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June 30, 2006

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Kimball Corson

Now, I am troubled. Having actually looked at the language of Common Article 3 of the Geneva Convention and also Bush’s Memo of Feb 7, 2002, I am not fully persuaded that Common Article 3 applies to our war on terror with al Queda, as the Supreme Court says or that Bush was wrong in his memo of that date. The memo stated that Article 3 did not apply to al Queda “because, among other reasons, the relevant conflicts are international in scope.” Article 3 clearly applies to Iraqi insurgents in Iraq, but Bush has not claimed otherwise.

The troubling and qualifying language of Common Article 3 is: “In the case of an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions . . .[humane treatment, etc.]” I do not believe our war on terror with al Queda is “an armed conflict,” at least as those words are customarily used. Indeed, al Queda does everything possible to keep it from being so outside of Iraq. Secondly, I am not persuaded that the conflict is “not of an international character, occurring in” one nation’s territory.” As much as I hate to say it, Bush may have gotten it legally right here and the Supreme Court, gotten it wrong. This undermines my charge of lawlessness above, at least in this specific instance. Why shouldn’t this analysis apply and control?

bcowan

There is a very serious incompatibility internal to the complex ideal predicate of the proposition that has the subject "The Guantanamo detentions." Among other factors in the predicate are "vindicate civilization by punishing its enemies" and "treat helpless persons with pointless cruelty" (according to a definition of cruelty that generates itself naturally by thinking of oneself in a detainee's place.)

Roach's argument seeks to reduce this incompatibility to a contrast that we can live with by re-defining the detainees as "scum," hoping, I guess, that he and we could thereby entertain the bright "vindication" vision more clearly, without that stubborn "cruelty" staining it.

But a cursory inspection of our country's preferred view of our history (particularly by conservatives) suggests that we are uncomfortable perceiving ourselves as cruel and domineering, whatever others may think of our actual behavior. (I concede that Messrs. Cheney and Rumsfeld may have overcome any such discomfort.)

I think the Court's slim majority may very well be anticipating "th' illiction returns." As Mr. Dooley has pointed out, it would not be the first time.

It also seems, by today's uncharacteristically compliant announcements, that the Bush Administration may not disagree completely with the majority's assessment that the electorate will not think official cruelty can be justified by claiming an ontological distinction between persons and prisoners of the state.

Kimball Corson

If bcowan has it right and he well might, we are back to the spirit of lawlessness but paying lip service to what the law should be for the sake of political expediency just before the elections so as not to appear so bad to the American public, especially the red staters. Sounds very Republican to me. Alas, wouldn't it be nice if the political process would give us a meaningfully choice broader than between idiots and rats. However, bcowen’s theory seems inconsistent with the nomination of William "sic the dogs on em" Haynes, instead of for an example Roberto Mora for the Fourth Circuit Court of Appeals, but it does stay within the rats vs idiots paradigm. Perhaps red staters don’t notice lower court appointments or in this instance think the dogs really were friendly and detainees overreacted at being bitten.

Kimball Corson

Did I just get censored by having my last comment here stricken where I was hyperbolically facetious and had my tongue well into my cheek or was there a technical malfunction somewhere along the line? My point was to show past repudiated thinking regarding the worth of blacks relative to whites is still with us now but in regard to Arabs instead of blacks. What is wrong with that?

UChicagoLaw

Sounds like a technical glitch. We haven't deleted any comments today at all, and in the last few months, the only comments we've deleted have been spam. If we'd had a problem with one of your comments, we'd have told you. Typepad has a note up saying that they had some technical problems on the 12th, and we'll check to see if anything happened, but it's a mystery otherwise.

Kimball Corson

That is very good to hear. So here something like what I posted again.

The idea that Arabs are less than fully human has precedent of sorts in our thinking when we consider our history regarding blacks. Remember the old the 3/5 rule in Clause 3, Section 2 of Article 1 of the US Constitution? So lets get it squarely out on the table and in full view and consider a working fraction for Arabs and its implications.

Roach would probably come in with a 1/5 ratio; that is, one American is worth five Arabs, whereas bcowen, in a fit of egalitarian empathy, would probably go 1 to 1. Military officers who refer to Arabs as “rag heads” or “sand niggers” probably come in even lower than the Roach putative position. All things considered, Americans – if secretly and anonymously polled –would probably on average go along with a solid 2/5 rule for Arabs or at least those in Iraq. Something close to the ratio for good household pets, I suspect.

Given these attitudes, it is no accident that General Tommy Franks and Secretary Rumsfeld firmly eschewed body counts for Arab civilian and combatant deaths in Iraq. While this policy should not be read to mean the military views the ratio as 1/infinity, it does clearly mean the American public does not get to learn what the acceptable relative kill ratios are. If Americans would buy into a 2/5 ratio, then if 2546 Americans have died in Iraq and we can accept that as the price of war, then Iraqi deaths of 6,365 to date should be acceptable too. But what if Iraqi deaths are much higher than that, as we clearly suspect they are? What if they are 150,000? Do we even care enough to adjust our prejudices and ratios or do we come to say that things are out of hand? Smart fellows, that Franks and Rumsfeld, to keep the numbers from us or not keep them at all. It hides the true total cost of the war, even in light of our prejudices.

We certainly have come a long way in our thinking since 1789 and where are our prejudices to go next, . . . to the Chinese or perhaps the North Koreans? Is there no end to this sludge?

bcowan

Kim (I take the liberty of a classmate to address you thus, as in olden times),

I do not for a moment think that the Bush Administration has changed its intrinsic character, which involves getting its favored policies pursued, irrespective of constraints posed by the current array of governmental processes.

The Administration apparently perceives these processes as being without importance, imposing "costs" that may be avoided. This might be seen as sensible, in a way, as their main policies are quite repellent to many. Better for them if they can just bang ahead.

But government processes often are at their best when they pose obstacles in the way of certain persons' desires to realize for everyone else their own peculiar notion of the Good. The idea is that if a scheme cannot find a way to recommend itself over other schemes in the market, it perishes before being implemented, which, incidentally, can save other kinds of costs.

The record of balanced-powers government actions is decidedly mixed, but, as they at least to some extent rely on persuasion, their actions are widely regarded as exemplifying the better method of choosing what to do, if only because the other methods are so terrible.

The administration's apparent general unwillingness to make a forthright case for its current policies in any current forum, other than their own secret councils, betrays a taste for force over persuasion that gives me the creeps.

The force/persuasion distinction comes into strong relief not only against the background of the "one percent" doctrine attributed to Mr. Cheney, but also in the determined conservative effort over decades to degrade political discourse in the country. In the latter connection I would cite the Tom Frank book about Kansas and some chilling remarks that I heard Richard Viguerie make, viva voce, on Terry Gross' show on NPR, to the effect that the conservative "direct mail" strategy is most effective at garnering response when it appeals to people's negative emotions, notably anger and fear. Could Goebbels have said it any clearer?

The underlying problem for Law as a social institution, as shown in Hamdan and other confrontations between the Administration and other branches, is that it presupposes nothing too radical is going on in the specific region of public concern that is ordinarily subject to the law in question. When events happen within that region whose characters fail radically to fit with the Laws theretofore expressing the lawful relations among events in that region the Law must change, and that can be a moment of, shall we say, Adventure.

This happens to some degree every day, since every case is to some degree unique. As Ed Levi puts it, the application of the category changes the category.

But when the misfit is too great, the prior settled law in that area must change in ways that sometimes offend the protocols that govern change in easier times. That is why, I think, that provision of the Convention to which you refer can be said either to have missed the Hamdan case or to have caught it notwithstanding a certain inadequacy of expression with regard to its potential reach.

This very attribute of Law as an institution, its immanent susceptibility to change, tends to makes it appear doubly weak: inadequate under empirical pressures, incoherent under rational pressures, or both, when faced with precipitate change.

My experience in practice tells me that when necessary, fact-finders and rule-makers open the gates and wander out to find norms they believe in, to aid their application of the law. The decisions that they make when they return to the corral are often somewhat strange, but that is only because they are not saying what they relied on.

Strangeness of this kind is very common in interesting times and consequences can be bad or good. I think, on these grounds, the Court got Hamdan right.

Kimball Corson


Barry, apropos of yours, mine and Geof Stone's comments and posts on this Blog (we all being from the class of 1971), it seems that, as of today, it may be said that the Court and Republicans in Congress have swung around to our way of thinking on the issues of (1) checks, balances and the distribution of power between the three branches of our federal government, (2) the need for independent review, approval and oversight for the NSA spying program and (3) the need for humane treatment of al Queda detainees --- all indeed to the point where the Administration itself, albeit with its arm twisted behind it back by Republicans in Congress and by the Court, has now expressly agreed to submit the NSA program to the FISA Court for a determination of its constitutionality, to keep Congress better informed, coordinate with it and accept its oversight responsibility and to stop torturing detainees and comply with Article 3 of the Geneva Convention. See the article in today's Times under the title “Congress and Court Try to Restore Balance” and my comment on it under Geof’s post entitled “Hamdan, NSA, and the New York Times.”

This is a quantum step forward. It now seems as though we three and others here have gone from daffy liberals to prescient and would be advisors to Congressional Republicans. Perhaps it is the “ilection” effect you identified earlier and if so then the indication is our views are thought to be saleable in Peoria and the red states, as well as the blue. That is certainly good news too, almost as good as the corrective changes that are now afoot. Also, these developments leave our outspoken and silent critics in an awkward position, because major conservative Republicans are adopting our positions. (They are ours because we had them first and the childhood rule of law applies, finders keepers, losers weepers.) It has been a great week, and as even Frederick or Roach would readily admit, where there are serious and true imbalances, they tend to be corrected within the process of government itself over time.

I am sure the Bush Administration has not, as you suggest, changed its stripes. However, I respond, it does not have to in order to be good, Republicans just have to make it act good and pay attention to that task for the relatively few days left that we have to endure Bush, Cheney, Rumsfeld and others. Then we get to see who next our political process serves up on us. It is an ongoing struggle, I suspect, but rarely have we encountered the likes of what we have in office now as a threat to the law and good order of the process.

On your theory of jurisprudence, we basically agree. I think it is the search for natural law or something akin to it that compels the introspective and internalized intellectual wandering around by courts that is almost never described by them but yields judicial results that too frequently don’t square with what has been developed within the judicial process as the facts and law. This accounts for the fissured or fragmented aspect of some decisions handed down, leaving lawyers to say, “Now where did that come from.” We have all been there. The trick, I think, is to get court initially thinking at least within your framework instead of that of opposing counsel, especially if you can present that framework so that its salient and best features come to be discovered by the judge himself so he views these discoveries as his own. That makes him reluctant to leave your framework because for him to do so he has to abandon his own creative or original thinking and nobody likes to do that, especially judges that live life third hand, unlike the clients and lawyers (first and second hand, respectively).

Hats off to Geof Stone for being at the front of the charge, and immodestly enough to us too, for having the gumption to follow and contribute at the edges here.

Kimball Corson

It should be noted that, in getting President Bush's "cooperation" in regard to the three matters above, Congressional Republicans stayed within the treatment confines regarding the President of Article 3 of the Geneva Convention, though not by much. Waterboarding was not used, nor were any dogs (Spot had died) and Bush was allowed to keep his clothes on too. But he quickly went beyond his name, rank and serial number when he saw how formidable and numerous his interrogators were and spilled the beans in a fit of cooperation and promises.

Kimball Corson

Now if Senate JUDICIARY Committee Chairman Arlen Specter (R-Pa) would just come to his senses on his truly silly bill, giving the President the proverbial “blank check” he wants on too much, before too many of his Republican and Democratic colleagues do it in, anticipating upcoming elections, we could really sit back a bit, have a beer and watch a game on TV.

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