Opinio Juris

February 27, 2008
San Francisco, CA

The Billboard Liberation Front today announced a major new advertising improvement campaign executed on behalf of clients AT&T and the National Security Agency. Focusing on billboards in the San Francisco area, this improvement action is designed to promote and celebrate the innovative collaboration of these two global communications giants.

“This campaign is an extraordinary rendition of a public-private partnership,” observed BLF spokesperson Blank DeCoverly. “These two titans of telecom have a long and intimate relationship, dating back to the age of the telegraph. In these dark days of Terrorism, that should be a comfort to every law-abiding citizen with nothing to hide.”

AT&T initially downplayed its heroic efforts in the War on Terror, preferring to serve in silence behind the scenes. “But then we realized we had a PR win on our hands,” noted AT&T V.P. of Homeland Security James Croppy. “Not only were we helping NSA cut through the cumbersome red tape of the FISA system, we were also helping our customers by handing over their e-mails and phone records to the government. Modern life is so hectic – who has time to cc the feds on every message? It’s a great example of how we anticipate our customers’ needs and act on them. And, it should be pointed out, we offered this service free of charge.”

Commenting on the action, and responding to questions about pending privacy litigation and the stalled Congressional effort to shield the telecoms from these lawsuits, NSA spokesperson [REDACTED] remarked: “[REDACTED] we [REDACTED] condone [REDACTED] warrantless [REDACTED], [REDACTED] SIGINT intercepts, [REDACTED] torture [REDACTED] information retrieval by [REDACTED] means necessary.”

And after comedy, there is farce. With no discernible comedic intent, a number of lawyers and law professors have reprised roles from Kubrick’s famous film. Insisting that the war on terror is too important to be left to anyone other than the President, scorning opponents of torture as sissies afraid to muss their hair, and rapidly collecting promotions and personal citations, these lawyers are teaching America to stop worrying and love the waterboard – and the wiretap, and the ethnic profiling, and the indefinite detention, and all the other strategies of our new war that might be funny if they weren’t so deadly serious.

In the academy, the distinguished professors who advocate torture, executive absolutism, and other departures from the rule of law have been met with respectful, and inconsequential, disagreement. Indeed, if law professors such as John Yoo, Eric Posner, and Adrian Vermeule are today’s Ripper, Turgidson, and Kong, others in the legal academy are more akin to President Merkin Muffley. The balding, bespectacled Muffley is the only character in Dr. Strangelove who fully appreciates the moral implications of nuclear war, but his hesitancy and unfailing politeness render him a mostly ineffective counterweight to his war-mongering colleagues. He is the voice of reason, but that voice is timid and faltering. Today, academic counterparts to Merkin Muffley take exception to the bellicose program of the Professors Strangelove. But “debates” over national security in the American legal academy are choreographed events among gentlemen, usually featuring excellent sportsmanship all around. Neither side wins or loses; everyone shakes hands at the end; and everyone keeps his job, his viewpoint, and his dignity.

It is unlikely that the apologists for torture and executive absolutism will persuade many others in the legal academy to join their cause. But that is not the point. The Professors Strangelove play to an audience beyond the academy. They provide a degree of intellectual legitimacy to an ideology and a political program that has been developed, for the most part, outside the ivory tower.

Munaf's habeas petition is one of two brought by U.S. citizens detained in Iraq set to be argued before the Supreme Court later this month (and in which I co-authored an amicus brief in support of the federal courts' jurisdiction).

Significantly, the distinction between Munaf and the other detainee — Omar — relied upon by the D.C. Circuit was Munaf's conviction by the CCC-I... the lower courts concluded that, where the U.S. citizen-detainee had not been tried and convicted (Omar), there was jurisdiction; where he had, there wasn't (Munaf).

If Munaf's conviction has now been reversed, that has the potential to change the whole complexion of the two cases; now, both present a challenge to "pure" executive detention, without the wrinkle added by Munaf's conviction (subsequent to the filing of his habeas petition). Indeed, Munaf's almost becomes the stronger case, since his, unlike Omar's, is not in the posture of a grant of a preliminary injunction...

UNITED NATIONS (Reuters) - Cuba signed two U.N. human rights pacts on Thursday that long-time president Fidel Castro, replaced by his brother just four days ago, had refused to endorse for more than three decades.

But the communist-run island's foreign minister said after signing the documents at U.N. headquarters in New York that Havana still shared the reservations expressed by Castro about the pacts and would formally record them in future.

[snip]

When Cuba announced it would sign the pacts, Raul Castro was already governing on behalf of his ailing brother, who was still nominally president.

Two days later, Fidel Castro reprinted objections he had made in 2001. He said the political rights pact could be used as an instrument against Cuba by "imperialism", while two articles in the economic, social and cultural accord were unacceptable.

The first, establishing the right of workers to have independent trade unions, was fit only for capitalist countries, he said, while the second, on education, would open the door to its privatization.

On Thursday, Perez Roque said the Cuban government "shares totally the point of view expressed by ... Fidel Castro", but that this did not contradict the decision to sign.

He said that on signing he had handed the United Nations a statement saying that on "the scope and application of several of the elements contained in these international instruments, Cuba will register those reservations or interpretative declarations it considers relevant."

Munaf's lawyer, Joseph Margulies, said the Iraqi Court of Cassation reversed the conviction and sentence because it could not determine the role Munaf and other defendants played in the kidnapping from the court record. The Iraqi prosecutor supported the court's decision, Margulies said in an e-mail to The Associated Press.

Munaf is part of a pending Supreme Court case in which he and another naturalized American, Shawqi Omar, are trying to prevent the military from handing them over to the Iraqis.

The Bush administration argues that they should not be able to contest their pending transfers in U.S. courts since they are being held not by the United States, but by coalition forces in Iraq.

The administration, in its Supreme Court filing, said, "Munaf admitted on camera, in writing, and in front of the Iraqi investigative court that he participated as an accomplice in the kidnapping for profit of the Romanian journalists."

Munaf has said his confession was coerced.

AMY GOODMAN: Scott Horton, I wanted to go back to another story, one that we have covered that hasn’t gotten a lot of attention: Mohammad Munaf. He is the Iraqi American who has just been sentenced to death also. Can you talk about his case?

SCOTT HORTON: Well, I was astounded by that, when I first heard a report about it... So I spoke with the defense counsel. I also spoke with a bailiff at the court about it, to find out what had happened in this proceeding. And what they all described — in fact, completely they all had exactly the same account of what happened — was shocking.

They say that he was brought into the courtroom, Mr. Munaf, by two American officers — one they described as, quote, “the general”; the other they described as a man named Lieutenant Pirone. He was brought before the court. The court had announced, prior to session, that reviewing the evidence of the case, he had concluded that he would dismiss the charges, that there were no substantial charges, and that at this hearing, that would be a conclusion to the affair, there would be a dismissal.

[snip]

SCOTT HORTON: ... And then, the account is that this American lieutenant stood up, began arguing very loudly with the judge, saying it was unacceptable that this man be dismissed, that he had to be convicted, and moreover that he had to receive the death sentence. And the American whipped out a piece of paper saying he was there speaking on behalf of the government of Romania and the government of Romania demanded the death sentence.

Afterwards, there was a private discussion, I’m told, between the Americans and the judge. The judge emerged from this ashen-faced, looking very upset, and then proceeded immediately to convict the man and sentence him to death.

And subsequently, the government of Romania reacted, saying they knew nothing about this proceeding and they certainly did not authorize an American officer to stand up in the court and demand the death sentence. In fact, the government of Romania does not endorse the death sentence. So there’s something very strange going on about this case.