Blogger Beta

Lots of blogging today. Guess I am trying to make up for my lack of blogging lately. Anyway, I just updated to the new blogger beta, so supposidly there are some new features. Fun, I will have to update some other aspects of this blog in the coming weeks. Some rainy weather would be helpful with that, but with beautiful days like today all I want to do is sit outside and soak up the sun.

Also, instead of writing more about detainee torture and the acts of congress (both are depressing) I wanted to say that I really like being a "lawyer in training." School is bearable, but as I continue with both of the jobs I was working last summer, one day a week in insurance negotiations for PI claims and one day a week advocating for disabled homeless in their Social Security claims, I realize how much fun this work is. I would much rather go to work than to school most days and when I am there, I really don't notice time going by. Maybe that is because everything is new, but maybe its because this stuff is fun. It makes me feel good about my choice to come to law school.

More

I had another post about the detainee Bill that I lost through computer problems, but instead of trying to recapture what I had written, I just want to pass on an interesting link that sums up some of the constitutional balance of power issues in the Bill. Basically, the more I read and understand this Bill, the more frustrated and upset I become, especially since it will pass with little debate and in the shadow of democratic fear of the looming mid-term election. The fact that any democrat that votes against the Bill will be painted as soft-on-terror is simplistic, unfair, and reduces a needed conversation about America's stance on detainees to a bullying act by Republicans. I think a Bill is needed, but not this one and not for the reasons it has been passed so quickly.

more

The more I read about this detainee bill, the more I don not like it. Not only do I dislike the Bill, but I think the reasons why the Bill is being pushed through quickly are entirely political. Why is it that a democrat cannot raise concerns about the passage of this Bill without facing condemnation from the Republicans that he is soft on terror. Isn't it possible that those two concerns are not mutually exclusive. A person could wish to fight terror and even wish for a Bill to clarify exactly what powers the executive has, while at the same time not want to pass this Bill. The way campaigns are run now make it impossible for candidates to actually voice nuanced positions without being rolled over by broad and mostly false smear campaigns. I am not saying that there are not some Democrats that are soft on terror, and even if I did not want to get into this war in Iraq, we are there now and have to figure out how to deal with the consequences, but right now we can't even have a discussion.

Some more reading One from the New York Times editorials and one from the other side's perspective, well, I went to Foxnews.com to find a story on the passage of the detainee Bill and guess what: I couldn't find a single story discussing today's debate on the Bill. Either they don't think that this is an important issue, or they would never report anything that might question the President's authority under this new Bill. Maybe the New York Times just likes the futility of reporting on a Bill that has not chance of not being passed. Ahh, I have to go to class now and the more I follow this story, the more frustrated I get. (I entreat anyone to point me to articles, blogs, etc. that think the passage of this Bill as it is is really good)

Note on last post

Note on the last post:

If you are wondering why the previous post looks so funny, it is because I posted it before I closed the spell checker and it published the highlighted words.  I guess you can all see where my spelling weaknesses are.  

prisoner debate

It looks like the detainee debate goes on. This article gives a good sum up of what the bill actually does. Basically it gives the president huge discretion to decide what an "outrage to humanity" might mean in terms of torture. Unfortunately, this bill does not do what it should do: define how the military can treat detainees. Bush knows from Hamdan v. Rumsfeld that he cannot do what he was doing before, but without the legislature defining the limits, this bill basically gives him the authority to define a detainee plan as he wishes. He probably wishes as much broad power as possible to carry out his executive military powers, but the courts have acted to limit this. Now the legislature won't hold up its corner of the triangle of balanced powers. The hasty passage of the bill and the lack of debate is probably the result of fear of political fallout. Many democrats who are in hotly contested races do not wish to say X means of torture is OK while Y means of torture is out just to see a campaign add against him saying he supports the use of X.

The other issue that is not entirely clear in this bill is what happens when an American citizen is captured as an "enemy combatant." Clearly understanding the constitution is important in this debate, and unfortunately some Senator's lack of understanding is clouding the actual issues. The constitution does not apply to non-citizens, but it does apply to a citizen who is captured as an "enemy combatant." Some Senators who are voting against this bill are claiming that they are protecting their constituents rights, but if their voting constituents' rights are already protected. What they really need to say is that they are protecting their rights by not passing a bill that does not do what really needs to be done: give definition to the very vague Geneva Conventions. The powers that are given to the executive that are not limited can be used to their fullest extent and then we will not even be able to blame the president, because when the legislature had a chance to place distinct limits, it put its hands down and let this bill pass.

If you are curious, you can read the Senate Bill here or another article about it here. It is unfortunate that this Bill is up for debate right now only about a month before the mid-term election, because the consequences could be far reaching. What is conspicuously lacking right now is a cultural debate about what limits we should actually have on our treatment of detainees.

Torturing the Question

There has been a lot of discussion of prisoner’s rights under the Geneva Convention lately. The Bush administration feels that they should not be bound by the convention, because of the nature of our enemy (they are not a nation-state, they are not uniformed soldiers, and being bound makes fighting the war difficult and puts us at risk). On the other side are the U.N., Amnesty International, and many Senators who believe that as a signatory and as good policy, America is, or should be, bound by the Geneva Conventions. There are a lot of interesting issues here: can torture ever be used? What is America’s obligation to international treaties? How should we treat prisoners of war (as opposed to criminal incarceration of citizens who are guaranteed constitutional rights)? Maybe I will get around to discussing some of these other issues later this semester, but first I wanted to find out exactly what the Geneva Convention says. In all of the news reports that I have heard or read, there is scant reference to the text of the convention itself. It seems that textual analysis is practiced more often by lawyers than by journalists, so undertaking my role in as a lawyer in training, I thought I would reference some of the specific text from the Convention III pertaining to treatment of prisoners:

Part 1, art 2:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Certainly, Al Qaeda is not a party to the convention, nor would they ever wish to be, but does that excuse our obligations under the treaty? Is that unfair? Does upholding the standards in the treaty put us on unfair footing in fighting a rogue enemy that, whether or not we like this war, feels like they are at war with us? Again, I don’t know the answers to these questions, but the text seems to imply that we may still be bound, at least as long as we wish to remain a signatory to the Convention receiving its protections and bound by its duties. (This begs the question of whether the protections of the convention are really worth anything if the enemy is not bound by those same obligations?)

With reference to the treatment of prisoners of war

Art. 4. A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:[ (a) that of being commanded by a person responsible for his subordinates; (b) that of having a fixed distinctive sign recognizable at a distance; (c) that of carrying arms openly; (d) that of conducting their operations in accordance with the laws and customs of war.

This would seem to indicate that the prisoners of war taken in the so called “war on terror,” may not qualify for protections under the treaty. They are commanded by a superior, but they do not necessarily wear a fixed distinctive sign recognizable at a distance, and even if they carry weapons openly, they do not follow in accordance with the laws and customs of war, primarily with respect to targeting civilians.

There may be very good policy reasons for following the Geneva conventions. One, it might just be good moral policy and we wish to operate our wars according to rules that set a certain moral baseline. Secondly, it might prevent the corruption of the treaty standards in those countries that are signatories and who, at some point in the future take American prisoners. There are some policy arguments pointing the other way as well. An article in last weeks New York Times Sunday Magazine made the point that when Col. Mike Bumgarner decided to implement the Geneva Conventions in Guantanamo Bay, he had much more difficulty keeping order in the prison.

That aside, I think it is important to set limits on what kind of tactics are allowed in dealing with detainees. Abu Grab should not be repeated, and both the Supreme Court 's decision in Hamdan v. Rumsfeld banning the Presidents prior policy of allowing "all necessary force" in the fight against terrorism and the bills passed in, Congress this week proposing new regulations for detainees are good signes that the constitutional balance of power might still be working. I am going to wrap this post up now, but this topic leaves many more questions open than it resolves and I hope to return to it throughout the semester.

Bob Dylan and the Law

I am working on a larger post tying together some current events with legal thoughts, but in the mean time, I came across this interesting fact today. A recent study has shown that the most quoted musician in legal writing is Bob Dylan. That is not really surprising for a couple of reasons. First, he is a great writer and stylistically, his language is perfect for quoting. Secondly, Dylan often sings/writes about the themes of justice. Finally, those in a position to have opinions/law reviews/ and other legal writings published are about the age of the generation who grew up on Dylan. I am personally a huge Dylan fan and grew up on his music as much as anyone else, albeit on Cd's as opposed to vinyl, so I am not surprised at all. I just got (thanks!) his new album, Modern Times, and it is great. The album is classic Dylan, while at the same time sounds fresh and unique. You should give it a listen; if anything else, it will give you some good one-liners for your next legal article.

Supremacy Claws

A leit-motif in almost all of my classes this semester is that the Supreme Court is a bunch of uninformed, idiotic fools who do not understand precedent, have not accurately read historical documents, and come up with completely absurd and arbitrary arguments that, "can't you see," are just totally unfounded. All of my professors have tried more than once to get the point across that the Supreme Court does not always get it right, and in some instances, they get things completely wrong. We are not talking about political opinions that are contrary to those I or my professors might hold, such as the way the court will vote on Roe v. Wade, but missteps of logic, misstatements of facts, and blatant editing of prior decisions to suit whatever position the writing justice is attempting to justify. Some of my professor's attitude must come from that fact that they are experts in the area that they teach, and even though the Supreme Court only hears 70 cases a year, those cases cover a vast array of legal topics, and no one can really expect even the most brilliant legal scholars to be experts in all areas of the law. Furthermore, law professors surely all get a boost to their egos when they can point out to a bunch of supreme-court-pedestalizing law students that their reasoning and analysis is far more acute than those sitting on the most powerful court in the country. Thus, I find myself asking: am I witness to the small glories of obscure academics, or am I witness to a purposeful pedagogical technique on behalf of my professors to get us to question authority and think for ourselves? Probably some of both.

barely legal books

I saw a humorous flyer in the halls of the law school today. Some student was selling his/her one-L textbooks and had made a poster with those little phone number flaps. The text of the 81/2" by 11" sheet read:

One-L Text Books
Barely Used

After a year of law school, that student should know by now that the way you use language is extremely important. And while I understood the intended meaning was probably that the books were in good shape with little highlighting or writing in margins, all I could see was the other meaning that he/she barely used his/her books. I must say I appreciated the laugh, but it would be even funnier if the vendor of barely used legal books did not make the linguistic mistake on accident and was actually in on the joke.

Throughout my one-L blog, I made repeated reference to the fact that legal writing had very little humor and that this is mostly due to the serious nature of legal discourse. Appellate opinions, which make up the core of first year curriculum, are taken seriously by both the parties involved and the lawyers who are in the dual role as advocates for their clients and possibly proponents of a new interpretation of a law. Lawyers can make arguments that eventually have the effect of changing the law, and that is rarely a laughing matter, but lest you think the legal world is void of laughter, I must now revise my previous musings by noting that in the lower echelons of the legal pyramid, there is plenty of things to laugh about: mostly, the utterly absurd things done by clients or opposing parties.

I see this in my tort work and my friends who work in criminal law relay plenty of stories of human stupidity like the oft quoted defense to a police officer finding drugs in one's pocket: "these are not my pants. I just borrowed them." I was working on a case last week where one of our clients was treating with a chiropractic for one accident when he was involved in another accident. This particular chiropractor has the patients fill out a self-evaluation at each session. Our client had filled out each self-evaluation form for every treatment before the second accident, on the day of the second accident, and throughout the rest of his treatment with slight variations on this basic sentence: "feeling better, but my neck still hurts." I have never wanted to be an insurance adjuster more than with this particular file. And the truth is, he may really have been in pain, and he may really deserve to be significantly compensated, and maybe he was just being as truthful as he could be. MAYBE, it is important to laugh at clients behind the closed door to your office in order to safely relieve the frustration of them not doing, or saying, what you think they should in order to make their case the perfect case.

My thoughts are just wandering now, but the types of cases I have worked on so far are far from perfect cases. It takes a significant amount of controlled creativity to make arguments that are both validly based on the documented medical evidence and yet convincing enough to elicit some sort of compensation for our client's pain and suffering. More perfect cases definitely exists. Take fore example the plane crash a few weeks ago in Kentucky, I think. The first suits in that case were filed last week. In that instance you have clear negligence on the part of multiple parties and the government, all of which have deep pockets and are heavily endowed with insurance. That is the kind of case that certainly takes work, but all of the factors are weighing in your direction. At the periphery of plaintiff's work and at the my entry gates into this profession, sometimes all I see is vast piles of absurdity. A good laugh, a good days work, and a good night sleep. I think I like being a lawyer.

Please excuse any unclear prose in tonights post. It is late and I have been studying a lot today so that I can leave most of my books behind when I leave for Colorado on Thursday morning for a wedding. If you don't hear from me before then that means I was successful in my attempts to get ahead in my work, and I left my computer behind.