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Monday, May 31, 2004
TalkLeft: Questioning Fingerprint Evidence

TalkLeft has comments on the FBI fingerprint fiasco. FBI "experts" claimed the connection between a partial print and Oregon lawyer Brandon Mayfield "absolutely incontrovertible" and a "bingo match," only to be proven wrong. The post includes a link to TalkLeft's archive of comments on fingerprints.


Sunday, May 30, 2004
2004 ACS Convention

Registration for the June 18-20 American Constitution Society Convention closes June 11. Last year's convention was a sellout, so if you are interested in attending this star-studded event, move fast.

Saturday, May 29, 2004
Court Rules on Aided Suicide

According to the Washington Post, the U.S. Court of Appeals for the 9th Circuit has ruled that John Ashcroft's 2001 attempt to interfere with Oregon's death with dignity initiative is illegal. This is a welcome blow for federalism. Here's a PDF copy of the decision.

"Strict Construction"--What It Really Means

There has been an enormous amount of hot air about the true meaning of "strict construction" of the Constitution, but economist Brad DeLong has discovered that you don't need to grasp sophisticated legal principles to understand what it really means.

Delong quotes from a remarkable memo from William Rehnquist, who explained it rather bluntly:
A judge who is a "strict constructionist" in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs—the latter two groups having been the principal beneficiaries of the Supreme Court's "broad constructionist" reading of the Constitution.
If anyone should know, it would be Rehnquist, who wrote the memo in 1969 when he was helping Nixon select judicial nominees.

Thursday, May 20, 2004
A Picture from Tennessee v. Lane


From the morning of the arguments in Tennessee v. Lane. The demonstrators were supporting the Lane side (as did the USSC this week). The picture was taken while I flyered for the ACS panel discussion on the case held the same evening (see transcripts and video from a panel on this case at the ACS Website).

Monday, May 17, 2004
Importance of Words: An ACS member's editorial

From Selena Davis, University of Washington ACS Vice President:

ACS-UW member John Schroder (1L) was named to the Seattle Times' 2004-05 NEXT Editorial Board, a group of 18-25 year old folks who individually produce editorials on whatever topics tickle their fancies. His first editorial was printed in the Seattle Times


The editorial examines word choice in the press, particularly around insurgents/resistance fighters in Iraq.

Thursday, May 13, 2004
ACS Convention

The roster of exceptional speakers for the ACS Convention continues to grow. Here are the most recent additions:
Judith Areen, Sheryll Cashin, Marsha Echols, Robert Gordon, Robert Howse, Vicki Jackson, Alan Jenkins, Judge Nathaniel Jones, Wendy Kaminer, Harold Koh, Robert Post, Judge Robert Pratt, and Paul Stephan, as well as conservative advocates Adam Charnes, Judge Michael Chertoff, Roger Clegg, and Jay Sekulow.
The ACS web site has more. Those who register by May 21 will receive preferential treatment.

Moving Ideas Network--Great Idea

From The American Prospect comes a great new resource, the Moving Ideas Network:
MIN is dedicated to explaining and popularizing complex policy ideas to a broader audience. Our goal is to improve collaboration and dialogue between policy and grassroots organizations, and to promote their work to journalists and legislators.

Moving Ideas posts the best ideas and resources from leading progressive research and advocacy institutions, as well as promotes high-quality websites and publishes original content. We hope to strengthen democratic participation by providing a more inclusive and intelligible debate about the issues that shape our world.
This is an excellent new resource that deserves wide exposure. Thanks to Bob Ambrogi's LawSites for the link.

The Perils of Arrogance

Jack Balkin is in full condemnation mode--and he could not have selected a more deserving target:
The Administration, and particularly Defense Secretary Rumsfeld, have been cavalier about American obligations under international law, including the Geneva Convention. International law and transparency, we are told, are unnecessary because, unlike all of the other countries in the world, we are Americans, and we naturally believe in human rights and the rule of law. We need no special incentives to be good. But if history teaches us anything, it is that when governments, no matter how well they think of themselves, decide to free themselves from constraints, they become unconstrained, and when they refuse to make themselves accountable, they abuse their power. The only thing that has been lacking until now has been the proof of what everyone should already have known: that unchecked power leads to hubris, hubris leads to corruption, and corruption leads to violations of human rights.
More at Balkinization.

Sunday, May 09, 2004
Military Lawyers Stand Up for Decency

From a story in today's Washington Post, it looks like there are still some thoughtful and decent people working at the Pentagon. In the legal field, it looks like most of them are from the career military lawyer ranks, rather than their political counterparts. According to one well-placed Post source:
"[T]he political people were inclined toward aggressive techniques." Military lawyers, in contrast, were more conservative in their approach, mindful of how they would want U.S. military personnel held as prisoners to be treated by foreign powers, the official said.
Thank God we have at least some decent people left at the Pentagon who take a long range view of the country's best interests.

Thursday, May 06, 2004
Door Open for Claim of Same Sex Parental Rights

A Washington State appellate court has ruled that the non-biological parent in a same-sex relationship may ask for parental rights based on common law. The decision overturned a lower court decision that interpreted Washington State law as excluding non-biological parents. The appellate court agreed with the interpretation but found a common law theory of "de facto or psychological parent." The couple had been together for 12 years and the non-biological parent had been the primary care giver for the first six years of the child's life. In addition the court found that gay parents may ask for 3rd party visitation rights under a law that also helps grandparents and others. Much of the work was done in coordination with the Northwest Women's Law Center as part of an initiative to expand and diversify the idea of family.


Monday, May 03, 2004
The Strange Case of the Disappearing Women's Issues

Rebecca Traister has a nice expose in Salon about the odd version of reality that appears on web sites operated by the Bush Administration. They seem quite eager, in fact much too eager, to change the subject. Thanks to Tapped for the link.

Sunday, May 02, 2004
The Iraqi Torture Mess

Ex-MP Phil Carter, who knows a thing or two about the law of war, points out that the Iraq torture fiasco is not just something that offends those of tender sensibilities, but will have serious adverse effects on national security:
We go into Iraq to stop, among other things, human rights abuses that were being directed by the Hussein regime. Many of those abuses took place at Abu Ghraib prison, the same building at the center of this report. Iraqi guards regularly beat, humiliated, and tortured their detainees, and they reveled in their cruelty. Now, we have American soldiers doing many of the same things, allegedly at the direction of American intelligence officers who wanted these MPs to set the conditions for productive interrogation sessions. I can't condemn this conduct enough, and yet, I feel that condemning this conduct isn't enough. This is truly reprehensible stuff.

What's worse is that other American soldiers may suffer for the brutal excesses of these MPs, interrogators, and OGA ('other government agency' = CIA) employees. Reciprocity is a very real thing where the laws of wars are concerned, and we should be very concerned about retaliation against any Americans captured by Iraqi insurgents in the future. Similarly, reprisals are very real problem in war; they're often fueled by anger over mistreatment of one side's own troops. When American troops learned of the German massacre at Malmedy during the Battle of the Bulge, historical accounts said they went on a killing spree -- double-tapping every German in their sights, and giving no quarter even the Germans sought it. Other historical accounts reflect this trend. I think we can expect this news to reach every quarter of the Arab world, from the hideouts of the Iraqi insurgency to the Arab street. And when it does, I think we can expect it to fire up our adversaries in a huge way. This event will do significant, lasting damage to American credibility in the eyes of the Arab world. If a lot of Arabs were on the fence about American foreign policy, they won't be after they see this report. (If you think for one minute I'm exaggerating, imagine the American response if we'd seen our POWs treated this way and had these pictures broadcast on Al-Jazeera.) [Emphasis added]
Reality Checker, another Army vet, has more. Law of war violations are not merely a bad idea in some do-gooder's abstract ethical sense. As in this case, they can cause significant long-range harm to our national security. To put it bluntly, these actions make it more likely that innocent Americans will suffer and die over the coming months and years.

It would be bad enough if these were merely the actions of some low-level renegade soldiers. Unfortunately, it looks like the truth is a lot worse. This morning the Washington Post reports that the soldiers doing the torturing were not mere low level renegades, as President Bush tried to hint recently, but were acting at the behest of higher ups in the CIA and military intelligence. Sy Hersh indicates in The New Yorker that the existence of the abuses was known at high levels of the Army for months.

Watching Justice

Keep your eye on this one: Watching Justice is a great new web site dedicated to monitoring the U.S. Department of Justice. Good job!

Saturday, May 01, 2004
Sunstein On Possible Appropriations Law Breach

Salon.com: features Professor Cass R. Sunstein's article asking whether the covert expenditure of $700 million to prepare the war in Iraq violated the U.S. Constitution.