisis. I have commented on it here and here. The CJ speaketh:

Should Chief Justice Antonin Scalia recuse himself from a case involving Vice President Dick Cheney because the two went on a recent hunting trip?

The chief justice wouldn't comment directly but told a personal anecdote to suggest that socializing with a justice might be ok.

Gangel: “You like to play cards?”

Rehnquist: “Yes.”

Gangel: “You have a well-known poker game in town. If someone in your game had a case before the courts would you recuse yourself in that case or not necessarily?”

Rehnquist: “No.”

Gangel: “You wouldn't?”

Rehnquist: “No. If it were a regular game and that sort of thing and the only occasion on which I saw the person was at the monthly game, no -- no, I don't think I’d recuse myself.”

2. Rumors of retirement. Will the CJ retire soon, or will he cling to power like the infamous Taney? Let's listen:

These days, Rehnquist knows there's much speculation about whether he plans to retire and admits he thinks about it.

Rehnquist: “Well, at age 79 you can't help but thinking about retirement.”

Gangel: “Seriously? Are you making news here?”

Rehnquist: “No, I’m not. I assure you I’m not making it. I’m just saying, when you get to be 79-years-old you know your life expectancy isn't what it once was and you've got to think about the possibility of retirement.”

Gangel: “For the foreseeable future though, you're staying on the court?”

Rehnquist: “Well, I’ll just stick with what I just said."

Hmmmm...

3. His book. I've previously told you here and here that the CJ's two previous historical books, The Supreme Court and All the Laws But One are nothing to write home about. Seems that his new book, Centennial Crisis, is about the disputed Presidential election of 1876, one that the Supreme Court also decided on:

Gangel: “You know Chief Justice, everyone is going to look in this book for clues for a connection with the election in 2000. Are there any clues in the book?”

Rehnquist: “I really don't think there are.”

That said there are striking similarities. An amateur historian, Rehnquist retells the story of another bitterly disputed presidential election -- the 1876 race between democrat Samuel Tilden and republican Rutherford B. Hayes. So close it, too, was decided by Supreme Court justices. “I think everybody seemed to know that it was going to be close going in. Of course the results in those days came in by telegraph and there weren't any exit polls. So people were a lot slower to find out what was going on. The New York Times, which in those days was very pro-republican, said, you know, ‘election undecided,’” says Rehnquist.

There was controversy over voter fraud, months of partisan wrangling, and in the end, the republican candidate won.

Rehnquist: “About four in the morning on March 2, Hayes was declared president and he served -- he served a term.”

Gangel: “He was called ‘Ruther…?’”

Rehnquist: “He was called ‘Ruther- Fraud’ by the democrats.” (Laughs)

It does sound remarkably familiar, but if you want to know what the chief justice thinks about the Bush-Gore case and the criticism of his court, you will have to read between the lines.

Gangel: “If you would read from the epilogue.”

Rehnquist: “Sure, ‘those who decide the contest with inevitably be subject to criticism by the party whose candidate is the loser.’”

Gangel: “Were you writing about 1876 there or 2000?” (Laughs)

Rehnquist: “Well, I think you could say that it applies to either one.”

And that's as close as you'll get.

GUANTANOMO CHAPLAIN'S HEARING POSTPONED AGAIN

2004-03-09T14:44:00.000-08:00

A few hours ago, Reuters reports that Army Chaplain James Yee, who was originally charged with espionage and is now charged with mishandling classified information in violation of Army Regulations as well as adultery, has had his hearing postponed for the fifth time in three months:

A spokesman for the U.S. military's Southern Command declined to give a reason for the latest delay in the hearing to determine if Capt. James Yee should face a court-martial. Yee's lawyer said the military's case was in disarray.

Previous delays since the start of the hearing in December at the Fort Benning Army base 100 miles southwest of Atlanta were granted to allow the Army and defense more time to review evidence, which includes classified documents.

"This is the end of the line. They have got to pull the plug on this," said Eugene Fidell, a civilian attorney who began representing Yee several weeks after his Sept. 10, 2003, arrest in Jacksonville, Florida.

ANALYSIS: Mr. Fidell's remarks are very telling. Military prosecutors, according to regulations, have 120 days to bring a case to trial from the day charges are preferred. The hearing this story most likely refers to is the Article 32 hearing, which amounts to a civilian preliminary hearing. Although the news story says that the hearing has been postponed for only three months, this does not count the amount of time that Captain Yee was held in confinement before preferral of charges. Since he was held in pretrial confinement, the 120-day clock starts from the day he is held, NOT the day charges are preferred.

Defense-requested delays are not counted in that clock. However, Mr. Fidell's remarks that "[t]his is the end of the line," and that "[t]hey have got to pull the plug on this," seem to allude to the fact that the 120-day clock may be winding down.

A word about Mr. Eugene Fidell. He is to a court-martial the equivalent of Johnnie Cochrane to the civilian criminal court. He is the President of the National Institute of Military Justice, the American Law Institute of the military world. He is also a high-profile Washington Attorney. I wrote about him here. Whenever he walks into a military courtroom, everyone wearing JAG insignia knows who he is. Many military trial and appellate judges are personal friends of his. When he opens his mouth, he has instant credibility. The fact that he is representing Captain Yee, and that he is alluding to the fact that this case is at the "end of the line," is very telling indeed. This case may evaporate in a matter of days.

ALLEGED "FRAGGER" FACES COURT-MARTIAL

2004-03-07T14:00:00.000-08:00

Nearly a year after Sgt. Hassan Akbar allegedly threw several hand grenades into a 101st Airborne Division headquarters tent and killed two soldiers, word came Thursday from WRAL-TV (Fayetteville, NC), that the Muslim soldier will stand trial for capital charges. The case was transferred from Fort Campbell, KY, the 101st Division home base, to Fort Bragg, NC, home of the 18th Airborne Corps, the 101st's higher headquarters. It was transferred because most of the 101st is still engaged in or recovering from operations in Iraq. In order to adjudge a death sentence, all 12 panel members must unanimously agree. The defense theory is that there were no eyewitnesses to the crime, and that Sgt. Akbar is being unfairly singled out because he is Muslim. Once charges were referred Thursday from Lieutenant General John R. Vines, the Corps commander and the convening authority, the government has 120 days to begin the trial, not counting any defense-requested delays.

CORRECTION: As the first commenter to this post correctly pointed out, the 120-day speedy trial clock begins when charges are first brought OR when pre-trial confinement begins, whichever is earlier. It is already running when the convening authority refers charges for trial.

GOVERNMENT FILES BRIEF IN GUANTANOMO CASES

2004-03-05T13:14:00.000-08:00

Yesterday, the Attorney General filed a brief (from SCOTUSblog) in Rasul v. US, the consolidated cases challenging the legality of alien detention in Guantanomo Bay. The key issue for review at the Supreme Court level is whether the judicial branch has the power at all to review this type of claim. The government cites Johnson v. Eisentrager, 339 US 763 (1950), as authority. That case was about a habeus petition from German nationals seized after World War II, tried in war crimes tribunals, and imprisoned in a US-controlled facility in Germany. The court held there that neither Title 28 of the US Code, nor the Federal Constitution, granted courts the jurisdiction to hear these types of cases.

ANALYSIS: The AG's precedential argument is hard to evade. The Eisentrager case seems to be clearly on point, and most of the petitioner's legal arguments try to distinguish from this on-point authority instead of offering their own. In that case, they were foreign nationals; in this case, they are foreign nationals. In that one, the petitioners were held on foreign soil; in this one, they are on foreign soil. In that one, they were being held on a base that, while under US control, was under German sovereignty; the same goes for the instant case. In almost every relevant aspect, the two cases are the same, and any distinguishing argument is weak at best.

THE PROBLEM comes when the government tries to justify retaining this 54-year old precedent from another era and another crisis. The government's policy arguments seem very underdeveloped. The government raises two main policy points: that (1) allowing courts jurisdiction would give them too much power in foreign affairs, and (2) the detainees can get enough protection from the legislature and the executive branch.

The foreign affairs argument is the most compelling. Time and time again the Court has said that the executive is at its greater power when dealing with matters of national security. However, that right is not absolute, as we saw in the Pentagon Papers case. These claims seem very meritless; that is, if a court did hear them, it is unclear what law at all the detainees could point to that would grant them relief. They have no Geneva Conventions rights, since they were not fighting lawfully (wearing recognized uniforms, acting under the authority of a soveriegn state, etc.) Moreover, since they are not US citizens, and are not on US soil (this is the key part), they have no constitutional criminal procedure protections. And, it appears that the government is complying with SUBSTANTIVE (but not procedural) human rights standards (food, sunlight, religious activity, cleanliness, health care, etc.) Therefore, since Rasul and his folk are extremely unlikely to ever be granted relief, the government seems to have nothing to lose national security wise by having the cases heard. The main fear is that something important will slip out in court proceedings. But federal courts have special procedures to deal with classified evidence. The gov't prosecutes espionage cases dealing with highly sensitive material all the time.

The second policy point the government makes seems underdeveloped. The AG claims that the legislature and executive are in a position to protect the rights of detainees. Any court, even the most conservative one, should balk at this kind of argument. Courts have traditionally acted as a countermajoritarian influence, against both liberal and conservative popular action.

These are weak policy arguments, and I think the government would have done better to concentrate on separation of powers arguments. Bringing the argument down to the specific crisis level plays into the hands of the other side. By staying above the frey and simply emphasizing the executive's traditional role of exclusively dealing with the details of war prosecution, the government may have had a more persuasive argument.

Too Many Chefs

2004-03-03T09:30:00.000-08:00

Might I recommend an excellent blog for the culinary inclined: Too Many Chefs is a blog about all things food, including excellent recipes. Highly recommended.

VETS GET MORE INK FOR AMICUS BRIEF IN FAIR V. RUMSFELD

2004-03-02T14:46:00.000-08:00

Today's DAILY BRUIN gives front page coverage with a fair and balanced assessment of the law school veterans Amicus Brief in support of the Solomon Amendment, which I told you about here and here.

UPDATE: We also received coverage at the blawg JURIST, with a post here.

HEARING IN FRIENDLY FIRE COURT MARTIAL POSTPONED

2004-03-01T12:44:00.000-08:00

Re: the upcoming hearing in the Air Force fratricide court martial I told you about here, here, and here, today word comes from the AP via KTBS 3 TV, Shreveport, LA, that the Air Force Court of Criminal Appeals has granted an indefinite stay on the preliminary hearing. No word yet on why the stay was granted, or if there will be a preliminary hearing before the April 5 scheduled trial date. Stay tuned...

UPDATE #1: Upon further research, I found the grounds for the Appeals Court stay. According to the Toronto Star, the defense team of Maj. Schmidt requested a delay because the government refused to hand over classified data to them. They are seeking evidence from the Air Force AWAC Airborne Radar system which tracked the friendly fire incident from miles away. They are hoping that they might find something exculpatory on the radar system. Apparently, the Air Force Court of Criminal Appeals bought their argument for now. NOTE: under the Rules for Court Martial, an accused or the government may request an interlocutory appeal for certain assigned errors of procedure. I will try to get a copy of the order.

FRATRICIDE BECOMES POLITICIZED - AGAIN

2004-02-29T13:44:00.000-08:00

Friday's Shreveport Times (Louisiana) runs a story that exposes the current fratricide court-martial of Air Force Major Harry Schmidt. Apparently, the very same Air Force General who is pro(per?)secuting Maj. Schmidt may be turning a blind eye to a fratricide incident of even greater proportions:

On June 22, a Barksdale B-52 bomber taking part in a joint services exercise in Djibouti, a nation in the Horn of Africa, dropped a string of nine 750-pound M117 unguided bombs that landed not on target, but rather on an observation post nearly a mile away.

One Marine, helicopter pilot Capt. Seth Michaud of Hudson, Mass., was killed. Eight other U.S. military personnel - seven Marines and a Navy lieutenant - were critically or seriously injured and two CH-53E helicopters were destroyed.

An investigative report, issued in January under the authority of Air Force Brig. Gen. Gilmary Hostage, bluntly states the accident was due to crew error, though with "no evidence to support any willful intent on their part.

Maj. Schmidt is being charged with the manslaughter of Canadian troops who he engaged thinking they were Taliban forces in Afghanistan. The B-52 incident hasn't escaped Maj. Schmidt's lawyers:

Dissimilarities in the ways the friendly fire crews are being treated concern Charles Gittins, Schmidt's civilian attorney. Gittins said the differences are "explainable only as a matter of politics. To date they are the only names of any pilots released who have been involved in at least 17 certain incidents of friendly fire resulting in deaths as a result of aircraft engagements."

He said the B-52 incident that resulted in a loss of life also warrants closer and public scrutiny.

"The Djibouti accident was a training mission - those guys had all day to get it right," Gittins said. "Major Schmidt was flying a combat mission in a combat zone and observed what clearly appeared to be rocket propelled munitions directed at his flight lead. He didn't have the luxury of a crew of five to make a decision. He didn't have an instructor standing over his shoulder watching him (as in the B-52) and, he got no help from the theater command and control system.

"The injustice of charging Major Schmidt with a crime fairly slaps one in the face when compared to the B-52 accident, from a unit 'owned' by the same convening authority."

ANALYSIS: This will be a big issue in the news in the coming weeks. I fully expect someone like Dateline or 60 Minutes to revisit the B-52 incident. Legally speaking, it's problematic that someone under the pressure of combat action gets charged with manslaughter while another pilot causing a death in a sterile training environment is being treated with kid gloves. Why is Maj. Schmidt being singled out? As I told you here, it's because the National Command Authority needs to keep good relations with Canada, whose press is having a field day with the story. Unlawful command influence, the tendency for commanders to put their thumbs on the scales of justice and illegal under Article 37 and Article 98 of the Uniform Code of Military Justice, will be a huge issue in the litigation. Any perceived difference in treatment between the B-52 case and the Schmidt case will give greater grist for the defense's motion mill. Go-Pills will also be another big defense; Schimdt was under the influence of Air Force-prescribed amphetamines at the time of the incident. Pre-trial motions will be heard TOMORROW, March 1.

MAKE THAT TWO THUMBS DOWN FOR REHNQUIST

2004-02-28T22:54:00.000-08:00

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.

FALSE ALARM - DAMN IT

2004-02-28T04:19:00.000-08:00

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.

MORE INK FROM TEXAS ON LAW SCHOOL VETS' AMICUS BRIEF

2004-02-27T18:18:00.000-08:00

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.

DESPICABLE BEHAVIOR FROM OUR NATION'S "FINEST"

2004-02-26T17:16:00.000-08:00

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.

TRIBUNAL DEFENSE LAWYERS SPEAK UP - RISKING THEIR NECK AGAIN

2004-02-25T21:36:00.000-08:00

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.

TECH SUPPORT NEEDED

2004-02-25T16:53:00.000-08:00

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?

LAW STUDENTS NOT "TAKING SIDES ON CONTROVERSIAL ISSUES?"

2004-02-25T15:52:00.000-08:00

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

UPDATE ON STATUS OF FORCES AGREEMENT (SOFA) IN IRAQ DEBATE

2004-02-25T10:36:00.000-08:00

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.

IRAQ AND US FAIL TO AGREE ON STATUS OF FORCES

2004-02-25T00:50:00.000-08:00

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.

PERSPECTIVE ON WHERE I STAND

2004-02-24T22:26:00.000-08:00

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.

VETS FILE AMICUS BRIEF SUPPORTING SOLOMON AMENDMENT

2004-02-24T14:51:00.000-08:00

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.

PRES. BUSH TRANSCRIPT OF STATEMENT ON GAY MARRIAGE BAN

2004-02-24T11:48:00.000-08:00

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

PERSONAL REFLECTIONS ON THE DEATH OF COMANCHE

2004-02-23T15:26:00.000-08:00

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.

WHICH FEDERAL RULE OF CIVIL PROCEDURE ARE YOU?

2004-02-23T08:34:00.000-08:00

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.

SCHWARZENEGGER WANTS AN AMENDMENT...AND IT'S NOT ABOUT GAY MARRIAGE...

2004-02-22T10:25:00.000-08:00

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.

CENTRIST APPEARS ON NPR

2004-02-21T13:56:00.000-08:00

This morning, I appeared by telephone on the NPR Show, Michael Feldman's Whad'ya Know? Click here for the audio archive. I played the Whad'ya Know quiz, based loosely on current events, and won a tour guide book of Wisconsin and a couple of CD's. UCLA School of Law in da house... Note: I appear about half way through the audio clip. The show appears locally on KPCC 89.3 FM in Los Angeles from 12pm to 2pm on Saturdays; check your local listings for other locations.

WILL MISSES THE POINT . . . AGAIN

2004-02-20T14:41:00.000-08:00

George Will, in today's Washington Post (subscription), writes about the flap over President Bush's economic advisor, Gregory Mankiw, saying publicly that it's a good thing for the economy to ship mid-level paying service jobs overseas. He blames both the Speaker of the House and the two front-running Democrat presidential nominees for conducting a witch hunt against a statement Will endorses:

It is difficult to say something perfectly, precisely false. But House Speaker Dennis Hastert did when participating in the bipartisan piling-on against the president's economic adviser, who imprudently said something sensible.

John Kerry and John Edwards, who are not speaking under oath and who know that economic illiteracy has never been a disqualification for high office, have led the scrum against the chairman of the president's Council of Economic Advisers, N. Gregory Mankiw, who said the arguments for free trade apply to trade in services as well as manufactured goods. But the prize for the pithiest nonsense went to Hastert: "An economy suffers when jobs disappear."

So the economy suffered when automobiles caused the disappearance of the jobs of most blacksmiths, buggy makers, operators of livery stables, etc.? The economy did not seem to be suffering in 1999, when 33 million jobs were wiped out -- by an economic dynamism that created 35.7 million jobs. How many of the 4,500 U.S. jobs that IBM is planning to create this year will be made possible by sending 3,000 jobs overseas?

Hastert's ideal economy, where jobs do not disappear, existed almost everywhere for almost everyone through almost all of human history. In, say, 12th-century France, the ox behind which a man plowed a field changed, but otherwise the plowman was doing what generations of his ancestors had done and what generations of his descendants were to do. Those were the good old days, before economic growth.

Yeah, yeah George, we get your point: jobs in areas we have a comparative advantage in are good, while jobs in areas we don't have a comparative advantage in are bad. Anyone taking Economics 101 knows that Georgie Boy.

But Will completely misses the point about the current debate. It's one thing to pontificate behind closed doors that the loss of some jobs, while tragic, may lead to even more jobs down the line. It's another thing for the President's chief economic advisor to publicly proclaim that the wholesale exporting of jobs to other countries is "good." It shows a callous insensitivity for those who have lost jobs, and a general disregard for the inherent worth of employment. What would happen if Chairman Greenspan went to Capitol Hill and, during testimony, told Congress that the fact that the current wholesale export of jobs to other countries was a "good thing?" We don't know, because it wouldn't happen. He may think it, but he would never say it. Greenspan likes his job too much. It's obvious Mankiw doesn't, so it's time for Bush to revoke that job if he wants to retain any credibility on economics and jobs. This is the kind of political blunder someone running for dog catcher wouldn't make, much less the top economic advisor in the nation.

RULE OF LAW AND MAYOR NEWSOM'S "PROTEST"

2004-02-18T23:45:00.000-08:00

Professor Eugene Volokh gives a reserved defense to Mayor Newsom's defiant order to issue marriage licenses to gay couples in violation of California law. The mayor's position

is that California's male-female-only marriage law -- which is only a statute, albeit one that was implemented by a voter initiative -- violates the California Constitution. If he's right, then refusing to marry same-sex couples (thus complying with the invalid state statute) would be violating the law, because it would be denying people the equal treatment that the constitution allows them; agreeing to marry same-sex couples (thus violating the invalid state statute) would be upholding the law, because it would be complying with the constitutional command.

I fully disagree. If the Mayor is truly justified in his interpretation of the Constitution, then the most law-abiding course of action would not be to issue gay licenses, but to STOP ISSUING MARRIAGE LICENSES altogether. You can't protest a method of issuing licenses by making your own one up. If you want to stop discriminating, then stop discriminating. Shut down the license office until the legislature makes a change you're happy with. But don't encourage lawlessness in the highest levels of government.

WHITHER MILITARY JUSTICE?

2004-02-18T22:48:00.000-08:00

Right now, all over the world, military justice systems are under attack, with a culture of change unseen since the institution of the Uniform Code of Military Justice (UCMJ) after World War II. Today, General Cosgrove of the Australian Defence Forces fights for the autonomy of his country's court-martial system under extreme pressure from Parliament to civilianize the system. In Britain, news comes today of the first civilian naval criminal trial in the history of the British Navy, mandated after the EU Court of Human Rights declared the British court-martial system illegal. The EU Court found that the system did not constitute a "fair and impartial tribunal" as required by the European Declaration of Human Rights, since commanders were able to pick panel (jury) members, choose charges, and decide on pretrial matters. Five years later, the changes are being implemented.

According to Eugene R. Fidell, today's news is part of a larger turn-of-the-millenium

period of ferment that is both rare and broad. In country after country, dramatic change either has occurred in the recent past or is under active consideration. Nothing like this has happened since the years just after World War II.

He cites dramatic changes that have been implemented in the UK, Canada, South Africa, India, and Mexico, as part of a global movement for change in military justice systems modeled on the British Articles of War (which includes, with substantial reforms, the US system). He concludes that military leaders need to carefully study international systems of military justice in order to better understand our own. Eugene R. Fidell, A Worldwide Perspective of Change in Military Justice, 48 A. F. L. REV. 195.

Why does this matter? The same supposed flaws that exist or existed in the military justice systems of Australia, Canada, Britain, etc.--lack of prosecutorial discretion by trained legal personnel, the picking of panel members by commanders, lack of tenure for trial judges--all can be found in the system based on our Uniform Code of Military Justice. Fidell seems to think that our Armed Forces are immune from this culture of change. He notes the fact that the Supreme Court has written about the importance of an independent military justice system because our military is a "specialized society separate from civilian society." Parker v. Levy, 417 US 733, 743 (1974), in Fidell. However, our Uniform Code of Military Justice is statutory; just because it is constitutional does not mean that it is immune from Congressional tinkering. After every major conflict this nation has engaged in, the soldiers who have come home have demanded reforms of varying levels in the court martial system. As more and more people serve in the active and reserve components, and more troops become subject to the UCMJ, echoes from this global culture of change may work their way into the congressional halls. Indeed, in five to ten years, we may find a system of military justice that looks more like Law & Order than JAG.

SORRY FOR THE HIATUS

2004-02-17T22:36:00.000-08:00

- I'm back. Things have been hectic lately, but I'm back. I've been working on an Amicus Brief for the FAIR v. Rumsfeld case, challenging the constitutionality of the Solomon Amendment. Also busy with the law respew. Back to daily blogging soon.

CAMP LEJEUNE - THE MILITARY'S HINCKLEY, CA?

2004-01-28T09:31:00.000-08:00

As Erin Brokovich's fight for the residents of Hinckley, CA still looms large in our conscience, word from the Washington Post today on the Marine Corps' startling admission about contaminated water that Marines and their families have drank, bathed in, and been exposed to FIVE YEARS after the initial findings:

A military engineer assigned in 1980 to test the drinking water at this sprawling Marine Corps base punctuated his findings with a handwritten exclamation point.

"WATER HIGHLY CONTAMINATED WITH . . . CHLORINATED HYDROCARBONS (SOLVENTS)!" William C. Neal wrote in capital letters on one of his surveillance reports in early 1981.

A private firm followed up with tests the next year. One of its samples showed an astonishing result: 1,400 parts per billion -- 280 times the level now considered safe for drinking water -- of trichloroethylene, a likely cancer-causing chemical used for degreasing machinery that can impair the development of fetuses, weaken the immune system, and damage kidneys and livers. Other samples showed as little as 1 part per billion to as many as 104 parts per billion -- more than 20 times the level now considered safe -- of tetrachloroethylene, a toxic dry-cleaning chemical that can seep into body fat and slowly release cancer-causing compounds.

The number of people who may have drunk the tainted water, bathed in it, had water fights with it is staggering: The Marine Corps estimates 50,000 Marines and their families lived in base housing areas that may have been fed by the wells before they were closed in 1985. Victim advocacy groups place the figure even higher, at 200,000, which would make Camp Lejeune one of the largest contaminated-water cases in U.S. history. [emphasis added.]

Already, more than 270 tort claims have been filed with the Navy's judge advocate general's office by former residents, who are required by law to file claims with the military before proceeding with any possible action in civilian courts.

This is no "harmless incident." Take the story of this Marine Air Traffic Controller, who moved to Camp Lejeune, NC, and whose family started drinking the water two years after that initial finding of harmful chemicals:

Both of his girls have been beset with a lifetime of ailments: Rachel, who is developmentally disabled, was born with a cleft palate and needed leg braces as a child. She has spina bifida; a gangly, arachnoid cyst on her spine that cannot be removed; and brittle, rotting teeth. Andrea had a rare bone marrow syndrome known as aplastic anemia and has been told by her doctors that the disease could recur if she becomes pregnant.

The federal agency responsible for studying the health effects of SUPERFUND sites like Camp Lejeune found birth defect rates to be three to five times the national average for women who lived at Camp Lejeune during the five years of known yet suppressed findings of contamination. Bad enough that the cover-up lasted five years and put thousands of Marines and families health in danger. Word now comes that, even now, the Marine Corps tried to suppress the findings of the Superfund report:

In a series of 1998 e-mails recently disclosed on the Marines' Web site, officials at Lejeune discussed how public concern about water contamination could be stoked by the release of the film "A Civil Action," which traced the legal battle over contaminated drinking-water wells in Woburn, Mass.

"Just a thought," Neal Paul, director of Lejeune's toxic cleanup program, wrote to an official at Marine headquarters. "With the movie coming out in Dec., can we delay the questionnaires until April/May time frame?" An ATSDR spokesman said the timing of the survey was not influenced by the Marines.

The pressure to let sleeping dogs lie aren't coming just from the highest levels of leadership in the Corps, but from Marine friends of the advocacy groups' members, exposing a deep close-the-ranks mentality that crushes opponents in war but leads to abuse in peacetime:

But, for all the passion, some of Ensminger's old Marine pals want him to let up.

"They say, 'Semper fidelis -- give 'em a break. Why do you want to hurt the Corps?' " said Ensminger, a former master sergeant who retired in 1994 after 241/2 years in the Corps.

But an image that rattles around inside Ensminger's stubborn, crew-cut head will not let him give up. He sees Janey, all big, brown eyes and silly smiles, watching him as her doctors advised him to stop treatment because there was no hope. Janey looked up at them, Ensminger recalls, and said: "You're talking about me. I'm not dead. You're not giving up on me."

One week later, she was gone.

Let's hope the Marine Corps stops covering this one up, pays the civilian survivors the MILLIONS(BILLIONS?) of dollars in damages they deserve WITHOUT a lengthy court battle, and gives the Marine survivors who are injured FULL disability. Those who have served our country so honorably deserve nothing less.

DATE SET ON FRIENDLY FIRE COURT MARTIAL

2004-01-27T18:51:00.000-08:00

The military judge presiding over the trial of the US pilot who accidently bombed Canadian soldiers in Afghanistan has been set for April 5. Story here. The pilot is charged with dereliction of duty, a charge with a maximum sentence of six months confinement and dismissal from the Air Force. Motions will be heard March 1.

KUDOS TO SLATE

2004-01-27T15:20:00.000-08:00

Kudos goes to Slate for being the first national mainstream source to PROPERLY analyze the AWOL/desertion distinction. Post here. All the other papers have had crap about having to be gone 30 days.

EXIT POLL - DEAD HEAT?

2004-01-27T11:48:00.000-08:00

Rumor has it that, as of 10am, Kerry and Dean are in a dead heat for first at 34% +- 3%, and Clark and Edwards are in a dead heat at 12% +- 3%.

SCALIA RECUSAL RESPONSE: YOU HEARD IT HERE FIRST, FOLKS

2004-01-26T15:56:00.000-08:00

On Friday's post, THIS STINKS, I told you:

Probably what the Chief Justice will respond with is something like general principles of fairness, along with an assurance that no appearance of impropriety exists.

Well, it looks like the Chief Justice did my prediction one better: he sidestepped the issue altogether. The Associated Press (via Discourse.net) revealed the letter, in which:

Rehnquist did not give an opinion about whether Scalia should step down from hearing the case, but made clear that it was up to Scalia — and no one else — to make that decision.

The senators who wrote the initial protest to the Chief Justice conclude:

Leahy said Monday that Rehnquist’s letter confirms that the Supreme Court, unlike federal appeals courts and district courts, has no recusal procedure or oversight system. He also defended the timing of the letter.

Hmmm...sound familiar? Maybe because you heard it here three days ago:

I'll tell you what standards there are: none. "The code of conduct of the Judicial Conference of the United States applies to all federal judges but is only advisory and nonbinding on Supreme Court justices."

I know everyone hates an I told you so, but: I told you so.

NO CHILD LEFT BEHIND . . . EXCEPT ARMY BRATS?

2004-01-26T14:24:00.000-08:00

The No Child Left Behind Act (NCLBA) was one of President Bush's first policy victories . . . and one of the key criticisms by the Democrats. It requires strict testing for students in every district, incentives for those school districts that do well, and penalties for those that don't. It also requires stricter standards for teacher certification and performance. Democrats criticize the testing standard as being unfair to districts with large numbers of minorities, being an unfunded mandate, and with causing schools to "teach the test" instead of a broad curriculum.

However your stand on the NCLBA, it appears that the government's own actions may be undercutting their arguments. In today's Magic City Morning Star (Maine), an enterprising reporter uncovers that the NCLBA does not apply to DOD Schools. These are the elementary and middle schools located on military bases that educate the children of servicemembers. The NCLBA does not apply to DOD funded schools, only DOE funded schools, so the testing and certification mandates also don't apply.

DOD Schools officials maintain it's a distinction without a difference, due to the DOD's "high performance:"

Doug Kelsey, the deputy director of the DoD's school system, said that the schools are trying to live up to the spirit of the legislation despite the fact that the DoE has no jurisdiction over DoD schools. "We actively comply with the intent of the law," he said.

Kelsey said that DoD schools set high standards for its students and teachers, citing high performance on standardized tests and graduation rates higher than 95%.
. . . .
DoD 8th-graders ranked second compared to the 50 states on the 2002 National Assessment of Educational Progress reading tests. The military’s 4th-graders ranked fourth among the states on the 2002 NAEP reading exam. African-American and Hispanic students perform better overall in the military’s schools than anywhere else in the nation.

However, in the test that counts for DOD students (the SAT), it appears their numbers are slipping. Also, accredidation requirements in DOD schools are less stringent that in many local school districts. Considering that DOD schools serve the children of those who are risking their lives to defend our country, and given that our leadership has determined the NCLBA as the best way to ensure our children and schools meet high standards of excellence, don't we owe it to our children to make the standards of the NCLBA mandatory on the DoD schools, instead of relying on their assurances that they will "comply with the intent of the law?"

UPDATE ON AWOL/DESERTION AND CLARK/BUSH

2004-01-25T23:18:00.000-08:00

Donald Sensing has a great post about his personal experience with charging soldiers with desertion and AWOL. One of his soldiers left twice for more than 30 days a piece; he was never charged with desertion because he kept all his uniforms and his ID card. Another soldier was charged with desertion, even though he didn't even make it past the gate and was gone less than 5 minutes. The reason: he stripped all his uniforms, ran out in his underwear, cut up his ID card, and yelled to everyone that he was leaving and was never coming back. The INTENT to remain away permanently is the key, and it must be proved beyond a reasonable doubt.

General Clark had an opportunity on the Sunday talk shows to clear this up; he failed to do so. Maybe that's one reason his numbers are slipping and the others' numbers are rising. CREDIT: Thanks to the Intel Dumper for the tip on Sensing.

THE DIFFERENCE BETWEEN AWOL AND DESERTION

2004-01-24T23:43:00.000-08:00

On Thursday's Presidential Primary Debate, Peter Jennings questioned General Wesley Clark about a comment Michael Moore made last Saturday, January 17, in Concord N.H., saying he'd like to see a debate between General Clark and President Bush, "The General vs. The Deserter." This referred to a 2000 story that President Bush did not show up to a drill in Alabama while his Texas Air Guard unit was training there. General Clark replied that he had heard about the charges, didn't know if they were true or not, and wanted to shift the attention to Bush's performance as commander in chief. The pundits jumped on this. Mort Kondracke, on today's The Beltway Boys (Fox News), pointed out that General Clark didn't educate Jennings that Bush's absence, if true, only amounted to being AWOL, not desertion. (Good point) He also predicted it would hurt Clark (not so good point).

I'm not a professional pundit. I don't know if it will hurt General Clark; I doubt many people know the difference, and doubt they will expect him to educate everyone of that, even if he was in the service for over 30 years.

I am a professional military man though, and a student of military justice. So for every one out there, here's the difference between AWOL and Desertion.

AWOL (absence without leave) has three non-inclusive elements, meaning fulfilling any one can result in a guilty finding:
(1) failure to go to the servicemember's appointed place of duty at the time prescribed;
(2) leaves that place before properly relieved; OR
(3) absents him/herself from the unit, organization, or place of duty where he/she is required to be at the time prescribed. See 10 USC 886.

Desertion also has three non-inclusive elements:
(1) Leaves or remains absent, without authority, from his/her unit, "with the intent to remain away therefrom permanently;"
(2) quits his/her unit/place of duty with intent to avoid hazardous duty or important service,
(3) without being discharged from one service, enlists in another one without disclosing that fact, (or enters a foreign service [this part rendered void by US v. Huff, 22 CMR 37 (1956)]). See 10 USC 885.

Seeing that, if in any remote possibility this charge is true (I am not in anyway giving credit to this wild allegation), it is apparent that (1) there was no intent to remain away permanently (he finished his service so he had to come back sometime), (2) there was no hazardous duty or important service; Democrats characterized his entire term of service in the Air Guard as such, and (3) he never served in another service or a foreign service.

The pundits are right on this one; if there was a charge (and there never was any evidence to that effect), AWOL would be more appropriate than desertion. In lawyer talk, desertion is a specific intent crime; AWOL is it's general intent brother.

BLOGS GET PROPS ON NPR

2004-01-24T22:48:00.000-08:00

As I was stuck on the 405 (again) on Friday, I listened to a wonderful story on Howard Dean's internet campaign, why it is so strong, and why it didn't matter in Iowa. One of the side points the guests were making was about the increasing importance of blogs in our political discourse. Instapundit, Andrew Sullivan and the KausFiles were mentioned by name. Excellent discussion. Audio Link and guest links here.

UPDATE ON KERRY-BASHING

2004-01-24T16:06:00.000-08:00

Just look to Blogs For Bush for a post entitled John Kerry's Anti-American, Anti-military Activism, written by a senior Bush campaign worker. I find this quote most interesting:

It is clear that Kerry's making his service in Vietnam a campaign issue is, as Farah puts it, "whitewashing his anti-war radicalism," but he also wrote "…it is new front-runner John Kerry who has the longest and most prominent history of involvement with anti-American, anti-military activism."

I'm not endorsing any candidate at all; I still haven't made up my mind. I'm just giving you a glimpse of what's to come the minute the Democratic Convention gives Kerry the nod.
CORRECTION: Matt Margolis, the aforementioned blogger, is not affiliated with the CREPGWB. He is an important grassroots organizer, however.

UPDATE ON AIR FORCE FRIENDLY FIRE COURT MARTIAL

2004-01-24T00:59:00.000-08:00

More news on the controversial court martial of an Air Force Reserve pilot for a friendly fire incident that killed several Canadian soldiers in Afghanistan. Story from Canada. His preliminary hearing has been delayed because he broke his fibula playing indoor soccer. The trial is set for March 1.

Issues to look for in this trial:
- This is the first EVER trial of a servicemember for an aerial friendly fire incident. Many (including me, a former aviator) feel this pilot is being unfairly scapegoated in order to smooth over relations with the Canadians. JAG even devoted a "ripped from the headlines" episode to this, Episode 173, Friendly Fire, Airdate 2/10/03.
- Major Schmidt, the defendant, has hired a civilian lawyer. He's currently appealing the decision not to hand him classified evidence to the Air Force Court of Criminal Appeals. He won't win, but he may in the court of public opinion. Look for the "military justice is an oxymoron" crowd to seize on this one. Right now, his own client can't tell him some evidence.
- The Article 32 officer (a pre-preliminary investigator) recommended that ALL charges be dropped, but the convening authority (usually the first general officer in the chain of command) reinstated a dereliction of duty charge. The maximum sentence is six months, but if guilty, he'll probably just get a dismissal. Still, a lot better than the manslaughter charge he was facing, a possible sentence of 10 years.
- GO PILLS: This will be a key part of the defense. Major Schmidt claims he was under the influence of Flight Surgeon prescribed amphetamines to improve his performance, standard wartime Air Force practice. (I never took them, but my flight surgeon did have them for a rainy day.)

WILLIE HORTON PART DEUX

2004-01-24T00:10:00.000-08:00

I told you earlier how, as much appeal that Kerry might have to the Centrist, there's no way in hell ANY democrat is going to beat Bush, with the outside exception of maybe Edwards. And here's why:

Can you just imagine the 30 second TV ad Bush is going to air with this in the background? This is going to be far bloodier than Willie Horton. I can hear the announcer in the background: "Is this the 'new kind of soldier' you want as your commander in chief?" That's the kind of photo that money just can't buy.

Thanks to the Evangelical Outpost for the picture.

IOWA v. TOVAR -- NEEDLESS "PROPHYLAXIS BUILT UPON PROPHYLAXIS?"

2004-01-23T16:41:00.000-08:00

Dahlia Lithwick from Slate writes about arguments today in the Supreme Court:

Even criminals deserve to understand the workings of the criminal-justice system. This is the basis for landmark Supreme Court cases like Miranda v. Arizona (requiring cops to advise you of your rights upon arrest). The theory is that criminals have certain rights and privileges, which are of little utility to them if they remain unknown. But it's not clear what the reasoning is behind the argument that criminals also have the right to be breastfed, burped, and cuddled by the criminal-justice system, although that seems to be the theory advanced this morning in Iowa v. Tovar.

Felipe Tovar has been arrested for drunken driving three times. In 1996 and 1998, he waived his right to an attorney and pleaded guilty. In 2001, when Tovar was found guilty of a third drunken driving offense (third time's a felony in Iowa) the court had no choice but to impose jail time. Tovar claims that the earlier convictions shouldn't count toward enhancing his third sentence because when he waived counsel and pleaded guilty, he did so without having received a proper warning about the dangers of waiving the right to a lawyer. Tovar doesn't deny driving drunk. He simply wants to go back and cancel out that first guilty plea because the judge should have told him then that lawyers are useful beings.

Lithwick writes that the justices gave Tovar's lawyers a very cold reception in their questioning. No wonder; two of the justices, Rehnquist and Scalia, were the ones who wrote that famous language assaulting the criminal procedure right expansion movement as needless "prophylaxis built upon prophylaxis." Minnick v. Mississippi, 498 US 146, 166 (1990) (Scalia, J., dissenting). With the Scalia/Rehnquist assault against criminal procedure, it's doubtful that a court calling the Miranda progeny "a veritable fairyland castle of imagined constitutional restriction," id., would overturn Tovar's conviction after the fact because he wasn't told that "lawyers are useful beings" at his guilty plea arraignment.

I tend to sympathize with Lithwick's seeming support for the notion that criminals should not have the "right to be breastfed, burped, and cuddled by the criminal-justice system." Unfortunately, that's exactly what my system, the Uniform Code of Military Justice, does. In civilian court, you can choose not to have a lawyer present, as long as you're sane enough to make the decision. In a court-martial, you have no such right; you will have a lawyer shoved down your throat, like it or not. Providence inquiries in the military are also much more stringent. At a civilian guilty plea hearing, all you have to do is be advised about the elements of the crime, and admit each one with a simple yes or no. That's not good enough for us though. The military judge has about an hour long script they have to read straight from the military judge benchbook; any deviation and its grounds for appeal (much less "harmless error" allowed in our system). Then, the defendant must not only say yes to every element, but must tell a convincing story to the judge. And the judge's finding that the story is believable is reviewed de novo. Simply go to Army Court of Criminal Appeals Website to read about the scores of military criminals being "breastfed, burped, and cuddled."

So the next person who says that the civilian system is kinder to defendants better read this post. If still not convinced, read this from the Intel Dumper.

THIS STINKS

2004-01-23T00:14:00.000-08:00

Something's rotten in the state of Scalia: Senators Leahy and Lieberman have sent a letter to Chief Justice Rehnquist asking him to explain the propriety of Justice Scalia going on a hunting trip with Vice President Cheney when there is a case pending before the court in which VP Cheney is a party. Story here. "In a letter to Rehnquist, Sens. Patrick Leahy of Vermont and Joe Lieberman of Connecticut asked the chief justice to tell them what 'canons, procedures and rules' are in place to determine when justices should recuse themselves from cases."

I'll tell you what standards there are: none. "The code of conduct of the Judicial Conference of the United States applies to all federal judges but is only advisory and nonbinding on Supreme Court justices." CODE OF JUDICIAL CONDUCT. And we can't glean any knowledge from the chief justice's book, The Supreme Court; there's not one mention of a justice recusing him/herself. Probably what the Chief Justice will respond with is something like general principles of fairness, along with an assurance that no appearance of impropriety exists.

Let me tell you...it smelled to CNN, it smells to me, and I have a feeling it will smell to a lot of people, readers of this weblog included. It doesn't matter if anything improper happened or didn't happen: "[A]voiding the appearance of impropriety is as important as avoiding impropriety itself." United States v. Berman, 28 MJ 615, 616 (AFCMR 1989).

RSS FEED

2004-01-22T20:52:00.000-08:00

I have no idea what this is for; xml is way beyond my technical expertise. However, I've had a flood of requests for it, so I had a literate friend add a blogmatrix rss feed here. Simply click on the button at the bottom of the page. Since I have no idea in hell what an rss is, use at your peril.

2004-01-22T15:59:00.000-08:00

BENNIFER IS OVER... boo hoo.

THIS MARINE HAS BALLS

2004-01-22T09:35:00.000-08:00

Yesterday, I told you about the middle ground the JAGS at Headquarters took in their Amicus Brief. Well yesterday, we got word that Marine Major Michael Mori, the defense attorney for an Australian prisoner being held at Camp X-Ray in Cuba, held a press conference calling the tribunal system "created and controlled by those with a vested interest only in convictions." CNN.com - Hicks defense slams trial process - Jan. 21, 2004. His two main beefs with the system are that it provides a lower standard of proof, and that it may cause retribution from future enemies holding US prisoners of war.

My own personal views are that we have a duty to provide unlawful combatants with lower treatment than lawful ones; otherwise, there will be no incentive for enemy soldiers to comport their behavior with the Geneva Convention and other accords of international law. But I want to shift the focus to the TRULY remarkeable thing about this story.

HE HELD A FRIGGIN PRESS CONFERENCE!

Ever see The Court Martial of Billy Mitchell? He held a press conference calling the generals "criminally negligent" in their lack of funding for the air forces, leading in the deaths of scores of pilots. He was rewarded with a guilty conviction and a dismissal from the service. Military First Amendment issues are very complicated. While "men and women in the Armed Forces do not leave constitutional safeguards . . . behind when they enter military service," Weiss v. US, 510 US 163, 194-95 (Ginsburg, J. concurring), the governmental interest in restricting that speech is much higher than in civilian life, and therefore the balancing of the right and the interest wins out more often with the government. Specifically, with press conferences, Army regulations generally require that, when a soldier is speaking in the fulfillment of his official duties, such speech much be coordinated with a Public Affairs Office. The idea behind this is that the command should speak with one voice.

However, our civilian intuition tells us that the defendant should be able to speak publicly through his attorney, and when the only one available is military, he should be able to speak freely to the public in order to defend his client in the court of public opinion. No such right exists, though. "The Judge Advocate General has issued a policy letter instructing that the public affairs office will normally answer news media inquiries. Judge Advocates assigned to the US Army Trial Defense Service (USATDS) are reminded to refer media to the installation public affairs officer. No member of the US Army Trial Defense Service (USATDS) will 'provide a written statement for publication, provide information for publication, or permit himself to be quoted on official or legal matters without the prior approval of the Chief, USATDS." See, e.g., Jack B Patrick, USALSA Report, Army Lawyer, May 1988, at 24, 25. Other services have similar regulations. It's highly unlikely that anyone in this Marine's chain of command authorized that kind of high profile, extremely critical statement. Usually, all a TDS lawyer can do is say the client's name, the nature of charges, and a general claim of innocence. This goes far beyond that.

No word yet on whether this attorney will receive a reprimand or other discipline, but you can bet your bippy though the military won't let him pipe up again. That kind of thing just doesn't happen around here. And that's why that Marine has one big pair on him.

2004-01-22T08:33:00.000-08:00

SHOUT-OUT: Thanks to the Unlearned Hand for the referral. Another Army Officer/future JAG with exceptionally insightful comments on general law and other matters.

IF YOU'RE LOOKING FOR SOTU PUNDITRY, LOOK ELSEWHERE: What an orchestrated event. Luckily, I heard it on radio because I was stuck in traffic on the 405. From what I read and hear, the orchestrated camera pans were more egregious this year. Anyways, others have talked ad nauseum about the State of the Union, so I'll concentrate on other issues.

SHAMELESS SELF PROMOTION

2004-01-21T16:00:00.000-08:00

The Intel Dumper writes:

Law From The Center: a weblog written by a UCLA law student who's also a captain in the United States Army -- but who's quite a bit smarter than me. (He made law review; I didn't).

Well, in all fairness, all that proves is that I write dry boring moot write-on competitions better than him. I don't make regular appearances in the opinion columns of our nation's most respected newspapers. In fact, my only published piece appeared in 1993 in the Riverside Press-Enterprise, decrying the increase of high-school lunch fees from $1.40 to $2.25.

But I'm always willing for a chance to appear in print. Any law review editors out there want to read my script?

DEFENSE JAGS STAKE CENTRIST GROUND ON CAMP X-RAY

2004-01-21T11:47:00.000-08:00

Finally, a voice of reason in the battle over Camp X-Ray.

The battle over Guantanomo Bay detainees often results in the left and the right talking past one another. In various amicus briefs to the Supreme Court filed this week, two positions were staked out: the left says the detainees should be given full Constitutional rights, while the right says the case shouldn't even be heard by the Court.

But one brief stands out. Today, link here, word comes that the JAGs representing the detainees in Guantanomo Bay have staked middle ground. They agree with the right in the substantive argument that the detainees have enough rights already. However, they also agree with the left in the procedural argument that the court should hear the case and make that determination for itself. A la Marbury v. Madison, the JAGs are asking the court to both support the government action, and at the same time make sure that the judicial branch preserves its expansive jurisdiction. Judicial activism through judicial restraint.

This argument has win, win, win all over it, and represents brilliant lawyering. The Solicitor General's office, under the Bush administration, instead of using creative arguments to defend their positions, has pursued a scorched-earth policy of arguing in case after case that the Court simply doesn't have jurisdiction to hear the case, or should recuse itself due to justiciability concerns. Understandably, the Court has rarely found this a willing argument, even though they may have otherwise been amenable to the government's substantive claims due to the Court's current political makeup. The solicitor general should abandon it's crusade to contract the Court's jurisdiction; while the Rehnquist Court has in the past held this belief, recent decisions make clear that it has ended such a campaign and is now acting to stop the ebb of the Court's power.

Another interesting point is the power of Military amicus briefs as a centralizing influence (chalk another one up for the centrists!) In a court that finds it hard to communicate even with itself, it has increasingly relied on the military to provide pragmatic arguments on substantive points of law, instead of the caustic political rhetoric that pervades most amicus briefs. In short, the military has been the only true "friend of the court" in recent decisions. For a case in point, the Court's recent decision affirming affirmative action relied heavily on the Joint Chiefs of Staff amicus brief arguing that overturning affirmative action would hurt military recruiting programs, and in turn hurt national security. It was the only amicus brief that was heavily quoted, and seemed to be extremely influential on the court's reasoning. With a deeply divided court that most pundits believed would overturn the Michigan undergraduate admissions policy, the military brief may have been the unifying factor that broke the ideological logjam.

Indeed, the military is defending the civility of our nation in more ways than one.

A KERRY WIN IS A WIN FOR ALL CENTRISTS

2004-01-20T09:00:00.000-08:00

Did the pundits really not see this one coming?

Of course, now all the left/right pundits are saying they saw it coming, but last night they all showed surprise. For those who live under a rock, Kerry won with 38%, Edwards a close second, and Dean a distant third. The tally here. All centrists understand that a Kerry victory at the convention will mean a REAL choice in November. Kerry represents a choice where we desperately need a choice: in health care, job creation, etc. Where we DON'T need a choice is on security...the American public, while many may be ambivalent on Iraq, will not trust their security to a Dean, and especially not to a freshman senator trial lawyer Edwards. Clark isn't a choice because he has no experience in the important areas: job creation, health care, etc.

What happened to Dean? Well, most pundits thought he would win the nomination at least because nominations are about staying true to the base, and Dean represents the base. However, his hot-headedness got the best of him. As Dee Dee Myers said on the Today show this morning, Dean was so busy playing to the crowds that he forgot to play to the cameras. Last night's "victory" celebration is a case in point. He riled up the crowd where he was and turned off EVERYONE who was watching on TV. Ms. Myers said that while he was busy exciting the crowds, he lost his message of change in Washington and talked NOTHING about the issues.

Is this so wrong? Should how well you play to the cameras really matter? ABSOLUTELY. The American public is not in the crowds, in the marching bands, in the organizing committees. The American public watches on TV and reads the pundits in the newspaper. If you want to win, you MUST talk to US, and you better bring a message. Kerry figured that out, and he won't forget it ever again.

Of course, all this doesn't matter. Save a stock market crash, Bush will win handily in November and there's nothing anyone can do about it. But Kerry will put up a good show. He's no Dukakis. Kerry, enjoy today. You're going to need the good spirits come November.

THE CENTRIST'S REFLECTIONS ON Dr.MLKJr. DAY

2004-01-19T13:32:00.000-08:00

Today, as we celebrate the life of Dr. Martin Luther King Jr., many of us step back for a minute and ask, What would Dr. King say about the state of our nation today? Obviously, his dream has not been fully realized. African Americans and other minorities still do not realize the American Dream with the success and frequency that whites do. Recognizing that, what would Dr. King suggest to be the way to help everyone realize that dream?

Well, maybe his widow, Coretta Scott King, might be able to help us with that. King's Widow Pleads for End to Acrimony. Speaking today at Dr. King's home church, Ebenezer Baptist Church, Mrs. King had this to say about the present state of our national polity. "The noblest goal is not conquest of enemies but reconciliation with adversaries. We must remember in this election year that Republicans and Democrats, conservatives and liberals, we are all sisters and brothers." In this day of 5-4 court decisions, mudslinging and campaign-by-yellathon, perhaps we can glean some wisdom from Mrs. King. Would Dr. King express his discontent with the policies of President Bush by jeering and booing him during a wreath laying ceremony? (On King's actual birthday last week in Atlanta, hundreds had protested President Bush's visit to King's tomb, chanting, "Peace, not war; that's what Martin stood for.") Or instead, would he engage in more civil discourse, using the strength of his ideals instead of acrimony in his voice?

Remember today, that the greatest accomplishment of Dr. King was not bringing home the bacon for his interest group, but rather the strides he made in bringing us all together. His dream was that we could all live together peacefully, in harmony. Many times he communicated more through his silence than his speeches. Remember that next time you engage in our national discourse. Politics should resemble our highest aspirations, not a feeding trough for the hungriest from the left and right.

YAGMAN SCORES SOME BROWNIE POINTS FROM THE CENTER

2004-01-18T23:40:00.000-08:00

Steve Yagman, of Yagman & Yagman civil rights lawyering fame, has drawn fire from quite a few conservatives in the past, and on the CenterMeter, he stands well left of middle. There's just something disconcerting to many rightists and centrists alike about the sheer number of excessive force claims his firm has filed against the likes of the LAPD, and the sheer amount of money that firm has made off them. Of course, the victims should get money when their rights are violated, but why should he get rich off it? There's just something sleazy about driving around a Jaguar after leaching the city coffers of millions of dollars.

But I digress. Today, he gets kudos from the Centrist in a tale of what goes around, comes around. In today's LA Times, click here (may need to log in), Judge Real of the Federal District Court in Los Angeles is reported to have been sanctioned by the 9th Circuit Judicial Panel in a secret, unpublished opinion for using his powers to help out a friend improperly. You can read to get the details, but the skinny on it is that he used his power to wrestle away a bankruptcy case from Bankruptcy Judge Katz to ensure that a probationer under his personal watch did not get evicted from her ex-father-in-law's rental property, resulting in a loss of $35,000 in potential rental income.

Where does Yagman come in? Apparently, Judge Real has gathered some enemies along the way, Yagman being the most ominous. Years ago, he fined Yagman $250,000 for supposedly filing a frivolous libel suit, a fine that was successfully appealed later. While us in blog land can safely accuse the likes of Yagman in the court of public opinion, if you're going to do it in real (no pun intended) court you better have the evidence. Judge Real didn't. The antagonism didn't stop there. Apparently, many attorneys felt he reigned over a "court of terror," using his favorite line, "This isn't Burger King, You can't have it your way." Many times, when asked for reasons behind his odd rulings, Real simply replied, "Because I said it."

After Yagman caught wind of the situation, he filed a complaint with the judicial counsel. Judge Schroeder initially dismissed the complaint, but Yagman persisted, resulting in the ruling described in the article. Instead of raiding the coffers in yet another contingency case, Yagman worked completely pro bono to ensure our judges follow the same rules of ethics the rest of the profession must follow. As much as I hate to quote a Trojan, Edwin Chemerinsky said it best: "I think it is important for the 9th Circuit to say a judge should not behave this way." You can't take a case with the purpose of affecting the outcome.

KUDOS to Yagman. If you're reading this, gimme some of your last judgment. Daddy needs a new Jaguar.

A SITE IS BORN!

2004-01-18T22:56:00.000-08:00

Tired of "Conspiracies?"

Done with pundits of the insta, supa, dupa, and all other varieties?

It's time for a blog for the rest of us!

2004-01-18T18:16:00.000-08:00

Test Post