Hamedi Decision

So the justices found 8-1 that Hamedi was entitled to but denied due process. Interesting thing is that Scalia's separate concurring-in-part dissenting-in-part opinion was joined Stevens, not something that happens very often. I am heartened that on these matters, there are still 9 votes on the court. I have since long ago resigned to the fact that Scalia and Thomas constitute two votes that are always cast together. It's refreshing to see that Thomas can actually disagree with Scalia. Having said that, I must say I am scared by Thomas' logic. Thomas basically argued that the court must accept the President's words for anything committed in the name of national security. The OConnor camp (including Rehnquist, Breyer and Kennedy) said that they would not question the President, if the President shows some minimal reliable evidence; Thomas won't even require that. Scalia, Stevens, Souter and Ginsburg, in two separate opinions think that the President should either release Hamedi or prosecute him for treason, but no military justice. If Thomas' approach is reasonable, Saddam Hussein can probably escape war crimes prosecution for the atrocies committed in 1980s against his people and the Iranians. Although the Geneva convention and prisoners of war issue is not before this court, the justices (except for Thomas) have said enough about the reach of presidential power to detain individuals at war time that one can surmise how the "illegal combatant" issue would be decided if it ever is presented to the court: prisoners of war are in protective not punitive custody. For detainees who fail to qualify as prisoners of war, they can be prosecuted and imprisoned under applicable laws WITH due process safeguards. I think the court pretty much trashed Professor Yoo's arguments without deciding his case.

As to Jose Padilla, the court side-stepped determining what would happen to him upon re-file in South Carolina. Given what they said in Hamedi though, it seems that the justices will rule 5-4 that the government has a right to hold him without having to charge him criminally for treason, but it's not clear what the military can do with him though.

God save the Honorable Court

So, the U.S. Supreme Court decided the Pleage of Allegiance case by refusing to exercise its "prudential jurisdication." Very interesting read, and I found myself agreeing with Rehnquist as to his Part I. I find O'Connor's concurrence most reasonable, but I would have come out declaring the pledge unconstitutional using her approach. Thomas's approach is very creative, unique and radical, and even at time pursuasive, but the conclusion of his approach is that the Establishment Clause convey no interest of individual liberty is way too radical for my taste. Scalia didn't participate, but Scalia's fingerprints appear to be everywhere in Thomas's concuring opinion.

We'll wait for Round 2, which looks there will be at least 4 votes for upholding the Pledge. Not a good sign for atheists and religious people who think about these things seriously.

Ever considered pledgng allegiance to an inanimate object (namely, the Flag of the United States of America) a form of idol-worship?

The Administration's legal memo regarding allowable forms of inflicting pain and suffering that would not rise to the level of criminal torture under federal law:

"http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf"

The Administration's legal discussion regarding allowable forms of inflicting pain and suffering that would not rise to criminal torture:



Pretty clever, eh?

The Administration's legal memo discussing allowable forms of torture:

Geneva Convention relative to the Treatment of Prisoners of War

So, I read the primary material:

Geneva Convention relative to the Treatment of Prisoners of War:

Professor Yoo seems to have ignored in his law review article the following provision:

"The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance."

So as a contracting state, the Geneva Convention applies to the U.S. when it invaded and partially occupied Afghanistan, REGARDLESS of the nature of the enemy.

With respect to his attempt to make distinctions out of "legal combatants" and "illegal combatants, "Professor Yoo seems to have ignored in his law review article the following Article 5 paragraph:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

So, if the law review article sets forth the arguments made in Professor Yoo's memos, I am unafraid the President may not be able to rely on an "advice of counsel" defense vis a vis the Federal War Crimes Act, as the legal competency of the memos may be in question.

VOANews.com

So, I watched THE FUNERAL. I was thinking, are people gonna fall over each other to tell lies to sing praises of me at my funeral? I guess I would be upset lying in that casket listening to people talking about somebody while pretending to be celebrating my life. Maybe, I'd be flattered. In life, when people attribute good things to me that are untrue them, I have this annoying habit of correcting them. If I were lying there and unable to correct them, that would drive me crazy. Probably, I won't be able to hear.

I was thinking about my comments yesterday about Professor Yoo's paper. I am reminded of Oliver Wendell Holmes's famous words about the genius of the law not being logic but experience. Good God! Experience is what gives one common sense. What Professor Yoo concluded shows such a lacking of common sense. I think common sense distinguish the good lawyer from the bad. Common sense is what makes a lawyer tell a client to take a deep breath and move on, rather than to throw good money after bad.

Oh well.

SSRN-The Status of Terrorists by John Yoo, James Ho (corrected)

Okay, I have now read Professor Yoo's article that argues that Al Quaeda and Taliban members are "illegal combatants":

SSRN-The Status of Terrorists by John Yoo, James Ho

I hope the arguments that Professor Yoo and his co-author put forward in this article are not the same ones that Professor Yoo relied upon in his memos. I am not convinced.

Stripped of the pseudo-scholarship of copious footnotes and profession jargons, Professor Yoo's arguments amounts to:

Neither the Taliban nor Al Quaeda members satisfy what Professor Yoo called the "four customary conditions" to be considered legal combatants. Professor Yoo offers some analysis with respect to Al Quaeda members, but basically concluded without supporting facts that Taliban members too were not legal combatants. But that's only a minor point.

Then Professor Yoo made an illogical leap to argue that, as illegal combatants, they do not have the right to invoke protection under the Geneva Conventions. I am no legal expert on the Geneva Convention, but I will accept the following representations by Professor Yoo as true:

1. The Convention calls for all combatants to protect and to avoid harming civilians.

2. Legal combatants are given immunity from prosecution for conduct consistent with the laws of war.

3. Specific protection is spelled out to protect prisoners of war.

Professor Yoo made the argument that Al Queada members (and for the sake of this analysis, I would also assume as true of the Taliban members) who often disguise as civilians and inflict harm on civilians are not legal combatants and thus are not entitled to ANY protection under the Geneva convention, and in particular they are not entitled to protection afforded prisoners of war.

This position is illogical. The Geneva Convention, as described by Professor Yoo, is provided to first and foremost protect civilians. To protect civilians, an incentive is given to combatants to clearly identify themselves as non-civilians in the form of an immunity from prosecution for their conduct in warfare, provided that the conduct is within what is tolerated as "lawful acts". From that premise, I would agree that the illegal combatants cannot avail themselves immunity from prosecution.

The prisoners of war provision, however, goes to different values. It stands to reason that the prisoners of war provision arises out of a recognition that combatants are humans too and should be treated humanely. The Geneva Convention thus sets forth a minimum set of protection that is provided even to those who voluntarily participated in inflicting the horrors of war. It is not a privilege to reward participation in hostilities, but a limit on the punishment that can be imposed on a human person for participation in hostilities. Thus, nobody would seriously argue that a civilian engaged in peaceful protest againt an occupying force should be given less protection than a prisoner of war because he is not a "legal combatant" under the Geneva Convention. As the prisoner of war provision is based on human right concerns, I can see no rational justification why a legal technicality that declares a combatant illegal takes him out of the protection of basic human rights.

Thus errs Professor Yoo.

SSRN-The Status of Terrorists by John Yoo, James Ho

Okay, I have now read Professor Yoo's article that argues that Al Quaeda and Taliban members are "illegal combatants":

SSRN-The Status of Terrorists by John Yoo, James Ho

I hope the arguments that Professor Yoo and his co-author put forward in this article are not the same ones that Professor Yoo relied upon in his memos. I am not convinced.

Stripped of the pseudo-scholarship of copious footnotes and profession jargons, Professor Yoo's arguments amounts to:

Neither the Taliban nor Al Quaeda members satisfy what Professor Yoo called the "four customary conditions" to be considered legal combatants. Professor Yoo offers some analysis with respect to Al Quaeda members, but basically concluded with no supporting facts that Taliban members too were not legal combatants. But that's only a minor point.

Then Professor Yoo made an illogical leap to argue that, as illegal combatants, they do not have the right to invoke protection under the Geneva Conventions. I am no legal expert on the Geneva Convention, but I will accept the following representations by Professor Yoo as true:

1. The Convention calls for all combatants to protect and to avoid harming civilians.

2. Legal combatants are given immunity from prosecution for conduct consistent with the laws of war.

3. Specific protection is spelled out to protect prisoners of war.

Professor Yoo made the argument that Al Queada members (and for the sake of this analysis, I would also assume as true of the Taliban members) who often disguise as civilians and inflict harm on civilians are not legal combatants and thus are not entitled to ALL protection under the Geneva convention, and in particular they are not entitled to protection afforded prisoners of war.

This position is illogical. The Geneva Convention, as described by Professor Yoo, is provided to first and foremost protect civilians. To protect civilians, an incentive is given to combatants to clearly identify themselves as non-civilians in the form of an immunity from prosecution for their conduct in warfare, provided that the conduct is within what is tolerated as "lawful acts". From that premise, I would agree that the illegal combatants cannot avail themselves immunity from prosecution.

The prisoners of war provision, however, goes to different values. It stands to reason that the prisoners of war provision arises out of a recognition that combatants humans too and should be treated humanely. The Geneva Convention thus sets forth a minimum set of protection that is provided even to those who voluntarily participate in inflicting the horrors of war. It is not a privilege to reward participation in hostilities, but a limit on the punishment that can be imposed on a human person for participation in hostilities. Thus, nobody would seriously argue that a civilian engaged in peaceful protest againt an occupying force should be given less protection than a prisoner of war because he is not a "legal combatant." As the prisoner of war provision is based on human right concerns, I can see no rational justification why a legal technicality that declares a combatant illegal takes him out of the protection of basic human rights.

Thus errs Professor Yoo.

The right to be wrong

The San Francisco Chronicle reports the efforts by Berkeley law students to force Prof. Yoo, who drafted the now imfamous memos that argue that the U.S.'s action in Afghanistan is not bound by the Geneva Convention, to resign from his position as professor of law at Berkeley. The students had argued that academic freedom does not apply to actions he took while a government official.

The right to be wrong

The San Francisco Chronicle asks, "could someone at Boalt please explain to us the logic behind that reasoning?"

Well, I am not at Boalt, but I am glad you asked. While a lawyer has every right to provide legal advice to his client, and have the advice protected from public scrutiny, a lawyer cannot engage in conduct that furthers a fraud or a crime. Professor Yoo is a very intelligent man, I don't think that much is disputed. He ought to know, and he has reason to know, that the U.S. action in Afghanistan looks like a war, smells like a war and kills like a war. As a lawyer, he should know that, just because Afghanistan is not a sovereign state, or merely a "failed state" as he is reported to have argued, should not take U.S. action out of the purview of the Geneva convention, even under any tortured logic. To argue otherwise would be as phony as Clinton's now famous disputation about the definition of the word "is". No serious judge would buy it. He ought to know that the only reason he is writing that memo is to provide the administration a defense of "advice of counsel" for conduct that is illegal under the Federal War Crimes Act, which is the enabling statutue for the U.S.'s ascension to the Geneva Convention. In other words, in the eyes of the student, Professor Yoo has committed an act in violations of legal ethics -- i.e., conduct unbecoming of lawyer. I think that should be sufficient grounds for the students to call for his voluntary resignation.

Of course, now judge or jury has passed a judgment on Professor Yoo; and so, Professor Yoo is presumed innocent of any violation of legal ethics. I support that. If Professor Yoo does not think he has done anything inappropriate, he has every right to dispute and ignore any charge of such violation. However, if subsequent events play out, and Professor Yoo is found to have committed an ethical violation, the law school should have every right to ask for his involuntary resignation.

On another note, I support the government's position that it does not need to make public the memos Professor Yoo wrote. However, the arguments that Professor Yoo made to support his conclusions in the memos are of enormous academic interests for the public. I would call on Professor Yoo to write separate articles on the relevant issues. The legal arguments should be made available to the extent it does not betray his client's confidence. That should not be difficult.

So...

Former president Reagan died over the weekend. I didn't like him when he was president. I did not like him any better since he left office. His record seemed to have improve dramatically. Funny how dying can change people's mind about you.

Was there really a need to ship the body to washington, if all we could see is a flag-draped casket. On second thoughts, do we know that the body was really shipped? Do we care if we were duped into thinking that, when his body is really somewhere else?

Howard Kaloogian irritates me. He needs an original thought. It will be a new experience for him.