I've blogged on occasion about the development of a sovereigntist lobby that reflexively opposes all treaties because they erode U.S. sovereignty. For these people, any infringement on American sovereignty is a death blow to freedom, regardless of the benefits from joining. This kind of reflexive opposition has caused even stalwart groups on the right to cringe in embarrassment.
This hasn't slowed down the sovereigntists a bit, which led to a somewhat awkward day in the U.S. Senate:
Former Senator Bob Dole of Kansas sat slightly slumped in his wheelchair on the Senate floor on Tuesday, staring intently as Senator John Kerry gave his most impassioned speech all year, in defense of a United Nations treaty that would ban discrimination against people with disabilities.
Senators from both parties went to greet Mr. Dole, leaning in to hear his wispy reply, as he sat in support of the treaty, which would require that people with disabilities have the same general rights as those without disabilities. Several members took the unusual step of voting aye while seated at their desks, out of respect for Mr. Dole, 89, a Republican who was the majority leader.
Then, after Mr. Dole’s wife, Elizabeth, rolled him off the floor, Republicans quietly voted down the treaty that the ailing Mr. Dole, recently released from Walter Reed National Military Medical Center, so longed to see passed.
A majority of Republicans who voted against the treaty, which was modeled on the Americans With Disabilities Act, said they feared that it would infringe on American sovereignty.
The Cable's Josh Rogin has more on today's vote.
Now to be fair to the Republicans who voted "nay," you don't approve a treaty just because Bob Dole favors it. And to be more than fair, it's true that the United States has comparatively robust legislation in the form of the ADA and IDEA.
On the other hand, the point of this convention is to ensure that other countries start embracing the rules and standards codified by the U.S. Americans with Disabilities Act -- you'd think most Republicans would be super-keen on other countries embracing principles of U.S. law. Furthermore, the U.S. Chamber of Commerce also supports the treaty, and I hear that Republicans are pro-business, so that is a bit confusing. I also read that "the treaty was negotiated by the George W. Bush administration," so, again, you can understand my confusion.
If you want to see the arguments against the UN Convention on the Rights of People with Disabilities, click here, here, here, here, and here. As near as I can determine, critics don't like the treaty because... it's a treaty. Most of the objections are either bogus or unsubstantiated by practice. As Joshua Keating notes, "a perfectly reasonable treaty was just rejected based on a complete misreading of it."
The treaty’s critics, like the conservative Heritage Foundation, were left arguing that the treaty shouldn’t be ratified if the US already complied with its intent, since endorsing the treaty could lead to problems down the road by unspecified means. That dismayed the treaty’s advocates, who see the treaty’s value in the message it sends to other countries about the importance of protecting disabled people. “It’s a treaty to change the world to be more like America,” protested John Kerry, the Democratic Chairman of the Senate Foreign Relations Committee, before the failed vote.
Dana Milbank notes that sometimes the treaty's opponents contradicted their own arguments:
[O]pponents couldn’t agree on how this box would be opened. “Do I believe that states will pass laws or have to pass laws in conformity with the U.N. edict?” [Rick] Santorum asked himself. “Do we have to amend IDEA?” the Individuals with Disabilities Education Act. “I don’t have any fear anytime soon that IDEA will be amended. But I do have concerns that people will go to courts and they will use this standard in this convention.”
This was contradicted by the next man at the microphone, home-schooling advocate Mike Farris, who pointed out that the document has a provision stating that “you can’t go to court automatically. You must have implementing legislation first” — the very thing Santorum says he does not expect to happen.
Still, their spurious theory of a U.N. takeover of parenting was enough to lead Lee and Santorum to oppose a treaty that would extend American values worldwide and guarantee disabled people equal treatment, and freedom from torture and exploitation.
Now I'm honestly pretty dubious about whether U.S. ratification of the treaty would accomplish all that. Unlike Law of the Sea, not ratifying this treaty doesn't appreciably harm U.S. interests. It does, however, make the United States look pretty dysfunctional. In essence, the U.S. Senate just rejected a treaty on protecting the disabled that would have globalized the status quo in U.S. law on this issue. To use the parlance of international relations scholars, this is dumber than a bag of hammers.
Your humble blogger has been relatively
lazy circumspect in blogging about the Dominique Strauss-Kahn affair. The latest turn of events, however, has rousted me from my vacation torpor to ask just one simple question: are you friggin' kidding me??!!!
Both the New York Times and New York Post carry stories containing more prosecutor leaks than the Titanic suggesting that the woman DSK allegedly attacked was "a con artist." according to one blind quote. From the Times account:
Well, this is pretty simple -- if the prosecutors are leaking this stuff, then the charges are going to be dropped. Dominique Strauss-Kahn will be a free man, thereby re-convulsing the French political scene. I'm also expecting a super-fun flurry of discussion about the dangers of immigration from tis latest turn of events.
The story can't end here, however. Readers are therefore warmly encouraged to suggest how Act III of l'affaire-DSK will play itself out in the comments section.
Here's my suggestion: DSK and his wife Anne Sinclair will proft handsomely from a wrongful prosecution settlement with the city of New York. After that, they decamp to the island of Tahiti. At which point, Neve Campbell turns out not to be dead and, in league with Sinclair, eliminates DSK so they can enjoy their riches with the help of Bill Murray.
[Implausible, I say!!--ed. I say, not implausible enough!!!]
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.
Thanks to alert historian friend S.L., it's worth noting that 220 years ago today, Moses Seixas, representing the Hebrew Congregation in Newport, Rhode Island, wrote on behalf of "the children of the stock of Abraham" to President George Washington, on the occasion of his visit to Rhode Island and Providence Plantations. In his reply, Washington wrote the following:
It is now no more that toleration is spoken of as if it was the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights. For happily, the government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.
If you click through the link, you'll see that Washington echoed Seixas' language, reaffirming
that Jews have run the country since day one its eloquence.
It's a good thing this kind of sentiment is now accepted wisdom in America, otherwise we might be
having galactically stupid arguments about the subject mired in draining, no-win conversations about religion.
cliff1066™ / Flickr.com
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.”
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.
Over at Duck of Minerva, Charli Carpenter has some interesting blog posts on recent trends in civilian casualties of interstate wars. These casualties are traditionally divided into two categories. The more prominent category is the intentional targeting of civilians by militaries -- what we now call "war crimes." The other category is the unintentional killing of civilians in the course of routine military operations -- what is often referred to as "collateral damage."
Carpenter is asking the question, "what percentage of total civilian deaths are 'collateral damage' and is this percentage trending up or down over time?" Her first, very preliminary cut at an answer -- remember, this is a blog post, not the American Political Science Review -- is rather surprising:
This analysis suggests that collateral damage rather than war crimes now constitute the majority of civilian deaths in international wars worldwide, and that the total number of collateral damage deaths is 20 times higher than at the turn of the last century.
The ratio of collateral damage victims to war crimes victims has dramatically increased since the end of the Cold War. According to Downes' dataset, between 1823 and 1900, unintentional deaths constituted 17% of all deaths in war. Since 1990, that number has risen to 59%....
In other words, the majority of civilian deaths since 1990s have not been war crimes but have been perfectly legal "accidental" killings. Of course this could partly be a result of a decrease in direct targeting of civilians over time, which would be a good thing.
But collateral damage is not only increasing as a percentage of all civilian deaths. The number of collateral damage victims is also increasing over time in absolute terms. Between 1823 and 1900, 84 civilians per year on average were the victims of collateral damage. Since 1990, the number is 1688 per year - a twenty-fold increase (emphases in original).
This finding, if it holds up, is surprising for two reasons. First, the number of interstate wars has been trending downward for the last thirty years -- so an increase in the absolute numbers of civilian collateral damage would not be expected. Second, this bump in collateral damage also took place during a revolution in precision-guided munitions -- which, in theory, was supposed to reduce the likelihood of collateral damage.
One could argue that the good news portion of this is that the intentional killing of civilians is trending downward. And I'd like the security studies readers to go over Carpenter's approach to see if it holds up.
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."Yes, because we all know that the exact administration of justice is best when it lacks understanding. This is certainly true of Greenwald, who appears not to have actually listened to what Cohen and I actually said to each other. I was pretty explicit about the following:
So there are logical reasons why lawyers might be getting the top foreign-policy posts. Are these substantively good reasons, however? As a professor with an interest in seeing his graduates thrive in the public sector, I think attending a public-policy school should send an even stronger signal. It should say that the person in question is well-trained and has the other traits necessary for a leadership position. Perhaps the next step should be to make the first year of a public-policy degree more like the first year of law school. After all, why should one-Ls have all the fun?[Cue Satanic cackle here!!--ed.]
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.While I'm glad that the Fletcher School can claim at least one cabinet appointment, Rodrik raises an interesting question -- why do law school grads get the foreign policy jobs coveted by public policy school grads? I can think of a couple of reasons. The first is really simple -- if you're going to be writing laws, it helps to be a lawyer. The second reason is simple path dependence. The original gangsters of the foreign policy community were lawyers. The best way to get a top policymaking job is to made your mark by serving as a loyal deputy to past top policymakers. Since people are more likely to hire their own, it's not surprising that lawyers would hire other lawyers. The second reason is signaling. Follow this logic:
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.
A seven-page questionnaire being sent by the office of President-elect Barack Obama to those seeking cabinet and other high-ranking posts may be the most extensive — some say invasive — application ever. The questionnaire includes 63 requests for personal and professional records, some covering applicants’ spouses and grown children as well, that are forcing job-seekers to rummage from basements to attics, in shoe boxes, diaries and computer archives to document both their achievements and missteps.Here's a link to the actual questionnaire. I think Question 10 would do me in:
Writings: Please list and, if readily available, provide a copy of each book, article, column, or publication (including but not limited to any posts or comments on blogs or other websites) you have authored, individually or with others. Please list all aliases or "handles" you have used to communicate on the Internet.This rules me out -- but I really pity the poor RA at Harvard tasked to answer this question for Cass Sunstein.
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)I'm general not keen on used the state to redistribute wealth simply in order to reduce income inequality. This is not an aspect of Obama's platform that fills me with warm fuzzies. To go from there to "SOCIALIST!! SOCIALIST!!" however, is just nuts. By this criteria, Milton "negative income tax" Friedman was also a socialist.
The world?s well established democracies are increasingly prepared to give credibility to authoritarian regimes, failing to probe how autocracies conduct flawed elections to bolster their international standing, a leading human rights body said on Thursday. In its annual survey of democracy across the world, Human Rights Watch argues that the US and the European Union are too quick to support ?sham democracies? in states like Pakistan, Egypt, Ethiopia and Kazakhstan, turning a blind eye to their abuse of underlying civil and political rights. ?In 2007, too many governments...acted as if simply holding a vote was enough to prove a nation ?democratic,? and Washington, Brussels and European capitals played along,? Human Rights watch said in its latest report.This is difficult to dispute. That said, Roth's introduction reveals an interesting tension between the human rights and democracy promotion agendas:
Part of the reason that dictators can hope to get away with such subterfuge is that, unlike human rights, ?democracy? has no legally established definition. The concept of democracy reflects the powerful vision that the best way to select a government and guide its course is to entrust ultimate authority to those who are subject to its rule. It is far from a perfect political system, with its risk of majoritarian indifference to minorities and its susceptibility to excessive influence by powerful elements, but as famously the ?least bad? form of government, in the words of Winston Churchill, it is an important part of the human rights ideal. Yet there is no International Convention on Democracy, no widely ratified treaty affirming how a government must behave to earn the democracy label. The meaning of democracy lies too much in the eye of the beholder. By contrast, international human rights law grants all citizens the right to ?take part in the conduct of public affairs, directly or through freely chosen representatives? and to ?vote? in ?genuine periodic elections? with ?universal and equal suffrage? and ?secret ballot? so as to ?guarantee the free expression of the will of the electors.? It also grants a range of related rights that should be seen as essential to democracy in any robust and meaningful form, including rights protecting a diverse and vigorous civil society and a free and vibrant press, rights defending the interests of minorities, and rights ensuring that government officials are subject to the rule of law. The specificity and legally binding nature of human rights are their great strength. But when autocrats manage to deflect criticism for violating these rights by pretending to be democrats, when they can enjoy the benefits of admission to the club of democracies without paying the admission fee of respect for basic rights, the global defense of human rights is put in jeopardy. Why bother complying with so intrusive a set of rules as international human rights law when, with a bit of maneuvering, any tyrant can pass himself off as a ?democrat??On the one hand, Roth is correct so far as the state of international law is concerned. On the other hand, it's far from clear that the clarity of human rights law has had appreciable effects on, you know, respect for human rights. Indeed, whether human rights treaties have had any effect on state behavior is a disputed point in both international relations and international law scholarship. Compared to the various waves (and smaller counterwaves) of democratization that have occurred in recent decades, however, the advancement of human rights looks like its lagging pretty badly. So I'm not sure that the codification of human rights law is the great advancement that Roth proclaims it to be.
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.That last fact is too bad -- I was looking forward to the day when the combined number of homicides on Law & Order, Law & Order: Special Victims Unit, and Law & Order: Criminal Intent exceeded the actual number of homicides in the five boroughs. Hmmm.... come to think of it, most of these shows are set in Manhattan. I wonder if we hae reached the point when the annual number of homicides in that borough are less than the number of homicides that would be portrayed on television. Not just the L&O franchise, but also CSI: NY and the half-dozen other crime shows I'n sure are set in the city. Readers, go and check this out!
Nebraska State Senator Ernie Chambers has had enough of plagues, famines, droughts, hurricanes, and genocides. Chambers considers these incidents to be terrorists acts. To stop them, he's suing the person responsible for them?God. Chambers, who before becoming a state legislator was a barber, filed a lawsuit last Friday in Nebraska's Douglas County District Court, naming himself as the plaintiff and God as the defendant, a permanent injunction "ordering defendant to cease certain harmful activities and the making of terroristic threats."You can read the whole court filing by clicking here. Before the Voloh Conspiracy and Opinio Juris get a hold of this, I have to sday that my favorite bit is this: "Defendant has made and continues to make terroristic threats of grave harm to innumerable persons." Whoa there -- Chambers has concrete information about these new threats? After an allegation like that, if I was God's lawyer I'd advise him to
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.?Let's have some Madlibs fun and insert some blanks into this paragraph:
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.?Discussion question: would it be safe to say that this applies to almost every Bush administration policy initiative?
I completely disagree with the Court?s ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that ?shit? and ?fuck? are fine to say on broadcast television during the hours when children are most likely to be in the audience. The court even says the Commission is ?divorced from reality.? It is the New York court, not the Commission, that is divorced from reality in concluding that the word ?fuck? does not invoke a sexual connotation.A few questions:
1) Did Martin write this himself or did people with actual training in press relations whip this statement up? 2) By the FCC's interpretation, is Martin is obnoxiously hitting on erveryone who reads his statement? 3) Am I obviously encouraging rape and bestiality when I say, "F#$% Kevin Martin and the horse he rode in on?" or could I have a different intent in mind? 4) As Adler asks, "Given the Second Circuit's ruling, could a network air Martin's remarks without fear of federal sanction?"
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.
The White House suggested two years ago that the Justice Department fire all 93 U.S. attorneys, a proposal that eventually resulted in the dismissals of eight prosecutors last year, according to e-mails and internal documents that the administration will provide to Congress today. The dismissals took place after President Bush told Attorney General Alberto R. Gonzales in October that he had received complaints that some prosecutors had not energetically pursued voter-fraud investigations, according to a White House spokeswoman. Gonzales approved the idea of firing a smaller group of U.S. attorneys shortly after taking office in February 2005. The aide in charge of the dismissals -- his chief of staff, D. Kyle Sampson -- resigned yesterday, officials said, after acknowledging that he did not tell key Justice officials about the extent of his communications with the White House, leading them to provide incomplete information to Congress. Lawmakers requested the documents as part of an investigation into whether the firings were politically motivated. While it is unclear whether the documents, which were reviewed yesterday by The Washington Post, will answer Congress's questions, they show that the White House and other administration officials were more closely involved in the dismissals, and at a much earlier date, than they have previously acknowledged.
Opinio Juris is very pleased to announce that John Bellinger will be guest blogging with us for the week of January 15. As our readers well know, Bellinger is the State Department Legal Adviser, the top lawyer at the Department of State. In that capacity he is the principal adviser on all domestic and international law matters to the Department of State, the Foreign Service, and the diplomatic and consular posts abroad. Full details of his bio are available here. The format will be as follows. Bellinger will post six posts over the course of next week. The discussion will begin on Monday morning with an introduction to the Legal Adviser?s office, and then turn to substantive discussions of the treatment of detainees, international humanitarian law, and sovereign immunity.UPDATE: Another first for bloggers.
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.Both Barnett and Kerr observe how Hamdan highlights the Bush administration's strategic miscalculations on this issue. Barnett first:
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.Finally, Orin Kerr:
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?Talk amongst yourselves.... and play nice. UPDATE: Stephen Bainbridge ponders next steps for Congress.
"It is often not at all the situation that the president doesn't intend to enact the bill."Michelle Boardman, a deputy assistant attorney general, testifying before a Senate pane on presidential signing statementsl, as quoted in the New York Times. Getting rid of the double negative, and this translates into, "the president often intends to enact the bill." Not always, but often. Which is great, but I always thought that when Congress passes a law -- no matter how stupid that law might be -- the president is always supposed to implement it. UPDATE: Obviously, the president can veto a bill. Signing a bill and only partially implementing it, however, is another kettle of fish entirely. To be fair, let's see how Boardman expands on her comments:
Michelle Boardman, a deputy assistant attorney general, said the statements were "not an abuse of power." Rather, Ms. Boardman said, the president has the responsibility to make sure the Constitution is upheld. He uses signing statements, she argued, to "save" statutes from being found unconstitutional. And he reserves the right, she said, only to raise questions about a law "that could in some unknown future application" be declared unconstitutional.The problem with this line of reasoning is that the current president is operating under a theory of executive branch power that is way, way out of the mainstream. I'm not opposed to signing statements in principle -- indeed, they probably serve as useful guidance for executive branch agencies. However, quotes like the one above give me hives. ANOTHER UPDATE: Thanks to Appalled Moderate for adding more context to Broadman's comments. YET ANOTHER UPDATE: Orin Kerr puts his finger on the larger problem:
It seems to me that the Bush Administration?s approach to Article II powers has two features: (1) an unusually broad view of Article II powers and (2) a refusal to explain in detail the Administration?s broad view of Article II powers. Most criticism of the Administration?s approach has focused on (1). I?m no expert on these issues, but my sense is that, from a structural perspective, the real difficulty is the combination of (1) and (2).
One document, which is marked ?secret? but is not classified, is a twenty-two-page memo written by Mora. It shows that three years ago Mora tried to halt what he saw as a disastrous and unlawful policy of authorizing cruelty toward terror suspects. The memo is a chronological account, submitted on July 7, 2004, to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the U.S. detention facility at Guant?namo Bay, Cuba. It reveals that Mora?s criticisms of Administration policy were unequivocal, wide-ranging, and persistent. Well before the exposure of prisoner abuse in Iraq?s Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bush?s decision, in February, 2002, to circumvent the Geneva conventions, which prohibit both torture and ?outrages upon personal dignity, in particular humiliating and degrading treatment.? He argued that a refusal to outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to abuse. Mora also challenged the legal framework that the Bush Administration has constructed to justify an expansion of executive power, in matters ranging from interrogations to wiretapping. He described as ?unlawful,? ?dangerous,? and ?erroneous? novel legal theories granting the President the right to authorize abuse. Mora warned that these precepts could leave U.S. personnel open to criminal prosecution. In important ways, Mora?s memo is at odds with the official White House narrative.... Mora thinks that the media has focussed too narrowly on allegations of U.S.-sanctioned torture. As he sees it, the authorization of cruelty is equally pernicious. ?To my mind, there?s no moral or practical distinction,? he told me. ?If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America?even those designated as ?unlawful enemy combatants.? If you make this exception, the whole Constitution crumbles. It?s a transformative issue.?Second, the description of Mora sounds similar to the conservative DOJ lawyers who nevertheless resisted Bush's proposed policy changes:
Mora?whose status in the Pentagon was equivalent to that of a four-star general?is known for his professional discretion, and he has avoided the press. This winter, however, he agreed to confirm the authenticity and accuracy of the memo and to be interviewed.... Mora, a courtly and warm man, is a cautious, cerebral conservative who admired President Reagan and served in both the first and the second Bush Administrations as a political appointee. He strongly supported the Administration?s war on terror, including the invasion of Iraq, and he revered the Navy. He stressed that his only reason for commenting at all was his concern that the Administration was continuing to pursue a dangerous course. ?It?s my Administration, too,? he said.Third, the degree of duplicity going on just depresses the living hell out of me. Consider this section:
Without Mora?s knowledge, the Pentagon had pursued a secret detention policy. There was one version, enunciated in [Pentagon general counsel William] Haynes?s letter to [Senator Patrick] Leahy, aimed at critics. And there was another, giving the operations officers legal indemnity to engage in cruel interrogations, and, when the Commander-in-Chief deemed it necessary, in torture. Legal critics within the Administration had been allowed to think that they were engaged in a meaningful process; but their deliberations appeared to have been largely an academic exercise, or, worse, a charade. ?It seems that there was a two-track program here,? said Martin Lederman, a former lawyer with the Office of Legal Counsel, who is now a visiting professor at Georgetown. ?Otherwise, why would they share the final working-group report with [head of Southern Comabd General James] Hill and [Guant?namo commander General Geoffrey] Miller but not with the lawyers who were its ostensible authors??.... The senior Defense Department official defended as an act of necessary caution the decision not to inform Mora and other legal advisers of official policy. The interrogation techniques authorized in the signed report, he explained, were approved only for Guant?namo, and the Pentagon needed to prevent the practices from spreading to other battlefronts. ?If someone wants to criticize us for being too careful, I accept that criticism willingly, because we were doing what we could to limit the focus of that report . . . to Guant?namo,? the official said. In fact, techniques that had been approved for use at Guant?namo were quickly transferred elsewhere. Four months after General Miller was briefed on the working-group report, the Pentagon sent him to Iraq, to advise officials there on interrogating Iraqi detainees. Miller, who arrived with a group of Guant?namo interrogators, known as the Tiger Team, later supervised all U.S.-run prisons in Iraq, including Abu Ghraib. And legal advisers to General Ricardo Sanchez, the senior U.S. commander in Iraq at the time, used the report as a reference in determining the limits of their interrogation authority, according to a Pentagon report on Abu Ghraib. A lawyer involved in the working group said that the Pentagon?s contention that it couldn?t risk sharing the report with its authors ?doesn?t make any sense.? He explained, ?We?d seen everything already.? The real reason for their exclusion, he speculated, was to avoid dissent. ?It would have put them in a bind,? he said. ?And it would have created a paper trail.?UPDATE: Here's a link to Mora's memo (hat tip: Andrew Sullivan). ANOTHER UPDATE: I've met John Yoo several times at conferences, and each time I've found him an engaging individual with a lively mind. But I have to think he's engaging in wishful thinking in this response to a Foreignpolicy.com interview:
I would like to say that it is my understanding that the United States does not engage in torture, and that the reports of abuses that have occurred in Iraq or elsewhere appear to have been the result of individuals acting outside official policy. Abuses, while regrettable, sometimes happen in large organizations when individuals violate the rules.Link via Greg Djerejian.
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.I dredge this up because Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas have written a much fuller account (and some regretfully overripe language) of this tension within the administration for Newsweek (link via Orin Kerr):
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.Read the whole thing. I have nothing to add but this -- I've known Jack Goldsmith for many years from his time at the University of Chicago. If you think that Goldsmith is either a RINO or a squishy "must kowtow to all forms of international law" kind of guy, well, then you don't know Jack. The fact that Addington, Cheney, and by extension Bush managed to force out people like Goldsmith and Comey means that the legal consensus within the administration is way, way outside the legal mainstream. Oh, and one other thing: Henry Farrell is right. Those who criticized Goldsmith's appointment to Harvard Law School on ethical grounds (click here for one example) have a hell of a lot of crow to consume.
Google Inc. is refusing to obey a Justice Department demand that it release information about what people seek when they use the popular search engine, setting up a possible battle with broad implications for Internet privacy rights. The Justice Department asked a federal court this week to force Google to turn over a trove of information on how people use the Internet. A subpoena, first sought over the summer, seeks activity on Google's search engines for a single week, a request that Google says could lead to identifying millions of people and what they were looking at. The government, which says its request will not result in identifying individual computer users, wants to use the information to resurrect an online pornography law shot down last year by the U.S. Supreme Court. It wants to search Google queries to see how often users inadvertently run across sexual material. The Internet's rise has raised issues of whether users would be vulnerable to electronic eavesdropping of all kinds, but Google's stand represents the first big public face-off between the world's leading search engine and the government.... Yahoo, which has the second most popular Internet search engine, acknowledged Thursday it has complied with the government on a "limited basis." Other Internet search engines also appear to have complied with the request, said Chris Winfield, president of 10e20 LLC, a New York-based search engine marketing firm. "It looks like Google against everyone," he said.Oddly, Google has issued no official comment. [UPDATE: check out this San Jose Mercury News story, however.] I'm not competent to comment on the legality of the request, but the thing that struck me is that the DOJ is being unbelievably lazy. The DOJ wants to show that online searches lead to inadvertent stumbles into porn. It is true that the best way to show this would be to retrieve a sample of searches. However, almost as good would be for the DOJ to commission some social scientist to do the research for them. It would not be hard for a researcher to run an experiment to gather this kind of data, and the results would be just as useful to the Department of Justice. There's something else that disturbs me about this request. If Yahoo! and other search engines have already complied, then the DOJ doesn't really need Google's data. All of the search algorithms are pretty much identical -- which means that Justice already has a sufficiently large sample. Even if the differences are more important than I think, the companies cooperating with the DOJ already represent a larger combined market share than Google, so it's not clear that their cooperation is really necessary for the DOJ to make its evidentiary argument. So why continue to press Google? I see one of two possibilities:
1) The data they have doesn't support the administration's supposition, and they're hoping Google will bail them out; 2) They don't care about the data for this case as much as they do about establishing a legal precedent and/or intimidating Google into compliance.Readers are encouraged to try and diving what the DOJ is thinking. UPDATE: One other quick thought -- although I doubt they acted for these reasons, this is brilliant PR for Google. Their spectacular growth and ever-increasing range of activities had threatened to turn cultural perceptions against the firm. By resisting the Bush administration -- in contrast to Yahoo's capitulation -- Google will look very, very good to all the syberlibertarians oiut there.
A company that runs sports fantasy leagues is asking a federal court to decide whether major leaguers' batting averages and home run counts are historical facts that can be used freely or property that can be sold. In a lawsuit that could affect the pastime of an estimated 16 million people, CBC Distribution and Marketing wants the judge to stop Major League Baseball from requiring a license to use the statistics. The company claims baseball statistics become historical facts as soon as the game is over, so it shouldn't have to pay for the right to use them.... CBC, which has run the CDM Fantasy Sports leagues since 1992, sued baseball last year after it took over the rights to the statistics and profiles from the Major League Baseball Players Association and declined to grant the company a new license. Before the shift, CBC had been paying the players' association 9 percent of gross royalties. But in January 2005, Major League Baseball announced a $50 million agreement with the players' association giving baseball exclusive rights to license statistics.... Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to "commercially exploit the identities and statistical profiles" of big league players.... Ben Clark, a St. Louis attorney who specializes in intellectual property rights, said a win by Major League Baseball could "send a shudder through the entire fantasy industry," he said. On the other hand, he said, it stands to lose the rights to any royalties for use of statistics. "You just wonder whether it's a fight Major League Baseball wants to have," he said.I find it hard to believe that MLB could win this in court -- and the PR backlash from going after fantasy baseball operators isn't going to win them any plaudits either. Over at Baseball Musings, David Pinto has some useful links, including this nugget of information that appears to completely undercut MLB's case:
IP lawyer Kent Goss is quoted as citing an interesting 2001 case in which MLB themselves claimed that player names and statistics were (as far as I can interpret) both in the public domain and free for others to profit from, and the California Court of Appeal upheld MLB's right to use the names and stats of historical players. "A group of former players sued MLB for printing their names and stats in game programs, claiming their rights to publicity were violated," Goss said. "But the court held that they were historical facts, part of baseball history, and MLB had a right to use them. Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001)."In other words, five years ago MLB was making the opposite argument of what it's saying now. This leads me to a question I can't answer -- what on earth prompted baseball to adopt such a hard-line position on an issue it knows it probably can't win in the courts?
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.Right. I'm pretty sure that:
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."This should be an easy one to top -- get to it, readers!!! UPDATE: Click here to find out who won!
There is a song in Gilbert and Sullivan's light opera "The Mikado" in which the title character reveals that one of his goals is "to let the punishment fit the crime." It appears that a number of judges around the country share that objective. In various jurisdictions and for various crimes, judges have ordered individuals to spend a night in the woods, act as a school crossing guard, stand along busy streets with signs around their necks proclaiming their misdeed and even watch a film about violent neo-Nazis, "American History X." Some of the judges involved said that they imposed these sentences to make criminals better understand the harm they caused or could have caused. This month, an Arkansas woman who passed a stopped school bus and struck and killed a child was sentenced to spend one day a year in jail for 10 consecutive years, with the date to coincide with the date on which the child died.Am I the only one who believes that ten days in jail stretched out over ten years is an extraordinarily lenient sentence for vehicular manslaughter? At first I thought this was an error in the Trib story -- but it's not:
Tiffany Nix, 25, was ordered to spend every September 28 through 2015 in jail for the 2004 death of 9-year-old William "Isaac" Brian. Nix pleaded guilty Tuesday to manslaughter and passing a stopped school bus. The judge ordered Nix to pay Isaac's family $5,694.62 for his funeral expenses. She will also be on probation for 10 years and must perform 400 hours of community service. The boy's father, Kelly Brian, said after the hearing that he and his wife, Shari, were satisfied with the sentence. Prosecutors had said Nix had opiates and amphetamines in her system at the time of the accident. She had initially been charged with negligent homicide, but prosecutors upgraded the charge after receiving results from laboratory tests. In a written statement included in a police report, Nix said she saw the school bus but did not see its stop sign. She said she did not realize the bus was stopped until she saw the boy running in front of it. Isaac's death prompted legislators to toughen penalties for passing stopped school buses.As an aside, those tougher penalties don't seem to be working. A question to the prosecutors in the audience -- given the circumstances, is this kind of jail time par for the course for a manslaughter conviction? [Do you have any better ideas?--ed. Well, my wife, upon reading the story, had the instinctive reaction: "Put her in solitary for a few years, but on the date the child died release her into the general inmate population and tell everyone what she did." But you should see how responds if the kitchen is really messy.]
Daniel W. Drezner is professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University.