August 24 2006
August 24, 2006
Re: Professor X And The Conservative Judges Of Reagan And The Two Bushes.
From: Dean Lawrence R. Velvel
On Wednesday August 23rd The New York Times printed an op ed piece by a University of Wisconsin professor. I shall call her X. Many of this blog’s readers doubtlessly read the Times and saw X’s piece. It was given pride of place on the Times’ page of columns, and was provocatively entitled, “A Law Unto Herself”.
The piece viciously attached Judge Anna Diggs Taylor for ruling that Bush’s previously secret but now admitted NSA electronic surveillance of gazillions of phone calls is unconstitutional. The piece was not only a vicious attack on Judge Diggs, it was also deeply wrong (a subject I shall return to subsequently). It was so wrong that it was irresponsible of the Times to print it.
One imagines that the Times must get dozens, maybe scores -- maybe, who knows, hundreds -- of proposed op ed pieces that it doesn’t print each week, just like it must get hundreds of letters that it doesn’t print. Assuming, as is so likely, that the Times gets lots of proposed op ed pieces that it doesn’t print, one is at a loss to understand why it ran, and gave pride of place, to X’s screed. Did the Times not have constitutional and statutory experts vet her article for professional accuracy and professional persuasiveness before running it? Did it not bother to have her piece vetted because X herself is a constitutional law professor? Did the Times (and experts?) feel it should be run because it is the product (one might uncharitably call it the ravings) of a conservative to reactionary point of view , so that the Times could not be accused of one sidedness? Did the Times run her piece because X (I’ve since learned) is a major league blogger -- a major figure in the blogging community (where, I gather, opinions on her politics vary, although I read that she does support Bush’s war in Iraq). Who knows why the Times carried X’s irresponsible op-ed column? If I had to make a bet, it would be that several, maybe even all, of the foregoing possibilities played a role.
The Times, of course, regularly offsets the fact that it is a national treasure -- as I personally believe and as long-time Timesman Ira Berkow recently said at our law school -- by doing things of enormous irresponsibility (like possibly electing George Bush to a second term by not revealing its knowledge of his electronic surveillance before the 2004 election, if it did learn of the surveillance before that election -- which it has now refused to say for over one and one half years). (A list of irresponsible Times’ actions has been discussed here in prior posts.) But that the Times occasionally does irresponsible things does not justify doing more of them, and one is amazed that it irresponsibly printed, let alone gave pride of place, to X’s piece. X, one may say, is no George Kennan, if you understand the allusion.
Yet, paradoxically, X did say one thing far better than this blogger has ever been able to say it. She captured one phenomenon about judges so perfectly that I can do no better than quote what she said, which is done below. From this writer’s perspective, her statement was fortuitously timed because it so beautifully captured a point that I was on the verge of writing about, was about to start writing about the very Wednesday her piece appeared, although I write about it from a directly opposite point of view. Here is what X said:
So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.
There you have it: briefly, pithily, and in summary of the wisdom developed in the 20th Century, starting early in that century with the so-called legal realists who exposed, exploded and ridiculed judges’ claims to some sort of politically and economically neutral omniscience. Judges are neither neutral nor omniscient.
A judge, as one wag once put it, is a lawyer who knew a senator (although one also has to be a lawyer who holds politically approved views). Often judges are not particularly competent. They are deeply biased in favor of views they favor, are quite often intolerant of other views, and evade the central point or points of a matter in order to arrive at preordained decisions they wish to arrive at. But to hide their bias, their avoidance of centrality, and the so-often preordained nature of their decisions, they speak in complex language and logic invented by the law and lawyers to hide what is being done. The language and logic are often dull to the point of causing mild encephalitis. They give the appearance of being neutral, and they make their users sound neutral, when the truth is to the contrary.
What X wrote is, as said, applicable to something this blogger was about to write on. As said recently, I don’t usually write about judges and legal opinions. When it comes to the Supreme Court, there is no crying need because so many people write about them -- although it’s true that much is often missed because the Court’s opinions are nearly a paradigm of excessive length, turgid writing, legalistics, avoidance of centrality, dullness stemming from the last three factors, and duplicativeness arising because there may be so many opinions in a case. When it comes to lower federal court opinions, reading them and writing about them is discouraged by all the same factors except, usually (but not always), the existence of an excessive number of opinions in a single case (a benefit often offset, however, by the existence of lots of cases, and therefore lots of opinions, on any given issue).
But while I do not usually write about legal matters, recently this reluctance has been overcome by the number and importance of outrageous reactionary decisions being made by reactionary judges appointed by Reagan and the two Bushes. One of the opinions, written by The Reactionary Easterbrook, and allowing companies to screw older workers out of major portions of pensions they were counting on and had worked for decades to get (a problem not faced by the federal judges who allowed this), has been the subject of a couple of recent blogs. A few more, about which I was poised to write when X’s op ed piece appeared, were done by a couple of district court judges (i.e., federal trial court judges) who have let the government off the hook for its terrible conduct in rendering prisoners for torture, in torturing and killing them itself, in running Iraq incompetently, and in prosecuting persons who disclose or pass on classified information -- no matter how “unclassifiable” it in truth is -- while itself or through Bush or Cheney disclosing classified information when it suits their morally and intellectually corrupt administration’s own political purposes. These are all cases in which the very point made by X is preternaturally applicable. For in these cases the judges discuss legalistics. They do so in a way that makes their decisions appear ostensibly “neutral”, at least to the lay eye. In each opinion the decision is foreordained. (These judges, unlike Anna Diggs Taylor, are not about to go against George Bush.) In each case, central points are ignored. In one case, the judge who protected Bush, Cheney, Yoo and the rest of that evil crowd was for five years, and until very recently, a Bush nominee to the Court of Appeals whom the Democrats would not allow to ascend, and he could still be renominated by Bush. What is the chance that he would vote against Bush’s position? In another case the judge, knowing the horribleness of the acts for which he was failing to hold the Executive accountable, said that somebody -- the Congress, the Executive - - ought to give the victim a remedy. But he, of course, had to know as a human being that this is almost sure not to happen, and that he was therefore just blowing smoke to make himself feel better as he immunized the Executive’s horrible deeds.
Let’s briefly go through the cases, starting with the Passaro prosecution in Raleigh, North Carolina.
David Passaro was a CIA contractor in Afghanistan who continuously tortured and beat the living shit out of an Afghan prisoner until he killed him. He was convicted a few days ago. CIA officers testified against him wearing wigs and false mustaches and using concededly fake names. (Can you beat that? That’s real justice, isn’t it?) He was convicted by a jury in the court of Judge Terrence Boyle.
As articles and opinions make clear, there can be no doubt that Passaro is a savage. He is of a type with our My Lai brutes, our Tiger force primitives, the Haditha murderers. He should be taken out and put against a wall, and is lucky that that is not how things are done in this country. But bad as he is, he did have a possible defense, but one that Judge Boyle made sure he could not successfully raise.
Passaro (a CIA contractor, as said) claimed that he was acting in accordance with the desires of the leaders of the CIA and the Executive Branch. (This was called the public authority defense). To prove this he wanted access to Executive memoranda that would show torture was desired and authorized, and he wanted to subpoena and examine Executive Branch evildoers like George Tenet, Cofer Black, John Yoo, and others whose names the judge kept secret. All this, Passaro believed, would prove his defense. There is no doubt he is right about what the Executive wanted and authorized – no doubt at all. For it is already known publicly that there were memos that allowed torture (and some of them are even public now), that high officials wanted torture, that Bush would ask whether it was getting results, and so forth. But the so-called judge, Terrence Boyle, would not allow Passaro to get the memos or subpoena the officials. The so-called judge even claimed implicitly that maybe there were no such memos, saying “Even assuming the classified memoranda do exist . . . .” (Emphasis added.) “Assuming,” my posterior -- it is well known they exist. And the so-called judge pretended that maybe Passaro wasn’t relying on what the high officials wanted -- though it’s well know that the CIA, the military, the interrogators all knew what our highest officials wanted done. They wanted information to be obtained at any cost.
What Boyle deliberately did is that he avoided the central question -- was Passaro acting in accordance with the desires of the highest authorities of our government -- a sort of implicit Nuremberg defense, as it were. Boyle plainly didn’t want the truth about our highest officials to come out in his courtroom, he plainly didn’t want evidence of their Nuremberg type desires to come out and thus, as far as I know, never got involved with the issue of whether the Nuremberg doctrine would nonetheless block Passaro’s defense even if he were allowed to show the higher-ups were responsible. So he rejected Passaro’s attempts to get the evidence. He wrapped this rejection in legal jargon. He made it sound all nice and neutral. It was anything but neutral. It was a deliberate judicial cover-up by a conservative or reactionary Reagan appointee. And rest assured that it will be upheld by conservative to reactionary appointees of Reagan and the Bushes.
One holds no brief for Passaro. He is a savage who should be strung up. But he was denied a defense by a judge who was not about to allow the truth to come out in his courtroom.
And by the way, the Passaro case took years. During almost this entire period the so-called judge, Terrence Boyle, was a Bush II nominee to the appellate court. What’s the chance that such a judge is going to rule that a defendant can obtain evidence that could cause Bush II and his henchmen (Cheney, Rumsfeld, Yoo, Gonzalez, etc.) to be strung up, at least figuratively? So much for the law or for justice, either in this country supposedly dedicated to them or in the courtrooms of our conservative and reactionary judges. (Boyle -- George Bush’s nominee, don’t forget -- has, in the words of the Times in March 2005, made many decisions that “have been criticized by higher courts [because he] wrongly rejected claims involving civil rights, sex discrimination and disability rights.” His “record is particularly troubling because the court reviewing him, the Fourth Circuit, is perhaps the most hostile to civil rights in the federal appellate system, and even it has regularly found his rulings objectionable” He also has been claimed to have decided cases in which he had a financial conflict of interest).
Now let’s turn to some opinions by a federal judge in Alexandria, Virginia named T.S. Ellis III. That’s right, not T.S. Ellis, or T.S. Ellis Senior or Junior. Nope. T.S. Ellis the third. That tells you pretty much everything you need to know, doesn’t it -- Princeton ’61 (back in the days of bigotry at Princeton), Harvard Law ’69, a nominee of Saint Ronald in 1987. When we’re done, you will not wonder why it is sometimes said that the government likes to file its criminal cases in Alexandria because the judges there favor it.
In May Judge T.S. threw out the case brought by Khaled El-Masri because, said T.S., it involved state secrets. Masri was the innocent guy whom the CIA and its buddies grabbed off the street (so to speak) at the Serbian-Macedonian border, imprisoned and interrogated for awhile, then drugged and flew to Afghanistan, interrogated for months, and, five months after grabbing him, dumped on a deserted road in Albania.
That the CIA has been doing all these things as a regular matter has been well known for years. The Times, the Washington Post and others have learned and disclosed details down to the airplanes, airports and company fronts the CIA has been using to render people for torture. But the so-called Judge, T. S., said that El-Masri’s case must be thrown out because it might reveal state secrets -- a doctrine which was created by the Supreme Court in 1953 in a case in which, it is now known, the government lied to the Court, but which nonetheless continues to be used by reactionary judges for the purpose of letting the government get away with torture if not murder -- and, for all I know, with murder too. Here the so-called judge, T.S., used the state secrets doctrine to shield a once secret, now revealed criminal governmental enterprise -- torture is a criminal violation of both international and domestic law.
As our reactionary judges do, T.S. used legalistics to try to make it look as if he were writing in a neutral fashion, when in reality he always found some reason -- or more accurately, trumped up some reason -- why El-Masri’s legal points were always wrong and why El-Masri had to lose even if the identity of agents, etc. could be and would be kept secret. (I gather that fake mustaches, wigs and fake names are okay if used to convict a low level slug in North Carolina while protecting high level slugs there, but not if they would be used to find against the policy of high level slugs in Alexandria, Virginia.)
You have to say one thing here for T.S. the third, though. True, he made a grossly false statement (which non lawyers might call a lie) by saying “It is important to emphasize that the result reached here is required by settled, controlling law” -- which it most certainly is not, and other judges could readily have reached a different decision. But he felt badly about reaching this supposedly “required” decision. So he said his opinion was not a comment on the truth or falsity of El-Masri’s factual claims and that, if they are true, all “must . . . agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy.” Such a remedy, said T. S., must come from the Executive or the legislature. This was all very safe to say, of course, since T.S. knows as well as I do that the chance El-Masri will be given a remedy by one of those branches approaches nil. The Executive won’t admit mistakes, and the Congress is too immoral and too weak kneed to give a damn or do the right thing. But what is any of this to a such and such the third, Princeton ’61, where there was no torture for the anointed of the earth, who did not get grabbed off streets and rendered unto Afghanistan and would have no idea what this is like.
El-Masri’s case is far from the only one in which conservative Reagan appointee T.S. the third, Princeton ’61, has faked it for the Executive -- has used neutral sounding terms and legalistics to reach decisions foreordained to favor the Executive. Take, for example, decisions he made (one as recently as last week) in the so-called Custer Battles case. Like the opinion of The Reactionary Easterbrook in the IBM pension case, the decisions are too full of legalistics to even begin to describe what was said. The matter revolves around whether various different funds controlled by the Coalition Provisional Authority -- the group long headed by Bush’s pal Paul Bremer -- belonged to Iraq or the United States. The central point which T.S. elided was that, regardless of technicalities, Bremer, his successor, and the CPA fundamentally controlled Iraq, and the CPA is, for practical purposes, an American operation even if the UK and other members of Bush’s “coalition of the willing” were technically among its creators. As a practical matter, therefore, all the money was America’s because we controlled the whole shooting match over there. Moreover, Custer Battles itself, though in form a private outfit, is in reality, like Blackwater, a mercenary in the employ of the United States government, which has undertaken the dangerous practice of using mercenaries, as in ancient days, to do things that should be done by regular troops (e.g., guarding officials, interrogating prisoners). (It is hard to imagine anything worse than the increasing use of mercenaries instead of U.S. servicemen by the U.S. government. This is what authoritarians did in the 1500s, 1600s, and 1700s -- remember Great Britain’s Hessians?)
Judge T.S. the third, Princeton ’61, has also recently decided (on August 9th) not to dismiss at this point, on first amendment grounds, a government prosecution against two AIPAC officials charged with receiving and passing on classified information. I wish to say that this is the least objectionable of his decisions discussed here. For it does contain lots of language indicating knowledge that vital first amendment considerations implicating the public’s need to know about government evil are involved in the law relating to the case, and that leaking is a regular sport in Washington. But, on the other hand, Ellis also has lots of language giving the government great scope to argue that leaks must be punished whenever it says they are dangerous or harmful, whenever it says “legitimate national security interests” are involved. T.S. III’s language in this regard is broad enough to let the government lie with impunity about this -- as the Solicitor General who argued the case later conceded defacto the government did when it claimed vital national security secrets were involved in the Pentagon Papers case. This broad language is a vast loophole allowing the government to prevent the public from obtaining information it desperately needs in order to know the evil that government is doing. (And would a judge who is willing to say that a horrid phenomenon like rendition for torture is a state secret though it is publicly known down to fine details, be likely to contradictorily say that information George Bush says must be classified for the public safety should instead not be classified?)
Beyond opening the door wider to phony Nixonian/Bushian claims of supposedly legitimate classification, the opinion of T.S. the third evinces no consciousness of the additional evil that can arise when people like Bush and Cheney determine to declassify information on the spot, as it were, for their own political purposes. This was said to have been done in connection with the Valerie Plame matter, and was apparently claimed to be legal by Executive apologists. (I am at a loss to understand where in the statute or regulations, much less in constitutional doctrine, the apologists find such authority to declassify on the spot for political purposes, and to thereby add political one sidedness to the claim that, if the President says an opponent has leaked dangerous material, then the opponent can be prosecuted -- and can be prosecuted regardless of how vital it is for the public to become aware of the leaked information (e.g., rendition for torture, murder in prison camps, vast spying on Americans).)
Let me finish this posting by going back to where it began due to the fortuitous appearance of Professor X’s op ed column just as I was about to start writing. Let me go back, that is, to Professor X’s piece and to its criticism of Judge Anna Diggs Taylor.
I have to say, with reverse bigotry, that it is hardly a surprise that it was a black judge -- one who apparently has suffered both racial and gender discrimination -- who had the guts to be the first to knock down Bush’s electronic spying. A few years ago, in 2004, when this blogger was saying Bush is incompetent, one knew of only five columnists in the entire mass media who were willing to say the same. All the rest were too gutless or stupid to say something that is now common currency, and is common currency for good reason. Of the five who were willing to say it, three were black, Bob Hebert, Eugene Robinson and Derrick Jackson, while only two were white, Maureen Dowd and Paul Krugman. This even though the incredibly overwhelming percentage of columnists and pundits in this country are white, not black. It seems a fair guess that the black experience in America -- hundreds of years of slavery, followed by a century of Jim Crow and worse (lynchings), followed by continued second class citizenship, has sensitized African Americans to white stupidity and injustice in a way that must forever escape one who, like Richard Cory, is a child of enormous privilege but, unlike Cory, arrogantly, unfeelingly, without sense or sensitivity does things that put bullets through other people’s heads. And, for that matter, the Irish community, of which Dowd is a member, and the Jewish community, to which I presume Krugman belongs and to which this blogger belongs, has experienced much of the same as African Americans over the centuries and in America itself (though these groups are now mainly part of the establishment in this country), so that there likely is an identical reason for at least some of their members to be more attuned to the stupidity and injustice of the Bushian, privileged, WASP uber class than is the average American of more “standard” background. In any event, after the experience of who was and who was not willing to call Bush incompetent a few years ago, it was no surprise that a black judge, not a white one, had the guts to say that what Bush is doing violates the law. And for the courage displayed by African Americans toward Bush and Cheney, and toward the latters’ efforts to usurp power, we should be grateful, profoundly so. A thank you should go to Judge Diggs.
Professor X, however, is a very blonde example of apparently more privileged background, judging by the picture of her on the web. And, according to Professor X, Judge Diggs has “blithely ignor[ed] [her] obligations;” “didn’t [even] bother to come up with the [neutral sounding, legalistic] verbage that normally cushions” biased legal opinions; has shoddily “disposed of” serious arguments in an irresponsible way; has engaged in “sheer sophistry” by relying on ideas that most of us consider fundamental to the founding of this country such as the fact that this nation rejected the idea of a king (with the broad, nearly unlimited powers possessed by a monarch); is wrong in claiming Bush is asserting powers outside the Constitution because he “isn’t arguing that he is above the law” -- has X read, one might hyperbolically ask if she even knows about, the Bybee/Yoo memos for the Executive that said the President can do whatever he wants as Commander-In-Chief -- but instead is merely “making an aggressive argument about the scope of his power under the law” -- I repeat, has X read the memos? does she even know about them?, does she know that torture and unbounded wiretapping are illegal?; and the judge supposedly has violated the precepts of judicial decisionmaking by placing a judge’s view (on constitutionality) over the President’s view. (Although she mentioned the case, does Professor X in fact think, underneath it all, that Marbury v. Madison no longer counts so that, as Nixon felt, if the President says it, it’s lawful?)
Wow! Quite a rant against Judge Diggs by Professor X. What can be said about the rant? Well, in two words, it’s bullshit.
Now, I’m not going to say that Judge Diggs’ opinion is any different from those of conservative judges in the sense of reaching results preordained by a judge’s views, reaching results opposite to those that a judge of opposite political views would have reached. Liberal and conservative judges alike have been doing this at least since Marbury v. Madison in 1803. But apart from this, X’s diatribe is only the politically motivated screechings of a mind said to favor Bush’s war in Iraq. In this regard, one is surprised that X failed to screech against the fact that Judge Diggs, unlike conservative federal judges like T.S. the third, who have relied on the state secrets doctrine to throw cases out of court, refused to do so when enough already is publicly known and admitted so that there can be no doubt that the program objected to in court is in fact in place.
When one reads Judge Diggs opinion (of 42 ½ typed pages -- you’d never suspect this length from reading X’s claim of cursoriness), one sees that she extensively discusses prior cases and their meaning for the present one, and does so on a whole variety of issues (including technical ones that X implicitly claims she does not even discuss), discusses what lawyers call legislative history and discusses legislative background, discusses applicable statutes, extensively discusses constitutional law including long quotations from Justices Powell, White, Black, Douglas and Jackson (specifically including parts of what she calls Jackson’s “historic” concurring opinion in the Youngstown Street & Tube case -- the very opinion, and in fact some of the very same parts of that opinion, that John Roberts relied on in his testimony before Congress when nominated to be Chief Justice, discusses the Congressional authorization of military action that the Administration relies on, discusses recent Supreme Court work relating to that authorization, and even – though you’d never, never know this from reading X’s screed -- rules in favor of the government with regard to data mining. To read -- even to glance -- at Digg’s opinion is to know that X’s screed is nothing but politically motivated crap.
One gathers from the screed, however, that one objection it raised to Diggs’ opinion is that, allegedly, sections of it are too “short” to be worthwhile. They don’t measure up to a professorial, and often “judicial,” standard of interminable length, interminable length that is supposedly prerequisite for accuracy but in reality is merely a recipe for endless dull verbiage of little consequence. Well, one might paraphrase an old saying to X by recasting it thusly, “Ars longa, veritas brevis.” That would not be exactly apropos, at least not if one believes art is truth. But it gets across the point. Truth, like vita (life) (Ars longa, vita brevis), can be brief. It doesn’t require interminability. Of course, as Professor X’s diatribe shows, falsehood too can be brief.
I have to address one last point. It would be unfair not to. On Wednesday the 23rd, the same day that X’s column appeared, the Times also carried an article saying that Judge Diggs had a possible conflict of interest because she is the secretary and a trustee of a group that since 1999 had made four grants to the ACLU, which represented plaintiffs, for work on education about the Bill of Rights, racial profiling and gay rights. The grants were for $20,000, $60,000, $20,000 and $25,000. Experts and others who commented for the article generally held that there was in fact no conflict of interest or at least no obvious one, because the grants were not related to the subject matter of Bush’s electronic surveillance and/or because judges often serve on boards of non-profit groups that may come before them in court, but that it would nonetheless have been much better for Diggs to have disclosed the matter up front.
I do not personally have a firm opinion on the conflict matter, but I do know hypocrisy when I see it. Scalia goes on a hunting trip with Cheney when Cheney has a major case in front of him. Roberts and Boyle and no doubt others sit on important cases and decide for the Executive when the Executive is discussing with them the possibility of appointment to a higher court or has nominated and supported them for it in the face of strong opposition. Judges, including very prominent ones, write articles on political subjects that may come before them in court. Historically, judges advise Lyndon Johnson on the Viet Nam war, or maintain close friendships with him, while deciding against challenges to his war. All this, yet Judge Diggs is being accused of a conflict?
The accusation against Diggs of a conflict is sheer political hypocrisy, and will remain sheer political hypocrisy, until the whole system is cleaned up, until the whole system, which is rife with conflicts that judges refuse to admit are conflicts, is cleaned up. Should the whole system be cleaned up? You bet. Will it be cleaned up? Not a chance.
Thus as matters stand now, accusations of conflict against Diggs are sheer, and mere, hypocrisy from those who are politically desperate to have Bush’s electronic spying upheld. (And, by the way, will it be upheld by appellate judges of very different political views than Diggs? I would say the chances are heavy. For appellate judges, of a completely different political stripe than Diggs, will likely use their own falsely neutral sounding legalistic language, and legalistic complexities, to reach a preordained result different from hers.)(