Wednesday, August 31, 2005

Re: Appended Writings Of Peter Young And Scott Horton

August 31, 2005

Re: Appended Writings Of Peter Young And Scott Horton.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

This blogger recently received two writings of great importance. They are both true stories, and are both appended below.

One is from Peter Young, who was a lawyer for Anthony Russo in the government’s prosecution against Russo and Daniel Ellsberg. It is pertinent to the Roberts nomination. Young gives an amazing, an utterly riveting, description of events at the Ellsberg/Russo trial including -- pertinently to the Roberts situation -- an attempt by the Nixon Administration to in effect bribe and manipulate the judge who was presiding over the government’s prosecution by offering the judge appointment as Director of the FBI. The whole story Young tells is just fantastic to read.

The other piece first appeared in The New York Law Journal. It is by Scott Horton, the prominent New York lawyer who was confidentially consulted about the Administration’s efforts to authorize torture -- efforts they opposed -- by, I believe, the Judge Advocate Generals (or their subordinates) of the Army, Navy, Air Force and Marines. This consultation marked one of the early steps to stop the torture. Horton’s piece tells how George Washington reacted to serious mistreatment of American prisoners by the British and to suggestions that we reply in kind. It also discusses efforts by Senators and military officers to require that today’s Americans act as Washington did -- efforts the Bush Administration has tried to stymie.

1. The Writings of Peter Young

Date: Wednesday, August 31, 2005 3:06 AM

Dear Dean Velvel:

Your piece on federal judges failing to recuse themselves when under consideration for higher appointment and, worse, their attempts to curry favor with the appointing authority bring to mind an episode from the Pentagon Papers trial of Dan Ellsberg and Tony Russo in Los Angeles in 1973. As a young lawyer, I was co-counsel for Russo alongside his chief counsel, Leonard Weinglass.

Older readers will remember that in 1971 the Government sought an injunction prohibiting publication in the New York Times and the Washington Post of the Pentagon Papers, a multi-volume history of U.S. involvement in Viet Nam that had been classified top secret. After the U.S. Supreme Court rejected that effort as a prior restraint on expression invalid under the first amendment, Ellsberg and Russo were indicted on espionage, theft and conspiracy charges as a result of their alleged unauthorized copying and transmission of the Papers. (The indictment was carefully framed to exclude allegations of the transmission of the Papers to the press. The Government did not want the defendants’ underlying motive—revealing the truth about the War in Viet Nam to the American people via the press—to play any part in the case. In reality the case was all about the free flow of information to the people on matters of vital public concern which first amendment jurisprudence regards as central to democratic self-government, and yet in court the first amendment’s free speech and press guarantees were deemed legally irrelevant to the criminal charges since they did not protect acquisition of secret information. All our efforts to raise the first amendment in a case based on conduct evoking the central meaning of the first amendment were cursorily rejected. The law, even constitutional law, works in mysterious ways.)

Towards the end of the ensuing trial, a Washington Post story revealed that while the case was underway the federal district court judge presiding over it, William M. Byrne, Jr., met with John Ehrlichman, chief White House advisor for domestic affairs, and President Richard Nixon, and that they told him he was under consideration for appointment as FBI director. (The FBI’s first director, J. Edgar Hoover, had died in May, 1972, and the nomination of acting director L. Patrick Gray III as his successor had been scuttled when it was revealed he had burned records related to the Watergate crimes in his fireplace. Ehrlichman advised Nixon to make Gray the patsy for Watergate and to leave him "twisting slowly, slowly in the wind.")

Charles Nesson, the Harvard Law School professor who demonstrated he was also a very capable trial attorney as one of Ellsberg’s lawyers, got word of the Post story early on the morning of its publication and notified Judge Byrne’s chambers that we would be raising the matter in court that day. He had done so without giving it a second thought; it was instinctive for Charlie to do the decent thing. A few harsh words, mumbled, not yelled, passed between the Ellsberg and Russo legal teams, a rarity in the case since we presented a joint defense and ordinarily got along extremely well. We on the Russo side agreed that Charlie had done the gentlemanly thing, but we were convinced we were not dealing with gentlemen and thought tipping off Judge Byrne would allow him time to prepare a response and help him blunt the force of our argument that the White House approach to the judge had tainted the case. Furthermore, the opportunity to prepare a statement would allow the judge to shape the way the story was reported. Actually, I think we were more miffed that we had not been consulted before the decision to notify Judge Byrne was taken. Protocol apparently must have its place, even within the ranks of criminal defense lawyers and even when time is short. The hard feelings lasted only a couple of hours, and almost a third of a century later, I rather think Charlie was right to make the call. Judge Byrne probably would have learned of the Post story from another source before we appeared in court, and it is doubtful we could have gained anything more had we been able to spring the news on the judge. Because of Charlie’s call, history will show that the defense (at least part of it) acted with civility when others did not (although that is not to say civility is always the best course).

Sure enough, when we got to court at the appointed hour, the usually punctual Judge Byrne was nowhere to be seen. We—and a larger than normal press corps, which had been alerted—were kept waiting more than an hour before he appeared. I sat closest to the judge; his face was ashen as he read a prepared statement. He said he had been invited to meet the President to discuss a matter not related to any cases pending before him, that he was told he was under consideration for the FBI directorship and that he had been asked whether he was interested in the post. No commitments were made, he declared, and the matter was left in abeyance until conclusion of the trial.

After reading his statement, Judge Byrne made it plain he regarded the matter as closed. Over the following weeks, he rebuffed the defense’s repeated requests for an evidentiary hearing on the issue, particularly on whether the Government had sought to bribe him. Leonard Boudin, another of Ellsberg’s lawyers and a wonderful advocate, renewed the request for an evidentiary inquiry almost daily. He must have been a continual irritation to Judge Byrne, who obviously wanted nothing more than to put the matter to rest without further ado.

Eventually it emerged that the judge had at least two secret meetings with Ehrlichman. The first meeting occurred in a public park overlooking the ocean in Santa Monica. The second took place at "the western White House" in San Clemente, where Ehrlichman introduced him to Nixon.

Shortly before the Post’s story on the White House approach to Judge Byrne appeared, the Government had begun making a series of in camera submissions to him of materials from the Justice Department’s Watergate investigation. The judge disclosed these materials to the defense, which then revealed them to the press. The information came in snippets—a portion of someone’s grand jury testimony one day, an excerpt of someone else’s FBI interview the next and so on. The trickle of information became a steady stream, and reporters began calling the trial "Watergate West." The courtroom was so packed that spectators sat on top of file cabinets and perched on ledges to hear the latest disclosures. It developed that the White House had put together its own investigative team consisting of various Watergate figures—Howard Hunt, Gordon Liddy, the White House Plumbers and the Cuban operatives of Bay of Pigs infamy—who committed several illegal acts, including the burglary of Ellsberg’s psychiatrist’s office. During the course of these disclosures, Nixon reluctantly requested and got Ehrlichman’s resignation. It turned out later that Ehrlichman signed off on the Ellsberg psychiatrist burglary, albeit on the condition of assurances that it would not be traceable, and Nixon almost certainly knew of it in advance. The White House even sat by while an innocent man—an African-American, of course, and no doubt one of "the usual suspects"--was convicted of the burglary. He confessed to the crime while under police interrogation, and the prosecutor accepted his guilty plea as part of a plea bargain. Chalk up another crime as solved! The Nixon White House law and order gang must have enjoyed a good laugh over that one.

Shortly after Judge Byrne disclosed the first Watergate-related in camera submissions, the defense filed a motion to dismiss the case for governmental misconduct. That motion was regularly amended as new disclosures were made, and it eventually included the White House approach to Judge Byrne and the psychiatrist's office burglary as well as more mundane irregularities like missing wiretap records and discovery violations. Repeatedly we asked for an evidentiary inquiry into these matters, but to no avail. We wanted the whole White House gang, including Nixon, hauled into court so we could question them ourselves. We protested that we should not have to defend at one and the same time against governmental attacks on the defendants made both within and without the courtroom, that the governmental misconduct impaired our ability to defend against the charges, that the court should resolve the issues that misconduct raised before the trial proceeded further, and that we should not be limited to second-hand investigative reports compiled by Government attorneys in pursuing our motion to dismiss. We even conducted a partial boycott of the case to protest the refusal to accord us an evidentiary hearing. For the last part of the Government’s rebuttal case, while the jury was present, we sat, arms crossed, behind a defense counsel table that was stripped bare—no pens, papers or books of any kind—and remained mute, making no objections during direct testimony of the rebuttal witnesses and declining the opportunity to cross-examine them. Some thought the protest immature; we thought it was an appropriate response to what the White House had done and what the court was doing and that it was a good way to bring public pressure to bear on the matter. (By that point, we were fairly confident we had won the case, and we did not regard the rebuttal witnesses as damaging.)

Just before we were to discuss jury instructions with the judge and as we were preparing to go to the United States Court of Appeals on a petition for writ of mandamus seeking to force an evidentiary hearing and ruling on our governmental misconduct dismissal motion, Judge Byrne announced he was prepared to rule on that motion to dismiss. Since he had refused to conduct an evidentiary hearing, his ruling would be made on the basis of what was already before him, mostly the Government's in camera submissions. He gave us the option of going to the jury for the verdict before he made his ruling. We were given a few minutes to decide. The lawyers smelled an imminent victory and wanted the ruling right away, Ellsberg was ambivalent, perhaps sensing that a dismissal on legal grounds would not constitute complete vindication, and Russo wanted to wait for the jury decision. In these pressure cooker circumstances, the lawyers prevailed—it is doubtful they should have—and the judge promptly read a prepared ruling dismissing all charges on the basis of egregious governmental misconduct violating the fifth amendment’s due process of law guarantee. Noticeably absent from his list of governmental actions constituting misconduct was the approach the White House had made to him. The case was over.

The Pentagon Papers trial remains one of very few in which criminal charges have been dismissed for governmental misconduct violating the substantive due process guarantee of fundamental fairness. But the dismissal precluded any hope of judicial investigation into the White House approach to Judge Byrne. The U.S. Senate’s Watergate later investigation touched on it, but it was not a primary concern there. Thus this extraordinary ex parte approach to a judge sitting in a highly publicized, politically sensitive case raised questions which remain unanswered.

1. Did the approach to Judge Byrne represent a White House effort to influence his rulings on disclosure to the defense of the submissions which the Government was about to make in camera to him as trial judge and which were highly embarrassing, to say the least, to the White House? Nixon White House officials apparently could not control Justice Department lawyers who made the in camera submissions to Judge Byrne, but they may have hoped Judge Byrne could be influenced to rule them irrelevant to the charges in the case and thus to refuse to disclose them to the defense. They may have hoped that he would refuse to disclose the in camera submissions either because he feared losing the prospective appointment as FBI director or because he feared the White House would retaliate by disclosing his secret meetings with Ehrlichman and Nixon. As far as we know, Judge Byrne disclosed to the defense all the Watergate-related materials which were submitted to him in camera over a period of several weeks. In fact, it appears he treated them like political hot potatoes and passed them on to the defense at his first opportunity. Yet I’ve always wondered what the judge would have done had the report of his meetings with Ehrlichman and Nixon arrived in the case by way of one of the Government’s in camera submissions rather than in a published Washington Post story.

2. Was the leak to the Washington Post that produced the story on the White House approach to Judge Byrne revenge for his rulings releasing the in camera submissions to the defense and thus to the public? Was it an effort to divert attention from the White House’s misconduct to Judge Byrne’s conduct? Was it a deliberate effort to bring a premature end to the Pentagon Papers trial on the ground that the appearance of justice had been impaired, thereby shutting down the conduit the trial had become, as "Watergate West," for Watergate-related disclosures? Or was it all of these?

3. Did the White House approach influence Judge Byrne's rulings in any other way? The Government relied on the top secret security classification of the Papers to establish the unauthorized transmission and copying element of the espionage offense. Before the trial began, the judge had ruled that the defense would be allowed to challenge the "classifiability" of the Pentagon Papers to defeat this element of the espionage charges. Roughly speaking, that meant we would be allowed to show that the Papers were not even arguably subject to proper classification or that significant classification procedures were not followed, but that we would not be permitted to show merely that the Papers were incorrectly classified. The defense proceeded on the basis of that ruling throughout the case--until we put on the stand our expert on classification. Inexplicably, the judge sustained Government objections to the classifiability questions and indicated he had never made a binding ruling allowing such questions. Later, after the revelation of the White House approach to the judge, the thought crossed our minds that it simply would not do for a future FBI director to have made a judicial ruling allowing criminal defendants to attack the classification system.

(This surprising turn of events was particularly painful for me since I had, at the last minute, been assigned the job of examining our classification expert after Leonard Boudin threw up his hands in exasperation with this rather stubborn and pedantic witness, and the judge’s change of ruling left me with nothing to examine him about. Largely because we had a considerable investment in this expert—putting him up in Los Angeles and paying him a stipend for several months—we decided, over a weekend recess, not to waste the money and to convert him into an expert witness on the national defense component of the espionage charges. Predictably, this was a mistake, and one we did not need to risk since we had many capable national defense expert witnesses. A couple of the answers this witness gave on prosecution cross-examination were absurd. Even the expert’s wife, in coming to his defense, was reduced to: "Ask a silly question, get a silly answer." To this day, I have never been so relieved to see a witness get off the stand.)

That the White House’s approach to Judge Byrne inevitably prompted questions about its influence on his rulings demonstrated that it irretrievably besmirched the appearance of justice. The rules surrounding judicial disclosure of potential conflicts of interest, ex parte judicial contacts and judicial recusal are, of course, intended to secure the appearance of justice as much as its substance. Judge Byrne surely knew that, and yet he was adamant that his own disclaimer was alone sufficient to put an end to any and all questions of impropriety.

Judge Byrne should have refused to meet with White House officials during the trial. Having met with them, he should have disclosed the meetings. He did neither. Judge Byrne has had a long and, by all accounts, highly successful tenure on the federal district court bench, but this early lapse in judgment may have cost him dearly in terms of his career, for he was both highly capable and, at the time, very young as federal judges go, 39 if memory serves. Surely he could have been expected to go on to bigger things.

In fairness to Judge Byrne, he probably did not realize he had been compromised until fairly late, probably only when the first of those in camera submissions about involvement of Watergate figures in the case arrived in his chambers but perhaps not until the Washington Post story appeared. He could have avoided that by doing the proper thing in the first place. Yet I don't think many federal judges at the time would have refused a summons from the White House to meet with a top White House aide, much less the President, particularly if the invitation was accompanied by an assurance the meeting was unrelated to pending cases, as Judge Byrne said his was. And I doubt many federal judges in those days thought the White House capable of improprieties as blatant as setting up a federal judge in an effort to manipulate his rulings in a pending case. Most federal judges of the day looked askance at leftist lawyers who claimed political considerations were influencing the institution of criminal prosecutions and the way they were tried. Early in the case, Judge Byrne made it clear that he would not countenance any claim that the trial was political. He insisted the case was merely another ordinary criminal prosecution and that it would be tried as that.

The Watergate era, including the Pentagon Papers trial, shattered the blind faith many had in the integrity of the White House, the Justice Department and the federal government in general. A new skepticism about governmental respect for the truth and the law prevailed across much of the land. Courts rejected governmental pleas for a "trust us to do the right thing" approach, and they explicitly said they were doing so. But this healthy state of affairs did not survive the 1970s. One wonders now whether any of the lessons of that time—above all, the lessons of the Viet Nam War—have been remembered.

Best wishes,

Peter Young
Los Angeles, California

2. The Article by Scott Horton

Date: Tuesday, August 23, 2005 1:51 PM

Dear Dean Velvel, I thought you might be interested in my recent article in the NY Law Journal.
New York Law Journal, Aug. 16, 2005, p. A2.
Washington, Honor and the Treatment of Prisoners
By Scott Horton
Two weeks ago, a trio of powerful conservative Republicans - Senators John Warner, Lindsey Graham and John McCain - drew the ire of the Bush Administration. They put forward legislation to outlaw torture and the cruel, inhuman and degrading treatment of detainees taken in the War on Terror. Their measure instantly drew backing from a legion of retired military officers and veterans. At the same time they joined with a number of other prominent Republicans in calling for a serious investigation of the mounting reports of abuse which were launched some 14 months ago with the first photographs from Abu Ghraib prison in Iraq. The White House’s reaction was swift and unequivocal: if the anti-torture act passed, it would meet with a presidential veto - the first of the Bush administration. After a quick head count showed a likely defeat for the White House, the defense authorizations act was withdrawn from the Senate floor to allow the Administration time to pressure wavering Republicans. In the words of one observer, a battle is now raging "for the soul of the Republican party."[1]

In putting his initiatives forward, John McCain said: "We are Americans. We hold ourselves to humane standards of treatment no matter how terribly evil or awful [our adversaries] may be. To do otherwise undermines our security, and it also undermines our greatness as a nation. We are not simply any other country. We stand for a lot more than that in the world: a moral mission, one of freedom and democracy and human rights at home and abroad."[2] As a POW tortured in the Hanoi Hilton, John McCain speaks to the issue with moral authority.

The issue of officially sanctioned torture and the introduction of a new arsenal of interrogation techniques that embrace cruel, degrading and inhuman treatment has been on the nation’s front-burner for over a year, with remarkably little progress or resolution. The efforts by Senators McCain, Warner and Graham to set clear rules marks an important opportunity for public engagement. As McCain says, the question goes to our national identity. For what values do Americans, as a nation, stand? There is a clear historical answer to this question, for the question of treatment of detainees was fundamental to the Founding Fathers and it played a critical role in defining the nation and the traditions of its armed forces. Much of this history and tradition has been neglected in the current debate.

For George Washington, honor was a vital concept. Today the term may evoke the frivolous image of gentlemen dueling over a personal slight. But for Washington, guided by an education in the classics and a strong admiration for the Stoic philosophers and writers such as Cicero, Seneca and Cato (especially as popularized by Joseph Addison), honor had a profoundly moral and social context. In Washington’s way of thinking, honor was a sacred thread that tied the fundamental values of a society to the conduct of an individual. "Honorable" conduct properly reflected the values of the society; conversely, conduct was "dishonorable" if it was untrue to these values. The concept of honor was especially important in war - an aspect of the human condition which, in Washington’s view, provided a real crucible in which to test the moral character of a man.

From the outset of the Revolutionary War, Washington faced a dilemma: his British adversaries declined to accept the Continental Army as a regular military adversary and General Washington as its commander. Instead, they viewed the revolutionary Americans as disloyal or treasonous insurrectionists not entitled to the rights of honorable combatants (a position essentially identical to that recently articulated by the Pentagon with respect to insurgents in Iraq). American soldiers who fell into British hands were dealt with severely; many faced brutal punishments and were detained under inhumane conditions. In September 1775, Americans learned with horror that all 31 prisoners taken by the British at the battle of Bunker Hill had died in captivity. Of the 2,607 Americans taken prisoner at the capitulation of Fort Washington in September 1776, all but 800 had died inexplicably by 1778 - most of the deaths occurring aboard the infamous prison hulks the British maintained in New York harbor. But American public opinion was particularly rattled by reports that in February 1777, seven American soldiers who surrendered following a skirmish at Drake’s Farm (in present day Metuchen, New Jersey) had been brutally murdered, their brains crushed with musket butts. The British commander denied any wrongdoing. Public opinion, and voices in the Continental Congress, demanded retribution for these acts. [3]

Washington saw things differently. For him it was imperative that America not descend to the level of the British. Rather, prisoners taken in combat should be treated in the manner that the ideals of the nascent American republic required: "Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British Army in their treatment of our unfortunate brethren who have fallen into their hands."[4] The general rule, fixed by Washington and retained as doctrine by the US military until the commencement of the present conflict, was that those taken prisoner would be given housing, food and medical attention in no respect inferior to that afforded American soldiers. Also, he insisted on firm respect for the religious convictions of those detained. "While we are contending for our own liberty, we should be very cautious of violating the rights of conscience in others, ever considering that God alone is the judge of the hearts of men, and to Him only in this case are they answerable."[5]

Washington’s writings show that, while dictated by "honor," these policies had four specific underpinnings: (1) To bear witness to the ideals of the American Revolution; (2) To win over the "hearts and minds" of the adversary; (3) To avoid the vicious circle of retribution, which would most likely serve to make the war more brutal and inhumane for Royalist and Revolutionary alike - to shame the British into more civilized conduct by affording a superior moral example; and

(4) To maintain good order, discipline and morale in the Continental Army itself. In all of these points, Washington reveals himself a practical general capable of wielding the ideology of the American Revolution to his tactical advantage. At the Battle of Trenton, a group of elite German mercenary units fell captive to the Americans. Washington wrote, "If proper pains are taken to convince them how preferable the situation of their countrymen, the inhabitants of those counties, is to theirs, I think they may be sent back in the spring, so fraught with a love of liberty, and property too, that they may create a disgust to the service among the remainder of the foreign troops and widen that breach which is already opened between them and the British." [6] Most of the Hessians were quartered in the then largely German-speaking area around Reading, Pennsylvania. Subsequent studies have shown that Washington’s objective was accomplished.[7] These Hessians came to see the advantage of settling and becoming American citizens, which they did, nearly to the man. Indeed, a number subsequently enlisted as soldiers in the Continental Army. The advantages of citizenship in a democratic state compared with highly repressive service under a German feudal despot (be it the Landgrave of Hesse or the Hanoverian king in England) were plain enough. Moreover, as the war reached its end, the British forces were plagued by desertion on a significant scale. This certainly would not have occurred but for the foresight of Washington’s policy on the humane treatment of prisoners.
From his experience commanding troops in the French and Indian War, Washington saw that soldiers who mistreat captives generally also exhibit disrespect for command authority and military discipline, and are, therefore, highly undesirable soldiers. For this reason, the rule of humane treatment was also essential to military discipline and morale. Consequently, Washington favored swift, harsh punishment to soldiers who mistreated those under our power. "Should any American soldier be so base and infamous as to injure any [of them]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause."[8] Washington promised similar severity to officers who failed to heed these rules, warning that in so doing they would bring "shame, disgrace and ruin to themselves and their country." The war, said Washington, depended on a "conciliation of the affections" of the adversary "to the great interests of America." [9]

For Washington, the moral high ground was America’s decisive tactical advantage. In a war against the world’s greatest military power, in which citizen soldiers faced seasoned professionals, it brought victory when defeat seemed a foregone conclusion. As David Hackett Fischer writes in his Pulitzer Prize-winning account, Washington’s Crossing: "In a desperate struggle they found a way to defeat a formidable enemy, not merely once at Trenton, but many times in twelve weeks of continued combat. They reversed the momentum of the war. They improvised a new way of war that grew into an American tradition. And they chose a policy of humanity that aligned the conduct of the war with the values of the Revolution." [10]

Washington’s policies concerning the treatment of detainees, fixed for the first time at the Battle of Trenton - that Christmas miracle of 1776 which brought hope in that darkest phase of the war - constituted the military doctrine of the United States for 226 years. It is entirely appropriate, at this juncture, to focus attention on how those policies came to be overturned in 2002-03. Certainly, one can have differing views on the efficacy and morality of certain intelligence-gathering techniques. However, it is clear beyond any doubt that in Senators McCain, Graham and Warner, the ideas of the Founding Fathers have again found a voice on Capitol Hill.

Re: Appended Writings Of Peter Young And Scott Horton

August 31, 2005

Re: Appended Writings Of Peter Young And Scott Horton.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

This blogger recently received two writings of great importance. They are both true stories, and are both appended below.

One is from Peter Young, who was a lawyer for Anthony Russo in the government’s prosecution against Russo and Daniel Ellsberg. It is pertinent to the Roberts nomination. Young gives an amazing, an utterly riveting, description of events at the Ellsberg/Russo trial including -- pertinently to the Roberts situation -- an attempt by the Nixon Administration to in effect bribe and manipulate the judge who was presiding over the government’s prosecution by offering the judge appointment as Director of the FBI. The whole story Young tells is just fantastic to read.

The other piece first appeared in The New York Law Journal. It is by Scott Horton, the prominent New York lawyer who was confidentially consulted about the Administration’s efforts to authorize torture -- efforts they opposed -- by, I believe, the Judge Advocate Generals (or their subordinates) of the Army, Navy, Air Force and Marines. This consultation marked one of the early steps to stop the torture. Horton’s piece tells how George Washington reacted to serious mistreatment of American prisoners by the British and to suggestions that we reply in kind. It also discusses efforts by Senators and military officers to require that today’s Americans act as Washington did -- efforts the Bush Administration has tried to stymie.

1. The Writings of Peter Young

Date: Wednesday, August 31, 2005 3:06 AM

Dear Dean Velvel:

Your piece on federal judges failing to recuse themselves when under consideration for higher appointment and, worse, their attempts to curry favor with the appointing authority bring to mind an episode from the Pentagon Papers trial of Dan Ellsberg and Tony Russo in Los Angeles in 1973. As a young lawyer, I was co-counsel for Russo alongside his chief counsel, Leonard Weinglass.

Older readers will remember that in 1971 the Government sought an injunction prohibiting publication in the New York Times and the Washington Post of the Pentagon Papers, a multi-volume history of U.S. involvement in Viet Nam that had been classified top secret. After the U.S. Supreme Court rejected that effort as a prior restraint on expression invalid under the first amendment, Ellsberg and Russo were indicted on espionage, theft and conspiracy charges as a result of their alleged unauthorized copying and transmission of the Papers. (The indictment was carefully framed to exclude allegations of the transmission of the Papers to the press. The Government did not want the defendants’ underlying motive—revealing the truth about the War in Viet Nam to the American people via the press—to play any part in the case. In reality the case was all about the free flow of information to the people on matters of vital public concern which first amendment jurisprudence regards as central to democratic self-government, and yet in court the first amendment’s free speech and press guarantees were deemed legally irrelevant to the criminal charges since they did not protect acquisition of secret information. All our efforts to raise the first amendment in a case based on conduct evoking the central meaning of the first amendment were cursorily rejected. The law, even constitutional law, works in mysterious ways.)

Towards the end of the ensuing trial, a Washington Post story revealed that while the case was underway the federal district court judge presiding over it, William M. Byrne, Jr., met with John Ehrlichman, chief White House advisor for domestic affairs, and President Richard Nixon, and that they told him he was under consideration for appointment as FBI director. (The FBI’s first director, J. Edgar Hoover, had died in May, 1972, and the nomination of acting director L. Patrick Gray III as his successor had been scuttled when it was revealed he had burned records related to the Watergate crimes in his fireplace. Ehrlichman advised Nixon to make Gray the patsy for Watergate and to leave him "twisting slowly, slowly in the wind.")

Charles Nesson, the Harvard Law School professor who demonstrated he was also a very capable trial attorney as one of Ellsberg’s lawyers, got word of the Post story early on the morning of its publication and notified Judge Byrne’s chambers that we would be raising the matter in court that day. He had done so without giving it a second thought; it was instinctive for Charlie to do the decent thing. A few harsh words, mumbled, not yelled, passed between the Ellsberg and Russo legal teams, a rarity in the case since we presented a joint defense and ordinarily got along extremely well. We on the Russo side agreed that Charlie had done the gentlemanly thing, but we were convinced we were not dealing with gentlemen and thought tipping off Judge Byrne would allow him time to prepare a response and help him blunt the force of our argument that the White House approach to the judge had tainted the case. Furthermore, the opportunity to prepare a statement would allow the judge to shape the way the story was reported. Actually, I think we were more miffed that we had not been consulted before the decision to notify Judge Byrne was taken. Protocol apparently must have its place, even within the ranks of criminal defense lawyers and even when time is short. The hard feelings lasted only a couple of hours, and almost a third of a century later, I rather think Charlie was right to make the call. Judge Byrne probably would have learned of the Post story from another source before we appeared in court, and it is doubtful we could have gained anything more had we been able to spring the news on the judge. Because of Charlie’s call, history will show that the defense (at least part of it) acted with civility when others did not (although that is not to say civility is always the best course).

Sure enough, when we got to court at the appointed hour, the usually punctual Judge Byrne was nowhere to be seen. We—and a larger than normal press corps, which had been alerted—were kept waiting more than an hour before he appeared. I sat closest to the judge; his face was ashen as he read a prepared statement. He said he had been invited to meet the President to discuss a matter not related to any cases pending before him, that he was told he was under consideration for the FBI directorship and that he had been asked whether he was interested in the post. No commitments were made, he declared, and the matter was left in abeyance until conclusion of the trial.

After reading his statement, Judge Byrne made it plain he regarded the matter as closed. Over the following weeks, he rebuffed the defense’s repeated requests for an evidentiary hearing on the issue, particularly on whether the Government had sought to bribe him. Leonard Boudin, another of Ellsberg’s lawyers and a wonderful advocate, renewed the request for an evidentiary inquiry almost daily. He must have been a continual irritation to Judge Byrne, who obviously wanted nothing more than to put the matter to rest without further ado.

Eventually it emerged that the judge had at least two secret meetings with Ehrlichman. The first meeting occurred in a public park overlooking the ocean in Santa Monica. The second took place at "the western White House" in San Clemente, where Ehrlichman introduced him to Nixon.

Shortly before the Post’s story on the White House approach to Judge Byrne appeared, the Government had begun making a series of in camera submissions to him of materials from the Justice Department’s Watergate investigation. The judge disclosed these materials to the defense, which then revealed them to the press. The information came in snippets—a portion of someone’s grand jury testimony one day, an excerpt of someone else’s FBI interview the next and so on. The trickle of information became a steady stream, and reporters began calling the trial "Watergate West." The courtroom was so packed that spectators sat on top of file cabinets and perched on ledges to hear the latest disclosures. It developed that the White House had put together its own investigative team consisting of various Watergate figures—Howard Hunt, Gordon Liddy, the White House Plumbers and the Cuban operatives of Bay of Pigs infamy—who committed several illegal acts, including the burglary of Ellsberg’s psychiatrist’s office. During the course of these disclosures, Nixon reluctantly requested and got Ehrlichman’s resignation. It turned out later that Ehrlichman signed off on the Ellsberg psychiatrist burglary, albeit on the condition of assurances that it would not be traceable, and Nixon almost certainly knew of it in advance. The White House even sat by while an innocent man—an African-American, of course, and no doubt one of "the usual suspects"--was convicted of the burglary. He confessed to the crime while under police interrogation, and the prosecutor accepted his guilty plea as part of a plea bargain. Chalk up another crime as solved! The Nixon White House law and order gang must have enjoyed a good laugh over that one.

Shortly after Judge Byrne disclosed the first Watergate-related in camera submissions, the defense filed a motion to dismiss the case for governmental misconduct. That motion was regularly amended as new disclosures were made, and it eventually included the White House approach to Judge Byrne and the psychiatrist's office burglary as well as more mundane irregularities like missing wiretap records and discovery violations. Repeatedly we asked for an evidentiary inquiry into these matters, but to no avail. We wanted the whole White House gang, including Nixon, hauled into court so we could question them ourselves. We protested that we should not have to defend at one and the same time against governmental attacks on the defendants made both within and without the courtroom, that the governmental misconduct impaired our ability to defend against the charges, that the court should resolve the issues that misconduct raised before the trial proceeded further, and that we should not be limited to second-hand investigative reports compiled by Government attorneys in pursuing our motion to dismiss. We even conducted a partial boycott of the case to protest the refusal to accord us an evidentiary hearing. For the last part of the Government’s rebuttal case, while the jury was present, we sat, arms crossed, behind a defense counsel table that was stripped bare—no pens, papers or books of any kind—and remained mute, making no objections during direct testimony of the rebuttal witnesses and declining the opportunity to cross-examine them. Some thought the protest immature; we thought it was an appropriate response to what the White House had done and what the court was doing and that it was a good way to bring public pressure to bear on the matter. (By that point, we were fairly confident we had won the case, and we did not regard the rebuttal witnesses as damaging.)

Just before we were to discuss jury instructions with the judge and as we were preparing to go to the United States Court of Appeals on a petition for writ of mandamus seeking to force an evidentiary hearing and ruling on our governmental misconduct dismissal motion, Judge Byrne announced he was prepared to rule on that motion to dismiss. Since he had refused to conduct an evidentiary hearing, his ruling would be made on the basis of what was already before him, mostly the Government's in camera submissions. He gave us the option of going to the jury for the verdict before he made his ruling. We were given a few minutes to decide. The lawyers smelled an imminent victory and wanted the ruling right away, Ellsberg was ambivalent, perhaps sensing that a dismissal on legal grounds would not constitute complete vindication, and Russo wanted to wait for the jury decision. In these pressure cooker circumstances, the lawyers prevailed—it is doubtful they should have—and the judge promptly read a prepared ruling dismissing all charges on the basis of egregious governmental misconduct violating the fifth amendment’s due process of law guarantee. Noticeably absent from his list of governmental actions constituting misconduct was the approach the White House had made to him. The case was over.

The Pentagon Papers trial remains one of very few in which criminal charges have been dismissed for governmental misconduct violating the substantive due process guarantee of fundamental fairness. But the dismissal precluded any hope of judicial investigation into the White House approach to Judge Byrne. The U.S. Senate’s Watergate later investigation touched on it, but it was not a primary concern there. Thus this extraordinary ex parte approach to a judge sitting in a highly publicized, politically sensitive case raised questions which remain unanswered.

1. Did the approach to Judge Byrne represent a White House effort to influence his rulings on disclosure to the defense of the submissions which the Government was about to make in camera to him as trial judge and which were highly embarrassing, to say the least, to the White House? Nixon White House officials apparently could not control Justice Department lawyers who made the in camera submissions to Judge Byrne, but they may have hoped Judge Byrne could be influenced to rule them irrelevant to the charges in the case and thus to refuse to disclose them to the defense. They may have hoped that he would refuse to disclose the in camera submissions either because he feared losing the prospective appointment as FBI director or because he feared the White House would retaliate by disclosing his secret meetings with Ehrlichman and Nixon. As far as we know, Judge Byrne disclosed to the defense all the Watergate-related materials which were submitted to him in camera over a period of several weeks. In fact, it appears he treated them like political hot potatoes and passed them on to the defense at his first opportunity. Yet I’ve always wondered what the judge would have done had the report of his meetings with Ehrlichman and Nixon arrived in the case by way of one of the Government’s in camera submissions rather than in a published Washington Post story.

2. Was the leak to the Washington Post that produced the story on the White House approach to Judge Byrne revenge for his rulings releasing the in camera submissions to the defense and thus to the public? Was it an effort to divert attention from the White House’s misconduct to Judge Byrne’s conduct? Was it a deliberate effort to bring a premature end to the Pentagon Papers trial on the ground that the appearance of justice had been impaired, thereby shutting down the conduit the trial had become, as "Watergate West," for Watergate-related disclosures? Or was it all of these?

3. Did the White House approach influence Judge Byrne's rulings in any other way? The Government relied on the top secret security classification of the Papers to establish the unauthorized transmission and copying element of the espionage offense. Before the trial began, the judge had ruled that the defense would be allowed to challenge the "classifiability" of the Pentagon Papers to defeat this element of the espionage charges. Roughly speaking, that meant we would be allowed to show that the Papers were not even arguably subject to proper classification or that significant classification procedures were not followed, but that we would not be permitted to show merely that the Papers were incorrectly classified. The defense proceeded on the basis of that ruling throughout the case--until we put on the stand our expert on classification. Inexplicably, the judge sustained Government objections to the classifiability questions and indicated he had never made a binding ruling allowing such questions. Later, after the revelation of the White House approach to the judge, the thought crossed our minds that it simply would not do for a future FBI director to have made a judicial ruling allowing criminal defendants to attack the classification system.

(This surprising turn of events was particularly painful for me since I had, at the last minute, been assigned the job of examining our classification expert after Leonard Boudin threw up his hands in exasperation with this rather stubborn and pedantic witness, and the judge’s change of ruling left me with nothing to examine him about. Largely because we had a considerable investment in this expert—putting him up in Los Angeles and paying him a stipend for several months—we decided, over a weekend recess, not to waste the money and to convert him into an expert witness on the national defense component of the espionage charges. Predictably, this was a mistake, and one we did not need to risk since we had many capable national defense expert witnesses. A couple of the answers this witness gave on prosecution cross-examination were absurd. Even the expert’s wife, in coming to his defense, was reduced to: "Ask a silly question, get a silly answer." To this day, I have never been so relieved to see a witness get off the stand.)

That the White House’s approach to Judge Byrne inevitably prompted questions about its influence on his rulings demonstrated that it irretrievably besmirched the appearance of justice. The rules surrounding judicial disclosure of potential conflicts of interest, ex parte judicial contacts and judicial recusal are, of course, intended to secure the appearance of justice as much as its substance. Judge Byrne surely knew that, and yet he was adamant that his own disclaimer was alone sufficient to put an end to any and all questions of impropriety.

Judge Byrne should have refused to meet with White House officials during the trial. Having met with them, he should have disclosed the meetings. He did neither. Judge Byrne has had a long and, by all accounts, highly successful tenure on the federal district court bench, but this early lapse in judgment may have cost him dearly in terms of his career, for he was both highly capable and, at the time, very young as federal judges go, 39 if memory serves. Surely he could have been expected to go on to bigger things.

In fairness to Judge Byrne, he probably did not realize he had been compromised until fairly late, probably only when the first of those in camera submissions about involvement of Watergate figures in the case arrived in his chambers but perhaps not until the Washington Post story appeared. He could have avoided that by doing the proper thing in the first place. Yet I don't think many federal judges at the time would have refused a summons from the White House to meet with a top White House aide, much less the President, particularly if the invitation was accompanied by an assurance the meeting was unrelated to pending cases, as Judge Byrne said his was. And I doubt many federal judges in those days thought the White House capable of improprieties as blatant as setting up a federal judge in an effort to manipulate his rulings in a pending case. Most federal judges of the day looked askance at leftist lawyers who claimed political considerations were influencing the institution of criminal prosecutions and the way they were tried. Early in the case, Judge Byrne made it clear that he would not countenance any claim that the trial was political. He insisted the case was merely another ordinary criminal prosecution and that it would be tried as that.

The Watergate era, including the Pentagon Papers trial, shattered the blind faith many had in the integrity of the White House, the Justice Department and the federal government in general. A new skepticism about governmental respect for the truth and the law prevailed across much of the land. Courts rejected governmental pleas for a "trust us to do the right thing" approach, and they explicitly said they were doing so. But this healthy state of affairs did not survive the 1970s. One wonders now whether any of the lessons of that time—above all, the lessons of the Viet Nam War—have been remembered.

Best wishes,

Peter Young
Los Angeles, California

2. The Article by Scott Horton

Date: Tuesday, August 23, 2005 1:51 PM

Dear Dean Velvel, I thought you might be interested in my recent article in the NY Law Journal.
New York Law Journal, Aug. 16, 2005, p. A2.
Washington, Honor and the Treatment of Prisoners
By Scott Horton
Two weeks ago, a trio of powerful conservative Republicans - Senators John Warner, Lindsey Graham and John McCain - drew the ire of the Bush Administration. They put forward legislation to outlaw torture and the cruel, inhuman and degrading treatment of detainees taken in the War on Terror. Their measure instantly drew backing from a legion of retired military officers and veterans. At the same time they joined with a number of other prominent Republicans in calling for a serious investigation of the mounting reports of abuse which were launched some 14 months ago with the first photographs from Abu Ghraib prison in Iraq. The White House’s reaction was swift and unequivocal: if the anti-torture act passed, it would meet with a presidential veto - the first of the Bush administration. After a quick head count showed a likely defeat for the White House, the defense authorizations act was withdrawn from the Senate floor to allow the Administration time to pressure wavering Republicans. In the words of one observer, a battle is now raging "for the soul of the Republican party."[1]

In putting his initiatives forward, John McCain said: "We are Americans. We hold ourselves to humane standards of treatment no matter how terribly evil or awful [our adversaries] may be. To do otherwise undermines our security, and it also undermines our greatness as a nation. We are not simply any other country. We stand for a lot more than that in the world: a moral mission, one of freedom and democracy and human rights at home and abroad."[2] As a POW tortured in the Hanoi Hilton, John McCain speaks to the issue with moral authority.

The issue of officially sanctioned torture and the introduction of a new arsenal of interrogation techniques that embrace cruel, degrading and inhuman treatment has been on the nation’s front-burner for over a year, with remarkably little progress or resolution. The efforts by Senators McCain, Warner and Graham to set clear rules marks an important opportunity for public engagement. As McCain says, the question goes to our national identity. For what values do Americans, as a nation, stand? There is a clear historical answer to this question, for the question of treatment of detainees was fundamental to the Founding Fathers and it played a critical role in defining the nation and the traditions of its armed forces. Much of this history and tradition has been neglected in the current debate.

For George Washington, honor was a vital concept. Today the term may evoke the frivolous image of gentlemen dueling over a personal slight. But for Washington, guided by an education in the classics and a strong admiration for the Stoic philosophers and writers such as Cicero, Seneca and Cato (especially as popularized by Joseph Addison), honor had a profoundly moral and social context. In Washington’s way of thinking, honor was a sacred thread that tied the fundamental values of a society to the conduct of an individual. "Honorable" conduct properly reflected the values of the society; conversely, conduct was "dishonorable" if it was untrue to these values. The concept of honor was especially important in war - an aspect of the human condition which, in Washington’s view, provided a real crucible in which to test the moral character of a man.

From the outset of the Revolutionary War, Washington faced a dilemma: his British adversaries declined to accept the Continental Army as a regular military adversary and General Washington as its commander. Instead, they viewed the revolutionary Americans as disloyal or treasonous insurrectionists not entitled to the rights of honorable combatants (a position essentially identical to that recently articulated by the Pentagon with respect to insurgents in Iraq). American soldiers who fell into British hands were dealt with severely; many faced brutal punishments and were detained under inhumane conditions. In September 1775, Americans learned with horror that all 31 prisoners taken by the British at the battle of Bunker Hill had died in captivity. Of the 2,607 Americans taken prisoner at the capitulation of Fort Washington in September 1776, all but 800 had died inexplicably by 1778 - most of the deaths occurring aboard the infamous prison hulks the British maintained in New York harbor. But American public opinion was particularly rattled by reports that in February 1777, seven American soldiers who surrendered following a skirmish at Drake’s Farm (in present day Metuchen, New Jersey) had been brutally murdered, their brains crushed with musket butts. The British commander denied any wrongdoing. Public opinion, and voices in the Continental Congress, demanded retribution for these acts. [3]

Washington saw things differently. For him it was imperative that America not descend to the level of the British. Rather, prisoners taken in combat should be treated in the manner that the ideals of the nascent American republic required: "Treat them with humanity, and let them have no reason to complain of our copying the brutal example of the British Army in their treatment of our unfortunate brethren who have fallen into their hands."[4] The general rule, fixed by Washington and retained as doctrine by the US military until the commencement of the present conflict, was that those taken prisoner would be given housing, food and medical attention in no respect inferior to that afforded American soldiers. Also, he insisted on firm respect for the religious convictions of those detained. "While we are contending for our own liberty, we should be very cautious of violating the rights of conscience in others, ever considering that God alone is the judge of the hearts of men, and to Him only in this case are they answerable."[5]

Washington’s writings show that, while dictated by "honor," these policies had four specific underpinnings: (1) To bear witness to the ideals of the American Revolution; (2) To win over the "hearts and minds" of the adversary; (3) To avoid the vicious circle of retribution, which would most likely serve to make the war more brutal and inhumane for Royalist and Revolutionary alike - to shame the British into more civilized conduct by affording a superior moral example; and

(4) To maintain good order, discipline and morale in the Continental Army itself. In all of these points, Washington reveals himself a practical general capable of wielding the ideology of the American Revolution to his tactical advantage. At the Battle of Trenton, a group of elite German mercenary units fell captive to the Americans. Washington wrote, "If proper pains are taken to convince them how preferable the situation of their countrymen, the inhabitants of those counties, is to theirs, I think they may be sent back in the spring, so fraught with a love of liberty, and property too, that they may create a disgust to the service among the remainder of the foreign troops and widen that breach which is already opened between them and the British." [6] Most of the Hessians were quartered in the then largely German-speaking area around Reading, Pennsylvania. Subsequent studies have shown that Washington’s objective was accomplished.[7] These Hessians came to see the advantage of settling and becoming American citizens, which they did, nearly to the man. Indeed, a number subsequently enlisted as soldiers in the Continental Army. The advantages of citizenship in a democratic state compared with highly repressive service under a German feudal despot (be it the Landgrave of Hesse or the Hanoverian king in England) were plain enough. Moreover, as the war reached its end, the British forces were plagued by desertion on a significant scale. This certainly would not have occurred but for the foresight of Washington’s policy on the humane treatment of prisoners.
From his experience commanding troops in the French and Indian War, Washington saw that soldiers who mistreat captives generally also exhibit disrespect for command authority and military discipline, and are, therefore, highly undesirable soldiers. For this reason, the rule of humane treatment was also essential to military discipline and morale. Consequently, Washington favored swift, harsh punishment to soldiers who mistreated those under our power. "Should any American soldier be so base and infamous as to injure any [of them]. . . I do most earnestly enjoin you to bring him to such severe and exemplary punishment as the enormity of the crime may require. Should it extend to death itself, it will not be disproportional to its guilt at such a time and in such a cause."[8] Washington promised similar severity to officers who failed to heed these rules, warning that in so doing they would bring "shame, disgrace and ruin to themselves and their country." The war, said Washington, depended on a "conciliation of the affections" of the adversary "to the great interests of America." [9]

For Washington, the moral high ground was America’s decisive tactical advantage. In a war against the world’s greatest military power, in which citizen soldiers faced seasoned professionals, it brought victory when defeat seemed a foregone conclusion. As David Hackett Fischer writes in his Pulitzer Prize-winning account, Washington’s Crossing: "In a desperate struggle they found a way to defeat a formidable enemy, not merely once at Trenton, but many times in twelve weeks of continued combat. They reversed the momentum of the war. They improvised a new way of war that grew into an American tradition. And they chose a policy of humanity that aligned the conduct of the war with the values of the Revolution." [10]

Washington’s policies concerning the treatment of detainees, fixed for the first time at the Battle of Trenton - that Christmas miracle of 1776 which brought hope in that darkest phase of the war - constituted the military doctrine of the United States for 226 years. It is entirely appropriate, at this juncture, to focus attention on how those policies came to be overturned in 2002-03. Certainly, one can have differing views on the efficacy and morality of certain intelligence-gathering techniques. However, it is clear beyond any doubt that in Senators McCain, Graham and Warner, the ideas of the Founding Fathers have again found a voice on Capitol Hill.

Tuesday, August 30, 2005

Re: Judge Roberts Had Three Choices. He Made The Sole Unethical One

August 30, 2005

[[[audio]]]


Re: Judge Roberts Had Three Choices. He Made The Sole Unethical One.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

A dispute is currently in progress over the fact that Judge Roberts participated in interviews for the Supreme Court nomination while the Hamdan case was pending. On one side have been three law professors who say this was improper, and Roberts should have "recused" himself from the Hamdan case, i.e., should have taken himself off the case. On the other side are two law professors who deny this; one of these two, though he did not disclose this as far as I know, apparently is a former consultant to the government about the very military commissions whose legality was at stake in Hamdan.

Roberts has disclosed in a questionnaire that he was interviewed on April 1st by Attorney General Gonzalez, apparently about a future Supreme Court vacancy and nomination, since there was no publicly announced vacancy at that time. (It was widely thought at that time, however, that Rehnquist might retire.) Six days later, on April 7th, the oral argument was held in Hamdan. About a month after that, on May 3rd, Roberts was interviewed by a group including Vice President Cheney, Karl Rove, Cheney’s Chief of staff Scooter Libby, Attorney General Gonzalez, White House Chief of Staff Andy Card, and White House Counsel Harriet Miers. Then, on May 23rd, he was interviewed by White House Counsel Miers. On July 8th, a week after O’Connor announced her resignation, Roberts had a telephone interview with White House Counsel Miers and her Deputy Counsel, William Kelley. He then had several phone conversations with Kelley between July 8th and July 19th. Roberts was interviewed by George Bush on July 15th, the day that Roberts’ court issued its opinion in the Hamdan case. Roberts was then nominated on July 19th.

The interviews were with the top policymakers in the Bush Administration. The earlier interviews were, apparently, for the purpose of establishing or paring down a short list before an announcement of a vacancy (expected to be Rehnquist?), because O’Connor did not announce her retirement until July 1st. (However, did the White House know or suspect months before that her resignation might be or was coming? Had it been notified in advance of the possibility or certainty?) The later interviews were for the purpose of deciding who would replace O’Connor.

After meeting with Bush’s top advisers both before and after O’Connor’s resignation, Roberts made the short list, or, if he already was on it, he survived any paring. Then, on July 15th, he interviewed with the President and, on that same day, his court released its opinion. That opinion upheld policies critical to Bush in two vital particulars. It unanimously ruled military tribunals lawful, and it said the Geneva conventions are inapplicable. The Geneva point was 2 to 1, with Roberts being one of the two judges in the majority. Four days later Roberts was nominated for the Supreme Court.

Those are the facts of what occurred, insofar as I can learn them at this time.

The arguments conducted by the law professors on each side largely revolve around legalistic concepts such as "appearance of bias," around lawyers’ typical "parade of horribles," and around the claimed effect of various prior precedents. Extensively, the arguments are a lot of legalistic crapola, although it must be admitted that one of Roberts’ defenders -- the former DOD consultant -- has more legalistic crapola than the others. It all makes me sick (an odd sentiment, perhaps, for the dean of a law school). (In the accompanying footnote, I have given one example of why it all sickens me, an example in which Roberts’ defenders try to distinguish away an opinion by America’s leading conservative judge, Richard Posner.*) It all makes me ill because to me, as so often to my hero Harry Brohnz (the main protagonist of Misfits In America), the whole matter is quintessentially simple. One needs no legalistic crapola.

What we have here is a situation in which a judge repeatedly met with top federal officials whose policies, over much objection, had long been that there would be military tribunals and Geneva did not apply. These officials were desperate to have those policies upheld (and the lower court’s decision against them reversed). Had Roberts ruled against them, or in any way, however oblique, indicated disagreement with them, he could have kissed any Supreme Court nomination goodby. He knew this -- he is the opposite of stupid. And he kept meeting with the officials, seeking the nomination. In these circumstances, what do you think the chances were that Roberts might rule against military tribunals or for the applicability of Geneva? Less than zero I would say.

Maybe someone will say he would have ruled as he did regardless, since that is what he feels. Of course, we’ll never know. But we can confidently figure that there was zero chance, no matter what he felt, that he would vote against the policies crucial to and so ardently desired by the people from whom he was seeking the nomination. Otherwise, as said, he could kiss the Supreme Court goodby.

Roberts had two ethical choices: he could have recused himself from the case if he wanted to remain in the running as a potential Supreme Court nominee, or, as unreal as one might think it, he could have taken himself out of contention as a nominee if, for some unknown reason, he desperately wanted to remain on the case. Either course would have been proper. Instead, Roberts chose the third, and sole unethical, course. He remained on the case and voted for the people who desperately wanted their policies upheld -- and who would have nixed his candidacy in a New York minute had he decided in favor of Hamdan.

There are some of us -- and I think that, after the Supreme Court acted reprehensibly by "electing" Bush in 2000, our numbers increased and then continued to increase -- who think that lots of federal judges are a bunch of biased, unethical and even immoral characters who kowtow to power while screwing over the little guy. Judge Roberts’ reprehensible conduct will do nothing to diminish our numbers or views. To the contrary.

It is a shame, moreover, that from everything this writer is told, hears and reads, Roberts really does seem to be as nice a guy as you could want on the Supreme Court. But nice does not mean ethical, just as, in reverse, and as often true of liberals, ethical (when it exists) does not mean nice.**

*There is a 1985 case in which a federal trial court judge who had reached retirement age decided to explore the possibility of being hired by Chicago law firms. A "headhunter" he employed contacted, apparently by mistake, two firms that were opponents in an antitrust case before the judge. Neither firm wanted to hire him. Though both had rejected his candidacy, Posner’s opinion said the judge had to be disqualified. Posner said, among other things that:

The appearance of equal justice requires that the judge not be exploring the prospects of employment with one lawyer or all lawyers appearing in a case before him. The dignity and independence of the judiciary are diminished when the judge comes before the lawyers in the case in the role of a suppliant for employment. The public cannot be confident that a case tried under such conditions will be decided in accordance with the highest traditions of the judiciary.
* * * * *
A fully informed and objective observer might wonder whether the judge could decide the case with the requisite aloofness and disinterest when he had just solicited (if unintentionally) employment by the law firms in the case. This conclusion requires recusal.
Roberts’ "non DOD" defender tried -- sickeningly -- to evade this by the specious claim that a judge’s "promotion within the federal system" is not like exploring outside jobs. The "non DOD" defender simply ignored that appointment to the Supreme Court is, to a lawyer of Roberts’ type, the most devoutly wished job possibility there is. It is worth far more to a lawyer of Roberts’ background than any private job is. (Indeed Roberts gave up a million dollar a year private job just to sit on the Court of Appeals.)

The "DOD defender" pretended that the cases are different because -- get this -- the Chicago judge was negotiating salary with private firms, whereas one doesn’t negotiate a Supreme Court salary. The argument is shameless. Once again, appointment to the Supreme Court means far more to someone like Roberts than any amount of salary.

The two defenders’ further legalistic efforts to support the view that what Posner said should be regarded as irrelevant are equally bushwa, and will not detain me here.

**This posting represents the personal views of Lawrence R. Velvel. 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.


Comments to this post are onVelvel II.

Friday, August 26, 2005

Re: Analogous Events In The Early 1970s That Relate To Judge Roberts

August 26, 2005

[[[audio]]]

Re: Analogous Events In The Early 1970s That Relate To Judge Roberts.
From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

I think it potentially is of vast import that Judge Roberts remained on, did not recuse himself from, the case involving use of military tribunals -- a case critical to the Administration -- while he interviewed with high Administration officials for a Supreme Court appointment. My view is shaped in part by analogous historical events that occurred nearly 35 years ago (in the early ’70s), events in which I played a bit part as a lawyer in a case challenging the Viet Nam War. I have written of these analogous events in Volume I of a quartet, and the pertinent 2½ pages from that volume are appended below. Many matters have been fictionalized, but the episode is based on events that actually occurred.

One thinks that judges who are seeking or being interviewed for an imminent Supreme Court appointment should not be sitting on a case involving crucial, highly divisive policies of the President from whom they desire or would accept appointment. It is at best very unseemly. It conceivably could be much worse than that.*

This posting represents the personal views of Lawrence R. Velvel. 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.

Excerpt from Volume I

Yet another strange, and reprehensible, event involving the judiciary occurred in Philadelphia. There Brohnz, on behalf of some reservists, filed an amicus curiae or third party "friend of the court" brief in a case brought by draftees who had been ordered to Nam. In those days some cases were heard in federal trial courts not by one judge, but by a panel of three judges. Often — possibly even always — one of the three judges on the panel would be an appeals court judge sitting "by designation," just as one of the three judges on an appeals court panel would often be a trial court judge sitting "by designation." On this three judge panel in Philadelphia, there was, as one might expect, an appeals court judge, Alan Ayers, sitting "by designation."

When Brohnz introduced himself to the three judge panel, Ayers, who was its chairman, graciously said, "Yes, the country’s most famous plaintiff." This was a reference to the fact that, a few years before, Brohnz had brought a case in his own name in Far Midwest challenging the war as a taxpayer and a citizen. The trial court judge had of course dismissed his case, but in the opinion had nevertheless complimented Brohnz’s briefs as "copious and persuasive." This was nice of him. It was even the nicer because, when the case, named Harry Brohnz v. Lyndon Johnson, had been called by the clerk of the court in Far Midwest, the numerous 40 and 50 year old reactionary lawyers sitting in the courtroom had broken out laughing at Brohnz. They thought it ludicrous that some ordinary person would sue the President.

So Ayers was referring to the case Brohnz had brought when he welcomed "the country’s most famous plaintiff." His comment was gracious even though it was over the top.

Three months later the three judge panel issued a lengthy 60-page opinion finding against the draftees. The opinion was written by Ayers. It distorted quite a lot of American history relating to military actions and, strangely, did not really explain why it was expending large amounts of space describing past events, such as attacking pirates, that did not seem to have much in common with a major war like Viet Nam. It seemed largely an exegesis of irrelevant knowledge done purely for the purpose of pedantry. In later years, there was a pedant on the federal appeals court in Boston who, in every opinion, used words that even C.P. Snow would not understand. Ayers’ opinion was a sort of analogy to this.

Strange as Ayers’ opinion seemed, Brohnz gave it no thought until a couple of years later, when Wolfe had to fly from Washington to Minneapolis in the dead of winter to argue an antitrust case. There was a truly awful blizzard in Minneapolis, so planes could not land there. Instead they landed, if you can believe it, in Fargo, North Dakota. There, on a hinterlands tarmac in rural North Dakota, one saw eight 747s, 727s, and DC10s from all over the country which had landed in Fargo because they were unable to land in Minneapolis. Hungry passengers descended by the hundreds on the airport restaurant, which was small, had only one waitress, and was about to close for the day. In order to eat, passengers did the cooking and serving themselves.

In the restaurant Wolfe ran into a famous New York civil liberties lawyer, Byron Newtown. Newtown had been on a plane scheduled to go from New York to Minneapolis, where he was participating in the defense of Leonard Peltier, the famous radical Indian political leader who was charged with the murder of federal agents. Wolfe and Newtown got to talking, and the subject of the decision of the three judge panel in Philadelphia came up. Newtown told Wolfe that Ayers’ opinion had been his bid to obtain nomination to the Supreme Court by the Nixon Administration. Ayers had been on the short list for nomination, said Newtown, and had hoped that writing a long, seemingly erudite opinion in Nixon’s favor would secure him the nomination.

When Brohnz heard of this conversation from Wolfe, he naively did not believe a word of what Newtown had said. Brohnz had never heard of Ayers being on the short list, and could not believe that a judge would be so intellectually and morally corrupt as to write an opinion purely to secure a nomination. But years later it became public that Ayers had indeed been on the short list, and the implication that an opinion which otherwise seemed merely a pedantic historical exegesis was in fact an attempt to curry favor became irresistible. Why else would this irrelevant but pro-Nixon pedantry have been written?

For Ayers to have done this, for him to have sucked after the nomination in this way, seemed reprehensible to Brohnz. Ironically, a few decades later, shortly after it became public that Ayers had been on the short list, Ayers helped Brohnz out. By that time, Ayers had retired from the appeals court, where he had won a fine reputation over 20 years, and was a partner in a law firm. Brohnz hired him to act as a judge in a preparatory run-through, in a rehearsal if you will, of an upcoming argument in the Philadelphia appeals court on the subject of law school accreditation. Ayers made valuable suggestions and seemed a nice fellow. One of Brohnz’s reactions to this was that it showed how even a decent person will stoop shamefully to do the wrong thing when ambition beckons, as it had years before for Ayers.
* * * * *

Tuesday, August 23, 2005

Re: Conspiracy To Engage in Torture

August 23, 2005

[[[audio]]]


From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

Yesterday I sent the inquiry appended below to various members of the news media. We’ll see how many answers there are (there have been a small number so far) and what they generally seem to say.


From: Dean Lawrence R. Velvel
Date: Monday, August 22, 2005 3:44 PM

Dear Colleague:

As a prominent member of the news media, perhaps you can enlighten me on a matter. Why is it that the media refuse to mention that George Bush is probably guilty of the federal crime of conspiracy to engage in torture outside the United States? 18 U.S.C. §§2340-2340A(a)-(c) make it a felony to conspire to commit torture outside the country, and the media have from time to time set forth facts making it crystal clear that Bush knew of, allowed, and likely desired torture outside the U.S. so that we could get information. Yet the media resolutely will not mention the fact that he may be -- almost surely is -- guilty of a crime under 18 U.S.C. §§2340-2340A(a)-(c) . Why is that?

Comments to this post are onVelvel II.

Friday, August 19, 2005

Re: Richard Posner and the Media

August 18, 2005

[[[audio]]] [[[audio pt2]]]


Re: Richard Posner and the Media.

From: Dean Lawrence R. Velvel
VelvelOnNationalAffairs.com

Dear Colleagues:

On July 31st Judge Richard Posner wrote a book review for The Sunday New York Times. Beginning on the cover page of the Book Review section (a practice recently inaugurated by The Times), the piece then ran for four full pages thereafter. This is astounding. Neither I nor others whom I asked can remember a prior piece in the Book Review section that ran longer than two pages, and the vast, vast majority are confined to one page or less.

Nor did the piece seem in reality to be a book review, although it ostensibly was a review of no less than eight books on the media. It was far more an essay giving Posner’s views on various subjects related to the media, with the eight books mentioned relatively little (albeit one assumes that Posner likely got some portion of his information and views (some considerable portion of them?) from those books, and he cited books’ views to support his own). In regard to being an essay giving his views, rather than a standard book review detailing what the pertinent books say, Posner’s piece was much like the opening section of lengthy reviews in The New York Review of Books, which discuss the general subject before turning (as Judge Posner in places did briefly) to the book or books at hand.

One wonders how it is that The Times Book Review did something so out of the ordinary for it as publishing a four page essay. The answer would almost surely seem to lie in the regard in which the editors of the Book Review section hold Posner. This regard was displayed in the relatively new segment on page 4 entitled Up Front and signed "The Editors." Here is what "The Editors" said:

How does Richard A. Posner do it? A federal appeals court judge, a senior lecturer at the University of Chicago Law School, an editor of The American Law and Economics Review and a blogger, he is the author of 38 books, more than 300 articles and book reviews (including one, in these pages last year, of the 9/11 Commission Report), and almost 2,200 published judicial opinions. One reaches for science fiction explanations: Posner has cloned himself; he has found a way to slow down time. Surely it's the case that he never sleeps. Posner may be inhumanly prolific, but he is neither formulaic nor superficial. In books like The Frontiers of Legal Theory, Catastrophe: Risk and Response and An Affair of State: The Investigation, Impeachment and Trial of President Clinton, he ranges widely, mastering a vast array of material, from economics, literature and philosophy to sex and aging. He is also the founder of an influential school of legal interpretation.
I agree with the editors’ view of Posner. As a matter of disclosure, I admit to being biased because Posner has been generous towards this writer and our law school, but the fact of agreement with the editors exists regardless. Indeed, in one respect the editors’ description was insufficient. Posner not only is a blogger, but this writer considers his blog to likely be the best one in the United States. Appearing roughly once a week -- and sometimes written by his partner, Nobel laureate economist Gary Becker (it is called "The Becker/Posner Blog", but is predominantly written by Posner) -- each effort is a literate, thoughtful, analytical essay on some subject of importance. Posner (and Becker) also respond with similar competence to comments submitted by readers of their blog.

Lest the reader think this posting a mere exercise in sycophancy, I am obliged to say that I do not necessarily agree with Posner’s approach to subjects. I think his approach excessively economic and theoretical -- although Posner surely has shown potential or actual economic underpinnings in areas where none had been thought to exist. Relatedly, I sometimes think his approach excessively analytical, when the human factor, not abstract logic, would seem to come into play. And he seems to come from a much more conservative point than my own views do. (His favorable view on the Supreme Court’s election of George Bush to the Presidency would be a case in point.) But be all this as it may, there is no doubt in this writer’s mind that Posner is a wonder.

Not everyone agrees. It took only one day for Jack Shafer, Slate’s editor at large, to lambast Posner’s essay in a piece -- sometimes a quite funny piece -- posted in the late afternoon of Monday, August 1st. Starting by quoting both The Times editors’ question of "How does Richard A. Posner do it?" and their numerical list of his writings, Shafer says that if the book section essay "is any example of Posner’s technique, he does it as fast as he can, takes five minutes and a cigarette to recharge, and repeats." (This is pretty funny, although, as a matter of unwonted literalism, Posner does not smoke as far as I know.) Shafer accuses Posner of "Deploying four words where one will do (perhaps that’s the secret to his productivity)," of "ignor[ing] journalistic history as he spots emerging ‘trends’ and gets basic facts wrong," of being "too lazy to collect the evidence" and in effect of having little or no evidence, of being wrong about competition having, in Shafer’s humorous words, "pushed the established press to the left . . . . Fox News making CNN more liberal. Has Posner lost his cable connection?", and, in general, of having produced "this piece of hackwork." Believing that Posner is wrong in his assessment of the media and in logic he has used, and apparently taking umbrage at Posner’s view that the media is inaccurate, Shafer, himself a member of the assailed profession, concludes by retorting against Posner’s profession, saying that "Sloppy writing like Posner’s is enough to erode my trust in American jurisprudence."

Well, that’s pretty heavy criticism that could hardly be more at odds with the paeans of praise for Posner from the editors of The Times' book section. (Candor requires me to add that Shafer’s criticism has been joined by a few comments on his piece.) But though Posner generally garners heavy praise from most people (including this writer), Shafer’s slam is not the first or only time someone has taken out after him (though I would bet the criticism rolls off his back like the proverbial water off a duck). A few years ago Posner wrote an attention-getting book attacking the work of public intellectuals, called (appropriately enough) Public Intellectuals: A Study of Decline. (Full disclosure requires me to say that he appeared on MSL’s one hour long book TV program, Books of Our Time, to discuss this book.) The book angered some public intellectuals, and one of the most famous of them, Alan Wolfe, an oft-lauded professor at Boston College, wrote a savage critique in The New Republic. Without getting into the substance of the critique, suffice it to say that an overarching criticism was of "two of the decisions that Posner made in conducting his study of public intellectuals. One is methodological. The other is substantive." This doesn’t leave much. It is reminiscent of Fred Rodell’s priceless, long true description of law reviews about 70 years ago or so. There are only two things wrong with law reviews, said Rodell. One is style. The other is content.

(Somewhat ironically, just over a year after Wolfe’s slam in The New Republic, Posner himself wrote a slam at Justice William O. Douglas in the same magazine, in a review of a book on the life of this Justice. Adopting the views of the author of the book that Douglas was scurrilous, one could even say a scurrilous pig (views that may be right or may be wrong -- I really don’t know, except to say that Douglas was very kind to me on the two occasions on which I met him), Posner’s piece could easily have raised the hackles of a liberal. Whether or not the book he reviewed and agreed with is more than a hatchet job against a liberal -- its author had previously written a book savagely assailing Brandeis and Frankfurter -- is something I also do not know. I probably should add, though, that although my criteria are worlds apart from and I think far more historically justified than those of most law professors, I think Douglas was a Justice who almost always had things right. I am a great admirer of what he did on the Supreme Court, and think he may be the only prominent lawyer since Lincoln who understood that it is not the Constitution which is the basis of this country, but the Declaration of Independence, because of its timeless phrases declaring that all men are created equal and have an inalienable right to life, liberty and the pursuit of happiness.)

Notwithstanding the burning criticism that is occasionally directed at him -- criticism which in truth will unavoidably occur occasionally when one writes as much and as strongly on subjects of such importance as Posner does, and assails those who themselves have the power of the pen such as public intellectuals and the media -- the fact remains that Posner is one of the greatest talents of my generation, and indubitably is such in the field of law. That, at least, is the view of this writer.
* * * * *
Let me now set forth and make some comments about a few of the substantive points of Posner’s book review. Posner seems to see traditional news media as being in decline in respect to readership, viewership, and credibility. He sees the traditional news media, I gather, as being heavily politicized in the sense that it seeks to accommodate the political leanings of its customers lest it lose both them and money. Perhaps somewhat paradoxically in a country that one would think is far more conservative today than previously, he says that the mainstream media have become more liberal, not less, apparently in an effort to attract and keep customers on the left since those on the right are deserting anyway to the various print and electronic Limbaughs of this world. Posner also says the media "have become more sensational, more prone to scandal and possibly less accurate." As one method of demonstrating why these points are true, he puts forth some arguments that seem like economic theory -- arguments premised on greater ease of entry into the electronic news business due to lowered costs, with a consequently heightened battle for customers. The arguments may also, of course, have solid factual underpinnings that, I would guess, could well be presented in some of the eight books ostensibly being reviewed.

What it all seems to come down to in plain English is that the media are profit oriented, that media organs therefore feel compelled to give the people what they want -- or at least to give this to enough people to make money -- that people want to hear stuff that reinforces their prejudices or that entertains them, rather than stuff that enlightens them, and that reinforcement and entertainment are therefore what the media gives them. As Posner summarized much of this:

Being profit-driven, the media respond to the actual demands of their audience rather than to the idealized ''thirst for knowledge'' demand posited by public intellectuals and deans of journalism schools. They serve up what the consumer wants, and the more intense the competitive pressure, the better they do it. We see this in the media's coverage of political campaigns. Relatively little attention is paid to issues. Fundamental questions, like the actual difference in policies that might result if one candidate rather than the other won, get little play. The focus instead is on who's ahead, viewed as a function of campaign tactics, which are meticulously reported. Candidates' statements are evaluated not for their truth but for their adroitness; it is assumed, without a hint of embarrassment, that a political candidate who levels with voters disqualifies himself from being taken seriously, like a racehorse that tries to hug the outside of the track. News coverage of a political campaign is oriented to a public that enjoys competitive sports, not to one that is civic-minded.

This does not mean, says Posner, that the "news media were better before competition polarized them[.]" For "[a] market gives people what they want . . . ." Moreover, "[c]hallenging areas of social consensus, however dumb or even vicious the consensus," is largely off limits for the media, because it wins no friends among the general public. The mainstream media do not kick sacred cows like religion and patriotism." (Emphasis added.)

"Journalists," Posner later continues, "are reluctant to confess to pandering to their customers’ biases; it challenges their self-image as servants of the general interest . . . ." Journalists, rather, see the nation as a "‘deliberative democracy’" in which the people make policy by deliberating the issues. A democracy, as Bill Moyers says, "‘can’t exist without an informed public.’ [But] [i]f this is true the United States is not a democracy (which may be Moyers dyspeptic view). Only members of the intelligentsia, a tiny slice of the population, deliberate on public issues."

There is, says Posner, only a "limited consumer interest in the truth," and the media panders extensively to this limitation. Yet the "sliver of the public that does have a serous interest in policy issues" seems also to be sufficiently well served through serious magazines, through National Public Radio, and/or by having their own preconceptions challenged by reading both "The New York Times and The Wall Street Journal," or "watch[ing] CNN and Fox," or reading both "Brent Bozell and Eric Alterman." (Emphasis in original.)

What Judge Posner is describing sounds awfully much like a journalistic equivalent of an idea in economics called Gresham’s Law. That is, the bad -- indeed the worst -- are driving out the good to a large extent. That would seem to me the meaning of the notion that the one-sided, the sensationalized, the inaccurate are increasing at the expense of good journalism. Posner plainly implies, indeed I think it fair to say he explicitly states, that this does not mean "the news media were better before competition polarized them . . . ." "For "[a] market gives people what they want."

Yet, despite the now longstanding triumph of the Chicago school, I think it is now becoming increasingly recognized that the market fails to provide for lots of things appropriately. (This is true even if one would not wish to see regulation partially replace the unalloyed market -- e.g., in regard to print media -- lest things become far worse, albeit in a different direction.) In this connection, a press which concentrates (as Posner rightly says the media do) on horse race aspects of public life rather than on the fundamental underlying issues and the differences that could result from the triumph of different candidates and positions, is a press that is irresponsible and quite often hardly worth a damn. Nor do I honestly think that coverage of the horse race, rather than coverage of the substance, is what lots of people want. To the contrary, people hunger for substance, but get horse race because that is all that reporters know and is what they have done all their lives. (I gather that the absence of substantive knowledge is one of the reasons that Lee Bollinger wants changes at the Columbia Journalism School.)

Nor can it fail to matter, I should think, that the press rarely "[c]halleng[es] areas of social consensus, however dumb or even vicious," since such challenge "wins no friends among the general public. (Emphasis added.) Can we really live with a press that, in the interest of sales, does not challenge a "dumb or vicious" consensus? Down that road lie debacles like Viet Nam and Gulf War II. Not for nothing, I would judge, has The New York Times found it necessary to apologize for its grossly inadequate coverage of, for its incompetent failure to sufficiently investigate, report on and challenge, the Administration’s prior claims and reasons as to why we supposedly had to invade Iraq in 2003.

Nor can I honestly agree that those on the liberal side of the spectrum are being well served by the fractionated media that is now said to exist. I confess here to a handicap and consequent possible error. As said before on this blog, I read or at least skim three major newspapers each day, The Times, The Wall Street Journal and The Boston Globe. But because of a desire to leave time to read books as well as do one’s workaday job, I do not generally watch television, listen to the radio, or read magazines. So my information is incomplete. But sometimes I do these things, and from what one does read, see or hear, I do not feel well served. Much of importance seems out of bounds most or all of the time for the mainstream media, however liberal they supposedly (but perhaps not really) are. Before the war, how much investigation and challenge was there to the lies of Bush and Cheney in the mainstream media? -- there is a reason The Times has had to apologize. One simply never sees, hears or reads of the possibility that the Bushers are criminals because they have allowed -- I think connived at -- torture. Only recently -- after two years of a war that the Administration tells us is crucially necessary -- have mainstream pundits commenced asking, on more than highly infrequent occasions, why none of these warmongers in office send their children off to Iraq if the war is so critical to the future of the nation they are running. One did not see on American TV the human destruction -- the thousands or tens or scores of thousands of civilian dead and wounded -- caused by our incessant bombing and shelling and shooting; no doubt the mainstream media was too busy sucking after the latest bushwa from Bush, Cheney and company on why the war is essential and why only other people, but not us, are terrorists. The views of people like Howard Zinn, Michael Parenti and Noam Chomsky on foreign and domestic affairs are never presented in the mainstream media. (I think the words "never presented" are accurate; if not, it would surely be right to say are "rarely presented.") People with their views are instead regarded by the mainstream media as wackos whose positions are not respectable and are not to be carried. Rarely, if ever -- I think it likely that, once again, "never" would be an appropriate word -- does the mainstream media bring up, let alone discuss, the question of whether the fundamental political problem of the last 55 years, the overarching question that has existed since June of 1950 (and, some think, since FDR’s destroyers for bases deal ten years before), is whether Congress has de facto surrendered virtually all power over foreign relations decisions to the Executive, thereby enabling the Executive to launch us into war after war after war since 1950.

Thus it is that this blogger does not think that the liberal side is being adequately represented in the mainstream media. (Indeed, the absence of such representation is probably the reason for the existence of this blog.) There is a certain irony to this, of course. Some wag once said that conservatives are persons who worship dead liberals, and, if one looks over history, one finds that it was reformers who were unrespectable in their day who proved right in the end, or who at least prevailed in history: abolitionists, women’s righters, proponents of labor, civil righters. But today their intellectual and emotional descendants like Zinn, Chomsky, Parenti, etc., are not considered worthy of being carried in the mainstream media.

One is afraid that there is much to be said, though, for Judge Posner’s view that only "a tiny slice of the population . . . . deliberate on public issues." At least it is true that only a tiny slice is heard, although one might quarrel with the idea that it is "[o]nly members of the intelligentsia" who deliberate on these issues. Politicians debate them, but almost never are members of the intelligentsia. The uncabined loudmouths on Fox, MSNBC, CNN and the rest debate them, although it is hard to see how many of these shouters are members of what one thinks of as the intelligentsia. It also seems to be the case that ordinary citizens consider the issues (even if such citizens generally are more concerned with local news, as Posner says, but which one might doubt to be anything like a universal or omnipresent case). The interest paid to Bush’s plan for social security reform, to Clinton’s decade-ago plan for medical insurance, and now at last to Bush’s war, would seem to indicate that citizens care about at least some of the national issues rocking our country. But let us not kid ourselves. If one hears relatively little from ordinary people on these matters, it may well be because the media don’t care and don’t carry what ordinary citizens have to say (outside of quoting a few people on the spot when a story breaks and a small number of letters to the editor in such publications as The Times. But would it really be so hard, or so excessively expensive, for major newspapers or major magazines to devote three or five pages per publication to essays by ordinary citizens?) Many ordinary citizens know this, or quickly become aware of it, so they do not attempt to be heard even if they are interested in public issues. And, to the extent they are not interested, it often is because ordinary people also tend to think -- rightly, one judges -- that national politics or even all politics are generally only a loudmouthed selfish frenzy and it is merely a question of which side will pick people’s pockets. Nor are there many people who, lacking the kind of access to the mainstream media that Judge Posner deservedly has because of his brilliance and incessant diligence, will organize trips to Crawford, Texas to sit outside the home of George Bush because it is only acts like this -- acts ala the picketing, marching and draft card burnings of earlier times -- that will cause their views to be covered by the mainstream media. Looked at realistically, in various respects we do not have -- and Bill Moyers is right in saying we do not have -- a democracy. We have only a partial democracy. We also have, partially, a plutocracy and a corporate kleptocracy. Not to mention that at times we also have a partial kakistocracy: government by the worst.
* * * * *

A major portion of Posner’s essay, roughly a page and a half of it, is devoted to the new phenomenon of blogs. Blogs, he says, may represent the gravest challenge yet to the traditional media. They do not have the conventional media’s costs -- anyone with an electronic pen, so to speak, can create a blog. They do not have the traditional media’s imperative of accuracy lest reputation, customers and money be lost -- albeit corrections in the conventional media are slow, uncertain and unread, while a blogger who makes a mistake in the 12 million strong blogosphere finds that a host of people will have jumped down his throat with a correction in a New York minute. Besides, Posner says, people know enough not to trust the accuracy of blogs because, unlike the media, bloggers are "unfiltered" amateurs, "don’t employ fact checkers," "don’t have editors," and "can hide behind a pseudonym." (How is it, though, that the conventional media so often get facts wrong -- usually get them wrong in some particular(s) in my personal experience -- despite having this array of filters?) Bloggers can specialize in topics to an extent impossible for the traditional media, and can stick with a subject for long, long periods of time, again unlike the traditional media.

And the conventional media cannot really hope to compete with blogs, says Posner, because the latter are "parasitical on the conventional media. They copy the news and opinion generated by the conventional media, often at considerable expense, without picking up any of the tab." The main problem here, therefore, is that bloggers are "free riders" on the conventional media and may consequently "undermine" the latter’s ability to "finance the very reporting on which bloggers depend." The so-called "free rider" problem is, of course, one that Posner has -- almost single handedly? -- made a staple of corporate economics and antitrust and which one now occasionally sees, as here, being imported into other areas. But, in any event, says Posner, blogs do "enable unorthodox views to get a hearing" and allow people to blow off steam.

Much of what Judge Posner says about blogs is inarguable. Anyone can set one up. They lack the filters of the conventional media but the blogosphere as a whole is a giant correction machine. They can specialize and/or stick with a subject. They let people blow off steam. Etc., etc. Yet there are, perhaps, other or additional aspects to the story as well.

Let me begin with the style that is so prevalent on blogs. I admit to being at a disadvantage in discussing this because, as often said here, this blogger does not even know how to turn on a computer, so he doesn’t surf and skim and sees less on the Internet than would otherwise be the case. (This does have an advantage though, in that one does not become addicted to sitting in front of the computer for hours on end, one has a chance to read books, one is more able to have a life. The Internet is (in my estimation) to many people like a dictionary is to a few; if you let yourself get hooked, if you don’t deliberately tear yourself away, watch out -- you’ll end up spending huge amounts of time at the addiction.) But while my own time surfing and skimming electronically is nonexistent, other people pull down things for me to read in hard copy. And, in this way, this writer has been a participant -- if only to read what was being said -- in what could be called threads, sometimes threads by bloggers responding to each other. So my experience is lesser but existent.

Based on this lesser but existent experience, I would have to say that, in the particular realm of blogs, the Internet is not generally living up to its possibility, as I see it, of being the greatest advance in human communication since Gutenberg invented the printing press. For there seems to be very few blogs like Posner’s: literate, thoughtful, articulate, a stylistic and substantive pleasure to read. So many blogs, it seems, are more like gossipy, sniping phone calls or two person bull sessions. There are single and sometimes simple-minded thoughts, undeveloped ideas, four letter words, personal attacks, bad grammar, misspellings and the whole nine yards. The relevant blogs are an electronic, off camera Barberino as it were. Maybe we should not or cannot expect a better overall performance from a medium in which 12 million people write, and which exists in a society where, it seems, ever less attention is paid to teaching people how to read and write, ever less concern is displayed about the lack of their skills, and ever fewer people have a concentration span longer than two New York minutes. But whatever one might or should expect, a medium that so heavily consists of such poor stuff is not going to replace conventional media. When the conventional media will have to watch out is when -- and if, because it’s not likely to happen -- the Internet, or its subspecies called the blogosphere, has 10,000 or 50,000 Posners and Victor David Hansens writing on it regularly.

It is true, though, that blogs give those who wish it an opportunity to focus on a few subjects -- an opportunity to specialize -- and to keep hammering at the same ideas. (This blog, by way of example, seems to have focused over time on about eight major fields or ideas, including the war, torture, the media, higher education, and the desperate need for a resumption of honesty and a resurgence of competence.) But such continuing focus is not merely a strength of the blogosphere, I would judge. Rather, its absence is a weakness of the conventional media. Nor does one agree that such absence is necessary and unavoidable. As some brave souls have found out even in television, in-depth focus on subjects from local news to national events past and present draws viewers and readers. Has there ever been a better example on television than Ken Burns’ in-depth series on the Civil War? The same is seen in the print media. Look at the readership of and interest in The Times lengthy series on class in America, and from the opposite political side of the newspaper spectrum, The Wall Street Journal’s series of articles on the subject.

The absence of in-depth work is not, it seems to me, some unavoidable imperative of the conventional media. It is, rather, the product of bad standards, ignorant journalists, and corporate greed -- it costs less. (In-depth journalism cuts into profit levels that in some areas of the media, one understands, can apparently run as high as 50 or 70 percent of revenues.)

Something analogous is at work with regard to the question of why the conventional media does not track subjects for lengthy periods, but instead flits from subject to subject in a non-stop search for the story de jure -- the latest murder, the most recent and often meaningless Presidential statement, etc. Here the problem seems to be heavily attributable to a shallow idea of what is news, and a correlative failure to focus on and consider first principles. Journalists apparently find it impossible to define what is news, so they fall back on the old saw that "If a dog bites a man, it’s not news. If a man bites a dog, it’s news." So they are always running after the new, new thing. But God forbid that someone should emphasize the same point or same story over and over. That is not news, it is political partisanship and grinding an axe and beating a dead horse, say journalists, regardless of whether one is discussing war, politics, sports, police forces, business or what have you. Equally, always seeking and communicating about the new new thing, journalists ignore how courses of action or problems first began and what the original goals were. (Why did the Arab Israeli conflict commence in 1947, for example, or why did the Israelis decide to keep conquered territories in 1967?)

One of the (to me) unforgettable recent examples of the no-no character of focusing on a single subject over a period of time in the conventional media, or of continuously bringing up first principles there, occurred in connection with the former (and, I gather, generally unlamented) editor of The New York Times, Howell Raines. Among the complaints over Raines stewardship, if memory serves, was that he ran 13 or 17 or some large number of pieces on Augusta National’s refusal to admit women. This was considered a vendetta, I gather. And, remarkably, when Raines got into deep trouble for this and other reasons, nobody seemed to consider that maybe Raines was justified in continually bringing up the fact that women were being excluded from one of the high level meeting spots of corporate America -– just as they are excluded from the Bohemian Grove, a fact which almost never is mentioned in the media. Equality (or at least equality of opportunity) is a first principle, isn’t it? It should be continuously stressed, shouldn’t it? Why, then, should it be considered bad for a major media outlet to keep bringing up a story about its denial, much less its denial at the upper reaches of the corporate and social world? If people are bored reading about it, then let those who are bored not bother to read the stories. Why should stories about it not be done because they are not the new new thing?

Nor do I think that blogs should be considered parasitic "free riders" in the sense in which the term "free rider" grew up -- it grew up, I believe, in the context of discount dealers who did not have and pay for the fancy showrooms, ads, etc. that full price dealers used and paid for, but who benefitted from the latter because people could, for example, view or even try the product at the showroom of the full price dealer and then buy it for less from the discounter. (I might disagree with Posner’s view of the discount dealer situation, but that is of no never mind one way or the other in the present context.)

The fact is, as Posner says, that lots of bloggers (like this one) rely on the conventional media for information and articles that bloggers then comment on (and sometimes, as Posner says, link to). But relying on the conventional media for information and views on which one then comments does not seem to me like free riding in any pejorative, parasitic sense. For isn’t that what the conventional media itself does when it jumps on a story after some other station or paper spent the money or time to uncover it? (E.g., The Pentagon Papers, Watergate, and hundreds of thousands of everyday stories.) Isn’t that what columnists in the conventional media do when they jump on and write about some story previously uncovered elsewhere or some column previously written by someone else in another paper? Isn’t that what book reviewers do when they review a book that, as always, was written by someone else? Isn’t that what scientists do when they replicate the work of someone else, or use the work of someone else as a starting point for their own? (Who was it (Newton, maybe?) that said, "If I have seen far, it is because I have stood on the shoulders of giants?) Isn’t that what social scientists and lawyers do when they use someone else’s work, ideas or opinions as the basis, or as the take-off point, for their own? Isn’t that what all of us do when we repeat views we heard from another? If all this is free riding, yet forms the basis for obtaining money, attention or other forms of compensation, then I say that what we need is more free riding, at least high quality free riding. (A famous composer -- I’ve forgotten whom -- when speaking of composers’ use of musical themes created by others, once said that good composers borrow; great composers steal.

What is more, the free riding in question is supposed to be, and sometimes is, a two-way street. Yes, bloggers get and use information and ideas from the conventional media. But the conventional media can get and use ideas from the blogosphere, e.g., as when the blogosphere uncovered, and conventional media then picked up, Dan Rather’s and CBS’ gaffe about George Bush’s (no doubt highly distinguished) military career. Of course, the street would be more of a two-way one if the conventional media were willing, as it is not, to pick up and develop ideas which it presently considers beyond the pale, ideas mentioned here earlier or put forth by persons mentioned here earlier.

I do worry, though, about questions of accuracy and style. There is not much concern, I suppose, that bloggers will cause the nation to believe false or inaccurate things. For, as said, the Internet, as Posner makes clear, is a giant correction machine, and it has partisans on both sides of subjects -- indeed on all sides of them. There should be far more worry that the conventional media, not the Internet, will lead us down the primrose path, as it was so instrumental in doing in 1964 with regard to Nam and recently with regard to launching Gulf War II. The Internet, if anything, may be a corrective, or partial corrective, to mistakes or shortcomings of the conventional media in future.

So the issue of accuracy is not a question of the Internet, or blogging, as a whole. It is more a question of individual standards. The question is whether individual bloggers feel a responsibility to be as accurate as they can, a responsibility drummed into educated people as a matter of course in at least the first six or seven decades of the twentieth century (even though there were many in whom the lesson did not take). Or do bloggers feel they can say nearly any damn thing they please without too much regard for accuracy? To me the question is stupefying, because I can’t even begin to believe in my gut that people would not care about accuracy. But one’s head says this too often is so. The matter is, of course, a question of personal standards in the society. Honesty, and accuracy to the best of one’s ability, should be desiderata; we should not be forced to rely solely on the giant correction machine because we cannot rely on the individual’s integrity.

The question of style also is bothersome. People express themselves in the most outrageous and extreme ways on the Internet, including on blogs. I have even had people tell me that obnoxious, deeply offensive expression is the way of the Internet -- is Internetspeak -- so one ought not take it seriously or be offended, because it is not meant seriously or offensively. Well, one begs to differ about whether to take it seriously or be offended. The kind and degree of partisan and/or obnoxious speech á outrance that one finds on the Internet can do nothing to further any search for truth or bring people’s viewpoints closer together. It can only offend, drive people further apart, and create more breaches. No good can come of it. Accordingly, one wishes for more blog writing in the style of Posner and Becker, persons whose felicity of expression and thought causes one to want to read their blog, and to ponder what they are saying, even on occasions when one disagrees with their views.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to respond to this email/blog, and do not object to your response being posted, please send it to http://mslmedia.com/VelvelII, and it will automatically be posted in the (new) "comments" section of this blog. That section can be read by clicking on "comments" below. If you do not want your response to be posted, please email it to me at velvel@mslaw.edu.

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