Monday, May 30, 2011

"Flood? WHAT flood?"

The libertarian approach to flood control?

H/t (via).

Friday, May 27, 2011

Who else is anti-gay? Pottery Barn???

The news that Miley Cyrus ragged on Rick Santorum for his homophobia is moderately interesting. What startled me is that her ragging was occasioned by the $13,000 given to his campaign by Urban Outfitters' president (chairman, whatever) Richard Hayne.

Say what? I thought you got a 5% discount at UO for being gay. Bizarre.

But apparently this Hayne guy is a big-time supporter of anti-gay legislation, etc. Possibly he derives a deviant erotic satisfaction from making such donations with money acquired in part from gay shoppers.

Sing, Clio, those who died young in your service

Having other business in downtown Jackson today, we dropped by the Tattered Pages bookshop in the Welty Commons, which merits the occasional visit from readers (and also sells coffee) (but is NOT open on weekends, alas). There we found a paperback of a book we last read some 20 years ago, J. Christopher Herold's biography of Mme de Staël.

Herold died relatively young, which was a pity, because he was a fine popular historian. His Age of Napoleon is a good little survey, with more than the usual attention to the culture of the day, and well-written. For ex:
Those who took a radical stand against the Revolution fell into two categories--the articulate and the sputtering. The latter, almost all émigrés who expected to be restored to their former rights and privileges simply because they were they, need not detain us here.
And in the Staël bio, he recounts one of the innumerable quarrels between that estimable lady and her harried lover, Benjamin Constant, who had just insisted that she marry him:
"Her fury," relates Benjamin, "was as great as her surprise. She rang the bell. Her children came in. 'Behold,' she said to them, pointing at me, 'behold the man who wants to ruin your mother by forcing her to marry him.'"

The children stared at the monster. Benjamin, putting his hand on Auguste's shoulder, came back with the retort magnificent: "Regard me as the vilest of men," he said, "if I ever marry your mother." At this point, Germaine "rose from her seat, threw herself on the floor with horrible screams, tried to strangle herself with her handkerchief--in a word, made one of those atrocious scenes that she can produce at will and which poor Benjamin cannot resist." Here was an opportunity to test experimentally whether it is possible to strangle oneself with a cambric handkerchief; instead of seizing it, Benjamin raised Germaine and calmed her with tender words....

Caption contest!

I'll start. OBAMA: "Uh, sorry, Dominique, but I don't think Michelle has ever worked in a hotel."


Thursday, May 26, 2011

Very possibly the worst dissenting opinion in the history of Mississippi jurisprudence

Dare v. Stokes (Miss. May 26, 2011) (Kitchens, J., dissenting).

According to the opinion, Dr. Dare has an affair with Mrs. Stokes, followed by the dissolution of the Stokes's marriage. Their property settlement initially says
Husband hereby covenants and agrees that he will not sue, nor file any lawsuit or any legal action in any Court of this State, or in any Court of any jurisdiction, against Wife, or any other person, regarding any matters relating to the dissolution of their marriage, including any suit for any damages, including, but not limited to, alienation of affection.
but husband moves unopposed to modify by removing the language I've bolded. Dr. Dare seeks to intervene, based on his interest in not being sued, but the chancellor (Hon. Marie Wilson) denies.

On appeal, every justice except one is able to figure out that a third party -- let alone, a third party in Dr. Dare's shoes -- has no cognizable interest in the Stokes's divorce settlement.

The only part I can't figure is how this case didn't go straight to the court of appeals.

It's not prostitution, it's slavery

Via Bookslut, a VF report on sex trafficking in America, focusing on a federal prosecution in Connecticut:
The unlikely trafficking-abolitionist coalition--consisting of secular social-justice advocates, faith-based groups, black activists, second- and fourth-wave feminists, liberals, conservatives, Democrats, and Republicans--shares a peculiar adversary in the form of trafficking skeptics, coming largely from the left. The Nation, for example, ridiculed the “‘sex slave’ panic,” and both Slate and City Pages questioned the alarming statistics published by the Department of Justice, the State Department, and non–government organizations such as ecpat and the Salvation Army. “All the numbers we have on trafficking are inaccurate,” avows Deirdre Bialo-Padin, chief of the domestic-violence bureau of the Brooklyn D.A.’s office. “They’re too low. It’s an underreported crime. Who is going to raise her hand and say, ‘Hi, I’m a trafficking victim!’ when her family has been threatened? With the right laws in place, we will get harder numbers.” For victim advocates, saying that trafficking in America isn’t a problem is akin to J. Edgar Hoover saying the Mafia doesn’t exist. Melissa Farley believes “we’re still in the Dark Ages with trafficking because, unlike incest, rape, and domestic battering, trafficking generates massive revenues—$32 billion a year worldwide.”
Girls 13-16 are quite popular with the johns, which the article -- untestably but, I think, correctly -- attributes in part to the American love affair with sexualizing young children.

Wednesday, May 25, 2011

When your standard is the very best, what's to heighten?

We were reminded today of that Miss. Supreme Court opinion in Bluewater Logistics, in which the Court renounced its "heightened standard of review" where the lower court adopted a party's proposed findings verbatim:

Yet our precedent provides little guidance as to how we are to comply with our duty to “heighten” our scrutiny – which could be read to require us to review a case more carefully or, perhaps, to apply a different, more stringent standard to our review of the facts.

But our duty already requires us carefully to scrutinize every case, so we reject the former. * * * Yet our duty requires us in every case to be as careful and as sensitive to error as we can be, and we cannot condone a standard that allows us to be less sensitive to error in one case than in another.
What reminded us of the case was today's 5th Circuit opinion explaining its stay of execution in the Robert Simon case. (Our compliments to defense counsel.)
Lastly, insofar as the Mississippi Supreme Court’s decision was based on its belief that Simon’s “medical records . . . reveal normal neurological findings at all times,” that belief is contradicted by the prison medical records themselves, which state that on January 7 Simon exhibited “[a]ltered neurological function” and “significant neurological changes.” A decision based on a clear-cut misapprehension of the evidence in the record is surely “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).
And that was in a capital case.

In which we get all judgmental

Via Cowen, the death of's manager, on Mt. Everest:
An Irish man who has died attempting to reach the summit of Everest did not know his wife had just given birth to a baby girl back home.

John Delaney, 42, from Kilcock, Co Kildare, is understood to have collapsed less than 50 metres from reaching the top and realising his ultimate dream.

He is the first Irish man to die on the world's highest mountain.

The climber, a managing director of an online market prediction company, died on Saturday but because his team was out of contact with base camp during the final stage of the trek it has only just been confirmed.

Mr Delaney - who also had two young sons, Caspar, three, and two-year-old Alexander - died without knowing his wife Orla, 39, gave birth to a girl last Wednesday. She is to be called Hope.

Orla's brother Liam Hurley said Mr Delaney lived for his family.

'The one person who can describe him best is the one person who can't speak at the moment, and that's Orla,' he told the Press Association.

'He was a generous, loving guy - the family came first for him. He adored his two children, and he spent as much time as he could with them. It's just a shame he's not going to get to meet the third.'
I'm sorry, but if "your family comes first" and you've got two kids with a third on the way, then what the hell are you doing climbing Mt. Everest?

Tuesday, May 24, 2011

Now, if he'd appointed a lolcat, I probably would've noticed sooner

Somehow, Haley Barbour appointed a new COA judge 10 days ago, and I'm just now finding out about it. Blogs are not always a substitute for reading the newspaper, even when that newspaper is as pitiful as the Clarion-Ledger.

... Seen on a local blog: "2nd District Chancey Court." Ain't they all?

Voices echo, This is what salvation must be like after a while

Bob Dylan is 70.

Monday, May 23, 2011

How to catch a rabbit

One of Sullivan's readers sends him an old joke from Russia:
The KGB, the FBI and the CIA are all trying to prove that they are the best at catching criminals. The Secretary General of the UN decides to give them a test. He releases a rabbit into a forest and each of them has to catch it.

The CIA goes in. They place animal informants throughout the forest. They question all plant and mineral witnesses. After three months of extensive investigations they conclude that the rabbit does not exist.

The FBI goes in. After two weeks with no leads they burn the forest, killing everything in it, including the rabbit, and make no apologies: the rabbit had it coming.

The KGB goes in. They come out two hours later with a badly beaten bear. The bear is yelling: "Okay! Okay! I'm a rabbit! I'm a rabbit!"
Almost as good as the one about Stalin's pipe. Of course, the Russians turned out to be rather innocent about how the CIA tries to catch a rabbit.

Friday, May 20, 2011

"The Great Writ is dead in this country."

Much is made of the “floodgates” that will open should the court exercise its authority to remedy the mistake made by us in Gilbert’s sentence. The government hints that there are many others in Gilbert’s position – sitting in prison serving sentences that were illegally imposed. We used to call such systems “gulags.” Now, apparently, we call them the United States.
Sizzling dissents from an en banc 11th Circuit decision holding that, although a man was mistakenly sentenced to some 10 years more than he merited under the Sentencing Guidelines, the AEDPA and "finality" forbid disturbing his sentence. The dissents argue that if AEDPA says that, then it's an unconstitutional violation of the Habeas Corpus Clause. Look for a cert petition on this one. (H/t.)

Thursday, May 19, 2011

A temple 7000 years older than the Great Pyramid

Göbekli Tepe ("pronounced Guh-behk-LEE TEH-peh") in southern Turkey, a strange conglomeration of stones up to 16 tons, and the earliest monumental structure yet discovered anywhere.

Wednesday, May 18, 2011

Supreme Court writing tips

Legal writing maven Bryan Garner interviewed 8 of the 9 then-sitting SCOTUS justices about good prose in briefs, and now his transcripts are online. BLT reports:
All the justices, in one way or another, urged lawyers to write succinctly and resist the urge to write to the maximum allowed length. Justice Stephen Breyer put it this way: "Don’t try to put in everything. Use a little editing, I would say. If I see something 50 pages, it can be 50 pages, but I’m already going to groan. And I’m going to wonder, Did he really have to write that 50 pages? I would have preferred 30. And if I see 30, I think, Well, he thinks he’s really got the law on his side because he only took up 30."
I used exactly that tactic in a recent MSSC appeal where the appellee had filed a grossly inflated brief. Hope it helped.

Our hero David Souter declined to be interviewed by Garner:
"I've never been satisfied with my own prose," he told Garner in a note. "Since I don’t think my own work is worth writing home about, I’d feel presumptuous telling other people what they ought to do."
Classic Souter.

(H/t Bashman.)

... Following the link, we find that (1) Justice Breyer likes Stendhal (could he be our new favorite justice? ... nah), and (2) Joseph Kimball, who writes the introduction to the transcripts, can't spell "Stendhal." Ironic.

... Ginsburg took Nabokov's literature class at Cornell, but graduated in 1954 and thus did not have Thomas Pynchon as a classmate.
He was a man in love with the sound of words. He taught me the importance of choosing the right word and presenting it in the right word order. He changed the way I read, the way I write. He was an enormous influence.
... Something I can agree with Scalia about:
Another one of my bêtes noires of legalisms is nexus. Yeah, nexus. What is it? It’s Latin for “connection.” You don’t make it more scientific at all by calling it a nexus.
Scalia also casts some doubt on Souter's modesty:
I think the biggest snoot on the Court used to be Harry Blackmun, and Harry and I joined forces to try to police the Court’s opinions [laughter]. On the current Court, I think probably David Souter is a snoot. Ruth is too polite to be a snoot, but she cares a lot about proper use of the mother tongue.

Anti-GOP slur of the month

From Elvis Elvisberg:
They have no beliefs, no philosophy, only resentment and tactics. They love America like Ike loved Tina.

Tuesday, May 17, 2011

Remind me to add "Fuck the NSA" to my e-mail signature line

Now that Obama's stood up to Pakistan, any chance he might stand up to the National Security Agency?

Jane Mayer fills us in on the bizarre prosecution of Thomas Drake. (H/t Ugh.) Too depressing to excerpt, but if you're interested in (1) the U.S.'s keeping copies of EVERY E-MAIL sent within the United States, or (2) the abuse of the Espionage Act to threaten a whistleblower with 35 years in jail, then you will not want to miss this one.

Friday, May 13, 2011

"Mitt Romney Haunted By Past Of Trying To Help Uninsured Sick People"

The coldest Onion article since "Pope Forgives Molested Children":
"Every day I am haunted by the fact that I gave impoverished Massachusetts citizens a chance to receive health care," Romney told reporters Wednesday, adding that he feels ashamed whenever he looks back at how he forged bipartisan support to help uninsured Americans afford medicine to cure their illnesses. "I'm only human, and I've made mistakes. None bigger, of course, than helping cancer patients receive chemotherapy treatments and making sure that those suffering from pediatric AIDS could obtain medications, but that's my cross to bear."

"My hope is that Republican voters will one day forgive me for making it easier for sick people--especially low-income sick people--to go to the hospital and see a doctor," Romney added. "It was wrong, and I'm sorry."

According to Romney, if he could do things over again, he would do everything he could to make certain that uninsured individuals got sicker and sicker until they died. Promising his days of trying to provide medical coverage to the gravely ill are behind him, Romney said that if elected president, he would never even think about increasing anyone's quality of life or trying to lower the infant mortality rate.

In addition, Romney repeatedly apologized for wanting to help people suffering from diabetes, Crohn's disease, and anemia. * * *

"The only solace I can take is in the hope that some of the folks I helped were terminally ill patients who eventually withered away and died," Romney added. * * *

I don't think I can vote for someone like that," Pennsylvania Republican Eric Tolbert said. "He says he's sorry, but how do I know that's the real Mitt Romney? What happens if he gets elected and tries to help sick people again?"

Thursday, May 12, 2011

When the statute does not fit the desired result, it must be discarded?

Mississippi’s Speedy-Trial Statute -- which already is one of the most lenient statutes of its kind in the country -- does not need this Court’s help. If trying a defendant within 270 days is too onerous a burden, or if dismissal with prejudice in the wake of a violation is too harsh a remedy, Mississippi already has a legislative body, and it doesn’t need another one. The Legislature is perfectly free to do with the Speedy-Trial Statute what it will. We are not.
-- McBride v. State (Miss. 5/12/2011), Dickinson, J., dissenting.

Dickinson, joined only by Kitchens and Chandler, illuminates how the MSSC has gradually rewritten the statute, which is in no wise unclear or ambiguous. (LAW PROFS: You can get a good journal article about "precedential drift," which occurs in far more instances than just 99-17-1.)

He is pariticularly scathing about the Court's strange holding that, because McBride didn't raise the 270-day issue *before* the time ran, he somehow waived it:
... I know of no other statutory violation that must be raised before the violation actually occurs. * * * It is facially absurd to expect a defendant to raise the Speedy-Trial-Statute issue inside the 270-day window because, at that point, the statute has not yet even been violated. And beyond that, nothing in the statute even remotely suggests that a defendant will be deemed to have waived the statute unless he demands a speedy trial within some arbitrary time frame. This statute is really no more than a statute of limitations. Just as a cause of action for trespass must be commenced within two years of the offending action, a criminal trial must be commenced -- absent the statutory exceptions -- within 270 days of arraignment. I know of no other statute of limitation that must be raised before it
But, since Jerry McBride molested his own daughter, it appears the Court is determined not to let him out, statute or no statute.

... In the practice-tip department, it's reversible error for the trial court to refuse to allow the defense to call its own witnesses on the basis that they were already called adversely by the plaintiff. Another Ashley Ogden reversal, this time from a $2.5M Judge Green judgment.

Tuesday, May 10, 2011

Gitmo "suicides" article wins mag award

Scott Horton's article on the Gitmo "suicides" has won the National Magazine Award for Reporting. (H/t.) We noted his article at the time. Doubtless the coverup will continue. Yay, Scott!

Torture: it doesn't just hurt the victim

Osha Gray Davidson, blogging at Forbes:
A top United States interrogator in Afghanistan says that torture played no role in locating Osama bin Laden, and that claims to the contrary by former Bush administration officials recently amount to “propaganda [that] degrades our intelligence operations more than any other factor I can think of.”

Such talk also creates blowback — unintended consequences — that can be deadly, he added in an interview. “Simply the idea of our interrogators using torture or coercion recruits jihadists, facilitators, suppliers, supporters, and even suicide bombers, against us and our allies,” he said.

The man, who can’t be named for security reasons, has nearly two decades of experience as a military interrogator and Human Intelligence (HUMINT) specialist. He interrogated suspected high-value targets at Guantanamo Bay, Iraq, and Afghanistan, where he is currently stationed.

“Listen,” he said, “waterboarding and/or other coercive techniques did nothing to contribute to our attempts to track down UBL (Usama bin Laden). What did succeed was weeks, months and years of diligent, laborious, and dedicated work – all within the bounds of legal and ethical boundaries….No torture, no waterboarding, no coercion – nothing inhumane – is considered a useful tool in our work.”

On the subject of blowback, he continued:

I cannot even count the amount of times that I personally have come face to face with detainees, who told me they were primarily motivated to do what they did, because of hearing that we committed torture. Even the rumor of torture is enough to convince an army of uneducated and illiterate, yet religiously motivated young boys to strap bombs to their chests and blow themselves up while killing whoever happens to be around – police, soldiers, civilians, women, or children. Torture committed by Americans in the past continues to kill Americans today.

The recent talk justifying waterboarding and other “enhanced interrogation techniques,” he added, can leave an indelible mark on intelligence personnel who are just entering the profession.

“If right-wing news outlets and partisan pundits or politicians are allowed to continue to spread their completely bogus claims that torture is effective,” he said, “then we will have corrupted the beliefs of yet another generation of new intelligence recruits….It takes months and years of ‘intervention’ to get the next generation back on the track of quality work, specialization, and intelligence dominance – not quick and easy fixes. This is not an hour-long TV show.”
Via Sullyblog.

Practice tip

So your client's been served a subpoena duces tecum in a case where he's not a party, and has called you in a tizzy because of the long, absurd list of documents he's supposed to produce. Do you need to file a motion to quash and set an emergency hearing?

Not in Mississippi state courts, according to MRCP 45(d):
The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance, if such time is less than ten days after service, serve upon the party serving the subpoena written objection to inspection or copying of any or all of the designated materials, or to inspection of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the material except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move at any time upon notice to the person served for an order to compel the production or inspection.
The burden to go to court is on the party serving the subpoena, not on the served party -- which makes sense. Arguably you don't even have to file the objections (tho I would anyway), just serve them.

This is pretty obvious on the face of the rule, but since three lawyers smarter than I am didn't know this the other day, it seems worth posting.

Thursday, May 05, 2011

Tomason again

Well, Wikipedia now has an article on Audrey Tomason, which I didn't write, and which says that she "is suspected" of being the Masri analyst, without however providing any citation for that claim. So let's see what happens with that.

... Ah, the article's creator is a Brit, and this humble blog seems to be quoted in the Daily Mail.
An internet blogger called Thus Blogged Anderson attributes Ms Tomason as the woman who was referred to in a story about a counterterrorism analyst who kept the German citizen Khalid al-Masri locked up for weeks because she had 'a gut feeling he was bad'.

The woman, who they referred to as Frances on request of the CIA because her first name was 'too unusual', was reported on this year as someone who 'regularly briefs Panetta'.

The article by the Associated Press said this about Frances, who Thus Blogged Anderson believes is Ms Tomason: 'At the Counterterrorism Center, some had doubts that el-Masri was a terrorist, current and former U.S. officials said. But Frances, a counterterrorism analyst with no field experience, pushed ahead.
They also quote someone who knows what he's talking about:
Michael Barrett, a national security expert and principal at strategy firm Diligent Innovations, suggests that the photograph outed a sensitive national security employee.

He said: 'You can make a reasonable deduction that she's a member of the intelligence community. Is that a story [the White House] wants to put out there in public? The fact that we can see her face could potentially jeopardize her career.'
Ah, no. The fact that the White House released her name could, though. What was wrong with "unidentified person"?

... What *other* kind of blogger is there than "internet blogger"?

... Salon picks up on the Tomason Wikipedia article, "based on an unverified blog post published Wednesday that shakily equated Tomason with 'Frances,' the 'counterterrorism analyst' cited in this AP piece about the 2003 kidnapping of Khaled el-Masri." Sounds about right, except for the article's failure to cite that shaky blog post.

... Wikipedia has now scrubbed the article of its assumption that Tomason = Frances, which on the current state of facts seems entirely proper. I'm still guessing it's she, but it remains just that, a guess.

... To clarify a point from the previous Tomason post: "Frances" was in charge of one of the units tasked specifically with tracking down OBL and similar worthies. She personally briefed Panetta. It would be, on first sight at least, odd if she were *not* in the Situation Room during the OBL raid. So, if Tomason isn't "Frances" ... then where was Frances?

... Sullivan posts the front page of a Hasidic newspaper that photoshopped not only Tomason, but Hillary Clinton, out of the photograph. Creepy. "Could be sexually suggestive." Granted, considering the asshole commenters at the Daily Beast's "mystery woman" article, they aren't far wrong, but the fault lies with the men doing the suggesting.

Wait, is that other girl Luke's sister too?

Yesterday, May 4, was apparently "Star Wars Day," which is just the nerdy sort of factoid I should have at my fingertips. Hmph. Belatedly, via TNR, this link to the 30 best behind-the-scenes shots.

Dubya: not getting any brighter

So this NY Daily News report suggests:
George W. Bush won't be at Ground Zero with President Obama today "in part because he feels his team is getting short shrift in the decade-long manhunt for Osama Bin Laden," the New York Daily News reports.

Said a highly-placed source: "He viewed this as an Obama victory lap. He doesn't feel personally snubbed and appreciates the invitation, but Obama's claiming all the credit and a lot of other people deserve some of it."
Ah, so the way to complain you're not being included is to decline an invitation to be included?

That's so ... Palinesque.

Wednesday, May 04, 2011

Blog rolled

Judge Primeaux annotates his blogroll of Mississippi law-related blogs, including one "enigmatic, eccentric and quasi-anonymous" blogger who really is not worth reading "almost daily." But there are others worth checking out.

Audrey Tomason -- the woman who kept al-Masri locked up? UPDATED

A "mystery woman" appears in the published photos of Obama's entourage in the White House situation room during the Obama raid: one Audrey Tomason, "director for counterterrorism," whatever that means.

Could she be the woman who headed the Al-Qaeda Unit and kept that German citizen Khalid al-Masri locked up for weeks because she had "a gut feeling he was bad"? Who was reported this year as someone who "regularly briefs Panetta"?

... If it wasn't sufficiently obvious that this is a wild-assed guess, let me spell that out. Google doesn't show any connection, other than this blog post (man, it's a little scary how fast the Google is).

... The AP article our earlier post was based on provides some details:
At the Counterterrorism Center, some had doubts that el-Masri was a terrorist, current and former U.S. officials said. But Frances, a counterterrorism analyst with no field experience, pushed ahead. She supported el-Masri's rendition — in which the CIA snatches someone and takes him to another country. The AP agreed to the CIA's request to refer to Frances by her middle name because her first is unusual.
Assuming that to be true, then Tomason's middle name would be either dispositive or good as dispositive. (Is "Audrey" unusual?)
Even before the el-Masri case, station chiefs had complained to top CIA officials raising concerns about Frances' operational judgment. But she was one of the few analysts who had a deep knowledge of al-Qaida before 9/11, working in a former unit known as Alec Station created to track down Osama bin Laden.

In the nascent war on terrorism, Frances and her team were essential and had racked up successes.
Which, to be fair, is important. Fucking up on el-Masri could be outweighed by some really good stuff we can't know about. Maybe.
Frances now runs the CIA's Global Jihad unit, the counterterrorism squad dedicated to hunting down al-Qaida worldwide. She regularly briefs Panetta, making her an influential voice in Obama's intelligence circle.
Certainly sounds like someone who'd be in the Situation Room.

... BINGO:
Audrey F. Tomason Profile

Director for Counterterrorism, Executive Office of the President
Okay, that's her until someone tells me it isn't.

... Details on development of story as of 5/5/11 here. Basically, a UK newspaper article and a Wikipedia entry have been spun out of an anonymous, half-assed blog post. Weird.

Osama fought the law, and the law won -- with a little help from the SEALs

Regarding the legality of killing OBL in our midnight raid, I seem to be getting away with the following summation in an LGM thread:
(1) A “kill order” would be illegal if there was a practical alternative, such as capturing OBL. (I don’t mean “pragmatic” in the sense of do we want to try him etc., but “practical” in the sense of what the troops could reasonably do on the spot.)

(2) If OBL clearly surrendered when troops encountered him — hands in the air, say — and his capture was a practical alternative, then the troops had a duty to offer quarter.

(3) Troops have no duty to negotiate a surrender with someone who doesn’t immediately offer one, particularly in circumstances like this raid into Pakistan.

(4) Whether OBL was a civilian or not is not terribly important here. He’s a terrorist, hostis humani generis or however one spells that, and not entitled to avail himself of a soldier’s means when convenient, then hop back onto the civilian side when convenient. He was owed minimum protections under CA3, but no more.
And I agree with a VC commenter that, if international law or the laws of war hold that what we did was illegal, then that indicates a problem with the law.

The best objection is that we trespassed on Pakistani sovereignty, but that still isn't a strong objection. Either (1) Pakistan was harboring OBL, or (2) Pakistan is so dysfunctional that rogue army/ISI elements could harbor OBL, and warn him of any raid. In the former case, that's practically undeclared war on the U.S. In the latter, Pakistan is not a state whose rights we are bound to respect; it's a glorified Afghanistan, a failed state whose corpse hasn't begun to stink yet. Where normal legal processes don't obtain, other powers have the right to use military force. Obviously, had OBL been hiding in a London flat without the UK's knowledge, we wouldn't have sent in the SEALs -- we would've told the Brits and let them pick him up. That wasn't an option here.

Finally, Yglesias has a good point: if OBL really wanted to give the U.S. a problem, he should've walked into the U.S. embassy in Islamabad and turned himself in. Yow.

Tuesday, May 03, 2011

The evidence trail

Emptywheel has several interesting posts on the OBL search, and she discusses this report on the intel leading us to the courier who led us to OBL. Her encyclopedic recollection in this area allows Emptywheel (can I call her Marcy?) to integrate such reports into their larger context.

She breaks down the trail as the story reports it:
•Khalid Sheikh Mohammed, months after he was waterboarded and via “standard” interrogation, admits he knows someone named Abu Ahmed al-Kuwaiti, but denies he has anything to do with al Qaeda.
•Hassan Ghul, who was captured in Iraq in 2004, reveals that Abu Ahmed al-Kuwaiti was an al Qaeda courier
•Under CIA interrogation, Abu Faraj al-Libi admits he learned he was replacing KSM through a courier, but denied knowing al-Kuwaiti so strenuously CIA figured he must be important
•Via still unclear means, CIA learns Abu Ahmed’s real name
•US picks up Abu Ahmed talking to someone else it was monitoring, speaking from a location away from the compound
•US tracks Abu Ahmed back to compound
And observes:
Further, the narrative the AP tells now makes it even more clear how ineffective the CIA program was. The AP’s sources specify that KSM did not admit he knew al-Kuwaiti while being waterboarded. But that sort of dodges the whole issue: in response to his torture, according to KSM, he made up false locations for OBL. At the same time he was shielding information that could lead to OBL–and he continued to shield it under “standard” interrogation (again, it’s a pity FBI’s KSM expert never got to interrogate him). And then al-Libi, when he was in the CIA’s interrogation program, managed to shield information that same information even after the CIA recognized it was important.

The CIA program failed to do one of the most important things it set out to do, break through detainees’ efforts to hide OBL.
None of this of course is stopping the usual suspects from trying to claim that torture works. (And we tortured prisoners in other ways than waterboarding.)

Monday, May 02, 2011

Osama links

Some more OBL links:

-- Via Laura Rozen, the January arrest of a Qaeda financier in Abbottabad.

-- Steve Coll on NPR was acid in wondering how Pakistan would explain OBL's hideout. Emptywheel thinks along same lines.

-- Obama considered bombing the compound in March, but was concerned lest there be no hard proof of OBL's death.

-- The Twitter posts of an Abbottabad resident who saw the raid happening, tho of course he didn't know what it was until later. "Uh oh, now I'm the guy who liveblogged the Osama raid without knowing it." Via.

-- Last night's midnight briefing at the White House.

-- Here is Steve Coll expanding on those thoughts he expressed on the radio this a.m.
It stretches credulity to think that a mansion of that scale could have been built and occupied by bin Laden for six years without it coming to the attention of anyone in Pakistan’s Army.

The initial circumstantial evidence suggests the opposite is more likely--that bin Laden was effectively being housed under Pakistani state control. Pakistan will deny this, it seems safe to predict, and perhaps no convincing evidence will ever surface to prove the case. If I were a prosecutor at the United States Department of Justice, however, I would be tempted to call a grand jury. Who owned the land on which the house was constructed? How was the land acquired, and from whom? Who designed the house, which seems to have been purpose-built to secure bin Laden? Who was the general contractor? Who installed the security systems? Who worked there? Are there witnesses who will now testify as to who visited the house, how often, and for what purpose? These questions are not relevant only to the full realization of justice for the victims of September 11th. They are also relevant to the victims of terrorist attacks conducted or inspired by bin Laden while he lived in the house, and these include many Pakistanis as well as Afghans, Indians, Jordanians, and Britons. They are rightly subjects of American criminal law.
Yes, I'm sure DOJ will get right on that. Coll also points out that Obama's heavy emphasis on nailing OBL had real effects at CIA.

-- Jukeboxgrad, possibly the World's Greatest Volokh Conspiracy Commenter, has assembled some lovely quotes from conservative reptiles mocking Obama for his campaign pledge to attack OBL in Pakistan if need be.

-- OBL reported to've been the one using a woman -- his wife -- as a human shield, resulting in her death. Hey, what's the big deal -- that's why Allah lets you have four! [Rimshot]

-- Did WikiLeaks blow the name of OBL's courier? Good thing they were sooooo voluminous. See Emptywheel.

Sunday, May 01, 2011


Bin Laden dead, we're told. Supposedly killed by "a U.S. military asset" in mansion outside Islamabad; body in our possession. (CNN.)

... Most informative updating I've seen is at the Atlantic (not Sullivan, oddly).
11:10 p.m. May 1st is eight years to the day from President Bush's famed announcement of the end of major combat operations in Iraq while standing before a "Mission Accomplished" banner.

11:06 p.m. CNN is reporting that Osama bin Laden was killed in a mansion outside of the Pakistani capital of Islamabad.

Updated 11:02 p.m. CNN is reporting that the United States now has the body of Osama bin Laden. The news was first reported by Jill Jackson of CBS News and by the chief of staff to former Secretary of Defense Donald Rumsfeld.
That last is rather an odd note. Who's our military working for?

... CNN says it's told op wasn't a Predator strike. Pakistani ISI telling CNN it cooperated in the op.

... OBL was actually in Abbottabad (named after Major James Abbott of the British Army), some ways north of Islamabad and close to Kashmir. What was he doing there -- had he been making prior visits that led to his being tipped off? Was he something with Kashmiri terrorists?

... Abottabad compound built in 2005; property worth $1M but no internet/TV, residents burned trash rather than putting on curb; things like this attracted attention. Obama said to've approved the hit Friday morning while royal wedding going on. Helicopter raid by Navy Seals, took 40 minutes.

I'm a little tired of the "huh, he wasn't in a cave!" reaction. I doubt he was living there permanently, and obviously he was more likely to be hit when traveling outside the NW Province. But who the hell knows, maybe he's been there for years.

... Fox reports as a fact (no "sources say") that Obama just lied to the world:
The architect of the deadliest terror attack on U.S. soil was killed a week ago inside Pakistan by a U.S. bomb.

... Glenn Reynolds picked a bad moment to be a jackass:
Carter blew it with Iran, encouraging the Iranian armed forces to stay in their barracks, while Ayatollah Ruhollah Khomeini's radical Islamists (whom Carter thought of as "reformers") took power, and then approved the ill-conc hostage rescue mission that ended with ignominious failure in the desert. Obama, by contrast, could only wish for such success.
April 30. "Wingnut FAIL," says one commenter.

... It *is* beginning to seem that OBL was hiding out there for some time, which contradicts my thought and Bergen's suspicion about the Predators' influence:
This home, U.S. intelligence analysts concluded, was "custom built to hide someone of significance."

Besides the two brothers, the U.S. "soon learned that a third family lived there, whose size and makeup of family we believed to match those we believed would be with bin Laden. Our best information was that bin Laden was there with his youngest wife."
The same report says that Osama's body will be handled according to Islamic law, which is prudent. (Buried at sea, says WaPo?)

... Okay, OBL dead or not I still hafta get up at 5:30, so I'll leave with this.