Wednesday, December 27, 2006

Troops, Civilians, and President

There were a number of passages yesterday. President Gerald Ford passed away at age 93. May he rest in peace.

Also on December 26, Deaths among American forces in Iraq exceeded the number of civilian deaths (2,973) in the September 11 attacks. If the justification for the Iraq invasion were to somehow avenge the deaths on 9/11, then this number has significance (although a hypothetical "eye for an eye" invasion would presumably focus on the number of enemy civilian deaths). If it were to prevent a similar attack by a different threatening power, then the number is meaningless. If there is no connection to 9/11, even to prevent a future attack by a different threatening power, then every death is unjustified, not just those that exceed 9/11 deaths.

To their credit, it appears that most American journalists are staying away from this sort of anniversary/numbers reporting. CNN and CBS News were the only prominent American reports that I could find in my brief search online. I initially heard the numeric comparison on the Fox News Channel.

Friday, December 22, 2006

Friday, Saturday, and Sunday (Christmas 2006 Edition)

Let's keep this thing going through the holiday. Put your own mini-blog in the comments section below.

Wednesday, December 20, 2006

Lawyers, Reporters, and Swift Boat Skippers

So we find out that a contributor to Swift Boat Veterans and POWs for Truth in 2004 was also a contributor to some anti-Mike Hatch advertisements in the 2006 Minnesota Gubernatorial race. This connection is important because...?

I will answer my own question by saying that there is an assumption that the Swift Boat ads were somehow out of bounds or scandalous. In my view, however, once they got past the fading35 year-old recollections of what happened on the river, and focused on Kerry's congressional testimony, it was hard to challenge the ads on factual grounds. The most devastating campaign ads used Kerry's own recorded words.

Returning to the Minneapolis Star Tribune article on the person who contributed both to the Hatch ads and the Swift Boat ads, there was an interesting passage about a second supposed connection between the two ads.

There were other connections between that Swift Boat campaign and the efforts against Hatch. A Stronger America-Minnesota is registered in Minnesota with an Alexandria, Va., address. Hatch said before the election that he discovered that an insurance-industry backed group, Americans for Job Security, shared the same address.

The attorney for Americans for Job Security is Benjamin Ginsberg, who was the attorney for the 2004 Bush campaign and for the Swift Boat Veterans.

That's right. You had better screen your attorney carefully when you have your will drafted. You are responsible for every other client for whom your lawyer does other legal work.

Tuesday, December 19, 2006

Mondale, Scalia, and Breyer

No time for an original post, but I have been a busy beaver over at the Star Tribune Big Question blog. Here is an interesting (to me, at least) thread about Justice Scalia and the doctrine of "Originalism."

Also, there was a Mondale love-fest at the University of Minnesota. I asked on Big Question whether they had looked into Mondale's Law Review note (post from Powerline re: same) on campaign finance reform.

Monday, December 18, 2006

Truth, Whole Truth, and Nothing But The Truth

Let's take this bit about swearing on scriptures of your own choice a bit further. You will recall that I have been wondering whether this taking of offense over Koran mistreatment and Mohammed depictions is a new phenomenon. What happens to an historic frieze on a courthouse or other artwork that includes Mohammed?

Stay with me on this one. The legal justification for much of the religious symbolism and iconography on public property is that it is historic, cultural, or otherwise non-religious. If we remove depictions of one religious figure based on wanting to treat that religion with proper reverence, then what does that say about the secular purpose of the display? Does it stop being historic if a particular religion takes offense?

Thursday, December 14, 2006

Friday, Saturday, and Sunday

It's Open Thread Friday again (starting early). Use the comment function and make this blog into your own for a brief moment.

Wednesday, December 13, 2006

Left, Right, and Rationalization

Check out this nugget from the Minneapolis Star Tribune Blog House:

I believe if you have folks on the left and the right angry with you, you must be doing a good job. By that standard, the Iraq Study Group deserves a huge bonus.

Its report calls for all U.S. combat forces to be out of Iraq by the spring of 2008, for negotiations with Syria and Iran and a new effort to resolve the Israel-Palestinian issue -- giving bloggers on both sides of the aisle something to hate. For liberals, the conclusions didn't go far enough; for conservatives, it was hoisting the white flag.

I have heard this sort of rationalization quite often from mainstream media types. The father of a certain newly elected legislator used to brush off any criticism of his columns in this manner. The thinking is that criticism from the left and the right puts one exactly in the middle, and that the middle is the correct position. There are too many flaws in this logic to mention at this time. But it is good to see that there is a new generation of writers at the Star Tribune to carry on the tradition.

Tuesday, December 12, 2006

Deeper, Deeper, and Deeper

Great stuff in response to my post below. Mahan, in particular, has been very helpful.

To review, I am wondering if being touchy about the Koran and depictions of Mohammed is a new thing or if it has always been there. The way I think about the Koran (and the Gitmo controversy about water being splashed on it, etc.) is that it is like a combination of an American flag and a communion host in a Catholic mass. It has both a symbolic nature that would cause one to become enraged at desecration and a sacred nature where it becomes like the body of a deity. Am I wrong?

There are some Christians who refuse to swear an oath in court, in a deposition, or for a government office. This is not like the atheist who objects to the reference to God. The Christian who "affirms" rather than swearing an oath is concerned about scriptural requirements to give only your word. Is there a similar school of thought in Islam? If so, does the special treatment of the Koran noted above play into the taking of a government oath?

Sunday, December 10, 2006

Please, Please, and Please

I have a bleg.*

I have a hunch that the offense taken at depictions of the prophet Mohammed (and alleged mistreatment of the Koran) is of recent vintage. It seems that one can cite examples where this happened in the past without all of the problems. This relates to some points that I want to make on a related topic.

What say you? (besides "Do your own research")

P.S. I am still waiting to see if "Anonymous #2" wants to identify him/herself. If so, I will post the comment whole. Otherwise I will chop it up into bite-sized morsels.

*Bleg -- when a blogger begs from something

Friday, December 08, 2006

Friday, Saturday, and Sunday (12-8-06)

It's Open Thread Friday (OTF). Write your own blog post and put it in the comments section below.

I do post anonymous comments. It is possible that I will chop them up into bite-sized morsels and respond piecemeal. If you provide your real name and avoid personal attacks, I will post the comment as is.

CONFIDENTIAL TO ANONYMOUS #2: Thanks for the thoughtful comment. Care to give your name?

CONFIDENTIAL TO MARTY: Sorry I neglected to post your nomination for Man of the Year and Father Time. Oversight on my part. Nominations are still open.

Thursday, December 07, 2006

Barbie, Ken, and Anonymous

Too busy to post something new. Here is a fight going on in the comments section for the post below:

Mahan said... It would surprise me greatly if you were to see such a refutation, frankly. The arguments I have so far seen advanced against the memo as a result of this academic protest (if that is the term) appear to be on the same intellectual plane as that left by your anonymous commentator, and wasn't that a wonderful stand for the Geneva Conventions, to not identify yourself?

If that is, in fact, the level to which American legal education is being reduced (to be fair, it isn't just legal scholarship, but this is taking place at the Law School), the American academy is in far worse shape than I've ever imagined it to be, and I'm very glad I'm not involved in it. To paraphrase a classic movie, I could feel my mind going, Peter...
December 06, 2006 8:34 PM

Anonymous said... No.
The administration seems to view the law as an impediment to "making America secure." That view is extremely dangerous, but they've sought out legal justification for it.


So while "saying the Geneva conventions don't apply" doesn't necessary mean the law "means nothing," it is just one example of many showing their disregard for law. These examples are well known and I won't go into them.

Also, it's not the words in the legal analysis (although those have certainly been debated), it's the way in which a lawyer helped his client get around the law. That is simply unethical, regardless of what the memo explicitly said. [Link in original post comment]
December 07, 2006 9:05 AM

Peter said... Re: The comment above.
I should say that "anonymous" should get his own blog. Many bloggers use his tactic (including me, when I'm lazy) of linking to something as a substitute for making an argument.


If we want to have a debate about the Bybee memo, let's do. But that is a separate thread. Delahunty did not author that memo. The fact that John Yoo wrote a cover memo for the Bybee memo, and separately co-authored the Delahunty memo, does not mean that Delahunty is responsible for the former.

Another controversial memo (this time regarding Guantanamo) was written by Lieutenant Colonel Diane Beaver. "The Beave" was my deputy staff judge advocate at Fort Riley, Kansas. She edited most of our memos when we were in administrative law. Mostly stuff like missing binoculars and permissible assistance to the local Boy Scout chapter. Under the Bybee-works-with-Yoo-works-with-Delahunty logic, I would be responsible for LTC Beaver's controversial memo since I co-authored a separate memo with her.

Finally, It DOES matter what the memos actually say. If it didn't, we might as well call them the "Blue Cow" memos or the "Deluxe Barbie and Ken Doll Playset" memos.

Wednesday, December 06, 2006

Deans, Delahunty, and Detainees Part II

Comment on yesterday's post:

Anonymous said...

oh, i get it

"Concluding that the Geneva Conventions do not apply to particular detainees does not mean that torture is either condoned or authorized."

who cares!

except, this is simply against a lawyer's ethics to suggest a way around established law. does the law mean nothing? is it merely something we must get around in order to get more power?

I am going to need help decoding this particular comment. To say (correctly, in my view) that the Geneva Conventions do not apply is to say that the law means nothing? And the fact that the legal analysis did not authorize torture is meaningless when discussing so-called "Torture Memos"?

Delahunty and others are accused of facilitating torture because they said that the Geneva Conventions did not apply to Al-Qaida detainees. The thinking was as follows:

If Geneva applies, torture is prohibited
Assume Geneva does not apply
Therefore, torture is not prohibited

or a more simple example

If A, then not B
Assume not A
Therefore, B

This is a logical fallacy of denying the antecedent. There are other things that could make B not true. Similarly, there are other things that make torture against the law.

The discussion should be about the applicability of the laws in question, not on torture. Reasonable minds can disagree on this point. We should encourage people with different perspectives to speak their minds. And we should encourage lawyers to provide interpretations of the law that are consistent with the text of the law. I have yet to see a point-by-point refutation of Delahunty's memo.

Tuesday, December 05, 2006

Deans, Delahunty, and Detainees

There is a controversy concerning a University of St. Thomas Law School professor doing a favor for the University of Minnesota Law School and teaching a single semester of constitutional law. The professor is Robert Delahunty. The controversy involves a memo that he drafted for the Bush Administration about the legal status of Al-Qaida and Taliban detainees in Afghanistan.

Here is an op/ed piece that I co-wrote with Kim Crockett last year. It appeared in the Minneapolis Star Tribune.

Kimberly Crockett and Peter A. Swanson
November 16, 2005

Nick Coleman's Nov. 4 column ("Should we shun or debate torture memo lawyers?") suggests that readers should attend today's Federalist Society debates featuring former Deputy Assistant Attorney General John Yoo. We agree. We would also suggest that people read the 2002 memorandum drafted by Yoo and St. Thomas Law School Prof. Robert Delahunty, as most commentators on this issue apparently have not.

The memorandum at issue does not authorize or condone torture. Instead, Yoo and Delahunty's memorandum presents exhaustive research on the legal status of Al-Qaida and Taliban detainees from Afghanistan. They conclude that the War Crimes Act (WCA), which incorporates several provisions of the Geneva Conventions and other international treaties into the federal criminal code, do not apply to Al-Qaida or the Taliban.

The memorandum provides many reasons why the protections of the WCA and Geneva Conventions do not apply to Al-Qaida fighters. For example, they do not represent a nation state; they refuse to wear uniforms or distinctive insignia; and they do not observe the Geneva Conventions themselves in conducting their missions. The Taliban presents a much closer case, but Yoo and Delahunty's memorandum presents the legal reasoning for why Taliban militia fighters are not entitled to the protections of the WCA or Geneva. The memorandum also mentions several times that the president may decide, as a matter of policy, to apply Geneva and other standards of conduct to the treatment of detainees.

Concluding that the Geneva Conventions do not apply to particular detainees does not mean that torture is either condoned or authorized. For example, drug traffickers from other countries who are intercepted by the U.S. Coast Guard are not covered by the Geneva Conventions, but we still treat them humanely.

There was a genuine and serious debate within the administration about the application of the international law to the war on terror. The president properly sought legal advice both to determine administration policy and to understand the legal risks and exposure for our armed forces. Former Secretary of State Colin Powell argued that the Geneva Conventions should apply to the conflict, even if some individual fighters are deemed to be "unlawful combatants." Throughout the internal debate, no administration lawyer or official argued in favor of torture. On Feb. 7, 2002, President Bush determined as a matter of policy that Geneva applied to the conflict with Taliban fighters in Afghanistan, but not to Al-Qaida. Taliban fighters are deemed unlawful combatants rather than prisoners of war.

There are important consequences of a prisoner of war designation that have nothing to do with the humane treatment that all detainees receive. For example, the Geneva Prisoner of War Convention provides legal immunity for precapture warlike acts. This means that there could be no future prosecution of terrorists who are deemed to be prisoners of war. Moreover, by affording such legal protections to belligerents who target innocent civilians and engage in combat wearing civilian clothes, we would be removing the incentive for others to conduct their operations according to the laws and customs of warfare.

The Amnesty International report cited by Coleman lists Yoo and Delahunty among various lawyers who wrote legal opinions that "may have provided cover for subsequent crimes" (emphasis supplied). This suggests that even Amnesty, with its inflammatory and irresponsible rhetoric, is not sure that Yoo and Delahunty did anything wrong in writing their memorandum. In fact, not one of the administration's several legal memoranda on this topic advocated the use of torture.

The allegation that Yoo and Delahunty "provided cover" for war crimes is absurd. It is difficult to imagine that the guards who were accused of prisoner abuse in Iraq were inspired by these lengthy and obscure legal memoranda (concerning Afghanistan) to form human pyramids with detainees. Instead of being condoned, these incidents were investigated by the military and resulted in court-martial convictions.

The flaws in Nick Coleman's tortured logic are apparent to anyone who has read the actual memos or given thoughtful consideration to the difficulty of fighting terrorists. But he is right in one respect. People should attend today's debates at the law schools of the University of St. Thomas (12:30 p.m.) and the University of Minnesota (7 p.m.).

Kimberly Crockett is a Deephaven attorney and president of the Minnesota Lawyers Chapter of the Federalist Society. Peter A. Swanson is a Golden Valley attorney and a former judge advocate in the U.S. Army.

Sunday, December 03, 2006

Man of the Year, Father Time, and 2006

Readers: I need your help. I must pick the SwanBlog Man of the Year and Father Time inductees for 2006.

Who can forget past Father Time winners like Nick Coleman and Morley Safer? The Father Time award goes to someone whose time has passed. Usually, they don't know it yet. Tired ideas and tired methods are a distinguishing feature of Father Time nominees. Whom would you pick?

Man of the Year is flexible. It could be a comeback case like John O'Neill. The only restriction is that it can't be a group of people like "whistleblowers" or "the American GI." Give me your thoughts.

I also may do the Boxing Day Truce again. But only if other blogs participate.

Friday, December 01, 2006

Friday, Saturday, and Sunday (12-1-06)

This is open thread Friday. Please use the comment function below. Your turn.