By Harvey Silverglate

As engines of creativity and innovation, colleges are always pushing the envelope on scholarship. While this is usually good – since it broadens our culture’s collective knowledge – occasionally you see some really idiotic proposals and research agendas coming out of the American academy. And each time you think you’ve seen the last truly dumb idea – at least for a while – emerge from a college campus, along comes an even dumber one to challenge your grasp on reality.

The Chancellor of the University of Colorado at Boulder, G. P. “Bud” Peterson, has proposed a new endowed chair in “Conservative Thought and Policy” that would (not necessarily, but most likely) be held by a politically conservative professor. The announcement comes as Peterson is seeking to raise the funds necessary to create the professorship. Peterson is a rare Republican at the helm of an American public university – especially one of national prominence like Colorado’s. Indeed, the picture is the same at most private universities, though less so at private religious institutions and the service academies. With this kind of background, it’s understandable that he would notice the grip that the academic left has on higher education.

It’s important to note that the academic left is not coterminous with traditional liberalism. Quite the opposite is true. I’m referring to the whackjob sociological, political, literary and other such theories and authoritarian tendencies of critical theorists and others in dubious academic disciplines. Alan Charles Kors and I dealt with this phenomenon – I hope – in our 1998 book, The Shadow University.

Despite Peterson’s political leanings – and his presumptively good-faith desire to develop more ideological diversity in higher education – if the problem is higher education’s intolerance for views outside the left’s agenda du jour, the solution of hiring a token conservative professor would exacerbate rather than cure the problem.

For one thing, the problem on campuses isn’t a perceived schism between “liberals” and “conservatives.” The idea that campuses are “liberal” is a myth. As I said earlier, the academic left differs markedly from those who fit the mold of traditional liberalism, with its focus on, for example, free speech. Though the litany of censorship cases on American campuses is legion, it’s not that “liberals” and “conservatives” are suppressing student and faculty speech. Instead, that’s the job of campus totalitarians on the far right and the far left alike. (That today there are far more totalitarians of the far left than of the far right on college campuses is not a comment on the relative merits of one over the other. It is just that the crazy left happens to have the upper hand right now in academia.)

For another, the notion that only a conservative is qualified to hold a chair in “Conservative Thought and Policy” is a parody on affirmative action. Should universities require that endowed chairs in Judaic Studies, for example, be held by a Jew? (So far it’s not clear that Peterson’s proposal would limit the position to conservatives, but the implication is that the school would be looking for a scholar/true-believer to fill the spot.) Is it the academic discipline – the study of conservative thought – that Chancellor Peterson wishes to bring to Colorado, or just a conservative? It doesn’t seem like a well-thought-out plan. (And besides, what does it say for the general conservative distaste for affirmative action programs when they drop their presumptively principled opposition when the policy instead benefits a group they do happen to like – namely, themselves?)

The fundamental problem with the proposal is that it does not deal with the underlying outrage that besets higher education today: the fact that our university campuses are among the least free institutions in our society. Ideally, campuses should be among the most free since academic freedom is, at least in theory, central to the pursuit of knowledge and the practice of higher education. Until we solve this central problem, one has to give conservative polemicist George Will some credit for his response to the Wall Street Journal's query: “Like Margaret Mead among the Samoans, they’re planning to study conservatives. That’s hilarious.” By the way, Will’s name has been bandied around as a possible candidate to fill the new chair, but it looks like they’ll have to find another specimen – perhaps one less sensitive about being treated like the subject of an anthropological study.

The Boston Globe reported this morning that although Attorney General Michael Mukasey will still speak at this year's Boston College Law School commencement, the school has decided that it would nonetheless "deny Mukasey the Founder's Medal," which celebrates "traditions of professionalism, scholarship, and service which the Law School seeks to instill in its students." Some students had protested against the decision to honor Mukasey, in part "because his position on waterboarding conflicts with the university's Jesuit mission." (Incidentially, would the students and faculty members who are up in arms in defense of BC's 'Jesuit mission' be equally upset having a speaker from Planned Parenthood, Death with Dignity, or Gay & Lesbian Advocates & Defenders -- all of which advocate legal and social positions at odds with Catholic theology?)

Retaining Mukasey as the speaker while not bestowing an honor upon him has the effect of defanging the criticisms of campus activists who are opposed to the viewpoint espoused by the speaker. Indeed, by disaggregating the symbolic function of the invitation (giving him the Founder's Medal arguably puts the law school's imprimatur on Mukasey's views) from the expressive function of the invitation (exposing law students to the highest-ranking lawyer in the Executive Branch), Boston College has made it so no one can claim that the school is ratifying Mukasey's views. Instead, it becomes clear that those who still object to Mukasey's speech simply do not like the idea of hearing speech they disagree with.

Update: The story was originally broken by student reporters at BC Law school's eagleionline.com, which the Globe report failed to mention. Gotta give credit where credit's due.

    I’m old enough to have concluded, not so long ago, that I probably would not live to see Americans elect a truy reflexive – yet thoughtful – civil libertarian as President. I had hoped that Bill Clinton would be such a President, at least until he actually moved into the White House. Just his act of signing the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) (summary here) was enough to sober me up. Anyone who thinks that George W. Bush was the first president in modern times to shred habeas corpus has a very short memory and should read AEDPA and some of the related commentary.

    But there’s reason to hope that the next President might do a better job of protecting Americans’ civil liberties than Clinton – or his predecessors or successor – did. Jeffrey Rosen, the talented legal columnist and analyst for The New Republic, just posted an essay online – subscription required; also to appear in a forthcoming issue – in which he posits that Barack Obama, if elected to the presidency, could readily be “the first civil libertarian president.” I suppose it depends on how far back one goes to determine who’s “first” (Jefferson was very good in theory, but only pretty good in practice). If we examine not only Obama’s positions (it’s awfully easy to talk a good game, of course), but also his actions over the years, we come away with a sense that mirrors Rosen’s conclusions.

    There are two policy areas which to me are really the tip-off that Obama is the real thing.

    First, when he was a State Senator in Illinois, he championed and got enacted a bill that required that all interrogations and confessions be videotaped in capital cases. This is not an easy sell for either the public or for police and prosecutors. But experience tells us that false confessions, as a result of unfair or coercive interrogations, are a major cause of false convictions, including and especially in murder cases. As a criminal defense lawyer, I can attest (from personal experience) to the extent to which things can go wrong when police are allowed to claim that a defendant confessed in an off-the-record discussion or interrogation session. Because it declaws coercive interviewing and deters police from misconduct during interrogations, required taping of confessions is an essential arrow in the quiver of anyone truly supportive of liberty. Obama made it a centerpiece of his legislative program in Illinois. It takes some guts to be publicly in favor of the rights and liberties of criminal defendants. Bravo!

    But there’s another, equally controversial issue where Obama emerges as a consistent but sane civil libertarian – gun control, one of the third rails of American politics. He stands in opposition to those liberals who believe that the Second Amendment does not assure an individual’s right to bear arms. (Those who subscribe to this theory hold, instead, that the Second Amendment merely guarantees to states the right to maintain arms for the purposes of militias.) Those of us who believe in liberty as the default position, and read the text of the Amendment through that lens, naturally come out in favor of a strong individual right to gun ownership. But Obama also stands in opposition to those conservatives who believe that the Second Amendment prohibits the state from enacting even reasonable restrictions (“gun control”) on this constitutional right. Obama suggests that the gun rights guaranteed by the amendment are “subject to common-sense regulation just like most of our rights are subject to common-sense regulation.” This has caused David Weigel to suggest on Reason Magazine's Hit & Run blog that Obama “is a civil libertarian, except when he is not.” But Weigel is wrong on this: Even free speech rights, protected by the First Amendment, are and always have been subject to reasonable time, place and manner restrictions. I’m as close as one can come to being a free speech absolutist, and yet even I believe that it is properly unlawful to phone someone at three o’clock in the morning, day after day, to either damn or praise him or her. (Although I prickle at the way the term ‘harassment’ is thrown around, it’s true that there is indeed a form of speech that is harassment. This would be a natural example.) So extending Weigel’s logic from the Second to the First Amendment, anyone who accepts even a minor deviation from the absolutist free speech stance “is not … a civil libertarian.” It’s unreasonable to think that only absolutists are civil libertarians.

    Both of those policy areas make me think that we might well have in Obama – a former lecturer in constitutional law at the University of Chicago – a sane civil libertarian who will naturally annoy those on the far left and on the far right. In itself, it’s a good sign that he even bothers to think about these things.

By Harvey Silverglate

So the truth about waterboarding finally comes out, thanks in no small part to the Boston Globe's Charlie Savage   among the most astute journalists to chronicle the sins of omission and commission made by the Bush administration and its lawyers over the last seven years. In this morning's Globe, Savage reports that Attorney General Michael Mukasey has refused to investigate the CIA’s torture practices, in part because investigating those who relied on the advice of legal counsel would undermine the credibility of the government’s lawyers. According to this logic, Savage reports, if Mukasey were to second-guess the Department of Justice’s legal conclusions, “officials would stop trusting other legal opinions from the department.”

Fair enough. It’s very important, in terms of preserving the rule of law, that government operatives and officials be able to rely on the legal advice of administration lawyers. And as I have noted in the past – both in my Boston Phoenix “Freedom Watch” column from June 18, 2004, as well as an entry on this blog from November 2007, – there is little doubt that the lawyers in Bush’s Office of Legal Counsel (and other offices in the Justice Department) were issuing their bogus legal opinions precisely in order to give the torturers a “good faith reliance on the advice of counsel” defense, in case criminal investigations or prosecutions were ever brought against the torturers.

I have to grudgingly admit that I agree with Mukasey to an extent. Indeed, why should a CIA torturer be investigated and indicted if he had in his hand a legal opinion – albeit a secret opinion not subject to scrutiny by Congress, much less by the nation’s independent bar – drafted by lawyer with superb credentials and proffered as the Executive Branch’s official (though secret) position on the matter?

But acknowledging that the CIA’s torturers might have been acting in good faith – that they believed the lawyers when the lawyers told them certain highly coercive interrogation techniques were legal – hardly ends the inquiry. Why are these lawyers not being investigated in order to determine whether they wrote their legal opinions in good faith, or instead made up fanciful legal theories to appease the administration’s interest in taking the gloves off when it came to dealing with suspected terrorists?

It’s hard for a CIA operative to determine whether such a legal opinion is bogus, and for policy reasons we probably wouldn’t want bureaucrats and agents second-guessing the Executive Branch’s legal opinions in any event. But surely the duly constituted authorities within the legal establishment, including the Attorney General and his legal ethics experts, if not the bar authorities in the states where these lawyers are members of the bar, should be able to figure out whether the opinions pass even the “giggle test” that separates legitimate legal analysis from chicanery.

These legal opinions were drafted by John Yoo (once Assistant Deputy Attorney General, but now safely ensconced in a tenured position at the UC Berkeley Law School – formerly known as Boalt Hall), David Addington (legal aide to Vice President Dick Cheney), and Jay Bybee (rewarded for authorizing torture with a judgeship on the U.S. Court of Appeals for the Ninth Circuit). My own view is that their legal analyses and conclusions are so far from accepted American law that a legal ethics expert might well conclude that they were written in bad faith. Of course, one has to surpass a high threshold to conclude that a lawyer had deliberately misrepresented U.S. and international law in order to provide a legal basis for authorizing torture. But I think Yoo, Addington and Bybee might qualify.

Prominent legal scholars like Yale Law School’s dean, Harold Koh, and the University of Chicago Law School’s Cass Sunstein, have agreed, calling the opinions “abominable” and “embarrassingly weak.” And as Yale’s Jack Balkin points out, there’s a difference between disagreeing with settled law when you are analyzing it as a law professor, and ignoring settled law when you are advising the United States government.

In any event, it’s high time for some quality control, not to mention accountability, to be exerted over Bush Administration legal opinions. That leads to the question, what is to be done? Instead of investigating “the client” (that is, the CIA operatives), why not investigate the lawyers? Investigators could seek their disbarment for offering bad faith legal opinions to authorize torture, which is plainly illegal under United States and international law. That would be a less drastic alternative than Shakespeare’s suggestion in Henry the Sixth (Part II) that “the first thing we do, let’s kill all the lawyers," a remedy that no civilized society would tolerate, just as no civilized society should tolerate torture. But an ethics investigation would be a reasonable start. And, of course, I would insist that we accord Yoo, Addington, and Bybee – and anyone else involved in drafting the opinions – all due process, even though they have done everything in their power to deny it to their torture victims. Some of us are still serious about the majesty of the recently somewhat battered notion of “the rule of law.”

In this week's Boston Phoenix, Harvey Silverglate writes about how a troubling new obstruction-of-justice statute, and a precedent set in a Connecticut kiddie-porn case, could be used to prosecute the CIA if the government brings obstruction charges related to the destruction of the so-called "torture tapes." Above, Silverglate discusses the statute, the case, and the implications with Boston Phoenix executive editor Peter Kadzis.

READ: Torture-Tapes Template: Bush-administration lawyers could be nailed for their role in destroying evidence in the CIA scandal, thanks to a quiet Connecticut child-porn case. By Harvey Silverglate.

By James F. Tierney

In the August 15, 2007 Boston Phoenix, Harvey described the criminal case against Powers Fasteners as a likely form of extortion, in which Attorney General Martha Coakley's motive in pursuing the company was to extort civil settlements from it and, more importantly, other companies -- such as contractor Bechtel -- with enough money to buy their way out. The Boston Globe reports this morning that lawyers for Powers Fasteners are asking the judge to dismiss the Powers indictment on the grounds that the Commonwealth's Attorney General cannot be an impartial prosecutor in a criminal case while she is simultaneously seeking money damages in a related civil lawsuit or negotiation. (Yesterday, the Globe reported that the private lawyer whom Coakley appointed to prosecute the case has "run[] up a tab that has already reached nearly $1 million," despite the fact that "even if convicted, the Powers Fasteners glue company faces a maximum penalty of a $1,000 fine.") Is Coakley's zealous pursuit of a conviction against Powers Fasteners solely meant to hasten a multi-million dollar windfall accompanying a civil settlement? We'll be watching the case.

By James F. Tierney

Despite having questioned Governor Deval Patrick's fidelity to freedom earlier today, we applaud his recent decision to appoint Francis Fecteau, a Massachusetts Superior Court judge in Worcester, to the state Appeals Court. Fecteau was the judge who, in July 2006, granted a new trial for Bernard Baran, whom Harvey Silverglate is representing as part of Baran's post-conviction defense team. (Harvey and I wrote an article for last week's Massachusetts Lawyers Weekly about an unjust gag order in the Baran case, which had been imposed by the judge who took over the case from Fecteau.) We hope that Fecteau is promptly confirmed.

By Harvey Silverglate

When Massachusetts residents elected Deval Patrick governor just over a year ago, it was a sign that this state had finally become fed up with sixteen years of Republican pols who treated the office as part plaything, part stepping stone to higher electoral office. For some of us, a liberal administration in the State House – who had previously been an Assistant Attorney General for civil rights in the Clinton administration – was a sign that Patrick would act as a “freedom governor” as well as a “compassionate liberal.”

From the beginning of his administraion, there were inklings that Patrick might not harken to the civil libertarian mold, and that his background in civil rights might lead him to embrace a role as a benevolent (liberal) dictator of sorts, fostering the so-called “nanny state” without any compensating benefits counterbalancing the loss of freedom. Within the last week, three news stories have reinforced such questions about how committed Patrick is to protecting liberty.

As we blogged about Tuesday, Patrick has supported establishing three casinos in Massachusetts. (Note also that The Phoenix has offered its support for the casinos.) Setting aside my personal concerns about the onerous effects of casino gambling on the most vulnerable populations in society – a concern that might be assuaged by certain restrictions on the locations and rules under which the casinos are required to operate – I found it difficult to oppose Patrick’s casino proposal precisely because it’s a fundamentally libertarian position. Liberty should be the default position, deviation from which is justified only for compelling reasons.

But after the recent news that Patrick has sought to ban online gambling – it’s unclear how this would even be enforced in practice – I’ve found it necessary to revise this initial assessment of his support for organized casino gambling. Far from taking a pro-liberty position, it appears that Patrick’s support for casino development in this state is premised entirely on the real or imagined economic benefits – and specifically the taxes and other revenue the state would be pocketing, at least at the start, from introducing casinos. Thus the attempt to punish online gamblers – against whom the federal government, let alone the state, would have a hard time collecting taxes – is really just an attempt to shore up the windfall that supposedly would accompany brick-and-mortar casinos.

This kind of unprincipled pragmatism – which rejects the necessity of certain liberties, like the liberty to engage in private gambling even in the shadow of glitzy, state-sponsored public gambling – gives the committed civil libertarian pause about how extensive Governor Patrick’s commitment to freedom is.

The November 14th Boston Globe also details Patrick’s support for a new bill that expands the “buffer zone” around the entrances to abortion clinics – the minimum distance that anti-abortion protesters must maintain from the entrance to the clinic. After citing how the bill “strikes an appropriate balance between the freedom of choice and the freedom of expression,” Patrick essentially undercut that platitude by privileging “freedom of choice” over “the reasonable right to express themselves of people who have a different view.” As I explained to the Globe’s reporter, this is a poor rationale for increasing the “buffer zone” to 35 feet. Freedom of speech is a right guaranteed to all citizens – including those dissenters “who have a different view” about reproductive freedoms. Moreover, it protects all kinds of speech, from the popular speech of The Daily Show to the unpopular (in this state), offensive, and often visually gory anti-abortion advocacy of groups like Operation Rescue. If we want to create an atmosphere where the liberty of a woman to control her own body is elevated, then we well should maintain the attendant liberty of those who find the procedure to be murder to make their point. Can it be that we have not yet learned, as a society, that liberty is seamless?

Finally, in an issue not heavily covered in the Boston or other local media, State Representative Ruth Balser (D-Newton) has spearheaded an initiative to decriminalize marijuana. In response to the hearings (see video of the hearings here) her legislative committee has held on decriminalization measures, an editorial syndicated in local newspapers such as the Milford Daily News and the Daily News Tribune reports that “a spokeswoman for Gov. Deval Patrick reiterated his campaign pledge to veto any decriminalization measure.” While this is not strictly an issue of Massachusetts civil libertarians being misled by a man who we thought would be a “freedom governor” – as his opposition to decriminalization appears to have been known from the start – it does support the broader argument that Patrick is uninterested in increasing Bay Staters’ personal freedoms. It will be interesting to see what position Patrick takes on medicinal marijuana, if such an initiative gains prominence locally. Meanwhile, this purportedly “liberal” and “progressive” governor blinds himself to the enormous social, legal, economic, and spiritual damage that the War on Drugs has caused the commonwealth and the nation.

Surely it is possible to be a liberal, supporting a society that does not allow its most vulnerable members to sink into an abyss, while advocating at the same time the maximum individual liberty consistent with what the Supreme Court has called “an ordered society.” Thus far it does not appear that Deval Patrick is that kind of liberal. But maybe it’s still too early to give up hope on this score.

(Special thanks and a tip of the hat to James Tierney on this one.)

By James F. Tierney

In the bill intended to authorize three casinos in Massachusetts, Deval Patrick has quietly slipped in a provision that would ban online gambling – and subject players to “jail terms of up to two years and $25,000 fines”. Over at his blog Media Nation, Dan Kennedy explains Patrick’s cynical ploy to protect future state tax revenue – and why Connecticut’s casinos will implement their own anti-competition measures. (In July, Wendy noted her ambivalence about bringing casinos to Massachusetts.) It will be interesting to see whether this unprincipled (and fundamentally anti-freedom) provision remains in Patrick’s bill. See Reason's Hit and Run for more.

By James F. Tierney

We wanted to post a brief follow-up on Harvey's argument about Michael Mukasey and whether waterboarding is torture (it is). MSNBC host Keith Olbermann explains that Mukasey's dissembling equivocation is a result of Bush's desire to cover his own legacy. Olbermann is right, and it does this while also serving the purpose noted by Harvey -- protecting an "advice of legal counsel" defense in the event of future prosecutions.

(Update, Nov. 12, 2007: this post has been edited from the original.)