Tuesday, January 27, 2015

The Supreme Court: The Personalities and Rivalries That Defined America by Jeffrey Rosen | LibraryThing

History calms me. No matter how pissed off I get at current affairs or over the idiotic positions of one or another group, as soon as I immerse myself in history I realize that these arguments are nothing new; they’ve all been done before: nullification, states rights, federalism, constitutionalism, etc.  Current travails will pass.

Rosen describes major conflicts on the court in terms of personalities.  Marshall (the Federalist and convivial) and Jefferson (the Republican ideologue) hated each other. Just how much that motivated Marshall's extremely crafty decision in Marbury v Madison, one can only speculate about. 

I had no idea that Jefferson (along with Patrick Henry)had been such a supporter of the idea that individual states should be able to nullify actions of the federal government if they thought them to be unconstitutional.  This was, of course, partly his reaction to the Alien and Sedition Acts, enacted by the Federalists to tamp down any form of dissent, especially Republican challenges to Federalist doctrine.  Jefferson ( Vice-President at the time) had a real fear he might be deported under the conditions of the Alien Act of 1798.  Ultimately, of course, opposition to the Acts laid the groundwork for Jefferson's election to president.

Marbury v  Madison is the iconic activist case, yet I found the Yazoo land case scandal that ultimately reached the Supreme Court as Fletcher v Peck to be as interesting.  A series of Georgia governors had sold millions of acres of land in what is now Mississippi to land speculators (one company was headed by Patrick Henry) at very cheap prices  as the result of bribes. The sales were opposed by the federal government since the land was claimed by Spain.  A later Georgia legislature invalidated the contracts. Marshall’s court ruled in 1810 that even though the contracts were the result of fraudulent actions, the state could not retroactively invalidate a contract. This was the first time the court had invalidated a state legislative action. While it did lay the groundwork for a stable economic system, it certainly does leave a bad taste in the mouth.

Rosen dismantles Holmes’s sterling liberal reputation (in his defense toward the end of his life, he moved toward support for civil liberties at the expense of his judicial restraint philosophy) and shows that it was Harlan, the southern former slave owner who consistently came to the defense of the 13th-15th amendments in support of basic rights for former slaves. Holmes, especially in the Giles v Harris case (in shades of Bush v Gore), for example argued the Supreme Court had little right to overrule local legislatures, even when they trampled on the basic rights of citizens. Harlan and Holmes provide a good example of current conflicts on the court:  Harlan was the textualist (which he, ironically the former slave owner, to protect the rights of blacks) and Holmes the pragmatist who said the law was what judges decided it was. 

He does a nice job comparing the judicial philosophies of the justices. Surprisingly, he considers Rehnquist to be one of the more successful Chief Justices of the 20th century because he tempered his conservatism with a pragmatic grounding in respect for tradition.  (Current chief justice Roberts served as a Rehnquist clerk.) Scalia, on the other hand, even while his textual originalism can be compared to Hugo Black's, considers any form of disagreement with him apostasy and he describes the decisions he dislikes as leading to apocalyptic results.  Rosen makes a good case that Scalia and Thomas (perhaps now joined by Alito) are the most activist judges in decades for their willingness to overturn established precedent and legislative mandates they find distasteful.  He also notes that Scalia ignored his own advice that judges should refrain from making themselves into public figures.

In an interview with Rosen, Roberts expressed concern that the court's public good will was eroding and that an important role for every chief justice is to avoid the appearance of political and partisan divide. I suspect the media will continue to make this effort very difficult.  In term ending in 2014, the court decided 72 cases.   Of those, fully 2/3 were unanimous. Also amazing was that only 14 percent of the court’s decisions were 5-4, with just four of those 10 splits along the liberal-conservative divide.  I would argue that reveals a substantial element of harmony on the court, yet the media, thriving on conflict, insists on portraying a court bitterly divided.  Admittedly, listening to the oral arguments (I listen to all of them), there are more than occasional ripostes and snide comments made, especially between Scalia and Sotomayor.(Scalia skewers Breyer all the time, but he just ignores the barbs.  But you also get the feeling that Scalia is playing to the audience and he clearly loves getting laughs.  An article by David Garrow led me to a piece by Frederick Schauer in the Harvard Law Review  - admittedly written in 1998 -- that suggests the court is far less divided along partisan lines than the media would wish to have us think.)*


*(112 Harv. L. Rev. 84)


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Thursday, January 15, 2015

House Rules: A Joe DeMarco Thriller by Mike Lawson | LibraryThing


Let’s say there’s someone in Israel you want to get rid of without any suspicion you might be behind it.  What better way than to wait until your target is hanging out in a local bar, flip in a bomb, and then have anyone assume it was Hamas?   Or perhaps you want to become president or obtain power..  What better way to accumulate money and power than to secretly orchestrate a series of Muslim terrorist attacks and then propose extraordinary methods to eliminate the “terrorist” threat?  Contrived though it might be, that’s one of the plot devices in this excellent audiobook

Joe DeMarco works for the Speaker of the House, John Mahoney, in a very special capacity, operating way below the radar. Mahoney wants plausible deniability for his relationship with his troubleshooter and DeMarco is often left hanging in the wind to find his own way getting things done.   So why does DeMarco still work for Mahoney?  Hard to put on a resume that you’ve never practiced law, act as a bagman for the Speaker, and have no marketable skills. His latest investigation  is precipitated  when the Muslim brother of Mahoney’s old friend kills his family and then climbs into his Cessna and steers for the White House.  He is shot down by an F-16, but his motives remain quite obscure and that he happens to be a Muslim fuels the flames. Throw in a recently elected Senator who wants all Muslims thrown out of the country and a real Muslim terrorist who wants to blow up a chemical factory that makes hydrofluoric acid and you have a mess.

A political thriller par excellence, with some really caustic wit about Washington. An excellent audiobook.
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Wednesday, January 14, 2015

Goodreads | Eric_W Welch (Forreston, IL)'s review of Marines and Military Law in Vietnam: Trial by Fire

Gary Solis(author of Son Thang: An American War Crime)  begins his book with a short review of the history of military justice (a misnomer, perhaps) since the founding of this country. I had no idea the Code of Military Justice was of such recent vintage: 1950. The last Marine executed was in 1817 (in the Navy it was 1849.)

One astonishing number Solis cites is that there were 1,700,000 courts martial during WW II (pg 4). That's incredible. The changes made to the military justice system were a direct result of the feeling that many of those courts martial were much too subjective and the charges and outcomes at the whims of officers. The system was often extra-legal and officers with legal training played no part until the revision of 1950. "The reforms of 1950 reflected the continuing question of the purpose of military law: is it to enforce discipline or to insure justice? Or both? Can both ends be simultaneously served?"

The soldiers in Vietnam were in a bizarre position.  Because of a treaty signed while the French were still there and long before Americans arrived in significant numbers, “The agreement provided that all American forces entering Indochina were to be considered members of the U.S. diplomatic mission with the same legal status as actual members of the U.S. mission of corresponding grade. American military personnel were divided into three categories: senior military members of the U.S. mission with full diplomatic Status; a lesser, undefined category which, significantly, excluded its membership from the civil and criminal jurisdic- tion of Vietnam; and the third category, whose membership was again undefined, but with the legal status of clerical personnel of the diplomatic mission. In 1958. the United States advised the Vietnamese government that it would consider top U.S. military commanders to be in the first category. officers and warrant officers to be in the second, and enlisted men to be in the third category. So, in diplomatic terms, Marine riflemen were considered diplomatic mission clerks.”

Legal officers labored under difficult conditions (not as bad as the troops obviously.) Electricity was unreliable making the required verbatim transcripts taken from recording devices problematic. Language barriers were significant. Vietnam had numerous dialects and translators not easy to find.  One Colonel’s first interpreter, a very good one, was a thirteen-year-old boy.  But often the lawyers wondered if the interpreters and witnesses were having side conversations while they were being cross-examined in court.  Getting witnesses to trials was more than difficult.  It often required assigning special patrols to accompany the lawyers into enemy held territory to bring back those willing to testify.

Locating American witnesses was difficult.  Infantrymen were often in the field and his company not easily found.Sometimes a witness might have been killed or even rotated back to the United States or even gone AWOL. Communications were spotty. 

The definition of war crime was not what one would expect.  Killing a South Vietnamese citizen or a non-combatant was not a war crime.  It was considered murder since their were from an allied nation and not an enemy who would have been covered under the Geneva Convention.  Despite the effects of higher command, there were numerous courts martials of Marines charged with violations of the Geneva Convention in their treatment of prisoners.
The Marines had a shortage of lawyers, but since lawyers were required only for *general* court-martials, non-lawyers were given the responsibility of handling *special* court-martials. These were in-unit disciplinary actions.

Solis (channeling Westmoreland and others) blames rising rates of crimes against the Vietnamese and against American officers on McNamara’s decision to expand the pool of men eligible for the draft.  Now men who scored lower on the intelligence tests were available for draft and Solis’s strong suggestion is that the lower standards brought along with them lower morality and higher crime rates. Westmoreland himself said: “Category IV is a dummy. . Give him menial jobs and he is not a troublemaker. But it is awfully difficult to utilize that many category IVs . . .  that is important when you start reflecting on the drug syndrome, the fragging.That introduced a weak.minded criminal, untrained element . . When those people came to Vietnam that's when disciplinary problems began on the battlefield.”  That sounds a bit too 17th century for my taste.

I was surprised at how the sentences of many convicted Marines were vacated or reduced on appeal for some truly heinous crimes.  The case of John D. Potter, Jr. for example who had supplanted the regular patrol leader: 
the other Marines followed Potter rather than Vogel, whom they viewed as ineffective. The patrol's Navy corpsman, Hospitalman Jon R. Bretag, later testified: He [Potter] said that this would be a raid instead of an ambush - . . . We are to beat up the people, tear up the hooches and kill, if necessary. . . . He told us to roll down our sleeves, take our insignias off, make sure our covers are on [and] assigned us numbers. He said if you want to get somebody, don't mention his name, call him by number  . . . The entire squad moved out. They entered the hamlet of Xuan Ngoc . They seized Dao Quart, whom they accused of being a Viet Cong. and dragged him from his hut. While they beat him, other patrol members forced his wife, Bui Thi Huong, from their hut. They pulled her three year-old child from her arms. Then four of them raped her. A few minutes later three other patrol members shot her husband, her child, her sister-in-law, and her sister-in-law's child, with automatic and semi-automatic rifle fire. Hearing the sister-in-law moan, Potter exclaimed, "Damn, she's still alive!" He fired another burst of automatic fire into her at point blank range. Potter then tossed a hand grenade near the bodies in an attempt to cover the patrols' atrocities and "to make it look good." Next, they shot the rape victim, Bui Thi Huong, and left her for dead. She lived to testify at their courts-martial.

Upon returning to the battalion command post, the company commander sought details of the reported enemy contact:' Suspicious, he ordered their new platoon leader, Second Lieutenant Stephen J. Talty, to go back to the scene of the "contact" with the patrol. Once there, Talty realized what had happened and directed efforts to disguise  (my emphasis) what had occurred. As they were doing so, one of the previously wounded chil-
dren was discovered still alive. Potter raised his rifle over the child, saying, "someone count for me." Vogel counted to three as Potter repeatedly slammed his rifle butt into the child's head, killing him.”

Talty later admitted all. Potter was given a life sentence, later reduced to twelve years (he was released in 1978 having served the longest sentence of anyone charged during the Vietnam War)  and several others were given long sentences for murder and rape, all of which were later reduced considerably.  Talty’s was found guilty of filing a false report.  He was fined $500 and dismissed from the Marines, a dismissal that was later revoked.

This book is not for everyone, but if you have any interest in the law during times of armed conflict and the special problems faced by those charged with military justice, you will find it fascinating as did I.

N.B.  The Potter case gets its own mention in the The Oxford Companion to International Criminal Justice (

Monday, January 12, 2015

Out on the Cutting Edge by Lawrence Block

Two for the price of one, although the investigation into Eddie’s death has more coincidence and serendipity than one would like.  Then again, serendipity had much to do with the rationale for Paula’s death.

Matt’s looking for Paula. Referred to by a local cop, Matt is “hired” by her father to find her. She has disappeared with no trace.  She’s 24 and Matt put her picture on the back of his business card.  That often leads to wiseacres calling and asking for money in return for information when all they really have is a knife waiting for Matt’s ribs. But it also serendipitously leads to the solution.  Simultaneously, Matt becomes concerned about a fellow AA member who had befriended him and had said he had something on his mind he needed to unload since expiation was considered important as one of the steps in the Twelve-step program.  (We learn a lot about AA -- probably a little more than necessary, but it was a bit interesting and certainly part of Block’s style for the Scudder books.)  Eddie didn’t show for their rendezvous and is now missing.  

The book was originally published in the eighties, a time of transition for the area of New York known as Hell’s Kitchen.  It had been known as a very undesirable place, but that was changing.  The change becomes part of the solution to Eddie’s death.

Compelling reading in Block’s inimitable style.

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Thursday, January 01, 2015

Duty: Memoirs of a Secretary at War by Robert M Gates | LibraryThing

I used to like Robert Gates. I realize that memoirs, (I have also read Robert McNamara’s mea culpa In Retrospect -https://www.goodreads.com/review/show... which I highly recommend) by their very nature, tend to be self-adulatory, but there are passages that encouraged self-emetic tendencies in me. The idea that he left Texas A&M as president, where he describes himself as being overwhelmingly loved by students and faculty after only four years, to return to government as Secretary of Defense only out of a sense of duty? Really? In 2005 he had turned down a request to become Director of National Intelligence. I suspect his nostalgia for the university had as much to do with his greater control there than he was able to forge in government.

He calls names, disrespecting many others in government. While those others may have been bimbos, time will tell if it’s not a case of the pot calling the kettle black. It’s really easy to become enamored of oneself when most of the time is spent looking in the mirror. He blames Obama for lousy policy with regard Afghanistan but doesn’t dwell on what he did to try to influence that policy in a different direction. Clearly he loathes Congress considering most of them political hacks who aren’t interested in the “facts.” The book is filled with righteous anger, bile, even.

One of the most telling comments, I thought, came early in the book. He and several others had gone to Iraq as part of the Iraq Study Group (he considers his membership in that group one of the reasons why Bush 43 wanted him as Defense Secretary) when he asked one of the top-ranking military people how things were going with the CIA as far as cooperation. The reply was telling: “ “Oh, sir, it’s so much better than when you were DCI.” I was not offended because what he said was true and, in fact, a vast understatement. The close and growing collaboration, in fact, was bringing about a revolution in the real-time integration of intelligence and military operations.” Now I would have expected some deeper introspection as to why his successor was succeeding where he had obviously failed. I’m sure he included that little anecdote to show how honest he could be, yet to me it showed a complete failure to recognize his own limitations. Belittling his colleagues struck me as a similar failure. 

It seems to me that much of his complaints result from a pettiness that not everyone hopped on board with his strategies. He makes much of the “Megan” letter (with “[sics]” inserted lest you think he made the mistakes) yet ignores her advice and goes for the fifteen-month deployment change to support the surge anyway. And I totally disliked his assumptions that one could not be supportive of the troops if one didn’t support the mission. “The frequently used line “We support the troops” coupled with “We totally disagree with their mission” cut no ice with people in uniform. Our kids on the front lines were savvy; they would ask me why the politicians didn’t understand that, in the eyes of the troops, support for them and support for their mission were tied together.” Hogwash. Sometimes the best way to support the troops is precisely by opposing the mission.

He makes a big point early on that his parents considered lying a major offense, yet Gates was apparently a very effective SofD by getting along with Congress and Congressional leaders all the while considering them miserable sons of bitches. Perhaps Rumsfeld, who made enemy of Congress and the press was just being more honest. Obama comes off rather well, but largely because he acceded to the positions of Clinton and the Joint Chiefs as well as Gates. According to Gates (and is he credible here?) where they did differ, Gates adopted more dovish positions out of concern for the troops welfare. But many of his anecdotes displaying his concern for the troops came from personal exposure to grieving relatives or combat deaths. Hed portrays himself as the antithesis to Cheney who argued for the military option at every crisis (he wanted to bomb both Syria and Iran before leaving office) while he (Gates) tried to consider that as the last option. I was surprised at the level of discord within the military and the lack of support from Republicans in Congress, having assumed opposition for the surge and slow progress in the drawdown was coming primarily from Democrats in 2007. I was also taken aback by the level of discord within the military itself and disagreement on how things were going. (See the “Fox” Fallon episode on page 68.)

Gates is generally kind to Obama considering his decision to go after Bin Laden “one of the most courageous decisions I had ever witnessed at the White House.” (And he worked for eight presidents.) He was disturbed by Obama’s mistrust of the generals, believeing they were trying to box him into sending more troops. Yet Gates’ department fueled much of that distrust and he says as much on page 476: “We at Defense certainly at times contributed to White House suspicions.” He accuses Obama of politicizing military decisions, yet in the same breath notes how Obama would over and over go against the political recommendations of his advisors.

A problem I saw with Gates’ tenure at Defense was that while he was very good at identifying problems, he personalized the fixes, i.e., took personal responsibility for going around the bureaucracy rather than reforming the bureaucracy to make it more responsive and accountable. That meant that after he left, everything reverted to the status quo.

One of the most telling observations about Gates was made by Fred Kaplan of Slate. Given Gates’ rise through the ranks of the CIA and the intelligence community, “He knew how to insinuate his views into a discussion without leaving fingerprints behind, and he could calmly toss obstructionists overboard if necessary.”

Gates by all lights, Gates was a very good SofD. He managed to get Congress to go along with cutting many major weapons systems but forced through $16 billion for MRAP troop carrier that was hardened against IEDs and saved many lives. And you have to respect his compassion for the kids he was sending off to war. No doubt he made a difference in many of their lives and he writes with great compassion about the suffering of those left permanently scarred and wounded by the war. The way he handled the Washington Post story about the terrible conditions at Walter Reed was more than commendable.

But here we are ten years later facing virtually the same problems. Gates never considers that he might have been wrong about some things, preferring to ridicule his opponents, in particular Joe Biden who argued for a smaller counter insurgency force. More than 3,800 soldiers and Marines died on Gates’s watch in Iraq and Afghanistan. Perhaps Gates owes us an explanation. But he’s burned his bridges.

One last irony. Gates writes dismissively (pages 392-3) of Obama’s comments after they had discussed what to do if Israel attacked Iran:

I was put off by the way the president closed the meeting. To his closest advisers, he said, “For the record, and for those of you writing your memoirs, I am not making any decision about Israel or Iran. Joe, you be my witness.” I was offended by his suspicion that any of us would ever write about such sensitive matters.

Barely a few months later guess who’s writing his memoirs? Nevertheless, an important book. I am not doing it justice.Duty: Memoirs of a Secretary at War by Robert M Gates | LibraryThing:  One is left wondering at the end of the book whether government can exist with such confusion in goals and people often working at cross-purposes.  It must be horribly dispiriting as President to realize how little you can actually influence government.

N.B. One astonishing little tidbit. It cost Gates $40,000 for a law firm to complete the financial disclosure and national security documents required of every incoming appointee. That’s crazy.

As a companion piece, I highly recommend James Fallows recent piece in the Atlantic, “The Tragedy of the American Military, Jan/Feb, 2015” as well as several of the responses to his article. In particular, Chickenhawk Nation, Response No. 4: 'Actually, Our Military Keeps Winning' Here’s a quote: “ The more the military is isolated from our society and its political limitations, the more it can harbor this view. Likewise, the more the military is placed on a pedestal, the more its confusion of tactical military success with political victory will go unchallenged by our political system, and likely shift to reluctance to criticize the political leadership’s war goals and means.”

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