Thursday, January 7, 2010
Wednesday, June 20, 2007
Talking to the English No. 2
There seems to be a much livelier spirit among United Kingdom parliamentarians and a willingess to swing the shovel now and again in matters of principle. Civil liberties-- and the frequent nervousness of the polity on growing infringements of them by newer and newer legislation -- is one of those matters of principle.
On this side of the pond we can only hope that it is contagious.
It is interesting that this opinion should be expressed now. The new leader and prime minister has yet to be installed, MP’s seem to be just as perkily vigilant on the subject of civil liberties as they were during recent but earlier times when other proposed intrusions on basic freedoms were being championed by Prime Minister Blair --a powerful, committed and persuasive Prime Minister acting when the memory of 7/7 was much fresher -- failed to sell them in the face of revolt within his own caucus, when he could not convince backbenchers of their merit.
Mr. Meacher, then, seems to be drawing the line early.
The question is, is be being necessarily pre-emptive of a substantial threat to the current, apparently balanced civil liberties regime in the United Kingdom or is –necessarily or not—only being pre-emptive of Mr. Brown
On this side of the pond we can only hope that it is contagious.
It is interesting that this opinion should be expressed now. The new leader and prime minister has yet to be installed, MP’s seem to be just as perkily vigilant on the subject of civil liberties as they were during recent but earlier times when other proposed intrusions on basic freedoms were being championed by Prime Minister Blair --a powerful, committed and persuasive Prime Minister acting when the memory of 7/7 was much fresher -- failed to sell them in the face of revolt within his own caucus, when he could not convince backbenchers of their merit.
Mr. Meacher, then, seems to be drawing the line early.
The question is, is be being necessarily pre-emptive of a substantial threat to the current, apparently balanced civil liberties regime in the United Kingdom or is –necessarily or not—only being pre-emptive of Mr. Brown
Wednesday, June 13, 2007
TALKING TO AMERICANS, PART IV
AL-MARRI AND LITHWICK SPEAK: CONGRESS LISTEN
Yesterday, the American press reported on the release of a decision in an American federal appellate court of a decision that found that the US government could not treat its own nationals, arrested within its borders within itw own militarized legal processes for terrorists. The decision may well be overturned but its value lies in the close analysis it performs of the problem and its implications for the existing, well -besieged system. The decision was called "Al-Marri." Dhalia Lithwick is a well recognized and insightful American popular legal writer who publishes in the on-line Magazine "Slate.' Lithwick managed to tease out principles and support the Al-Marri decision. I think both she and the Court hit on yet another message-- the responsibility of the US Congress to give the "sober thought" needed -now-- for reform
Thank you for this. Putting the decision in perspective for the rest of us can be as close to important as what the majority in the decision, itself, attempts to do. Rightly or wrongly, deftly or not, this Court has given Americans and others a frame of view that falls within the better analytical and within the best educational traditions of the judicial role.
But you identify, of course, another important dimension to this. You put it as the need for “...getting down to the business of crafting a legal regime based on clean rules...” In this respect perhaps al-Marri reaches beyond its individual analysis to lend lessons to others in the governing branches, situate elsewhere.
By definition, this “getting down,” cannot be left to Courts alone. This Executive, at least, is frozen. You observe of terrorist acts, “For almost six years .. nothing has happened...[in the face of this] insistence that there is simply no time for sober debate and tedious legal head-scratching become less credible every month...”
The Courts and the legal process, regardless of the breadth and depth of interventions and regardless of the weight of the resources invested in any individual litigation, are simply, practically, precluded from realistic access to the pool of data in the experience of government operations since 9/11. As much as they can stand as the protectors of both principles and individuals, the Courts can only be a well less than ideal mechanism for broad based legal policy review– even in the land that invented legal pragmatism.
So, if the Courts are hampered by their own limitations of process and resources and the Executive is frozen in accepting any need for reform, this policy role in the interim can only play out as a Congressional one– whatever that arm’s own limitations might be.
That, I suggest is the further lesson of al Marri– at least until there is the opportunity for review and thought by a new Executive – the only resort left for sober debate and tedious legal (or policy-) head-scratching can be that of Congress.
One hopes that the new, majority controllers of the Congressional process can, by default in how things seem to happen nowadays, begin to shift their big, albeit unwieldy resources to the close, comprehensive process of review and reform of the frozen legal aftermath of 9/11 that al-Marri and you so clearly identify.
And, by the way, isn’t this how the constitution’s Framers intended it to be?
Yesterday, the American press reported on the release of a decision in an American federal appellate court of a decision that found that the US government could not treat its own nationals, arrested within its borders within itw own militarized legal processes for terrorists. The decision may well be overturned but its value lies in the close analysis it performs of the problem and its implications for the existing, well -besieged system. The decision was called "Al-Marri." Dhalia Lithwick is a well recognized and insightful American popular legal writer who publishes in the on-line Magazine "Slate.' Lithwick managed to tease out principles and support the Al-Marri decision. I think both she and the Court hit on yet another message-- the responsibility of the US Congress to give the "sober thought" needed -now-- for reform
Thank you for this. Putting the decision in perspective for the rest of us can be as close to important as what the majority in the decision, itself, attempts to do. Rightly or wrongly, deftly or not, this Court has given Americans and others a frame of view that falls within the better analytical and within the best educational traditions of the judicial role.
But you identify, of course, another important dimension to this. You put it as the need for “...getting down to the business of crafting a legal regime based on clean rules...” In this respect perhaps al-Marri reaches beyond its individual analysis to lend lessons to others in the governing branches, situate elsewhere.
By definition, this “getting down,” cannot be left to Courts alone. This Executive, at least, is frozen. You observe of terrorist acts, “For almost six years .. nothing has happened...[in the face of this] insistence that there is simply no time for sober debate and tedious legal head-scratching become less credible every month...”
The Courts and the legal process, regardless of the breadth and depth of interventions and regardless of the weight of the resources invested in any individual litigation, are simply, practically, precluded from realistic access to the pool of data in the experience of government operations since 9/11. As much as they can stand as the protectors of both principles and individuals, the Courts can only be a well less than ideal mechanism for broad based legal policy review– even in the land that invented legal pragmatism.
So, if the Courts are hampered by their own limitations of process and resources and the Executive is frozen in accepting any need for reform, this policy role in the interim can only play out as a Congressional one– whatever that arm’s own limitations might be.
That, I suggest is the further lesson of al Marri– at least until there is the opportunity for review and thought by a new Executive – the only resort left for sober debate and tedious legal (or policy-) head-scratching can be that of Congress.
One hopes that the new, majority controllers of the Congressional process can, by default in how things seem to happen nowadays, begin to shift their big, albeit unwieldy resources to the close, comprehensive process of review and reform of the frozen legal aftermath of 9/11 that al-Marri and you so clearly identify.
And, by the way, isn’t this how the constitution’s Framers intended it to be?
Tuesday, June 12, 2007
Talking to Americans, Part III: Why Non Confidence is a Tool that American Legislators Should Use
TThe failure of the United States Senate to pass a motion of non-confidence in the US Attorney General, Alberto Gonzales, yesterday was in large measure successful when Republican Party officials were able to smirch (?) the vote as being illegitimate-- the grounds being that governmental no-confidence is a parliamentary and not an American model technique.The idea behind this post is that it is a tool that properly can and should be added to the tools available to American legislators seeking to constrain an administration inclined to run amuck.
* * *
During times when not just the President’s one-time counsel, but when the entire administration of the whole American Department of Justice, has elected to say and do, not what sought be done but what the “client” wants to hear, with deeply troubling constitutional consequences, I would have thought that the use of any legal or political legislative technique which might help to shore up the rule of the law would have been legitimate.
So...perhaps one might step more lightly on “across the pond” implication that allowed weak spirited legislators a cheap and convenient escape hatch from a vote of confidence that pitted principle against partisan convenience.
What has happened to the administration of American federal justice through this era of least the Gonzales era, is that through this time the Attorney General has persistently been brought to legislative account and has consistently failed, is an offence of constitutional process in a government that is supposed to be one of laws.
The motion of non-confidence in the Attorney-General ought to welcomed as another, precise and useful tool in the perpetual intellectual balancing act inherent in American republican government. It is not as though recent experience in the affairs of the administration of the republic, the facile and limp wristed responses to administration policies of civilian surveillance, of reasonable process in the arraignment and trial of suspected terrorists, the treatment of domestic suspected terrorist, straight forwardness in the characterization of military-legal affairs, to name a few, accurate suggest that the armamentarium available is exactly overflowing.
Think about this. The parliamentary system does not have a lock on the idea of non-confidence. It is no small constitutional or legal event when the senior legislative body in the US republic has seriously entertained a motion of non-confidence in a senior-most officer of the United States, has done so with the support of members of both political parties and when others of the governing party have escaped only by claiming that the instrument is foreign or, more to the point in the unspoken sub-text, British.
Non-confidence is a technique which American legislators ought to keep close at hand, and use frequently as required, with others, in recording and underlining the exercise of the clearly imposed constitutional duty: we are doing no favour to the legitimate administration of the law in any nation to play into the political hands of partisans who try to diminish the tool not on the grounds of its clear and obvious value, but on the cynical and false measurement of where it might have come from.
* * *
During times when not just the President’s one-time counsel, but when the entire administration of the whole American Department of Justice, has elected to say and do, not what sought be done but what the “client” wants to hear, with deeply troubling constitutional consequences, I would have thought that the use of any legal or political legislative technique which might help to shore up the rule of the law would have been legitimate.
So...perhaps one might step more lightly on “across the pond” implication that allowed weak spirited legislators a cheap and convenient escape hatch from a vote of confidence that pitted principle against partisan convenience.
What has happened to the administration of American federal justice through this era of least the Gonzales era, is that through this time the Attorney General has persistently been brought to legislative account and has consistently failed, is an offence of constitutional process in a government that is supposed to be one of laws.
The motion of non-confidence in the Attorney-General ought to welcomed as another, precise and useful tool in the perpetual intellectual balancing act inherent in American republican government. It is not as though recent experience in the affairs of the administration of the republic, the facile and limp wristed responses to administration policies of civilian surveillance, of reasonable process in the arraignment and trial of suspected terrorists, the treatment of domestic suspected terrorist, straight forwardness in the characterization of military-legal affairs, to name a few, accurate suggest that the armamentarium available is exactly overflowing.
Think about this. The parliamentary system does not have a lock on the idea of non-confidence. It is no small constitutional or legal event when the senior legislative body in the US republic has seriously entertained a motion of non-confidence in a senior-most officer of the United States, has done so with the support of members of both political parties and when others of the governing party have escaped only by claiming that the instrument is foreign or, more to the point in the unspoken sub-text, British.
Non-confidence is a technique which American legislators ought to keep close at hand, and use frequently as required, with others, in recording and underlining the exercise of the clearly imposed constitutional duty: we are doing no favour to the legitimate administration of the law in any nation to play into the political hands of partisans who try to diminish the tool not on the grounds of its clear and obvious value, but on the cynical and false measurement of where it might have come from.
Monday, June 11, 2007
Yet More on the General's Letter
The Huffington Post reports that General Pace was not renominated for this letter!
Update: The General's Letter
Today it has been announced that the US Government will not nominate General Pace (see "The General's Letter" below) to a further term of two years. The American defence secretary announced the decision by saying that the decision had been reached over some "weeks," and the strong speculation is that the General would have attracted strong political, criticism upon confirmation in the US Congress.
The General's Letter
Earlier this week Scooter Libby, the former assistant to the US Vice President who also carried the title of assistant to the President of the United States, was sentenced to thirty months in prison for perjury. The offence and the conviction came in the course of the investigation of a course of political actions involving a public relations-savvy and vocal couple, she, a spy who was outed-- which was the focus of the investigation into the "outing," which could be illegal under American law -- and her husband, a former American Ambassador.
The judge who imposed the sentence considered the lie for which Libby was convicted to be open, flagrant and sustained.
In preparation for sentencing, defence lawyers collected reference letters to be used to attempt to lighten the penalty to be imposed on Mr. Libby. The reference letters were released by the court earlier this week.
One of these was a letter from the Chairman of the American Joint Chiefs of Staff, General Peter Pace.
I read the letter and wondered why and whether it was appropriate for, this General wrote this letter. As I thought about it I became more concerned.
I posted the following or close to it on two major American blogs. It stimulated some response.
A man named Peter Pace, wrote American Federal Court Judge Reggie B. Walton on behalf of Mr. Libby.
Mr. Pace is a general in the United States Marine Corps and at the moment is the Chief of Staff for the American Armed forces. Pace told the judge that, from his association with Libby, Libby was always concerned about the "the right way to proceed – legally and morally" "not just what was in the best interests of the country."
The general signed his letter as, "General, United States Marine Corps."
One has to wonder about the propriety of this.
The temptations for those shopping for sentencing support are many and the temptation to seek a commendation from the military’s Chief of Staff are no doubt powerful indeed. One can understand why those supporting Scooter Libby might ask. General Pace’s scrambled eggs in a country in a time of war could be a powerful and toney endorsement.
But one has to think twice as to why, "Peter Pace, General, United States Marine Corps" might be tempted to oblige.
The General has the responsibility to execute the directives of the President of the United States.
He does not have a duty to make life easier for the President or his
associates and friends and the General does not exercise the office of Chief of Staff as either a political or personal fixer for any of the administration whom he is to serve. He does not have the duty to be the friend of Scooter Libby and indeed his letter seems to step lightly to make sure that it does not leave the impression that he is. Surely this is as axiomatic for Administration officials as it ought to be to senior American military leadership itself.
So why would General Pace do this?
He was not speaking as a colleague of Mr. Libby’s although there are no doubt many who can attest to Libby’s public record in which "the right way" was usually – although not always, the conviction proves– his byword. Pace and Libby had no record of personal cooperation, through charity or church-synagogue or public interest or professional work.
So while there were many who attested to Libby’s character to this Judge who could speak from the vantage point of personal experience and long and intimate knowledge, General Pace could not.
In writing this letter, one is left with the impression that he is left amongst those of the referees in this sentencing who was added not because of the substance of what he could say, but the fact that it was America’s highest uninformed officer who was saying it.
With no personal motivation, with the recognition – which could not have escaped General Pace-- that there may others who were in a far better position of knowledge and experience to speak kindly of Mr. Libby, the General’s letter risks being marked as nothing more than the act of granting a personal favour.
And that in turn, opens the door to cynical questions of whether there was a favour, or the expectation of a favour, in return.
In doing this, this risks the question the next time he, or another high ranking officer of the American military stands to give evidence before a committee of the US Congress or is cited before the United Nations or is deferred to in the myriad of press briefings as a source of direct military information and advice, the General is risking doubt as to what favours they have been asked to grant and what favours had been given or expected in return.
The judge who imposed the sentence considered the lie for which Libby was convicted to be open, flagrant and sustained.
In preparation for sentencing, defence lawyers collected reference letters to be used to attempt to lighten the penalty to be imposed on Mr. Libby. The reference letters were released by the court earlier this week.
One of these was a letter from the Chairman of the American Joint Chiefs of Staff, General Peter Pace.
I read the letter and wondered why and whether it was appropriate for, this General wrote this letter. As I thought about it I became more concerned.
I posted the following or close to it on two major American blogs. It stimulated some response.
A man named Peter Pace, wrote American Federal Court Judge Reggie B. Walton on behalf of Mr. Libby.
Mr. Pace is a general in the United States Marine Corps and at the moment is the Chief of Staff for the American Armed forces. Pace told the judge that, from his association with Libby, Libby was always concerned about the "the right way to proceed – legally and morally" "not just what was in the best interests of the country."
The general signed his letter as, "General, United States Marine Corps."
One has to wonder about the propriety of this.
The temptations for those shopping for sentencing support are many and the temptation to seek a commendation from the military’s Chief of Staff are no doubt powerful indeed. One can understand why those supporting Scooter Libby might ask. General Pace’s scrambled eggs in a country in a time of war could be a powerful and toney endorsement.
But one has to think twice as to why, "Peter Pace, General, United States Marine Corps" might be tempted to oblige.
The General has the responsibility to execute the directives of the President of the United States.
He does not have a duty to make life easier for the President or his
associates and friends and the General does not exercise the office of Chief of Staff as either a political or personal fixer for any of the administration whom he is to serve. He does not have the duty to be the friend of Scooter Libby and indeed his letter seems to step lightly to make sure that it does not leave the impression that he is. Surely this is as axiomatic for Administration officials as it ought to be to senior American military leadership itself.
So why would General Pace do this?
He was not speaking as a colleague of Mr. Libby’s although there are no doubt many who can attest to Libby’s public record in which "the right way" was usually – although not always, the conviction proves– his byword. Pace and Libby had no record of personal cooperation, through charity or church-synagogue or public interest or professional work.
So while there were many who attested to Libby’s character to this Judge who could speak from the vantage point of personal experience and long and intimate knowledge, General Pace could not.
In writing this letter, one is left with the impression that he is left amongst those of the referees in this sentencing who was added not because of the substance of what he could say, but the fact that it was America’s highest uninformed officer who was saying it.
With no personal motivation, with the recognition – which could not have escaped General Pace-- that there may others who were in a far better position of knowledge and experience to speak kindly of Mr. Libby, the General’s letter risks being marked as nothing more than the act of granting a personal favour.
And that in turn, opens the door to cynical questions of whether there was a favour, or the expectation of a favour, in return.
In doing this, this risks the question the next time he, or another high ranking officer of the American military stands to give evidence before a committee of the US Congress or is cited before the United Nations or is deferred to in the myriad of press briefings as a source of direct military information and advice, the General is risking doubt as to what favours they have been asked to grant and what favours had been given or expected in return.
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