LAW

that was a long visit with the in-laws

2009-04-17T11:26:00.000-07:00

OK, that was a long visit with the in-laws. It went well, as such things are measured, but it was long (just in case I failed to mention that) and drained all of our energy. During the last week I started working on a couple of ideas for posting here but kept getting pulled away by family obligations, and helping out with campaigns for the local election we're having tomorrow, and with work. Lots and lots of work. All of a sudden I got insanely busy with two different clients. Thursday and Friday I ended up spending all day at one of their sites, and learned how out of shape I am for being in an office all day.One tends to forget how much energy goes into being presentable in an office environment. Here at home, no matter how busy I get, I still only need to look and act professional enough to suit the cat, and then the kids when they come home. I don't have to (1) wear decent (and therefore uncomfortable) clothing, (2) refrain from closing my eyes other than blinking for 8 to 10 hours, (3) smile and nod at acquaintances and perfect strangers alike ALL DAY LONG, face frozen into a mask of vapid congeniality, (4) keep away from the comics and off the internet (ever notice how offices these days are almost universally laid out in such a way that no matter where the computer is, the screen can be seen from the doorway?), or (5) talk about traffic, weather, or Michael Jackson. I did all of these things last week and was exhausted at the end of it. Not that I'm complaining--I was happy for the work, and it was my favorite client. It's just that the region of my brain that controls office demeanor has obviously atrophied. Not sure what other skills I've lost without noticing, but I was grateful to learn that I can still sit in a three-hour meeting and convincingly pretend that oh yes, I understand exactly what you're talking about, oh absolutely, we can take care of that with no trouble at all (sweat!).We are also back on track with the foster child placement I've discussed here, so that added to last week's excitement. Details to follow, but we are now into a transition plan that should culminate in a 6-year-old boy moving in during the last week of April. Lots to do between now and then, but we feel experienced enough that we don't need to quietly freak out every couple of days. Plus Daughter is not very enthusiastic this time around, so we're trying not to make a huge deal of it. She has a long history of being great with kids younger than her, though, so we hope that she'll warm to the idea and to him as she gets to know him.As I said, several posts are in the works. Just don't ask when they'll get done. They always seem so brilliant, compelling, and perfectly balanced in my head. Then I start to write them out and they look like deflated balloons on the screen. Does that happen to, you know, real bloggers?Oh, well. For now, must get back to work.

EPIC Report: “REAL ID Implementation Review: Few Benefits, Staggering Costs”

2008-06-14T02:26:00.003-07:00

EPIC Report: “REAL ID Implementation Review: Few Benefits, Staggering Costs” (PDF; 450 KB)
Source: Electronic Privacy Information Center

Throughout its history, the United States has rejected the idea of a national identification system. Yet, the Department of Homeland Security continues to push forward a system of identification that has been widely opposed. The REAL ID Act mandates that State driver’s licenses and ID cards follow federal technical standards and verification procedures issued by Homeland Security. REAL ID also enables tracking, surveillance, and profiling of the American public.

May 11, 2008 was the statutory deadline for implementation of the REAL ID system, but not one State is in compliance with the federal law creating a national identification system. In fact, 19 States have passed resolutions or laws rejecting the national ID program. The Department of Homeland Security has faced so many obstacles that the agency now plans an implementation deadline of 2017 — nine years later than the 2008 statutory deadline.

Homeland Security claims that it is making strides in implementing the national ID program. Homeland Security Secretary Michael Chertoff encourages the use of the REAL ID system for a wide variety of purposes unrelated to the law that authorized the system. In an opinion column written by Secretary Chertoff after the publication of the final rule in January, he said, “embracing REAL ID” would mean it would be used to “cash a check, hire a baby sitter, board a plane or engage in countless other activities.” None of these uses for the REAL ID have a legal basis. Each one creates a new risk for Americans who are already confronting the staggering problem of identity theft.

Last year, EPIC submitted detailed comments to the DHS on the draft proposal for REAL ID. With the assistance of many experts, we attempted to address the enormous challenge in the project proposal. In the following report, EPIC details the many problems with the final plan to implement this vast national identification system. The REAL ID system remains filled with threats to privacy, security and civil liberties that have not been resolved.

New From the GAO

2008-06-14T02:26:00.002-07:00

New GAO Reports, Correspondence and Testimonies (PDFs)
Source: Government Accountability Office
15 May 2008
+ Reports
1. Nursing Homes: Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses
2. Workforce Development: Community Colleges and One-Stop Centers Collaborate to Meet 21st Century Workforce Needs
3. 2010 Census: Bureau Needs to Specify How It Will Assess Coverage Follow-up Techniques and When It Will Produce Coverage Measurement Results
4. Smithsonian Institution: Board of Regents Has Implemented Many Governance Reforms, but Ensuring Accountability and Oversight Will Require Ongoing Action
5. Credit and Debit Cards: Federal Entities Are Taking Actions to Limit Their Interchange Fees, but Additional Revenue Collection Cost Savings May Exist
6. Financial Audit: Congressional Award Foundation’s Fiscal Years 2007 and 2006 Financial Statements
7. DOD Business Systems Modernization: Progress in Establishing Corporate Management Controls Needs to Be Replicated Within Military Departments
–
+ Correspondence
1. Depot Maintenance: Issues and Options for Reporting on Military Depots
–
+ Testimonies
1. Defense Contracting: Progress Made in Implementing Defense Base Act Requirements, but Complete Information on Costs Is Lacking, by John K. Needham, director, acquisition and sourcing management issues, before the House Committee on Oversight and Government Reform
2. Information Management: Challenges in Implementing an Electronic Records Archive, by Linda D. Koontz, director, information management issues, before the Subcommittee on Federal Financial Management, Government Information, Federal Services, and International Security, Senate Committee on Homeland Security and Governmental Affairs
3. Congressional Review Act: Applicability to CMS Letter on State Children’s Health Insurance Program, by Dayna K. Shah, managing associate general counsel, before the Subcommittee on Health, House Committee on Energy and Commerce

Agricultural Productivity in the United States

2008-06-14T02:26:00.001-07:00

Agricultural Productivity in the United States
Source: U.S. Department of Agriculture, Economic Research Service

It is widely agreed that increased productivity is the main contributor to economic growth in U.S. agriculture. This data set provides estimates of productivity growth in the U.S. farm sector over the 1948-2004 period, and estimates of the growth and relative levels of productivity across the States for the period 1960-2004. Note that this data series has been revised with this release (see the complete documentation for details, or go to the data tables).

The level of farm output in 2004 was 167 percent above its level in 1948 for an average annual rate of growth of 1.74 percent. Input use actually declined in aggregate (labor has been departing the sector and land use has declined slightly, while capital influx has been modest), so the positive growth in farm sector output is wholly due to productivity growth. This contrasts with a 3.7-percent annual output increase in the private nonfarm sector, with productivity growth accounting for a little more than a third of the economic growth. But what exactly is productivity?

Single-factor measures of productivity, such as corn production per acre (yield or land productivity) or per hour of labor (labor productivity), have been used for many years because the underlying data are often easily available. While useful, such measures can also mislead. For example, yields could increase simply because farmers are adding more of other inputs, such as chemicals, labor, or machinery, to their land base. USDA produces measures of total factor productivity, taking account of the use of all inputs to the production process.

Tables in xls.

Secretary Kempthorne Announces Decision to Protect Polar Bears under Endangered Species Act

2008-06-14T02:26:00.000-07:00

Secretary Kempthorne Announces Decision to Protect Polar Bears under Endangered Species Act
Source: U.S. Department of the Interior

Secretary of the Interior Dirk Kempthorne today announced that he is accepting the recommendation of U.S. Fish and Wildlife Service Director Dale Hall to list the polar bear as a threatened species under the Endangered Species Act (ESA). The listing is based on the best available science, which shows that loss of sea ice threatens and will likely continue to threaten polar bear habitat. This loss of habitat puts polar bears at risk of becoming endangered in the foreseeable future, the standard established by the ESA for designating a threatened species.

In making the announcement, Kempthorne said, “I am also announcing that this listing decision will be accompanied by administrative guidance and a rule that defines the scope of impact my decision will have, in order to protect the polar bear while limiting the unintended harm to the society and economy of the United States.”

+ Final Rule (PDF; 2.7 MB)
+ Interim Final 4 (d) Rule (PDF; 409 KB)
+ Secretary Kempthorne’s Remarks
+ Sea Ice Images Sea Ice Images
+ U.S. - Canada MOU (PDF; 114 KB)
+ Guidance from USGS Director Mark Myers (PDF; 20 KB)
+ Guidance from U.S. Fish and Wildlife Service Director Dale Hall (PDF; 1.7 KB)
+ Fact Sheet (PDF; 89 KB)

Contractor To Be Court-Martialed in Iraq

2008-06-01T22:58:00.001-07:00

Via Scott Horton comes the news that the U.S. Marine Corps has charged an Iraqi-Canadian civilian contractor in Iraq with brandishing a knife and stabbing another contractor. The charges follow an important change to the Uniform Code of Military Justice in September 2006, which, in theory, extended the code's reach to include civilians and contractors on the battlefield. As Scott notes, there's still much we don't know here. But this case does represent a significant development in the application of U.S. law to contractors overseas, and I think there will be a lengthy court fight over whether the UCMJ can be applied to civilians in this manner.

And for Some the Future May Hold a Tap on the Shoulder

2008-06-01T20:53:00.001-07:00

Few pleasures are more intense than that of contemplating one's ideological opponents being punished for their errors, an activity that we law professors have so far been able to indulge only in our fantasies. But the times are changing, or seem to be. Witness Philippe Sands' almost palpable delight at the prospect of John Yoo and others in the Bush administration being picked up by the police when they are traveling in foreign countries and tried for international crimes in foreign courts: "And for some the future may hold a tap on the shoulder," he purrs. Jack Balkin agrees. Sands has also been involved in a popular play in London titled Called To Account, which features a trial (actually, a pretrial hearing) of former British Prime Minister Tony Blair to determine whether his participation in the invasion of Iraq amounted to a crime of aggression under international law.

I'm all in favor of letting people live out their fantasies, but we're lawyers here at Convictions, and even our fantasies must conform to the rule of law. The principle is that American lawyers should be called to account in foreign courts if their legal advice leads to violations of international law by the United States and (as is virtually always the case) domestic courts offer no remedy. And unless we are to live in a world in which only lawyers go to jail, and not the people who actually make the decisions based on the legal advice, foreign courts are going to have to try the relevant political decision-makers as well. They will be busy.

Nuremberg established the crime of aggression, which though not yet formally incorporated in an international instrument ratified by the United States is widely believed to be a part of customary international law, bolstered by the rules of the U.N. Charter, which permit the use of military force only in self-defense or with the authorization of the Security Council. It is on this premise that Sands' play considers the indictment of Blair—from which it would follow that there should be indictments of Bush and other high-level officials in Britain, the United States, and other countries that participated in the intervention. The invasion of Iraq was not authorized by the Security Council, and it was not an act of self-defense. The crime-of-aggression argument is really not bad—impractical (for both political and jurisdictional reasons), to be sure, but in our fantasies, and on the stage, impracticality is no barrier to action.

Which brings us to the Clinton administration, which in 1999 launched an invasion of Yugoslavia on behalf of Kosovo, its renegade province, now independent. The Clinton administration failed to secure the consent of the Security Council (or even the consent of Congress) but went ahead anyway. In May 1999, the Office of Legal Counsel gave its approval in an oral opinion later memorialized in a memo issued in December 2000. The memo fails to mention that international law prohibited the invasion, perhaps because OLC had exhausted itself trying to prove that Congress had agreed to the use of military force even though the bill to authorize it was voted down. Panting and winded, it had no energy left to address international law. John Yoo, are you listening? Do you see how the pros do it? Next time, refrain from mentioning the Convention Against Torture rather than trying to explain it away.

Should these Clinton lawyers also be "called to account" (along with Clinton himself, of course, and his senior staff, and the former decision-makers and legal advisers of all other NATO countries)? We don't know whether Clinton's lawyers failed to warn him of the relevant international legal prohibitions, or did so only orally, or in a secret memo. Perhaps they gave him good legal advice that he chose to ignore, and they silently resigned their positions in protest. An investigation should be launched so that the truth can be ascertained. Subpoenas issued, witnesses corralled, suspects named. We will also need to look for any legal advice, oral or written, pertaining to other Clinton-era actions that were dubious on international law grounds—the launching of missiles against Afghanistan and Sudan, bombing tactics in Yugoslavia, and the economic sanctions against Iraq, which caused many foreseeable deaths.

Alas, it's not going to happen. International justice has achieved such perfection only in the vivid hallucinations of international lawyers. You former OLC lawyers—next time you're vacationing in Europe, don't be alarmed if you feel a tap on your shoulder. It'll just be me: Boo!

More Yoo

2008-06-01T19:44:00.001-07:00

In a modest attempt to allow equal time, I note that Esquire magazine has posted what it calls the first interview with John Yoo since this week's release of the latest memo. You can find it here. Not that the interview sheds much light, but my favorite excerpt is when the interviewer presses Yoo on his decision to extract the pain-associated-with-organ-failure-or-death standard from an unrelated statute as a means of fleshing out the definition of the federal crime of torture.

Esquire: But at the same time, you as a human being writing that phrase -- this is not legal theory anymore. We're in the real world and its going to have a body count.

Yoo: This is unpleasant. Don't interpret what I'm saying as though I was happy to do this or eager, or I felt some satisfaction. Mainly because I had read what the British and the Israelis had gone through—they had their own struggle with this issue and they had their own judicial decisions—and I had read all kinds of articles and books about this issue. I mean, it's a difficult issue. You have to draw the line. What the government is doing is unpleasant. It's the use of violence. I don't disagree with that. But I also think that part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more—we could have written it in a much more palatable way, but it would have been vague.

Can't tell from this whether the greater unpleasantness for Yoo is in the topic or in the interview.

Is an Objective Appraisal of John Yoo's Work Possible?

2008-06-01T16:38:00.001-07:00

Let me begin by saying I have respect for John Yoo. Before 9/11, his presidential scholarship was uniformly thought to be of the highest academic standard. He is still greatly respected by his colleagues at Berkeley and elsewhere. In person, he is unfailingly polite and intellectually curious. It is wrong to lay at his door all of the hubris that has been exhibited by the present administration and that led to our seriously tragic and mistaken disregard of international agreement and our deeply costly occupation of Iraq without well-conceived purpose or strategy.

While there has been a feeding frenzy of criticism directed toward his recently released 2003 memorandum, and some of that criticism is deserved or understandable, some frankly is over-the-top, and insufficiently appreciative of the law and the facts as Professor Yoo confronted them.

Geneva Conventions

First, on the Geneva Conventions applicability to al Qaeda there was virtually no one in any part of the government, presidential appointment or career public servant, who thought this Convention applied to these unlawful combatants. Justice Stevens thought differently about Common Article 3 in Hamdan, but his interpretation was hardly accepted wisdom. That makes sense then and now. Individuals who observe no dignity of human life and who, contrary to every law of war, target civilian populations have been since the time of Bracton or before outside the protections of civil society. There was some discussion, nevertheless, of whether as a policy matter the Conventions should have been extended to al Qaeda and there was considerable disagreement about how the Conventions applied to the Afghanistan and the Taliban. Here there is reason to believe that the administration in not opting to apply the Convention committed error. But, of course, this is wonderfully clear hindsight. Functionally, the administration proclaimed itself to be extending equivalent humane treatment, and perhaps in the main, it did, but the photos of Abu Ghraib would leave an indelible refutation.

Better to Put It in Writing

There is reason to believe that Professor Yoo presented both sides of these difficult questions in his oral briefings to his superiors. It is unfortunate this more balanced appraisal was not memorialized. Recently, in Esquire, the Professor stated: "these were not easy questions. Whether it was a war or not, the question of whether Geneva Conventions applied to al Qaeda was a straightforward question, at least to me. The policy question is much more difficult, whether they should apply to them as a matter of policy." Professor Yoo here shows a keen appreciation for the fact that what is legally permitted is not necessarily what should be prudently done. He shows an extraordinary appreciation for not misleading his military clients, which is somewhat remarkable, given the later, more sweeping nature of the memorandum. Nevertheless, the Professor reports that he was concerned about the "balance" of the advice giving, asking "Is this going to degrade military discipline? Is it going to give us a bad image versus does it produce gains in security? Is it part of the message that terrorists are not going to be given the same status as people who follow the rules? It's a very difficult trade off. And then it's harder and harder because there's the question that if you don't give them full Geneva Convention protection, what are you going to give them? That's a hard question, too. I think the legal questions are much easier than those fine hard-grained policy issues. I think those are very hard questions. It's not my job to say what they should do."

Not His Job

The last point - that it was not OLC's job to set policy is very important to remember. One wonders if the decision-makers remembered this, or if OLC should have even more strenuously than usual given emphasis to this point that is virtually a uniform recital in OLC advice giving. It may be convenient for the fingers to be pointed at Professor Yoo, but it is not beyond reason to think that there was a fundamental confusion in the White House between what was "legal" and what was "right." To be sure, Professor Yoo cannot be fully excused here because it is OLC's job to both make that plain and also not to overstate what is "legal" as an advocate would, and unfortunately, the memos are not the ideal on either score.

If You Can Do Better, Why Didn't You?

Professor Yoo's work has been called "slapdash" by Professor Goldsmith. Professor Goldsmith has written an important book on his very short tenure in OLC (nine months). I have reviewed and complimented the book in part in the forthcoming issue of the Harvard Journal of Law & Public Policy, but in fairness, Professor Goldsmith did his nation a disservice by "dropping into" the OLC role for such a short period. He is an able lawyer, but allowing himself to use government service in this pivotal spot between two academic appointments added more than he may fully appreciate to the ill-considered advice going to the White House from DOJ generally. Professor Yoo was Jack Goldsmith's mentor and supporter, and it is hard for him to comment beyond saying that some of his criticism is "unfair." It is "because Goldsmith never issued an opinion of his own. He's certainly free to criticize. It goes back to unless you've actually made the hard decision yourself, then you don't really know how you think it through, what you would do. So he says "slapdash opinion," but we have no idea what he would have done, because he left."

Nobody Home

Professor Yoo relies also on the "normal" review process in the Department, but in truth, that did not exist both because of the abnormal times, the extraordinary turnover in the Office, and the strength of John's talent. To say that the Attorney General signed off is simply not to say a great deal since those selected for even that post in this administration were more likely "friends," or saw themselves as answerable to the White House rather than the keepers of the integrity of the executive and the law.

In his book, Professor Goldsmith dwells on the statute Professor Yoo borrowed by analogy to give meaning to the often vaguely worded provisions against torture. He does not say what source he would have used and why it was more analogous. The phraseology "organ failure or death," was at least specific, and had been written into law by Congress. Professor Yoo concedes that it is fair to criticize his legal analogy, but then, one has to supply something else to make things specific. Of course, once having chosen this phraseology, with all of its attendant harshness, it should have brought home to the Professor and those who he was advising that the United States was sailing into very troubled waters. It would likely be accused of besting the terrorists at their own awful game - of disregarding the sanctity of the human person. It is not at all clear this was grasped that what the government was proposing to do in interrogation practice was not just "unpleasant" as the Professor put it, but except in the most extraordinary of circumstances (ticking bombs about to take out millions), unthinkable and wrong.

Law Is Not Morality

When Esquire asks if he had "any moral qualms," of course he says yes, but reverts to the law, saying "again, just because the statute says -- that doesn't mean you have to do it. You're right, there's still the moral question -- after you've answered the legal question -- whether you should do it at all." John was relying on the usually narrow role of OLC to convey that or the balance of his memorandum, but having written in a style contrary to the usual OLC role, could that really be grasped? As it turned out, it was not.

The Totality of the Circumstances

The Fourth Amendment portions of the Yoo memorandum are likewise subject to misreading for similar reasons. Again, I think it fair to note that any memorandum written within a few weeks of the fall of the twin towers would naturally view the nation as under attack and at war. Soldiers on a foreign field of battle do not have Fourth Amendment limits on their operations. It was logical to think that was true for domestic military action aimed at enemies or belligerents within the United States as well. The passage of the AUMF was then, and is now, viewed as a legislative endorsement of making war on those who executed the attack against us as well as those who aided and abetted them. What is remarkable is that two years later in 2003 the same proposition seems to have become doctrine even as the context was different.

It is also possible to fault Professor Yoo for not writing more narrowly given what he likely knew was the anticipated audience. Statements like "Our office recently concluded that the Fourth Amendment had no application to domestic military operations," without qualification were certain to mislead non-lawyers receiving the document. In the legal context of foreign affairs which our founders painted with fine point brush in hazy gray to deliberately allow for the unforeseen, it is seldom prudent to spray paint in black and white.

The Professor relies upon Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity. This is plausible, but should also have been acknowledged to be scant precedent derived from considerably different facts. U.S.v Verdugo-Urquidez involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government. Obviously, there is nothing domestic about that.

To his credit, Professor Yoo did caution that his analysis "should not be confused with a theory that the Constitution somehow does not "apply" during wartime." But this again warranted greater explanation, since his point of reference is the civil war case of Ex parte Milligan, 1866), which had it been fully explained would have been a reminder that the Bill of Rights is fully applicable domestically in wartime to U.S. Citizens.

Of course, the Justice Department has since disavowed both memoranda, properly noting that "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

When the administration gave its legal reasons for the Terrorist Surveillance Program in January 2006, it gave a far more nuanced appraisal of the Fourth Amendment, focusing on special needs exceptions and the like.

What Have We Learned?

What is the importance, then, of the recently released 2003 memorandum? In part, it illustrates that the nation was in crisis in 2001, and the crisis mentality shaped the legal analysis being given. What is remarkable is that this attitude continued right through 2003. When facing what was perceived to be a profound threat of uncertain dimension with the fear of even more devastating attack, I am not prepared to say that -- in the 2001 memorandum that has yet to be released -- the legal statement and reasoning should have been more carefully given, but two years later, when the circumstances could have been more objectively assessed, the standard arguably should have been different.

Again, I am reasonably confident that thoughtful appraisers of executive branch lawyering like Professors Dawn Johnsen and Marty Lederman share my regret that the president never staffed OLC with individuals, who could have brought to bear a longer, more mature institutional memory that would have given him the full benefit of legal advice. It was important for a Deputy like John Yoo, with his strong conception of presidential power to be present, but it was also important to have a senior counsel heading OLC who was not in the president's usual orbit of hand-picked friends or advocates and who would have ensured that the Professor's advice was juxtaposed and tested by the diplomatic and practical thinking of the Legal Advisor at State and the General Counsels of the military branches. Of course, it would have been especially handy if there had been a steady hand in the front office capable of synthesizing the contradictory views of this complex area and withstanding the kind of internal political skepticism directed at the OLC lawyer in the room who raises a note of caution.

It seems unlikely that a lawyer attempting to preserve the objective, non-advocacy role of the OLC tradition would have concluded without qualification on the basis of little or no direct precedent that:

"Even if these statutes were [construed] to apply to persons acting at the direction of the President during the conduct of war, the Department of Justice could not enforce this law or any of the other crirninal statutes applicable to the special maritime and territorial jurisdiction against federal officials acting pursuant to the President's constitutional authority to direct a war. Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute w6uld be unconstitutional as applied in this context."

No doubt that is what the CIA wanted to hear, but given all the legal and policy imponderables that Professor Yoo has since acknowledged, that could not be said.

Stuck on Yoo

2008-06-01T08:36:00.001-07:00

Of all the passages in this latest memo worthy of dissection, I still can't get past the following:

Because of the secret nature of al Qaeda's operations, obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States. Interrogation of captured al Qaeda operatives could provide that information; indeed, in many cases interrogation may be the only method to obtain it. Memo, p.4 (emphasis added).

No citation to authority. No offer of any logical or factual support for the claim. No reference to administration policy documents, security analyses, military or intelligence risk assessments, or any particularly evident basis for the statements of any kind. Just Yoo.

Hard to say what bothers me most here. One possibility is just the painful internal contradiction. John Yoo (among others) has devoted so much time to trumpeting the importance of judicial deference to executive expertise. Too bad it turns out that the only "executive" expertise evident here is Yoo's own take on what might be effective in preventing future attacks. Can't particularly think of anything other than torturing captured detainees. So that must be the only way.

Maybe it's that the passage appears not in some foreign policy article or popular op-ed, in which citation to any supporting basis for such assertions wouldn't be expected—but rather in a legal memo, as part of a legal analysis of the president's powers as commander in chief—to which any first-year law firm associate would respond by just hitting the Alt-F8 macro demanding the author "state the basis" of the claim. Or maybe it's the entirely illusory nature of the proposition. We "may be" all about to explode. Or not. Just wanted to throw that out there as a possibility as the reader contemplates whether to buy into the otherwise, uh, unusual, legal analysis that follows.

Or maybe it's just how painfully ill-informed it sounds in the face of the actually voluminous body of pre- and post-9/11 security policy assessments (9/11 Commission Report included) listing the hundreds of ways other than custodial interrogation one might go about preventing the next attack. Or in the face of the recognition of the U.S. Intelligence Science Board that "knowledge of behavioral indicators that might assist in the detection of deception is very limited and provides little reliable information that could assist intelligence collection ... [with] current populations of interest." That is, it is entirely unclear based on present knowledge how to secure the revelation of accurate information from an individual.

At a minimum, there's no way this paragraph should do any legal work. Yet this paragraph is in no small part how Yoo gets around to defending the legality of torture. And it's part of how he gets around to saying torture should be up to the executive branch alone. So maybe what scares me most is that counterterrorism is indeed serious business—and I would really, really like to think someone other than John Yoo was minding the store.

Airlines — Traffic Continues to Slow - Falling Load Factors Hurt Profitability

2008-06-01T07:55:00.001-07:00

Traffic Continues to Slow - Falling Load Factors Hurt Profitability
Source: International Air Transport Association

The International Air Transport Association (IATA) released international traffic data for April.

Year-on-year international passenger demand grew by 3% in April. Capacity growth of 5% saw load factors fall to 75.4%. This is a 1.5% drop from the 76.9% recorded during the same period last year and the third consecutive monthly year-on-year decline. International cargo demand growth remained sluggish at 3.7%.

April figures contain several distortions. The impact of an early Easter holiday in 2008 will have reduced comparative year-on-year traffic growth by about 2% in April. At the same time the 10% transatlantic capacity increase with the commencement of the US-EU Open Skies is estimated to have boosted global traffic by about 1%. Adjusting for these distortions and leap year, underlying passenger traffic demand increased 4% in April and the three previous months.

+ Facts & Figures

Wal-Mart Does Right by the Shanks

2008-06-01T07:43:00.001-07:00

I want to briefly interrupt our torture memo coverage to laud Wal-Mart for finally coming to its senses in the matter of Deborah Shank. The case started back in 2000 when Ms. Shank, a Wal-Mart employee, was seriously injured in a minivan-vs.-18-wheeler traffic accident. Shank's family sued the trucking company and won. Wal-Mart then sued the Shanks under the legal theory of "subrogation" to recover the medical costs it paid. Wal-Mart won in court, and on appeal, and the Shanks' petition to the Supreme Court was denied. (And to add more tragedy to the story, the Shanks' son Jeremy was killed in Iraq in September 2006 while this matter was pending.)

As you might expect, the retailer's actions ignited a firestorm of media and public outrage. Wal-Mart defended its actions, saying "Wal-Mart's plan is bound by very specific rules. ... We wish it could be more flexible in Mrs. Shank's case since her circumstances are clearly extraordinary, but this is done out of fairness to all associates who contribute to, and benefit from, the plan." Wal-Mart's position prevailed in court. But in the end, Wal-Mart decided that the public relations costs of this suit were too much to bear. In announcing its decision to settle, Wal-Mart issued this contrite statement:

Occasionally others help us step back and look at a situation in a different way. This is one of those times. We have all been moved by Ms. Shank's extraordinary situation. Our current plan doesn't give us much flexibility, so we began reviewing the guidelines for the trust that pays medical costs for our associates and their family members.

We wanted to understand the ongoing impact of any potential changes to the trust, and ensure that any action we take is in the best interests of our associates and their family members who participate in and contribute to our plan. We have decided to modify our plan to allow us more discretion for individual cases, and are in the final stages of working out the details.

Wal-Mart will not seek any reimbursement for the money already spent on Ms. Shank's care, and we will work with the family to ensure the remaining amounts in the trust can be used for her ongoing care.

We are sorry for any additional stress this has put on the Shank family.

It's tragic that one of America's leading corporations needed such public outrage to teach it a lesson about good corporate citizenship. Just because it's legal doesn't mean it's right.

Tortured Memories—Of Yoo and Hillary—Legal Memoranda in the Shape of History

2008-06-01T07:16:00.001-07:00

If true, the allegations that Hillary Clinton as a young lawyer assisting the congressional Watergate investigation sought to hide files, and the precedents within them, in order to deny Richard Nixon legal counsel in the context of an anticipated impeachment inquiry are once quaint and deeply troubling. The story is quaint because it is reminiscent of the well-told tales of first law students hiding materials in inappropriate places in the law library during moot court competitions. Neither Hillary's alleged misdeed nor such law school chicanery is ethical, but neither would be modernly possible given the modern electronic nature of how we access materials today, be they books or files. So much for the quaint part.

Hillary's alleged efforts to deny legal counsel to Nixon also conflicts with the position then taken by one of the most notable liberal members of the House, Don Edwards of California. Edwards had a reputation for taking brave stands against the remnants of Joe McCarthy's House Un-American Activities Committee and the FBI abuses that ironically enough would give rise to the Keith case and FISA. Edwards did not see civil liberty with a partisan glint, and he was one of the strongest voices against those in the Democratic party—perhaps we are now learning misadvised by the then Hillary Rodham—advocating the denial of legal counsel to President Nixon in his prospective impeachment trial.

So the troubling part of this swirling story is not just that the revelation may confirm a longer and deeper pattern of prevarication beyond the Bosnian sniper story, but also that it suggests a calculated distortion of the law aimed at adversely affecting both individual right and democratic process. Tonight on the NewsHour, New York Times reporter Eric Lichtbau called the newly released John Yoo memorandum "shoddy." I think that an unfair characterization given the intelligence of Professor Yoo and an insufficiently nuanced characterization given the context of 2003 and the more careful analysis Marty Lederman is supplying on the topic on this site. It is a description that also fails to capture how ill-served the president and the executive branch have been by the unprecedented turnover and number of acting officials at the helm of the once venerable Office of Legal Counsel, which is intended not only to make tough calls that may be politically unpopular, but also to have the good sense to send back rough drafts of legal analysis or at least not circulate them for political acceptability. But however one pieces together the story of Messer's. Bybee, Yoo, Levin, Goldsmith, Bradbury (I know I must be leaving someone out) in the OLC, the claimed offense of Mrs. Clinton is not sloppy, but corrupt, work.

Given the cultural significance of Mrs. Clinton's run for the presidency, I hope the allegation proves false. It is healthier for the body politic for Mrs. Clinton to lose to Sen. Obama on the merits. If she is dispatched on character failing, it will stir up all the justified and unjustified animosities that her husband's impeachment ordeal generates in public discussion.

There is a different account of Hillary's service in the Annual Survey of American Law. There it was written, "In 1974, while she was serving on the Impeachment Inquiry staff of the Judiciary Committee working on the Watergate proceedings, Hillary Rodham was Sara Ehrman's houseguest for nine months." As Ehrman tells it, "She was brilliant, she was a star, she could have done anything in Washington."

It would be most unfortunate were "anything" now to have a much different meaning than what was intended by the Survey's laudatory profile—namely, in fact, she did anything she wanted, including putting herself above the law.

The Yoo/Chertoff/Ashcroft Memo?

2008-06-01T04:34:00.000-07:00

I've now completed reading the March 14th OLC opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the commander in chief can authorize pouring corrosive acid on a detainee—can authorize cutting out a tongue and poking out an eye —nothwithstanding a statute that would prohibit that very conduct?

I think what I'll do is to publish a series of numbered posts (this is No. 4—Numbers 1-3 are at Balkinization), each centering on a discrete topic or portion of the memo. My reactions must, of course, be tentative and preliminary: I have not yet had the time to research most of these questions or to give them the attention (some of them) might deserve. But I hope that by the end of the endeavor, we'll be able to see clearly just how radical and extraordinary this memo was.

Before I start in on the memo itself, however, I'll begin with a handful of posts about process and ramifications rather than the specific substantive issues raised.

Convictions Poetry Slam: Entry No. 2

2008-06-01T04:13:00.001-07:00

Kudos to Berkeley 2L Josh Keesan for rising to the challenge of nominating "law poetry" for the National Poetry Month-long Convictions Poetry Slam announced yesterday. Josh's entry fits neatly within Slam example No. 2, "poems about law or about law's effect on society." It's "Law Like Love," written by W.H. Auden, the poet who was born in England in 1907, became a U.S. citizen after serving in the Spanish Civil War, and died in Vienna in 1973.

The full poem, perhaps a wee bit long for a blog, can be read here (along with a great comment thereafter). Let me proffer a few choice stanzas:

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

....

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

....

Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.

Like love we don't know where or why,
Like love we can't compel or fly,
Like love we often weep,
Like love we seldom keep.

Great stuff, Josh; thanks. The erstwhile-student-of-Sherman-Act-remedies-in-me loves the "treble tongue" metaphor. Now: Who among my fellow Convicted is ready to take from Josh the Poetry Slam baton?

Barna Poll: Catholics, Evangelicals, Asians Least Likely to Divorce

2008-06-01T04:12:00.001-07:00

A Barna poll released March 31 finds:

"In addition to finding that four out of every five adults (78%) have been married at least once, the Barna study revealed that an even higher proportion of born again Christians (84%) tie the knot. That eclipses the proportion among people aligned with non-Christian faiths (74%) and among atheists and agnostics (65%). . .

The study showed that the percentage of adults who have been married and divorced varies from segment to segment. For instance, the groups with the most prolific experience of marriage ending in divorce are downscale adults (39%), Baby Boomers (38%), those aligned with a non-Christian faith (38%), African-Americans (36%), and people who consider themselves to be liberal on social and political matters (37%).
Among the population segments with the lowest likelihood of having been divorced subsequent to marriage are Catholics (28%), evangelicals (26%), upscale adults (22%), Asians (20%) and those who deem themselves to be conservative on social and political matters (28%).

Born again Christians who are not evangelical were indistinguishable from the national average on the matter of divorce: 33% have been married and divorced. The survey did not determine if the divorce occurred before or after the person had become born again. However, previous research by Barna has shown that less than two out of every ten people who accept Christ as their savior do so after their first marriage. . ."

JUST ROOMMATES: Boston Globe

2008-06-01T03:44:00.001-07:00

...Now, some colleges are crossing the final threshold, allowing men and women to share rooms. At the urging of student activists, more than 30 campuses across the country have adopted what colleges call gender-neutral rooming assignments, almost half of them within the past two years.

Once limited to such socially liberal bastions as Hampshire College, Wesleyan University, and Oberlin College, mixed-gender housing has edged into the mainstream, although only a small fraction of students have taken advantage of the new policies so far. Clark and Dartmouth universities introduced mixed-gender rooms last fall, and Brown and Brandeis announced plans last month to follow suit.

The University of Pennsylvania, Skidmore and Ithaca colleges, and Oregon State University also allow roommates of different genders. Students at New York, Harvard, and Stanford universities, among many others, are calling for gender-blind dormitory rooms.

"It's definitely a growing movement on campuses across the country," said Denise Darrigrand, dean of students at Clark, where about 30 students are living in mixed-gender rooms. "It's a new world, and gender has taken on all kinds of new definitions. It's about being more inclusive, and it's about keeping pace with the times." ...

Supporters hail the trend as a key advance for homosexual and transgender students that eliminates a gender divide they see as outdated, particularly for a generation that has grown up with many friends of the opposite sex. Traditional rooming policies, they say, infringe upon students' rights and perpetuate gender segregation. ...

Scores of colleges have established gender-neutral bathrooms and specific housing for gay, lesbian, and the small number of transgender students, and some already allow male and female undergraduates to live together in on-campus suites and apartments. Most maintain single-sex floors as an option for students, however, and for practical and moral reasons have been reluctant to allow male and female students to share a room.

But a range of students are pressing administrators to eliminate gender altogether as a factor in student housing. These include gay students who feel more comfortable living with the opposite sex and transgender students who don't identify as either sex.

It also includes straight students who want the option of choosing to live with members of the opposite sex as friends. Students say that although administrators and parents may perceive gender-blind housing as essentially sanctioning sex, the vast majority of mixed-gender roommates are platonic. Their living situations are about mutual compatibility, not romance, they say.

more

YOUR EGGS, MY UTERUS: SHARED MOTHERHOOD: The Globe and Mail

2008-06-01T03:02:00.001-07:00

When Melanie Parish and Mel Rutherford decided to have a baby together, both women wanted to have a biological connection to their child.

So, four years ago, they harvested Ms. Rutherford's eggs, inseminated them with a donor's sperm through in vitro fertilization and implanted the embryos into Ms. Parish's uterus. Today, Ms. Rutherford is the genetic mother and Ms. Parish is the gestational mother of twin three-year-old boys -- and they both feel equally "related" to their kids.

"For me, motherhood is about carrying the baby," says Ms. Parish, an executive coach living in Hamilton. "For her it is about being genetically connected."

It's a new shared-motherhood model that's increasingly being considered by same-sex couples, says Rachel Epstein, co-ordinator of the LGBT Parenting Network at the Sherbourne Health Centre in Toronto. ...

Though their daughter was born to Jen and their son to Kaye, genetically the kids are full siblings. For Jen, that's not so important. "Genetics for me is scientific," she says. "Our family is not based on genetics."

Kaye feels slightly differently. "I wanted them to have that connection," she says, "of feeling they're connected to each other and to us."

more

THE CURIOUS LIVES OF SURROGATES: Newsweek

2008-05-14T17:55:00.001-07:00

...In the course of reporting this story, we discovered that many of these women are military wives who have taken on surrogacy to supplement the family income, some while their husbands are serving overseas. Several agencies reported a significant increase in the number of wives of soldiers and naval personnel applying to be surrogates since the invasion of Iraq in 2003. At the high end, industry experts estimate there were about 1,000 surrogate births in the United States last year, while the Society for Assisted Reproductive Technology (SART)—the only organization that makes an effort to track surrogate births—counted about 260 in 2006, a 30 percent increase over three years. But the number is surely much higher than this—in just five of the agencies NEWSWEEK spoke to, there were 400 surrogate births in 2007. The numbers vary because at least 15 percent of clinics—and there are dozens of them across the United States—don't report numbers to SART. Private agreements made outside an agency aren't counted, and the figures do not factor in pregnancies in which one of the intended parents does not provide the egg—for example, where the baby will be raised by a gay male couple. Even though the cost to the intended parents, including medical and legal bills, runs from $40,000 to $120,000, the demand for qualified surrogates is well ahead of supply.

more

The Opium Brides of Afghanistan

2008-05-14T13:06:00.001-07:00

From "The Opium Brides of Afghanistan," Newsweek, March 29, 2008:

...Afghans disparagingly call them "loan brides"—daughters given in marriage by fathers who have no other way out of debt. The practice began with the dowry a bridegroom's family traditionally pays to the bride's father in tribal Pashtun society. These days the amount ranges from $3,000 or so in poorer places like Laghman and Nangarhar to $8,000 or more in Helmand, Afghanistan's No. 1 opium-growing province. For a desperate farmer, that bride price can be salvation—but at a cruel cost. Among the Pashtun, debt marriage puts a lasting stain on the honor of the bride and her family. It brings shame on the country, too. President Hamid Karzai recently told the nation: "I call on the people [not to] give their daughters for money; they shouldn't give them to old men, and they shouldn't give them in forced marriages."
All the same, local farmers say a man can get killed for failing to repay a loan. No one knows how many debt weddings take place in Afghanistan, where 93 percent of the world's heroin and other opiates originate. But Afghans say the number of loan brides keeps rising as poppy-eradication efforts push more farmers into default...

Domestic Partners Win Benefits in AZ

2008-05-14T12:11:00.001-07:00

From "Domestic Partners in Ariz. Win Benefits," AP, April 1, 2008:

PHOENIX (AP) — A panel in Arizona, where voters once turned down a constitutional ban on gay marriage, approved a plan Tuesday to provide taxpayer-subsidized health coverage for the domestic partners of state employees and retirees.
The Governor's Regulatory Review Council, which has the final say over many agencies' proposed rules, voted 4-0 to approve changes floated by the Department of Administration with support from Gov. Janet Napolitano, a Democrat. Some Republican legislators opposed the move.
Dependents of domestic partners also will qualify. Employees will be able to sign up for benefits as of Oct 1...

EU Court Ruling on Same-Sex Unions

2008-05-14T11:29:00.001-07:00

From "EU backs gay man's pension rights," BBC, April 1, 2008:

A gay man in Germany may be entitled to his dead partner's pension following a ruling by the highest court in the EU.
[The man's] partner died in 2005 but the pension fund refused him a widower's pension and the case was sent to the European Court of Justice (ECJ).
The court ruled that refusing a pension was direct discrimination if the partnership was comparable to marriage...
The court based its ruling on an EU directive which states that there should be no discrimination on the grounds of sexual orientation.
Although German law considers only heterosexual unions as marriage, the ruling makes it clear that any country in the EU that gives same-sex couples rights equivalent to marriage should treat the two as comparable...
[One of the man's lawyers] said the ruling would have significant repercussions for the UK and Scandinavia where same-sex partners had "mirror institutions" to marriage, rather than French-style civil contracts...
GAY MARRIAGES IN THE EU
Full marriage recognised: Spain, Netherlands, Belgium
Legal partnerships similar to marriage: Germany, Sweden, Denmark, UK, Czech
Republic, Slovenia, Hungary, Finland, Portugal
Civil contracts: France, Luxembourg
No provision: Austria, Baltic states, Cyprus, Greece, Malta, Romania,
Bulgaria, Italy, Ireland, Poland, Slovakia

Marriage Algorithm Creator Dead at 86

2008-05-14T11:10:00.000-07:00

From "David Gale, Who Created Marriage Algorithm, Is Dead at 86," NY Times, March 31, 2008:

...[Mathematician David Gale] was widely recognized for work on the so-called stable marriage algorithm, a concept he developed in the 1960s with the economist and mathematician Lloyd S. Shapley.
The problem begins with the assumption that equal numbers of men and women are in search of potential partners. Is it possible to pair the individuals in such a way that all achieve a satisfactory match? The solution developed by Dr. Shapley and Dr. Gale was to have each participant rank the members of the other sex in terms of desirability. The researchers then developed an algorithm that directed each participant to his or her next choice of partner, if rejected by the first or second choices.
The result was that everyone would be matched in a "stable" pairing, a term meant to suggest that no two members of the opposite sex would rather marry each other than the ultimate partner provided by the algorithm.
The findings were published in 1962 in The American Mathematical Monthly, and were soon recognized as having broad applications to other situations...

Ivy League Abstinence

2008-05-14T10:57:00.001-07:00

From "Students of Virginity," NY Times Magazine, March 30, 2008:

...The Ivy League's abstinence clubs began emerging several years ago about the same time as student sex blogs, sex columns and, at Harvard and Yale, student sex magazines…[T]he Princeton club [was] the first to form in the Ivy League in 2005...
[The Princeton club members so admired the logic of Catholic thinker Elizabeth Anscombe, the philosopher and student of Ludwig Wittgenstein, whose arguments] against premarital sex are as impressive as they are difficult to summarize, [that] they named their society after her...
[S]tudents at the Massachusetts Institute of Technology were the first to follow with another Anscombe Society...
The Harvard abstinence club came next, in 2006...[The founders] decided that their club would focus on the issue "most immediately relevant" to people on campus — premarital sexual abstinence — and would try to persuade people toward it with arguments less philosophical than scientific...

Does Gay Marriage Ban Invalidate Custody Agreement?

2008-05-14T07:20:00.000-07:00

In this Ohio case, (blogged earlier today by Imapp staff,)I am inclined to say no.

An Ohio woman says the state's ban on same-sex marriage is grounds for barring her ex-partner from sharing custody with her son....
The dispute over custody began in 2005 after the women ended their relationship.

After their son was born in 1996, both women parented him. In order to ensure that Leach had a protected legal relationship with the child, the two women signed a joint custody agreement. Such agreements were approved by the Ohio Supreme Court in 2001.

That same year an Ohio court approved the joint custody agreement stating they would share custody.

After Leach and Fairchild broke up, Fairchild sought to terminate the custody agreement, citing the 2004 state amendment limiting marriage to opposite-sex couples.

I don't particularly approve of same sex parenting. But that is not the issue here. These women entered into an agreement (which excluded the bio dad, of course, but never mind.) That explicit agreement sets this case apart from marriage. In a marriage, both members of the couple are assumed to be the parents. That presumption has been in place for centuries, precisely because it is a safe presumption for opposite sex couples. I think we would all be far better off if same sex couples handled their relationships through a series of contracts, rather than trying to rewrite the presumption of paternity into a generic "presumption of parentage."

In this case, the two women did exactly what I think they should have done, and what all same sex couples ought to do: they signed an explicit agreement regarding the upbringing of this child. One of them now wants to set that agreement aside, because of strains in their relationship. I don't think the court should help her renege.
Cross-posted at my personal blog.