On the front page of today’s Boston Globe, higher-education beat writer Peter Schworm reports on the emerging power struggle between, on the one hand, universities that boast increasingly large endowments, and on the other, members of Congress. Several politicians have proposed using the tax code to pressure those institutions to use more of their endowment money for decreasing the sky-high costs of private college educations, making such educations more affordable to working class and poor families.

The universities claim that they need to hold on to the money for a rainy day – and that while investment results and alumni donations have proven healthy in recent years, they are unlikely to keep up that pace. Congressional representatives counter that they have granted favorable tax status to donations to universities (the donors deduct them from gross reportable income for income tax purposes) and to endowment portfolio investment returns (which are non-taxable, as for all certified charitable and educational institutions). On this view, the public interest requires that the universities’ largesse, which can be credited in part to this preferential tax treatment, be devoted to socially beneficial purposes in real time.

If those are the positions, that means that there’s a lot of misunderstanding on both sides of the debate.

Politicians inadequately appreciate how government mandates as to how private institutions must spend their money pose a great potential for mischief. As happens altogether too often when the government seeks to exert control in exchange for doling out public funded largess, catastrophic failure can result. University lawyers already face hassles in wading through bureaucratic requirements and dictates that make traditional educational values take a back seat to government mandates. For example, colleges have often wrongly interpreted government regulations prohibiting “harassment” of various kinds as trumping free speech and academic freedom – even where these values are most important to preserve in an educational context. And the general counsel of on Ivy League school a couple of years ago complained to me that he spends more time trying to understand government regulations than on any of his other duties.

And for their part, universities are inviting government intervention by acting as if they were business corporations. Their behavior certainly quacks like the proverbial duck, as colleges are morphing slowly into the model of business corporations, increasing their coffers while decreasing the quality of their product (which is supposed to be the traditional educational mission, not the promotion of the “brand”). Presidents of colleges and universities have increasingly become fund-raisers and overseers of institutional expansion, rather than educational leaders. This week’s Chronicle of Higher Education, for example, reports mind-boggling recent fund-raising figures (subscription required), with huge annual takes from alumni and other donors despite record-breaking multi-billion dollar endowment investment returns. The article reports that

“Stanford University raised the most of any institution, $832.3-million, followed by Harvard University ($614.0-million) the University of Southern California ($469.6-million), the Johns Hopkins University ($430.5-million), and Columbia University ($423.8-million).”

Locally, Harvard is planning an expansion into Allston, while Boston College intends to alter part of Brighton near its own campus.

A more recent phenomenon is equally indicative of the direction in which colleges and universities are intent on heading. Recent reports in The New York Times (here and here) tell us that an increasing number of American universities are opening branches abroad, particularly in the oil-rich sheikdoms of the Middle East. Given that these monarchies and oligarchies are not the most obvious and friendly environments for liberal arts institutions -- which are supposed to operate under conditions of academic freedom -- one naturally has a strong suspicion that the universities are doing it for the money, as well as for whatever other commercial and corporate advantages accrue to spreading one’s “brand” abroad.

Remember, too, that former Harvard President Lawrence Summers was forced out of his position by faculty who were upset at his remarks on science, education, and culture. (I wrote about that campus putsch in the Boston Phoenix, here, here, and here.) The Harvard Corporation, a self-perpetuating group of six members with life tenure and near-absolute authority, caved in and sent Summers packing. They likely did it out of fear that the controversy might negatively impact fund-raising. Even the President of the nation’s richest and most powerful university did not have academic freedom when other “values” (such as the value of the $30-plus billion portfolio) conflicted. And when Summers tried to answer his critics shortly before his departure, his response came from the university’s public relations office, rather than from Summers himself. Talk about how corporate culture has overtaken academic culture!

If universities want to ward off government regulation – a goal with which I agree heartily – they need to begin acting like educational institutions once again. For as soon as they start heading down the corporate path, they should expect the kind of governmental regulation and intervention imposed upon business corporations. The allure of money, power and influence may be too tempting, however, so I wouldn’t hold my breath.

                                       -- Harvey Silverglate

By Harvey Silverglate

It’s unlikely that the pooh-bahs at the Bush Administration’s Department of Justice (DOJ) read any civil liberties column or blog, let alone The Free For All. But I can’t help but think that somehow this blog launched an idea when I suggested on February 8 that the DOJ sic its legal ethics watch-dogs from the Office of Professional Responsibility (OPR) on the DOJ lawyers who drafted the infamous “torture memos.” (Dan Kennedy certainly saw the connection!) My argument is that the blame for whatever illegal conduct was authorized by those bogus memos should be placed on those who deserve it: the lawyers who gave the bad legal advice, rather than the CIA agents and others who depended and acted on the basis of that advice.

And so I read with some satisfaction Dan Eggen’s Washington Post report indicating that the DOJ’s OPR had begun such an investigation. The first subject of the OPR’s scrutiny is Jay Bybee, the former head of the Office of Legal Counsel at the DOJ (and now a sitting federal judge for the Ninth Circuit Court of Appeals) who signed the infamous August 2002 memo (PDF). The key bit of chicanery deployed in that memo was the legal conclusion – breathtaking as a sheer matter of legal scholarship – that “physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”

The other subject of the OPR’s investigation is John Yoo, who is said to have actually drafted that piece of legal nonsense while serving as Bybee’s then-deputy, and is now sitting in a tenured position at the University of California-Berkeley Law School (having switched from being paid with our federal tax money to living off of the taxpayers of California). As a result of the legal advice given by these charlatans, human beings were subjected to waterboarding in 2002 and 2003, while others were subjected to stress positions and psychological torture techniques. Over at Balkinization, Marty Lederman published a series of critiques (see, e.g., here) of the 2004 memo that superseded and repudiated the Bybee memo – but which left the door open for torture to be used.

We will do our best to follow the OPR’s investigation, hard as it will be, since OPR investigations are notoriously secret, although in this instance the OPR has indicated that an unclassified version of its final report will be made public when it is delivered to Congress. Though the punishment visited upon a DOJ lawyer sometimes becomes public, neither Bybee nor Yoo is still a DOJ employee, so no formal intra-department discipline can be recommended by the OPR. Instead, the DOJ can refer the matter to state bar associations or other agencies in charge of disciplining lawyers for unethical conduct. If this investigation results at some point in discipline – whether a mild admonition or censure, or a more radical penalty like suspension from practice or disbarment – it is possible that the life tenure enjoyed by these two lawyers could be disturbed.

Federal judges, for one, “shall hold their Offices during good Behaviour,” according to Article III, Section 1 of the Constitution. This means that if they behave badly (a standard notoriously difficult to define but left up to the Congress), they are subject to impeachment. And every university or law school has its own standards for revoking tenure. Of course, bouncing a judge or a tenured professor presents serious questions of judicial independence for the former, and academic freedom for the latter. But, as I wrote in my last post, there’s a difference between publishing revisionist law review articles as a law professor – as Yoo has done under the protection of academic freedom, both before and after his stint at DOJ – and ignoring federal statutes and treaties while advising the Executive Branch on its legal duties. This distinction would likely be key in any effort to discipline or dismiss Professor Yoo, or unseat Judge Bybee.

The point is that there are myriad questions to be answered, both substantive (did Bybee or Yoo commit unprofessional or unethical acts? did they write their nonsense in bad faith?) and procedural (who decides, how, and what results from such findings?). This is a long but vitally important road to travel, since there should be consequences when a government lawyer has put his imprimatur on advice that the lawyer knew, or should have known, was contrary to federal as well as international law to which the United States has accorded treaty and legislative recognition. Traveling that difficult road would be well worth the effort in order to re-assert that this is a nation of laws.

As it is said, the wheels of justice grind slowly, but infinitely fine.

The New York Times is reporting that a group from Princeton has developed a way of reading encrypted data off of computer memory by literally freezing the data in place -- with liquid nitrogen -- before the data, in temporary storage, is erased. Private data thieves or government investigators could easily bypass sophisticated cryptographic systems with a cheap can of compressed air, potentially exposing private materials to unauthorized eyes. If the government were to use this technique to get around data security during sneak-and-peek operations, it would raise powerful fourth amendment concerns -- especially in the wake of a recent federal court ruling "that forcing [a] suspect to disclose [his encryption] password would be unconstitutional." (The Volokh Conspiracy has a good discussion of that ruling here.) Of course, the government theoretically has as much to fear from this development as citizens do -- at least where the computer memory is physically accessible -- since the bypass is uncommonly cheap and easy.

Harvey and I have an article on Simon Glik in today's Phoenix, following up on some of the post-trial coverage we've featured on this blog. In the piece we argue that the legislature needs to change the state wiretapping law in order to better guarantee robust citizen oversight of police and other public officials.

If you doubt that Alice in Wonderland is the best primer available for understanding the legal system, you might read Tony Mauro's latest piece in the Legal Times. The Supreme Court just denied certiorari in the case challenging the government's warrantless wiretapping program, meaning that though it didn't make a decision as to the merits of the case, it couldn't muster four judges who wanted to consider the legal questions. As a result, according to the federal Ninth Circuit Court of Appeals, you cannot bring a lawsuit to redress unconstitutional government eavesdropping on your phone conversations if you cannot prove that they listened in on you. But of course, you cannot prove they listened in because the evidence that would support your case is secret! It's a complete circle!

Actually, Alice in Wonderland isn't the only piece of fiction that sheds light on the legal system. Charles Dickens likewise hit the nail on the head in Oliver Twist: "The law is a ass, a idiot." But there's reason behind this judicial and executive branch madness -- to keep We the People ignorant of what's being done to us in the name of "protecting" us. With more protection like this, our democracy will be undone.

Over at the law blog Concurring Opinions, Daniel Solove points to an AP article reporting that “Amtrak will start randomly screening passengers' carry-on bags this week in a new security push that includes officers with automatic weapons and bomb-sniffing dogs patrolling platforms and trains.” Solove sees a parallel between this and the New York subway’s security push, which he says was “largely symbolic.” As the head of Amtrak said, “[t]here is no new or different specific threat” that led Amtrak to add the new security measures, lending credence to Solove’s conclusion. It’s not clear what effect random searches of passengers’ carry-on bags will have beyond simple deterrence, though that seems to be offset by the apparent decision not to screen checked bags. Forcing people to undergo random warrantless searches of personal property makes me a little queasy – and more likely to take Greyhound next time I’m going to New York.

    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.

I received a few e-mails yesterday from civil libertarian colleagues grumbling about the interview Antonin Scalia gave to BBC radio yesterday in which the Supreme court justice seemed to advocate mild forms of torture in a “ticking time bomb” scenario. Reuters has a good wrap-up here. Some have gone as far as to call for the associate justice’s impeachment for discussing in the news media matters either before the court or likely to arise in the near future.

Scalia’s conversation with the BBC seems to me, frankly, a reasonable, or at least arguably acceptable interview for a SCOTUS justice. He uses the term “so-called torture.” Some have taken umbrage, including me. But it’s technically true that some call, for example, waterboarding torture, and so, yes, it’s “so-called” by some. His views might be extreme, but the great American conversation surely has room for extreme constitutional views. He makes a distinction, for example, between pain inflicted as punishment, and pain inflicted coercively in order to get allegedly life-saving information out of a captive. It’s not a view most of us would like to see associated with American constitutional values, but it’s not beyond being laid on the table.

There is considerable controversy, and disagreement, over the extent to which a SCOTUS justice should lay out for public consumption his or her views on the great questions of the day, except in a formal, published court opinion. But, on the other hand, we want our public officials, including out judges, to be more transparent – hence, for example, the quest (thus far rejected by the justices) for television cameras in the Supreme Court argument chamber. On balance, I’m in favor of our getting to know our justices better.

I fear we may be dealing with a knee-jerk situation here. Many civil libertarians loathe Scalia because of his conservative stances on abortion and gay rights, but their animosity is somewhat misguided. As Scott Turow pointed in his thought-provoking New York Times Magazine piece “Scalia the Civil Libertarian?":

“In Kyllo v. U.S (2001), Justice Scalia, writing for the court, deemed police use of heat-seeking technology to detect whether marijuana was being grown inside a house a violation of the Fourth Amendment’s prohibition on unreasonable searches. In a 2004 opinion, Scalia spoke for a court majority in finding unconstitutional the widespread practice of using recordings or prepared statements to the police as a substitute for the testimony of unavailable witnesses. And last term, supported by the court’s four more liberal justices, Scalia held that a defendant wrongly deprived of the lawyer of his choice gets a new trial, no matter how overwhelming the evidence of his guilt.”

In truth, what irks me about interview is not Scalia’s statements on torture, but rather the continued discussion of the “ticking time bomb” fallacy. This is an utterly unrealistic (has it ever happened?) theoretical scenario that makes it sound like the use of torture is really justified. In fact, as I suggested a few years ago in a Boston Phoenix column in which I take on Professor Alan Dershowitz’ similar argument, it’s a bogus example with a much more sensible solution than the institutionalization of judicially-authorized “torture warrants.” So my problem with Scalia’s mouthing off on torture is not his giving the public a better idea of his views, but my difficulty in getting him to debate me, because he’s simply wrong.

By Harvey Silverglate

    Last Friday, I wrote in this space that there are ample grounds for launching ethics investigations against the Bush Administration lawyers who wrote formal opinions authorizing various “coercive interrogation” techniques that long ago overstepped the lines – a bit vague here and there, but not altogether unfathomable – the law uses to define torture. There is no prohibition – at least in theory – preventing investigations against lawyers if investigators can prove that the legal opinions the lawyers wrote are so far off the mark that one can confidently and reasonably conclude that they wrote their advice in bad faith. That kind of conclusion would be supported by evidence that the lawyers gave their advice not so much to inform and educate the agency operatives, as to give them legal cover and, concomitantly, the defense of ‘good faith reliance on the advice of counsel’ in case they were ever prosecuted for violating anti-torture statutes.

    And last month, I argued that the Department of Justice’s prosecution of a Connecticut lawyer for obstruction of justice – for deleting child pornography from a client’s computer – provided a good preview of how the Department would treat the CIA’s destruction of interrogation videotapes, so long as they applied the same principles to DOJ lawyers as to outsiders.

    Lo and behold, just this week the DOJ echoed this storyline when it indicted a well-respected Florida lawyer for providing legal advice to a second lawyer that the second lawyer’s acceptance of a large legal fee from an alleged drug kingpin was legal. (It is against the law to knowingly accept money acquired in the drug trade.) The DOJ prosecutors alleged that highly-regarded Miami attorney Ben Kuehne – who just happened to represent Al Gore in the legal dispute over the outcome of the 2000 election, when the Supreme Court installed that election’s loser in the White House – wrote the opinion in bad faith, in order to facilitate the acceptance of the fee by the kingpin’s high-profile trial lawyer, Roy Black.

    Bloggers and other commentators are just beginning to focus on the increasingly obvious link between the DOJ’s war on lawyers and its war on civil society more generally. For various reasons, ranging from the brazen stonewalllng of Attorney General Michael Mukasey to the administration’s closely-held true-believer attitude toward its claims of expansive Executive power, DOJ officials are reluctant to call “coercive interrogation” by its rightful name – torture. If they will not do that, they are even less likely to prosecute or start ethics investigations against government lawyers who authorized torture techniques that lawyers, legal scholars, and laymen all recognize are illegal and immoral. (Of course, as I noted earlier, state bar authorities may arguably commence ethics investigations of lawyers for transgressions committed while they were in federal service.)

    In his own take on the connection between the Kuehne prosecution and the torture memos, Scott Horton explains that in “United States v. Altstoetter[,] … two officials of the [Reich's Ministry of] Justice … gave erroneous advice under international humanitarian law which led to more than a thousand persons being tortured or shot,” leading to their conviction at the Nuremberg war crimes tribunal in 1947. “And in fact the lawyers got off lightly,” he writes: facing “[t]en years … they were released after seven years for good behavior.”

    So maybe prosecution is in order, given the legal precedent for it. But let’s be generous and say that prosecution would be overkill – or let’s be pragmatic and say that in this political climate it simply won’t happen. But if a respected Miami lawyer can be indicted for writing a legal opinion – which many Florida lawyers believe to have been written in good faith – on a drug-money question, then surely government lawyers can and should have to undergo, at minimum, an ethics investigation for selling out themselves, the legal profession, and American politico-legal values in order to tell Bush and Cheney that they could torture prisoners to their hearts’ content.

            The progress of freedom and legal equality is measured in sometimes subtle ways.

            A couple of days ago, I received in the mail my monthly copy of OUT magazine, a publication aimed toward the gay community but having articles of more general interest. It came wrapped, as it always does, in an opaque gray plastic wrapper, with no indication on the label as to the name or nature of the publication within. But this time it came with a notice inscribed on the wrapper:

            DROP PLASTIC WRAP.
            NOW YOU MAY OPT TO GO-GREEN AND
            DROP THE PASTIC WRAP ON THIS MAGAZINE
            GO TO: www.lipmagazines.com/plasticwrap AND
            CHOOSE THE NO-PLASTIC WRAP OPTION.

            A visit to the Website notifies the subscriber that choosing the option that avoids the wasteful plastic wrap entails a mailing label stuck on the magazine cover itself, allowing anyone seeing the magazine as it makes its way through the mail system and to ultimate delivery to the subscriber, to understand that a gay-themed magazine is being delivered to the subscriber. This seems to be a new phase of the effort to achieve not only an out-of-the-closet society, but a society in which the right to subscribe, and to read, is no longer to be hedged by the fear of subscribers and readers’ being outed or even merely pigeon-holed by his or her choice of reading material.

The next sign of progress in achieving gay equality will come when subscription and renewal letters from gay magazines, as well as fund-raising letters from gay rights groups, will stop referring to the recipients with such lines as “the need to support your own.” In fact, where equal rights are at stake, everyone is “our own.” The assumption that only gay people are interested in achieving full legal equality on the basis of sexual orientation, or that equal rights for the gay community does not have larger meaning to the entire society, bespeaks a narrowness that one fervently wishes will be overcome. Since straight folks contribute money to the gay rights cause, their loyalty to equal rights should be recognized in such fund-raising mailings.

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.”

I was sitting in Petsi’s Pies and Café in my neighborhood in Cambridge this morning, drinking a fabulous Cubano made by Jarad, musician and barista extraordinaire, and I nearly choked on the brew. The International Herald Tribune reported that “almost all biofuels used today cause more greenhouse gas emissions than conventional fuels when the pollution caused by producing these ‘green’ fuels is taken into account.”  This startling discovery comes from recently published studies in the reliable journal Science.

At first I thought it was a joke – some take-off on one of my favorite Woody Allen movies, Sleeper, in which Miles, our hero, wakes up after a 200-year sleep and overhears the following conservation between two doctors:

Dr. Melik: (listing items Miles had requested for breakfast): "... wheat germ, organic honey, and... Tiger's Milk."

Dr. Aragon: "Oh, yes. Those are the charmed substances that some years ago were thought to contain life-preserving properties."

Dr. Melik: "You mean there was no deep fat? No steak or cream pies or... hot fudge?"

Dr. Aragon: "Those were thought to be unhealthy... precisely the opposite of what we now know to be true."

Dr. Melik: "Incredible!"

            Of course, our federal government jumped the gun and provided substantial financial incentives for converting cropland to biofuels production, giving farmers a substantial incentive to feed our cars rather than our people. How and why is it that the government jumped into this without an adequate amount of scientific documentation? Well, I suppose the answer, should this be investigated, will turn out to be that the government acted for the reasons it usually acts – on the basis of lobbying pressure from industry, rather than on the basis of peer-reviewed scientific evidence. Isn’t this the way we’ve been doing a lot of things lately – elevating such factors as industry pressure, religious belief, ideology and such, over science and facts?

"If the rap song is bad enough to cause [teenaged rapper Christopher] Holder's arrest, why is it not bad enough to cause the arrest of the guy who made the recording? ... I say ... Book 'em, Dano. Book 'em all."

It sounds like Gibson supports the underlying law that got Holder in trouble (and would be used against other rappers in his professed ideal universe), though he doesn't explain why. Maybe it's simple syllogistic logic: Gibson thinks the speech was offensive, and offensive speech should be banned. But some people evidently find John Gibson offensive, as when he mocked actor Heath Ledger's death with homophobic jokes on the air. Under Gibson's framework, shouldn't Dano book him, too?