In Theories of International Politics and Zombies, I noted that "one can only speculate" what great power governments were doing to prepare for the contingency of an attack of the undead.  One could argue that the absence of any mention of zombies in the Wikileaks cables suggests that no planning has taken place -- but one would assume that scenarios involving the undead would be classified as Top Secret or higher. 

Courtesy of the New York Times' William Glaberson, however, we now know that the State of New York is thinking seriously about this problem:

Major disasters like terrorist attacks and mass epidemics raise confounding issues for rescuers, doctors and government officials. They also pose bewildering legal questions, including some that may be painful to consider, like how the courts would decide who gets life-saving medicine if there are more victims than supplies.

But courts, like fire departments and homicide detectives, exist in part for gruesome what-ifs. So this month, an official state legal manual was published in New York to serve as a guide for judges and lawyers who could face grim questions in another terrorist attack, a major radiological or chemical contamination or a widespread epidemic.

Quarantines. The closing of businesses. Mass evacuations. Warrantless searches of homes. The slaughter of infected animals and the seizing of property. When laws can be suspended and whether infectious people can be isolated against their will or subjected to mandatory treatment. It is all there, in dry legalese, in the manual, published by the state court system and the state bar association.

Uh-huh... this is for "radiological" or "chemical" contaminations.  Ok.  Right.  Wake up and smell the rotting corpses of the undead, people!!!!!

Seriously, fhe foreword of the New York State Public Health Legal Manual (.pdf) opens with the following explanation/justification: 

 

In today's world, we face many natural and man-made catastrophic threats, including the very real possibility of a global influenza outbreak or other public health emergency that could infect millions of people. While it is impossible to predict the timing or severity of the next public health emergency, our government has a responsibility to anticipate and prepare for such events. An important element of this planning process is advance coordination between public health authorities and our judicial and legal systems. The major actors in any public health crisis must understand the governing laws ahead of time, and must know what their respective legal roles and responsibilities are. What is the scope of the government's emergency and police powers? When may these be invoked, and by which officials? What are the rights of people who may be quarantined or isolated by government and public health officials?

These questions must be researched and answered now-not in the midst of an emergency-so that the responsible authorities have a readymade resource to help them make quick, effective decisions that protect the public interest.

Are planning documents like this useful?  Yes and no.  On the one hand, this kind of thing is a classic example of what Lee Clarke would refer to as a "fantasy document."  In Mission Improbable:  Using Fantasy Documents to Tame Disaster, Clarke argued that plans like these have little chance of success, because an actual crisis contains too much randomness to plan out in advance.  They serve primarily as a way for the state to soothe the the public that Someone Is In Charge and will provide control, order, and stability.  Similarly, Anthony Cordesman argued in October 2001 that pre-crisis government efforts to handle this kind of emergency are likely to disintegrate once the actual crisis emerges. 

On the other hand, as many contributors argued in Avoiding Trivia, even if the plans themselves never work out, the effort to plan can be useful both for crisis and non-crisis situations.  This kind of exercise forces bureaucrats and officials to think about what standard operatijngf procedures won't be so standard in a post-disaster environment.  It also serves as a form of mental aerobics to prepare to the truly unknown unknowns. 

So, on the one hand, kudos to the New York State legal community for thinking about these questions.  On the other hand, I doubt that things will go according to plan.  Plus, I'm really curious to hear whether they think habeas corpus applies to the living dead. 

In honor of The Princess Bride, your humble blogger describes someone as "going Vizzini" when they repeatedly use a word in a way that doesn't correspond to how the rest of society would use it.  

Today's example is the New York Times story, "Attacks on Detainee Lawyers Split Conservatives."  The lead: 

A conservative advocacy organization in Washington, Keep America Safe, kicked up a storm last week when it released a video that questioned the loyalty of Justice Department lawyers who worked in the past on behalf of detained terrorism suspects.

But beyond the expected liberal outrage, the tactics of the group, which is run by Liz Cheney, the daughter of the former vice president, have also split the tightly knit world of conservative legal scholars. (emphasis added)

The story repeatedly argues that the conservative legal community is deeply divided on the issue. Now, I understand split as implying that members of this community are lining up on one side or the other. The thing is, I'm not seeing a lot of evidence that anyone in the conservative legal community is really lining up behind Keep America Safe. The Times story by John Schwartz has a quote by John Yoo that kinda sorta supports the ad, but it's really weak tea -- Yoo "said he had not seen the material from Ms. Cheney’s group," according to the story.    

Then we get to this section: 

A Keep America Safe spokesman responded to a request for comment by passing along links to essays by supporters like Marc A. Thiessen, a columnist for The Washington Post, who wrote on Monday that the detainees did not deserve the same level of representation as criminal defendants.

The lawyers, Mr. Thiessen wrote, “were not doing their constitutional duty to defend unpopular criminal defendants.” He said, “They were using the federal courts as a tool to undermine our military’s ability to keep dangerous enemy combatants off the battlefield in a time of war.”

Thiessen is not a lawyer (he's not the best debater in the world either).  I would describe the conservative legal blogososphere as not really supportive of the ad.   

Even if we expand our orbit to include other prominent conservatives, it seems pretty clear that beyond Thiessen, Bill Kristol, Michelle Malkin, and the Cheneys, there ain't a lotta conservative love for the attack ad.  Over at The Cable, Josh Rogin tried to get a GOP Senator to endorse the ad and failed.  I wouldn't characterize Glenn Greenwald as a defender of the right, but even he notes that, "only the hardest-core ideological dead-enders are defending them." 

The more interesting way to frame this story would have been to show that professional norms do act as a serious constraint on political behavior.  Schwartz quotes David B. Rivkin Jr., co-chairman of the Center for Law and Counterterrorism in exactly this fashion:

“I appreciate the partisan advantage to be gained here,” Mr. Rivkin said, but “it’s not the right way to proceed.” He said he preferred “principled ways for debating where this administration is wrong — there’s no reason to resort to ad hominem attacks.”

So, just to sum up -- the Times got to this story at least a day later than everyone else, and then used an inappropriate frame to describe the situation. There's no conservative legal split -- there's a pretty strong consensus that the Keep America Safe ad crossed the line. 

Here are Tufts University Political Science Professor Dan Drezner and Stanford Philosophy Professor Joshua Cohen demonstrating how good-hearted, profoundly reasonable, oh-so-intellectually sophisticated Americans diligently struggle with -- torture themselves over -- what they have convinced themselves is the vexing question of whether our leaders should be considered "war criminals" by virtue of . . . . having committed unambiguous war crimes.... This is now the conventional wisdom, the settled consensus, of our political and media elites with regard to America's torture program.  It's perfectly appropriate that Drezner cites and heaps praise on the self-consciously open-minded meditation on the torture question from The Atlantic's Ross Douthat because -- as I wrote in response to Douthat -- our political elites have now, virtually in unison, convinced themselves that ambiguity and understanding with regard to American war crimes are the hallmarks of both intellectual and moral superiority.... This is the justifying argument the political class has latched onto -- one that was spawned, revealingly enough, by Bush DOJ official Jack Goldsmith:  sure, some of this might have been excessive and arguably wrong, but it was all done for the right reasons, by people who are good at heart.  So common is this self-justifying American rationalization that it has now even infected the mentality of long-time Bush critics, such as The Los Angeles Times Editorial Page, which today argued that prosecutions for Bush officials are inappropriate, even though they clearly broke multiple laws, because "they did so as part of a post- 9/11 response to terrorism."  As this excellent reply from Diane at Cab Drollery puts it:  "civility and understanding is far more important to them than simple justice."

1. Torture is wrong.
2. Douthat's post gets at the mindset of a majority of Americans in the immediate wake of 9/11
3. Political leaders are supposed to remember the Constitution and ignore the seductive allures of mob psychology -- and therefore should be held accountable fo these actions
4. The Bush administration responded to their pre-9/11 neglect of the terrorist threat by wildly overreacting to possible threats in the post-9/11 era.
5. If you're going to go after Bush administration officials for violating the law, Condi Rice should be pretty far down on the list, since she a) was not in the chain of command on this; and b) despite her formal role, was cut out of the loop on a lot of the decision-making. 

If you are bright and are contemplating a potential career in American politics, you go to a top law school--not a public policy school.  This does not seem to have changed much in recent decades despite everything [Harvard's Kennedy School of Government] has done to make itself visible and relevant.

1. A top policymaking job requires three key attributes:  leadership, discipline, and policy expertise
2. Policy expertise can be earned from various sources -- a public policy degree is one avenue, but hardly the only one
3. A public policy degree, on the other hand, is much more fun to earn than a law degree.  Which means it requires less discipline.
4. By getting a law degree, aspirants to top policymaking jobs are signaling to observers that they can grind their way through a serious amount of drudgery.  
5. Ergo, lawyers with significant policymaking experience are more likely to have the discipline necessary to be good at their jobs.

Of the first 15 cabinet and White House appointments announced by president-elect Barack Obama... three earned degrees from the nondescript buildings off the Strand that house the London School of Economics. The selections of Peter Orszag as budget director and Pete Rouse and Mona Sutphen to the senior White House staff means the LSE only has two less graduates than Harvard in team Obama. LSE currently has one more than traditional American powerhouse universities Princeton (Michelle Obama’s alma mater); Massachusetts Institute of Technology; and Michigan Law School. Mighty Yale can boast only one graduate, Gregory Craig, the next presidential legal counsel, though Hillary Clinton and James Steinberg will triple the score if they end up at the state department.

Based on this interview, it seems unlikely that Obama opposes constitutionalizing the redistributive agenda because he's an originalist, or otherwise endorses the Constitution as a "charter of negative liberties," though he explicitly recognizes that this is how the Constitution has been interpreted since the Founding. Rather, he seems to think that focusing on litigation distracts liberal activists from necessary political organizing, and that any radical victories they might manage to win from the courts would be unstable because those decisions wouldn't have public backing. The way to change judicial decisions, according to Obama, is to change the underlying political and social dynamics; changes in the law primarily follow changes in society, not vice versa. Again, he's channeling Rosenberg and Klarman. And this attitude on Obama's part shouldn't be surprising, given that he decided to go into politics rather than become a full-time University of Chicago constitutional law professor, as he was offered. Had he been committed to the idea that courts are at the forefront of social change, he would have been inclined to take a potentially very influential position at Chicago. (And judging from this interview, he would likely have been a great con law professor, both as a teacher and scholar, and, had he been so inclined, legal activist.) All that said, there is no doubt from the interview that he supports "redistributive change," a phrase he uses at approximately the 41.20 mark in a context that makes it clear that he is endorsing the redistribution of wealth by the government through the political process. What I don't understand is why this is surprising, or interesting enough to be headlining Drudge [UPDATE: Beyond the fact that Drudge's headline suggests, wrongly, that Obama states that the Supreme Court should have ordered the redistribution of income; as Orin says, his views on the subject, beyond that it was an error to promote this agenda in historical context, are unclear.]. At least since the passage of the first peacetime federal income tax law about 120 years ago, redistribution of wealth has been a (maybe the) primary item on the left populist/progressive/liberal agenda, and has been implicitly accepted to some extent by all but the most libertarian Republicans as well. Barack Obama is undoubtedly liberal, and his background is in political community organizing in poor communities. Is it supposed to be a great revelation that Obama would like to see wealth more "fairly" distributed than it is currently? It's true that most Americans, when asked by pollsters, think that it's emphatically not the government's job to redistribute wealth. But are people so stupid as to not recognize that when politicians talk about a "right to health care," or "equalizing educational opportunities," or "making the rich pay a fair share of taxes," or "ensuring that all Americans have the means to go to college," and so forth and so on, that they are advocating the redistribution of wealth? Is it okay for a politician to talk about the redistribution of wealth only so long as you don't actually use phrases such as "redistribution" or "spreading the wealth," in which case he suddenly becomes "socialist"? If so, then American political discourse, which I never thought to be especially elevated, is in even a worse state than I thought.  (emphasis added)

New York City is on track to have fewer than 500 homicides this year, by far the lowest number in a 12-month period since reliable Police Department statistics became available in 1963. But within the city?s official crime statistics is a figure that may be even more striking: so far, with roughly half the killings analyzed, only 35 were found to be committed by strangers, a microscopic statistic in a city of more than 8.2 million. If that trend holds up, fewer than 100 homicide victims in New York City this year will have been strangers to their assailants. The vast majority died in disputes with friends or acquaintances, with rival drug gang members or ? to a far lesser degree ? with romantic partners, spouses, parents and others. The low number of killings by strangers belies the common imagery that New Yorkers are vulnerable to arbitrary attacks on the streets, or die in robberies that turn fatal. In the eyes of some criminologists, the police will be hard pressed to drive the killing rate much lower, since most killings occur now within the four walls of an apartment or the confines of close relationships.

The Terror Presidency: Law and Judgment Inside the Bush Administration

In Goldsmith?s view, the Bush administration went about answering [national security law] questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, ?go-it-alone? view of executive power. As Goldsmith sees it, this strategy has backfired. ?They embraced this vision,? he says, ?because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.?

In Goldsmith?s view, the Bush administration went about answering __noun__ questions in the wrong way. Instead of reaching out to __noun__ and __noun__ for support, which would have strengthened its __adjective__ hand, the administration asserted what Goldsmith considers an unnecessarily broad, ?go-it-alone? view of __noun__ . As Goldsmith sees it, this strategy has backfired. ?They embraced this vision,? he says, ?because they wanted to leave __noun__ stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand __noun__ have diminished it.?

In a unanimous decision that is being hailed as the most important patent ruling in decades, the Supreme Court early this week swept aside the non-obviousness test used by the appeals court. In its place, a common-sense standard based on real-world conditions is to be applied to all patent applications that combine (as most do) elements of existing inventions. The case ruled on by the justices concerned an accelerator pedal developed by a Canadian company called KSR. The pedal could be adjusted for a driver?s height and used an electronic sensor, rather than a mechanical cable, to change the engine speed. Teleflex, a rival manufacturer, demanded royalties, claiming the device infringed one of its patents. KSR argued that Teleflex had combined existing elements in an obvious way, and that its patent was therefore invalid. A district court in Detroit agreed, but the decision was subsequently overturned by the appeals court in Washington, DC. Under the Supreme Court?s new definition of obviousness, Teleflex would have been lucky to get a patent for the pedal in the first place. The justices? opinion has been welcomed by the high-tech community. It is impossible to build a laptop, mobile phone or video recorder without infringing dozens of the thousands of patents that cover the various components involved. Computer firms have responded by engaging in a patents arms race and negotiating cross-licensing deals with everyone they expect will be involved. This is wasteful enough for the Intels, Microsofts and IBMs that can afford such profligate practices. But it can be life or death for smaller, innovative firms. When challenging incumbents? old-fashioned ways, upstarts like Vonage can find themselves forced out of the market by dubious patent litigation rather than actual competition. The Supreme Court?s ruling this week will make such anti-competitive practices harder to sustain. Vonage, for one, may be the first of many to seek legal redress from all the shoddy patents endorsed by America?s over-eager courts.

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.... I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching.

It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror. First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run. Second: Not involving the American public directly in supporting the war.... The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy. Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost.

The combination of the Mayer article and the Hamdan case today brings up an interesting question: To what extent did lawyers in the Administration expect the courts ? and in particular, the Supreme Court ? to agree with the Addington view of the law? Did they think there were five votes in support of the Addington approach, or that the Court would stay away from the issues? Alternatively, did they figure that the first priority was to do what was needed to protect the country in the short term, and that it was better to push the envelope and have the Courts strike down their efforts than not to push at all?

Even in a White House known for its dedication to conservative philosophy, Addington is known as an ideologue, an adherent of an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president.... On the job, colleagues describe Addington as hard-edged and a bureaucratic infighter who frequently clashes with others, particularly the National Security Council's top lawyer, John Bellinger. Officials say disputes between Addington and Jack Goldsmith, head of the Justice Department's Office of Legal Counsel, led Goldsmith to resign after eight months in the job; Addington had sought to persuade OLC to take a more permissive line on torture. Still, even foes admire Addington's work ethic and frugality; he takes Metro from his home in Alexandria instead of using his White House parking space.

James Comey, a lanky, 6-foot-8 former prosecutor who looks a little like Jimmy Stewart, resigned as deputy attorney general in the summer of 2005. The press and public hardly noticed. Comey's farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people who came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were the people committed to getting it right?and to doing the right thing?whatever the price. These people," said Comey, "know who they are. Some of them did pay a price for their commitment to right, but they wouldn't have it any other way." One of those people?a former assistant attorney general named Jack Goldsmith?was absent from the festivities and did not, for many months, hear Comey's grateful praise. In the summer of 2004, Goldsmith, 43, had left his post in George W. Bush's Washington to become a professor at Harvard Law School. Stocky, rumpled, genial, though possessing an enormous intellect, Goldsmith is known for his lack of pretense; he rarely talks about his time in government. In liberal Cambridge, Mass., he was at first snubbed in the community and mocked as an atrocity-abetting war criminal by his more knee-jerk colleagues. ICY WELCOME FOR NEW LAW PROF, headlined The Harvard Crimson. They had no idea. Goldsmith was actually the opposite of what his detractors imagined. For nine months, from October 2003 to June 2004, he had been the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers. Their insurrection, described to NEWSWEEK by current and former administration officials who did not wish to be identified discussing confidential deliberations, is one of the most significant and intriguing untold stories of the war on terror. These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril; ostracized, some were denied promotions, while others left for more comfortable climes in private law firms and academia. Some went so far as to line up private lawyers in 2004, anticipating that the president's eavesdropping program would draw scrutiny from Congress, if not prosecutors. These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men. The rebels were not whistle-blowers in the traditional sense. They did not want?indeed avoided?publicity. (Goldsmith confirmed public facts about himself but otherwise declined to comment. Comey also declined to comment.) They were not downtrodden career civil servants. Rather, they were conservative political appointees who had been friends and close colleagues of some of the true believers they were fighting against. They did not see the struggle in terms of black and white but in shades of gray?as painfully close calls with unavoidable pitfalls. They worried deeply about whether their principles might put Americans at home and abroad at risk. Their story has been obscured behind legalisms and the veil of secrecy over the White House. But it is a quietly dramatic profile in courage.

Last October, the President succumbed to partisan pressure from the extreme right of his party by withdrawing his nomination of Harriet Miers. By withdrawing her nomination and substituting this one, the President has allowed his choice to be vetoed by an extreme faction within his party, before hearings or a vote. That eye-opening experience for the country demonstrated what a vocal faction of the Republican Party really wants: They do not want an independent federal judiciary. They demand judges who will guarantee the results that they want.

a) Opposition to Harriet Miers was across the board; b) The most significant pressure came from.... members of the Senate Judiciary Committee. c) Patrick Leahy apparently believes that all NARAL really wants is for justices to "vote their conscience."