Rumsfeld’s Responsibility

Dear Colleagues:

One so often has to eat crow in this world that perhaps it would be forgivable to crow when one has said something that almost nobody wanted to believe or investigate but that is later shown to be true. Maybe, therefore, the report of the Schlesinger panel justifies a partial crowing by this writer. For it was said time and again in this blog, beginning almost four months ago in early May, that responsibility for the prison abuses in Iraq ran to the top of the Pentagon and White House. The idea underlying this assessment was that Bush, Rumsfeld, Wolfowitz, et al. desperately wanted intelligence about terrorists and insurgents. They were willing to countenance torture in order to obtain it (as supported by the now infamous memos saying the commander-in-chief can authorize torture regardless of the law). And, while seeking to preserve deniability, they unavoidably knew that torture and other abuses were being used to get the information which they so desperately wanted. (Why else were captives, as Bush et al. knew, being sent to undisclosed locations in places like Egypt, Pakistan and Thailand to be interrogated?) The correlative of all of this was said here to be that Bush, Rumsfeld, et. al., were guilty of crimes under domestic law, not to mention international law.

Almost nobody wanted to believe, say or investigate these things at the time. This fact even remains true today, as one can see from the lack of discussion about or investigations of them. Nor, to be sure, has the Schlesinger panel said these things. But even though all four members of that panel sit on Rumsfeld’s own Defense Policy Board, the panel -- unlike other bodies investigating what went on -- has put its toe into the water by saying that responsibility ran to the top of the Pentagon.

True, when discussing bad stuff the panel does not mention Rumsfeld by name, but refers only to the "Secretary of Defense." True, this is the Washington game of trying to lessen responsibility, at least emotionally, by not assigning blame to individuals by name, but instead assigning responsibility only impersonally to institutions, titles, offices and forces. True the panel places far more blame on others lower down the chain of command. All true. Yet the unavoidable fact remains that four members of Rumsfeld’s own Defense Policy Board -- four people whom some might justifiably think to be generally aligned with his views -- have had to admit that dear old lovable Rummy bears part of the blame. Perhaps, then, a minimal level of crowing is in order here.

And mark my words. If there are serous investigations rather than military whitewashes in future, then a much higher level of blame will attach to Rummy, Wolfowitz, and others in the Pentagon and serious blame will attach to Bush himself. As said before in this place, Bush, Rummy and that whole lot desperately wanted information about terrorists and insurgents. They were willing to countenance methods which most Americans consider outrageous in order to get it. And for various reasons -- such as knowing and approving of guidelines that approved abusive methods of interrogation, the high level memos approving of torture, and knowing that prisoners were being interrogated in places like Thailand and Egypt -- they could not help but be aware that bad stuff was going on. But they didn’t care, because they thought it crucial to get the information they wanted and, to get it, they were willing to countenance whatever they thought might work.*

*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Progressives’ View of Bush, And Everyman’s View Of Him.

Dear Colleagues:

A few weeks ago The Washington Post carried an op-ed piece by a sociology professor, Gary Alan Fine, who teaches at one of America’s eminent schools, Northwestern University. The subject of the piece is why "progressives" hate George Bush: why "a fair population of these bright and articulate Americans hate" him, why "so many thoughtful people hold a belief that is surprising -- and troubling -- to the vast majority of Americans."

To illustrate "the depth of this hostility," Professor Fine cited a discussion he had with "a distinguished social scientist. She explained casually, without preface or embarrassment, that she hates the president." Fine couldn’t believe she meant this literally; certainly she simply disagreed strongly with his policies, found his personality unappealing, was angry about the outcome of the election of 2000, etc. "But, no, she insisted that she viscerally despised George W. Bush. She felt nauseated and angry when she watched him. She was not just intellectually offended but morally so."

Subsequently in his piece, Professor Fine explained what he considered the emotional basis of such hatred on the part of "progressives." What he said is brilliantly correct (although it is only part of the story). One cannot do better than to quote his superb writing:

. . . George Bush is Forrest Gump. He has led a charmed life, in which
mediocrity, error and failure have had no consequences other than to produce
success. An indifferent student, Bush attended both Yale and Harvard, escaped
service in Vietnam, escaped disgrace despite drunken driving, failed as an oil
magnate only to be promoted to head the Texas Rangers baseball team and, lacking
political experience, became governor of Texas. His family and mentors paved the
way for this untalented scion of privilege. Bush was the frat boy who never grew
up.

Indeed, the conclusion of the 2000 election contributed to this
perception. A week before the voting Bush seemed solidly in the lead, but then
Democratic operatives spread the story of Bush’s youthful DUI arrest, and his
support appeared to crumble. Once again, though, his irons were pulled from the
fire -- by his father’s Supreme Court. The outcome underlined Bush’s image as
undeserving heir. The frat boy triumphed; fecklessness was its own reward.

Fine was right as far as he went. Many of us learned -- mistakenly -- that the American Dream went to those who worked hard, were competent and intelligent, were honest, were modest and had other desirable qualities. George Bush is the living embodiment that what we were taught has become a fraud in a plutocratic society. If one looks around, one sees everywhere that the palm goes to the dishonest, to the incompetent who suck up religiously, to the shameless tooters of their own horns, and to those who start with the ineffable advantage of a rich, accomplished and/or famous Daddy (or, these days, Mommy). George Bush illustrates a few of these traits. Yet, though he was a serial failure in most of his life, he is now President of the United States, and is such by the grace of family and plutocracy.

To those who were educated in the American Dream in the ’40s and ’50s, in the rise from obscurity to greatness of a Lincoln, Bush is a living rebuke which tells them that their views are wrong and their values silly. Honesty, intelligence, competence, hard work -- they are not what count.

Read the word "progressives" as meaning liberal or leftist academics (as it seems to have been meant to be read), and the situation is even worse. For Bush does not read -- for practical purposes boasts of not reading. This asperses one of the fundamental canons of education -- and of thinking: that one should read, that one in fact must read, to be knowledgeable and intelligent about things.

Nor do some "progressives" -- or, I imagine, some business people -- think well of Bush’s alleged "style" of leadership, which is itself largely predicated on personal ignorance. He proclaims that he simply sets the overall policy, and then leaves its execution to others. This, frankly, can only be the style of the mentally inadequate. No leader of any successful institution of any type can adopt such a totally hands off policy with regard to execution, with regard to implementing details, and be successful. Generally speaking, it just doesn’t happen, and Bush’s war in Iraq is but one of infinite examples.

There is irony in this, too. About two years ago a member of Bush’s Defense Policy board, Eliot Cohen, wrote a book about leadership in warfare called Supreme Command. The essence of Cohen’s view is that successful wartime leaders -- Lincoln, Churchill, Clemenceau, Ben Gurion -- were very hands-on, were very involved in details, constantly questioned and pushed their military people to insure that their plans were well thought out and had been improved as much as possible. There was a rumor around that Bush had read Cohen’s book. Either the rumor was false or Bush ignored, failed to understand or could not implement Cohen’s view that the successful leader does far more than just set overall policy and then totally and unquestioningly rely on subordinates to carry it out.

So, as said, Fine is right as far as he goes. But he ignores a crucial point. Saying that "political animus" should not be "tied to issues that are removed from policy" and that "bitterness toward the follies of youth" should not "determine our politics," Fine says there is enough to argue about by considering a president’s successes, failures, misdeeds. But Bush’s failures and misdeeds are matters that have contributed -- mightily -- to "progressives" disliking him intensely. In particular, his defense and foreign policies have outraged them. From telling the rest of the world to lump it, to spurning international courts, to incredible misjudgments about Iraq from start to finish, to untruths and total unwillingness to admit mistakes about such matters, Bush has outraged those who now deeply, viscerally dislike him. It is not his feckless earlier years alone which cause this dislike. It is the feckless early years plus the serial failures as president, failures which, pace Professor Fine, were prefigured by the serial failures of those feckless early years.

* * * * *

Yet George Bush is likely to win the election. At least he stands an excellent chance. There are many reasons. Lots of people agree with his policies. Some people are diehard Republicans. The average American reads little, as does Bush, and cares not a whit about the views of "progressives" or intellectuals. John Kerry is a flip flopper and does not seem to have any fundamental principles (except a 40 year desire to be president). Kerry does not seem to be a particularly likeable guy. Ralph Nader may syphon votes from Kerry, especially because more and more people are coming to agree that both parties are simply vehicles of the plutocracy. And so on.

But there is one other point which seems terribly pertinent. It was driven home when Bush and his wife were interviewed by Larry King recently: During the small portion of the program that I watched, Bush came across as a charming, likeable guy, much as a few years ago. What has been called his frat boy personality, or his good old boy personality, was on display. He would so charmingly give answers that were non-answers that one didn’t even realize they were non-answers. Or one didn’t even realize that, against the evidence, he was refusing to admit he had ever been wrong, or that he was simply blaming others for his own mistakes. If memory serves, for example, when King asked him whether he would use more soldiers if he had the Iraqi invasion to do all over again, he shifted it onto Tommy Franks. Saying his own style (as said) is to set policy and let the experts take care of the tactics, he had asked Franks if he had everything he needed, and the answer was yes. Not a word about -- nor did the King of softballs ask about -- Eric Shinseki’s statement that it would take several hundred thousand men to pacify Iraq, not a word about Larry Lindsey’s correct prognosis of the costs, etc. Nope. It was all the fault of those charged with the mission. To give other examples, when King asked George and Laura about stem cell research, you would have thought Bush was 300 percent in favor of it. When King asked about the mission accomplished episode on the aircraft carrier, Bush insisted he actually had stressed that there was much more work to do.

It was all smooth and utterly charming. It almost made me want to vote for the guy. And 65 years of life make me just have to believe that that kind of charming, frat boy, good old boy personality is what most American like. Most people are not "progressives," let alone academics or intellectuals. Bush’s personality can play well with them. The only thing that might cause significant numbers of them to change their minds is a clear statement of the unvarnished truth about what Bush is saying. Unfortunately, clear statements of unvarnished truth are not what John Kerry excels at. So in one sense, in one very important sense, this election pits Bush’s personality, attractive to many even if not to "progressives," against John Kerry’s speaking style, attractive to few or none. So, unless somebody begins taking Bush on in clear, unvarnished ways, John Kerry had better start looking for a job*

*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Guantanamo In Washington

Dear Colleagues:

I think it probably fair to say that most Americans do not care about the claimed constitutional rights of terrorists who have or will attempt to kill Americans or destroy our country. This writer includes himself among the noncaring, despite a dozen years in the '60s and '70s as a liberal professor (and practitioner) of constitutional law and a general civil liberties background then and afterwards. Why, then, are lots of the uncaring, myself included, nonetheless concerned that the prisoners at Guantanamo receive many of the same rights as normally accrue to Americans caught in our criminal system? We care because of idealistic concerns about what our own nation is and does, and because of selfish, self-interested concerns, supported by history, about what any nation, including this one, could become.

There are lots of recent facts that have triggered these concerns about what America is, does and could become. For example: Hundreds of people have been imprisoned and kept incommunicado at Guantanamo for 2« years. Prisoners there, at Abu Ghraib, and at secret detention centers have been tortured and/or exposed to neo torture, and some were killed. It is some people's view that knowledge of, responsibility for, and criminal liability for the torture and the neo torture go right up to the highest levels of the Pentagon and the White House -- though the press, and the Democrats, now seem to be adopting a hands-off policy about this. It is now widely thought, based partly on Pentagon and CIA admissions, that large numbers of the people we have imprisoned are wholly innocent or not dangerous -- one estimate, apparently from a CIA man, no less, who spent a year undercover at Gitmo, is that only 10% of the detainees at Gitmo are really dangerous, and the rest have nothing to do with anything (which is hard to believe, yet could be true). The Executive has urged that the President, as commander-in-chief, can ignore the law (and can torture people) if he claims this is necessary. The Executive claims that the war on terror is of indefinite duration, which means that prisoners could conceivably be kept at Guantanamo for the rest of their lives, as bizarre as this sounds, and that claims of unusual Executive power could keep surfacing for the rest of our own citizens' natural lives. Such claims could turn the United States into a militarized state, although there are thinkers who reasonably believe it already is, and for about forty or forty-five years has been, a heavily militarized state.

These are the recent facts which cause people to be concerned about what the U.S. is or could become, and to feel, therefore, that the prisoners at Guantanamo should receive the kinds of rights Americans receive in the criminal justice system lest we take further steps down the road to militaristic authoritarianism. When one reads the recent opinions in the detainee cases by the Supreme Court, here and there, through the clouds of legal technicalities and obfuscations that nobody but a committed lawyer could read (or write), one sees flashes that some of these recent facts were motivating factors causing the Court to take a baby step towards reining in the Executive -- the very same Executive, no less, for whom the very same, highly conservative Court stole the election of 2000.

There are also longer run factors, again not relating to the detainees themselves, motivating at least some of those who are concerned that the detainees at Guantanamo and elsewhere receive a reasonable complement of rights. One thinks of the American history of continuous wars from the 1600s onward, of the killings of Indians for almost 300 years, of the American psychological propensity to believe (as did Stalin) that deadly force is the answer to all problems, of the Palmer raids, of the internment of Japanese Americans (and, we have lately heard, of Italians too), of the McCarthy era, of Johnson's, Nixon's and Bush II's attacks on civil rights. While only some of these historical botcheries are directly relevant to the question of what rights should today's detainees have, it is probable that all of them are psychologically relevant because they are all warnings of what the country could become.

* * * *

What, then, is in fact occurring with regard to the Guantanamo prisoners? This, of course, is a broad subject that has been little covered by the press, because proceedings are only at their inception at the trial court level, and the press doesn't carry much news about trial court cases anyway, unless the cases involve some kind of scandalous or scurrilous matter.

So . . . . here is what is occurring currently at the trial court level on one important issue in one of the cases, and some opinions about it as nearly as one writer can discuss and can form opinions from reading some of the documents filed in court.

It appears that 14 cases have been filed by 60 aliens who are before a total of eight judges, with some of the aliens being represented by the Washington branch of one of America's oldest and most prestigious "white shoe" Wall Street law firms. The case of these particular aliens seems to be where some of the important action is now, and is before Judge Colleen Kollar-Kotelly in Washington. To have Kollar-Kotelly as their judge may not be such a great thing for those aliens. For Kollar-Kotelly had previously dismissed the same aliens' case on the government-pushed but fundamentally preposterous ground, approved by her basically conservative to reactionary court of appeals in D.C., but then overruled by the Supreme Court, that the aliens could not seek judicial help (via habeas corpus) because Guantanamo, where they are held, is not sovereign territory of the United States. This claim was, of course, a farce for several reasons, including that for 100 years the United States has had, and for the foreseeable future it will continue to have, what even the conservative Supreme Court said was "plenary and exclusive jurisdiction" over Gitmo. What we say goes at Guantanamo. The Cubans have nothing whatever to say about it. One could put it this way: Fidel Castro would not dare set foot on Guantanamo.

That Kollar-Kotelly previously rubber stamped a preposterous argument put forth by the government in the detainees' case is not a good sign now for the aliens. Nor I may say, is the Gitmo matter the only one where she has rubber stamped whatever the government wants. For Kollar-Kotelly is also the judge who, at the urging of the government and Microsoft, rubber stamped a settlement that was a governmental cave-in and a governmental dereliction of duty. The settlement was so bad that Congress -- unknown to almost all the country and the media -- recently passed a law intended to stop such judicial rubber stamping in antitrust cases, and, as a reason for the new law, repeatedly cited the judicial rubber stamping in two cases: the Microsoft case of Judge Kollar-Kotelly and, with strange serendipity, the judicial rubber stamping of a cave-in governmental settlement, with the American Bar Association, that had been opposed by the school of which this writer is Dean.

The point of all this is that Judge Kollar-Kotelly has shown herself ready to wield a rubber stamp when requested to do so by the government in important matters. Frankly, if there is to be a fair hearing with a true possibility that the detainees will receive the rights we ought to give them in our own interest, not necessarily their interest, Kollar-Kotelly probably should get off the case.

But she won't. So what is actually going on now in the case? As this is written, the parties are arguing over the detainees' right to access to counsel in their habeas corpus proceedings. The government claims that, based on past cases, the detainees have no constitutional right to counsel because, number one, they are aliens and, number two, they are not on sovereign U.S. territory (notwithstanding that the Supreme Court said correctly that Gitmo is subject to plenary, exclusive U.S. control). The government says that it can make this constitutional argument, despite the Supreme Court's decisions, because the high Court rulings regarding the detainees' right to habeas corpus were made under a statute, not under the Constitution. Nonetheless, it says, it will allow them access to counsel, but only under certain conditions (discussed below).

It is hard to understand how the government's argument that the detainees have no right to counsel is anything but bad faith. It is little wonder that the brief for the detainees opens by saying, "To read the government's papers, one would never know that this case had just been to the Supreme Court of the United States, where the government made -- and lost -- virtually the same arguments it now recycles here." (The detainees' brief also points out that in another of the cases -- the Hamdi case -- the high Court said "He unquestionably has the right to access to counsel in connection with the proceedings on remand." Hamdi, however, is a citizen, not an alien, because he was born in the U.S. (though he moved to our good friend Saudi Arabia as a child).)

In addition to almost unquestionably being bad faith, the government's argument misses a fundamental point, one with which this piece began. The government's argument is predicated on the alien detainees' individual rights or, more accurately, their asserted lack of individual constitutional rights. But to lots of us, who don't care overmuch about the constitutional rights of terrorists, the question is not simply, and in the cases of those who in fact prove to be terrorists, is not at all the alleged constitutional rights of aliens. It is, rather, what kind of country are we and what kind of country will we become. Holding people incommunicado for 2« years, torturing some of them, and claiming that the Executive, as commander-in-chief, is not subject to law is not the kind of country we want to see, especially when lots of the detainees may well be innocent. That, rather than lawyers' legalistic abstract arguments about aliens' individual rights, is the basic reason that we think these aliens should have access to counsel to challenge the government.

When you get right down to it, even the government recognizes that it can't succeed with its bad faith argument that the alien detainees have no right of access to counsel. So it is agreeing to let them see counsel under certain conditions designed to insure that the detainees and their lawyers do not reveal classified information that could aid terrorists in harming the country. In general, the conditions constitute various forms of monitoring the written and oral communications of, and the information exchanged by, the detainees and their lawyers. More specifically, the more important of the conditions are that the detainees' lawyers must obtain security clearances, that information exchanged by detainees and their lawyers will be reviewed to insure against the compromise of classified information, and that, in some cases, involving particular detainees, the communications between a detainee and his counsel will be monitored. To insure against impinging more than necessary on attorney-client communications, says the government, the classification reviews and the monitoring will be done by DOD personnel who are "walled off from participation in any court or military proceedings concerning the detainee." Also, information obtained via monitoring cannot be disclosed to anyone unless it "reflects a likely threat to national security or of immediate violence." (The monitors can also stop a face to face conversation between a detainee and counsel where it is being used to further terrorist or criminal operations or to otherwise threaten national security.)

Despite the government's ample bad faith in these cases, it really does give some pretty decent sounding reasons for these restrictions. Some detainees at Gitmo, it says (and who would disbelieve this?), are quite dangerous people. There is even one who has an extensive record of violent assaults on U.S. personnel at Guantanamo. Detainees know dangerous information, including American methods, American plans and styles of military operation, how American intelligence operates, and vulnerabilities of American systems, and some detainees have even tried to use the mail system at Guantanamo to send such information. Moreover, there are detainees who are trained in the use of clandestine and sophisticated codes and signals. Even if their lawyers have security clearances and are trustworthy, detainees might be able to send information through them via such signals and codes without the lawyers even knowing: The lawyers will be unwitting dupes in this regard. In reverse, lawyers might, even unwittingly, give sensitive information to detainees, who could somehow then pass it on to terrorists.

As said, lots of these reasons given by the government sound pretty decent, especially if one is concerned to insure the safety of our country and people. But the answers given to the government in the detainees' brief has several powerful and one or two seemingly dispositive answers.

Let's start with a dispositive one. The detainees' counsel, who apparently are easily eligible for the security clearances they need, will agree not to disclose, orally or in writing (such as in briefs), any information they obtain from their clients without prior government approval. (If there is a dispute about what can be disclosed, the court will settle it). That the government will first inspect and "clear" the information will obviate any concern that, absent monitoring or review of conversations and documents at Guantanamo itself, detainees may give their lawyers information, possibly coded information, which is helpful to terrorists, and which the lawyers would wittingly or unwittingly pass on to the latter. (The reverse situation -- i.e., that the lawyers who qualify for the needed security clearances would know and would give detainees dangerous information which the detainees would be able to pass on to terrorists does not strike me as very convincing. It is a mere makeweight.) I cannot currently understand any reason why the government would turn down this resolution of the problem unless, as some are charging, it is simply engaged in bad faith and stalling.

Another reason, which probably is also dispositive, is this. There are four detainees (at least one of whom was captured in Afghanistan) who are suspected terrorists, and have been charged with crimes like "murder by an unprivileged belligerent, and aiding the enemy." These detainees, who plainly are thought dangerous, have had access to lawyers without reviews of documents and information, without monitoring, etc. How is it, then, that other detainees, most of whom the government has not said are dangerous after more than two years of interrogating them, and lots of whom likely are wholly innocent, cannot receive access to lawyers without reviews, monitoring, etc.? The dangerous ones have been given unfettered access to counsel, but other, often non-dangerous, ones can only be given fettered access? What is wrong with this picture?

Then there also are supporting claims that many detainees are innocent persons who were detained simply because our government gave large bounties to Afghan tribesmen for every Arab they brought in (this sounds like what our government would do), that there has been 2« years of torture or neo-torture (which we know our government has sometimes done), mobsters -- whose lawyers sometimes do pass on dangerous, even deadly information that the mobsters provide -- are allowed to meet with counsel on an unrestricted basis, and that constant meetings with detainees are needed to obtain the confidence of people who know nothing of our systems, who have been kept imprisoned and incommunicado for over 2 years, and who may be afraid that almost anything they say will be used against them if learned by the government. All of these points sound reasonable, although it would be hard to think them dispositive if there really were an unsolvable threat that conversations with counsel would result in important information that can result in killing or hurting Americans being passed on to terrorists.

There is only one somewhat questionable argument being made by the detainees' counsel. The argument relies in part on a partially bombastic "Declaration," made "under penalty of perjury," by a guy who is a big shot in the American Bar Association.

The argument is that the restrictions imposed by the government will in effect destroy the right to counsel by destroying the confidentiality claimed to be a sine qua non of that right. In other words, if a client cannot talk to his lawyer without confidence that nothing that passes between them can ever be revealed to anyone else unless the client consents, clients will not talk frankly to their lawyers, the attorney-client privilege will be worthless, and "the lawyer-client relationship meaningless". This argument is the conventional wisdom, and the standard bombast, of the legal profession. It is elaborated to a fare-thee-well in the semi bombastic "Declaration" of the ABA bigshot. To get the full flavor of the bombast, one should start with the fact that the "Declaration" begins with a page and one half description of the fellow's qualifications - - including having been the top gun at a firm whose major name partner belittled "Russian Jew boys" in the legal profession eighty odd years ago (although the big shot is himself Jewish) - - and the fact that the page and one half of qualifications is beefed up by 19 pages of resume listing positions in professional organizations, published articles, books, professional appearances (on panels, etc.), prior employment, teaching experiences, honors and awards, directorships, appearances, community activities, education, and cases in which this fellow has testified in the last four years. Nineteen pages of this stuff. Modest this fellow is not, and I suppose bombast is what one should accordingly expect. The Declaration thus says, in the face of the everyday realities of the legal profession, that it is clients, not lawyers who make critical decisions, that lawyers must have loyalty unfettered by conflicts of interest, that "we are certain" that without confidentiality clients won't disclose important matters to lawyers, that the executive is showing "unprecedented and unreasonable distrust of lawyers," distrust which "shocks one," and that "It is a vast overweighting of the threat of terrorism that caused the executive branch to violate the [detainees'] rights," a "trampling" of rights which the court should not allow to be "compounded by destroying the lawyer-client relationship" "It is also true," says the Declaration, that "society has an interest in learning the content of these clients['] lawyer-clients communications and decisions. But society has a far more profound interest in guaranteeing the right of these prisoners to meaningful access to courts". The Declaration closes with a footnote saying it is submitted "in lieu of an amicus curiae brief which I was prepared to offer on behalf" of a group of ABA bigshots and "leading ethics professors,"but there wasn't enough time to have everyone sign off on it though they generally endorse his views and will seek to appear formally if time permits.

One wonders: what world is this bombast thrower living in? Lawyers make crucial decisions for clients every day and have ongoing conflicts with clients every day. How is it that "we are certain" that the attorney-client relationship will be meaningless without utter confidentiality, when people tell highly confidential things to non-lawyer professionals who have no similar privilege, and when many people who consult lawyers don't know about and don't care about the attorney-client privilege? Not to mention the evil that has been protected by the privilege (as in the tobacco cases and many others). The idea that one is "shock[ed]" by distrust of lawyers boggles the mind, since such distrust is widespread. And what would one think of the privilege of confidentiality if it somehow led to another Twin Towers? The truth is, I believe, that the attorney-client privilege, rather than being a bedrock of our system, is far more a device by which lawyers get business which sometimes would otherwise go to other professional or business people, and that much of the Declaration is bombast a outrance.

Yet the Declaration does make one point of great importance in the particular circumstances of the case, a point rightly adopted in detainees' brief. If information passing between lawyers and detainees is reviewed or monitored, the detainees - - particularly after having been held incommunicado in a foreign land by foreign language speakers for 2 « years, and perhaps having been tortured or subjected to neo torture as well - - might not want to provide the names and locations of family members and friends who could provide helpful testimony, for fear that what happened to them could happen to the others. They might be reluctant to share details of past mistreatment, for fear it could begin again. They might not want to share "troublesome" facts, for fear that reviewers or monitors would report such facts. These seem like reasonable concerns. And, without having to say that attorney-client confidentiality is the greatest thing since sliced bread, these concerns can be accommodated by ruling against the restrictions on access to counsel that the government proposes, while protecting the nation by adopting the offer of detainees' lawyers to disclose to third parties no information received from their clients unless the government first agrees or, if it doesn't agree, a court overrides it.

It now remains to be seen what the government says and what Judge Kollar - Kotelly rules.
============
If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Re: Did America Go To War Because False Information Was Extracted By Torture?

August 6, 2004

Dear Michael:

Your e-mail is distressingly trenchant. You have enunciated so many disturbing truths about so many things.

My personal view, which I do not often mention because it sounds both so hopeless and so idealistic, is that the politics and general views of this nation are unlikely to change unless and until there is a viable third party devoted to truth above all. But to seriously hope for such a party, I am afraid, would be regarded by most people as living in a dream world.

Because your e-mail was so trenchant about so much, I am posting it on the blog along with this brief response.

All the best.


Larry Velvel

----- Original Message -----

From: "Michael Parenti"
To: "Dean Lawrence R. Velvel"
Sent: Thursday, August 05, 2004 4:07 PM
Subject: Re: Did America Go To War Because False Information Was Extracted By Torture?


Dear Lawrence;

I really hope you are right and I am wrong, but I doubt that Kerry will win the presidency. He is a remarkably unappealing candidate and has failed to connect with great sectors of the electorate. And he is surrounded by consultants who have no political instincts in regard to how to go after Bush, taking an imaginary high road,
talking about leadership and patriotism, shades of Dukakis who blew a 16 point lead
after his nomination.

As for all the Bush failures and wrongful deeds, I dont think they measure in very much at all. There is a great heartland of middle Americans who love Bush because he is Bible, anti-abortion, straight-sex marriage, pro-SUVs and guns, anti-liberal intellectual, white, male, regular guy, beef-eater, etc.

They have learned from the shock-talk radio rightwing hosts to forget the issues and class interests, and vote lifestyle and "values." Those are the only explanations they are given.

And the Democrats are not helping them much to remember the issues and their real class interests, so busy are the Dems waiving the flag and talking about the obviously empty things like Kerry the leader, and Kerry the war hero, things that the public can see through.

The Dem convention was a lost opportunity to educate the people in regard to the issues. Not one speaker explained what a deficit is, how it cuts into our tax dollars, and privatizes the budget for the benefit of rich creditors. With few exceptions, the speakers offered pablum and alluded in vague ways to nefarious Bush doings, not realizing that most Americans dont know what the hell they were talking about. (Never underestimate the level of misinformation or noninformation among the general public.)

In any case most of the Bushies are ready to forgive him anything:
--So Bush has a record deficit. So did Reagan and he got reelected by a landslide.
--So Bush is in a war and losing 9 GIs a week. Nixon was losing 120 a week and got reelected in a landslide.
--So Kerry was a war hero 30 years ago, and Bush is a draft-dodger. So was
Clinton a draft-dodger and he whipped the older Bush (a decorated war hero) and Bob Dole (a decorated war hero).

No, the remarkable thing about this campaign is the damage control effected by the predominantly reactionary media pundits and scream-show radio hosts. Bush is coming through remarkably well, and right now he is ahead of Kerry in the electoral college.

So speculations about what a Kerry presidency might or might not do are quite premature at this stage. Again, I hope I am wrong about all this. I hope you can chuckle in November and say, "Parenti, the political analyst sure called it ridiculously wrong." I will joyfully eat humble pie, and say, "Yep, that crusading law school dean got it right again."

Warmest regards,
Michael Parenti

RE: Of National Commissions. And Antitrust. And Mergers

----- Original Message -----

Sent: Tuesday, August 03, 2004 11:20 AM
Subject: RE: Of National Commissions. And Antitrust. And Mergers

There is no doubt that the Antitrust Modernization Commission has a conservative makeup. Though the statute called for a wide range of perspectives to be represented, one must ask where are the representatives of (a) consumers (b) the states (c) small business (d) economics (one economist!), and (e) the plaintiffs' bar.

Since likely topics include matters of great and direct concern to all of the above, one would think they would be present at the table. I have been assured that there will be aggressive outreach to give all of these and others ample opportunity to be heard, but there is a huge difference between being invited to present a statement and being able to debate and vote on positions.

The American Antitrust Institute (like the Antitrust Section of the ABA) intends to create task forces to monitor and try to influence the various issues that the AMC decides to take up. For background on the AMC and my perspective on how it fits in with prior blue ribbon antitrust commissions, see Albert A. Foer, "Putting the Antitrust Modernization Commission into Perspective," 51 Buffalo L.Rev 1029 (2003), available at http://www.antitrustinstitute.org/recent2/292.cfm.

Bert Foer, President
American Antitrust Institute

Did America Go To War Because False Information Was Extracted By Torture?

Dear Colleagues:
We now know that the claim that Iraq was training Al Qaeda in the use of chemical and biological weapons -- which was one of the major grounds given for going to war with Iraq -- was almost surely false. Perhaps there is still a sliver of possibility that the claim was true, but nonetheless, to reiterate, in fact it was almost surely false.

It is also known now that the major source for the false claim was a senior Al Qaeda leader, Ibn al-Shaykh al-Libi, who was captured in Pakistan a few months after 9/11 and who later recanted when confronted by conflicting information (which apparently came from other captured Al Qaeda leaders). Apparently, the CIA does not know whether al-Libi, made his original false claim because he was trying to deceive interrogators or because he was telling them what he believed they wished to hear.

There is one truly crucial aspect of this matter that, as far as I know, has been completely overlooked thus far by the media. The Times of Saturday, July 31, said that al-Libi "is still being held by the Central Intelligence Agency at a secret interrogation center, and American officials say his now-recanted claims raise new questions about the value of the information obtained from such detainees." The underlying point implied in this is what the media have ignored, as far as I know.

That underlying point is that the secret detention centers were established in foreign countries -- such as Thailand and Egypt if I remember correctly -- so that Al Qaeda members could be tortured. If memory serves, the executive branch came up with some cock and bull legal theory that American law governing its conduct would not be violated if the torture occurred in foreign countries and the forces of those nations participated in it.* (If memory again serves, George Bush -- who almost certainly knew that torture was occurring -- said he didn’t know and didn’t want to know where the secret centers were. Perhaps he thought his ignorance would help immunize him from being guilty of a crime with regard to torture.) Because al-Libi made his now recanted claim at one of our secret detention centers, the question arises of whether he made his false claim under torture, perhaps because he thought the claim was what the Americans wanted to hear and would cause them to stop the torture, at least temporarily.

If one considers this possibility, it is little wonder that, as the media have said, the 9/11 Commission gave only brief mention to the fact that "‘an Al Qaeda operative’" had backed off the now recanted claim, and that the Senate Intelligence Committee discussed the matter (more extensively, apparently) in parts of its report that are still secret. For it plainly would be political and moral dynamite for the upcoming election if it became publicly known that information which in major part led to the war was not only almost certainly false, as we now already know, but that the lie was extracted by torture -- which many Americans, prominently including military people, strongly oppose. Let me put it this way: What would George Bush’s chances of reelection be if it came out that he not only told falsehoods (in plain language told lies) to get us into war, but that his administration extracted the war enabling lies by torture? Were this horrible possibility to be true and to become known, the chances might be pretty good that even the not very appealing Kerry would win the election by the greatest landslide since the not very appealing Johnson smashed Goldwater and the equally unappealing Nixon creamed McGovern. After all, even lots of Republicans are now sickened by Bush’s conduct in Iraq, and were it to be true and to become known that we got into the war largely by false statements obtained by torturing people, Republicans might be likely to stay home in droves on election day. The only thing that might hold down Kerry’s margin of victory would be that, with Bush a sure loser anyway, lots of us might vote for Nader to show what we really think about the fraudulent politicians and the morally crooked political parties of this country.

So . . . . what is the fact, what is the truth, about the circumstances surrounding al-Libi’s initial but now recanted claim that Iraq was training Al Qaeda in the use of chemical and biological weapons? Was it made under torture or something akin to torture? It may be that the Senate Intelligence Committee knows and cast light on the matter in secret parts of its report. It may be that the matter is discussed in a secret 20 page CIA report on prewar intelligence that is now being reviewed by John McLaughin, the Acting Director of the CIA. Regardless, however, it is crucial that the media push for and that we learn the truth. For the truth here is crucial both as a matter of morality and as an electoral matter -- not to mention its bearing on possible criminality at the highest levels.

One last point which flows from all this. It is also important to learn the truth because, were it to be true and become known that torture played a role in obtaining al-Libi’s initial, war-facilitating claim, this would not only be likely to ensure Kerry’s election, but would be of immense help to Democrats in putting pressure on Kerry to get out of Iraq immediately if not sooner if he is elected President. And, if the Democrats do not put pressure on Kerry, then, judging by everything Kerry has said and had Democrat platform makers say, he will do in Iraq exactly what George Bush is doing. Put differently, Kerry will have a huge number of American troops in Iraq for years, just as Bush will. Regardless of whether Kerry gets other nations too to put in troops -- and will any other country in its right mind in fact do that given the guerrilla war raging in Iraq? -- the American people will not stand for three or four more years of involvement in guerrilla war in Iraq and large numbers of American deaths there. As said here previously, continuing involvement in the war in Iraq would wreck a Kerry presidency just as surely as war wrecked Wilson’s second term, Truman’s presidency, Johnson’s presidency, Nixon’s presidency and now the second Bush’s presidency. It is in the Democrats’ political interest to insist that the truth came out right away about whether al-Libi’s initial claim was the result of torture or something akin to it.**


*This was on top of the Executive’s other cock and bull constitution-destroying theory that the President as Commander-in-Chief can ignore the law if he chooses to.
**If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Re: "Heroization of a German Who Shot Hundreds of Americans on Omaha Beach"

Alas Larry,

Methinks you are (like me) thinking through Jewish eyes -- something we used to talk about. I remember being in a carpool with a guy who couldn't understand why the Jews couldn't put the holocaust behind them. Yesterday, I played golf at Congressional Country Club (yuk) and my partner offered that Israel was as much as terrorist country as Iraq. While I was his guest, I confronted him with facts. Still, his sensitivity(?) was not mine. I also read the article you referred to and was sickened by the pure number of soldiers this guy killed. I was also floored by the fact that only 37 Germans were defending Omaha Beach and that our guys were simply cannon fodder. My first though was, "Couldn't there have been a better way to invade France?" But to your point -- well taken -- but I'm afraid that with time gone by, that German soldiers will now be looked at simply as soldiers -- doing their jobs just like us.

So if you assume that this guy was not political, didn't really want to be in the Army, was scared just like everyone else, and was put in a position where he had to defend himself -- well, you see what I mean. But quite frankly, it really doesn't matter. No matter what the issue, we Jews (collectively, if not individually) will always look at things a little differently than others. Our neurotic thoughts are born out of thousands of years of persecution and the knowledge that we are hated the world over.

On this wonderful note, I bid you a fond farewell.

Harvey

Of National Commissions. And Antitrust. And Mergers

Dear Colleagues:

Whenever a national commission is needed, ofttimes but not always after some disaster, it seems that it is populated by members of the establishment. Outsiders, and people who are very competent but do not have some form of celebrity, are not wanted. I suppose the reasons can be many; one often hears that the establishment members who are put on national commissions are experts, have experience, etc. I suspect that there is another, more vital and usually unspoken reason: they are safe. They will not rock the boat or, if the situation gives them no option but to rock it, they will do so only within limits.

This seems to be the story of the 9/11 Commission (one of whose original cochairs was Henry Kissinger, you may remember). The 9/11 Commission’s members were all members of the establishment and, with only one possible exception, were leading members of it.

Given the Commission’s recommendations, one’s immediate reaction to what was said above is that it did rock the boat. And yet there are those who say -- I think with good reason -- that it followed the Washington game of rarely if ever accusing individuals of being at fault. That would rock the establishment boat too much, critics say. The Commission instead finds institutions to be at fault. (Apparently we have fault filled institutions run and populated by faultless individuals.) There are also those who say the Commission overlooked (or tossed aside) chances to find out more about the Saudi Arabian connection -- that could really rock the boat, because the connection goes right into the present and a past Oval Office.

The incompleteness of the work, and the non-boat rocking, of an establishment-populated national commission did not commence with the 9/11 Commission, of course. In my adult lifetime, the same phenomena characterized the Warren Commission. And I gather that, before I even remember having learned to read, it also characterized the group or commission which investigated Pearl Harbor.

We are now about to see the same phenomena occur yet again with regard to another national commission. This commission is not one that is widely known -- in fact, I would bet that 99.99 percent of our citizens don’t know of it at all. Nor is it dealing with matters of the same world shaking character as 9/11, the Kennedy assassination, or Pearl Harbor. Yet it is dealing with matters of fundamental importance to our economy (though right wingers who hate antitrust would not agree).

The commission in mind is the Antitrust Modernization Commission ("AMC"). It was created because of Congressman James Sensenbrenner, has twelve members evenly divided between Democrats and Republicans, is comprised of members of the antitrust law establishment, and therefore consists almost exclusively of people who are or were from big law firms where they defended big companies. This Antitrust Commission held its first meeting on July 15^th, and precisely what issues it will address is still unknown, except that it likely will study three issues that Sensenbrenner is concerned about: intellectual property and antitrust, antitrust and the global economy, and the antitrust role of state attorneys general.

Because of who the members of the Commission are (you can look them up on line at http://www.amc.gov/ and mailto:info@amc.gov) there seems to me little or no chance that the AMC will do anything except suggest further weakening of the antitrust laws. That is the way things have been going for the last 35 years or so (due in major part to the influence of the Chicago School of economics), and the commissioners have "grown up," so to speak, under that kind of intellectual regime. Nor would one think there is any possibility that the Commission would even consider or discuss, let alone favor, one particular change that would do major good: a change in the law to outlaw almost all mergers of any type. That change is just too much of a rupture with the way things are going, with the intellectual milieu of the last 35 years, which strongly favors disasters such as the Time Warner/AOL merger, and with the desires and even the beliefs of the plutocracy that runs this country in its own interest and to the detriment of us commoners.

I could, of course, explain from scratch why I hold such heretical views. But my patience being exhausted after 40 years or so, I shall simply quote instead from two sources. One source is an Introduction to an 89 page issue of an intellectual magazine, called The Long Term View, that was devoted entirely to a dozen articles and interviews on the subject of Bigness Is Badness. The other source is from a fictional, quite serious book entitled Trail of Tears that will be published next January. (Trail of Tears is the second volume of a quartet called Thine Alabaster Cities Gleam.)

Here is what was said in the Introduction to the issue of LTV on Bigness Is Badness.

I first did antitrust work in 1964 -- 38 years ago. I have been active in the field in perhaps half the years since then. From the time I began in antitrust, or perhaps starting shortly afterwards, one would regularly hear the phrase, "Bigness is not badness." This never seemed right to me, doubtlessly because of the contrary influence of two brilliant Justices, Louis D. Brandeis and William O. Douglas. Yet "bigness is not badness" is a philosophy that swept the field of economics and the field of antitrust law. It carried the federal judiciary and American politicians. It supported wave after wave of mergers in which huge companies became gigantic, and it supported increases in corporate size, without mergers, that caused companies to become elephant-sized.

There never really was any proof that bigness is not badness, that bigness is, in fact, good. Rather, the alleged benefits of gigantic size were mainly matters of theory. They were a propaganda triumph of academics, and of lawyers and investment bankers who benefitted when companies grew gigantic by merger or otherwise. I once asked a former head of the Antitrust Division, who was one of the believers, whether he had any factual proof that large mergers benefitted the economy. His answer was no.

Ideas from the University of Chicago once were called "a triumph of theory over fact." So it was here, where the so-called "Chicago School" had much to do with the overthrow of Brandeis and Douglas.

For nearly two generations now, the idea that "bigness is not badness" has prevailed. But of late questions have been raised that ought to cause a reassessment of the role and value of gigantic corporate size. Many of these questions are discussed in this issue of LTV. The questions include economic ones of efficiency and maximizing economic benefit. But they also include ones, as Brandeis and Douglas realized, that involve political power in this country.

And here is what is said in Trail of Tears:

Conglomerate Corporation, called Conco, was one of the three most regular and lucrative clients that Crider, Rogers had. Conco had started in the 1950s, when its founder, after returning from the war, had built a small grocery chain in Detroit and had then used the chain’s accumulated cash to buy a small autoparts manufacturer. From there Conco grew and grew and grew by acquisition after acquisition after acquisition. By the late 1970s and early 1980s, it was a mammoth conglomerate which owned more than 200 companies of every imaginable type. Its companies ranged from computer manufacturers, to automobile and jet engine manufacturers, to airport operators, to the world’s largest manufacturer of nails, to automated pig farms in North Carolina and Iowa.

Conco, with its unending stream of unrelated acquisitions, was the kind of company which had led Art Buchwald to once write a column in which he described the merger movement as continuously proceeding until, at the end, there were only two companies left in the United States, one east of the Mississippi and one west of the Mississippi. And then those two merged, said Buchwald. It was the kind of company which, because also typified by Gulf & Western, had led one nationally syndicated cartoonist to call such a company "Engulf and Devour" in his cartoons.

These kinds of companies were and are symptomatic of the merger movement which occurs regularly in American society, which occurs every ten or twenty years or so. A wave of mergers takes center stage. Corporate takeover artists, their investment bankers and their lawyers, all of whom make piles of money from mergers (although not all the piles are equal -- some are much higher than others) defend this with a host of rationalizations. So do shill economists. Allegedly, businesses will be run more efficiently, as new techniques are forced on companies and the slothful go to the wall. Excess capacity and excess capital employed in an industry will be liquidated, making the industry more efficient and its roducts or services cheaper. A conglomerate will be better able to withstand economic cycles, because some of its product lines will do well when others do badly. There can be cross selling of products, as, for example, when TV companies urge you to buy their books, which tell you about their movies, which advertise their websites. To facilitate all of this, plants and companies are closed down to obtain efficiency, people who have worked in a place for 30 years are left with no jobs or savings, towns are destroyed, legislators and executive officials don’t stop any of this because they are bought off, usually by campaign contributions, and judges don’t stop it either because they have been brainwashed by all the lawyers, investment bankers and economists who are bought and paid for by the ergermeisters and who live and move in the same circles as the judges.

Then, in the long run, the whole thing usually falls apart because of business incompetence, lack of knowledge of new businesses, vastly differing corporate cultures, increased inefficiencies, fights for position, greed, and the rest of the catalogue of sins. The companies that were bought begin to be sold off, so that the investment bankers and the lawyers make more money. And then it is time, or maybe in the meanwhile it became time, for a new merger movement to begin, in which the whole cycle repeats itself, and the pro-merger propaganda again floods the nation though it lacks any basis in fact.

The foregoing quotations say nearly everything this author has to say about
gargantuan size in corporations and about the mergers that often produce it. One
thing you may rest assured of, however, is that these kinds of ideas will never
appear in the report of the new Antitrust Commission, regardless of how true
they may be. For no matter their possible truth, heresies of this nature, which
run deeply contrary to the main intellectual currents of their age, do not
appear in the reports of good, gray, safe national commissions.^*

*If you wish to respond to this email/blog, please email your response to me at Velvel@MSLaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.