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"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"

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Wednesday, 30 June 2004

Topic: The Law

The Attorney General is the chief law enforcement officer of the federal government, so ...

Breaking on the AP wire mid-week....

The man with the JD from the University of Chicago speaks out.

Posted on Wednesday, June 30, 2004
Ashcroft: Supreme Court giving more rights to terrorists
MIAMI - Attorney General John Ashcroft said Wednesday that the U.S. Supreme Court gave more rights to terrorists in three recent decisions, and Justice Department attorneys are poring over the rulings to determine their consequences.

The orders issued Monday on Guant?namo detainees and enemy combatants Jose Padilla and Yaser Hamdi indicate "that certain terrorists have more rights," Ashcroft said after a meeting with a regional anti-terrorism advisory council.

"The Supreme Court accorded to terrorists, in a variety of cases this week, a number of additional rights," he said. "We're digesting those opinions in terms of making sure that we adjust or modify what we do, so that we accommodate the requirements as expressed by the Supreme Court."

Ashcroft noted the court preserved the president's right to designate and detain enemy combatants under "a restrained and careful procedure." But the decision also gave the detainees the right to challenge their indefinite jailing in U.S. courts, which the Bush administration opposed.

Asked about how he would address the nearly 600 foreign-born terror suspects captured abroad and held at the U.S. naval base at Guant?namo Bay, Cuba, Ashcroft said, "I'm not in a position to say what the range of potentials is." ...
And an immediate reaction on the web from Atrios -
No, you dickhead, the Supreme Court maybe recognized that under our constitution THE ACCUSED HAVE RIGHTS. The accused who, not being charged with any crimes, are INNOCENT UNTIL PROVEN GUILTY.
John, John, John... If I managed to be accused of being a terrorist, and I know I'm not a terrorist, and everyone else knows I'm not a terrorist, and there's no crime, only some hypothetical crime you think might happen, then what am I supposed to do? You know, a priori, for sure, who the terrorists are (somehow - maybe God's speaking to you) and you expect the law to catch up to your wisdom, insight and righteousness - your prescience - or slap you on the wrist if you made a little mistake in my case?

You start with a given. Person X is a terrorist. That, for you, is not at all an accusation, which may then be determined to be justified, or not, through adjudication. For you that is a fact. Hearings, evidence and all that other stuff - and maybe even a trial - are mere fluff? You know what you know.

John, John, John... you don't understand the term "accusation" do you? This is a conceptual problem. For you, accusation is the same as certain guilt. No difference. Just where did you go to law school?

Oh yeah - first you went to Yale, just like Bush and Kerry. Yale University, where you graduated with honors in 1964. And your JD was from the University of Chicago in 1967. Geez. Didn't you take notes?

Posted by Alan at 21:40 PDT | Post Comment | Permalink

Topic: The Law

Second Thoughts

As a follow-up to the item in these pages - SCOTUS - In league with the terrorists? note this bit of research here that shows many are rethinking what happened Monday in those Supreme Court rulings.
Civil liberties expert Elaine Cassel reports that this week's three Supreme Court detainee decisions may not be a victory for civil liberties after all. In fact, she calls the score "Bush 3, Civil liberties 0"--or "game, set, match - to George Bush."

Arthur at Light of Reason feels the same way. As TChris reported here, law prof Jonathan Turley expresses a similar pessimistic view, writing that the decisions show how imperiled our constitutional system has become.

And from Yale law professor Jack Balkan: "In essence, the Court has said in these cases: don't tell us that we are irrelevant. The flip side of that demand is that if the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes. In that sense, the decisions in Hamdi and Rasul cannot be understood to be complete victories for civil liberties. But they are better than the alternatives."

Not everyone agrees.

Eric Alterman in his MSNBC column turns things over to UC Davis professor Eric Rauchway and we get this:
I suspect Monday's package of Supreme Court decisions will become known collectively as the "habeas corpus cases," as I believe they're the most significant and sustained rulings on that writ since Milligan, possibly ever. The bottom line is, the Supreme Court thinks habeas corpus is still pretty darned important -- which is good news for those of you who like freedom better than unfreedom -- and that it applies to pretty much every aspect of government behavior unless the Congress invokes the suspension clause of the Constitution - which it hasn't, yet.

... Shorter Hamdi:
The President may or may not have the Constitutional power to bung you in jail; we're not going to address that question because Congress gave him the power to bung into jail people associated with the 9/11/01 attacks. But even so, if he does that to you, you can sue.

... Shorter Padilla:
He sued in the wrong jurisdiction so we're not touching the question of whether he should get off or not.

...Shorter Rasul:
The courts do so have jurisdiction over Guant?namo.
Of course the guy from Davis, California does give much longer explanations which you can wade through if you wish.

His summary?
The Court flinched from ruling on the Nixon-at-war version of presidential wartime powers (if the president does it, that means it's legal) that we have recently seen asserted in various administration memoranda and in briefs on these cases. It ruled that Congress gave considerable power limited to warring on and apprehending persons associated with the 9/11/01 attacks, and this is good enough to hold people as enemy combatants. Such detentions are challengeable in court, though by what standard of evidence it's not clear. Guant?namo Bay too comes under federal court jurisdiction for these purposes. In other words, the President can do a lot of stuff if Congress lets him and maybe otherwise; the Court won't say), but in all cases discussed today his actions are subject to judicial review.
And, now, his question:
If the Court believes the President's extraordinary wartime powers result from the act of Congress authorizing him to use "'all necessary and appropriate force' against 'nations, organizations, or persons' associated with the September 11, 2001 terrorist attacks," then does the Court perhaps believe that those powers do not apply in Iraq? What does that mean for persons held at e.g. Abu Ghraib? As Scalia points out in his dissent in Rasul: "parts of Afghanistan and Iraq should logically be regarded as subject to our domestic laws," according to the logic of the majority opinion (with which he of course disagrees). I don't know the answer here, I'm just asking.
Yep, that is curious.

And over at SLATE.COM we get this -

Taking It to the Trenches
What the Supreme Court's terrorism decisions will mean for the war effort.
Phillip Carter - Posted Tuesday, June 29, 2004, at 1:35 PM PT

Carter's concern is what this means on the battlefield - as he is a former Army officer who now writes on legal and military affairs out here in Los Angeles.

He notes that these decisions "did not substantially impinge" on the president's actual powers to wage war or on the military's right to take prisoners during war.
But the court did speak to the kinds of procedures necessary to lawfully hold combatants. By levying procedural due-process requirements on the government in Hamdi, the court likely created new requirements for soldiers in the field when they detain prisoners. It also may have fundamentally changed the way our nation gathers intelligence in the war on terrorism. And by opening the federal courts to the Guant?namo detainees, the high court may have altered the nature of U.S. detention operations--and created a new means of resistance for detainees in U.S. captivity.
And he explains that in detail.

But he okay with the new restrictions that he sees coming:
The images of shackled prisoners at Guant?namo Bay and naked prisoners at Abu Ghraib have not helped America win many friends in the world, nor have the memoranda from Bush administration lawyers arguing that such tactics are justifiable means to a worthy end. But in limiting the president's power to detain combatants, the Supreme Court may have taken the most significant step yet toward rehabilitating the commitment of the United States to the rule of law.

Curiously the Los Angeles Times reports that one option the Bush administration is considering in response to Monday's Supreme Court ruling that grants enemy combatants access to US courts is to move hundreds of Guant?namo detainees to prisons on the mainland. But the most curious part of the Times article is this:
As attorneys for detainees at the U.S. naval base at Guant?namo Bay, Cuba, began preparing the first of hundreds of expected lawsuits demanding that the government justify the detentions, senior administration officials acknowledged that they were unprepared for a rebuke in two landmark Supreme Court decisions that rejected the military's treatment of prisoners in the war on terrorism.

... "They didn't really have a specific plan for what to do, case-by-case, if we lost," a senior defense official said on condition of anonymity. "The Justice Department didn't have a plan. State didn't have a plan. This wasn't a unilateral mistake on DOD's part. It's astounding to me that these cases have been pending for so long and nobody came up with a contingency plan."
Really? Well, there was no back-up plan for the possibility that there might be no WMD stuff in Iraq once we got there and took over. There was no planning for what we might do if we were not greeted cheering crowds throwing flowers. There was no plan for how the occupation might be done systematically. These guys aren't big on contingency planning.

There is a problem with always assuming the best case and saying anyone who doubts you is a fool and a pessimist, if not a traitor. Optimism is useful. Bullheaded stupidity is not.

More of the same.

And in my own inbox?

Ric Erickson in Paris, being a fellow born in Canada, who once worked as a journalist in Germany, and now publishes MetropoleParis, raised some questions regarding the whole business of legal detention.
An 'illegal detention' is one that is not legal; the opposite of a 'legal detention.' The normal state is one where everybody is 'legally free.' Shouldn't it be, to 'legally detain' anybody, that it be done legally?

If this is not done correctly, why should it be up to the detainee to prove the detention is illegal? Don't the courts have an obligation to set people free who have been detained illegally?

The question is, does an enemy combatant have those rights? Being an 'enemy combatant' is not, per se, an illegal activity.

You could say all US troops in Iraq are 'enemy combatants.' Just because US forces kidnap foreign nationals it doesn't automatically mean they are 'enemy combatants.' Being kidnapped is not the same as a conviction.

And besides, what crime is an 'enemy combatant' committing? Is there some US law stating that 'enemy combatants' violate some specific US law?

And Justice O'Connor apparently emphasized that there's nothing in the habeas statute that provides these rights only to US citizens. The statute says "any person" can seek relief.

And damages? What about damages for illegal detention?

Odd isn't it, how the administration's house of cards is falling apart. Unilateral declarations of new laws don't work. What will be the next to collapse?
I don't know the answer to the last question, but as for the ones that proceed it?

Another friend put it this way.
Yes, in a normal state, every one is free. But war (when and if it indeed exists) is not a normal state, and all three branches of the government have now said that being an enemy combatant is, in fact, per se illegal. So the question is, when is it illegal and who gets to decide? There have been various definitions of the term, but by and large an enemy combatant has been defined as one who is engaged in an armed conflict against the US - or one who takes up arms against the US in a foreign theatre of war. Yes, that means a jihadist sees US GIs, and those who direct them, as enemy combatants as well. Yesterday the US Supreme Court said the president and members of the executive branch have the authority to declare individuals to be enemy combatants.

Yes, a detention must be done legally if at all - but that begs the question. What is "legal?" Who makes the laws? This is part of the larger debate going on right now, and the US Supreme Court weighed in yesterday to say the courts have an important role in this, and that they are keeping an eye on Doobleyieu.

The habeas laws are not as harsh as you might imagine. When a person being detained files in court, the judge has the authority to have him brought before him immediately to "inquire" of the detainee. There's an emphasis on equity and fairness, rather than the strict letter of the law. It would be inaccurate to say the detainee doesn't have to prove anything - there will be those who will argue he has to prove plenty - but the judge has a tremendous amount of discretion to order the person's immediate release if he doesn't like what he sees. This has been the law since 1867. On the whole, habeas law is pretty good stuff. To be sure, France is where libert? began, but even the French didn't have a presumption of innocence until a few years ago - the Mitterrand years, maybe? I forget the exact year. It has served M. Chirac well, in any event.

I think constitutional law is great stuff to contemplate - who makes the laws, who is best suited to make the laws, who is going to keep an eye on whom. And with tremendous stakes.

Note that under French law, a distinction is made between "d?tention" and "r?tention." The former refers only to prisons, which are administered by the judicial system and managed by the Prison Authority ("Administration P?nitentiaire"). Only a court can sentence a person to "detention". But "r?tention" is a very different matter. And that did change in July of 2000 - see European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) for excruciating details. You cannot now easily keep folks suspected of nasty stuff locked up for as long as you'd like while you get your paperwork and evidence in order - or at least that's the general idea in France at the moment.

Well, this not France. And Rick, the News Guy in Atlanta doesn't much like how we over here are handling things -
Is this to say that the President not only has the right to declare someone an "enemy combatant," but also has the sole power to define what it means to be an "enemy combatant"? Does judicial review not trump that, too?

And if so, as long as the habeas statute remains unchanged by Congress, could not any and all those held at Gitmo, and even elsewhere, argue that their situation doesn't fit some "reasonable" definition of "enemy combatant," which could then be defined by some judge? (I assume it wouldn't go "back to Congress to rewrite the statute on enemy combatants," since they're not the ones who initiated it, right?)

Way back before 9/11, in the specific cases of INS internment, I'd always assumed that habeas extended to all peoples, not just U.S. citizens, and was shocked when federal courts -- including the Supreme? I forget -- upheld the government on those.

Gadzooks! Who knew that those who have sworn to uphold the Constitution have been seeking out, and finding, so many exceptions to having to do it! The barrage of legal excuses and exceptions to our founding document sound like those of my five year old, explaining why she doesn't have to brush her teeth! So exactly when was it, in the last 200 some years since we ratified their founding principles, did Americans decide it is okay after all to arrest people and deny them access to a lawyer?

And when did these guys come up with this "enemy combatant" thing? If it were up to me, any "detainee," whether a citizen or not, would either be a "prisoner of war" and fall under the Geneva Convention, or an accused criminal who has to be either charged with a crime, or else released.
Yeah, that would be nice.

As Rick notes, the Japanese were interned in camps out here on the West Coast during WWII -and I even knew a woman who was one of those there. This was explicitly authorized by Congress in the "Emergency Detention Act." And a friend reminds me the Supreme Court approved something similar when, in 1944, they upheld the conviction of a Japanese man ordered (but who refused) to leave a particular area. Pesky Asian devils? Well, the court cited concerns for national security and fear of espionage. The act was later repealed but the current laws still say that Congress can authorize a person's detention. So, my friend suggests, the issue is this- is there any CURRENT act of Congress that authorizes the president to detain an enemy combatant? Did Congress make Bush's actions legal?

Good question. If you click on the links above you'll see that in the Hamdi case, the Court this week said yes - that seems legal. Hey, what did Daschle sponsor and Kerry vote for? Would that be the Joint Resolution of Congress (September 14, 2001) authorizing the president to use force against (and to detain) any enemy combatant. "All appropriate actions" and all that.

Kerry still says he doesn't regret his vote. He just thinks Bush has no clue as to what is appropriate - in this and in most matters.

But that means that Ric in Paris is off base. This Hamdi fellow was not "Kidnapped" at all.

Rick in Atlanta does raise the issue of just who gets to decide - just who is it that defines who is an enemy combatant? It seems that congress, the president, and the courts have all come up with definitions, and they all seem to be about the same - a person engaged in or supporting armed conflict with the United States or coalition forces. But the U.S. Supreme Court is NOT going to allow George Bush to decide who fits the category.

Who then decides?

Legal eagles tell me that, according to an affidavit filed in the federal courts, known as the Mobbs Declaration, Hamdi was a member of the Taliban who was captured after September 11 by the Northern Alliance on a battlefield in Afghanistan. He was engaged in active battle against the Northern Alliance and surrendered his Kalashnikov at the time of capture. And if that affidavit is true? Bingo. He's an "enemy combatant" exactly the sort of person that Congress wanted locked up.

But he never got a chance to the military made a mistake, that they got they wrong guy. He was not allowed to challenge the evidence. And now he can.

The Supreme Court said - hold on, we have a job here we have to do. The Court monitor what the chief executive does when he acts with legislative approval. Heck, that's what they're there for, after all. (Among other things.) Maybe Hamdi was a relief worker accidentally swept up in the net. Now he has the right to argue his case, and have lawyer help him do it.

Good news? Maybe. Maybe not.

Eugene Volokh of the UCLA law school here argues this is all madness. He's worried that all this litigation will become a tactic of warfare - and now soldiers have an obligation to harass their captors with... writs! He thinks we're now giving them a cheap and safe way winning, by suing us into paralysis. These habeas corpus suits thus become one of the enemy's weapons of war.

A reaction here
Professor Volokh is 100% correct. The burden of processing and adjudicating a habeas corpus petition from each prisoner is overwhelming. The paperwork alone would bring our army to its knees. If that wasn't enough, the prisoners could then deliberately file their habeas corpus petitions in the wrong jurisdiction! Forcing the Supreme Court to waste weeks of its time on each individual petition! We cannot allow our army to be defeated, our nation conquered, our loved ones killed, and our pets eaten because our soldiers are unable to leave the courtrooms when enemies attack!

... As the President argued when he began the War For Civilization, America cannot allow basic constitutional protections to its enemies - or its suspected enemies, or potential allies and relatives of its suspected enemies - lest they "use the forums of liberty to destroy liberty itself."
Indeed, in the hands of the Jihadists, a writ of habeas corpus would prove more deadly than a hijacked plane or weaponized smallpox, for with it, they could unleash Freedom against itself in an Ouroborobian orgy of Islamofascist terror. America's one hope is to make certain that Freedom never falls into the wrong hands by curbing Freedom proliferation throughout the globe.
It's not nice to make fun of UCLA law professors! He was serious, wasn't he?


Footnote on the Mobbs Declaration mentioned above:

Dave Ross on CBS radio this week -
Jun 29, 2004: Michael Mobbs - The man with the key to the Constitution!
In this whole discussion about enemy combatants, I've always wondered who decides? Who decides which combatant is bad enough to get no rights? I know the President, as Commander in Chief signs the paperwork, but who WRITES UP the charge?

And the Supreme Court decision yesterday answered that question, at least in the case of enemy combatant Yasser Hamdi.

According to the Supreme Court, the only evidence against Hamdi was a "declaration" signed by a defense department official named Michael Mobbs, Special Advisor to the Under Secretary of Defense for Policy.

Mobbs declared that because al Qaeda and the Taliban were hostile forces engaged in armed conflict with the United States, that individuals associated with those groups "were and continue to be enemy combatants."

Lock him up, case closed.

Who is Michael Mobbs? He is an attorney, fluent in Russian, a specialist in ballistic missiles, once mentioned as the man to get the job that Paul Bremer eventually got, AND -- his boss is Under Secretary Douglas Feith, one of the famous neo-cons. Feith is the man who decided to make Weapons of Mass Destruction the main reason for the war, who came up with the legal rationale for the torture at Abu Ghraib, and whose office documented the supposed links between Saddam Hussein and Al Qaeda.

And it was in that office that Michael Mobbs decided when Constitutional rights would and would not apply.

Whether Yasser Hamdi is guilty or not, we don't know. But yesterday the Supreme Court ruled that in making that determination, this country deserved better than Mobbs Rule.
Ross' commentary is usually "Chip Talk" - about computer things and websites. Now he's doing political stuff, and is preparing to run for Congress out here on the west coast.

The times are changing.

Posted by Alan at 15:17 PDT | Post Comment | Permalink

Tuesday, 29 June 2004

Topic: Dissent

More on Moore -

Over at the web log Whiskey Bar - whose motto displayed at the top of the page is "For if we don't find the next Whiskey Bar, I tell you we must die." (Bertolt Brecht) - you will find this comment in a longer item on Michael Moore's new film "Fahrenheit 9/11" -
... if Moore has become the Ann Coulter of the left - but with a sharper wit - then I can see no better target for his considerable talents than the Man from Crawford. If ever a president deserved to be the subject of a vitriolic, one-sided, emotionally manipulative diatribe of a documentary, Bush is it.

It's still not clear to me whether Fahrenheit 9/11 lives up to that description, or justifies the nonstop right-wing whining now saturating the airwaves (Call it Unfair-enheit 24/7). I haven't seen the movie yet. But if it does play a little loose with the facts, omits some key details, implies more than it can prove, and generally takes after Shrub with a cinematic hatchet, I won't be surprised. But I also won't mind.

For years now, Limbaugh, Coulter and their inferior imitations have been passing off their slanted misreadings, unproven allegations and flimsy lies as factual reporting. When caught out on a lie or a smear, they either ignore the evidence, or - like Limbaugh - retreat into the phony defense of arguing that all they're doing is expressing a subjective opinion. "I'm just in the entertainment business," Rush likes to say.

Well, now there's someone on the left who knows how to play their game, and play it brilliantly. Moore may be an egomaniac, and a huckster showman in the best (or worst) tradition of P.T. Barnum and Walter Winchell, but, man, he's effective. He's learned to play the mainstream media like a Stradivarius.

No wonder the right wingers are scared of Moore - he's even better then they are at using the media as an unwilling amplifier. Which is why all the conservative caterwauling and all disapproving tut tuts from the "responsible" press have only helped ensure Fahrenheit 9/11 a wider distribution.

In other words, Moore's managed to break the code. He's figured out how to sell an angry radical (or at least semi-radical) message to a mass audience.

That's a major accomplishment. And if the end result isn't exactly my idea of a civilized political discourse (I'll reserve judgment for now) it clearly is a powerful and successful example of fighting fire with fire.

And right now, a little fire may be what the American left needs most.
And this from my friend Bonnie in Boston -
Well, I saw Fahrenheit 911 yesterday afternoon at four in Boston. The theater was nearly filled with a very diverse audience, age and race-wise. When we were leaving, the lobby was thrumming with a packed incoming crowd.

I thought the film was great. From the little I know about Ann Coulter and Rush Limberger, their stock in trade consists of lots of name-calling and vituperation. Moore indulges in neither. Like any good artist, he presents images and words, skillfully arranged for effect, and lets them speak for themselves. Show not tell. Sure, the impact of his selection and arrangement of images and music manipulate the viewer to infer certain things. But that's what movies do. But his subjects speak for themselves, from the mother of the dead soldier to Bush to a former FBI agent, and it all feels profoundly truthful and authentic, not to mention witty and downright hilarious at moments.

Of course, I'm already on board with most of what he offers up. I remember the Boston Globe's reports of Bin Ladens being flown out of town while my husband was stranded in St. Louis after 911. I have long believed that Cheney et. al. run the show and use GW as a front man who, without someone telling him what to say, is clueless as a deer in the headlights. I believe the war is being fought for oil.

But what surprised me is that I found myself in the bathroom after the show, heaving great sobs behind the closed stall door. The movie pushed the cerebral hatred I have for this administration right down into my guts and made it visceral. I wept hot tears of hate, something I can't ever remember doing before. (A margarita and a plate of pulled pork, plus some good conversation, restored my spirits soon thereafter.)

I am thrilled that so many people are going to see it, talking about it, writing about it. The Globes whole Letters to the Editor section was devoted to the movie this morning. And I especially love the web address at the end of the film. DO SOMETHING. There, one finds information about how to register and get others registered to vote.

For my money, Moore is a patriot. Let the right rant. Let the people vote.

Maybe we can get the Bushes out, come fall, after all.
Moore is a patriot? The other day, on the CNN show Crossfire, Robert Novak called Moore un-American. Simply un-American. Of course Novak is the man who gladly published the name of an undercover CIA agent (Valerie Plame) who had been working on our efforts to get nuclear stuff off the black market. He blew her cover to help punish her husband for exposing Bush and crew fibbing about Iraq trying to buy yellow-cake uranium in Niger. He sees no problem with that. Yeah, he knows a lot about a being a good American.

Oh well. Folks are choosing sides.

Kevin Drum, a writer out here in Irvine, California, posted this. He says the film is either worthy of Henry James, or simply a mirror of all the crap we get from the right.
... What to say? The argument over the film mostly seems to revolve around whether it's factually accurate and presents a logical case, a conversation so pointless as to be laughable. I mean, it's a polemical film from Michael Moore, not a Brookings Institution white paper. It's like complaining that editorial cartoons are unfair because they don't portray the nuance of serious policy discussions.

Now, as it happens, I thought Fahrenheit 9/11 was a bit mediocre even as polemic, but the thing that really struck me about the film was the almost poetic parallelism between its own slanders and cheap shots and the slanders and cheap shots of pro-war supporters themselves over the past couple of years. If Moore had done this deliberately, it would have been worthy of Henry James.

Take the first half hour of the film, in which Moore exposes the close relationship between the Bush family and the House of Saud. Sure, it relies mostly on innuendo and imagery, but then again, he never really makes the case anyway. He never flat out says that the Bush family is on the Saudi payroll. Rather, he simply includes "9/11," "Bush," and "Saudi Arabia" in as many sentences as possible, thus leaving the distinct impression that George Bush is a bought and paid for subsidiary of the Saudi royal family.

Which is all remarkably similar to the tactic Bush himself used to link Saddam Hussein to 9/11. He never flat out blamed Saddam, but rather made sure to include the words "9/11," "Saddam Hussein," and "al-Qaeda" in as many sentences as possible, thus leaving the distinct impression that Saddam had something to do with it.

Or take Afghanistan. In a lengthy and nearly unreadable screed in Slate, Christopher Hitchens takes Moore to task for arguing in 2002 that the war in Afghanistan was unjust but then arguing in the film that Iraq was a distraction from the real war against al-Qaeda in Afghanistan.

Surely I'm not the only one who's reminded by this of the ever-shifting rationales for war from the Bush administration itself? In 2002 it was mostly about WMD. But there was no WMD. So then it became al-Qaeda. But there were no serious al-Qaeda ties. How about liberation? Maybe, except the Iraqis don't seem especially happy with their liberators. Democracy? Stay tuned.

Finally, the last half hour of the film includes a piece of street theater in which Moore accosts congressmen on Capitol Hill and asks if they'll try to get their sons and daughters to enlist in the military. It's a brutally unfair question, but one that echoes a standard debating point of Hitchens and others: "Would you prefer that Saddam Hussein was still in power?" It's a question that's unanswerable in 10 words or less, and about as meaningful as Moore's ambush interviews with congressmen.

So is Fahrenheit 9/11 unfair, full of innuendo and cheap shots, and guilty of specious arguments? Sure. But that just makes it the perfect complement to the arguments of many in the pro-war crowd itself. Perhaps the reason they're so mad is that they see more than a little of themselves in it.
Yep, everyone is in the gutter now.

But some of us are looking at the stars. (Apologies to Oscar Wilde, of course.)

Posted by Alan at 18:35 PDT | Post Comment | Permalink

Topic: The Law

Fahrenheit 460: The Barbie Dialogs - Copyright Law and Ray Bradbury's Anger

In the January 11 issue of Just above Sunset you will find a detailed discussion of the suit Mattel brought against Tom Forsythe. As the New York Times reported yesterday and the Los Angeles Times reported today, the suit was settled. Mattel lost.

This summary is as good as any:
In a victory for individual expression over the interests of big business, Mattel's lawsuit against artist Tom Forsythe for copyright and trademark infringement has come to an end. Mattel didn't like the way Forsythe photographed his Barbie dolls (posed nude in provocative stances next to household appliances). Forsythe says he was making a point about "Barbie's power as beauty myth" and "crass consumerism." Mattel, on the other hand, hoped to wield its financial might to protect Barbie's honor.

Art won -- and won big -- as a federal court, after a series of appeals, not only ruled in Forsythe's favor but concluded that Mattel's failure to recognize protected parody resulted in a frivolous lawsuit. The court ordered Mattel to pay Forsythe more than $1.8 million in attorney's fees.

Of course the other way to look at this is now no one's copyright or trademark or invention or creation is safe any longer and this is a dark day for protecting what you have created.

Me, I don't care much either way.

I do see Ray Bradbury - the author of the novel/play/screenplay "Fahrenheit 451" - is going after Michael Moore about the "Fahrenheit 911" title. He's pissed off. Says Moore stole his title. Doesn't like his title being used in political ways. Bradbury does admit his novel "Something Wicked This Way Comes" quotes in its own title a line from Shakespeare (Macbeth, Act 1, Scene 1) but says that was sort of in public domain - or at least widely used and common speech. Bradbury says he now will sue anyone who uses the word Fahrenheit followed by any numeric for copyright infringement and major damages.

I think I'll register "Gone with the [any noun]" with the feds and make a lot of money. But I think Margaret Mitchell's estate already did that.

From a friend who actually used to handle licensing for Mattel (although I think she worked more with the Hot Wheels line than the Barbie side of the house) - "It's actually a victory for both Forsythe and Mattel. Barbie needs all the publicity she can get and it only cost them $1.8 million to keep her in the news."

Her husband, CEO of a software firm, disagrees - "I actually don't think it's the result Mattel wanted. But in this case they were actually wrong, it was very clearly parody as artistic expression. This was more clear in my view than the Wind Done Gone parody and where I think it was an abuse since they were both creative novels."

Background note - this from the June 29, 2003 issue of Just above Sunset:
You might recall the augments over this supposed sequel to Margaret Mitchell's novel, Gone With the Wind. The black author, Alice Randall, and the Mitchell estate fought in the courts over Randall's right to publish this pretty sardonic take on what happened at Tara after Rhett left the scene for good. The novel, The Wind Done Gone, was finally published in late 2001.

A three-judge panel of the 11th U.S. Circuit Court of Appeals on October 10, 2001 affirmed a previous court's decision to block an injunction against publication of The Wind Done Gone. The panel said it wasn't clear whether Alice Randall's book parodied Gone With the Wind. But the judges said Margaret Mitchell's estate hadn't demonstrated a likelihood of success for its claims, part of the standard for an injunction. The claims were that Randall used characters and quotes from the Mitchell book without permission and without paying royalties. And these would never be granted because Randall was attempting to make a profit from Mitchell's creation. They were Mitchell's characters and Mitchell's plot and Mitchell's words, not Randall's.

The panel heard less than an hour of arguments on an appeal by Boston-based publisher Houghton Mifflin before issuing its ruling from the bench. In a brief order, the judges said the injunction was an "extraordinary and drastic remedy" that "amounts to an unlawful prior restraint in violation of the First Amendment."

So The Sun Done Gone went to press - and sank quickly because actually it wasn't very good. A black take on Gone With the Wind should have been better, I guess. The market provided its own injunction.
Ah, but back to Barbie and Ray!

Rick Brown, the News Guy from Atlanta - and editor of City-Directory Atlanta - added this:
But the good news for me is that now, after such a long wait, I can finally display that provocative pose of Barbie with Barney the Dinosaur on my website!

I think the problem with Bradbury's suit - although I would think he would know this better than I would, so I may be somehow off-base on this - is that you can't copyright book or movie titles. If I'm right, Moore could have even used the actual words "Fahrenheit 451" and gotten away with it, although it wouldn't have made much sense. (If I may take exception with a point I might be missing here, this whole issue could involve trademark law, rather than copyright law.)

Oddly enough, this would also mean you or I could even release a film or book named "Gone with the [any noun]" in with the "any-noun" would be "Wind"! It's my understanding that copyright of books and movies and such comes into play in the unauthorized use of originally-created characters and situations and plots, which was the real reason the Mitchell estate people authorized a sequel (the copyrights were running out) and went after "The Wind Done Gone" parody.

Still, the Bradbury-Moore thing should be interesting to watch.

Although it's probably not legally relevant, I'm curious: Any idea of what Ray's politics are?
Well, no. I have no idea.

But I did hear an interview with Bradbury regarding all this - by telephone with MSNBC. He says he doesn't want any money from Moore. He wants his title back, whatever that means. He was unclear. He's getting on. He was born August 22, 1920 so he's eighty-four - and he has pretty much settled into the role of "The Grumpy Old Sage of Long Beach." He's a local legend. He doesn't have to make sense. That's his new privileged status.

Anyway, he said he's really, really miffed that Moore didn't call him to ask permission or even discuss the matter when Moore was making the film. And Moore only returned one of his many telephone calls since. (I'm sure when Ray as writing "Something Wicked This Way Comes" he would have put in a call to William Shakespeare and asked for his permission to use those words in the title - if he could. But obviously....)

Ray Bradbury wants his title back. Just how would that work? And yes, I do understand you cannot copyright a title. Very odd.

Bradbury also said his book "Fahrenheit 451" was NOT political at all - he said it was sociological and aesthetic. He didn't speak to his own politics. Says he hasn't seen Moore's film - Moore didn't offer to show it to him. And he's not going to buy his own ticket.

But what can one assume about his politics from his books? I just glanced through "Dandelion Wine" - a book my younger students back in the seventies rather liked. Small town America - summer and adventures in the neighborhood, odd but compelling domestic conflicts. Assume the politics of nostalgia - Harding in the White House and life-changing adventures just outside your front door in the friendly sunshine.

Rick Brown, the News Guy from Atlanta, commented on that hypothetical telephone call from Long Beach to some tomb in Stratford-Upon-Avon - Ray asking Will for permission to use the words of The Bard in a novel about spooky things in small town America. Did Ray make the call? "The old coot probably did, and I imagine is annoyed to this day that the Bard never returned any of his calls!"

Curiously, a friend in on all this used to work out here in "the industry" (the movie business), clarified some matters regarding titles. Of course Joseph now lives in France, but he used to live out here in Beverly Hills and he really does know this stuff - and he likes my idea of registering "Gone with the [any noun]" for my very own -
You are absolutely right, which is why movie titles are reserved through and use arbitrated by the AMPAS. If your production company or distributor has signed that all-important contract with the academy, your are obliged to abide by their title control system. There are disputes all the time; effectively a film must be in public domain before the title is cleared unless it is completely generic. That said, they will let you slide if the previously released film whose title you are using is deemed to have no current market value, or if Major Bucks is behind you. All rather subjective and behind closed doors.
The game is rigged? Here in Hollywood? No. I need to meet this Major Bucks fellow.

As for Barbie dolls being used in obscene parodies getting Mattel all wrapped around it own axle, Joseph wonders whether all that wasn't settled in the "Big Bird" case between PBS and the University of Colorado back in the early '90s. He asks if any of us remember the painting of Bert and Ernie doing the missionary while big bird watches through the window.

Nope. Missed that.

But his main point - titles can be protected. Is 911 too closed to 451 on the Fahrenheit scale? The difference is 460 degrees. Are they really different titles?

A tale from Phillip Raines, who writes of a treehouse and music in Just Above Sunset (links on the left side of the home page) -
Steven Spielberg tried to sue our natural science museum (Fernbank--county funded) for advertising a "Jurassic Extravaganza." It was immediately dismissed.

A quote I recall regarding the issue was "That Spielberg thinks that he has any claim to a name for a geological period of history is the height of arrogant vanity..." or something to that effect (I'm relying on a beleaguered memory). This seems to be the case with Bradbury.

What right does he have to a word that indicates a method of temperature calculation (which was actually some ones last name) followed by any number? Gee, Ray, unbutton a button or something. You're taking yourself way to seriously. Not all of his books were that great anyway. E-gads is this what we have to look forward to as we age, to become more conceited and grouchy as we fossilize? He might as well have released a press statement that said - "I'm no longer productive, I ache and I'm losing my mind, which makes me pissed off."

Maybe he's surrounding himself with people who suck up to him all the time. It scrubs off a few layers of respect for him in my book.
Maybe so.

And it is all very odd.

Perhaps an animated version of "Gone With The Wind" - a pixilated puppet thing with unauthorized Barbie dolls in all the female parts and unauthorized Ken dolls in the male roles (Rhett Butler and the others) - would be cool. (Barbie though has dumped Ken and her new beau is Blair, an Australian surfer-dude, to be introduced next month.) And we'll call it "Fahrenheit 460 - Jurassic Tara Burns to the Ground." Everyone can sue everyone else.

Well, frankly my dear, I don't give damn. There. I said it. So sue me.

Posted by Alan at 17:44 PDT | Post Comment | Permalink
Updated: Tuesday, 29 June 2004 18:05 PDT home

Monday, 28 June 2004

Topic: The Law

SCOTUS - In league with the terrorists?

My conservative friends will bemoan all this, and say today's decisions from the Supreme Court just show that the nation is disintegrating as we are now told by activists judges not to trust the president. Maybe so.

But the Supreme Court today ruled that those foreign folks we've held at Guant?namo Bay in Cuba for almost two and a half years now - without charges, with no access to anyone - can challenge their detention. It seems the idea presented by the attorneys for the administration, that neither our laws nor any international laws or treaties applied here, was not a winner. Perhaps the photographs from the Baghdad prison played a part in all this - but perhaps not.

The issue came down to the administration saying that in time of war, even if there is no formal declaration of such, the president, as commander-in-chief, can, because it is his job to protect us all, claim some folks to be "enemy combatants" that fall completely outside the law. And we can do anything we want to them. We have to. They may know things. They could be dangerous. Due process is a luxury. They are terrorists and not aligned to any particular government, so they cannot be prisoners of war. Are they criminals? No. Perhaps not yet, But they could be folks who would do really bad things if we let them.

And if those detained happened to be US citizens - apprehended here or on some foreign battlefield? The administration claimed that made no difference. You had to allow the president this option - holding them forever with no charges, no questions asked - or we all could die. This was just common sense.

The Supreme Court wasn't buying it.

The Associated Press story reviewing all this is here - and Reuters covers it here.
Four of the nine justices concluded that constitutional due process rights demand that a citizen held in the United States as an enemy combatant must be given "a meaningful opportunity" to contest case for his detention before a neutral party. Two more justices agreed that the detention of American citizen Yaser Hamdi was unauthorized and that the terror suspect should have a real chance to offer evidence he is not an enemy combatant.
Oh? Why? Don't they trust the president?

No. Reuters quotes from Justice O'Connor's opinion:
... the court has "made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
No blank check, huh?

I imagine Dick Cheney has a few choice words for Sandy now, not just for the senior senator from Vermont.

As for non-citizens, this was covered in Rasul v. Bush opinion today - and that's here (in PDF format).

There you'll find -
United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay.

(a) The District Court has jurisdiction to hear petitioners' habeas challenges under 28 U. S. C. ?2241, which authorizes district courts, "within their respective jurisdictions," to entertain habeas applications by persons claiming to be held "in custody in violation of the . . . laws . . . of the United States," ??2241(a), (3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not "ultimate sovereignty."
Geez, keeping these guys in Cuba and saying our laws didn't apply there - as it wasn't really part of the United States? No dice.

What to make of all this? It seems the National Association of Criminal Defense Lawyers (NACDL) has something to say. Like this:
For over two years, the Bush Administration have tried to have it their way, not the Constitutional way. These decisions are a stern rebuke. The Executive Branch may not be the sole arbiter of who is detained and for how long. Detainees must have access to counsel and the courts.
Yeah, yeah.

The court also decided two Miranda cases today. Bottom line? - "The Court holds that physical fruits of a Miranda violation don't get suppressed but that purposeful Miranda violations vitiate a subsequent confession."


Justices Warn Police on Coercion Tactic
June 28, 12:47 PM (ET) - Gina Holland for the Associated Press
WASHINGTON (AP) - The Supreme Court on Monday warned police away from using a strategy intended to extract confessions from criminal suspects before telling them of their right to remain silent.

The court, on a 5-4 vote, said that intentionally questioning a suspect twice - the first time without reading the Miranda warning - is usually improper.

But the court left open the possibility that some confessions obtained after double interviews would be acceptable, providing police could prove the interrogation wasn't intended to undermine the Miranda warning.
Once more. Huh?

Well, I do have a friend who has argued, and does still argue, in front of the Supreme Court. Perhaps she can clear this up.

All in all, today's "enemy combatant" decisions are a blow to those who say don't sweat the details and just trust Bush and his crew, or is that just trust Cheney and his crew - which happens to sometimes include Bush? Whatever. They will say the court is now endangering our lives - and making us play nice with those who just want to kill us all. And something should be done. The line will be, as it has been for some time, that liberals always want to play fair and that's too dangerous these days.

So I won't listen to talk radio for the next few days.

Much of the background above was found through links and comments at this site. Check it out. Real lawyers might find it silly. The rest of us often need a little more explanation.

Posted by Alan at 20:23 PDT | Post Comment | Permalink

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