Tuesday, April 24, 2007

>From: "Daniel White"
>Subject: Event at UT, and what it might mean
>Date: Mon, 16 Apr 2007 20:29:49 -0500
>Yesterday, and a bit the evening the day before, the UT School of Law
>had a conference on the Military Commissions Act. I saw a listing of
>it in the Austin Chronicle, and decided to make a day of it and go to
>it and see what was happening. They were providing free meals (3), so
>how could I go wrong?
>Tuesday the keynote speaker, Lt Cdr. Charles Swift, spoke about the
>history of Military Commissions and how the current ones fit into, or don't fit
>into, the past historical useages of them. Swift also made the argument,
>that many other speakers made later on in the panel discussions, that
>what the Bush administration is trying to do with its military
>commissions policies, and in general with its legal practices in the
>GWOT, is to cherry-pick the parts of the law that suit it and ignore
>the parts that don't. Swift argued that in front of the Supreme Court, with the Hamdan
>case, and the Court agreed. Salim Ahmed Hamdan was Osama Bin Laden's
>driver, and was imprisoned in Guantanamo, charged with aiding and
>abetting terrorism. Swift ran his case thru the Federal appelate
>circuit and finally to the Supreme Court. The Court further ruled that
>detainees in Guantanamo have habeas rights, and that the military
>commissions as then formulated violated both the Geneva Conventions and
>the UCMJ. Swift spoke well and movingly about how his efforts in
>Hamdan were just a part of his career professionalism as a JAG attorney, and reflected nothing much other
>than what any serious career legal professional would do. Lots of times
>when you learn something there is the puppy love phase of your
>attraction to what you just got or learned, and Swift's talking about
>the law, and how he worked in it for betterment of the law and the
>institution (the Navy) he worked for had still the ring of puppy love
>to it, idealistic puppy love towards the law and its ideals. I can't
>fault him for that--he's sharp and honest and upright and hardworking,
>which are the key human virtues. Nor can he be faulted for
>naiivity--in the Q & A I asked him about the prior history of military
>commissions in MacArthur's command, with the Yamashita and Homma
>trials, which were an abominable disgrace, a mar on the history of American jurisprudence, and were clearly kangaroo courts manipulated by
>MacArthur's command authority. I asked him if the real objective of the
>Bush administration wasn't implementing justice in this fashion in the
>GWOT, and that's why they picked military tribunals. Swift acknowledged
>the truth of my descriptions of the MacArthur trials, and in his answer
>showed that he had read deeply on these cases. He also pointed out
>that Yamashita's US military counsel was so embittered from the experience that
>he left the US for the rest of his life, something I didn't know. Swift
>went on to point out how good a job the Navy did on its military
>tribunals after the war in Guam, and told of an interesting case that
>required an immense amount of work before it could be successfully
>prosecuted, with the Japanese commander finally being clearly shown as
>guilty of heinous war crimes, and being sentenced to death for them.
>Swift is clearly aware of the abominations of the past, performed under
>the law's aegis, yet still believes in the law as a means of progress.
>Rare attitude that. Whichever law school hires him is doing well by
>its students, and society as well. I wish him luck.
>The next day had four panels concerning role of the courts, definining
>enemy combattants, military commissions, and interrogation practices.
>Most of the panels were quite good, although one in particular suffered
>from one panelists' excessive bloviating, which is a common enough
>problem with lawyers. The morning panels had perhaps twenty attendees
>maximum, many of whom were other panelists in the afternoon panels. In
>the final afternoon panel, UT students finally showed up in some
>numbers--25--and much to the panelists credit they made an effort to
>have them ask questions. There were no members of the press present
>for any of the panels or for any of the post-event discussions.
>Tex, I just am appalled by it. UT Law School put together a bunch of
>the most top-flight legal talent in this country, discussing openly and
>freely what has to be the biggest changes in law that has ever happened
>since the 14th amendment, and nobody shows up. Nobody much from
>outside the law school showed up--it is quite likely that I was the
>only non-lawyer and non-UT person at the morning panels. No newsmedia
>thought it worthwhile to show up and have these lawyers explain how the
>Bush administration is changing the face of centuries of English common law with its most
>questionable GWOT legal practices. I talked to the organizer of the event
>afterwards, and she confessed to stacking the audience with her parents
>and some friends, in order to increase the numbers. She wasn't
>entirely pleased with the attendance, but said that was about average
>for these days.
>So what is going on? Are Americans totally incurious? Is citizenship,
>in any real sense of being a participant to political events, completly dead?
>Dammit I think both statements are true, and it is worse that it is
>true amongst the future lawyers, future legislators and judges and
>politicians, who go to UT Law School. Talking with a DOJ attorney
>afterwards about this--my take is that there is an impending economic
>trainwreck, caused largely by our insane fiscal policies and the war,
>but there is another train on another set of tracks set to fly off, and
>that is the train of a working political society in this country.
>Don't know which is going to crash first, maybe they'll crash into each
>other, who knows. But I left this conference feeling most disturbed,
>not by so much what the panelists said, which was bad enough, but by
>the failure of them to meaningfully engage with society and politics at large. It bothers me greatly.
>Best Regards--
>Dan White

Wednesday, April 18, 2007

We Fight And Lose Wars In Which We Cannot, Dare Not, Use Our Major Advantages.

April 18, 2007

Re: We Fight And Lose Wars In Which We Cannot,
Dare Not, Use Our Major Advantages.

From: Dean Lawrence R. Velvel

For several years I have taken the position
That fundamentally America wins wars in only one situation.
It wins only when the war is all-out, full scale, full bore:
When, in the 20th Century, it was World War.
Those are the only wars that give full scope, you see,
To our advantages of population size, advanced, and always advancing technology.
Oh, yes, there is often the small Latin American adventure military
Where we (boasting of our power -- can you believe it?) invade and take
over a Grenada or Panama or Haiti.
There was even a quick and dirty war in 1990 against Iraq,
Then claimed to be a significant power -- what a crock! --
Which we won by size, speed and advanced technology
That caused the inept Iraq army to flee
While we continued destroying it on its road back,
As we had destroyed Germans at the Falaise Gap
(Though not enough of them),
Or as Israel had destroyed Egyptians in the desert in the Six Day War
When the Arabs had yet again wanted to create a Palestine safe only for the Moor.
So there have been what some could claim a crucial exception
To an idea that might otherwise find greater reception:
The idea that fundamentally,
And at least after the first ten years of the 20th Century,
America has found military success
Only when able to make full use of our abundance, our national largesse,
In population size and technology --
A phenomenon that in reality began in 1861
And enabled us to succeed by 1865 and then in World War I,
Not to mention World War II.
The converse, which the pols, media and
vox populi have never fully grasped in every dimension
Relates to non use of the full power in our possession:
We are courting defeat or at best a draw when we choose
To fight a war in which, for whatever reason, we cannot use
The full plentitude of our ability
To take actions leading to victory.
That, dear reader, is the precise block
Which led to unsatisfactory results in Korea, Viet Nam and now Iraq.

One has little doubt that the jingoes likely are right
Who said, and now again say, we could have won had we chosen to fight
With all the men and weapons at our command.
But to do so would for one reason or another have been crazy, would have been insanity
Because the stakes were too low, or the risks too high, despite the inanity
Given false voice by the likes of Johnson, Nixon or Bush,
Evil men who were in a rush to get us into wars we could not win,
And the same was true -- although he had more important reasons -- of the estimable

Has it occurred to you that it is very strange
That now we are desperately short of men when success (if possible)
would require enough troops to range
Across the length and breadth of Iraq,
In Baghdad and other cities to be on every block;
Strange that a nation that now has three hundred million people is exceedingly pressed,
That a nation which spends over $400 billion a year on the military is greatly stressed,
To put even 150,000 troops in-country?
And that to do even this we must accede to the horrid Bush-driven urge
To keep the same men and women there even longer or
for more tours of duty to accommodate Bush’s surge?
Is it not odd that a nation of 300 million cannot find the 750,000 probably needed even to
hope to achieve
American success in a war claimed so vital that Iraq we dare not leave?
In World War II our forces were at least ten million
In a country that then had only 14 percent, not 30 percent, of a billion.
Does it not strike you as having been equally strange
That in the Viet Nam War -- one of whose progenitor’s middle name was
Strange (Robert Strange McNamara, believe it or not) --
We could put in only about 550,000 men
Though our people were already 180 or 200 million or more even then,
And victory was claimed essential or we would again and again
Have to fight the Reds lest they in triumph go
From Viet Nam to Laos to the Philippines
to Japan to Hawaii to the streets of San Francisco?
(This argument, combined with departure’s falsely claimed death of credibility, led
To another five or six years of war and another fifty thousand American dead
(Not to mention millions more Viet Namese).)
And while I don’t know how many troops we put into the Korean War,
One thing’s for sure: it wasn’t enough to defeat the enemy’s horde,
But at best only enough to obtain a draw, a standoff,
Though we by then had more citizens than in World War II and
were told it was crucial to fight off
The Reds? Is this not all passing strange, surprisingly odd --
That victory is claimed vital, yet we do not flood
The zone (so to speak) with the much larger numbers needed for success,
But instead use just enough to insure a many-years-long, morale destroying mess
That, as in Nam and Iraq, last longer than World War Two?
Far longer than World War II?

These wars could be called our “savage wars of peace,”
To use Kipling’s classic phrase resonating across the years.
But unlike Victoria’s British we do not face natives armed with spears.
For us there can be no cavalry charge at Omdurman,
No slaughtering Dervishes who lack a gun,
No cynical recognition that we are better soldiers simply because we have
what “uncivilized” opponents haven’t,
The idea then expressed as we have Maxims and Fuzzy Wuzzy hasn’t --
Which is not possible in an era when every home can, and in our opponents’
lands do, have a Kalashnikov,
With which our troops’ heads, arms and legs to blow off;
Not to mention the ever present shell and roadside bomb
With which our opponents imitate, and mock, fool Bush’s “Bring it on.”
One gathers that since1990 our military, and certainly Dum Rumsfeld, thought
That now our wars would successfully be fought
By new means and weapons, all high tech in highest degree,
That would make a joke of opponents’ weaponry.
We have, after all, Predators, and many Drone
And Satellite cameras allowing persons on the ground to be shown,
And guided missiles with cameras that let us see
The missile as it goes right down an Arab chimney.
And even as far back as Nam we had sensors,
To detect enemy movement on jungle floors,
Which would let us call in the B52
Which at 30,000 feet -- out of range -- flew
And for a carpet bombed mile blew
Everything into smithereens,
Creating the most ghastly scenes.
But even with all our high and ever higher tech,
Our military plans were rendered a wreck
By enemies who used not a high tech reply,
But far more basic weapons to make Americans die.
Weapons not the same as, yet comparatively not so far from, Einstein’s statement of
nuclear supercession of even huge conventional bombs and large shells that level homes.
“I cannot tell you what weapons the next war will be fought with,” Einstein said,
“But the one after that will be fought with sticks and stones.”
The technologically primitive: the Kalashnikov, the roadside shell and the suicide bomber
Have caused all our fancy high tech plans to come acropper.

Yet it is nonetheless hard for our American-bred minds to wrap themselves around
The idea that victory would not have been, could not now be, found
If we were to use unlimited men plus technology --
That is, to do whatever it takes to obtain victory.
But doing whatever it takes is exactly the rub you see,
Because the risks are too high, the benefits too low, and
the determination of the enemy
Far too great. He fights for his country, or his religion or his revolution
Call him the North Vietnamese, the Muslim fundamentalist, or the North Korean --
With two of them helped by the Chinese and the Russians.
While to us the war is just one event among the many that are always going on,
Not important enough to create a nation in arms as we were in World War I,
And were again in World War II,
Or as the North Vietnamese later were too.
We, and our pols, are thinking about the economy or schooling or jobs or taxes
or cars or houses or generally how we shall continue trying
To fulfill the fool Bush’s injunction (for purposes of not upsetting us) that we continue
our normal buying.
To our opponents the war is everything,
To us it is a far smaller thing.
As well, the American people -- even the stupid reactionaries and hard liners --
Usually realize that the Johnsonian, Ruskian, Nixonian, Kissingerian, Bushian,
Rumsfeldian, Wolfowitzian, McCainesque baloney is lies:
That it is false for them to claim their war is the most vital event since Nazisim was put to
an end,
Most have recognized that the stakes are infinitely lower than those militaristic
fools contend:
Have realized that Communism would not take over the world
if we didn’t succeed in Korea or Viet Nam;
Have recognized that the fear eyed, wild eyed claims to the contrary are
just a militarized scam;
And realize today that fundamentalist Islam will not prevail north, south, east and west
If insurgents in Iraq we do not best;
Which is to say that we common people always realized,
And continue today to recognize,
That the stakes have never been as high as our leaders have
said, except for FDR’s anti-Nazi cry
Or Lincoln’s refusal to peacefully kiss the South goodbye.
And then too there has often been the risk that, as occurred to Europe in
the summer of ’14,
All-out action by us to win could create a situation beggaring the obscene.
In Korea the Chinese came in by the hundreds of thousands and,
though most Americans don’t know it, Russian pilots were piloting the Mig.
There was no telling just how big
The war could have become
Had we insisted on putting in more men until we won,
If we indeed did win. There was a fear that we might easily
Have triggered World War III.
And in Viet Nam had we put in a million or a million and a half men,
We would have risked World War III again.
Most Americans, being ignorant of history, have no idea
That the Chinese had 350,000 men or more doing things in North Viet Nam (although
they mainly did not have to fight as they did in Korea),
And that our air force was fighting Russian pilots (and also Chinese ones) again,
Not just the Russians built planes and SAMs.
Much more risk and danger -- which we caused -- arose than would otherwise
have been the case
When, and because, we brought what the Viets call The American War
to that distant place.

When you put it all together, this is what you see:
We get into wars in which we cannot fully use our great advantage of population size,
Or make truly telling use of technology like remote eyes;
Wars in which the low tech on which the enemy is reliant
Turns us into the evil Nixon’s dreaded “pitiful, helpless giant.”
Wars in which the risks are too great and/or the benefits too low.
You would think the pols would take it slow
Before committing us to such potential disaster --
But forget it, for any sensible person would say if you asked her
That the pols -- and their brainless mass media abettors --
Are just a bunch of stupid militarized fools
Who are, however, smart enough to use the rest of us as tools
To serially conduct the military adventure, the military operation,
On behalf of the oil companies, the Halliburtons and now the Blackwaters of this nation.
These fools are ignorant of and do not heed Lincoln’s Second Inaugural words
across decades resounding,
That at the beginning of war nobody expects results “so fundamental and astounding”
As those which occur in so many wars that we’re in,
Potential results which should but do not
make us hesitant those wars to begin.*

*This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu.

VelvelOnNationalAffairs is now available as a podcast. To subscribe please visit VelvelOnNationalAffairs.com, and click on the link on the top left corner of the page. The podcasts can also be found on iTunes or at www.lrvelvel.libsyn.com

Tuesday, April 17, 2007

Remarks On Torture And Secrecy By The Redoubtable Scott Horton.

April 17, 2007

Re: Remarks On Torture And Secrecy By The Redoubtable Scott Horton.

From: Dean Lawrence R. Velvel

Dear Colleagues:

The appended article is another fantastic piece by Scott Horton. It is comprised of remarks he made at the NYU Law School.

Thursday, April 12, 2007
Torture, Secrecy and the Bush Administration
Scott Horton
It’s a great honor for me to share the platform this morning with Dana Priest and Walter Pincus, two journalists who practice at the pinnacle of their craft. I am an avid reader of the Washington Post, which really is at the cutting edge of national security reporting. Now it occasionally happens that I see something in its news pages or an editorial that leaves me unhappy. But when that happens, I pause and remember that this is the paper that brings me Dana Priest and Walter Pincus, and I suddenly feel much more tolerant. Their contribution is profound: America would be less of a democracy without them.

Others here this morning will be expanding on specific issues concerning secrecy and the courts. I want to give a bit of pre-constitutional history, and share with you the story of John Lilburne, an Englishman born in the early 1600s because his story—the story of an agitator who directly challenged the English legal system—has a great deal to tell us about the issues we’re facing today. Lilburne’s story explains why these matters—torture and secrecy—were not issues to the Founding Fathers, and it helps us understand the true nature of a government which, like the current administration, thrives in that matrix of torture and secrecy.

So much of what has happened over the last six years seems a repetition of events drawn from English history, from the turbulent years from the Civil War to the Glorious Revolution - this could be said of the struggle over habeas corpus, which was right at the center of the conflict between Parliament and king, as seen in the Five Knights case of 1627 or the Shipmaster’s tax case of 1637. But the notion of secret legal proceedings, closed courts and the use of secret evidence also characterize that period of history. Before the English Civil War, court proceedings were frequently closed, and one of the principles of fair process introduced in the Commonwealth - it seems to have been an initiative of the solicitor general, John Cooke - was the notion that no court should conduct its hearings behind closed doors, and neither should any evidence be taken which could not be shared with the public and presented to the defendant and the jury.

The key case for this notion involved a man commonly called “Freeborn John,” or John Lilburne. He was a person of little formal education who became a firebrand pamphleteer among the Puritans in the years of the Civil War. He had republican sentiments, but more to the point he was a sharp critic of the king’s justice - writing constantly of the aspects which were, well, unjust. He was particularly outraged by the use of the king’s courts to persecute dissenters, as the Anglicans called them – though at the time this would be a changing blend of Puritans, Calvinists, Baptists and Quakers; not to mention the “terrorists” of the day, the Catholics. Lilburne had been convicted in the Star Chamber in 1638 on a charge of importation and dissemination of unregistered religious tracts. He wrote a compelling account of his treatment – he had been imprisoned for refusing to answer questions and then flogged, pilloried and gagged – but he also described the use of coercive interrogation techniques to extract a confession, the denial of rights of confrontation, the fact that his judges were all political figures placed there to do their king’s bidding – the Star Chamber, you see, was to Lilburne’s age what the Military Commission is to ours.

His account was an instant bestseller and provided much of the impetus for the abolition of the Star Chamber by the Long Parliament in 1641. As Uncle Tom’s Cabin was to abolition, Liburne’s book was to habeas corpus and the Star Chamber. Lilburne served with distinction as an officer during the Civil War, and afterwards his advocacy of Republican virtues caused Oliver Cromwell a bit of discomfort, and at length Cromwell decided to silence Lilburne by charging him with treason. The trial convened in October 1649, which is to say just months after the second Civil War had been successfully concluded for the Parliamentary forces.

This was in effect the second significant trial for the Commonwealth after the trial of King Charles himself in January. Lilburne was a popular figure in London and was well aware of that fact. When the court proceedings commenced behind closed doors in the Painted Chamber of Westminster, Lilburne opened his answer to the charges read in court with these famous words: “The first fundamental liberty of an Englishman is that all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place where the gates are shut and barred.” Lilburne was raising a direct challenge to the reputation of the Commonwealth courts – asking whether one of the most abusive of the practices of justice under the Stuart monarchs would be continued. The court fully understood this and directed that the doors be opened, in order that “all the world may know with what candour and justice the court does proceed against you.”

In the balance of that remarkable case, Lilburne established a number of other principles. The prisoner in the dock was to be treated with dignity and respect, not dragged before the court in manacles and an orange jumpsuit. There were to be no ex parte communications between the counsel and the court. He was to have a right to confront all evidence against him (that is, there could be no secret evidence), and the public also was to be allowed to hear it, to form its own opinion of the quality of justice dispensed by the court. He was guaranteed the right of counsel, and for the first time, counsel were permitted to participate in the presentation of evidence for the defense as well.

The fairness of the proceedings had its limit. The judge charged the jury that they must convict, saying “never was the like treason hatched in England.” But the vigor of Lilburne’s defense was impressive and the jury returned a verdict of acquittal. (To this day, some attribute the acquittal to Judge Keble’s refusal of the jurors’ request of a “butt of sack,” which is to say, a very large quantity of fortified wine, as a pre-deliberation refreshment).

The Lilburne case sums up the most significant of what may be called the “Commonwealth reforms” of criminal procedure – one of the few legacies of the revolution to survive the restoration of the monarchy.

Secrecy was what the Roundheads found most odious about the Stuart monarchs’ justice. Certainly unjust practices accompanied some of our Puritan forefathers to this country; we can’t forget the Salem witch trials, for instance. But so too, did a healthy contempt for the abuses practiced by the Stuart monarchs, starting with the notions of torture and secret courts with secret evidence. The contempt was reciprocal of course – they say that King Charles’ lip would curl at the very mention of the word “Massachusetts,” and seven of the ten members of the first graduating class of Harvard – the class of 1642 – returned to England to enlist in the Model Army and fight against the King. The practice of secret courts. The use of torture to secure confessions. The receipt of secret evidence. The exclusion of the public from proceedings. The offering of evidence in the form of summaries delivered to the judges, without the defendant being able to confront the evidence or conduct a cross-examination. These practices were the definition of tyrannical injustice to the Puritan fathers and the Founding Fathers. We thought them long banished, indeed, a hundred years and more before our own revolution. And now suddenly here they are again.

Secrecy has reemerged just as torture has made its comeback, being justified on the public stage, by government officials for the first time since the famous gathering at the Inns of Court in 1629 at which the judges declared “upon their and their nation’s honor” that torture was not permitted by the common law.

The two fit together, hand in glove: torture and secrecy. Torture and secrecy. Where one is used, the other is indispensable.

Torture is no longer a tool of statecraft. Today it is a tool of criminals, though sometimes of criminals purporting to conduct the affairs of state. Having resorted to these “dark arts,” to quote Dick Cheney, the torturers now have the dilemma faced so frequently by criminals. They seek to cover it up. And so the path flows from torture to secrecy, the twin dark stars of the tyrannical state.

If we look quickly at the proceedings that held the world’s attention down in Gitmo over the last two weeks, we see what the secrecy is all about.

When the Combat Status Review Tribunal process commenced, the Pentagon told us that the proceedings would not be open to the public. Instead, it said, a transcript would be offered up to the public a few days later, giving the Pentagon an opportunity to redact “classified national security” information from the transcripts. Pete Yost of the Associated Press gave me a ring just as this came out and asked: what do you suppose they think is going to require censoring? I said the answer is clear based on submissions the Department of Justice has made in four or five cases: they will take the position that any evidence of torture must be censored or expunged, because the testimony would disclose the specific torture techniques which have been applied, and that would divulge highly classified national security data. Why do you think the DVDs of the treatment of Jose Padilla, all two dozen copies, mysteriously disappeared? Why, as Colonel Couch recently told the Wall Street Journal’s Jess Bravin, did the recording devices inexplicably malfunction whenever torture incidents occurred? Yes. Why indeed. Of course, I was relying not only on what was said and done in Padilla, El-Masri, Arar and other cases, but also on Terry Gilliam’s movie, “Brazil,” in which all of this morally deviant thinking is taken to its logical conclusion. What the Bush Administration has created in Gitmo is “Brazil,” minus, of course, any pretense of humor.

Now we have the first two transcripts, and the results are exactly that. The torture is cut out. The case of al-Nashiri is particularly striking:

PRESIDENT (of the tribunal): Please describe the methods that were used.

DETAINEE: (CENSORED) What else do I want to say? (CENSORED) There were doing so many things. What else did they did? (CENSORED) After that another method of torture began. (CENSORED) They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And if I didn’t replay what I heard, he used to (CENSORED).

Now let’s consider – would there be any need to censor the allegations unless they are true? No. Indeed, the fact that they are censored should be taken as an admission. No meaningful effort is made to refute any of the detainee’s contentions. No records are spread out showing that he was not tortured. Why might that be?

And the second case for secrecy we see in the trial of David Hicks, which follows a pattern established with the John Walker Lindh case. It came to a plea bargain in the end, and a strong focus on silencing the witness. In particular, he was to be gagged as to everything that was done to him while he was in U.S. custody for a period of one year, which is to say, until the Australian elections are past. The plea bargain, it appears, was negotiated by Susan J. Crawford, a protégée of Vice President Cheney, and Cheney had only six weeks earlier visited Australian Prime Minister John Howard downunder. According to accounts of their meeting published at the time in the Australian press, at the top of Howard’s agenda was an urgent plea to bring the Hicks case to a speedy conclusion that would allow him to serve a brief sentence in Australia. Crawford delivered exactly what was requested.

There is a common theme to these cases. Secrecy is not invoked to protect military or legitimate state security confidences. It is invoked for nakedly political reasons, or darker and still more likely, to obscure crimes and avoid the creation of court records which would document them.

On April 27, 1961, John F. Kennedy gave a speech in the Waldorf-Astoria to the American Newspaper Association. “The very word ‘secrecy’ is repugnant in a free and open society;” Kennedy said “and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it. Even today, there is little value in opposing the threat of a closed society by imitating its arbitrary restrictions. Even today, there is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment. That I do not intend to permit to the extent that it is in my control.”

I believe that the moment - the day of “official censorship and concealment” - that Kennedy foresaw is drawing near, if it is not already upon us in America today. The moment has crept upon us by stealth, as a result of decisions taken at the highest level in government. These decisions have been made behind closed doors, with no public discussion – and indeed with a concerted effort to misdirect the public as to the gravity of the changes in policy which have been undertaken. They have led to a dramatic expansion of Government action without oversight, which is to say on the basis of a decision by the President unchecked by courts and Congress, and to a shrinkage of individual freedom.

We have a duty to posterity, and that is to bear witness to these events. We must document them carefully. We must act to avoid the destruction of valuable evidence – and recognize, as we have already seen, that it is in the character of those who commit crimes to destroy the evidence of their misdeeds. In this way we lay the path for the justice which will in good time be meted out to those who betrayed a nation’s trust. For I believe, like the Puritans, in the certainty that justice will triumph and that wrongdoers will be held to account, though I am not so foolish as to think that this will happen soon. Still, the time is coming, as John Milton wrote, that sun part the clouds which tyrants muster,

that good men may enjoy the freedom which they merit,
and the bad the curb which they need.

Remarks delivered at New York University School of Law's Conference on Government and Secrecy, April 12, 2006
Posted 3:40 PM by Scott Horton [link]

Tuesday, April 10, 2007

Reactionary Federal Appellate Judges, And What Can Be Done About Them.

April 9, 2007

Re: Reactionary Federal Appellate Judges,
And What Can Be Done About Them.

From: Dean Lawrence R. Velvel

Dear Colleagues:

In this poem I shall objections combine
To doctrines that those who imitate swine --
Who too often the federal bench populate --
Choose upon the American people to perpetrate,
And objections to the ones who choose to act swinish,
And who our freedoms thereby diminish
With rulings evil,
Not to say medieval;
And do so when opposite rulings one can say without cavil
Are at least equally justifiable,
At least equally permissible,
And would at least be equally doctrinal.
I also say, lest my purpose you misunderstand,
That I hold no brief for assaulters of our land,
Who used suicidal missiles called aeroplanes,
Causing towers to be engulfed, and then collapse, in flames.
My sympathies lie elsewhere entirely --
With citizens of what once was the land of the free,
Who are threatened by Bushyooian assaults on liberty,
An idea enunciated here years ago
When others were still happy to go with the flow
Of Cheneyesque evil not as known as today
When all know the dark side long has held sway,
When we know our government has lied, killed and tortured --
That it frolics, and eats apples, in Satan’s orchard.

Articles on a ruling by a federal appellate court,
Often (even usually) the name of the author do not report.
Nor the name of a judge who joined him or her,
Nor of any judge who may have been a dissenter.
The same is true on radio and TV.
Which all raises the question of why should this be?
The question can be the more strongly put forth
Because it is usually quite different with the U.S Supreme Court.
There the practice is usually to identify
Author, joiner, concurrer and dissenter
From liberals like Douglas to reactionaries like Willis Van Devanter,
Or, in more modern days, Breyer or Ginsberg on the one hand,
Or Scalia, Thomas or others from the right wing band.
So why is it so different in the courts of appeal,
Where you’d never know who’s a hero, who’s a heel?
Of the former there are a few, only a very few,
Of the latter many, thanks to Raygun and Georges one and two.

From the media one may receive this explanation
For why names of judges it does not mention:
A court of appeals is a unitary body,
So it matters not who speaks, or whether her logic is brilliant or shoddy,
Her words are not hers but of the court anent
(Unless, I guess, spoken in concurrence or dissent).
And this though the judges usually are but three
Of a court of seven or twelve or even twenty.
Need one say the idea is preposterous
And serves only to insure ignorance among us
Of who is liberal and who reactionary,
Of who uses life tenure to push views of the nineteenth century?
And, further, serves greatly to help prevent
An outcry that holds something must be done
About judges whose thinking stops at 1891
Or, if we’re lucky, to a time as near as 1931.
It also makes life easier for the media
Which need not carry in its head an encyclopedia
Or even turn to a legal wikipedia
To learn context and background of a judge’s other decisions,
Facts that would tell the public -- which would develop derision --
That a judge almost always sends one to the chair, or for lethal injection,
Or rarely gives workers or civil righters protection,
Or usually rules against the environment,
Or will never check the President.
And that somehow the same judges’ names seem to appear
On the same kinds of cases year after year
Though the judges for cases are chosen
By clerks who are the selectors
Through random means such as wheels or computers.
Or such anyway is the claim;
While lawyers who know the law’s spurious games --
Who know the client’s fate rides on supposedly random names --
Pray the right ones come out of the hat
Because so often vict’ry or defeat depends on that, and only that.
Yet the media’s ignorance and malfeasance does the great “good”
Of keeping liberals from realizing and complaining
That their views keep getting screwed over
By the same reactionary judges who operate under cover
Provided by the media malfeasance,
And therefore never vociferously insist
That something simply must be done about this,
As they might, likely would,
If the press told them what’s happening, as a competent press should.
(And let me also parenthetically tell
That what’s said here is true as well
Of federal trial courts.
There are trial judges who are greatly reactionary,
Who hate those who promote decency,
Who can always be expected to screw civil rights, the poor or dissenters
Who with anger and anguish become familiar;
Judges who as surely as one can say one, two, three
Are always on the wrong side of history.
Many is the time they too can act with confidence
That their names will be unknown due to media malfeasance
That will cause their names to rarely or never be mentioned in a piece,
So the public doesn’t learn or absorb
The names of those who continuously fleece
Them of their rights, of their liberty, and of decency.
On this trial judges cannot as much as appellate judges bank,
Because trial judges act alone while appellate judges act in a banc,
Yet on it the trial judges can often depend,
Knowing their reputations will escape the rend
They so richly deserve.)

Examples of judges whom I mean are legion;
Because we now are six years deep into Bushian season.
Those he appointed, plus those of his father,
And those from Raygun -- all would rather
Take the opportunity they have now been given
To reverse freedom in a society they think too riven
With it, than to extend assurances that we will be free
Or, where necessary, to do regulatorily
What is necessary for an environmentally livable society.
And in their actions they seem to parrot
The edicts of the 24 carat
Dumkopf who heads our country.
Perhaps the greatest example is the Court of Appeals in Washington,
The court from which so many reactionary Justices come,
Like Scalia, Thomas and now Roberts.
Not to mention the attempts to elevate Bork and pothead Doug Ginsberg
(As opposed to Clinton’s Ginsberg).
Today’s D.C. Court is an all 1890 cast
Of judges who live long in the past,
And whose ideas reflect reaction.

Thus, if you desire a decision from hell,
Just look to David Sentelle.
He so often seems to be there
When some form of scumbaggery pervades the air.
A protégé of Jesse Helms --
Jesse Helms for crying out loud --
He always leads the reactionary crowd
When there is dirty work to be done.
Here is one:
When the right wing felt an apparently fair Whitewater prosecutor
Was not attacking Clinton with sufficient vigor
(Though he was a Republican),
Judge Sentelle went to lunch with reactionaries Helms and Lough Faircloth,
(It should be Lauch Faircloth)
Who against Clinton would rail and was wroth
And then appointed Mad Dog Ken
To rabidly go after the man.
And if you want a vote against the EPA and for bad auto emissions,
Sentelle’s the man for your mission
(Though the recent opinion was just reversed 5 to 4 -- only 5 to 4 (Roberts dissenting).)
If we want to get rid of habeas corpus,
Sentelle is the man for us.
He seems to be everywhere that right wing mischief is found.
He often is in league with his pal Ray Randolph,
A reactionary protégé of America’s most famous reactionary lawyer,
For a freedom cutting opinion, Ray’s your designated sawyer.
In recent years he wrote an opinion against habeas -- his court’s first,
In which he was joined by Ethical John Roberts.
At the time the White House was being lobbied by Ethical John
For a Supreme Court appointment -- which he then won --
There was no chance that Ethical John would vote against the White House position --
His high Court lobbying would have been denied fruition.
The high Court later reversed, Ethical John abstaining,
So now Ray has written a second opinion maiming
The writ of habeas corpus,
Which the Constitution says but for invasion or rebellion shall not be suspended.
But Ray, jointed by Sentelle, says it can nonetheless be upended
Because our enemies are aliens, and Gitmo is not U.S. territory
Though we stole it from Cuba and have kept it for over a century.
And as for what is said by the Constitution,
Well, that can be ignored to serve the Bushyooian Revolution.
And Randolph, joined by Sentelle, is likely filled with hope
That now his position will win, because now Ethical John can vote.
Indeed the Supreme Court has already declined
To review the new opinion that Randolph signed,
With Ethical John being among those
Who of this problem thereby disposed,
At least for the time being,
Though in a future case he will doubtlessly agree
To vote as when lobbying his candidacy.

There are others too on the court in DC
Who promote views that are reactionary.
Senior status Larry Silberman is one of this bunch,
A liberal judge he once threatened to punch.
That is his judicial temperament.
North and Poindexter he voted to free
From a fair conviction for their indecency
In the Iran Contra affair, where
They decided to hell with Congress’ law and policy.
Well, what do you expect
From a guy instrumental in helping elect
Raygun to the presidency?
There is Steven Williams too,
An ex professor, now of the reliably reactionary crew,
As is Douglas Ginsberg of pot fame.
They both would not Microsoft contain
When that engine of poor software construction,
Used bad tactics for anticompetitive destruction
Of more than one competitor that was better.
Ginsberg has also been on the Board
Of a foundation of which you’ve never heard.
It exists to give federal judges a very fancy, all expense paid Montana resort vacation,
Where all they have to do is attend classes that give them education
In the right wing economic credo
Desired by foundation contributors like Texaco,
Exxon, Shell and Monsanto.
Called The Foundation For Research In Economics And The Environment,
It operates so that federal judges will be bent
To the right wing economic point of view
By trips that are not available, dear reader, to the likes of you.
And when newspapers and legislators to this grafting got wise,
The judges got all exercised
That anyone might think a judge might be influenced or bought
By rich, all expense paid trips to Montana intended to affect his thought --
To Montana, where he will play golf and tennis, will hunt, ride and hike,
With no duty but to absorb ideas right wingers like.
Of course, the powerhouses that finance this rightists ball
Obviously disagree with the judges that they won’t be influenced at all.
Else why would they tens and scores of thousands contribute?
Are they in the habit of simply discarding such loot
With no expected return --
Simply because (let’s face it) they have money to burn?
Why do I doubt it?
The DC Circuit’s judges are also big in the Federalist Society,
That right wing group that has achieved great notoriety
Because since it began (with support from Scalia) about 20 to 25 years ago
It has attracted even more right wingers who know
That in such a group there lies the power
Day by day, year by year, hour by hour
To take over, first, high government legal positions and then the judiciary,
A redoubt from which to batter decency and democracy.
And not just in DC, but all over the country.
Appeals judges, who are on the short list for the high Court regularly,
Are active in, or speak to, the Federalist Society.
For judicial advancement it is a key;
To ignore it is to risk a closed Sesame.
In DC there’s been Bork, Scalia, Randolph, Sentelle and Pot Ginsberg,
In the 4th Circuit J. Harvie Wilkinson the Third,
In the Third, Alito, in the Fifth Edith Jones,
In the Seventh Easterbrook, in the Ninth Kozinski and O’Scannlain.
Many -- all? -- nominees or short listees,
Who are joined in the federal judiciary
By many, many who are active in that Open Sesame
The right wing Federalist Society.

As you can tell, the DC Circuit is not the only one
Called into action when there’s right wing work to be done.
Also called is the Fourth, home of J. Harvie Wilkinson
And others who’ve invoked that towering battlement for Executive slime,
That Siegfried line of Executive crime,
The doctrine of state secrets,
Under which the Executive can kidnap you and torture you,
Can negligently or deliberately kill you,
But you have no recourse, your rights lack any salvation,
Because the Executive mouths an incantation:
“State secrets, We are protecting the nation.”
The doctrine was created out of whole cloth in 1953
When the Executive told the Supreme Court a falsity --
A statement about a plane crash now known to be a lie,
Which is not, of course, sufficient for this evil doctrine to die.
So courts keep invoking it to protect
Executive evil most abject.
Is it a mere fillip that this doctrine (being invented in’53) is not in the Constitution found
Yet is used to protect reactionary evil by judges who otherwise go around
Preaching that we must follow original intent?
And is it irony that the latest 4th Circuit opinion this anti-rule-of-law principle invoking
Was written by a judge fittingly named King?
(I couldn’t make this up.)

Let us turn to medical marijuana,
A substance that very sick people in deep pain wanna
Take to relieve their awful suffering
When nothing else will do so.
California says it’s okay.
The Feds say nay.
It’s the Feds’ version of “Let them eat cake.”
The battle came to the Ninth Circuit,
Which is reputed to be relatively liberal (the left coast and all that, you know).
But, in March, California suffered a blow
From three judges -- two from the Ninth Circuit
And one from the conservative eighth (who was “sitting by designation,” it is said)
Though the plaintiff is so afflicted she might think herself better off dead.
(She has “more than ten serious medical conditions, including
an inoperable brain tumor, a seizure disorder, life-
threatening weight loss, nausea, and several chronic pain disorders.” No
other treatment of 35 has worked, while
marijuana “has proven to be of great medical value” for her.)
Did the three federal judges have the humanity to find it in their hearts to grant relief
To a woman whose condition is beyond belief?
Of course not. (Are you nuts?) Instead they invoked abstract doctrine
To keep her in the pain she’s in.
That’s the federal judicial version of being humanitarian.
As for life, liberty and the pursuit of happiness in the Declaration,
Or the general welfare in the Preamble to the Constitution,
Well, the courts always ignored the Declaration and the Preamble.
They, and their inspirational words that generations have hailed
To the federal courts are nothing but phrases to be totally ignored, not “merely” curtailed.
And let me not neglect to tell you the names of the three judges who are oh so
They are Pregerson, Beam and Paez.
Paez is but one letter different from Baez,
But that letter separates worlds.

Is there anything that can be done to reverse
A situation for decency so perverse?
Well, let us first put into the discard
An idea almost certain not to retard
The current abysmal situation:
The mass media will rarely (if ever) indulge condemnation
Of reactionary judges and what they have done --
For this would cause tremulous men to fear their profit oriented corporation
Would lose bucks one way or another,
To fear that government, Wall Street and advertisers would their papers smother,
And that they themselves would be shown the door --
Would by security men be taken to the ground floor
And out the front door
The way it is done in this Wall Street ridden land.
Where bucks, not weal, always gets the upper hand.
And aside from the fears of the corporate minded jerk
Is the simple fact it would be too much work
For reporters to learn the context and history
Of given issues, and of specific members of the judiciary
With regard to them. It’s so much easier to sparingly report
The most recent decision from an appellate court --
You need not know or read what has come before
From a court or from a judge.
Reading this would be a drudge
Devoutly to be avoided,
The more so because the dollar hungry corporate toads,
Have many newsmen fired, so the remaining have much bigger loads.
What then about the internet, the web, the blogger?
They could be a great defogger,
Of the opaqueness judges now surrounding,
Of the ignorance of judges’ activities abounding.
There are, after all, lots of liberals --
Who in fear now call themselves progressives, as if a
change of name will remove the hate and blame that
reactionaries attach to them.
Some of these liberals are even lawyers or, perhaps better yet
because they might have more time, law professors.
Several liberals could each follow a judge, his precedents and its successors,
And tell us regularly what the judge has done and is doing,
So that we would know if he or she is acting decently
Or is just a sheep the conservative line lowing.
Like much on the net this could arise spontaneously
If people knew its importance and that it could be.
Or perhaps through organization one would later find it arose
Because a liberal person or group had been so disposed.
Whichever, it would be a patriotic service in service of human decency.
There is another thing, too, that could be done,
After some future election that liberals will have won -- hopefully in ’08.
That is to take a leaf from FDR,
Except to do it more honestly by far
Than he did it in 1937,
When he lied about why he was trying to pack the Court,
Which exposed him to devastating retort after devastating retort.
The Congress has power to determine
The number of judges there are shall be on every federal bench.
So it could quite honestly
Say it is providing for two or four or whatever needed number more
New judges on every court,
Who will of course be liberals nominated by a liberal President
Whose nominations Congress will support.
The new judges will specifically be intended to change the courts
From agents of reaction,
From being a towering, third branch reactionary bastion,
To a liberal or at least middle of the road institution
Freed of current indecent, even inhumane ideas in profusion;
So that decent Americans no longer need be
Worried that reactionary judges will stifle human decency,
Or, as by not curbing Bushyooian, Rumsfeldian, Cheneyesque torture, spying
and inhumanity,
Be a threat to freedom and morality in the land of the free.

To readers whom all this may cause to wonder,
My urging would be: Ponder. Ponder.*

* This posting represents the personal views of Lawrence R. Velvel. If you wish to comment on the post, on the general topic of the post, or on the comments of others, you can, if you wish, post your comment on my website, VelvelOnNationalAffairs.com. All comments, of course, represent the views of their writers, not the views of Lawrence R. Velvel or of the Massachusetts School of Law. If you wish your comment to remain private, you can email me at Velvel@mslaw.edu. \

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