Nazi Views. American Views. American Actions.

Dear Colleagues:

I.

In view of the ease with which Lyndon Johnson, Richard Nixon and George W. Bush took this country into war, or kept it in war, by means of distortions, exaggerations and outright lies, it was startling to have learned recently that the comments below were made by, of all people, Herman Goering. He made them in his cell at Nuremberg in a conversation with an American psychologist, G.M. Gilbert, who recounted them in a 1947 book entitled Nuremberg Diary (Farrar, Straus & Co., pp. 278-179), (the italics in the quotation are mine):

We got around to the subject of war again and I said that contrary to his attitude, I did not think that the common people are very thankful for leaders who bring them war and destruction.

"Why, of course, the people don’t want war," Goering shrugged. "Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece. Naturally, the common people don’t want war; neither in Russia nor in England nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship."

"There is one difference," I pointed out. "In a democracy the people have some say in the matter through their elected representatives, and in the United States only Congress can declare war."

"Oh, that is all well and good, but, voice or no voice, people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

II.Recently, The Chronicle Of Higher Education carried a lengthy story about several conservative professors who, it is said, have a hard time of it because they have few or no compatriots in their institutions or are assailed by liberal students. One of the stories was about a Berkeley law professor named John Yoo. Yoo was one of the authors of the memoranda saying that the Commander-in-Chief has the authority to authorize torture notwithstanding the contrary rules of domestic and international law, and that his authorization would immunize the persons who engage in torture. These memoranda were, of course, disgraced almost as quickly as they became public. But that a law professor would write them, however politically conservative he may be, is itself a disgrace, and that Berkeley would keep such a person on its faculty after his action became known is equally a disgrace. Generally I am all for having more conservatives on faculties, and there are several in our school’s small group of faculty members, but this fellow Yoo should be cashiered forthwith. He is not a mere conservative but, in effect, is some kind of fascist. (Nor is it easy to understand how The Chronicle could pick such a person as someone who is "put upon" by the liberal camp. What’s the matter with those people at The Chronicle anyway?)

In connection with the position espoused in the infamous memos of which Yoo was one of the writers, it is, at minimum, interesting to have read something that István Deák recently wrote in The New York Review of Books in a review of a book with the self explanatory title of The Origins of the Final Solution: The Evolution of Nazi Jewish Policy, September 1939 - March 1942. Discussing the horrible murders of Jews and Russian civilians, often by the German army, and the agreement of top army leaders with policies of extermination, Deák said the following (again the italics are mine):

The army high command, again surrendering to Nazi leaders, agreed that the urisdiction of the military courts should be restricted to internal army matters, and that no officer or soldiers could be held responsible for killing a Jew or a Russian civilian.

That no officer or soldier can be held responsible for killing Jews or Russians sounds remarkably like saying the Commander-In-Chief can authorize torture despite legal strictures, and immunize the torturers, does it not? Perhaps this makes it clear why I say that, in view of his memos, John Yoo is some kind of fascist. Berkeley should be ashamed of itself for not firing him.

Yoo’s case, by the way, makes an interesting contrast with the plagiarism case of Harvard Law Professor Charles Ogletree. Those who read this blog know that this author has severely criticized what Ogletree did, especially his apparent use of others -- his assistants -- to write parts or all of his book for him. I think his conduct merits the utmost censure, and apparently Harvard may take at least some action in his case. But tell me: just how is what Ogletree did worse than a law professor writing memoranda saying that the Commander-in-Chief can authorize torture, and immunize the torturers, despite the contrary strictures of both domestic and foreign law? It is obvious, of course, that the two situations differ in many respects, and call differing values and ideas into play. But the question I ask is not how are they different or the same. It is, rather, how is what Ogletree did worse than what Yoo did? Especially since Americans did engage in torture.*
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*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Via E-mail
September 23, 2004

Dear Mr. Grandel:

Thank you for your e-mail. I appreciate your having taken the time to reply to my posting, and shall post your reply as well as this response.

I am afraid that it is now well established that Bush and his colleagues vastly exaggerated and distorted the WMD situation regarding Iraq, even if they did not lie outright in the sense that they themselves may have believed what they were saying (albeit believing what you are saying because you want to believe it is quite a different thing from believing it because evidence compels the belief). In addition, several other countries were far more cautious than our government about forming the judgment that Iraq had WMDs. So sad to say, you see, Goering’s comment that leaders can drag countries into war on false claims is all too true of America, not just other countries. And you have not forgotten, have you, that Lyndon Johnson dragged us into war by telling fictions about supposed attacks on American destroyers?

As for Professor Yoo, there are some things that even lawyers shouldn’t do. Claiming the Commander-in-Chief can ignore the law by authorizing torture with impunity is surely one of them. Placing the Commander-in-Chief above the law was, indeed, one of the reasons given in the Declaration of Independence for the break with England. Do you think a law professor should be able to argue with impunity, and with serious effects in the real world rather than just as some professional abstraction, that a Commander-in-Chief can break the law by authorizing torture? If so, why not outright murder? Why not whatever he wants? As for democracy, it would be gone.

I do not know what penalty would be appropriate for Professor Ogletree. Conceivably it could depend on whether his actions were common among professors or were, rather, those of an outlier. But whatever penalty may ultimately prove to be warranted in Ogletree’s case, there are, as said, some things that beyond doubt are not forgivable, even for a lawyer. Urging the Commander-in-Chief that he can ignore the law -- a position which is the first step toward destroying civilian control and democracy -- is surely one of them. Perhaps you may be aware, incidentally, that military lawyers were, for several reasons, one of the groups most outraged by the memos that Yoo co-wrote.
Again, I appreciate the fact that you took the time to reply to my postings.

Sincerely yours,
Lawrence R. Velvel, Dean


----- Original Message -----
From: Troy E. Grandel
To: velvel@mslaw.edu
Sent: Tuesday, September 21, 2004 9:55 PM
Subject: Nazi Views. American Views. American Actions.
Dear Dean Velvel:

I read your recent post, and I think you very wrong in both parts.

While interesting, the Goering quotes are irrelevant. With these quotes, you seem to be saying that all of us are just doing President Bush‘s bidding, and that he is just dragging us along into war. Goering said that if a leader says that people are being attacked, the people will be dragged into war. The problem is that Bush didn’t just say we are being attacked, we were attacked. Remember 9/11? 9/11 may not have involved Iraq directly, but, if Bush lied to us about Iraq, then so did Clinton, the United Nations and every major intelligence service in the world, all of whom said that Iraq had WMDs. Bush did not just tell us Iraq was ignoring UN resolution after UN resolution; Iraq did ignore those resolutions. Your linking Bush to the Nazis just doesn’t work.

No wonder conservative professors are in fear. You advocate that Berkeley fire Professor Yoo, yet he did nothing illegal; he simply acted as an attorney and argued a point of law. You just don’t like his conclusions. And, are his conclusions not protected by freedom of speech? Nothing changes since some “torture” was actually committed. Do you really feel that humiliating some prisoners is even remotely similar to the torture that Hussein used to commit? Also, the individuals responsible for the Abu Ghraib torture are being prosecuted, so it is a moot point anyway. Professor Ogletree committed an act that, if he were a student, would probably get him expelled. It is an act of extreme dishonesty. Joe Biden’s presidential campaign was destroyed one year due to plagiarism. Plagiarism is a serious matter. For a professor, let alone a law professor, to have such an ethical breach is reprehensible, yet you do not seem to be calling for Harvard to fire him. It seems that you are operating with a double standard.

Very truly yours,

Troy E. Grandel

Re: ...The Ogletree Transgression

-via eMail-
September 14, 2004

Dear Professor Tribe:

Thank you for your email. I would like to post it, along with this response, but will not do so if you object. Please let me know if you do object.

With regard to the last sentence of your letter, let me say this. I often think of major philosophical and societal problems in the context of concrete cases. Indeed, philosophical and societal ideas are useful only in the context of such cases. In the abstract, divorced from life, they are of little or no consequence. The Ogletree matter is a concrete case illustrating widespread problems, so it seems proper to discuss the overall problems and the concrete case together. This is only the more true because the problems involved have received so little attention and are the subject of so little general concern.

Beyond this, if kindness and decency require that one not discuss a matter on the basis of what has become known with some degree of certainty in the public sphere, then how is criticism to be leveled by any person whose "knowledge is necessarily limited" to what has appeared in that sphere? And wouldn’t we have to depend for criticisms on those who are closest to the situation, who have the most reason not to discuss it lest they or their institution be harmed, and who are least likely to publicly discuss or criticize? To be honest, while I certainly do appreciate and applaud your human concern for Professor Ogletree, it is nonetheless difficult to believe that you, one of the great champions of civil liberties in our generation, would make the point you made were this a case involving first amendment rights.
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As said, please let me know if you object to the posting of your email and this response.
All best wishes.

Sincerely yours,

Lawrence R. Velvel
Dean

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Dear Dean Velvel:

I very much appreciate your letting me see both your long and thought-provoking statement and Michael Parenti's shorter but no less pointed critique. The fact that Mr. Parenti takes a humorous jab at me as his parting shot doesn't in itself lead me to put down the other matters on which I'm working. Some of those matters are quite pressing and involve writing deadlines that I have to give priority over my thus far entirely tangential involvement in this sad episode. I like Charles Ogletree as a person and continue to have enormous respect for much of the important work he has done as a lawyer and as an academic. What I told the Boston Globe about the way in which he has overextended himself was not intended to be a complete explanation or justification of anything but a purely factual description. I don't see it as my place either to offer excuses for my colleagues' and friends' missteps or to pile on when the world is already heaping calumny upon them. That I personally believe Professor Ogletree to be a person of great talent and basic integrity, when it's not my role to judge him, seems to me a fact that shouldn't draw me involuntarily into a protracted exchange of views simply because I was willing to answer a couple of questions from a newspaper reporter and tried to do so as truthfully as I could.

As to the larger problem you describe -- the problem of writers, political office-seekers, judges and other high government officials passing off the work of others as their own -- I think you're focusing on a phenomenon of some significance. I do wish, though, that its exploration could be separated, in the interest of basic human kindness and simple decency as well as that of accuracy, from public excoriation of individuals and episodes about which your knowledge is necessarily limited.

Best
regards,

Larry Tribe

Laurence H. Tribe Carl
M. Loeb University Professor Harvard University Hauser Hall 420 1575
Massachusetts Avenue Cambridge, Massachusetts 02138

The Ogletree Transgression

Dear Colleagues:

It has now been reported that Charles Ogletree, a celebrity law professor at Harvard (which has several), plagiarized the six paragraphs which open Chapter 16 of a book he recently wrote called All Deliberate Speed: Reflections On The First Half Century of Brown v. Board of Education. I read and enjoyed the book earlier this year, but am going to say here some very harsh things about Ogletree’s plagiarism and what it represents.

The pertinent facts, as put together from a contrite apology from Ogletree appearing on the Web and from a Boston Globe article, are, in brief, these: Ogletree’s publisher, W.W. Norton, was pressuring him to finish his book in time for the 50th anniversary of Brown v. The Board. Ogletree had (at least) two assistants helping him with the book. (The Acknowledgments in the book implicitly suggest a possibility that there could have been a lot more than two, but who knows?) "During the final stages of the preparation . . .", said Ogletree, "material from Professor Jack Balkin’s book [Balkin is a Yale law professor] . . . was inserted in a draft section of the book by one of my assistants for the purpose of being reviewed, researched and summarized by another research assistant with proper attribution to Professor Balkin . . . . [Closing quotation marks for the Balkin material were dropped, however.] Unfortunately, the second assistant, under the pressure of meeting a deadline, inadvertently deleted this attribution and edited the text as though it had been written by me. The second assistant then sent a revised draft to the publisher . . . which included the material from Professor Balkin’s book, without identification or attribution. When I reviewed the revised draft I did not realize that this material was authored by Professor Balkin."

The plagiarism problem was subsequently called to parties’ attention by anonymous letters received by Ogletree and Balkin. Sometime thereafter the Dean of Harvard Law School, Elana Kagan, asked former law dean Robert Clark, and former law dean and University President Derek Bok, to investigate. Bok and Clark interviewed the dramatis personnae and reviewed documents that showed how the error arose. "Based on their report," said The Boston Globe, "Kagan deemed the case ‘a serious scholarly transgression,’ according to [law school spokesman Michael] Armini."

Bok, however, told The Globe that "There was no deliberate wrongdoing at all." Rather, "It was a case of publishers insisting on a tight deadline" in order to get the book out in time for the anniversary of Brown. Facing a deadline, Bok said, Ogletree "marshaled his assistants and parceled out the work and in the process some quotation marks got lost."

Ogletree himself has apologized to Balkin, and said in the web posting that he had "delegated too much responsibility to others during the final editing process. I was negligent in not overseeing more carefully the final product that carries my name."

Ogletree has received sympathy from some colleagues at Harvard. Laurence Tribe, himself one of Harvard’s celebrity law professors, told The Globe that "‘It clearly represents the fact that because he so often says yes to the many people all over the country who ask for his help on all kinds of things, he has extended himself even farther than someone with all that energy can safely do.’" The Globe itself referenced Ogletree’s extensive work in the public arena, calling him a "celebrity professor" and saying he is "the author of numerous books, makes frequent media appearances, and has taken on high-profile causes such as representing Anita Hill during the Clarence Thomas hearings. The National Law Journal has named him one of their ‘100 Most Influential Lawyers in America.’"

The Globe also wrote four paragraphs placing Ogletree’s plagiarism in the current context of "heightened sensitivity in academia after several celebrated cases of misuse of research material." It cited and briefly discussed the cases of Brian VanDeMark, Doris Kearns Goodwin, Stephen Ambrose, and Michael Bellesiles.

* * * * *
Those are the major facts, at least as disclosed so far. But what, if anything, is their meaning? Though some may think this writer’s views overmuch, to me the entire incident further stimulates longstanding concern about, and may in fact reflect, forms of corrupt conduct that have become pervasive in America today. Not just pervasive in academia. Pervasive in America. The incident implicates possible dishonest conduct (wholly aside from advertent or inadvertent plagiarism). It portrays lack of diligence and competence. And it illustrates that rewards accrue to the celebrified, not to the honest and competent.

Let’s start with lack of honesty. If memory serves, Justice Brandeis once said that the Supreme Court was respected because it was the last place in Washington where people did their own work. Well, they haven’t done their own work at the Supreme Court either for the last 50 years or so. The Justices’ major item of work -- their opinions -- are drafted by others, by clerks whose names are publicly unknown.

Everywhere in this country underlings write the speeches, the briefs, the articles, the books, the p.r. statements for which bosses, superiors, people on top take the credit. Politicians, university presidents, corporate executives, partners in law firms -- wherever you turn people on top take the credit for the work of others. There are a million reasons (read excuses) for this: The top guys are too busy to do the work themselves. Or their talents lie elsewhere. Or it’s the job of the flack to do this work. Or the top guy told the flack what to say. Or Mister Big may have reviewed the work, may sometimes even have edited it, and agrees with everything he has put his name too. Or the flack was paid to write the big shot’s book for her. Or this is just the way the world works and everybody is doing it.

The justification -- the excuses -- don’t matter. It’s all a form of dishonesty: it all constitutes taking credit for work that was done by others.

Does an author need an editor? Sure. Does a writer, a businessman, a judge have to discuss ideas with others and to perhaps modify or change her own views accordingly? Of course. But editing and discussions are worlds removed from putting one’s own name to an idea, a project, a writing that was the work of another. Did Max Perkins, after all, claim to be the author of Look Homeward, Angel just because he edited the hell out of Thomas Wolfe’s book?

Which brings me to Ogletree’s work. He says he had two assistants helping him with the book. He says one was inserting material in the book. The other, he says, was reviewing, researching and summarizing the material for inclusion in the book -- it sounds like he was defacto putting the material into the final version of the book -- and would send manuscript to the publisher. What these two assistants were doing sounds awfully much as if they were writing the book, or at least some parts of it. Isn’t that what it means when someone inserts material, researches it, reviews it and edits it before sending it to the publisher, and then does send it to the publisher? Yet only Ogletree’s name appears as the author. So how much of this book did assistants insert, review, research, summarize and send to the publisher? How much, if any, of the rest of the book, in other words, was defacto written by someone other than Ogletree, although only Ogletree’s name appears as the author? Is it even possible -- though the very idea seems nuts -- that even sections detailing Ogletree’s own life were written by others, presumably after Ogletree gave them the pertinent facts?

A colleague of mine, who insists that his name not be used, suggests the possibility that people will now go over All Deliberate Speed with a fine tooth comb to look for other instances of possible plagiarism. Beyond that, he says, people may start going over Ogletree’s previous work with the same fine tooth comb. And, this colleague says with a fine but perhaps not wholly misplaced cynicism, it is a truism that people who in one place do something like what occurred here are bound to have done it elsewhere too.

But apart from whether the colleague is right or wrong, perhaps you can see now why this author’s view is that, even if it proves to be confined to what is known so far, the present incident of plagiarism may implicate, may reflect, some of the basic dishonesty which pervades this society because so many people in high places, or at least in positions of power, take credit for work that is actually done by others.

Now let’s turn to diligence and competence. Ogletree says that when he "reviewed" -- note the word: "reviewed," not "wrote" -- when he "reviewed" the revised draft he did not realize that Professor Balkin had written the first six paragraphs of a chapter. The first six paragraphs are approximately two and one-half pages long; by my secretary’s count, they are 824 words long. Beyond this, the chapter, carrying the significant title Meeting The Educational Challenges of The Twenty-First Century, is the initial chapter of an entire section of the book, called Part VI.

Ogletree is a man sufficiently brilliant that he is a professor at the Harvard Law School. Yet he read a draft of his own book so sloppily, so carelessly, that even though the six paragraphs in question are two and one-half pages and 824 words long, and even though they introduce an obviously significant chapter which itself begins an entire section of his book, he did not realize that he himself had not written those paragraphs? A man of his acumen didn’t realize that? Boy, that must have been some sloppy reading! It must have been a reading that was neither diligent nor competent, two qualities vastly lacking in America today.

Ogletree says that he "delegated too much responsibility to others during the final editing process" and "was negligent in not overseeing more carefully the final product that carries my name." This is hardly, shall we say, a maximal way of putting the matter, not when a man of his brilliance doesn’t recognize that six paragraphs that are 824 words and two and one-half pages long, and which introduce a chapter and a section of his book, were not written by himself.

But beyond the issues of diligence and competence implicated by Ogletree’s statements, additional questions are also raised by what is said to have happened. Ogletree says the mistake happened in "the final editing process." So let me get this straight: in the "final editing process" (emphasis added), assistants, not Ogletree but assistants, were finalizing and adding significant chunks of material? And not just any material, but material that introduced a chapter which itself was the initial part of a section of the book? This was being done by assistants? In the final editing process? Doesn’t all this raise the question of who the hell really wrote this book which, or at least wrote portions of this book which, in Ogletree’s words, "carries my name." Doesn’t it raise, that is, the very same issue of honesty discussed earlier?

Moreover, doesn’t the same question of who really wrote portions of the book arise from what may be very clever wording in Ogletree’s web posting? Ogletree doesn’t say "When I reviewed the revised draft, I did not realize that I was not the author of this material." Such a statement would of course imply that he was the author of the rest of the material in the book. But rather than say that, Ogletree said "When I reviewed the revised draft I did not realize that this material was authored by Professor Balkin." (Emphasis added.) Well, how in hell was Ogletree supposed to know that Balkin authored the material (unless Ogletree is claiming that he read Balkin’s book and has a near photographic memory)? Ogletree’s wording smacks of being too clever by half. It smacks of wanting to cover up the fact that he knew and expected that parts of his book were written by others -- by assistants -- and that the problem here was that he assumed the six paragraphs had been written by an assistant while being unaware that they had actually been written by someone wholly unconnected with him. I cannot say whether this logic is true in fact, but it is certainly plausible, and it further stokes the question of who did write portions of this book.

Let us turn now to celebrification. That Ogletree is a celebrity is not open to question. The Globe did not neglect to mention this, and even the compassionate pseudo defense it printed from fellow celebrity professor Larry Tribe implicates it. Tribe in effect said Ogletree is overextended because he so often aids "people all over the country who ask for his help on all kinds of things" -- only celebrities, in this case celebrity lawyers, get such requests from people "all over the country." Indeed, though Ogletree’s celebrity status is not open to question, it is open to question whether W.W. Norton would have been his publisher if he weren’t a celebrity, if he were just Joe Shmo from, say, the University of Akron Law School or the Kansas University Law School. We all know, don’t we, that that is the way the world has worked for about the last 40 or 45 years? The TV people, the magazines, the newspapers, the major book publishers all lust after the celebrities. Universities seek them out to be presidents. Huge companies make them Chairmen of the Board. Publishers ask them to put their names to books that in effect are written by others. Competence does not govern any of this. It is driven by celebrity instead.

When it comes to Ogletree’s book, its existence and its publisher may be owing to his celebrityhood, and the method of producing it which he describes is typical of so many books allegedly authored by celebrities, i.e., other people apparently did much of the work. His book, that is, may exemplify, at least in part, the celebrityhood that has afflicted this nation since John Kennedy ran for President and that pushes out competence, diligence and honesty as methods of advancement. (Not for nothing was there a joke about one celebrity law professor which ran as follows: "The most dangerous place in the world to be is between [the particular professor] and a television camera." The professor presumably understood the need for and certainly lusted after publicity; his exceptionally high competence and diligence were insufficient to obtain adequate success.)


* * * * *
Having written that the entire Ogletree episode implicates fundamental problems cursing this country, let me ask a question regarding the inquiry that was made about it. According to both The Globe and Ogletree’s web posting, Dean Kagan asked two former deans, Derek Bok and Robert Clark, to write a report. On the basis of that report, says The Globe, the Dean "deemed the case ‘a serious scholarly transgression.’" Yet in The Globe Bok defended Ogletree, saying "There was no deliberate wrongdoing" and it all arose from a tight deadline, the consequent marshaling of assistants, etc. What we do not know, however, is what the Bok/Clark report itself says, or why Dean Kagan feels there was "‘a serious scholarly transgression.’" To what extent did the Bok/Clark report ignore the dishonesty, lack of competence and celebrification which were at work here and which are present almost everywhere in America. To what extent, that is, are these elements of American life so entrenched, so taken for granted, in American life generally, and in academia in particular, that Bok and Clark did not even think it worthwhile to mention them and may not even have thought about them? Conversely, to what extent, if any, may Kagan have thought that what was revealed here was so lacking in diligence and competence that it is culpable? And did she give any thought to the dishonesty of what was being done and to the effect of celebrification? This writer cannot remember any academic who has raised these problems, but perhaps that is only my own ignorance or failure of memory. Has Kagan raised them, at least privately or at least in her own mind?

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*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

The Ogletree case is astonishing for another reason too. Presumably, his assistants were top Harvard law students, i.e., the creamiest of the cream of the crop. Yet in this instance they displayed a distinct lack of basic writing, editing, and even time management skills! Perhaps U.S. higher education is in even worse shape than I feared?

--
Robert E. Wright, Ph.D.

======

Sent: Monday, September 13, 2004 3:03 PM

Dear Larry (if I may go to first names with you) and bloggers:

There is another critique one might suggest about the Ogeltree case: his explanation is totally lacking in credibility. He claims the two and a half pages of Balkin's writing were originally inserted as a direct quotation, but closing quotation marks "were dropped"--note the use of passive construction here; it evades the question, dropped by whom?

But a quotation of that length would either be indented and be without quotation marks or it would have quotation marks at the beginning of each of the three paragraphs, without quotation marks at the close of the first two, only at the close of the entire quotation of course. So more than the closing quote marks were dropped. The opening marks and the secondary marks of the subsequent paragraphs also must have been inadvertently dropped. That's a lot of droppings.

What do the assistants have to say about this? which assistants? Did they really just stick a long selection from Balkin onto the opening of this crucial chapter with only a citation and without proper indentation or quotation marks?

And how did the citation get removed? Why would "the pressure of meeting a deadline" (what crap, as if this were a live network show about to go on the air in 10 seconds) cause the second assistant to delete the Balkin citation? Were any other attributions deleted because of deadline pressure? Why would deadline pressure make you start deleting your endnotes?

And what did the deleted endnote indicate? that Balkin was the author of those pages? or that he was just a source? and it had all been "edited" as Ogeltree claims. If edited, which means put into one's own words (in this case an assistant's words) then it's not quite plagiarism--in which case, why apologize for the closing quote marks that "were dropped."

It seems to me that until we hear from the assistants we cannot conclude for certain that (a) Ogletree has other people write his stuff for him, or (b) that Ogletree's story is just a smokescreen, a way of distancing himself from the fact that he plagerized Balkin. But I am inclined toward (b) because his explanation sounds like just so much dissembling. I think there never were any quotation marks inserted or dropped; there never was any attribution, and there never were any assistants who did all the sloppy "mistakes."

There is one merry spot in this sad story: I'm referring to Tribe's explanation that it was Ogeltree's excessive generosity and devotion to others that caused him to get overloaded and confused about things. Now that really gave me a chuckle. Hey, what are friends for if not to help you cover your ass?

- Michael Parenti

Three Essential Values

Dear Colleagues:

It has been said that a wonderful thing about the Internet is that it gives a voice to people who otherwise would have none in American society. It gives a voice to persons who may, who hopefully, have something to say, but who are shut out of the traditional mass media: radio, TV, newspapers, and magazines. The voice may be small, although some people have built an Internet readership of tens of thousands. But however small, the voice now exists where it didn’t before.

This posting is written in that spirit. It is written in the spirt of a small voice saying what the author believes to be the most important point that he can contribute to any discussion of public or private life. It is a point that perhaps sounds banal, simpleminded. It is a point that in certain respects is discussed all the time, yet is too rarely heeded and seems never to be truly accepted.

As is always true, we hear a lot these days about the inevitably transitory issues of the moment. Today those issues include the war in Iraq, terrorism, particular economic policies, lack of medical insurance, and the conservatives’ call for acceptance -- or imposition -- of their values regarding religion, abortion and family life. But although some of these issues will last or have lasted for awhile (albeit they nonetheless are transitory), in a larger sense they are not of the essence, are not fundamental. There are, I think, only three matters that are truly fundamental -- that truly determine the kind of society we have and the kind of lives we will lead as individuals, and that are permanent matters of permanent relevance. The three matters can justifiably be called values, truly basic values.

The three values I speak of are honesty, competence, and at least some concern for others, not just concern for oneself alone. And of the three, honesty is the most important because, without it, competence is not attainable and concern for others is less likely by far because one is not likely to know, understand or sympathize with the position of others.

If one looks back over, say, the last 50 years, it seems inevitable to conclude that much, even most or all, of our public problems stem from some form of, some level of, dishonesty. Sometimes the dishonesty takes the form of outright lies. Sometimes its form is lack of disclosure of the truth or lack of full disclosure of the truth. Sometimes it comes as spin. Sometimes it comes as what has been called, in a forthcoming book, "cornball crapola" -- standardized words or phrases that sound good but are false and are used to cover up the truth.* There was some form, some level, of dishonesty with regard to Viet Nam, Watergate, the Iran-Contra scandal, the savings and loan debacle, Monicagate, the second Iraqi war, Enron, Tyco, Global Crossing, American politics and civic life generally, and so on ad nauseam. Had full bore truth been the ruling desideratum in these matters, events at issue likely would never have occurred. It was some form or level of dishonesty that made them possible.

What is true of the public life is true as well of private lives. If a reader looks back at his or her own life, I would venture that as often as not he or she will find that problems and traumas were caused by, or at minimum were necessarily accompanied by, some form or level of dishonesty.

Honesty is foundational. Without it disasters occur, and without it there can be no competence. For competent thought and action depend on knowledge of the truth of a situation, knowledge of its actual facts. Conversely, ignorance or distortion of the truth and the facts lead only to mistakes and disasters (viz. Viet Nam or the current debacle in Iraq). Yet, for all the lip service paid to honesty -- and lip service is usually all it is -- it is relatively rare that one runs across a philosophy which holds that honesty is foundational and therefore is the single most important value of any. The idea that trustworthiness is of the essence was part of 17th Century England. There have been some philosophers and ethicists who stress the need for honesty, e.g., Sissela Bok, Michael Josephson. And recently Lewis Lapham, in Gag Rule, has opined that candor is crucial to our national life. But beyond these examples, and despite omnivorous reading, this writer is hard pressed to think of other examples of eras or persons that have held a philosophy close to the idea that honesty is the crucial fundament, the overriding necessity.

Having spoken of the necessity of honesty, let me now speak briefly about competence. Competency is a value whose necessity is widely acknowledged, is at least given lip service as being necessary for success. Yet it is in too modest a supply in a world where advancement so often goes to the merely personable, the sycophant, the person who can work the room, the smoothie, the person who knows how to maneuver in a bureaucracy, the person who is a friend. It is too rare in a world where people know that these traits, not competence (nor its inherent predicate, diligence), are how one advances, and where they act accordingly. So the value of competence is one that is often honored in the breach.

The need for competence in order to achieve success is, I note, of peculiar relevance to public life today. We are told that 9/11 was caused not by incompetence, but by failure of governmental organs to communicate with each other. We are equally told (as always) that the remedy is a new structure for intelligence operations. But the truth is that incompetence was the reason for 9/11, and all the new structures in the world won’t solve the problem we face if incompetence persists.

With regard to incompetence supposedly not being the reason for 9/11, we are told that nobody could foresee the use of airplanes as flying bombs to destroy structures. Nobody could foresee this??? How could that be when a bomber flew into the Empire State Building in World War II, when hundreds of Japanese Kamikaze planes tried to fly into American ships and some succeeded, when a private plane flew into the White House, when various government people knew of an effort to fly a plane into the Eiffel Tower, when various governmental people had heard of alleged plots to fly a plane into CIA headquarters, when it was known that there were Muslims who were learning to fly planes at American flight schools. Despite all this, nobody in the government could foresee the use of a plane to destroy structures??? That was sheer incompetence and stupidity. Incompetence was the reason for 9/11, and if it persists we will have more disasters of one sort or another. For that incompetence leads to disaster is virtually a law of life.

Lastly, a few words about caring for others, not just for oneself. This value, too, is spoken of favorably but is most often honored in the breach in a society where, since at least 1981 (as previously in the gilded aged and the 1920s), unbridled greed has become the ruling principle and plutocracy and oligarchy have become dominant features. Many people find that unbridled selfishness is not a satisfactory way to lead a personal life, and at the civic and political levels it has in the past led or contributed to such world-shaking events as the French Revolution and the Great Depression, and to the stock market catastrophe of the early 2000s. No good can come to a society where lack of concern for others is the guide to action -- whether the action be domestic or, as the world’s increasing hatred for us shows, foreign.

Let us conclude with a political thought stemming from all this (although what has been said here is true wholly independent of politics or party, and could be adopted by any person or party). The conservatives in the Republican Party, from George W. Bush on down, have for years been on a crusade to impose on all of us values that offend many of us. Many are offended by the importing of religion into public life, by the conservatives’ use of their particular religious views as reasons why government should ban abortions for anybody and stem cell research for everybody and should ban gay marriage, and by the conservatives’ universalist conception of American values and their foolish conception of permanent American hegemony maintained by war whenever necessary. Equally offensive to many are the hypocrisy, stupidity, and deception the right wing conservatives have shown in so many things, and the oligarchic, plutocratic and dynastic nature of their policies and views. But nobody has arisen to challenge the values they put forth with counter values. John Kerry has occasionally spoken of values, though to me the values he purportedly speaks of usually sound more like particular political and economic policies than fundamental values. Be the latter point as it may, it is long past time for there to be a politician or politicians who put forth counter values in challenge to the values that the right wing has used to reach and maintain power. Such a politician or politicians could do worse than stressing -- and, crucially, living up to -- the values of honesty, competence and concern for others as well as oneself.**

---

*The book, which is the third volume of a quartet called Thine Alabaster Cities Gleam, is entitled The Hopes And Fears Of Future Years: Loss And Creation (University Press of America).

**If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

---

September 02, 2004

I don't know who is on the list of recipients of these positngs, but I will add 2 cents worth for anyone who cares.

I think that I would include Mercy in my short list of crucial values.

Bob Seibel
CUNY School of Law
seibel@mail.law.cuny.edu

Rumsfeld’s Responsibility

Dear Colleagues:

One so often has to eat crow in this world that perhaps it would be forgivable to crow when one has said something that almost nobody wanted to believe or investigate but that is later shown to be true. Maybe, therefore, the report of the Schlesinger panel justifies a partial crowing by this writer. For it was said time and again in this blog, beginning almost four months ago in early May, that responsibility for the prison abuses in Iraq ran to the top of the Pentagon and White House. The idea underlying this assessment was that Bush, Rumsfeld, Wolfowitz, et al. desperately wanted intelligence about terrorists and insurgents. They were willing to countenance torture in order to obtain it (as supported by the now infamous memos saying the commander-in-chief can authorize torture regardless of the law). And, while seeking to preserve deniability, they unavoidably knew that torture and other abuses were being used to get the information which they so desperately wanted. (Why else were captives, as Bush et al. knew, being sent to undisclosed locations in places like Egypt, Pakistan and Thailand to be interrogated?) The correlative of all of this was said here to be that Bush, Rumsfeld, et. al., were guilty of crimes under domestic law, not to mention international law.

Almost nobody wanted to believe, say or investigate these things at the time. This fact even remains true today, as one can see from the lack of discussion about or investigations of them. Nor, to be sure, has the Schlesinger panel said these things. But even though all four members of that panel sit on Rumsfeld’s own Defense Policy Board, the panel -- unlike other bodies investigating what went on -- has put its toe into the water by saying that responsibility ran to the top of the Pentagon.

True, when discussing bad stuff the panel does not mention Rumsfeld by name, but refers only to the "Secretary of Defense." True, this is the Washington game of trying to lessen responsibility, at least emotionally, by not assigning blame to individuals by name, but instead assigning responsibility only impersonally to institutions, titles, offices and forces. True the panel places far more blame on others lower down the chain of command. All true. Yet the unavoidable fact remains that four members of Rumsfeld’s own Defense Policy Board -- four people whom some might justifiably think to be generally aligned with his views -- have had to admit that dear old lovable Rummy bears part of the blame. Perhaps, then, a minimal level of crowing is in order here.

And mark my words. If there are serous investigations rather than military whitewashes in future, then a much higher level of blame will attach to Rummy, Wolfowitz, and others in the Pentagon and serious blame will attach to Bush himself. As said before in this place, Bush, Rummy and that whole lot desperately wanted information about terrorists and insurgents. They were willing to countenance methods which most Americans consider outrageous in order to get it. And for various reasons -- such as knowing and approving of guidelines that approved abusive methods of interrogation, the high level memos approving of torture, and knowing that prisoners were being interrogated in places like Thailand and Egypt -- they could not help but be aware that bad stuff was going on. But they didn’t care, because they thought it crucial to get the information they wanted and, to get it, they were willing to countenance whatever they thought might work.*

*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Progressives’ View of Bush, And Everyman’s View Of Him.

Dear Colleagues:

A few weeks ago The Washington Post carried an op-ed piece by a sociology professor, Gary Alan Fine, who teaches at one of America’s eminent schools, Northwestern University. The subject of the piece is why "progressives" hate George Bush: why "a fair population of these bright and articulate Americans hate" him, why "so many thoughtful people hold a belief that is surprising -- and troubling -- to the vast majority of Americans."

To illustrate "the depth of this hostility," Professor Fine cited a discussion he had with "a distinguished social scientist. She explained casually, without preface or embarrassment, that she hates the president." Fine couldn’t believe she meant this literally; certainly she simply disagreed strongly with his policies, found his personality unappealing, was angry about the outcome of the election of 2000, etc. "But, no, she insisted that she viscerally despised George W. Bush. She felt nauseated and angry when she watched him. She was not just intellectually offended but morally so."

Subsequently in his piece, Professor Fine explained what he considered the emotional basis of such hatred on the part of "progressives." What he said is brilliantly correct (although it is only part of the story). One cannot do better than to quote his superb writing:

. . . George Bush is Forrest Gump. He has led a charmed life, in which
mediocrity, error and failure have had no consequences other than to produce
success. An indifferent student, Bush attended both Yale and Harvard, escaped
service in Vietnam, escaped disgrace despite drunken driving, failed as an oil
magnate only to be promoted to head the Texas Rangers baseball team and, lacking
political experience, became governor of Texas. His family and mentors paved the
way for this untalented scion of privilege. Bush was the frat boy who never grew
up.

Indeed, the conclusion of the 2000 election contributed to this
perception. A week before the voting Bush seemed solidly in the lead, but then
Democratic operatives spread the story of Bush’s youthful DUI arrest, and his
support appeared to crumble. Once again, though, his irons were pulled from the
fire -- by his father’s Supreme Court. The outcome underlined Bush’s image as
undeserving heir. The frat boy triumphed; fecklessness was its own reward.

Fine was right as far as he went. Many of us learned -- mistakenly -- that the American Dream went to those who worked hard, were competent and intelligent, were honest, were modest and had other desirable qualities. George Bush is the living embodiment that what we were taught has become a fraud in a plutocratic society. If one looks around, one sees everywhere that the palm goes to the dishonest, to the incompetent who suck up religiously, to the shameless tooters of their own horns, and to those who start with the ineffable advantage of a rich, accomplished and/or famous Daddy (or, these days, Mommy). George Bush illustrates a few of these traits. Yet, though he was a serial failure in most of his life, he is now President of the United States, and is such by the grace of family and plutocracy.

To those who were educated in the American Dream in the ’40s and ’50s, in the rise from obscurity to greatness of a Lincoln, Bush is a living rebuke which tells them that their views are wrong and their values silly. Honesty, intelligence, competence, hard work -- they are not what count.

Read the word "progressives" as meaning liberal or leftist academics (as it seems to have been meant to be read), and the situation is even worse. For Bush does not read -- for practical purposes boasts of not reading. This asperses one of the fundamental canons of education -- and of thinking: that one should read, that one in fact must read, to be knowledgeable and intelligent about things.

Nor do some "progressives" -- or, I imagine, some business people -- think well of Bush’s alleged "style" of leadership, which is itself largely predicated on personal ignorance. He proclaims that he simply sets the overall policy, and then leaves its execution to others. This, frankly, can only be the style of the mentally inadequate. No leader of any successful institution of any type can adopt such a totally hands off policy with regard to execution, with regard to implementing details, and be successful. Generally speaking, it just doesn’t happen, and Bush’s war in Iraq is but one of infinite examples.

There is irony in this, too. About two years ago a member of Bush’s Defense Policy board, Eliot Cohen, wrote a book about leadership in warfare called Supreme Command. The essence of Cohen’s view is that successful wartime leaders -- Lincoln, Churchill, Clemenceau, Ben Gurion -- were very hands-on, were very involved in details, constantly questioned and pushed their military people to insure that their plans were well thought out and had been improved as much as possible. There was a rumor around that Bush had read Cohen’s book. Either the rumor was false or Bush ignored, failed to understand or could not implement Cohen’s view that the successful leader does far more than just set overall policy and then totally and unquestioningly rely on subordinates to carry it out.

So, as said, Fine is right as far as he goes. But he ignores a crucial point. Saying that "political animus" should not be "tied to issues that are removed from policy" and that "bitterness toward the follies of youth" should not "determine our politics," Fine says there is enough to argue about by considering a president’s successes, failures, misdeeds. But Bush’s failures and misdeeds are matters that have contributed -- mightily -- to "progressives" disliking him intensely. In particular, his defense and foreign policies have outraged them. From telling the rest of the world to lump it, to spurning international courts, to incredible misjudgments about Iraq from start to finish, to untruths and total unwillingness to admit mistakes about such matters, Bush has outraged those who now deeply, viscerally dislike him. It is not his feckless earlier years alone which cause this dislike. It is the feckless early years plus the serial failures as president, failures which, pace Professor Fine, were prefigured by the serial failures of those feckless early years.

* * * * *

Yet George Bush is likely to win the election. At least he stands an excellent chance. There are many reasons. Lots of people agree with his policies. Some people are diehard Republicans. The average American reads little, as does Bush, and cares not a whit about the views of "progressives" or intellectuals. John Kerry is a flip flopper and does not seem to have any fundamental principles (except a 40 year desire to be president). Kerry does not seem to be a particularly likeable guy. Ralph Nader may syphon votes from Kerry, especially because more and more people are coming to agree that both parties are simply vehicles of the plutocracy. And so on.

But there is one other point which seems terribly pertinent. It was driven home when Bush and his wife were interviewed by Larry King recently: During the small portion of the program that I watched, Bush came across as a charming, likeable guy, much as a few years ago. What has been called his frat boy personality, or his good old boy personality, was on display. He would so charmingly give answers that were non-answers that one didn’t even realize they were non-answers. Or one didn’t even realize that, against the evidence, he was refusing to admit he had ever been wrong, or that he was simply blaming others for his own mistakes. If memory serves, for example, when King asked him whether he would use more soldiers if he had the Iraqi invasion to do all over again, he shifted it onto Tommy Franks. Saying his own style (as said) is to set policy and let the experts take care of the tactics, he had asked Franks if he had everything he needed, and the answer was yes. Not a word about -- nor did the King of softballs ask about -- Eric Shinseki’s statement that it would take several hundred thousand men to pacify Iraq, not a word about Larry Lindsey’s correct prognosis of the costs, etc. Nope. It was all the fault of those charged with the mission. To give other examples, when King asked George and Laura about stem cell research, you would have thought Bush was 300 percent in favor of it. When King asked about the mission accomplished episode on the aircraft carrier, Bush insisted he actually had stressed that there was much more work to do.

It was all smooth and utterly charming. It almost made me want to vote for the guy. And 65 years of life make me just have to believe that that kind of charming, frat boy, good old boy personality is what most American like. Most people are not "progressives," let alone academics or intellectuals. Bush’s personality can play well with them. The only thing that might cause significant numbers of them to change their minds is a clear statement of the unvarnished truth about what Bush is saying. Unfortunately, clear statements of unvarnished truth are not what John Kerry excels at. So in one sense, in one very important sense, this election pits Bush’s personality, attractive to many even if not to "progressives," against John Kerry’s speaking style, attractive to few or none. So, unless somebody begins taking Bush on in clear, unvarnished ways, John Kerry had better start looking for a job*

*If you wish to respond to this email/blog, please email your response to me at velvel@mslaw.edu. Your response may be posted on the blog if you have no objection; please tell me if you do object.

Guantanamo In Washington

Dear Colleagues:

I think it probably fair to say that most Americans do not care about the claimed constitutional rights of terrorists who have or will attempt to kill Americans or destroy our country. This writer includes himself among the noncaring, despite a dozen years in the '60s and '70s as a liberal professor (and practitioner) of constitutional law and a general civil liberties background then and afterwards. Why, then, are lots of the uncaring, myself included, nonetheless concerned that the prisoners at Guantanamo receive many of the same rights as normally accrue to Americans caught in our criminal system? We care because of idealistic concerns about what our own nation is and does, and because of selfish, self-interested concerns, supported by history, about what any nation, including this one, could become.

There are lots of recent facts that have triggered these concerns about what America is, does and could become. For example: Hundreds of people have been imprisoned and kept incommunicado at Guantanamo for 2« years. Prisoners there, at Abu Ghraib, and at secret detention centers have been tortured and/or exposed to neo torture, and some were killed. It is some people's view that knowledge of, responsibility for, and criminal liability for the torture and the neo torture go right up to the highest levels of the Pentagon and the White House -- though the press, and the Democrats, now seem to be adopting a hands-off policy about this. It is now widely thought, based partly on Pentagon and CIA admissions, that large numbers of the people we have imprisoned are wholly innocent or not dangerous -- one estimate, apparently from a CIA man, no less, who spent a year undercover at Gitmo, is that only 10% of the detainees at Gitmo are really dangerous, and the rest have nothing to do with anything (which is hard to believe, yet could be true). The Executive has urged that the President, as commander-in-chief, can ignore the law (and can torture people) if he claims this is necessary. The Executive claims that the war on terror is of indefinite duration, which means that prisoners could conceivably be kept at Guantanamo for the rest of their lives, as bizarre as this sounds, and that claims of unusual Executive power could keep surfacing for the rest of our own citizens' natural lives. Such claims could turn the United States into a militarized state, although there are thinkers who reasonably believe it already is, and for about forty or forty-five years has been, a heavily militarized state.

These are the recent facts which cause people to be concerned about what the U.S. is or could become, and to feel, therefore, that the prisoners at Guantanamo should receive the kinds of rights Americans receive in the criminal justice system lest we take further steps down the road to militaristic authoritarianism. When one reads the recent opinions in the detainee cases by the Supreme Court, here and there, through the clouds of legal technicalities and obfuscations that nobody but a committed lawyer could read (or write), one sees flashes that some of these recent facts were motivating factors causing the Court to take a baby step towards reining in the Executive -- the very same Executive, no less, for whom the very same, highly conservative Court stole the election of 2000.

There are also longer run factors, again not relating to the detainees themselves, motivating at least some of those who are concerned that the detainees at Guantanamo and elsewhere receive a reasonable complement of rights. One thinks of the American history of continuous wars from the 1600s onward, of the killings of Indians for almost 300 years, of the American psychological propensity to believe (as did Stalin) that deadly force is the answer to all problems, of the Palmer raids, of the internment of Japanese Americans (and, we have lately heard, of Italians too), of the McCarthy era, of Johnson's, Nixon's and Bush II's attacks on civil rights. While only some of these historical botcheries are directly relevant to the question of what rights should today's detainees have, it is probable that all of them are psychologically relevant because they are all warnings of what the country could become.

* * * *

What, then, is in fact occurring with regard to the Guantanamo prisoners? This, of course, is a broad subject that has been little covered by the press, because proceedings are only at their inception at the trial court level, and the press doesn't carry much news about trial court cases anyway, unless the cases involve some kind of scandalous or scurrilous matter.

So . . . . here is what is occurring currently at the trial court level on one important issue in one of the cases, and some opinions about it as nearly as one writer can discuss and can form opinions from reading some of the documents filed in court.

It appears that 14 cases have been filed by 60 aliens who are before a total of eight judges, with some of the aliens being represented by the Washington branch of one of America's oldest and most prestigious "white shoe" Wall Street law firms. The case of these particular aliens seems to be where some of the important action is now, and is before Judge Colleen Kollar-Kotelly in Washington. To have Kollar-Kotelly as their judge may not be such a great thing for those aliens. For Kollar-Kotelly had previously dismissed the same aliens' case on the government-pushed but fundamentally preposterous ground, approved by her basically conservative to reactionary court of appeals in D.C., but then overruled by the Supreme Court, that the aliens could not seek judicial help (via habeas corpus) because Guantanamo, where they are held, is not sovereign territory of the United States. This claim was, of course, a farce for several reasons, including that for 100 years the United States has had, and for the foreseeable future it will continue to have, what even the conservative Supreme Court said was "plenary and exclusive jurisdiction" over Gitmo. What we say goes at Guantanamo. The Cubans have nothing whatever to say about it. One could put it this way: Fidel Castro would not dare set foot on Guantanamo.

That Kollar-Kotelly previously rubber stamped a preposterous argument put forth by the government in the detainees' case is not a good sign now for the aliens. Nor I may say, is the Gitmo matter the only one where she has rubber stamped whatever the government wants. For Kollar-Kotelly is also the judge who, at the urging of the government and Microsoft, rubber stamped a settlement that was a governmental cave-in and a governmental dereliction of duty. The settlement was so bad that Congress -- unknown to almost all the country and the media -- recently passed a law intended to stop such judicial rubber stamping in antitrust cases, and, as a reason for the new law, repeatedly cited the judicial rubber stamping in two cases: the Microsoft case of Judge Kollar-Kotelly and, with strange serendipity, the judicial rubber stamping of a cave-in governmental settlement, with the American Bar Association, that had been opposed by the school of which this writer is Dean.

The point of all this is that Judge Kollar-Kotelly has shown herself ready to wield a rubber stamp when requested to do so by the government in important matters. Frankly, if there is to be a fair hearing with a true possibility that the detainees will receive the rights we ought to give them in our own interest, not necessarily their interest, Kollar-Kotelly probably should get off the case.

But she won't. So what is actually going on now in the case? As this is written, the parties are arguing over the detainees' right to access to counsel in their habeas corpus proceedings. The government claims that, based on past cases, the detainees have no constitutional right to counsel because, number one, they are aliens and, number two, they are not on sovereign U.S. territory (notwithstanding that the Supreme Court said correctly that Gitmo is subject to plenary, exclusive U.S. control). The government says that it can make this constitutional argument, despite the Supreme Court's decisions, because the high Court rulings regarding the detainees' right to habeas corpus were made under a statute, not under the Constitution. Nonetheless, it says, it will allow them access to counsel, but only under certain conditions (discussed below).

It is hard to understand how the government's argument that the detainees have no right to counsel is anything but bad faith. It is little wonder that the brief for the detainees opens by saying, "To read the government's papers, one would never know that this case had just been to the Supreme Court of the United States, where the government made -- and lost -- virtually the same arguments it now recycles here." (The detainees' brief also points out that in another of the cases -- the Hamdi case -- the high Court said "He unquestionably has the right to access to counsel in connection with the proceedings on remand." Hamdi, however, is a citizen, not an alien, because he was born in the U.S. (though he moved to our good friend Saudi Arabia as a child).)

In addition to almost unquestionably being bad faith, the government's argument misses a fundamental point, one with which this piece began. The government's argument is predicated on the alien detainees' individual rights or, more accurately, their asserted lack of individual constitutional rights. But to lots of us, who don't care overmuch about the constitutional rights of terrorists, the question is not simply, and in the cases of those who in fact prove to be terrorists, is not at all the alleged constitutional rights of aliens. It is, rather, what kind of country are we and what kind of country will we become. Holding people incommunicado for 2« years, torturing some of them, and claiming that the Executive, as commander-in-chief, is not subject to law is not the kind of country we want to see, especially when lots of the detainees may well be innocent. That, rather than lawyers' legalistic abstract arguments about aliens' individual rights, is the basic reason that we think these aliens should have access to counsel to challenge the government.

When you get right down to it, even the government recognizes that it can't succeed with its bad faith argument that the alien detainees have no right of access to counsel. So it is agreeing to let them see counsel under certain conditions designed to insure that the detainees and their lawyers do not reveal classified information that could aid terrorists in harming the country. In general, the conditions constitute various forms of monitoring the written and oral communications of, and the information exchanged by, the detainees and their lawyers. More specifically, the more important of the conditions are that the detainees' lawyers must obtain security clearances, that information exchanged by detainees and their lawyers will be reviewed to insure against the compromise of classified information, and that, in some cases, involving particular detainees, the communications between a detainee and his counsel will be monitored. To insure against impinging more than necessary on attorney-client communications, says the government, the classification reviews and the monitoring will be done by DOD personnel who are "walled off from participation in any court or military proceedings concerning the detainee." Also, information obtained via monitoring cannot be disclosed to anyone unless it "reflects a likely threat to national security or of immediate violence." (The monitors can also stop a face to face conversation between a detainee and counsel where it is being used to further terrorist or criminal operations or to otherwise threaten national security.)

Despite the government's ample bad faith in these cases, it really does give some pretty decent sounding reasons for these restrictions. Some detainees at Gitmo, it says (and who would disbelieve this?), are quite dangerous people. There is even one who has an extensive record of violent assaults on U.S. personnel at Guantanamo. Detainees know dangerous information, including American methods, American plans and styles of military operation, how American intelligence operates, and vulnerabilities of American systems, and some detainees have even tried to use the mail system at Guantanamo to send such information. Moreover, there are detainees who are trained in the use of clandestine and sophisticated codes and signals. Even if their lawyers have security clearances and are trustworthy, detainees might be able to send information through them via such signals and codes without the lawyers even knowing: The lawyers will be unwitting dupes in this regard. In reverse, lawyers might, even unwittingly, give sensitive information to detainees, who could somehow then pass it on to terrorists.

As said, lots of these reasons given by the government sound pretty decent, especially if one is concerned to insure the safety of our country and people. But the answers given to the government in the detainees' brief has several powerful and one or two seemingly dispositive answers.

Let's start with a dispositive one. The detainees' counsel, who apparently are easily eligible for the security clearances they need, will agree not to disclose, orally or in writing (such as in briefs), any information they obtain from their clients without prior government approval. (If there is a dispute about what can be disclosed, the court will settle it). That the government will first inspect and "clear" the information will obviate any concern that, absent monitoring or review of conversations and documents at Guantanamo itself, detainees may give their lawyers information, possibly coded information, which is helpful to terrorists, and which the lawyers would wittingly or unwittingly pass on to the latter. (The reverse situation -- i.e., that the lawyers who qualify for the needed security clearances would know and would give detainees dangerous information which the detainees would be able to pass on to terrorists does not strike me as very convincing. It is a mere makeweight.) I cannot currently understand any reason why the government would turn down this resolution of the problem unless, as some are charging, it is simply engaged in bad faith and stalling.

Another reason, which probably is also dispositive, is this. There are four detainees (at least one of whom was captured in Afghanistan) who are suspected terrorists, and have been charged with crimes like "murder by an unprivileged belligerent, and aiding the enemy." These detainees, who plainly are thought dangerous, have had access to lawyers without reviews of documents and information, without monitoring, etc. How is it, then, that other detainees, most of whom the government has not said are dangerous after more than two years of interrogating them, and lots of whom likely are wholly innocent, cannot receive access to lawyers without reviews, monitoring, etc.? The dangerous ones have been given unfettered access to counsel, but other, often non-dangerous, ones can only be given fettered access? What is wrong with this picture?

Then there also are supporting claims that many detainees are innocent persons who were detained simply because our government gave large bounties to Afghan tribesmen for every Arab they brought in (this sounds like what our government would do), that there has been 2« years of torture or neo-torture (which we know our government has sometimes done), mobsters -- whose lawyers sometimes do pass on dangerous, even deadly information that the mobsters provide -- are allowed to meet with counsel on an unrestricted basis, and that constant meetings with detainees are needed to obtain the confidence of people who know nothing of our systems, who have been kept imprisoned and incommunicado for over 2 years, and who may be afraid that almost anything they say will be used against them if learned by the government. All of these points sound reasonable, although it would be hard to think them dispositive if there really were an unsolvable threat that conversations with counsel would result in important information that can result in killing or hurting Americans being passed on to terrorists.

There is only one somewhat questionable argument being made by the detainees' counsel. The argument relies in part on a partially bombastic "Declaration," made "under penalty of perjury," by a guy who is a big shot in the American Bar Association.

The argument is that the restrictions imposed by the government will in effect destroy the right to counsel by destroying the confidentiality claimed to be a sine qua non of that right. In other words, if a client cannot talk to his lawyer without confidence that nothing that passes between them can ever be revealed to anyone else unless the client consents, clients will not talk frankly to their lawyers, the attorney-client privilege will be worthless, and "the lawyer-client relationship meaningless". This argument is the conventional wisdom, and the standard bombast, of the legal profession. It is elaborated to a fare-thee-well in the semi bombastic "Declaration" of the ABA bigshot. To get the full flavor of the bombast, one should start with the fact that the "Declaration" begins with a page and one half description of the fellow's qualifications - - including having been the top gun at a firm whose major name partner belittled "Russian Jew boys" in the legal profession eighty odd years ago (although the big shot is himself Jewish) - - and the fact that the page and one half of qualifications is beefed up by 19 pages of resume listing positions in professional organizations, published articles, books, professional appearances (on panels, etc.), prior employment, teaching experiences, honors and awards, directorships, appearances, community activities, education, and cases in which this fellow has testified in the last four years. Nineteen pages of this stuff. Modest this fellow is not, and I suppose bombast is what one should accordingly expect. The Declaration thus says, in the face of the everyday realities of the legal profession, that it is clients, not lawyers who make critical decisions, that lawyers must have loyalty unfettered by conflicts of interest, that "we are certain" that without confidentiality clients won't disclose important matters to lawyers, that the executive is showing "unprecedented and unreasonable distrust of lawyers," distrust which "shocks one," and that "It is a vast overweighting of the threat of terrorism that caused the executive branch to violate the [detainees'] rights," a "trampling" of rights which the court should not allow to be "compounded by destroying the lawyer-client relationship" "It is also true," says the Declaration, that "society has an interest in learning the content of these clients['] lawyer-clients communications and decisions. But society has a far more profound interest in guaranteeing the right of these prisoners to meaningful access to courts". The Declaration closes with a footnote saying it is submitted "in lieu of an amicus curiae brief which I was prepared to offer on behalf" of a group of ABA bigshots and "leading ethics professors,"but there wasn't enough time to have everyone sign off on it though they generally endorse his views and will seek to appear formally if time permits.

One wonders: what world is this bombast thrower living in? Lawyers make crucial decisions for clients every day and have ongoing conflicts with clients every day. How is it that "we are certain" that the attorney-client relationship will be meaningless without utter confidentiality, when people tell highly confidential things to non-lawyer professionals who have no similar privilege, and when many people who consult lawyers don't know about and don't care about the attorney-client privilege? Not to mention the evil that has been protected by the privilege (as in the tobacco cases and many others). The idea that one is "shock[ed]" by distrust of lawyers boggles the mind, since such distrust is widespread. And what would one think of the privilege of confidentiality if it somehow led to another Twin Towers? The truth is, I believe, that the attorney-client privilege, rather than being a bedrock of our system, is far more a device by which lawyers get business which sometimes would otherwise go to other professional or business people, and that much of the Declaration is bombast a outrance.

Yet the Declaration does make one point of great importance in the particular circumstances of the case, a point rightly adopted in detainees' brief. If information passing between lawyers and detainees is reviewed or monitored, the detainees - - particularly after having been held incommunicado in a foreign land by foreign language speakers for 2 « years, and perhaps having been tortured or subjected to neo torture as well - - might not want to provide the names and locations of family members and friends who could provide helpful testimony, for fear that what happened to them could happen to the others. They might be reluctant to share details of past mistreatment, for fear it could begin again. They might not want to share "troublesome" facts, for fear that reviewers or monitors would report such facts. These seem like reasonable concerns. And, without having to say that attorney-client confidentiality is the greatest thing since sliced bread, these concerns can be accommodated by ruling against the restrictions on access to counsel that the government proposes, while protecting the nation by adopting the offer of detainees' lawyers to disclose to third parties no information received from their clients unless the government first agrees or, if it doesn't agree, a court overrides it.

It now remains to be seen what the government says and what Judge Kollar - Kotelly rules.
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