- On Hamdan v. Rumsfeld (548
U.S.___; 126 S. Ct.2749; decided June 26 2006) Goldsmith believes the result is okay but the analysis was not. This was the case that affirmed that the President was not above the law and that the military commissions set up to try the Guantanamo detainees were unlawful because they violated the Uniform Code of Military Justice and the 4 Geneva Conventions. For Linda Greenhouse coverage of the decision, click here. For excerpts of the Justices’ opinions, click here. Goldsmith disagreed with the analysis, I think, because he believes that 1) we need new Congressional laws, new conventions, generally that in this new environment we need to go back and look at first principles; 2) that the Geneva Conventions do not apply to al Qaeda; and 3) that the decision made the Geneva Conventions apply to a thing, a non-state actor, which it was not meant to apply.
- It’s too easy to say that torture is bad for 2 reasons. The first reason is that there is a very technical definition of torture that is both express and with contemplative and well considered loopholes. For example, the law says that “prolonged mental harm” is impermissible. The word “prolonged” was added to permit and allow non-prolonged mental harm. This loophole was a deliberate loophole. The second reason I did not catch. My notes say, “If at all that we engage with torture, coercive interrogation techniques” Sorry.
- Re testimony of Attorney General nominee, Mukasey. His view of law is terribly important and fraught. In the past, the state of war was temporary and discreet and defined in time. We are in a state of war; that’s not just rhetoric. All three branches of government have in legal terms - affirmed the use of the term war. Great power should be exception not rule. The Presidency needs 1) power and 2) intense accountability. Goldsmith added that Mukasey didn’t say much in his confirmation hearings.
- A questioner posed that Al Qaeda is not just killing for killing’s sake. And he suggested that fear mongering – that their terrorists are nihilistic and simply without purpose – affected the interpretation of law. It was an interesting exchange because the questioner and Goldsmith were on different planets. Goldsmith didn’t accept the premise of the question which was that the emotional reaction to this culture of fear affected the interpretation and application of law. Goldsmith acknowledged right off that Al Qaeda had political goals and implied, so what? When the questioner pushed that such climate changes law, Goldsmith said not really. The exchange amused me; many females have a story from law school of being told that emotion and passion have no place in the law.
More to come.