a citizen’s journal by Thomas Nephew

Help a Posner-fightin’ blogger out

Posted by Thomas Nephew on 31st January 2008

Dave Neiwert (“Orcinus”) is doing a bit of fundraising over at his blog, and you should head over and give him some of your hard-earned cash for… what? For nothin’.

Actually, not for nothing. Neiwert is an excellent writer, author, and journalist, who now contributes to the liberal/progressive supersite “firedoglake” as well. In a recent post there, “Repackaging Korematsu,” he picks up on Stephen Griffin‘s observation (at “Balkinization”) that a certain variety of legal mind is now trying to peddle the story that Korematsu v. United States — the Supreme Court ruling OK’ing the Japanese internments during World War II — was only a terrible decision in guilt-ridden, liberal, 20/20 hindsight. Among said peddlers, I’m not surprised to learn, is the “pragmatist” judge and frequent op-ed scribbler Richard Posner. Griffin:

Apparently making a comment about liberals today, Posner states: “Liberals detest Korematsu, but not because it allowed pragmatism to trump principle; rather because of suspicion of the military and a sense of shame about the history of the nation’s mistreatment of East Asians.”

And surely we can all agree that suspicion of the military and shame about mistreating East Asians are mere emotional outbursts, unworthy of such eminent and pragmatic folk as ourselves. But Griffin and Neiwert make the point that the internments weren’t just opposed in hindsight; Griffin writes that “[m]ost responsible lawyers with access to relevant information knew the internment was unjustified at the time.” Neiwert:

The problem, of course, is not that “pragmatism trumped principle” in the Korematsu ruling — it’s that hysteria trumped both pragmatism and principle, a hysteria fueled by unchecked military officials seeking to accrue new powers outside the purview of the courts. […]

Neiwert makes a couple of important points that extend and crystallize Griffin’s post. First, the argument helps “the Bush administration further open wide the hole in the Constitution (one, in fact, largely created by the internment episode) by wildly expanding executive-branch powers during wartime.”

The second and perhaps even more instructive point is that the “Korematsu — you had to be there” notion was also circulated by the eminent legal thinkers and noted online harpies Ann Coulter and Michelle Malkin,* illustrating the principle that in the wingnut ecosphere, the worse the idea, the more often it is reconsumed and re-excreted.

Another “Balkinization” post by Eric Tamanaha once crystallized my own feeling that while Judge Posner might write elegantly, he was a worthless guide to human rights, civil liberties, and especially to how to safeguard them with the laws he’s supposed to judge by. According to Tamanaha, Posner once wrote:

The way I approach a case as a judge–maybe you think it heresy–is first to ask myself what would be a reasonable, sensible result, as a lay person would understand it, and then, having answered that question, to ask whether that result is blocked by clear constitutional or statutory text, governing precedent, or any other conventional limitation on judicial discretion. That is how I would proceed if asked to decide a case challenging the legality of the NSA surveillance program.

Perfect: start with the result you want, and work your way back to the legal flim-flammery you can employ to justify it. Those of us watching this kind of thing from home may often feel powerless to stop it. But with David Neiwert’s help, at least you know what’s going on and can observe the life cycle of a nasty little wingnut idea, from its birth as a judicious little sentiment in a $34.95 hardback by Judge Posner, to its final instar as degraded spewings by Coulter or Malkin.

So when you give Neiwert a nice donation, why, it’s almost like you’re personally kicking Posner or Malkin in the shins. Surely that’s worth a little something.

* See Muller vs. Malkin and Malkin v. Muller on this site. — It’s not clear Neiwert means to imply otherwise, but it seems to me Posner’s arguments preceded Malkin’s. Judging by the “Bush v. Gore” description in Griffin’s post, he seems to be citing Posner’s 2001 book “Breaking the Deadlock,” though the judge appears to have made a similar argument in a 2003 book “Law, Pragmatism, and Democracy”. Either way, Malkin — whose book was published in 2004 — is likelier to have picked up the general idea from Posner than the other way around.

UPDATE, 2/1: LOC photo added. — My post fails to mention that Mr. Neiwert has written a book about the Japanese internment, “Strawberry Days: How Internment Destroyed a Japanese American Community,” so I’m correcting that here.
UPDATE, 2/26: Kip Esquire (“A Stitch in Haste”) is another Posner-fightin’ blogger, e.g., More Posner Rantings Against Civil Liberties, 9/27/06.

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Kinsley’s conjecture

Posted by Thomas Nephew on 18th December 2004

Daniel Drezner linked to an interesting L.A. Times essay by Michael Kinsley yesterday, in which Kinsley makes a kind of glass-three-quarters-full claim about tolerance in America:

Today’s near-universal and minimally respectable attitude – the rock-bottom, nonnegotiable price of admission to polite society and the political debate – is an acceptance of gay people and of open, unapologetic homosexuality as part of American life. […]

Such a development is not just amazing. It is inspiring. American society hasn’t used up its capacity to recognize that it harbors injustice, and it remains supple enough to change as a result. In fact, the process is speeding up. It took black civil rights a century, and feminism half a century, to travel the distance gay rights have moved in a decade and a half.

Let’s get it all out of the way: (1) That’s pretty easy for a straight white guy in L.A to say.* (2) Judging by the wait since, say, 1776, for approximate legal equality for these groups of people, he’s got the order reversed: it’s taken gays the longest, assuming they didn’t just form out of thin air or something in the 1960’s. (3) Rah, rah, tolerant USA pieces are not the order of the day following the deceptive, mean-spirited state constitutional amendments against gay marriage and gay civil unions that swept the country a month and a half ago. The water’s pouring out of the glass right now, not into it.

And yet: point taken. I make no claims to be a paragon even now, but I used to be worse; for example, I probably helped alienate closeted gay high school classmates (no idea… well, some idea) with thoughtless homo jokes back in the 70s, stuff that would redden my ears now to hear myself say. And even though I thought myself reasonably tolerant, I had to cross a double “who cares?” and “give me a break” threshold about gay marriage at some point, too. I don’t keep haven’t always kept obsessively meticulous logs of such things, so I can’t say exactly when it stopped failing the laugh test. (I suppose it was seeing a couple of gay friends break up, and the pain that caused.) Which brings me to Kinsley’s interesting conjecture:

This is also scary, of course, because there is no reason to think that gay rights are the end of the line. And it’s even scarier because these are all revolutions of perception as well as politics. That means that all of us who consider ourselves good-hearted, well-meaning, empathetic Americans – but don’t claim to be great visionaries – are probably staring right now at an injustice that will soon seem obvious, and we just don’t see it.

It’s true, a little modesty will become us all. Just as we might well not have actually been so great when rights were being demanded or ignored, or risen above the prejudices of our time and place, so we will necessarily continue to be insensitive to injustice not yet even perceived: call them maybe the “unknown unknowns” of injustice.

Now I’m wondering: what might those now hidden, soon obvious injustices be? There are the known frontiers, I suppose: the elder, the dying, and their right to autonomy versus their vulnerability to abuse. (Mine, soon enough.)

Teresa Nielsen Hayden points out (and as have many others before her) we’re quite good as a culture and/or species at ignoring injustices that are plain to see, were we to simply take the trouble. So maybe it doesn’t need to take much speculation or flipping to the news from Sudan or the Congo: just think of something you’ve consumed or benefited from without a thought to where it came from, and all too often there are ignored injustices attached to it: a sweater made in a Saipan sweatshop, a leafblowing gardener in Sacramento, a cup of coffee from points south.

There are injustices we may suspect, but don’t have the means to see… yet. For example, it may become clearer over the next decades just what kind of mentalities our fellow animals have, with increasingly difficult consequences for a world of conscience, and even for those of us who just like a good steak or pork chop. I can even imagine the path that some of this might take: the same future devices that help future Stephen Hawkings or even locked-ins express themselves are also used to display, suggest, or maybe even “prove” in some way some real sapience in dolphins, chimpanzees, or other animals, not completely off the scale from the full range of humans who are said to have inalienable rights. Then what? (And, of course, maybe it shouldn’t take 21st century neuroscience to accomplish this. But what if it did?)

Likelier, maybe, will be that some perceptions will be forced upon us and recast or re-cognized as “injustices” — first in quotation marks, then simply as such. For example, it seems there will be an inevitable oil and perhaps a similar water crunch in the years ahead. Profligacy with those resources will be resented and sanctioned. What was once a simple matter of freedom and purchasing power may come to seem like theft.

The trajectory Kinsley describes — consciously, acceptedly disenfranchised people fighting their way into the light with some help from their friends — is more familiar. But I confess I don’t have the imagination to point to an unidentified group in this country (thus illustrating Kinsley’s point). It’s easier for me to imagine the notion of “franchise” or the accompanying rights themselves expanding to things like minimum health care standards, or living wages. That doesn’t seem likely now in this country, let alone globally, and it’s under siege elsewhere. But it’s imaginable.

I’ll end where Kinsley began — remembering his introduction to the idea of gay marriage:

Some time during the late 1980s, some guy (I don’t remember who) from some conservative think tank (Cato? Hoover?) asked me at some Washington reception whether The New Republic, where I worked as the editor, would be interested in publishing an article advocating gay marriage. It was the first that I had heard of the idea.

He handed the job off to Andrew Sullivan, as it happened. I wonder who will write the next essay in the tradition of “The Conservative Case for Gay Marriage,” and what it will be about.

* Or wherever; New York City? And I guess I’m assuming he’s straight because I’ve never heard otherwise. Hmm.
UPDATE, 12/20: I guess I forgot that Americans might be willing to revoke the rights of other Americans: a Cornell University poll finds that “About 27 percent of respondents said that all Muslim Americans should be required to register their location with the federal government. … About 22 percent said the federal government should profile citizens as potential threats based on the fact that they are Muslim or have Middle Eastern heritage. The other results are a little less sweeping — not all mosques should be monitored, etc. — but it’s not a pretty picture. I’m so proud.

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An alternative to lawyer-client eavesdropping

Posted by Thomas Nephew on 30th November 2001

Police could already apply for and receive warrants to eavesdrop lawyer-client conversations before 9/11. From the Washington Post (11/9/01, Justice Dept. to Tighten Focus on Terrorism):

Under current law, officials can listen secretly to a conversation between a lawyer and client if they have evidence that the two are involved in a crime or a fraud.

“If you have probable cause, you go to a judge. And if the judge agrees, he will authorize the interceptions,” said William Jeffress, a defense lawyer in Washington.

So what was the new policy intended to solve? According to Attorney General Ashcroft, the new policy was supposed to help the Justice Department

“shift its primary focus from investigating and prosecuting past crimes to identifying threats of future terrorist attacks, preventing them from happening and punishing would-be perpetrators for their plans of terror.”

In my opinion, prevention is the only reason compelling enough to consider. But since lawyers were already required to break confidentiality if they were informed that a specific crime was going to be committed (, the DoJ rule seems to be aimed at situations where a terrorist chooses a lawyer who is himself or herself a terrorist, in order to complete or continue some criminal act.

This suggests an alternative: randomly assign lawyers to suspects charged with or suspected of terrorism, to prevent the terrorist from handpicking the terrorist (or “merely” criminally unscrupulous) lawyer he or she would prefer. The 6th Amendment only guarantees the right to advice of counsel, not (or at least not specifically) to advice of counsel of one’s choice. (We already accept that in knowing that we do not have a “right” to be represented by Alan Dershowitz or Johnny Cochran in a criminal trial.) However, to make this process more palatable, one could imagine “drafting” a group of 5 or 10 randomly selected lawyers, with one of them serving to advise the defendant on the selection of one of the rest as the defendant’s attorney. Faced with a choice of essentially no counsel at all (because the new rule destroys confidentiality), and constrained choice of counsel, I think my alternative is at least worth considering.

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Military tribunals

Posted by Thomas Nephew on 29th November 2001

For a sequence of good posts on this topic, you might start with this Talking Points Memo by Joshua Micah Marshall. I’m still up in the air on this one (so currently my own poll responses are: tribunal-no, lawyer eavesdrop-no, 5000 interviews-yes). Marshall actually lays out some of the pro arguments so well that you’re surprised to learn he’s against them, at least as implemented by the Bush order. As I’ve written earlier, the prospect of a Bin Laden trial is not at all attractive to me, and I engage in some ranting that ends with the simplest alternative of just bombing him.

In his “Lake Effect” blog, Dan Hartung posts a link to the verbatim text of Bush’s order. Jeff Jarvis excerpts the order:

“Having fully considered the magnitude of the potential deaths, injuries, and property destruction that would result from potential acts of terrorism against the United States, and the probability that such acts will occur, I have determined that an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order is necessary to meet the emergency.”

His take is “Civil Rights? Maybe later.” I like Jeff, and I assume the “maybe” was a slip. I’ve felt like “later,” too, but with the nagging and clinching objection: when exactly? When is the emergency — no ironic quotes, yet — over? I support hunting Al Qaeda to the ends of the earth, for as long as it takes. But I would think at some point before that’s over, the emergency would be as well. The only limitations in the order that I see, skimming it, are that it applies to non U.S. citizens (2a). The rest basically suggests that this will be a new standing order applicable not just to Al Qaeda members, but to anyone conspiring to commit acts injurious to the U.S.

(edits: 11:05pm; 12/4: link to earlier post)

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