२९ सप्टेंबर, २००६
Blogging about not blogging about the detainees bill.
Over at Volokh Conspiracy, where commenters had complained about the lack of posts about the detainees bill, Orin Kerr and Ilya Somin have blogged about why they haven't blogged. This is one of the biggest problems for a law blogger. Because you are writing every day about things that happen to be in the news, readers assume that if something in the news is important enough, failure to blog about it means you don't care or you're some kind of fraud. This thinking is magnified when you're a law professor and the news story has legal significance. Yet this may be precisely why you don't blog about it. Unless you have an automatic ideological position -- as many political bloggers do -- you can't just pop out a post. You could put a small block of time into crafting a more thoughtful post, but that would only give it the aura of a legal opinion and you don't want that. Given the complexity of the text under discussion and the legal issues it generates, it is quite resistant to serious blogging by a law professor. Failure to blog should therefore be read as a sign of the law professor's distance from partisanship. It is not that we don't recognize the importance of the matter. It's that we do.
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Failure to blog should therefore be read as a sign of the law professor's distance from partisanship.
Alternate theory: It is a sign that the law professor recognizes that the bill allows for the indefinite imprisonment and abuse of suspected terrorists and does not afford them the opportunity to challenge their detention in the federal court system.
The law professor probably objects to this, but generally goes with the flow in the War on Terror, and loves nothing more than thinking of herself as nonpartisan.
Fog: As to your first question, that is not a logical inference from what I wrote. I have not studied the posts you refer to and have expressed no opinion about them. There are other ways one could find to write about the problem. One would be by putting a lot of time into the matter and tapping previous study of the issues surrrounding it. Another is by carefully sectioning off an aspect of the problem to talk about.
As to what I've written about Bush v. Gore, it rests on several substantial articles I've done. What I wrote about the NSA was not about the underlying substance of the dispute, but general principles about the judicial role in the system of separation of powers, a subject I've taught for more than 20 years.
As to the post you linked about Abu Graib. What's your point? Did you read the post? That's an example of sectioning off a very small aspect of a problem. I could do that with the detainees problem too, and I have a draft of a post that does that, but I chose not to publish it because I didn't think it was helpful.
Garage, Doyle: You're both obvious partisans and you don't know how to raise an issue in a way that motivates me to respond.
Also, Garage, don't reprint long quotes. I'm going to delete that in a few minutes. I'm not reading things other bloggers write based on whether some comment cuts and pastes them here. That's not how I select what to read, and you're abusing the rights of the bloggers whose work you appropriate.
Well I guess you're just a tough nut to crack, Ann. It's okay, though, your silence speaks volumes.
I just loved your immensely self-serving explanation for it.
Here is the link to Digby post that Ann objected to:
It Could Happen To You.
I thought it was relevant, and I see many cut and pastes from right blogs here. At any rate Digbys point was our government can now call anyone, including an American an "enemy combatant" and POW, off to Gitmo you go, indefinitely.
Ann, I would love to hear your thoughts.
Garage: If I were going to put the effort into doing a serious post on the bill, where do you think I would start? What would I read? Where on the list of things I might get to do you imagine Digby appears? Thanks for providing a laugh this morning.
Rogera: Yeah. The assumption is the one Doyle voiced, that if we posted we'd just sign their petition.
Fog: "Is it correct then to say that an additional distiction (for you at least) between a blog-worthy and non-blog-worthy post on important legal issues is that the former are comprised of topics in which you have considerable experience and/or something new to add? (this view is reflected in Ilya Somin's post at VC)."
Yes, that's part of it. Sometimes I see a way to write that gets around the problem of lack of full understanding (for example by posing a question or biting off a small part or leveraging into another subject). When it's a topic within my specialty, I may hesitate because I see more complexity and don't want to take an easy path through it.
"Not that I'm trying to split hairs here - it just seems to me that a failure to blog shouldn't be read as any particular sign (such as nonpartisanship); rather, it may have many potential underpinnings."
"Sign" doesn't mean proof. But I believe the blog discussion about this topic is badly infected with partisanship, and I'm not motivated to step in and help a side. It would be easy to do that. I could say, based on what I've seen and understand, that X side has the better argument. I'm not doing that.
I know the frustration. There are many times I think that I'd love to know what so-and-so is going to say about some news item or some issue, but so-and-so chooses to ignore it. It's particularly galling when partisan bloggers wear blinders to the screw ups on their side. But that's what helps make it clear that they are partisans.
Newspaper columnists do this too. And unlike bloggers, they get paid, and they have editors who should be urging them to take on tough topics. In one of my local papers, the free-market proponent never once tackled the sports stadium issue, and I think that was a mistake on the part of her editors.
Expecting bloggers to address everything one thinks they should address is an unreasonable expectation.
The idea that one can read the true heart of a blogger by what he or she fails to mention -- wow. Where do I start? I say it's better to get them drunk and then see what they start to talk about.
Ann, my cut and paste was in bad form, and I apologize. This is your blog, and you can obviously do whatever the hell you want. I also hope I didn't start a firestorm, and I must apologize to Digby in advance.
Fenris, thanks for the link. I'm not a lawyer, but when I read "any person" in subsection ii, it raised an eyebrow, and as an American, it is certainly a legitimate question.
Ann's blog isn't a public utility, so she has no obligation to us to blog her thoughts on anything she doesn't want to or need to.
Regardless of how "bad" or "good" the detainee legislation/law is, we still have the Constitution, checks and balances of three independent branches of government including judicial oversight, as well as regularly scheduled elections (I think one is coming right up, if I'm not mistaken...), so it isn't at all like we've entered some new dark age, the fear of which too many Leftists are wetting their beds over. We've survived much more difficult time in our domestic politics and civil rights than this, and so too will we survive this, especially if the Left is able to restrain itself and gain some perspective - not that I'd bet that way.
Ann says: "Failure to blog should therefore be read as a sign of the law professor's distance from partisanship. It is not that we don't recognize the importance of the matter. It's that we do."
There are a million reasons for choosing to be silent, and that's a perfectly good one. So is being busy, or not being sufficiently interested, or having nothing special to say about the topic, or recognizing that others have already said what needs saying, and on and on. It could also just be a recognition that, on some issues, it's prudent and politic to keep one's sometimes controversial views to oneself.
I'm skeptical that Ann's suggestion is a sensible way for a reader to construe silence, in the form of the lack of a blog by a lawprof blogger on a legal topic in the news. A decision not to address any particular issue is merely that; it does not convey a view on the substance, or even a view that there is substance (how is silence supposed to convey that or any other message?). It's like a denial of cert, and any reader should be slow to read anything into it.
I don't think there is anything about blogging that is sufficiently different from other forms of public communication to change those rules. Blogging is hard to pigeon-hole, but for this purpose it's a kind of informal opinion journalism, i.e., reactions to events of interest to the blogger usually in the form of an opinion and offered in a slightly more formal and impersonal context than a conversation. But not much more. Like any author, like Dr. Johnson in all those conversations captured by Boswell, a blog-author gets to write about the topics that interested the author, rather than those of interest to any reviewer/commenter.
But I'm also slow to dismiss Ann's suggestion that silence in this perhaps unique context should be "read as a sign" communicating complexity and seriousness of purpose. Her comment suggests a slightly different paradigm, not that far removed from Dr. Johnson either -- law prof blogger in the role of all purpose legal oracle, expected to render pronouncements on legal issues in the news. On that paradigm, commenters/blog readers have some entitlement to receive the oracle's wisdom, and thus an entitlement to draw inferences when they don't. That doesn't sound like a reasonable paradigm to me, nor does it sound like a role that anyone would willingly take on.
Re: Tim:
We've survived much more difficult time in our domestic politics and civil rights than this, and so too will we survive this, especially if the Left is able to restrain itself and gain some perspective - not that I'd bet that way.
While I share your opinion that there's nothing so bad at the present that we won't muddle though, don't you think that's a little . . . extreme there? Frankly, I'm pretty much certain that what the Left does now is meaningless as far as our ability to muddle through. Whether they restrain themselves or not isn't going to make a difference.
Well, unless they raise armed rebellion against the Federal Government or something. But if they do, we'll crush their rebellion and raze the rebel cities to the ground, just like we did to the South. But in any event, rhetorical hyperbole in response to a piece of legislation is not going to lead to an organised rebel movement. Rhetoric was even more extreme in the 70's (as far as I can see), and all we got then was losers like the Weathermen and the Symbionese Liberation Army. Not exactly an existential threat.
This is going to be just one more thing where people endlessly argue about what the thing does not say.
First they'll say it says something it doesn't say, (check!) and then they'll accuse everybody that disagrees with them of being NAZIs.
If the people I am referring to told me the most damning and absolutely true thing at this point, I wonder if I'd even listen to it. You can't bat zero and expect to be in the race for the batting title, after all. Yeah, they'll be frogmarching Bush out of the White House any day now for blowing up the World Trade Center with his supersecret army of ninja demolition experts.
The boy no longer cries wolf. Every time the doorbell rings, the boy tries to show me doctored images of legions of wolves and gangs of chimeras and armies of medusas and cadres of vampires and flocks of dragons, all riding on grendel's back, waiting to consume me.
It's always Domino's Pizza when I open the door. Always.
I'm sorry, but I'm really weary of 100 column inches of poorly written cut and paste paranoid fantasies every time Karl Rove brushes his teeth.
Find a hobby. Stamps or something. This one's tiresome.
It's always Domino's Pizza when I open the door. Always.
That's comforting, but the ready availability of pizza delivery in our country has never been called into question.
What's tiresome is the "I still haven't been abducted by CIA" argument as proof of just how unfounded concerns about our government are.
Re: Jim C
The link you provide is to Hamdi -- Hamdi is (according to the syllabus) an American citizen, so his case is probably not commanding on the subject of non-citizen combatants. I believe Hamdan is the case dealing with non-citizens.
I will never complain about a blogger not writing on a subject.
Besides, we don't need commentary from law professors, the New York Times has told us all we need to know: the law gives the President "the power to jail pretty much anyone he wants for as long as he wants without charging them."
Doyle has correctly ascertained my indifference to the lack of change in my probability of being abducted by the CIA, pre and post detainee bill. Space alien abduction also remains a 6 to 4 spread in Vegas.
Find a hobby. Stamps or something. This one's tiresome.
Thanks for crushing me with the facts. Perhaps you should share you keen insight and delivery with the hordes of conservatives that have a big problem with Bush's torture bill, and who have been blasting his magnified powers for quite some time. But criticizing conservatives wouldn't suit your purposes here, would it.
have a big problem with Bush's torture bill,
I'd have a big problem with that, ...if it existed.
Look, the pizza's here.
Sippican -
Let me ask you this:
Regardless of your personal risk of imprisonment and torture, is (or I should say "was") there not something to be said for living in a country in which the government cannot abduct and torture you, or someone with the misfortune of being named El-Masri (which sounds a lot like Al-Masri)?
That's really the issue, for me. I'm a white male with an Irish name, which means short of some huge misunderstanding involving the IRA, I'm in the clear.
But I sympathize with those people who are being detained and tortured who should not have been detained (much less tortured).
Plus it runs counter to our central governing principles, which include a healthy mistrust of government power.
Several senators (McCain and Specter, for example) have been quoted that the bill is unconstitutional -- but they voted for it anyway?
Is this a cake and eat it too thing?
Regardless of your personal risk of imprisonment and torture, is (or I should say "was") there not something to be said for living in a country in which the government cannot abduct and torture you, or someone with the misfortune of being named El-Masri (which sounds a lot like Al-Masri)?
Obviously the government *could* abduct and torture me. It has always been able to. But it has no more legal right to do so now than it ever has in the past -- indeed, less right than it has had at times in the past, given that the government tacitly allowed police to beat confessions out of suspects for the first 150 years of the country's existance.
Does it bother me living in a country where the government can abduct and torture foreigners? Not really. It would bother me if they did it without good reason. It bothers me when it happens to innocent people, just as all innocent wartime casualties bother me. But that's about it.
Doyle- You asked politely, but I'm not interested in this really, as we are discussing an imaginary thing.
I never mentioned my personal risk at all. To infer that I don't care because I'm enthusiastic about anybody but me being subjected to (imaginary) torture is to say, as I said earlier, that anyone that disagrees with the accuracy of what's being discussed is a NAZI.
Many people are telling me to be terrified because the NYTimes deliberately left the word "alien" out of the information about the bill -- I imagine to allow the paranoid among us to rage, rage at the machine. It reminds me of finding out that the same people told me that the NSA was wiretapping people, and you found out by reading the fine print that it was just datamining. I'm really not interested in listening to this sort of thing any more.
All of our personal risk remains unchanged. Hence, I am waiting for my pizza, same as yesterday. Same as tomorrow.
Several senators (McCain and Specter, for example) have been quoted that the bill is unconstitutional -- but they voted for it anyway?
Is this a cake and eat it too thing?
I believe it is. Speaking of McCain, though, my recollection is that Bush is on record saying something similar about McCain-Feingold and the first amendment, before he signed it into law. An unwelcome trend, if not exactly new -- I'm pretty sure the Supreme Court went through the same phase back when Roosevelt II was in power.
Sippican, you need to vary your diet.
I do admit, however, that I could eat Ian's Pizza here in Madison every day.
And speaking of Roosevelt II, it occurs to me that Bush II really is an unbelievably powerful president. His poll ratings may be whatever they are, but when he wants legislation, he gets it. Two months ago -- heck, even one month ago -- would anyone have thought that if Bush asked for this authority, widely characterised (whether rightly as wrongly) as the authority to torture and to detain indefinitely without trial, he would get it so quickly? It's quite astonishing.
Admittedly, my limited understanding of politics was forged in the Clinton years, when we had an uncommonly weak president, faced by an uncommonly hostile and contemptuous Congress, so perhaps this is more the norm than not. But it still strikes me as an instance of Bush's surprising power.
ServileCottage -
OK. Enjoy your pizzas.
balfegor -
No kidding. You know he resents the hell out of even having to get the legislation passed. SCOTUS is always hating on his game.
Two months ago -- heck, even one month ago -- would anyone have thought that if Bush asked for this authority, widely characterised (whether rightly as wrongly) as the authority to torture and to detain indefinitely without trial, he would get it so quickly?
First of all, the question of what to do with the detainees and how they are to be treated has been being kicked around for five years now. This issue didn't just come out of nowhere in the last two months.
Secondly, it is not at all uncommon for bills to pass and be signed only a short time after they are introduced, especially in an election year.
Finally, it is unclear how it would be an example of Bush's "power" even if it *was* unusual for a bill to pass this quickly, since he has no control over how quickly Congress passes bills. It is the Congressional leadership that decides things like that -- and the Congressional leadership, in this case, wants a nice War on Terrorism vote to hold over the Democrats' heads. That's why most of the vulnerable Democrats backed the bill.
Hey Madison Man- Heh.
The funny thing is, I haven't had an actual domino's pizza since Jimmy Carter was president. I thought I was eating the box.
We live out in the sticks. Local pizza place delivers. We order. One and a half hours later, they call. We're lost, they say. I mention to them that the restaurant is on the same street as me, just 200 numbers down. They show up an hour after that. The driver's stoned out of his mind.
Door slowly closes in his face.
*****muffled by door;*****
Does this mean you don't want it?
Balfegor wrote "don't you think that's a little . . . extreme there? Frankly, I'm pretty much certain that what the Left does now is meaningless as far as our ability to muddle through. Whether they restrain themselves or not isn't going to make a difference."
Sorry for the confusion. Conceding in advance that you and I may have different classifications or definitions for "the Left," it doesn't seem at all extreme to me in light of the facts that the Left, at best, opposes an offensive war (the only way to win) against the militant Islamic fascists; the nation is polarized on the war; the Left is the center of gravity in the Democrat party; Democrat honchos (e.g., Conyers) are appealing for support on promise to launch impeachment proceedings against the president; and the Left is overwhelmingly represented in the nation's influential cultural and information centers. I don't think that renders them meaningless, and I do think it makes a difference.
To clarify, I think our civil rights and liberties will survive even if the worst characterizations of recently enacted laws were to prove true; I meant to indicate our chances of surviving that AND the external threat would be enhanced if the Left gained some restraint and perspective. They consistently speak and behave as if George Bush is the enemy and not the militant Islamic fascists.
Coward (s). You people couldn't spell UNCONSTITUTIONAL if it bit you in the ass. Typical Americans.
You shouldn't have to explain yourself. You are obviously free to blog about whatever you want to - after all it is YOUR blog. Why can't people understand that? There are tens of thousands of blogging heads talking about this bill. Just go to the other ones if you want to hear what people think. That's what I've been doing.
Although I would add - that I'd be curious to know what you think. And your explanation that you don't feel you have enough knowledge to talk about this thoroughly shows why your blog rocks. It's a refreshing dose of honesty - rather than partisan bullshit.
You people couldn't spell UNCONSTITUTIONAL if it bit you in the ass.
I can't say that my reaction to a bite on the ass has *ever* been to spell the name of the thing that bit me.
"D O G! D O G!!!"
Why is it unconstitutional? I'm pretty sure the Constitution allows for the removal of habeus corpus.
Mark R:
Substitute torture for traitor, but you get the drift.. Why argue about limits on interrogation or what sections apply to aliens vs. citizens, when one can simply say "widely characterized (...) as authority to torture" and forge on with their favorite stalking horse.
Why indeed? Whether the statute authorises torture or not is quite irrelevant to the public perception of it -- most people (myself included) have not read through the statute, and have tended to rely on what the commentary tells us. And what the commentary tells us, by and large, is that the statute authorises torture. And indefinite detentions, etc. If we read Andrew Sullivan, we may even come away thinking your average man on the street can be "disappeared" on Bush's say-so.
Of course, from a legal perspective, this is all quite beside the point. But from a political perspective -- considering all those factors we usually imagine to play into a man's political fortunes -- this is the salient fact, is it not? We would imagine this to be a great handicap. We would imagine that individual congressmen, up for reelection in a matter of months (now weeks), would shy away from the risk of implementing legislation with such huge potential PR negatives.
Of course arguments could be made to support the legislation, including arguments that the legislation does not, in strict point of fact, authorise torture -- and they have been made. But even to try making them is not something you would expect our politicians to do. They prefer easy, feel-good votes. Sarbanes-Oxley, when the voters are outraged over accounting fraud. The Patriot Act when the voters are outraged over terrorism. A gun control bill when the voters are fussing about school shootings. Etcetera, etcetera. Forcing uphill arguments is not a normal thing for politicians to do in our political culture. Not that they don't do it from time to time -- but they're unusual. This would have been a perfectly unremarkable bill four or five years ago. Exactly the kind of thing you'd expect in the wake of 9-11. But now? Not so much.
Nevertheless, Bush II, starting from a 35% approval rating -- a point you'd think he'd have little to no leverage from -- went out and made them do it.
Isn't that highly unusual?
Quote:
Given the complexity of the text under discussion and the legal issues it generates, it is quite resistant to serious blogging by a law professor.
Is that sort of like blogging and writing an article about an opinion without understand its context (i.e., the procedural history)? I hears some law profs did this with the NSA opinion.
I think you can take a quick look and offer your thoughts as a citizen. Of course, you can always add a disclaimer to say that this isn't complete legal analysis. I don't think people really assume it is anyway.
If you have no opinion and have not read the text that sucks for you as a citizen. If you have an opinion and are not offering it up - that's your business.
But I always thought of you as more of a spontaneous blogger.
Is this blog really a reflection of you as a law prof? Do people come here for "serious" legal analysis?
Quote:
Given the complexity of the text under discussion and the legal issues it generates, it is quite resistant to serious blogging by a law professor.
Is that sort of like blogging and writing an article about an opinion without understand its context (i.e., the procedural history)? I hears some law profs did this with the NSA opinion.
I think you can take a quick look and offer your thoughts as a citizen. Of course, you can always add a disclaimer to say that this isn't complete legal analysis. I don't think people really assume it is anyway.
If you have no opinion and have not read the text that sucks for you as a citizen. If you have an opinion and are not offering it up - that's your business.
But I always thought of you as more of a spontaneous blogger.
Is this blog really a reflection of you as a law prof? Do people come here for "serious" legal analysis?
As far as "what do you read" - how about the text of the bill?
First they came for the Communists, and I didn’t speak up,
because I'm not a partisan.
Then they came for the Jews, and I didn’t speak up,
because it is quite resistant to serious blogging by a law professor.
Then they came for the Catholics, and I didn’t speak up,
because it is not that we don't recognize the importance of the matter. It's that we do..
Then they came for me, and by that time there was no one left
to speak up for me.
I don't know what the fuss is all about. I don't trust Ann's observations on awful TV shows like Project Runway. Why should we be dismayed at the absence of commentary on this awful pice of legislation?
I have just learned that on Friday, the FBI raided the home of one of my friends, who is Arab-American. He has been told that there is "secret and sealed" evidence against him and that he might be going to jail. I am terrified by the tools our government now has to essentially throw him in a cell and forget about him, unless they decide maybe a little torture would be useful along the way. This is no longer abstract for me.
Fen, he's not been detained yet, and he is a citizen, so far as I know. I don't think he's an immigrant, but his parents are. He served in the U.S. military; can aliens do that?
There were raids on a bunch of Arab-owned convenience stores in the metro area the same day. They hauled off stuff like boxes of cigarettes and cheap fake-designer jewelry, clothes and colognes. I don't know what's up.
Fen, I am not offended by your scepticism, and I believe you to be a person of integrity, but I'm not posting his name here. That just seems unwise. The only reason I heard about it today is a friend posted the info on his blog, asking for help finding a lawyer. Without talking to him, I'm not going to publicize his name.
I am wrong on some facts: the Arab-owned stores were raided Thursday, mainly in a parish southwest of New Orleans, while my friend's home was raided Wednesday.
I thought the detainee bill only applies to aliens
Fen, you thought that, but you were wrong.
He served in the U.S. military; can aliens do that?
Yes. However, to be an officer, you have to be a citizen. I think.
Fen, you thought that, but you were wrong.
With all due respect to Prof. Ackerman, I'm not seeing what Ackerman is seeing. Perhaps I'm looking at the wrong text? I go here to ID what the text voted on by both the House and Senate is. And it appears to be here.
Section 948b(a) indicates that the purpose of the military commissions is "to try alien unlawful enemy combatants engaged in" blah blah blah. Emphasis added, there.
And I run down a little further to see 948c, titled "Persons subject to military commissions," which reads "Any alien unlawful enemy combatant is subject to trial by military commission under this chapter."
And I run down further to see the section on Jurisdiction of military commissions (948d), of which 948d(a) reads:
JURISDICTION.--A military commission under this chapter shall have jurisdiction to try any offense made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.
Emphasis added. The key phrase there is "when committed by an alien unlawful enemy combatant."
Now, "alien," as you can see easily enough, is defined as "a person who is not a citizen of the United States." (948a(3)). So I'm not seeing how the statute can apply to American citizens. The military commissions have no jurisdiction over offenses committed by American citizens. And the statute does not include American citizens as persons subject to the miltiary commissions either. Unless there is some clever trick in the wording of the statute, I just don't see how American citizens can be subject to the military commissions.
What would be necessary, for American citizens to be subject to the military commissions, would be for there to be some means of stripping them of their citizenship. I've looked through the rest of the text (though not as carefully as 948), and I don't see anything like that.
Just to be upfront here -- I may well have missed it. It may be something small that Ackerman et al. caught and I'm just oblivious to. Or this may fit in together with other statutes (e.g. about stripping citizens of their citizenship) that I just don't know about.
But what are they?
Fen, I'll keep you posted. The news story I read about the store raids said the indictments should be unsealed this week. But since I don't know if there's any connection with my friend, I don't know if his documents will be unsealed then, too.
Well, Fen, IANAL, but after reading the bill a few times, I have the feeling you're right. My apologies with rights reserved to withdraw them if the administration finds a loophole.
I consider myself to have pretty high reading comprehension, but I get easily intimidated by legal documents. Maybe what we need is more lawbloggers lawblogging about the law.
Oops.
Auguste: Sorry not to oblige. If I were to begin to present an analysis of this, I would have to respond to arguments and criticisms and it would become a full-time job. I have other things I have to pay attention to right now, and I cannot take on this big project.
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