Balkinization  

Wednesday, July 21, 2010

Shirley Sherrod, Dawn Johnson, ,and Lani Guinier

Sandy Levinson

I deeply fear that Barack Obama is replicating one of the worst aspects of Bill Clinton, which was a remarkable lack of loyalty to many of his friends and supporters (not to mention members of his cabinet to whom he lied through his teeth). The White House treatment of Shirley Sherrod was absolutely disgraceful, rushing to judgment and sacrificing Ms. Sherrod, who was publicly branded a racist by the Obama Administration--forget the fact that the ultra-right led the way, the Obama Administration is suppoed to reflect better values, including a commitment to due process before destroying people's careers--on the basis of grotesquely incomplete information. But, then, "disgraceful" also describes the Administration's treatment of Dawn Elizabeth Johnson, who would have been a terrific head of OLC and who was left twisting in the wind, on the basis of the right-wing fears that she was soft on torture (which was, for anyone following the controversy, far more important than the fact that she had worked for NARAL in the early '90s). The Administration never was willing to press for a full-scale Senate vote or, even more to the point, to give her a recess appointment. (Of course it's possible, though I almost hesitate to suggest this,that Rahm Emanuel was as appalled as the Republicans by the suggestions in some of Johnson's writings, that someone should actually be held accountable for the crimes of the Bush Administration. If there's one thing this Administration now seems to stand for, it is that accountability is "so 20th century.") And, of course, OLC still doesn't have an appointed- and confirmed-head. It has been ably lead, in the meantime, by David Barron, with the able assistance of Balkinization's own Marty Lederman, but rumors (I have not communicated with either Barron or Lederman about this) suggest that Lederman is returning to Georgetown and Barron to Harvard. This potential disorder at the OLC is a disgrace, and Barack Obama must bear the responsibility. [UPDATE: According to a 2:15 twitter from Charlie Savage, "It's official: Marty Lederman leaving OLC & returning to Georgetown law. W/ David Barron's return to Harvard = no more academics at OLC." This is good news for Georgetown and Harvard, but it's really terrible news for the rest of us, especially since one wonders if anyone of Johnson's, Lederman's, or Barron's stature will submit themsleves, in this completely poisonous atmosphere, to the circus of a Senate confirmation hearing with the knowledge that the Administration might well to do them (should they ever have expressed an opinion that runs counter to the conventional wisdom at Fox) what it did to Dawn Johnson.]

Carl Tobias, incidentally, has recently noted that Obama has yet to appoint anyone to fill the vanancies on the DC Circuit, the crucial circuit for anyone interested in administrative law, and, of course, this is part of a general pattern of what might be described as lassitude with regard to the judiciary. (Tobias has written a series of invaluable columns detailing this.) Obviously, the Administration, with justice, fears the mad-dog Republicans who now control the Senate, but one still might expect them to show some of the same kind of backbone that George W. Bush consistently demonstrated with regard to his nominations and nominees.

And this brings me back to one of the signal moments in the Clinton presidency, his stabbing his Lani Guinier in the back because of a vicious and totally unfair campaign against her on the editorial page of the mad-dog Wall Street Journal. I want to be clear about one thing: I don't necessarily hold it against Clinton that he withdrew the appointment. He could have made the political calculation that it wasn't worth it to fight for Prof. Guinier. But that would have led to a speech denouncing the sleazy and dishonest campaign against her and praising Prof. Guinier for putting country ahead of personal ambition and accepting, however reluctantly, his own decision that it would be best to find someone else to head the Civil Rights Division. Instead, Clinton said, in effect, that he had never read any of the work of his ostensible friend and nominee and was shocked to discover that the Wall Street Journal was basically right, that her ideas really were un-American. Anyone who knows her work knows as well that she consistently rejected simplistic race-based electoral districting in favor of far more imaginative proposals that would, in fact, serve to empower all sorts of minority groups (including, in the present context, the Tea Party). But Clinton wasn't interested in demonstrating any loyalty to Prof. Guinier; it was easier to sell her out.

At least it wasn't Obama who stabbed Ms. Sherrod; instead, it was Tom Vilsack, the able--and, based on the one occasion that I met him in Iowa, a very impressive man--Secretary of Agriculture who leapt to judgment. Did he really do it without checking with the White House? If he did, then perhaps it is he who should be fired, in order to demonstrate that such a total rush to judgment without waiting to find out the facts--convict first and ask questions later--isn't acceptable. But, of course, the worse thing about the Obama Administration for some of us who enthusiastically supported him in 2008 (and who, like myself, still believe that he is far better equipped to be a great president than anyone else now on the scene, including his former rival Hillary Clinton), is the extent to which it has replicated many of the stances of the Bush Administration with regard to conducting the "war on terror" (even if it is called by a different name).

Of course, one should be furious at Fox News for its "high tech lynching" of Shirley Sherrod. But, then, who is surprised when Fox gives aid and comfort to the worst in contemporary American politics. It's like hearing that a pit bull has bitten someone. But no one should let his/her anger stop with Fox. The Obama Administration should be viewing this as a wake-up call about its own behavior and about whether it has the backbone to merit the loyalty of its supporters in what will undoubtedly be one of the most vicious mid-term election seasons in American history, as a prelude to a similarly vicious 2012 election season.

Comments:

There were signs in 2008 that he would play it safe while having a hardball politics component among some good qualities, and time has proven the matter.

Charles Savage has reported those two are leaving. The legal side, including Dawn Johnson (horrible), is a shame. He has done some good things, and the naysayers won't change that, but there are reasons to be upset.

Some good has been done, but that along with the barriers he has to face that even made the Clinton years look good should not allow us to accept things of this nature. Listening to the whole video only makes it that much worse. She sounds like someone Obama would cite in a speech about racial unity.
 

Prof. Guinier's case has always struck me as preposterous because, whatever you made of the substance of her views, Pres. Clinton claimed to have studied the law review footnote(s) that so upset the Republicans while he was flying to Camp David by helicopter. Ever tried to read in a helicopter, much less read something in as fine print as a law review footnote? That was a shameful episode (as was Dawn Johnsen's, as is Shirley Sharrod's).
 

"the Obama Administration is supposed to reflect better values"

Please, don't elevate the naive fantasies of partisans to some kind of objective expectation. Obama is a Chicago machine politician, nobody with a lick of sense expected him to be more ethical than Clinton.
 

Does Brett even know what a machine politician is? The mind boggles...
 

I was attracted to this Blog several years ago in my semi-retirement because of the caliber of the Bloggers and especially their views on Brown v. Board of Education that decided in 1954, the year I was graduated from law school, passed the bar and started to practice law. The deliberate speed of school integration had the brakes on from the start with the opposition to Brown that finally lead to the Civil Rights/Voting Acts in the mid-1960s. But this was followed by Nixon's Southern Strategy in 1968, which still serves the Republican Party, despite the fact that Republicans dare not to openly and directly criticize Brown, including on constitutional originalist grounds. But the indirect attacks continue, especially with the election of African-American Barack Obama in 2008, some 54 years AFTER Brown was decided. Nixon's Republican Southern Strategy lives; just read the tea leaves (metaphorically) from Mark Williams' cup.

Eugene Robinson's WaPo OpEd today (7/22/10) "Obama needs to stand up to 'reverse racism ploy" nails it. There is no going back to the pre-Brown, pre-Civil Rights/Voting Acts days of segregation. And in addition to Brown, we now have both the Heller and McDonald Second Amendment decisions, with the latter relying to some extent upon the needs of former slaves to be able to protect themselves under the rights provided by the 14th Amendment.

Let's fault the Obama Administration for its hasty decision. But consider Ms. Sherrod's full speech, demonstrating patience. Martin Luther King, Jr. was patient. Pres. Obama is patient, but has his limits. It is the right wing yahoos who are impatient - but gutless to directly attack Brown - and without any ideas to clean up the mess they left on Obama's doorstep on 1/20/09. No, there's no going back - of the bus or otherwise. Our national security demands domestic tranquility.
 

I suggest that in any country:-

(i) the Justice system is usually at the bottom of the list of priorities when it comes to reform because reforms always cost money and do not often appear to produce any immediate political benefit; and

(ii) it is very hard to make progress on advancing human rights legislation in time of national emergency.

President Obama has had to cope with some pressing concerns on the economic front, not least the two major legislative battles over health care and financial regulation which can be expected to be of benefit to US Citizens when they come fully into force.

Still, as to (i) I suppose he could have done better on sorting out the DC Circuit and the OLC.

On (ii) one might have thought that a President whose father was Kenyan and who therefore must be taken to know about the terrible atrocities perpetrated in British East Africa (Kenya) during the suppression of the Mau Mau would quickly signal a commitment to human rights and then move swiftly to right some at least of the wrongs perpetrated by the Bush Administration, all the more so because he was a former teacher at a respectable law school.

I accept there is probably no electoral profit in what the GOP would probably portray as ”pandering to foreign terrorist fuzzy wuzzies” or more inflammatory terms to that effect, but it is nevertheless disappointing to see that there has been so little progress on some pressing human rights issues. In this context I refer to my comments on Professor Vladek’s post here.

Long-term, justice denied on this front is counterproductive in the struggle against terrorism, just as was the Bush/Blair ”Enterpirse of Iraq” in respect of which both the USA and the UK continue to reap what they have sown. See the assessment of the Director General of MI5 BBC Report here:

“MI5 did not "foresee the degree to which British citizens would become involved" in terrorist activity after 2004, she admitted. "What Iraq did was produce fresh impetus on people prepared to engage in terrorism," she said, adding that she could produce evidence to back this up. "The Iraq war heightened the extremist view that the West was trying to bring down Islam. We gave Bin Laden his jihad."

But thinking long term is probably not top of the agenda right now.
 

The lesson neoliberals like Clinton and Obama teach the right is that if it is tenacious enough, it will set the political agenda. Whether or not what the right says is accurate, whether or not it has popular or legislative support for what it stands for, it sets the agenda, because this so-called "left" is so spineless that mere bluster and rhetoric are enough to undo any person or position it might advance.

Time after time and on issue after issue, Obama chooses to surrender power to the right. This was true of health care reform (failure to even play the reconciliation game), surrender to prescription drug companies), financial reform (no derivative regulation and refusal to use to show the GOP for what it is), judicial appointments (many federal seats still unfilled; Kagan a good choice for a Dem minorty senate, a bad choice for right now), refusal to halt DADT investigations, unworkable state building in Afghanistan, and now allowing Glenn Beck to dictate what counts as racism.

People on the left have been sacrificing their time and money to elect neoliberals since Carter. It's high time we realize that choosing the "lesser of two evils" is a euphemism for submission to a radical right GOP agenda that Barry Goldwater and Richard Nixon could only have dreamed of.
 

THE LIBTARD MAINSTREAM MEDIA IS SLANDERING LEADING JOURNALIST ANDREW BREITBART, CLAIMING THAT HE DISHONESTLY AND MISLEADINGLY EDITED THE HATEFUL RANT DELIVERED BY SHIRLEY SHERROD TO A LOCAL NAACP BRANCH!!!!!!

HOWEVER,
AMERICAPHILE MINISTRIES HAS HEARD AND ANALYZED THE ENTIRE ADDRESS!!!!

THIS FULL RECORDING IN NO WAY ABSOLVES SHERROD, NOT IN THE LEAST!!!!

HERE, WE HEAR A GODLESS, RED MARXIST-LENINIST-STALIN-MAOIST SOCIALIST COMMUNIST LEFTIST TERRORIST REVOLUTIONARY TOTALITARIAN ANTI-AMERICAN CALL FOR CLASS WARFARE, PITTING “THE POOR” AGAINST THOSE WHO WORK HARD TO EARN THEIR KEEP WITH OUT LIBERAL GOVERNMENT HAND-OUTS!!!!

CLASS WARFARE!!!!!!

CLASS WARFARE!!!!!!

CLASS WARFARE!!!!!!

LEADING POLITICAL PHILOSOPHER RUSH LIMBAUGH HAS EXPOSED THE AGENDA OF THE NAACP!!!!!

The NAACP is about the advancement of leftist ideals, agenda, and its own racism, and they're out there trying to tar and feather the tea party as racist.

HYPOCRITES!!!!!

HYPOCRITES!!!!!

HYPOCRITES!!!!!

HATE!!!!!!! HATE!!!!!!! HATE!!!!

AMERICA-HATE, AMERICA’S-GREATEST-PRESIDENT-GEORGE-W-BUSH-HATE, ULSTER-HATE, ENGLISH-LANGUAGE-HATE, CHENEY-HATE, FLAG-HATE, TROOPS-HATE, SARAH-PALIN-HATE, JOE-THE-PLUMBER-HATE, DEBORAH-ANOINTING-HATE, ALASKA-HATE, VALUES-HATE, RUDY-GIULIANI-HATE, ROBERT-NOVAK-HATE, JOHN-HAGEE-HATE, MICHELLE-BACHMAN-HATE, RUMSFELD-HATE, CONDOLEEZZA-HATE, PATRIOT-ACT-HATE, MCCAIN-HATE, FREEDOM-AGENDA-HATE, GOP-HATE, FAIR-AND-BALANCED-REPORTING-HATE, FOX-NEWS-HATE, COULTER-HATE, GLENN-BECK-HATE, NELSON-MCCAUSLAND-HATE, BASEBALL-HATE, JOYCE-MEYER-MINISTRIES-HATE, RUSH-LIMBAUGH-HATE, ORLY-TAITZ-HATE, TED-NUGENT-HATE, MALKIN-HATE, PERSONAL-RESPONSIBILITY-HATE, LIBERTY-BELL-HATE, FAITH-HATE, JOHN-GIBSON-HATE, TEABAG-PARTY-HATE, HETEROSEXUAL-MARRIAGE-HATE, O’REILLY-HATE, HANNITY-HATE, HAL-LINDSAY-HATE, TRUTH-HATE, FACTS-HATE, FAMILY-VALUES-HATE, R.W.SCHAMBACH-HATE, ISRAEL-HATE, TROOPS-HATE, KJV-HATE, WILLIAM-KRISTOL-HATE, REFORMATION-HATE AND HUMANITY-HATE!!!!!!!!!!

THE LEFT ARE SO FILLED WITH HATE THAT THEY CAN'T EVEN THINK!!!!!

IT IS OBVIOUS THAT THE FEDERAL GOVERNMENT IS INFILTRATED BY HORDES OF PIAPS’ AGENTS WHO ARE GEARING UP TO ESTABLISH A ONE-WORLD SOCIALIST SAPPHIC DICTATORSHIP!!!!!!*

THANK YOU, ANDREW BREITBART AND FOX NEWS FOR YOUR CONSISTANT, TRUTHFUL, THOUGHTFUL, FAIR AND BALANCED REPORTING!!!!!

AMERICA---YEAH!!!!!

* WISE COUNSEL TO AMERICAPHILE READERS: WHILE WE ARE UNDOUBTEDLY ON A COLLISION COURSE TO THE COMING RAPTURE, THIS MINISTRY URGES SOBRIETY AND RESTRAINT, AND AGAINST MAXING OUT YOUR CREDIT CARDS….AT LEAST FOR NOW!!!!

HOWERVER, READERS ARE STRONGLY URGED TO SECURE AND FINALISE ALL ARRANGEMENTS AND PROVISIONS FOR YOUR BELOVED PETS IN THE POST-RAPTURE PERIOD!!!!

 

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I noticed that the rapture-ready reverend who posts above has a little photograph on his biopage:-

Ralph’s Profile

If one clicks to get a full size image one is taken to a link to another web site’s image directory - that of Watson’s Wildlife Art Gallery and on searching that site it turns out that this print featuring George W. Bush Jr with the ghosts of Washington and Lincoln is entitled “Praying for Peace” and the work of one Rob Di Cianni with the prints actually on sale for US$35 - see Patriotic Art .

If one then goes elsewhere:-

Christ Centered Mall – Di Cianni – Praying for Peace one finds that canvas versions are available – a snip at prices between US$164.50 and US$1,798.

Prospective purchasers, even poor dear Bart, might do well to heed the rapture-ready reverend’s advice:-

”This ministry advises sobriety and restraint and against maxing out your credit cards, at least for now”.
 

I think Ralph might be satire.
 

Bartbuster wrote:-

"I think Ralph might be satire."

Very possible - since there's no appeal for money which is atypical of a genuine site. But the sites commercialising prints and canvasses of G.W.Bush at prayer are real enough.

I wonder just how many GOP homes are graced with "patriotic art" of this kind.

I was used to finding idealised prints and tapestries depicting JFK on the walls of homes I visited in the Arab world - particularly in Algeria. Sad to say, thanks to your former president at prayer, many have since been replaced by portraiture of someone else.
 

Maybe the prints of Dumbya praying are also satire?
 

WTF, Marty??? I know you are reading this...
 

HOWERVER, READERS ARE STRONGLY URGED TO SECURE AND FINALISE ALL ARRANGEMENTS AND PROVISIONS FOR YOUR BELOVED PETS IN THE POST-RAPTURE PERIOD!!!!
# posted by Ralph : 11:01 AM


Seriously, that has got to be satire.
 

Bartbuster wrote:-

"Maybe the prints of Dumbya praying are also satire?"

Sadly, I fear not. See this site featuring
Mr Di Cianni's works
where one is taken to a gallery after this message:-

"Ron Di Cianni has allowed generations to see the message of God in a way that has not been experienced since the Renaissance...."

That encomium may well have been written just the teeniest bit tongue in cheek, but it is a sales web site after all.

The product could be a satire on the Victorian Pre-Raphaelite Holman Hunt but I have no way of knowing whether Mr Di Cianni was painting satirically or not.

I'm prepared to bet, however, that the prints sell quite well in certain quarters. Stuff in bad taste often does - be it art or political doctrine.
 

Bartbuster:

See this Bloomberg Business Week article:
Caring for Pets Left Behind by the Rapture
You might also care to look at this site:
You’ve Been Left Behind which promises the Rapture-Ready that e-mails can be forwarded to non-believing friends and relatives after they have been "taken" by the Rapture.

A surprising number of US evangelicals follow these ”dispensational“ beliefs developed by a potty Victorian Anglo-Irish cleric called John Darby Nelson.

The Bush Administration cottoned on to this and a holy (or unholy) alliance developed. See this 2002 article in the Dubya Report:-
Spinning Dispensationalism

Today, these people have become a captive GOP voting bloc – and the GOP is happy to have their votes, their money and the support of their church organisations.

See also this on Lew Rockwell:-
The Troubling Worldview of the 'Rapture-Ready' Christian.
 

I am truly amazed (and even more appalled) that "Ralph" has been allowed to hijack this thread. Why can't participants on this list exercise a modicum of self-discipline when reading something like "Ralph's" posting? Is that really so difficult?
 

It's terrible to hear that we're losing Marty at the OLC, and I suppose we won't likely hear all of the details for why he left. I hope that his departure is noticed and felt by the administration--I agree with Sandy that all of this movement should function as a wake-up call. Obama should have struck while the fire was hot in regards to torture and Gitmo, and whatever leverage he had during the last year will likely be gone after November.
 

It's the Ralphs and Barts of the world that convinced me how important it is to vote. I could never ignore them.
 

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Professor Levinson:

I am chastened that you should be amazed and/or appalled by Ralph’s post (satirical or not) and by the attention given to it. Not least by me. But there is a serious point which is not irrelevant to the issues you raised on lack of progress on the human rights issues arising out of the Bush Administration’s GWOT.

The White House, the State Department, the CIA and the DoD are only too well aware of the ongoing litigation in the UK and of the various judicial Inquiries into misconduct by our troops and our spooks. It has already been disclosed in our Courts that the US State Department threatened to pull the plug on US-UK intelligence sharing if our intelligence services were forced to disclose what they know about US misconduct. Why else did the UK government offer claimants a classified Inquiry with the prospect of compensation in exchange for a stay of some of the litigation – an offer the litigants have not thus far accepted and which the Court has so far refused to impose.

In the UK we are talking thus far about a few hundred claimants, but if the USA were to adopt our rule that the Crown has no sovereign immunity for the tortious acts of Crown servants and has vicarious liability for them – whatsoever the nationality of the prisoner or the geographical location of the prison, what sort of numbers of litigants would the USA be looking at? One can see why those who manage the Administration’s agenda do not want to go down the UK route.

But there is also a political/foreign policy dimension. The Administration is walking a tightrope in the Middle East and is perceived by some lobbyists already to be far too even-handed as between Israel and its neighbours. Any heightening of US observance of human rights has implications for US policy towards Israel - a "third rail" of US politics.

If one couples the influence Dispensationalists have on the GOP (and their Middle East views - see the Lew Rockwell piece cited above) with the influence of the Israel lobbies on both sides of the political aisle, one can perhaps understand why those managing the Administration’s agenda do not want to go there - even indirectly.

Therefore hands off the human rights implications of the Global War on Terror.
 

Perhaps it is time for the Obama administration to submit a two-for deal. Consult with the Republicans and agree to bring in two academics, one of whom would be acceptable to a GOP administration. [The basis for this idea was the Nixon administration's nomination of Democrat Lewis Powell and GOP Rehnquist] My suggested nominees would be Jack Goldsmith, who already served in that position under Dubya and .... Sandy Levinson.

;-)
 

Yes, Lewis Powell was a Democrat in VA politics, but he was quite conservative in his views, politically and otherwise. Nixon was in effect appointing not a Democrat but a conservative.
 

I agree with Shag. Anything suggested by Tricky Dicky and his henchmen ought to have been taken with very much more than a pinch of salt.

Today Powell is described by some as moderate but he was the swing vote to uphold Georgia’s sodomy laws and he wrote the majority opinion in McCleskey v. Kemp, 481 U.S. 279 (1987) upholding a Georgia death penalty conviction – both of which decisions he is reported to have regretted post retirement.

Perhaps he might be better described as an instinctive conservative – outraged by the excesses of the swinging sixties – who came too late to a rather a more liberal outlook on life.

More importantly, by the time of his confirmation, he had already written the infamous Powell Memorandum said to lie at the origin of the conscious decisions of the foundations of the far right to infiltrate the US education system (especially law schools) with a view to shifting ideology and power to the right.

See this article The Powell Memo and the Teaching Machines of Right-Wing Extremists.
 

The two for one deal was a plot line on "West Wing." The conservative opposed DOMA on federalist grounds. Must have been based on Judge Tauro.
 

Yes, I realize that Powell was a "conservative" Democrat. I would argue that for his time and place, he was really quite a progressive Democrat. This was, after all, the Byrd-dominated Virginia: "massive resistance" - Prince Edward County in Virginia - not far from Richmond - shut down its public schools until 1964. During that time, Powell helped keep the schools open in Richmond and worked with the NAACP to improve the schools. Also, as ABA president, he worked tirelessly in support of the effort to secure the support of the federal government for civil legal services for low-income persons.

I would submit that, in many ways, Jack Goldsmith could be seen as a mirror image of Powell. I have tremendous respect for how he tried to uphold justice, law and order during the Bush administration.

In any event, I fully concur with Prof. Levinson's essay and share his concern with what has happened to the OLC.
 

I would be pleased to see Jack Goldsmith return, in trumph, to the OLC. I do wonder, though, if he could be confirmed, given that he had the temerity to criticize the Bush Administration and, more particularly, the torture memo (which he in fact withdrew). Given that the modern Republican Party has become the party of torture, I wonder if they would view Goldsmith as anything other than a discredited apostate--i.e., just the sort of "Republican" the Obama Administration would choose, unlike, say, John Yoo.
 

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What a world. Let's nominate Jack Goldsmith to the OLC. It will be like it's 2003 all over again.

I read his book btw. Terror Presidency. I respect his service, and he was a honest civil servant and all that, but he still was and is a conservative. This includes supporting various dubious conservative policies, just not the reckless ones of some in the Bush Administration.

I don't want him the head of or in a lead position at the OLC unless some Republican President is doing the nominating.

Like Powell was a good nomination ... for President Nixon. No joke; seriously, he was a good pick in that context, particularly since Black was getting to be pretty conservative himself.

Kagan should please Republicans on that front. She is most probably not as liberal as Stevens, thus we don't have one consistent liberal of the Stevens or even Douglas/Brennan/Marshall mode on the Court. We have a bunch of moderates who are liberal on certain issues. And, often not at the same time.

That's to me a tad insane, but I'm outside of the mainstream, I guess.
 

PLEASE DON'T GET LEFT BEHIND TO SPEND THE REST OF YOUR LIVES... AND ALL OF ETERNITY... WITH PIAPS!!!!!
 

Whatever happened to Ralph - "To the moon!" - Cramden?
 

A. I really don't think there is any possibility that Pres. Obama will appoint Jack Goldsmith to head the OLC. Nor, for that matter, do I think that Goldsmith, a friend, would be at all interested in returning to Washington: He is, first and foremost, a serious (conservative) scholar who is most interested these days in the possibilities of cyberterrorism.

B. The real point of my brief comment was to suggest that the mad-dog Republicans would be quit unliely to unite behind Goldsmith, whom they view as a traitor for expressing doubts about the constitutional fidelity of the Bush Administration. To "us," he may be a conservative; to "them," he is an apostate. (Just imagine their reaction if Obama picked Bruce Fein, who served in the Reagan Administration, to head OLC.)
B.
 

Granted, Professor, but others would push for someone with comparable views, and for them, I stick to my comments.
 

Paul Krugman's NYTimes Blog post of 7/23/10 "Iraq Again" provides a link to FT dealing with the inquiry taking place in Britain looking into the Bush/Blair decision to invade Iraq and its consequences, presumably the subject of several of Mourad's comments on this thread. Krugman mentions the fact that there is very little media coverage in America on this inquiry. Krugman points to Karl Rove in the role of defending Bush and his invasion of Iraq in an apparent attempt to call for a return of the "good old days" of Bush/Cheney. But will voter memories be that short this November to forget what actually happened from 1/20/01 to 1/20/09 under Bush/Cheney? The "good old days" indeed.
 

Shag:-

There are quite a number of processes going on in the UK in relation to Iraq and other aspects of the GWOT:-

Firstly there is the The Iraq Inquiry.

This is a non-statutory inquiry into the Iraq War by a Committee of Privy Councillors who will prepare a report which will be published and debated in Parliament. It is hearing evidence both in public and in private. The web site has videos and transcripts of the public evidence.

One of the vexed issues is whether the Bush/Blair ”Enterprise of Iraq” was lawful. The legal adviser to the Inquiry is Dame Rosalyn Higgins DBE QC. There is an open call for submissions from international lawyers on this issue Request for Submissions for which the deadline in 15th September. Nice vacation task for interested law professors.

Then there is the The Baha Mousa Public Inquiry

This is a statutory inquiry chaired by a judge into misconduct by UK forces in Iraq and into a failed investigation and botched prosecution.

Then there is litigation.

There are two main strands (i) claims by detainees in British custody; (ii) claims by detainees in US or US masterminded custody where it is alleged that the UK by its officials is vicarious liable as an accessory to torture or inhuman and degrading treatment.

The first strand is relatively simple. The protections of the European Convention on Human Rights and the Torture Convention apply to all detainees in British custody – no matter where . Foreign and non-resident claimants have the same right to sue in our courts as do UK citizens. There is no sovereign immunity and the state is vicariously liable for the acts of its servants or agents. Apart from damages one of the Convention rights is to have a proper and independent inquiry. So far there about 200 known claims.

The second strand relates to detainees not in UK custody who were tortured or subjected to inhuman and degrading treatment at the instance of the USA – the gravamen being that the UK by its servants (the intelligence service) were complicit. There is both a criminal investigation and a civil claim. The rights to sue are identical to those set out above. This litigation is causing the US government such concern because there are apparently some 600,000 classified documents in UK hands potentially relevant to the issue of what the UK knew about the fate of the detainees. The US government wants these kept out of the UK court. But that is harder to achieve in the UK than in the USA. Therefore the UK government tried to buy off the litigation with the promise of a (secret) inquiry with the promise of compensation at the end and applied to the Court for a stay of proceedings pending such inquiry and report. The claimants have not thus far accepted and thus far the court has refused to impose a stay.
 

As a supplement to my post above, those with an interest in how thoroughly the investigation into British misconduct is proceeding could try reading the closing submissions of counsel in the Baha Mousa Inquiry which are published on the web site (only a few hundred pages).
 

Those concerned about the human rights issues raised by the "Enterprise of Iraq" may find this piece in the Independent of interest:-

Toxic legacy of US assult on Fallujah 'worse than Hiroshima'.

The article concerns transgenic mutations said to be the result of munitions used in the US assault on Fallujah in 2004.

"Suffer the little children...?

BTW there was also a BBC TV news report showing some dreadfully malformed kiddies. Not for the sensitive.
 

Mourad,

Thanks for the additional information. It seems clear that the actions you enumerate in the UK did not come about because of the conservatives coming into power (with liberal help) but because of a sense of British justice that Blair had misplaced while on Bush's leash. I'm not wrong about this, am I?

With no disrespect to the Committee of Privy Councillors efforts, apparently for the present here in America similar efforts seem to remain in the privy. As Paul Krugman pointed out in his OpEd yesterday in the NYTimes, the opposition here in America is attempting to revive Bush/Cheney.
 

Shag:-

Actually, the change has been progressive. I do not think that in the immediate post-war period our human rights record was all that different from that of the USA.

An important difference was that on the whole, action to remove barriers to equality and human rights was achieved through legislation rather than by litigation. Human rights groups campaigned to change the minds of the legislators rather than by resorting to the Courts.

In our Courts, thus far uninfected by the originalist death watch beetle, the judicial approach has been informed by the jurisprudence of other Courts in the Anglo-Norman tradition including the US Supreme Court:-

”A generous and purposive interpretation is to be given to constitutional provisions protecting human rights. The court has no licence to read its own predilections and moral values into the constitution, but it is required to consider the substance of the fundamental right at issue and ensure contemporary protection of that right in the light of evolving standards of decency that mark the progress of a maturing society (see Trop v Dulles, above, at 101).” [Reyes v. The Queen UKPC No 64 of 2001].

The recent step change was the enactment into domestic law of the European Convention on Human Rights which empowered our Courts to grant immediate remedies rather than having to take a rights issue all the way through the domestic courts and only at the end being able to go off to Strasbourg. Credit where credit is due. That was very largely a Blair government achievement.

But I do not think the government had sufficiently considered the human rights implications of the Bush/Blair ”Enterprise of Iraq”. There were people warning of the consequences, but I think Blair was so keen to run along behind Bush that these problems were brushed aside. Blair was never as good a lawyer as his former head of chambers or, for that matter, his wife.
 

One reads the posts about the OLC problems with dismay.

Our system is so very different. There is no similar UK office. The only political legal appointments are the law officers (Attorney-General and Solicitor-General) and they do not interfere either in the criminal justice system run by the Crown Prosecution Service under the Director of Public Prosecutions or the Government Legal Service under Her Majesty's Procurator General and Treasury Solicitor, a civil service post first established in 1661, whose incumbent is formally a corporation sole.

There are about 1,900 lawyers in the Government Legal Service. They serve successive governments on an apolitical basis as career civil servants.

Of course, there is also not the same tradition of academic involvement. One gets government departments seeking the advice of academics on particular subjects from time to time. But external advice tends to come by way of the Treasury Solicitor instructing counsel in private practice.

Could a way not be found of depoliticising the OLC? After all, a government needs advice on (i) what the law is and (ii) how it might be changed to reflect a political objective. In either case objective advice should essentially be the same irrespective of the political views of the adviser.
 

"depoliticising the OLC"

The hope was that Dawn Johnsen (see especially the video) was going to help in that department.

http://www.salon.com/news/opinion/glenn_greenwald/2009/01/05/olc

After all, the misinformed might think the OLC was supposed to be largely above politics in many ways, such as the firing of U.S. attorneys for political reasons were seen by some as trouble.

http://www.nytimes.com/2007/03/21/opinion/21iglesias.html?_r=1&oref=slogin

But, I guess DJ's forceful words and push for reform are a negative in these times. Her soft spoken but forceful voice will hopefully (like Valerie Plame's part in a new documentary regarding nuclear weapons) a new productive outlet.
 

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