November 19, 2006

The NYT pronounces the Federalist Society annual meeting "somber."

I watched C-Span's coverage of the part where they celebrate Scalia (and his huge family) and show the love for Alito. It didn't seem especially somber. But those were the on-stage doings. Let's check out the NYT article, written by Neil A. Lewis:
How glum was the mood? “Well, I guess I’ve just about climbed back from the ledge — the one I was about to jump off of,” said Daniel McLaughlin, a New York lawyer who attended the convention. Mr. McLaughlin said he could not stop fretting over who would be confirmed to the federal bench in the next two years.

John C. Yoo, a law professor at the University of California, Berkeley, who was a senior Justice Department official, said the mood at the convention was notably grim because of the likelihood that Democrats would block any identifiable conservatives from the federal appeals courts or the Supreme Court....

Professor Yoo said that the widespread dismay at the gathering was only over the prospect of judicial nominations, and that it did not signal any lessening of interest in conservative ideas. “The Bush effort to remake the judiciary has crested,” he said. “We all will have to play defense for a while on this.”

UPDATE: Daniel McLaughlin responds:
The part in quotes is, in fact, an accurate quote, albeit leaving aside the smile I delivered it with. (I should add that I thought that the line about coming in off the ledge was self-explanatory; I added the latter part when he asked for clarification). "Could not stop fretting" is another matter. As I have said to several people, I told him that I was more concerned about the loss of the Senate than the House because I'm concerned about getting the president's judicial nominees confirmed, but I didn't intend to leave him with the impression of despair; what I added was that since there were still 52 Senators left who voted for Justice Alito, my main concern was getting floor votes. That part didn't fit the theme of Republicans hanging their heads in defeat, I guess, and so it was blurred into "fretting".

All in all, a fairly typical MSM treatment - not a fabrication, no made up words; nothing so dramatic. In fact, as I said, the part in quotes is accurate, and might have bothered me a bit less if it stood on its own. And yet, there had to be a bending and selective truncation of my words to fit a pre-selceted narrative. Which, by now, is not news.

42 comments:

Madison Guy said...

Speaking of today's overstuffed Sunday Times -- an English lesson. “Worth more then a *”? History.com is not alone in getting it less “then” right. Anyone teach English anymore?

Jonathan said...

I was only there for a small part of the conference, but what I saw was far from somber. People were in generally good spirits edespite the election, and had fun catching up with old friends and making new ones.

Simon said...

Calabresi was so distraught that he praised Scalia's concurring opinion in Bush v. Gore...

I don't think "somber" seems right, but I don't think anyone is unaware of what ground we've ceded and what it means. McConnell talks a good game, and he is a great choice for Minority Leader (at times like these, in a body with the characteristics of the U.S. Senate, you don't want a charismatic leader, you need a mastert parliamentarian, and McConnell fits the bill), but the reality is that the Congressional GOP lacks the nerve to shut down the Senate just to confirm a circuit court judge. And a great chunk of the law is made in the Courts of Appeals. They might do it for a Supreme Court vacancy, but I don't think it's going to matter, because I think that a President who lacked the spine to pick a fight with the Democratic minority a year ago certainly doesn't have the spine to pick a fight with the Democratic majority next year. Bush will settle for any nominee who he thinks takes a broad view of executive power and who lacks any paper trail. And preferably, he wants a hispanic candidate, but that means Gonzales, not Garza, Callahan not Cantero. The Federalist Society is a diverse group with diverse views (John Yoo and I, for example, have almost irreconcilable views on executive power), but in the current environemnt, I think we should be glum, as long as by "glum" we mean "working out how to fix it" rather than - as MKH suggested the other day - sitting around on the couch eating Ho-Ho's, wearing the electorate's T-shirt and muttering "they'll be back."

You know, when I floated the idea of Althouse, J., the other week, I was actually joking, but after 11/7, it's hard to see how anyone more jurisprudentially conservative than Ann can get through the Senate right now.

Paul Zrimsek said...

What the hour really calls for is a few liberal originalists. Are there any out there available for nomination?

Freder Frederson said...

Yeah, well I hope Yoo is worried about being indicted for war crimes. He's the definition of "the banality of evil". What a disgusting human being.

Simon said...

I know his views on executive power are pretty strong stuff (and wrong, I might add), but geez, Freder...

In some ways, it seems as though John Yoo is turning into Robert Bork. Bork first became the liberal bĂȘte noire when he fired Archibald Cox, because Nixon was willing to scuttle the entire senior staff of DoJ in search of someone to fire Cox; simply put, if Bork hadn't done it, he'd have been fired, and so would everyone else until someone had stepped up to the plate, with serious consequences for the operations of DoJ. Likewise, Yoo has become controversial because of the torture memo. But the simple fact of the matter is that the memo didn't drive the policy, the policy demanded the memo. The policy, in my view, was wrong, and personally, I think Yoo should have refused to write it, but the fact is that his departure would no more have stopped that memo being written than Bork's refusal would have stopped Cox's firing.

I scarcely dare ask, but -- indicted by whom, and for what?

Mortimer Brezny said...

Yoo should not be worried about being indicted for war crimes. He should be worried about crazy nutbags who think he should be indicted for war crimes.

Balfegor said...

I think we should be glum, as long as by "glum" we mean "working out how to fix it" rather than - as MKH suggested the other day - sitting around on the couch eating Ho-Ho's, wearing the electorate's T-shirt and muttering "they'll be back."

The South will Rise Again!

Well, I think it's reasonable to be glum, and hearing this almost makes me wish I took the opportunity to attend (someone else at my firm ended up not being able to go, so it was up for grabs). I've attended Fed Soc meetings before, and, while I like what they do, I didn't much care for the whole preaching-to-the-choir tone they took -- it was almost as bad as those smug little campus "teach-ins." Full of cheap, unfunny shots at their opponents (e.g. Clinton, who'd been out of office for years), as lame as the Bush jokes today. And so I haven't been going.

But if they're a bit more glum, then perhaps I'd have found their attitude more palatable. Ah well. Lost opportunities.

vnjagvet said...

In Freder's world, crafting an opinion arguing that aggressive questioning of terrorist suspects is lawful becomes tantamount to aiding and abetting a war crime.

Whooooooweeeee.

I am glad I am not a lawyer in Freder's world.

Simon said...

Mort,
Be that as it may, I'm genuinely interested in who Freder thinks is going to file this indictment. That is, who is going to indict Yoo, for what, and under color of what authority? The ICC? Gimme a break. I'm wondering if s/he can do a little better than that.

Balfegor - sorry if that's been your experience. It's never been mine, but the nature of FedSoc is fairly decentralized, so different chapters have different characters, and obviously, it changes from year to year. There are always going to be in-jokes (Leonard Leo's gag welcoming "elusive guests, members of that little known, secret conspiracy that we like to call the federalist society"). Give it another try. ;)

Dave said...

Nobody expects Bush to be able to get the kind of judges he wants unless he gets a handful as part of some grand compromise.

The Democrats are already enraged that he sent up six judges they've already blocked. He'll probably keep doing the same thing. The Republicans see Democratic obstruction of conservative judges as part of the strategy for 2008.

The Dems don't have much flexibility. Their base is pretty adamant on the type of judges they'll accept.

Simon said...

Dave said...
"The Republicans see Democratic obstruction of conservative judges as part of the strategy for 2008."

And the Dems see it in the same terms: every vacancy that Bush can't fill during the 110th Congress is a vacancy that can be filled by the 44th President, which allows them to use that as an issue in '08.

Paul Zrimsek said...

I am glad I am not a lawyer in Freder's world.

Well, I dunno. Pretty good money in it, probably.

Freder Frederson said...

In my world, this administration developed a policy that resulted in severe and knowing violations of U.S. laws and international treaties regarding torture and cruel, inhuman and degrading treatment and punishment. Just like the lawyers and functionaries in Nazi Germany who wrote and enabled the Nuremburg laws, those members of the administration who advocated and justified the use of torture and treatment that may not reach the level of torture, but are still clearly war crimes under our constitution and laws, including John Yoo (and another disgusting little enabler and advocate of torture, Stephen Cambone), should pay for their crimes.

Freder Frederson said...

The policy, in my view, was wrong, and personally, I think Yoo should have refused to write it, but the fact is that his departure would no more have stopped that memo being written than Bork's refusal would have stopped Cox's firing.

But has Yoo done or said anything since leaving the administration that makes you think he doesn't agree with every word that was in the infamous "torture memo"? Has he ever said "I was merely acting in my role as an advocate for the administration"?

I don't think so.

vnjagvet said...

Freder:

Is it your position that Yoo's opinion is not only wrong, but so wrong that it is a war crime?

If so, under what US statute or legal precedent? Please be specific.

I take the position that Nuremburg is not relevant to your contentions, inasmuch as it is not US precedent. What is your authority for applying Nuremburg to domestic criminal law?

PatCA said...

Something struck me as funny with the reporter relishing all these "somber" and "glum" Federalists. As opposed to what, one might ask; did they all run around with lampshades on their heads when the GOP was in power?

Simon said...

vnjagvet said...
"[Freder,] [i]s it your position that Yoo's opinion is not only wrong, but so wrong that it is a war crime? If so, under what US statute[?]"

I can't speak for Freder, but presumably he means under 18 U.S.C. §2441(c) by some future Democratic administration. But §2441 only gets you to the threshold, it doesn't establish that any of the four indictable forms of conduct have taken place.

Freder Frederson said...

If so, under what US statute or legal precedent? Please be specific.

The War Crimes Act, The International Convention Against Torture, Cruel, Inhuman and Other Degrading and Treatment or Punishment and the Geneva Conventions to name three. The first is a purely domestic law and the latter two are international treaties have been ratified by congress and are part of U.S. law.

What Yoo did in his memos was say that those laws do not apply to the president and even if they did, the president can pretty much define torture as he sees fit. Yoo was so wrong on the law and by focusing simply on torture he ignored the fact that U.S. and international law requires that simply not torturing detainees is not good enough. He was advocating policies that he knew or should have known were gross violations of human rights laws.

Ken Stalter said...

I attended the conference for all three days and went to many of the panels and speeches. To call the event "somber," in my opinion, is a mischaracterization. Everyone seemed to be enjoying the debates and the schmoozing. Notably, there were significantly more women in attendance this year and that fact probably overwhelmed any feelings of gloominess about the elections.

Simon said...
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Simon said...

Freder,
A quick glance through the U.N. Convention Against Torture would suggest that a specific individual could not be indicted under it, even if it were held to be self-executing. By its own terms, it governs actions of states, not individuals; it may be possible that it has been breached, but that doesn't itself create any legal remedy. And surely enough, it's not included in §2441(c).

I have to much else to do tonight to read through the Gevena Conventions, but because they're included in §2441(c), notionally I suppose that could support an indictment by a future Democratic administration.

vnjagvet said...

Freder:

Which of the following did Yoo commit:

(1) Prohibited conduct. In subsection (c)(3), the term "grave breach of common Article 3" means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:
(A) Torture. The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.
(B) Cruel or inhuman treatment. The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
(C) Performing biological experiments. The act of a person who subjects, or conspires or attempts to subject, one or more persons within his custody or physical control to biological experiments without a legitimate medical or dental purpose and in so doing endangers the body or health of such person or persons.
(D) Murder. The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.
(E) Mutilation or maiming. The act of a person who intentionally injures, or conspires or attempts to injure, or injures whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose.
(F) Intentionally causing serious bodily injury. The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war.
(G) Rape. The act of a person who forcibly or with coercion or threat of force wrongfully invades, or conspires or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused, or with any foreign object.
(H) Sexual assault or abuse. The act of a person who forcibly or with coercion or threat of force engages, or conspires or attempts to engage, in sexual contact with one or more persons, or causes, or conspires or attempts to cause, one or more persons to engage in sexual contact.
(I) Taking hostages. The act of a person who, having knowingly seized or detained one or more persons, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons.

???????

Simon said...

vnjagvet,
I don't think that personally carrying out the actions is required for culpability to attatch. I mean, this isn't my area by any means, and I have no idea how these treaties have been construed by American courts or the courts of other cosignatories -- but, with that caveat, it would seem to stand to reason that if you can put Slobodan Milosevic on trial for violating the convention, on the basis of responsibility attatching by virtue of the chain of command, you could also do so in this country. So if Yoo ordered that conduct, even if he didn't personally carry it out, hemightstill be indictable. Of course, this doesn't help Freder's case either, because nobody has suggested that Yoo carried out those actions or ordered them - all he did was write a memo explaining why others might be able to order those actions.

vnjagvet said...
This comment has been removed by a blog administrator.
vnjagvet said...

Simon:

You are precisely correct. He did nothing more than provide a legal opinion.

That is not a war crime under the laws of the United States.

On the other hand, falsely accusing someone of a war crime in writing is libel per se IMLO.

Marghlar said...

On the other hand, falsely accusing someone of a war crime in writing is libel per se IMLO.

Well then, your legal opinion isn't worth much, vnjagvet. NY Times v. Sullivan applies, since Yoo is a public figure. Hence, you'd have to prove by clear and convincing evidence that Freder's falsehood regarding Yoo's putatively illegal conduct was knowing or reckless. No such thing as libel per se against a public figure.

Not that I don't think that Freder is being histrionic about this (for the record, I'm with Simon -- Yoo is wrong on executive power, and a little creepy to boot, but he isn't a criminal for providing a legal opinion, and the administration would have been doing the same things whether or not he was in the OLC). But if merely expressing the idea that the particular conduct isn't illegal or unconstitutional in a memo is breaking the law, than the First Amendment means even less than I thought it did.

Cedarford said...

Freder Frederson said...
If so, under what US statute or legal precedent? Please be specific.

The War Crimes Act, The International Convention Against Torture, Cruel, Inhuman and Other Degrading and Treatment or Punishment and the Geneva Conventions to name three.


If these are all supposedly so dear to Freder & Co on the Left...why is it they are so hot to nail Americans for the most trivial of "offenses" as "war crimes" - legal memos, improper Qu'ran handling, Verbal abuse by interrogators???

Then why are they absolutely silent on prosecution of Al Qaeda suspects or Iraqi Sunni suspects now in custody for war crimes????

I know, I know - we shouldn't DARE question their patriotism.

Just asking.

vnjagvet said...

Marghlar:

For an interesting saga of litigation on the issues you raise take a look at:

Milkovich v. Lorain Journal Co., 497 U.S. 1.

More than 15 years of litigation on those issues.

Marghlar said...

Yeah, that is an interesting case, but very different from the situation under discussion. The plaintiff in that case was found not to be a public figure, and so the state has much more latitude vis a vis his prosecution. Given Yoo's former government employment and his intense and continuing courting of public attention for his views, it is hard to see how any court would fail to find him a public figure, and hence apply the actual malice standard.

vnjagvet said...

But, Marghlar, it took a while in that litigation for the public figure issue to be established and the resolution of it with respect to the coach was pretty confusing. I am not sure that Yoo is a public figure as a matter of law.

Furthermore, Yoo was arguably not a public figure when he wrote the legal opinion which Freder apparently contends was a war crime.

What is the date at which the public figure issue becomes relevant? The date of the publicaton of the allegedly libelous statement? The date of the activity being characterized by the allegedly libelous statement?

Does it matter if the alleged libel is not made in a media publication?

Who knows.

Marghlar said...

Well, when he wrote it he was a public official, which is easier. So either way, I think NYT applies. Sure, it could be litigated, but I wouldn't give you good odds on getting Yoo, who regularly publishes books and op-eds and constantly thrusts himself into public discussion, declared as a private figure.

Al Maviva said...

Okay, show of hands, anybody here other than me actually read Yoo's memo? Not excerpts, not some breathless, near-hysterical account on some left wing op-ed site, but the actual memo?

Crank said...

Certainly nobody was happy with the elections, but take it from the first person quoted by the Times: the mood was not glum.

Freder Frederson said...

You accuse me of libel because I accuse Yoo of being part of being of a conspiracy to commit war crimes. (And that is what I am saying, that as part of an administration that was hellbent on justifying and finding a legal basis to torture and illegally detain terrorism suspects he was part of a conspiracy.) Then you go on to worry about the status of the First Amendment. You guys really amuse me.

Where is the libel? And you accuse me of being a crackpot. If I believe that there was a conscious decision by a group in the White House to use torture (or whatever they decided to define torture away as) and then actively sought to create a legal justification for what they intended to do, or had already done, then those who were involved in the conspiracy are guilty of war crimes. Obviously, Yoo, who merely provided the legal cover, is less culpable than those who used that cover to order the bad acts.

Whether or not my particular theory would hold up in a court of law (and remember certain classes of professionals, e.g., soldiers and doctors have a affirmative legal duty to prevent torture and other war crimes and can be prosecuted for failing to do so), my opinion that Yoo is a war criminal because he obviously believes that using torture and indefinite detention without charges or any due process and are useful tools and has advocated their use forcefully and was in a position to make it the official (albeit secret) policy of the U.S., is not libel anymore than calling OJ Simpson a murderer is (after all he was found not guilty).

As for the crimes of Al Qaeda and other terrorist groups. Find one post on this or any other blog I have ever posted on where I have ever defended their methods or cause. To say I am unconcerned with their vicious tactics or do not want to see them punished. Well, now that is libel.

Freder Frederson said...

Okay, show of hands, anybody here other than me actually read Yoo's memo? Not excerpts, not some breathless, near-hysterical account on some left wing op-ed site, but the actual memo?

I've read the entire, disgusting, thing. Why do you think I call Yoo a war criminal. His memo, and the other ones written, provided not only a justification for the President to torture by defining torture down to the most horrendous acts but also literally argued that the president above the law.

Al Maviva said...

Disgusting? Please. It's an exercise in line drawing of the sort government lawyers have to do all the time. I'd personally draw the line a little ways inboard from where Yoo drew it, but calling him a war ciminal and comparing him to Nazis? If Yoo is a war criminal, then I guess a lawyer spelling out reasonable use of force standards for a police department is comparable to a Japanese soldier in the Rape of Nanking, because after all, cops can deliver a hellacious beatdown within the confines of the reasonable use of force doctrine.

So enough of your adjectives and name calling, Freder. What precisely in the memo comprises a war crime? Please cite to specific points, and don't just throw more adjectives out.

Freder Frederson said...

What precisely in the memo comprises a war crime? Please cite to specific points, and don't just throw more adjectives out.

Okay, let's go over this one more time. First off, Yoo's definition of torture (only those acts that cause permanent physical damage and pain equivalent to organ failure), as a matter law, is ridiculously narrow and doesn't comport with any modern, reasonable, accepted definition of torture used by any signatory of the various international treaties in question or even that of our own government (e.g., when the State Department compiles its lists of human rights violators it specifically mentions waterboarding as a torture technique). Even if we accept Yoo's definition of torture, his assertion that we can abuse detainees as long as we don't torture them is simply wrong. All the Conventions, treaties and laws require more than simply not torturing detainees. Heck, you don't even have to read past the title of The International Convention Against Torture and Other Cruel, Degrading and Inhuman Treatment or Punishment to figure that out.

So when Yoo writes a memo that basically says "as long as we don't torture these people using the ridiculously narrow definition of torture that is contrary to both international and domestic law and all precedent, you're golden," he is so wrong on so many levels that he obviously (assuming Berkley doesn't hire complete morons) doesn't care what the law says, he just wants the government to be able to torture people for what he sees is the greater good.

Furthermore, when the President pathetically asserts "we don't torture" I just wish one of the reporters had the balls to say to him, "So what? Just not torturing isn't good enough. The law requires more of you than simply not torturing detainees, especially considering you won't tell us what you consider torture to be."

Simon said...

"Heck, you don't even have to read past the title of The International Convention Against Torture and Other Cruel, Degrading and Inhuman Treatment or Punishment to figure that out."

Statutory construction 101, rule 1: Read on. The title means nothing, and as I pointed out upthread, I don't think that convention gets you anywhere. I'm not "accus[ing] [you] of being a crackpot," but I am suggesting that in order to make the case that anyone should be indicted, you've got to work within 18 U.S.C. §2441(c). That is, you've got to establish that a crime under the Hague or Geneva Conventions has been committed. And because these are crimes defined by treaties with cosignatories, this is even one of the very, very few areas where I'll grant you that you can even cite foreign precedent to support your argument.

Freder Frederson said...

I don't think that convention gets you anywhere.

Why not, because Yoo wasn't acting as an agent of the state when he wrote the memo--that's a novel argument. That the convention isn't specifically included specifically in the War Crimes Act, which of course was passed prior to the Convention? Regardless, Geneva and Hague contain language similar to the Convention and under my theory Yoo would still be part of the conspiracy--being a lawyer doesn't absolve him of responsibility nor does the Nuremburg defense.

Freder Frederson said...

And I think you miss my point. Yoo's argument in the torture memo is that as long as we don't torture people we are in the clear. Not only is his definition of torture way too narrow but his conclusion that torture is the only thing that is prohibited is so wrong that it is criminally incompetent. Only a complete moron could read the relavent statutes and treaties and come to the conclusion that the government's only duty is not to torture people.

Whether or not a particular treaty or convention has specific enforcement or individual liability provisions attached to it is beside the point. At this point I am talking about his moral and hypothetical legal culpability. Do you really think I ever expect him to see the inside of the courtroom as a defendant?

Simon said...

Freder, I'm saying it doesn't get you anywhere because unless the treaty is both self-executing and creates personal liabilities for its breach -- which it isn't and doesn't -- its absence from §2441(c) means that even if the treaty has breached, that breach cannot be remedied in Federal Court.

By the way, you're also wrong about the date that §2441 was enacted. The Convention was ratified by the United States on October 27, 1990. The present-day language of §2441 was adopted in the War Crimes Act 1996, 110 Stat. 2104 §2401, and has been amended by Congress at least three times -- in 1996, 110 Stat. 3510, 1997, 111 Stat. 2436 and 2002, 116 Stat. 1810 -- to say nothing of any times when Congress may have considered amending it to include the Convention but declined to do so. Ergo, the exclusion of the Convention from §2441(c) was at very least knowing, may well have been deliberate, and in any event is certainly dispositive.