Showing posts with label law. Show all posts
Showing posts with label law. Show all posts

Tuesday, April 21, 2009

Obama's Gitmo

Obama's Gitmo. By William McGurn
WSJ, Apr 21, 2009

Helen Thomas: Why is the president blocking habeas corpus from prisoners at Bagram? I thought he taught constitutional law. And these prisoners have been there . . .
Robert Gibbs: You're incorrect that he taught on constitutional law.

You know we live in interesting times when Helen Thomas is going after Barack Obama. Miss Thomas was asking the White House press secretary last week why detainees at Bagram Air Base in Afghanistan should not have the same right to challenge their detention in federal court that last year's Supreme Court ruling in Boumediene v. Bush gave to Guantanamo's detainees. All Mr. Gibbs could do was interrupt and correct the doyenne of the White House press corps about Mr. Obama's class as a law professor.

The precipitate cause of Miss Thomas's question was a ruling earlier this month by federal district Judge John Bates. Judge Bates says that last year's Supreme Court ruling on Gitmo does apply to Bagram. The administration has appealed, saying that giving detainees such rights could lead to protracted litigation, disclosure of intelligence secrets and harm to American security. The wonderful irony is that, at least on the logic, everyone is right.

Start with Judge Bates. The judge is surely correct when he says the detainees brought in to Bagram from outside the country are "virtually identical" to those held at Guantanamo. He's also correct in asserting that the Supreme Court ruled the way it did out of concern "that the Executive could move detainees physically beyond the reach of the Constitution and detain an individual" at Bagram.

But President Obama's appeal is also right. Though most headlines from the past few days have focused on the release of Justice Department memos on CIA interrogation, the president's embrace of the Bush position on Bagram is far more striking. Mr. Gibbs became tongue-tied while trying to explain that stand. But the Justice Department brief is absolutely correct in asserting that "there are many legitimate reasons, having nothing to do with the intent to evade judicial review, why the military might detain an individual in Bagram."

Finally, critics like Miss Thomas also have it right. In a long and thorough post called "Obama and habeas corpus -- then and now," Glenn Greenwald, a former constitutional law litigator who blogs at Salon.com, exposes the gaping contradiction between past Obama rhetoric on the inviolability of the right to habeas corpus and the new Obama reality. He also quotes Mr. Obama's reaction to Boumediene as a "rejection of the Bush administration's attempt to create a legal black hole at Guantanamo."

Manifestly, Mr. Greenwald believes that "black hole" is simply moving to Bagram. "I wish I could be writing paeans celebrating the restoration of the Constitution and the rule of law," he writes. "But these actions -- these contradictions between what he said and what he is doing, the embrace of the very powers that caused so much anger towards Bush/Cheney -- are so blatant, so transparent, so extreme, that the only way to avoid noticing them is to purposely shut your eyes as tightly as possible and resolve that you don't want to see it, or that you're so convinced of his intrinsic Goodness that you'll just believe that even when it seems like he's doing bad things, he must really be doing them for the Good."

How can all these people be right? The answer is that each is responding to a different contradiction raised by the president's Guantanamo policy. In an impassioned 2006 speech on the Senate floor on the right to habeas corpus, Mr. Obama declared, "I do not want to hear that this is a new world and we face a new kind of enemy." During the campaign, his language implied that all we needed to settle the detainee issue once and for all was to shut down Gitmo.

As president, he is finding out that this very much is a new world, that we do face a new enemy, and that the problems posed by Guantanamo have less to do with the place than the people we detain there.

Put simply, the U.S. needs the ability to detain people we know to be dangerous without the evidence that might stand up in a federal criminal court. Because we can't say when this war will end, moreover, we also need to be able to detain them indefinitely. This is what makes the war on terror different, and why our policies will never fit neatly into a legal approach that is either purely criminal or purely military.

The good news is that Mr. Obama is smart enough to know that the relative obscurity of Bagram, not to mention the approval he has received on Guantanamo, enables him to do the right thing here without, as Mr. Greenwald notes, worrying too much that he will be called to account for a substantive about-face.

The bad news is that we seem to have reached the point where our best hope for sensible war policy now depends largely on presidential cynicism.

Saturday, April 11, 2009

Analysis: Diminishing “Geneva rights”? General Noriega and extradition

Analysis: Diminishing “Geneva rights”? By Lyle Denniston
SCOTUS Blog, Friday, April 10th, 2009 9:33 pm

Excerpts:

From early in the U.S. government’s detention of individuals rounded up in the “war on terrorism,” the prisoners have been attempting to gain the protection of a major human rights treaty: the series of agreements known as the Geneva Conventions – a part of international law for 60 years. The Conventions bar the use of torture, abuse, humiliation and acts of indignity against those held in captivity during wartime.

[...]

However, in a filing with Judge Walton on Thursday, the Obama Administration — in its first formal argument on the point in court — took the position that Geneva rights cannot be enforced in court by detainees as they challenge their confinement. That is a position the Bush Administration had taken repeatedly. And that position has just gained new support in a federal appeals court, the Eleventh Circuit Court based in Atlanta.

The Circuit Court ruling, issued Wednesday, did not involve Guantanamo prisoners (the case, in fact, involved former Panamanian dictator Manuel Noriega, who is trying to prevent his transfer to France to be tried on new criminal charges). Nevertheless, the decision formed a part of the Obama Administration’s argument Thursday in opposing court enforcement of Geneva rights.

In the course of making that point, the new Justice Department put new stress on a more sweeping legal claim (also made repeatedly by the Bush Administration). The argument is that the courts have no authority, in detainee cases, to rule on the conditions of confinement at Guantanamo Bay.

Congress, the new filing argued, took away that authority in the Military Commissions Act of 2006, and the Supreme Court did not restore it last June in Boumediene v. Bush, recognizing habeas rights for Guantanamo prisoners.

Specifically at issue before Judge Walton is the Third Geneva Convention, formally known as the Geneva Convention Relative to the Treatment of Prisoners of War. The judge called for new briefs on a long-standing claim by the detainees to Geneva rights.

The detainees’ lawyers, in response last month, contended that the Convention does apply at Guantanamo, that U.S. courts may enforce those rights, and that, if the U.S. military is unwilling to obey the Convention there, the detainees should either be transferred to another country or sent to their home countries.

Countering that argument on Thursday, the Justice Department asserted that the Geneva plea is essentially a plea for the courts to oversee conditions of confinement. That is not within the reach of a judge in ruling on a habeas challenge, the Department contended.’

While complying with the Third Convention “constitutes an important and longstanding commitment of the United States,” the Department said, it is not enforceable by private individuals suing in court — especially those pursuing habeas petitions. It was on that point that the Department cited the new Eleventh Circuit decision in the Noriega case.

“The habeas statute,” the Department argued more broadly, “can b e used only to challenge the fact, duration, or location of confinement, not conditions of confinement.” And, it added, Congress in passing the Military Commissions Act nearly three years ago declared that no individual, captured anywhere in the world, may seek to enforce Geneva rights in U.S. courts.

The brief sought also to rely on a ruling earlier in the week, in Kiyemba v. Obama, finding that the U.S. government has broad authority to transfer detainees out of Guanantamo, against their wishes, without “second-guessing” by the courts. That decision, the Department said, makes clear that the Supreme Court’s Boumediene decision was limited only to the fact and length of detention, and not to anything beyond that.

[...]

U.S. resists rights at Bagram Air Base in Afghanistan

U.S. resists rights at Bagram. By Lyle Denniston
SCOTUS blog, Saturday, April 11th, 2009 9:20 am

The Justice Department, saying top officials have authorized a swift appeal, asked a federal District Court judge on Friday to put on hold a ruling that would extend some constitutional rights to detainees being held by the U.S. military at Bagram air base in Afghanistan.

At stake, the Department said in a new filing in U.S. District Court, is whether the constitutional right to challenge detention should be extended “for the first time to a theater of war on foreign territory over which the United States exercises neither de jure nor de facto sovereignty.” The Department insisted that the Bagram detention site was not being used just to put prisoners beyond the reach of U.S. courts.

It sought an order by District Judge John D. Bates to certify the issue to the D.C. Circuit Court even though the Bagram detainees’ case is still in a pre-trial stage. “If the Court of Appeals determines that these [detainees] cannot invoke the constitutional privilege of the writ of habeas corpus, then this Court would have no jurisdiction to proceed and litgation of these habeas cases will end,” the filing said.

The Department also asked Judge Bates to stay his ruling while the appeal goes forward, stopping all proceedings in his Court. It said that U.S. Solicitor General Elena Kagan authorized the plea “to seek an expedited appeal.”

“If this Court were to proceed with these cases during the pendency of the appeal,” the motion argued, “the Court would impose serious practical burdens on, and potential harm to, the Government and its efforts to prosecute the war in Afghanistan.”

The document brought the first full statement from the Obama Administration on its views about detainees in a U.S. military prison at the air base outside Kabul. Previously, the Administration had simply told Judge Bates, without elaboration, that it would follow the Bush Administration view that the Bagram prisoners have no rights to assert in U.S. courts.

White House officials also had said, when President Obama took office, that they did not expect to make any decisions about the Bagram prison for perhaps six months. The future of Bagram detainees is one of the issues now being reviewed by a task force studying detainee policy worldwide.

In Judge Bates’ ruling on April 2 (see this post), he concluded that the Supreme Court’s decision last June in Boumediene v. Bush involving rights for detainees at Guantanamo Bay laid down a legal framework that should be applied to Bagram, too, and perhaps other sites around the world where the U.S. military has significant control.

The judge had found that the government would not be faced with major difficulties if the habeas pleas of three Bagram detainees went forward in court. The Justice Department disagreed in its filing on Friday.

Responding in court to these three cases, ”and to the potentially large number of other petitions filed by Bagram detainees who may now allege that they are similarly situated,” the Department argued, “would divert the military’s attention and resources at a critical time for operations in Afghanistan, potentially requiring accomodation and protection of counsel and onerous discovery.”

Judge Bates had limited his ruling to just three Bagram detainees, saying they were not nationals of Afghanistan and had been captured elsewhere and simply transferred to Bagram for detention. Bagram, however, holds somewhere around 600 detainees; it is unknown how many of them would fit in the category covered by Bates’ decision; the judge himself said it would apply to only a limited number there.

The standard for allowing a pre-trial appeal to go ahead in federal courts is whether the dispute involves a “controlling question of law” about which there is substantial disagreement, and whether such an immediate appeal would help toward a final ruling of the controversy.

The Department contended that the issue of the Bagram detainees’ rights meets that standard. The question of the District Court’s jurisdiction over Bagram prisioners, it said, is a controlling legal issue.

It also argued that the Bagram situation is very different from that previaling at Guantanamo leading to the Supreme Court’s Boumediene decision. It also contended that it is not clear that the place where a detainee was captured has anything to do with the legality of detention.
Opinions also diverge, the Department contended, on whether Judge Bates’ ruling “encroaches on military judgments about where to detain an individual captured during an ongoing war.” There are “many legitimate reasons, having nothing to do” with trying to manipulate courts’ powers over detainees, on why the military chooses a particular site for holding a particular prisoner.

The document described a series of possible inhibitions of military choices about capturing and detaining individuals in wartime situations. Among them was a complaint that extending habeas to Bagram might keep the military from sending to Bagram individuals captured in Pakistan, whether the military does not have facilities for screening or detaining prisoners.

In asking permission for a swift appeal and for a stay of District Court proceedings, the Department said the Bagram detainees’ lawyers had said they would oppose the requests.

Tuesday, April 7, 2009

WSJ Editorial: The Silicosis Abdication

The Silicosis Abdication. WSJ Editorial
A scam that deserves as much scrutiny as Lerach and Scruggs.
WSJ, Apr 07, 2009

It is going on four years since a Texas judge blew the whistle on widespread silicosis fraud, exposing a ring of doctors and lawyers who ginned up phony litigation to reap jackpot payouts. So where's the enforcement follow-up?

That's an especially apt question given news that New York's State Board for Professional Medical Conduct has finally revoked the license of Dr. Ray Harron. He was among the doctors who Texas Judge Janis Graham Jack showed had fraudulently diagnosed thousands of plaintiffs with silicosis, a rare lung disease. These doctors were later called to testify in Congress, where many, including Dr. Harron, took the Fifth Amendment.

Dr. Harron has since lost his medical licenses in California, New Mexico, Texas, Florida, North Carolina and Mississippi. This is progress, though hardly sufficient. Among the questions Congress asked state departments of health during the silicosis hearings were why those bodies hadn't moved to shut down these doctors and their mobile X-ray vans at the time they were committing medical malpractice.

New York is belatedly joining the queue, and its order stripping Dr. Harron of his license is particularly noteworthy. After outlining his unethical actions, and citing other medical boards that had denied him a new license, it summarized: "[Dr. Harron] was part of an operation to find plaintiffs with silicosis whether or not they really had silicosis. This is perpetrating a fraud on the courts."

Precisely. The question is what anybody else is doing about it. Judge Jack's findings inspired U.S. attorneys in the Southern District of New York to convene a grand jury investigation into silicosis fraud. The criminal division of the Texas state attorney general also went this route. We know both juries subpoenaed doctors and documents involved in the Jack case. While these physicians bear responsibility for negligent medical practices, the Jack trial and Congressional hearings made clear that many were taking orders from the trial bar. Dr. Harron has stated in court that he "capitulated" to attorney demands that he include inaccurate language in his silicosis reports.

Yet these grand juries have yet to result in prosecutions. The feds and Texas aside, it would seem incumbent upon New York State Attorney General Andrew Cuomo to follow up on his own state medical board's determination of fraud. A follow-up is especially important given that, prior to their silicosis escapade, these doctors made millions working for trial attorneys on asbestos. According to the Johns Manville Bankruptcy Trust, six of the doctors at the center of the silicosis fraud were also responsible for at least 140,000 asbestos-lawsuit diagnoses. Dr. Harron alone diagnosed an astonishing 51,048 people with asbestos-related disease.

The silicosis litigation machine broke down after Judge Jack's ruling, yet hundreds of thousands of phony asbestos-related diagnoses continue to clog courts. An Ohio state court in 2006 dismissed all cases that relied solely on Dr. Harron, and a federal court in Philadelphia recently did the same. But with medical boards now admitting these doctors were at the center of silicosis schemes to defraud courts, prosecutors ought to pursue their role in asbestos too.

The silicosis and asbestos scams are as corrosive to justice in their way as the cases that resulted in convictions for Bill Lerach, Dickie Scruggs and Melvyn Weiss for kickbacks or bribery. The difference is that these asbestos cases are still in court.

Thursday, April 2, 2009

Conservative about Dahlia Lithwick on Harold Koh

More on Dahlia Lithwick on Harold Koh. By Ed Whelan
Bench Memos/NRO, Thursday, April 02, 2009

A follow-up to my post agreeing with Dahlia Lithwick that those of us who are alarmed by State Department nominee Harold Koh should not base our case against Koh on a remark that Koh allegedly made about the possible application of sharia law in cases in U.S. courts:

Let me briefly discuss just a couple of the many things that Lithwick gets wrong in her essay. (I’ll leave aside Lithwick’s ongoing effort, which Jonathan Adler has aptly remarked on before, to reposition herself from her previous role as a perpetrator of the “vicious slash-and-burn character attack” to her new role as a hypersensitive bemoaner of any criticism of nominees.)

Lithwick contends:

The underlying legal charge from the right is that Koh is a "transnationalist" who seeks to subjugate all of America to elite international courts. We've heard these claims from conservative critics before. They amount to just this: The mere acknowledgment that a body of law exists outside the United States is tantamount to claiming that America is enslaved to that law. The recognition that international law even exists somehow transforms the U.S. Supreme Court into a sort of intermediate court of appeals that must answer to the Dreaded Court of Elitist European Preferences.

Set aside Lithwick’s apparent insinuation that “transnationalist” is an epithet invented by conservatives to stigmatize folks like Koh, when in fact Koh himself, as author of articles like “Transnational Public Law Litigation” and “Why Transnational Law Matters,” has championed the label. As she often does, Lithwick, rather than accurately presenting and engaging opposing arguments, proceeds with argument by wild distortion. The italicized passages are an absurd misrepresentation of conservative critiques of Koh. (See, for example, my post here and John Fonte’s post. And for conservative critiques of transnationalism generally, see the article by John Fonte linked to in his post and John Bolton’s recent Commentary essay, “The Coming War on Sovereignty.”)

Lithwick also asserts:

Harold Koh is not a radical legal figure. He has served with distinction in both Democratic and Republican administrations (under Presidents Clinton and Reagan), and in that capacity he sued both Democratic and Republic [sic] administrations.* He was confirmed unanimously 11 years ago, and yet this time around, he is a threat to American sovereignty.

Here Lithwick resorts to insipid makeshift arguments that she herself would not apply to others. So what that Koh was a junior career lawyer in OLC during the Reagan Administration? Is that evidence that he is not now a radical legal figure? Well, then, I guess that Lithwick has never attacked, and would never attack, Samuel Alito as extreme, since Alito served with distinction as a career prosecutor in the Carter Administration. And how does Koh’s confirmation 11 years ago foreclose examination of what we have learned about him, and about the transnationalist threat, in the meantime? Again, would Lithwick maintain that because, say, Justice Scalia was confirmed unanimously, she couldn’t and wouldn’t oppose his elevation to Chief Justice? Ridiculous.

* I have no idea what the second half of this sentence is supposed to mean. I’ll presume an editing glitch.

Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies

Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies. By Glenn Greenwald
Cato, Apr 2, 2009

On July 1, 2001, a nationwide law in Portugal took effect that decriminalized all drugs, including cocaine and heroin. Under the new legal framework, all drugs were "decriminalized," not "legalized." Thus, drug possession for personal use and drug usage itself are still legally prohibited, but violations of those prohibitions are deemed to be exclusively administrative violations and are removed completely from the criminal realm. Drug trafficking continues to be prosecuted as a criminal offense.

While other states in the European Union have developed various forms of de facto decriminalization — whereby substances perceived to be less serious (such as cannabis) rarely lead to criminal prosecution — Portugal remains the only EU member state with a law explicitly declaring drugs to be "decriminalized." Because more than seven years have now elapsed since enactment of Portugal's decriminalization system, there are ample data enabling its effects to be assessed.

Notably, decriminalization has become increasingly popular in Portugal since 2001. Except for some far-right politicians, very few domestic political factions are agitating for a repeal of the 2001 law. And while there is a widespread perception that bureaucratic changes need to be made to Portugal's decriminalization framework to make it more efficient and effective, there is no real debate about whether drugs should once again be criminalized. More significantly, none of the nightmare scenarios touted by preenactment decriminalization opponents — from rampant increases in drug usage among the young to the transformation of Lisbon into a haven for "drug tourists" — has occurred.

The political consensus in favor of decriminalization is unsurprising in light of the relevant empirical data. Those data indicate that decriminalization has had no adverse effect on drug usage rates in Portugal, which, in numerous categories, are now among the lowest in the EU, particularly when compared with states with stringent criminalization regimes. Although postdecriminalization usage rates have remained roughly the same or even decreased slightly when compared with other EU states, drug-related pathologies — such as sexually transmitted diseases and deaths due to drug usage — have decreased dramatically. Drug policy experts attribute those positive trends to the enhanced ability of the Portuguese government to offer treatment programs to its citizens — enhancements made possible, for numerous reasons, by decriminalization.

This report will begin with an examination of the Portuguese decriminalization framework as set forth in law and in terms of how it functions in practice. Also examined is the political climate in Portugal both pre- and postdecriminalization with regard to drug policy, and the impetus that led that nation to adopt decriminalization.

The report then assesses Portuguese drug policy in the context of the EU's approach to drugs. The varying legal frameworks, as well as the overall trend toward liberalization, are examined to enable a meaningful comparative assessment between Portuguese data and data from other EU states.

The report also sets forth the data concerning drug-related trends in Portugal both pre- and postdecriminalization. The effects of decriminalization in Portugal are examined both in absolute terms and in comparisons with other states that continue to criminalize drugs, particularly within the EU.

The data show that, judged by virtually every metric, the Portuguese decriminalization framework has been a resounding success. Within this success lie self-evident lessons that should guide drug policy debates around the world.

Download the PDF (4 MB)

Glenn Greenwald is a constitutional lawyer and a contributing writer at Salon. He has authored several books, including A Tragic Legacy (2007) and How Would a Patriot Act? (2006).

Wednesday, March 25, 2009

Forensic scientists who testify for criminal defendants are under fire. They ought to be praised

In Criminal Cases, Should Science Only Serve the State? By Radley Balko
Forensic scientists who testify for criminal defendants are under fire. They ought to be praised.
Reasons, March 25, 2009

Last month, the National Academy of Sciences (NAS) released a wide-ranging report expressing alarm at the way forensic science is used in the courtroom. Among the many problems the report addressed was the tendency of many states to see state-employed forensic experts not as independent scientists, but as part of the prosecution's "team."

The problem with that sort of arrangement is obvious: It introduces pressure—subtle or overt—on scientists to produce results that please police and prosecutors. The NAS report recommends that state-employed forensic experts be neutral. Today, far too many crime labs and medical examiners report to the attorney general of their states. Others report directly to the prosecutors in their jurisdictions. Ideally, government medical examiners would not only be independent of the state's law enforcement agencies, they would be free to testify against any state claims unsupported by scientific evidence.But that isn't the case in most of the country. In fact, it's almost universally accepted—among both prosecutors and medical examiners—that a government medical examiner should never testify against the district attorney who serves in the same jurisdiction, even if the medical examiner strongly disagrees with the prosecutor's conclusions. Lately, that already dubious notion seems to be expanding. Many law enforcement officials believe that government forensic experts should be barred from testifying for the defense in any case, even in other jurisdictions.

Earlier this month, the Minneapolis Star-Tribune reported that Minnesota District Attorney James Backstrom rebuked his county's medical examiner, Dr. Lindsey Thomas, because members of her staff had testified for defense attorneys in other counties, calling into question the conclusions of those counties' medical examiners. In one email to Thomas (you can read all of the emails here), Backstrom called the practice "a conflict of interest," and complained that the "added credibility attached to someone who is currently a coroner/medical examiner in another community who testifies as a defense expert makes any prosecution more difficult." In Backstrom's view, the actions of Thomas' staff were no different than if he were to testify that he disagreed with another prosecutor's strategy or conclusions. Backstrom ended one email by threatening to block Thomas's reappointment as the county's medical examiner if the practice continued.

Backstrom not only exhibited a fundamental ignorance of the purpose of forensic science in the courtroom, he also tellingly revealed a striking philosophical difference between the fields of science and law enforcement. Law enforcement officers—be they police officers or prosecutors—assume a sort of fraternity that precludes them from criticizing one another. Cops almost never testify against other cops—even when a fellow officer has broken the law—and prosecutors rarely criticize other prosecutors. Scientists, on the other hand, are not only willing to criticizing other scientists, but the process of peer review—a fundamental component of the scientific method—actually depends on such criticism. Backstrom's efforts to undermine peer review are alarming, particularly given that his efforts are aimed at the courtroom, where so much is frequently at stake.

Sadly, Backstrom's view is all too common. Last week, the local Fox affiliate in Atlanta ran two investigative pieces critical of Georgia's chief state medical examiner, Dr. Kris Sperry. The station's big scoop was that Sperry—who has an impeccable reputation among his peers—was regularly testifying for criminal defendants in other jurisdictions. The report quoted a sheriff and former county coroner in Harrison County, Mississippi, both still angry at Sperry for contradicting the state medical examiner's testimony in a murder case. The piece included quotes from both Mississippi officials stating that a medical examiner who gets a government paycheck should never contradict another government medical examiner in court. One Tennessee official said the practice was akin to a police officer testifying against another police officer.

Again, this is nonsense. We need more doctors willing to hold their rogue colleagues accountable, not less. For the last three years, I've been reporting on the severe inadequacies of Mississippi's criminal autopsy system. In particular, I've reported on Dr. Steven Hayne, who over the last 20 years has done 80 to 90 percent of the state's autopsies, carrying an impossible workload of some 1,500 to 1,800 autopsies per year (by his own account), despite the fact that he isn't board-certified in forensic pathology. Hayne's colleagues have known for years that he's little more than a rubber stamp for prosecutors. He has inflicted incalculable damage on the state's criminal justice system.

Kris Sperry, along with several current and former state medical examiners in Alabama, is one of the few doctors who has been trying to hold Hayne accountable. Over the years, Sperry has written letters to professional organizations asking for Hayne to be investigated. Yes, he has also testified against Hayne and other disreputable Mississippi medical examiners in court. He ought to be lauded for that, not condemned.

The other problem here, as the NAS study points out, is that there is currently a critical shortage of board-certified medical examiners. If every forensic pathologist with a government job or contract were barred from ever testifying for criminal defendants, there wouldn't be many doctors left to testify. The few who were left couldn't possibly testify in every case where they're needed—and in those cases they do take, they could easily be impeached by prosecutors as guns-for-hire.

But then, maybe that's the point.

You'd think that a forensic expert who tells the jury that he testifies for both defense attorneys and prosecutors would carry more weight on those occasions when he testifies for the state. That would show a doctor who testimony follows the science. But for prosecutors like Backstrom, the primary concern is not embarrassing his fellow district attorneys, and ensuring that credible doctors with state credentials don't screw up another prosecutor's case—even if that case is based on faulty science.

It takes an odd definition of justice to believe that state-paid scientists should only use their expertise to help win prosecutions. Unfortunately, that view seems to be the prevailing one.

Radley Balko is a senior editor at Reason magazine.

Wednesday, March 18, 2009

Conservative views on the American Bar Association

ABA Subservience to Obama Administration, by Ed Whelan
Wednesday, March 18, 2009

It’s no surprise that the Obama administration has restored the ABA judicial-evaluation committee’s pre-Bush 43 privileged role in reviewing prospective nominees before the president formally nominates them. But the timing of yesterday’s announcement by the ABA is curious and would seem to provide more evidence that the ABA is eager to play handmaiden to the Obama administration’s political agenda.

Consider that the ABA’s announcement came on the very day that President Obama made his first judicial nomination, David Hamilton (to the Sixth Circuit)—and on the very day that the ABA committee issued its rating (“well qualified”) of Hamilton. The fact that the ABA committee issued its rating yesterday indicates that the White House restored the ABA’s pre-nomination role some weeks ago. (This ABA document—especially pages 5 to 9—describes the lengthy evaluation procedures that the ABA committee undertakes. Although that document has not been revised to reflect the ABA’s restored pre-nomination role, the exercise of that role would begin with the White House’s informing the committee who the intended nominee is.)

In other words, at the very time the media were speculating whether the Obama White House would restore the ABA’s old role, the ABA had almost certainly already had its role restored. Why did the ABA not say so at the time? And why did its announcement yesterday obscure when its role was restored? I’d guess that the White House asked the ABA to keep mum—in order to avoid giving conservative opposition a heads-up that nominations might be imminent—and that the ABA happily complied with this purely political request.

By the way, yesterday’s statement by the ABA’s president repeats the canard that the ABA committee “does not consider a potential nominee’s ideological or political philosophy.” I’ve exposed the falsehood of that assertion in this post. The National Law Journal also reports today that “a soon-to-be-released study by political scientists concludes” that the ABA’s ratings “are biased against potential conservative nominees.” Given how the members of the ABA committee are selected (a matter that I discuss at length in this essay), that’s hardly a surprise.

Monday, March 16, 2009

WaPo: Gay couples should be allowed to stay together in the US

Separation Anxiety. WaPo Editorial
Gay couples should be allowed to stay together in the United States.
Monday, March 16, 2009; A16

THE UNITING American Families Act would allow gay and lesbian Americans and permanent residents to sponsor their foreign-born partners for legal residency in the United States. The bill, introduced last month in the Senate by Patrick Leahy (D-Vt.) and in the House by Jerrold Nadler (D-N.Y.), would add "permanent partner" and "permanent partnership" after the words "spouse" and "marriage" in relevant sections of the Immigration and Nationality Act. If passed, it would right a gross unfairness.

Under the proposal, a "permanent partnership" is defined as a "committed, intimate relationship" with another adult "in which both parties intend a lifelong commitment." The couple must be financially interdependent and not married to or in a permanent partnership with anyone else. And the partners can't be related. The benefit comes with the same immigration restrictions and enforcement standards that apply to heterosexual couples. Fraudulent permanent partnerships face the same penalties as fake marriages: up to five years in prison and up to a $250,000 fine.

"Under current law, committed same-sex foreign partners of American citizens are unable to use the family immigration system, which accounts for a majority of the green cards and immigrant visas granted annually by the United States," Mr. Leahy said upon introducing the bill. "The promotion of family unity has long been part of federal immigration policy, and we should honor that principle by providing all Americans the opportunity to be with their loved ones." According to the most recent census, he added, about 35,000 binational, same-sex couples are living in the United States. The new legislation would ensure that the family connections valued under immigration law are extended to gays and lesbians.

The strain of the status quo on gay and lesbian binational couples should not be discounted. Because their relationships are not legally recognized by the United States, some couples have resorted to illegal marriages where the foreign nationals marry Americans to get green cards that allow them to stay in the country permanently. In other cases, Americans have exiled themselves to be with their partners. Sixteen countries, including Australia, Brazil, Canada, Israel, South Africa and the United Kingdom, allow residents to sponsor same-sex permanent partners for legal immigration. American gays and lesbians should not have to choose between their country and their partners.

Friday, March 13, 2009

Obama Administration opposes Guantanamo detainees torture lawsuit

U.S. opposes torture lawsuit, by Lyle Denniston
SCOTUS Blog, Thursday, March 12th, 2009 3:52 pm

The Obama Administration, taking its first position in a federal court on claims of torture of Guantanamo Bay detainees, urged the D.C. Circuit Court on Thursday to reject a lawsuit by four Britons formerly held there. In addition, the new filing argued that a recent appeals court ruling makes clear that “aliens held at Guantanamo do not have due process rights.”

Moreover, the document called for a sweeping ban on lawsuits against U.S. military officials, claiming constitutional violations by such officials. Allowing such lawsuits “for actions taken with respect to aliens during wartime,” it said, “would enmesh the courts in military, national security, and foreign affairs matters that are the exclusive province of the political branches.”

The brief was another indication that, at least so far, the new Administration is not moving to make a wide-ranging break with detention policies of the former Bush Administration. While President Obama has ordered the closing of Guantanamo by next January, lawyers for the government have taken positions in a variety of detainee court cases that do not propose fundamental change.

Lawyers for the four former prisoners, in their own new filing, argued that they have constitutional rights that they can assert against former Pentagon officials and officers who, they claim, authorized and carried out torture while the Britons were in captivity. The lawyers contended that the Constitution’s guarantee of due process applies to those who were held at the U.S. military prison in Cuba.

Both new briefs were filed in Rasul, et al., v. Myers, et al., (D.C. Circuit Court docket 06-5209). The Britons’ brief is here. The government brief is here.

The Supreme Court last December had ordered the Circuit Court to reconsider the Rasul case, in the wake of the Justices’ ruling last June in Boumediene v. Bush. The Circuit Court called for new briefs. Each side is to file a reply brief on March 23.

The Rasul lawsuit is aimed at former Defense Secretary Donald Rumsfeld and ten military officers — six generals and four lower-ranking officers. The prisoners claimed systematic torture and abuse, including disparaging their religion beliefs and practices.

The Circuit Court, in a ruling Jan. 11 of last year, decided that Guantanamo detainees have no constitutional rights because they are “aliens without property or presence in the U.S.”

As an alternative decision, the Circuit Court said that, even if the prisoners did have a constitutional right against torture, such a right was not clear at the time they were prisoners — from January 2002 to March 2004 — and thus the military officials and officers had “qualified immunity” to the lawsuit. It also ruled that the prisoners were not protected by U.S. law against interference with their religious worship and beliefs.

The Supreme Court’s Boumediene decision nine months ago established that Guantanamo detainees do have a constitutional right — to challenge their detention in federal court. The Justices left the scope of that right, and claims of any other rights for detainees, to the lower courts to sort out. Then, in December, it returned the Rasul case for a new look by the Circuit Court, applying the Boumediene decision.

Justice Department lawyers argued Thursday that the Supreme Court decision has no effect on the Circuit Court’s rejection of the Britons’ torture lawsuit.

Because Boumediene was decided four years after the Britons had been released and sent home, the brief contended, it “cannot support a finding that the law was so clearly established that a reasonable official would have known that his or her conduct” violated the Constitution or federal law protecting religious freedom.

As its first recommendation, the brief urged the Circuit Court to resolve the case by leaving its qualified immunity decision intact, insulating Rumsfeld and the officers from legal consequences so far as the four Britons are concerned. That would make it unnecessary to consider the Britons’ claim of due process rights under the Constitution, the brief said.

But, it went on, if the Circuit Court does address that due process claim, its ruling Feb. 18 in a case involving Chinese Muslim prisoners at Guantanamo Bay (Kiyemba v. Obama, Circuit docket 08-5424) is “controlling authority” on the point that prisoners there “do not have due process rights.”

As a further alternative proposal, the Justice Department brief suggested that there is “a substantial possibility” that detainees’ lawyers will take the claim of due process rights on to the Supreme Court for resolution, so the Circuit Court should simply terminate the Britons’ case by refusing to recognize any claim of constitutional violation against the military officials and officers.

The Department also argued that the Supreme Court’s June decision has no effect on the Circuit Court’s rejection of the Britons’ religious bias claims, or their claims that their abuse violated international law.

In arguing that “special factors” should lead the Circuit Court not to allow constitutional claims against the Pentagon officials and officers, the Department brief made its broad argument against judicial interference with “wartime” military actions.

Lawyers for the four former prisoners gave a sharply different interpretation of the Supreme Court’s decision in the Boumediene case. They contended that it established that detainees not only have a right to challenge their detention in a habeas petition, but that it also established due process rights for Guantanamo prisoners. “It is difficult to conceive of a right of habeas without a corresponding right to due process,” the brief contended.

Moreover, the brief contended, it has been constitutional law for decades — at least since 1936 and the Supreme Court decision in Brown v. Mississippi — “that the right not to be tortured” is a fundamental right, protected by the due process clause. Thus, military officers should have known long before the Britons were at Guantanamo that torture was legally forbidden by U.S. law, so they have no claim to legal immunity, the brief asserted.

Challenging the Circuit Court’s Kiyemba ruling last month, finding no constitutional right to due process for those at Guantanamo, the Britons’ brief said that that conclusion “simply cannot be harmonized with the Supreme Court’s ruling in Boumediene.”

It added: “The principles announced by the Supreme Court in Boumediene wholly vitiate this Court’s reasoning and compel reversal” of the Circuit ruling against the Britons’ torture case.
Moreover, the brief conended that there is “nothing about Guantanamo” that would make enforcement of due process rights not to be tortured more of a problem than enforcing the right to habeas relief. It noted that torture is forbidden by military law and U.S. criminal law, so “there would be no additional practical burden on the government if the Constitution also applies to prohibit” torture of detainees.

Monday, March 9, 2009

Last week's Supreme Court drug ruling will cost lives - Wyeth v Levine

The Supreme Court and the Tyranny of Lawyers. By Gordon Crovitz
Last week's drug ruling will cost lives.
WSJ, Mar 09, 2009

Every era of change has holdouts. As the Industrial Age began, the Luddites smashed newfangled mechanized looms. They understood that automation would let more people enter the textile industry, and that low competitive prices would replace their high fixed prices. At one point in the early 1800s, there were more British soldiers fighting the Luddites than there were fighting Napoleon. Our Information Age has its own antitechnology, antimarket Luddites, as the Supreme Court reminded us in a loom-smashing opinion last week.

At one level, Wyeth v. Levine is just another lawsuit with a silly result. The Food and Drug Administration had required Wyeth to distribute carefully worded warnings with its antinausea drug. The FDA told Wyeth to warn that "under no circumstances should Phenergan Injection be given by intra-arterial injection." The warning label also included, in uppercase letters: INADVERTENT INTRA-ARTERIAL INJECTION CAN RESULT IN GANGRENE OF THE AFFECTED EXTREMITY. Tragically, a physician's assistant in Vermont ignored the clear warnings and injected the drug into the arm of Diana Levine, who then developed gangrene and lost the arm. She sued the hospital, successfully. But she also sued Wyeth.

The legal issue was whether the medical experts at the FDA had pre-empted state lawsuits by mandating clear warnings. A majority of justices said that such implied pre-emption could not block lawsuits. The case would have been different if Congress had specifically pre-empted state drug lawsuits. The simple lesson businesspeople took was that the drug maker could not have done anything to avoid being sued. This logic leads to every drug (and ladder, hammer and toaster) having to carry 50 different warnings, one for each state, updated by local juries from time to time.

More broadly, this case is Exhibit A for how our legalistic culture puts a drag on the innovation, transparency and risk-taking that our new era champions. The result will be higher hurdles for funding to start health companies. There will be less research and development for new drugs, at a time when genome and other path-breaking information should be breaking important new ground, curing people, and helping drive the economy. Prices for drugs will rise to cover future jury verdicts. Defensive medicine already accounts for 30% of doctor bills, an amount equal to the cost of covering the 50 million Americans without health insurance.

As legal reformer Philip Howard has pointed out, one reason for excesses in the legal system is that what worked in the Industrial Age no longer works in our less standardized era. "The idea of organizing how to do things," Mr. Howard wrote in his recent book, "Life Without Lawyers," grew out of the need to set up assembly lines and to regulate complex systems and industries. But "today we assume unquestioningly that any activity will be more effective if we detail in advance how to get the job done." Mr. Howard also noted that lowered standards for litigation mean that people are now more free to sue.

"These two great currents of social organization -- prescribing rules to specify how to do things and affording individual rights to invoke a legal proceeding -- now sweep us along through our day like a mighty river, causing us to cling to legal logic for ordinary daily choices," he wrote. "To stay afloat, we must constantly be prepared to answer this question: Can you show this was done properly?" Instead of risk-taking and personal accountability, we have what Mr. Howard called a "moving mudbank comprised of accumulating bureaucracy and whatever claims people unilaterally choose to assert."

There are signs that the Industrial Age is yielding to the Information Age. In Britain, Parliament passed a law in 2006 authorizing judges to consider whether allowing a particular lawsuit to go ahead could "firstly, prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way; or, secondly, discourage persons from undertaking functions in connection with a desirable activity."

This law blocks lawsuits that challenge potentially risky but desirable activities, from school outings to scientific innovation. It also liberates British judges to think about the real-world impact of lawsuits.

Just as jokes about life in the Soviet Union marked the end of the empire, humor in the U.S. suggests that it's time for common sense to replace the tyranny of legalism. The annual Wacky Warning Label Contest winners include a label on a baby stroller warning, "Remove child before folding"; a carpentry electric drill cautioning, "This product not intended for use as a dental drill"; and a brass fishing lure with a three-pronged hook on the end warning, "Harmful if swallowed."

Popular acceptance that one era has passed and another has begun is not enough to establish a clear demarcation. But as the example of the earlier battle against the Luddites shows, it's at least a start.

Thursday, March 5, 2009

On Ledbetter and the media

Distorting the News, to Obama’s Advantage, by Hans Bader
Open Market/CEI, March 04, 2009 @ 3:29 pm

Distorted press coverage of a Supreme Court decision gave a big boost to the Obama campaign, which made the decision a major campaign issue by bashing and distorting it. The New York Times has since refused to correct its erroneous coverage of that decision, refusing to even read relevant portions of the very decision on which it reported, and court documents in the case, which plainly contradict its coverage. The Obama Administration and Obama campaign also made easily verifiable false claims about the decision, about which the press seems to have no interest. As a journalism professor, and legal commentator Stuart Taylor, have noted, press coverage of the decision “stank“, and was simply “lousy.”

In Ledbetter v. Goodyear (2007), the Supreme Court held that a woman who had waited five years after learning of pay disparities to file an EEOC complaint, and decades after her pay was allegedly set lower than her male peers, could not later sue for discrimination under a civil-rights law known as Title VII, since that law has a 180-deadline. In its ruling, the Court held that plaintiffs generally must sue within 180 days after a discriminatory pay level is set, and that it is not enough that the plaintiff sued within 180 days after a subsequent paycheck or pension benefit affected by the discrimination, which could be many, many years later.

The court specifically left open, however, the possibility that a plaintiff could sue more than 180 days after the discriminatory pay decision if the plaintiff did not discover that the decision was discriminatory until much later. In footnote 10 of its decision, it wrote, “We have previously declined to address whether Title VII suits are amenable to a discovery rule. . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.”

Despite that fact, however, New York Times reporter Linda Greenhouse falsely reported that the 180-day deadline “applies, according to the decision, even if the effects of the initial discriminatory act were not immediately apparent to the worker.” See Linda Greenhouse, “Justices Ruling Limits Suits on Pay Disparities,” New York Times, May 30, 2007.

Although the plaintiff, Lilly Ledbetter, had admitted in her deposition that she had been informed by 1992 of the pay disparity she later sued over, and had cited it herself to her boss by 1995, Greenhouse also falsely claimed that the Supreme Court rejected Ledbetter’s claim because “she learned of her fate” at the end of her career, “too late, according to the Supreme Court’s majority.”

Despite the fact that the Supreme Court had explicitly left open the possibility that Ledbetter could have sued if she hadn’t known about the discrimination against her, other New York Times reporters, relying on Greenhouse, stated just the contrary. For example, Adam Liptak stated that “Ms. Ledbetter lost her case because she had discovered the disparity between her pay and that of her male colleagues too late.” See Liptak, “Justices Hear Bias Case on Maternity, Pensions, and Timing,” New York Times, Dec. 11, 2008, at pg. B7. And Sheryl Gay Stolberg similarly stated that Ledbetter discovered only “when she was nearing retirement that her male colleagues were earning much more than she was.” See Stolberg, “Obama Signs Equal-Pay Legislation,” New York Times, January 29, 2009.

Other papers, such as the Los Angeles Times, made more extreme, and obviously false, claims about the decision. The Los Angeles Times falsely claimed that under the Ledbetter ruling, “any employer that could hide discrimination for six months could get away with it.” And the Pittsburgh Post-Gazette erroneously stated that Lilly Ledbetter was not allowed to sue more than 180 days after her first unequal paycheck even though “she did not know she was being discriminated against until near the end of her career when she sued.” And the Washington Post incorrectly claimed that the decision “limited Ledbetter’s ability to sue after she discovered that Goodyear had been paying higher salaries to her male counterparts for nearly 20 years.” See Editorial, “The Lilly Ledbetter Fair Pay Act Is Back,” Los Angeles Times, Jan. 10, 2009; Editorial, “Lilly’s Cause: Obama Can Correct An Injustice of the Bush Years,” Pittsburgh Post-Gazette, Jan. 12, 2009; Richard Leiby, “A Signature with the First Lady’s Hand on It,” Washington Post, Jan. 30, 2009, at C1.

But as even the liberal employment lawyer David Copus, who brought landmark pay discrimination lawsuits for the EEOC, has noted, Ledbetter suspected for years that she was discriminated against, and the Supreme Court left intact employees’ ability to sue when employer deception leaves employees unaware of discrimination against them. See Davis A. Copus, “Pay Discrimination Claims After Ledbetter,” Defense Counsel Journal, Volume 75, page 300 (Oct. 1, 2008).

As Copus notes, “Ledbetter admitted at her deposition that ‘different people that [she] worked for along the way had always told [her] that [her] pay was extremely low.’ She recalled that her manager told her in 1992 that her pay was lower than that of other Area Managers, and that by 1994 or 1995, she had learned the amount of the difference. In 1995, Ledbetter told her supervisor that she ‘needed to earn an increase in pay’ because she ‘wanted to get in line with where [her] peers were, because . . . at that time [she] knew definitely that they were all making a thousand [dollars] at least more per month.’” Yet she waited to sue until shortly before she retired, and after the supervisor she accused of discrimination died!

As legal commentator Stuart Taylor observed in the National Journal, “Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim.” See Stuart Taylor, “Does the Ledbetter Law Benefit Workers, or Lawyers? Democrats and the Media Have Distorted the Facts Underlying the New Equal Pay Law,” National Journal, Jan. 31, 2009.

Given Ledbetter’s tardiness and longstanding knowledge that she might have been discriminated against, her lawyer didn’t even claim that she could take advantage of the Supreme Court’s exceptions to the deadlines for workers whose employers conceal evidence of discrimination, leaving them unaware of discrimination, such as “equitable tolling” and “estoppel.” See Zipes v. Trans World Airlines, 455 U.S. 385, 393 (1982) (”filing a timely charge of discrimination with the EEOC is . . . a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”).

When I, a lawyer with expertise in discrimination claims, sent an email to the New York Times noting its inaccurate reporting, and citing its conflict with Ledbetter’s deposition, and the writings by legal commentators like David Copus and Stuart Taylor, I received an email in response from senior editor Greg Brock, claiming that the New York Times’ reporting couldn’t possibly be wrong. Why? Because so many other newspapers had made the same claims the New York Times did, and because its reporting was consistent with the self-serving claims that the plaintiff Ledbetter later made (with no evidence whatsoever) — never mind that those claims were inconsistent with plaintiff Ledbetter’s own admissions in her deposition, and inconsistent with what the Supreme Court said in its decision! Apparently, the pervasiveness of a media error makes it unquestionable.

In his January 30 email, Mr. Brock wrote:

“I do not know where Mr. Taylor came by his information. But if you do your research, you will see that dozens of news organizations have consistently reported the following background on the Ledbetter case:

Lilly Ledbetter worked for Goodyear for 19 years before accepting an early retirement offer in 1998. Shortly before she left Goodyear, Ledbetter received an anonymous memo revealing that the other shift supervisors with the same title and the job responsibilities she had, were paid between 14-30% more than she was earning. The decision to pay Ledbetter less than her male co-worker had been made years earlier by a supervisor who did not believe women belonged at Goodyear, and certainly not working as supervisors. Until Ledbetter got this memo, she did not know she had been shortchanged all those years. Ledbetter sued, and in the course of the lawsuit, Goodyear’s records confirmed the anonymous tip — the sole woman supervisor was paid far less than the men in the same positions.

The following statement was also presented by Ms. Ledbetter in testimony before Congress, when she explained:

‘I only started to get some hard evidence of what men were making when someone anonymously left a piece of paper in my mailbox at work, showing what I got paid and what three other male managers were getting paid. I thought about just moving on, but in the end, I could not let Goodyear get away with their discrimination. So I filed another complaint with the EEOC in 1998. After I filed my EEOC complaint and then filed a lawsuit, I was finally able to get the whole picture on my pay compared to the men’s. It turned out that I ended up getting paid what I did because of the accumulated effect of pay raise decisions over the years.’
She retired in 1998. So this shows that she did indeed learn the story not long before her retirement.”


This is not the only error made by the Times. As the Wall Street Journal’s James Taranto has pointed out, the Times falsely suggested, contrary to all evidence, that the Ledbetter decision was the result of a supposedly pro-plaintiff female justice — Sandra Day O’Connor — being replaced by a supposedly pro-defendant male justice — Samuel Alito. Linda Greenhouse, the Times’ Supreme Court reporter, claimed that the 5-to-4 decision “showed the impact of Justice Alito’s presence on the court. Justice Sandra Day O’Connor, whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.”

In reality, Justice Sandra Day O’Connor was at least as tough in enforcing deadlines for suing against discrimination plaintiffs as the male justice who replaced her, Samuel Alito. She had dissented against the Supreme Court’s earlier generous interpretation of the statutory deadline for sexual and racial harassment plaintiffs in the case of National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002), arguing that the deadline as interpreted by Justice Clarence Thomas’s majority opinion was too generous to plaintiffs.

By contrast, on the Third Circuit Court of Appeals, then-judge Alito, prior to his elevation to the Supreme Court, had argued for a more generous interpretation of the deadline for suing under another discrimination law, 42 USC 1981, arguing it should be expanded to four years (see Zubi v. AT&T, 219 F.3d 220 (3d Cir. 2001)) — a position that conflicted with some federal court rulings, but was ultimately upheld by the Supreme Court in Jones v. R.R. Donnelley & Sons, 541 U.S. 369 (2004).

In signing his first bill into law — a bill to override the Supreme Court’s Ledbetter decision — Obama didn’t let facts get in the way of a good story, or milking a political wedge issue. He falsely claimed that Lilly Ledbetter, whose pay discrimination claim was dismissed by the Supreme Court as untimely, worked at Goodyear “for nearly two decades before discovering that for years, she was paid less than her male colleagues for doing the very same work.” Actually, Ledbetter knew by 1992, if not earlier, that she was being paid less than the male employees she claimed should have been paid the same as her. Small wonder that the Supreme Court’s 2007 ruling in Ledbetter v. Goodyear dismissed her claim as untimely.

Similarly, the White House falsely claimed that “The Court ruled that employees subject to pay discrimination like Lilly Ledbetter must file a claim within 180 days of the employer’s original decision to pay them less . . . even if the employee did not discover the discriminatory reduction in pay until much later (check out Justice Alito’s arguments in the Court’s opinion).”

This is misleading, and perhaps knowingly so, since the White House linked to the very court decision it distorts. First, the Court never said there was a rigid deadline that bars claims by employees who “did not discover” discrimination “until much later.” Ledbetter never argued that the deadline should be suspended based on her employer concealing discrimination against her, because she in fact knew for years about the pay disparity she later sued over. If she truly had been in the dark about the alleged discrimination, she could have sought to take advantage of exceptions to the deadline that suspend it, like waiver, estoppel, and equitable tolling, under the Supreme Court’s decision in Zipes v. Trans World Airlines, 451 U.S. 385, 398 (1982). But she never made that argument, because, as she testified in her deposition, she had been told many years earlier that she was being paid less than the men she later claimed ought to have been paid the same as her.

Nor did she argue that the outcome of her case would have been changed if the Supreme Court recognized an even broader extension to the deadline for employees who are unaware of the discrimination against them, the so-called discovery rule. As the Supreme Court specifically noted in footnote 10 of its opinion, “we have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.” In short, since Ledbetter had long known of the facts underlying her discrimination claim, relaxing the deadline for employees who “did not discover” the discrimination until much later would have done her no good.

But in the 2008 election campaign, Obama and state democratic parties falsely claimed that the Supreme Court had created a rigid 180-day deadline for bringing discrimination claims, regardless of whether the employer conceals evidence of discrimination. The 2008 campaign featured TV ads from Obama, and mass mailings by state Democratic Parties, falsely claiming that McCain backed wage discrimination against women, simply because he did not support a bill to override the Supreme Court’s Ledbetter decision. Amazingly, the McCain campaign did almost nothing to counter those attacks.

Press coverage suggesting that the Ledbetter decision created a rigid 180-day deadline for pay discrimination claims was also faulty because it ignored the fact that the 180-day deadline only applies to plaintiffs who choose to sue only under the law with the shortest deadline, Title VII. Pay discrimination claims can also be brought under the Equal Pay Act, which has a longer three-year deadline for most claims, and more generous accrual rules as well. And race discrimination claims can be brought under 42 USC 1981, which has a long four-year deadline.

The Supreme Court specifically noted that the plaintiff could have sued instead under the Equal Pay Act, observing that plaintiff “having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII.” Plaintiff Ledbetter’s lawyer admitted to the court that he had goofed by failing to press her claim under that law.

In short, it wasn’t the Supreme Court that prevented Ledbetter from suing: it was her own incompetent lawyer, and her own tardiness in suing after she learned of the pay disparities she claimed were discriminatory.

Monday, February 23, 2009

WaPo: Why stock investments and Supreme Court service don't mix

Justice Roberts's Portfolio. WaPo Editorial
Why stock investments and Supreme Court service don't mix
The Washington Post, Monday, February 23, 2009; Page A18

THE PLANNED merger of pharmaceutical firms Pfizer Inc. and Wyeth has created a complication in one of the most important business cases before the Supreme Court this term.
The case of Wyeth v. Levine was heard by the justices in November; no decision has yet been rendered. The case, which involves the obscure but important concept of federal preemption, has potential ramifications not just for Wyeth and the pharmaceutical industry, but for a host of other regulated entities looking to shield themselves from state court lawsuits.

According to his financial disclosure form, Chief Justice John G. Roberts Jr. owns stock in Pfizer. Now that Pfizer plans to merge with Wyeth, the chief justice's investment will be directly affected by the court's decision.

Even though the deal has not closed, probably will not be finalized before the end of the term and could fall apart, Chief Justice Roberts should divest himself of the Pfizer stock.

Chief Justice Roberts and others on the court, particularly relative newcomer Justice Samuel A. Alito Jr., have gradually been selling individual stock holdings that most often trigger conflicts. Avoiding such conflicts, which can require justices to recuse themselves, is particularly important at the Supreme Court because no other jurist can substitute for an absent justice. And when the court is evenly split -- and this happens almost exclusively when the court is short-handed -- the lower court's judgment is automatically upheld and the results are not applicable nationwide. An opportunity to clarify murky law or conflicting lower-court decisions is squandered.

A special law allows judges to avoid capital gains taxes if they are forced to sell holdings to eliminate a conflict of interest. This provision may offer little solace, given the recent losses in the stock market. Still, the chief justice should move quickly to clear up the potential conflict.

Friday, February 20, 2009

Conservative View On Obama’s Judicial Nominees

Obama’s Judicial Nominees, by Ed Whelan
Bench Memos/NRO, Friday, February 20, 2009

In this essay, Princeton professor (and—disclosure—Ethics and Public Policy Center board member) Robert P. George argues that the real-world constraints in the fields of national security and economics make it all the more certain that President Obama will deliver to “the left, fully and without dilution, victory on the moral and cultural issues”, especially through the courts:
What Obama’s judicial nominees will have in common is a belief that
judicial power may legitimately be used, and should be used to achieve
left-liberal moral and political goals. Their belief lacks any basis in the text
of the Constitution, the logic of its provisions, or its structure and original
understanding, but never mind. Some will propose moving quickly, others more
cautiously and gradually, but all will subscribe to one version or another of
the idea that the “majestic generalities” of the Constitution (free speech, due
process, equal protection) need to be given content by judges reading into them
ideas such as abolishing the legal definition of marriage as the conjugal union
of husband and wife, extending legal abortion, requiring the public funding of
abortion, and invalidating parental notification and informed consent laws and
laws affording conscience and religious liberty protection to pro-life
physicians, healthcare workers, and pharmacists.

The Obama judges are likely to revive the idea (championed by influential
liberal legal scholar Ronald Dworkin but rejected in the mid-90s by the Supreme
Court) that there is a constitutional right to assisted suicide, and expand
constitutional protection of pornography, including “virtual” child pornography
that is manufactured without the use of actual children. They will defend
preference-based affirmative action policies in hiring and employment as
constitutionally warranted efforts to achieve an allegedly compelling state
interest in racial, ethnic, and sexual “diversity.” They will likely place
further restrictions on religious activities and expression in public schools
and other governmental institutions by adopting a broad reading of the
“establishment clause” and a narrow reading of the “free exercise” clause of the
First Amendment.

Alas, that sounds accurate to me.

Thursday, February 19, 2009

Conservative views: Common Article 3 of the Geneva Conventions and US Detainee Policy

Common Article 3 of the Geneva Conventions and U.S. Detainee Policy. By David Rivkin, Lee Casey, and Charles Stimson
Heritage, Feb 19, 2009

Full article w/references here.

The Geneva Conventions loom large over U.S. terrorist detainee policy—even when the conventions may not strictly, as a matter of law, apply. In addition to their legal force, the conventions carry the weight of moral authority. It is no small matter, then, to question whether U.S. detention efforts fall short of the standards of Article 3—an article that is common to all four Geneva Conventions (hence its designation as "Common Article 3," or CA3). But that was the implication when President Barack Obama ordered the secretary of defense to conduct an immediate 30-day review of the conditions of detention in Guantanamo to "ensure full compliance" with CA3.

What exactly such compliance requires is open to debate.


CA3: Already in Force

From the military's point of view, Common Article 3 has been in full force for over two and a half years at Guantanamo. In June 2006, the United States Supreme Court ruled in the case of Hamdan v. Rumsfeld that America's armed conflict with al-Qaeda was non-international in character and, as such, was governed by CA3.[1] Within a week of that ruling, Deputy Secretary of Defense Gordon England issued a department-wide memorandum requiring all Department of Defense components to comply with CA3. Shortly thereafter, all components of the Department of Defense reported that they were in full compliance; this included the Joint Task Force in charge of detention operations at Guantanamo Bay, Cuba.

On September 6, 2006, the Department of Defense issued a department-wide directive applicable to all detainees in DOD custody or effective control. That directive incorporated verbatim CA3 of the Geneva Conventions and required the entire Department of Defense, including Guantanamo, to comply with CA3.

Whether this September 2006 directive marks the end of the story depends on what the text of CA3 means. And that is not so straightforward an inquiry.


Defining CA3

Common Article 3 is the third article common to each of the four Geneva Conventions. The Geneva Conventions codify much, albeit not all, of the law regulating armed conflict and the humane treatment of persons detained during armed conflict. The four conventions, as most recently revised and expanded in 1949, comprise a system of safeguards that attempt to regulate the ways wars are fought and to provide protections for individuals during wartime. The conventions themselves were a response to the horrific atrocities of World War II. The first convention covers soldiers wounded on the battlefield, the second covers sailors wounded and shipwrecked at sea, the third covers prisoners of war, and the fourth covers civilians taken by an enemy military or otherwise impacted.

What CA3 precisely requires and what it forbids is subject to debate. According to the actual language of CA 3, detainees "shall in all circumstances be treated humanely," but the term humanely is never defined. "[O]utrages upon personal dignity, in particular humiliating and degrading treatment," are strictly prohibited, whatever they may be. Also prohibited are "cruel treatment and torture," but again, there is no definition of these terms. CA3 is a good statement of principles, but aside from banning murder and hostage-taking, it provides no concrete guidance to anyone actually holding detainees.

Nonetheless, CA3 is a part of U.S. treaty and criminal law. Congress, in the 1999 amendments to the War Crimes Act, made it a crime to violate CA3. For certain acts, such as murder, taking hostages, and obvious acts of torture, the prohibited conduct should be clear, since Congress has defined the elements necessary to prove these crimes in statutory law.

But what exactly constitutes "outrages upon personal dignity, in particular humiliating and degrading treatment"? No universal or even national consensus as to the definition of these terms exists. There is, however, no doubt that what constitutes humiliation or degradation, as distinct from acceptable treatment, is highly context-specific and culture-dependent. For example, any custodial interrogation or incarceration entails elements of humiliation that would be unacceptable in other contexts. Likewise, some societies find placing women in a position of authority, as guards or interrogators, over detained individuals unacceptable; for other cultures that believe in basic gender equality, these practices are not even remotely humiliating. Even Jean Pictet, the world-renowned human rights attorney who helped draft the Geneva Conventions and led the International Committee of the Red Cross, noted that with respect to CA3, the drafters wanted to target those acts that "world public opinion finds particularly revolting." This is a highly uncertain guide.

Pictet also stated that the outrages upon personal dignity referenced by the treaty were of a sort "committed frequently during the Second World War." This too gives little guidance. Presumably, the prohibition would include forcing ethnic or religious minorities to wear insignia for purposes of identification, such as the infamous yellow star imposed by the Nazi regime on the Jewish population of Germany and occupied Europe. What else it may include is very much open to debate; the Axis Powers were ingenious in the area of humiliating and degrading treatment.


Principles of CA3

In interpreting this important provision, the United States would be justified in following some basic principles inferred from CA3.

First, CA3 imposes obligations on the parties to a conflict. This suggests that to violate the provision, the conduct must be both of a sort that world opinion finds "particularly revolting" and systemic, undertaken as a matter of policy rather than simply the actions of individual miscreants or criminals. Thus, although the treatment of some detainees by a few guards may have been outrageous, humiliating and degrading—and perhaps criminal—it would not violate CA3 unless it was ordered as a matter of policy or the responsible authorities failed to suppress and punish the conduct once it became known to them. All allegations of mistreatment are required to be investigated as a matter of written order.

Likewise, the use of the law of war paradigm cannot, by definition, be a violation of CA3, even if its specific application produces a less than ideal result. For example, detaining individuals believed to be enemy combatants is no violation of CA3, even if subsequent review concludes that their status classification was erroneous and they were not, in fact, enemy combatants. Under the same logic, and despite some oft-invoked but misguided criticisms of the U.S. detention policy, detaining captured enemy combatants for the duration of hostilities and not charging them with specific criminal offenses does not violate CA3.

Second, the purpose of CA3 was to compel compliance with the most basic requirements in the context of a civil war or other internal conflict, where it was acknowledged that the other provisions of the four conventions would not apply. Thus, it is a fair assumption that CA3 should not be interpreted as simply incorporating those other Geneva Convention provisions into the conflicts to which CA3 is applicable. Outrages upon personal dignity would not, therefore, include simply denying captives the rights and privileges of honorable prisoners of war under the third convention or of civilian persons under the fourth.

Third, CA3, like any other specific treaty provision, should be construed in the context of the overall treaty regime of which it is a part. In this regard, the overarching purpose of the 1949 Conventions (and all of the other laws of war-related treaty norms) has been to ensure that the popular passions aroused by war and even the consideration of military necessity do not vitiate the fundamental requirements of humane treatment. To suggest that, for example, the wartime standards of treatment should be fundamentally superior to the peacetime standards would turn this logic upside down and is untenable. Accordingly, such incarceration-related practices as single-cell confinement and involuntary-feeding—which, subject of course to appropriate safeguards, are used in civilian penal institutions of many Western democracies—cannot, by definition, infringe CA3.

There is no doubt that the intentions reflected in CA3 are laudable, but it is a less than perfect standard for the law of war, which must provide real and precise answers to an entire range of specific questions. Indeed, CA3's language is ambiguous, capacious, and difficult to apply in some circumstances. Fortunately, U.S. detention operations in general, and post-2006 in particular, have featured conditions for detainees that—structured in ways that provide more than sufficient compliance with CA3—compare favorably with any detention facilities in the history of warfare.

David Rivkin and Lee Casey are partners in the Washington, D.C., office of Baker and Hostetler LLP and served in the Justice Department during the Reagan and George H. W. Bush Administrations. Cully Stimson is a Senior Legal Fellow at The Heritage Foundation and served as deputy assistant secretary of defense for detainee affairs from 2006 to 2007.


References

[1]Hamdan v. Rumsfeld, 126 S.Ct 2749 (2006). It is worth noting that, insofar as the Hamdan case dealt with the legality of military commissions, and the Court's observations about the applicability of the CA3 were raised in that context, the Bush Administration could have opted to read the case holding narrowly. However, the Administration and the Department of Defense chose to construe Hamdan's teaching broadly and applied CA3 across the entire range of detention operations.

Saturday, February 7, 2009

Conservative Views: Obama’s SG Pick Elena Kagan—Establishment Clause

Obama’s SG Pick Elena Kagan—Establishment Clause. By Ed Whelan
Bench Memos/NRO, Saturday, February 07, 2009

Last month, I discussed (here and here) SG nominee Elena Kagan’s vigorous opposition to the Solomon Amendment and the extremist rhetoric (“a profound wrong—a moral injustice of the first order”) she deployed against the Don’t Ask, Don’t Tell law.

I’d now like to call attention to a memo (dated October 22, 1987) that Kagan wrote as a law clerk to Justice Thurgood Marshall in the case of Bowen v. Kendrick. As Kagan’s memo explains, at issue in that case was the Adolescent Family Life Act, which authorized federal funds to support demonstration projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents. AFLA specifically contemplated that “religious organizations” could receive funds under the Act. The district court ruled that the inclusion of religious organizations violated the Establishment Clause.

In her memo to Justice Marshall, Kagan agrees with the district court’s Establishment Clause ruling and adds this remarkable explanation (underlining in original; italics added):
The funding here is to be used to support projects designed to discourage
adolescent pregnancy and to provide care for pregnant adolescents. It
would be difficult for any religious organization to participate in such
projects without injecting some kind of religious teaching.… [W]hen the
government funding is to be used for projects so close to the central concerns
of religion, all religious organizations should be off limits.

The italicized sentences reflect a bizarre understanding of religious organizations. How is it that it “would be difficult for any religious organization to participate in [projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents] without injecting some kind of religious teaching”? Kagan offers no explanation. Either she had a remarkably narrow understanding of how many religious organizations operate, or she had a remarkably expansive view of what counts as “religious teaching”.

It’s also strange that Kagan, in the context of Establishment Clause concerns, would label projects designed to discourage adolescent pregnancy and to provide care for pregnant adolescents “so close to the central concerns of religion”. How do such projects in the abstract (apart from any particular concerns that could arise in their application) remotely raise genuine Establishment Clause concerns?

In (very limited) defense of Kagan, the aggressive and reflexive secularism that her comments reflect was part of a liberal orthodoxy on the Establishment Clause that had much greater currency in the mid-1980s than it does now.

President Obama purports to have grand plans for his faith-based office. If Kagan’s current Establishment Clause views are anything like they were two decades ago, they ought to set off alarm bells for those who recognize that the Establishment Clause should not be misused to discriminate against religious organizations.

Sunday, February 1, 2009

On BHO's executive orders on detainee treatment

Obama’s Torture Loopholes, by Prof. James Hill
Global Research, January 26, 2009

On January 22, 2009, President Obama signed a number of executive orders purporting to end the Bush administration’s abusive practices in dealing with treatment of terrorism suspects. Before Americans get too elated, however, they should look carefully at the inhumane interrogation practices these orders may still permit.

When first announced, the new president’s executive orders seemed cause for celebration, prompting the American Civil Liberties Union to feature a link on its website encouraging visitors to email the president and “Send Him Thanks!”

The ACLU summarized the new orders:

President Obama . . . ordered the closure of the prison camp at Guantánamo Bay within a year and the halting of its military commissions; the end of the use of torture; the shuttering of secret prisons around the world; and a review of the detention of the only U.S. resident being held indefinitely as a so-called “enemy combatant” on American soil. The detainee, Ali al-Marri, is the American Civil Liberties Union’s client in a case pending before the Supreme Court.

Like many reacting to the president’s orders, ACLU Executive Director Anthony Romero expressed unbridled enthusiasm:

These executive orders represent a giant step forward. Putting an end to Guantanamo, torture and secret prisons is a civil liberties trifecta, and President Obama should be highly commended for this bold and decisive action so early in his administration on an issue so critical to restoring an America we can be proud of again.[1]

Torture by US officials has long been illegal, but the president’s executive order entitled “Ensuring Lawful Interrogations” seems to clarify, to some extent, what activities are proscribed. Disappointingly, though, this order contains loopholes big enough to drive a FEMA camp train through them.

Loophole 1: Torture is prohibited only of persons detained in an “armed conflict.”

The executive order applies only to “armed conflicts,” not counterterrorism operations.

The order states in part:

Consistent with the requirements of the Federal torture statute, . . . the Detainee Treatment Act of 2005, . . . the [United Nations] Convention Against Torture, [the Geneva Conventions] Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States [emphasis added].

This sounds salutary: America should not torture people detained in armed conflicts. But are such conflicts the only situations in which the US military, federal agencies, and private security companies can detain people today in the name of the war on terror?

Hardly. Many US and foreign citizens have been detained in counterterrorism operations, which another of Obama’s January 22 executive orders carefully differentiates from armed conflicts.

In that other executive order, entitled “Review of Detention Policy Options,” a special task force is commissioned to review procedures for detention suspects. This order clearly distinguishes between “armed conflicts” and “counterterrorism operations”:

The mission of the Special Task Force shall be to conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice.

As the president has made this distinction, so should we.

To date, counterterrorism operations have resulted in hundreds of arrests of persons in America and abroad, having nothing whatever to do with any armed conflict. Does President Obama wish limits on what is done to these people when detained and interrogated? His executive order on torture is silent on the issue.

Moreover, we know that many Guantanamo detainees from Pakistan and Afghanistan were sold to US officials by bounty hunters paid up to $25,000 per detainee, regardless of innocence.[2] Are these persons to be considered “individuals detained in [an] armed conflict”? Or must they be arrested while fighting on the battlefield to fit this qualification? Put differently, are blameless, uneducated goat herders who were sold into detention by warlords and mercenaries exempted from the president’s clarified prohibition of torture, simply because they never stepped foot on a battlefield?

Another concern is the US military’s deployment in American cities, which began on October 1, 2008, according to the Army Times.[3] Perhaps this deployment is in preparation for social unrest in the event of an economic collapse. If martial law were declared in America , how would citizens be treated? What if they were detained in FEMA detention facilities? Could they be tortured under the umbrella of “counterterrorism operations” because that is different from “armed conflict”?

To Americans wishing to remain free of torture, a far greater threat than detention during armed conflict is that resulting from what the federal government labels as counterterrorism operations, conducted both on US soil and overseas. Unfortunately, President Obama has not yet clearly addressed torture in this category.

Loophole 2: Only the CIA must close detention centers.

President Obama has ordered the CIA to close detention centers, except those “used only to hold people on a short-term, transitory basis,” which can stay open indefinitely. Exactly how long a duration is “short-term” and “transitory” is unclear.

The executive order states:

The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.

This sounds wonderful, but what about other federal agencies? Can the FBI, National Security Agency, Department of Homeland Security, and Defense Intelligence Agency maintain detention facilities where torture may occur? Can private military contractors like Blackwater do so? Under one interpretation of Obama’s executive order on torture, those facilities may still operate and even expand, provided the CIA doesn’t control them. Is it cynical to suspect this could be window dressing?

Loophole 3: Officials may still hide some detainees and abusive practices from the Red Cross.

On the Red Cross’s monitoring of detainees, the executive order reads:

All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies.

Here again, if a detainee is not one captured on the battlefield by US soldiers in an armed conflict, Obama’s order provides no guidance as to his fate. Government and private thugs may evidently still brutalize detainees obtained in counterterrorism operations and hide them from the Red Cross, unless and until the president issues a further executive order, or Congress passes a law, closing this loophole.

Loophole 4: Abuses not labeled “torture” may continue.

Obama’s executive order on torture does not label any particular practice “torture,” but instead requires that future interrogation practices conform to those outlined in the Army Field Manual. This may be in deference to Bush administration officials who authorized procedures like waterboarding while simultaneously declaring, “ America does not torture.” Debate in some circles will doubtless continue, therefore, over whether waterboarding; deprivation of food, water, and sleep; humiliation; and infliction of severe bodily pain and injury indeed constitute torture.

The executive order imparts the following limitations:

Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes [emphasis added].

By this language, waterboarding and other harsh interrogation procedures are prohibited by implication because they are not authorized by the Army Field Manual. But like other parts of Obama’s order, this prohibition apparently applies only to persons detained in an armed conflict. As discussed above, we are left to wonder whether detainees grabbed in counterterrorism operations can continue being tortured.


Conclusion

The loopholes in President Obama’s executive order on torture may permit cruel abuses of prisoners to continue, using a legal parlor trick. Labeling detainees the product of counterterrorism operations rather than of armed conflict, or holding detainees in detention facilities operated by entities other than the CIA, may allow government agents and private contractors conforming to the letter of the president’s order to continue practices most would consider torture. The president should close these loopholes or explain to Americans why he won’t.

James Hill is a partner in the law firm of McDermott Will & Emery, and a clinical assistant professor of radiology at the University of Southern California School of Medicine. The views expressed are solely his own.


Notes

[1] ACLU Press Release: President Obama Orders Guantánamo Closed And End To Torture; at http://www.aclu.org/safefree/detention/38455prs20090122.html?s_src=RSS
[2] See: Andy Worthington: The Guantanamo Files: The Stories of the 759 Detainees in America 's Illegal Prison. Pluto Press, 2007; and: Jeffery Rosen: Voices of Victims (a review of My Guantanamo Diary: The Detainees and the Stories They Told Me, by Mahvish Rukhsana Khan). The New York Times, August 10, 2008, at http://www.nytimes.com/2008/08/10/books/review/Rosen-t.html?fta=y
[3] Gina Cavallaro: Brigade homeland tours start Oct. 1. Army Times, September 30, 2008, at http//www.armytimes.com/news/2008/09/army_homeland_090708w