If you are not already trained in how to do this, don't try this at home, as the saying goes. I am not fooling. If you can possibly get yourself to a law library or even a good public library, do that instead. Call them if you can't get there live in person. Many of them now have e-mail reference or IM style reference.
I often will include lists of links with my posts. These will, I hope, help you keep track of political issues, and help lawyers and librarians do the same. But please, do not try to use this blog for legal research. It might make an OK current events alert, but it is not an adequate tool for finding the law to answer your legal questions. For that, you need access to current statutes, regulations, cases, and possibly ordinances and one or more constitution. If you are not used to doing this research, you would save yourself time to ask for help at the start. It is complicated, but not rocket science.
There are some free, web-accessible research tools, but you need to be very careful of what you rely on. Some free, web-accessible legal materials are not reliably up-to-date. You can get access to legal materials at a state or county law library in the United States, or a state-funded law school library usually will have open access (except perhaps during exam time!).
Here are some good links for generally reliable Web resources:
The Legal Information Institute at Cornell University link. U.S. Supreme Court cases, NY cases, and many other types of legal materials. A good search engine.
Govt. Printing Office link All kinds of federal publications; statutes, regulations, reports, etc. Pretty good search engine.
Thomas database from Library of Congress link Especially good for legislation.
Washburn ForInt Law Index link. A great link page for lots of foreign and international law pages. Organized by alphabetical order.
Wednesday, May 31, 2006
People who are very bright, and assertive can do a lot of damage to each other, sometimes without meaning to. In order to get along, sometimes just in order to live with each other after arguments, there must be understood, if unspoken terms of proper behavior. Lawyers in court have rules of procedure. Librarians, especially law librarians, can be fully as argumentative. But we have no formal rules. How do we manage to get along?
It has occurred to me lately that it is a lot like a group of very dangerous animals, dragons, say, getting along together. I started thinking about this, frankly, regarding my teenage daughter. We are rather careful of each other, quite aware of how much we can hurt one another. Then, I realized that, on another level, this accounts for a lot of the cooperation in the law library community. We are kind to each other precisely because we are capable of being so dangerous to each other.
Lawyers don't have to go out of their way to "make nice" with each other. They have codified rules of procedure for their professional battles. Law librarians, on the other hand, have no such rules. We have to make overtures of friendliness and cooperation lest in vigorous argument, we ruin professional and personal relationships beyond repair.
Whatta ya think? Do anything for our reputation? Roar!
The shield with a heraldic dragon is from
www.grace-collection.com (I passed up all the fabulous dragon art on the web for something a little more traditional European).
Posted by Betsy McKenzie at 9:43 AM
Tuesday, May 30, 2006
From Cindy Chick at LawLibTech:
If you're a librarian, Karen Schneider's series on ALA TechSource, "How OPACs Suck", should be required reading. Certainly any vendor of library software should sit up and take notice. Library online catalogs have not adapted to the expectations of users familiar with features provided by sites such as Amazon, and that can't be good for libraries or vendors!I remember Karen Schneider (whose blog, Free Range Librarian, is essential, by the way) from the old dark ages of the Internet in the early 1990's, when I ran the NETTRAIN listserv for those of us out on digital frontier, trying to teach people about why they get used to things like email, ftp, and Gopher.
Here's more of Cindy's summary:
In Part 1, Karen starts by discussing the lack of relevancy ranking and discusses how it could/should be applied to library catalogs. We're all used to search engines that at least TRY to provide the most relevant results at the top of the list, but library catalogs make no such effort. According to Karen, the default order in most search engines is "last in/first out, in other words, whatever was most recently cataloged will come up first....
Part 2 offers Karen's wish list of features including spell-checking, support for popular query operators, duplicate detection, and sort flexibility, just to name a few. Search logging and reports, an administrative interface that let's you tweak the search engine and "best bets" are among my favorites....
The problem, as Karen describes it in Part 3, is that the catalog is based on the obsolete CARD catalog resulting in what she calls "literalisms." ...
Karen wants a revolution, and that may be exactly what we need. "It's time to dis-integrate the catalog, weave it into the Web, and push forward to the future." That's truly a vision for the future.
Posted by James Milles at 3:39 PM
The link above is to a terrific article in the Christian Science Monitor about how many different ways e-mails contribute to misunderstandings. I had seen a shorter version of the article in a Boston Metro and was surprised to see how much more was in the original piece. It is pretty important research. To summarize:
* Lack of visual cues and and tone-of-voice contribute to misunderstandings;
* The speed of e-mail encourages senders and recipients to write and respond more quickly, without due consideration;
* E-mailers can't develop personal rapport; even a short telephone call will improve e-mail communications later.
* E-mail communication can contribute to prejudices about minorities. Read the article for more details about studies involving white women mis-identified as Asian or Black for purposes of the study.
* E-mail can be especially pernicious in that both the sender and recipient can be certain they are understanding each other, when both are misundertanding. The article includes a graph from another study on e-mail communications.
I love to use e-mail. It is so efficient. I can send a whole bunch of people the same message at once. They all get the same info, and there is a record of what I sent. Terrific! But I have certainly run into the problems of being misunderstood and of hitting send when I should have waited and cooled off! Let's see if I can learn from my mistakes!
Posted by Betsy McKenzie at 12:29 PM
Apple v. Does, a California 6th District Court of Appeal ruling, just extended 1st Amendment style protections to un-named bloggers. Apple Computer sought to identify the bloggers who had leaked what it identified as trade secrets on upcoming new products. The trial judge allowed the discovery. The Court of Appeal issued a protective order. The link in the title is to Nick Anthis' Scientific Activist blog; tip of the hat, Nick!
Here is the ratio decidendi for overrulling the trial court:
The publishers [bloggers] moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.
The beautiful colored pencil apple illustration by Boyd Purdom is from www.minnesotaschoolofbotanicalart.com
Here are some links (many from Nick):
Wikipedia article with history of case: link
EFF FAQ link
San Jose Mercury News article link
EFF PDF of decision link
GPO Access links for the federal Stored Communications Act
18 USC section 2701 link
18 USC section 2702 link
18 USC section 2703 link
18 USC section 2704 link
18 USC section 2705 link
18 USC section 2706 link
18 USC section 2707 ** Civil Action link
18 USC section 2708 ** Access to stored information link
18 USC section 2709 link
18 USC section 2710 link
18 USC section 2711 ** Definitions link
18 USC section 2712 link
California Constitution, Article I, Section 2, Subdiv. b (Reporter's Shield) link
California Evidence Code Section 1070 link
Mitchell v. Superior Court (CA, 1984) 37 Cal.3d 268 link Rats! I tested this link and it doesn't work. I found it free on www.Findlaw.com, which is free, but you have to register. Go to CASES & CODES, and you should turn it up with the name and citation of the case.
Ambrogi's LawSites link
BoingBoing note link
First Amendment Project: Protecting Unpublished Information and Confidential Sources (including a handbook on the California Reporter's Shield Law) link
California Discovery & Reporter's Shield Law webpage link
Posted by Betsy McKenzie at 10:54 AM
Monday, May 29, 2006
In Flanders’ Fields
by Col. John MacCrae, M.D.
In Flanders’ Fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.
We are the dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved, and were loved, and now we lie
In Flanders’ Fields.
Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders’ Fields.
This copy from here.
The War Works Hard
by Dunya Mikhail
Translated by Elizabeth Winslow
How magnificent the war is!
Early in the morning
it wakes up the sirens
and dispatches ambulances
to various places
swings corpses through the air
rolls stretchers to the wounded
from the eyes of mothers
digs into the earth
dislodging many things
from under the ruins..
Some are lifeless and glistening
others are pale and still throbbing..
It produces the most questions
in the minds of children
entertains the gods
by shooting fireworks and missiles
into the sky
sows mines in the fields
and reaps punctures and blisters
urges families to emigrate
stands beside the clergymen
as they curse the devil
Posted by Betsy McKenzie at 8:28 PM
Symantec may have flaws that allow hackers to create "back doors" and seize control of a computer, accessing keystrokes, deleting files or implanting malicious code. Read the AP story from May 26, linked above. Symantec's own home page link does not address the issue; you have to go to an interior page. Slashdot, however reports that Symantec has posted a fix to its antivirus software link. Read more detail, ifyou want it at link So, if you use Symantec, here is the interior link listing affected products and patches.
Posted by Betsy McKenzie at 8:06 PM
Sunday, May 28, 2006
...former White House and Justice Department officials.
The officials said Cheney's legal adviser and chief of staff, David Addington , is the Bush a dministration's leading architect of the ``signing statements" the president has appended to more than 750 laws. The statements assert the president's right to ignore the laws because they conflict with his interpretation of the Constitution.
While the use of presidential signing statements began to expand during the Reagan presidency, former Reagan aides draw a distinction between that administration's use and the current use:
Douglas Kmiec , who as head of the Office of Legal Counsel helped develop the Reagan administration's strategy of issuing signing statements more frequently, said he disapproves of the ``provocative" and sometimes ``disingenuous" manner in which the Bush administration is using them.
Kmiec said the Reagan team's goal was to leave a record of the president's understanding of new laws only in cases where an important statute was ambiguous. Kmiec rejected the idea of using signing statements to contradict the clear intent of Congress, as Bush has done. Presidents should either tolerate provisions of bills they don't like, or they should veto the bill, he said.
``Following a model of restraint, [the Reagan-era Office of Legal Counsel] took it seriously that we were to construe statutes to avoid constitutional problems, not to invent them," said Kmiec, who is now a Pepperdine University law professor.
By contrast, Bush has used the signing statements to waive his obligation to follow the new laws. In addition to the torture ban and oversight provisions of the Patriot Act, the laws Bush has claimed the authority to disobey include restrictions against US troops engaging in combat in Colombia, whistle-blower protections for government employees, and safeguards against political interference in taxpayer-funded research.
Zowie! Read the full article.
Posted by Betsy McKenzie at 1:12 PM
Saturday, May 27, 2006
Akhil Reed Amar posts an interesting article at Slate online magazine (link in title), "Mr. Jefferson, Meet Mr. Jefferson: What the framers would say about raids on congressional offices." He analyzes Thomas Jefferson's thoughts, both in the Constitution, Article I, Section 6 (dealing with privileges of the legislature) link and Fourth Amendment link dealing with search and seizure. He also looks at Thomas Jefferson's A MANUAL OF PARLIAMENTARY PRACTICE (1812) link. Prof. Amar concludes that the privilege of Article I, Section 6 against arrest of a sitting member of Congress does not insulate them against criminal investigation or arrest:
So, what did the Arrest Clause actually privilege? Basically, it insulated a sitting congressman from certain civil lawsuits brought by private plaintiffs seeking a court order that would physically "arrest" the defendant, with the effect (and perhaps purpose) of removing the congressman from the floor and thus disenfranchising his constituents. As Thomas Jefferson explained in his famed Manual of Parliamentary Practice: "When a representative is withdrawn from his seat by summons, the people, whom he represents, lose their voice in debate and vote." The theory was that one private litigant should not be allowed to undo the votes of thousands.
Prof. Amar analyzes more issues -- read the article. He, however, goes on to remind President Bush of a parallel historical incident in the past, where King Charles I pursued representatives of Parliament into their building, intending to arrest them. This rash act, says Amar, did much to set off the bloody English Civil War which cost King Charles his head.
Posted by Betsy McKenzie at 7:37 PM
When I get completely exasperated by the current news, sometimes I take a break with far off galaxies. This time, I time-traveled. Will Rogers was an American original, an Oklahoman of part Cherokee descent. He was a master of trick lariat roping, and a political commentator and wit. Visit an official web page at link sponsored by Southwestern Bell. They include a rotating selection of his radio shows' transcripts, famous quotes, biographical information on Rogers and his wife, and on the Will Rogers ranch-museum. The website explains that interest in Rogers peaked due to books and plays focusing on him, and:
Another cause of renewed interest is an apparent parallel between today's peculiar times and the roaring 1920s and the depressed 1930s when Will Rogers brightened gloom with anecdotes and dispensed antidotes for mistaken public policy.
"We'll be the first nation in the world to go to the poor house in an automobile," he drawled about disparity between rich and poor during the Great Depression.
Politics was top target for pundit Will Rogers. An actual favorite son nominee for president in 1932, Will Rogers was a 1928 prank White House candidate promising only to "resign if elected." Decades later his wry platform promises remain fitting: "Whatever the other fellow don't do, we will."
His philosophical renderings appeared in six books, scores of magazine articles and 4,000 syndicated newspaper columns. His droll humor surfaced as adlibs in the 71 movies where he starred but seldom learned the script; in his numerous nationwide radio commentaries and in the Ziegfeld Follies where he chatted nightly with New York audiences for a decade.
Will Rogers, besides winning slots in the Guinness Book of Records for trick roping feats--he called himself the "Poet Lariat'--spawned unique irony and home spun humor that have spurred today's revival.
Take a break from worrying or being mad. Visit with a wise and funny man who knew how to help us laugh at ourselves. Other Will Rogers websites:
Another "Official Site of Will Rogers" link
Oklahoma humorist and flying enthusiast Will Rogers was voted into Aviation Week’s “Top 100 Stars of Aerospace” in a poll of members in the International Council of Aeronautical Sciences (ICAS) and its U. S. affiliate.Since Rogers died in a plane crash, hmmm.
Posted by Betsy McKenzie at 7:02 PM
Friday, May 26, 2006
During this time of war and division, here is a plea: put the Memory back in Memorial Day. I opposed completely the U.S. intervention in Afghanistan and even more the U.S. invasion of Iraq. However, it is one thing to oppose the government policy and another to turn my back on my fellow Americans who are doing their duty as they see it with great integrity and honor. Please take a few moments over this weekend, and especially on Monday, to remember the military, civilian support and medical workers who have been killed, injured and traumatized in every war and "police action."
This image is a memorial poppy at High Wood WWI cemetary in France, courtesy of Wikipedia.
I came of age during the end of the Viet Nam War period. I remember a great deal of division over how to treat returning Nam vets, partly because of terrible events like the My Lai massacre. The public was tired of Viet Nam and did not give the veterans any kind of welcome as they came home. But they did, finally, build the very moving Viet Nam Memorial Wall. I have visited this amazing memorial, and felt the emotional power of it. Perhaps the war of your youth always touches you the most. Poppies of Flanders Field must have meant far more to those who knew the young men whose death was symbolized, though reading the powerful poems of Wilfrid Owen and other WWI poets is very touching.
Here are some links about thinking on this Memorial Day:
Memorial Day Organization link
Includes many poems, links to veterans, MIA/POW organizations, Find a Grave, and an amazing variety of related organizations.
PBS National Memorial Day Concert link
Wikipedia Entry on Memorial Day link
Counter-Govt. Messages/In Support of Military/Warning
"The Ultimate Betrayal? Humvee Realities" by W. Thomas Smith in National Review link (Dec. 21, 2005)
"A Fatal Betrayal of the Military's Women" blog entry at Independent Women's Forum link Jan., 14, 2005, citing to Center for Military Readiness link which includes newer information now, including a pdf "CMR Policy Analysis Feb., 2006, Army Still Violating Policy and Law on Women in Land Combat" link
Looks Like CMR is an excellent cite for this topic.
Iraq News Network link
blogging soldiers from Iraq coming to terms with their own sense of betrayal.
Gold Star Families for Peace link
Cindy Sheehan's website; mostly links to her speeches.
Think Progress "Mission Accomplished By the Numbers" link
As of May, 2006, shocking numbers of numbers killed, injured, cost to taxpayers, approval ratings, and number of insurgents and daily insurgent attacks.
"Mission (Not Really) Accomplished" The Nation, May 4, 2006 link Includes reference to "failed state" index for Iraq and Afghanistan, developed by the Fund for Peace, link here for 2006.
Posted by Betsy McKenzie at 3:03 PM
In the late 1980s, when online legal research classes were first becoming a law school staple, a lot of professors and attorneys worried that students would neglect traditional legal research skills. Is this a real danger?
The reality is that the war is over, and the computer has won! That’s probably putting it a little too strongly, but we’re kidding ourselves if we think this generation of students is going to access the materials exclusively in hard copy. Most students in their late teens or early twenties are not working in a print environment. It is important for them to know what will work online, and what won’t.
Does TWEN help with that learning process?
TWEN provides a point of access to resources that a lot of students might otherwise ignore. It’s important that students know when to go to an encyclopedia, legal dictionary, law review, or other secondary source. Too often, students and attorneys waste time on wrong turns and dead ends in research, by heading straight to the case law, statutes, or other primary authority. Students come away from my course saying, “I never realized there was so much stuff out there!”
Posted by James Milles at 1:39 PM
Thursday, May 25, 2006
This morning I was making some changes to the OOTJ blog template, when I inadvertently goofed it up. Blogger has an annoying habit sometimes of truncating the template file while you're editing it, and that's what happened today. It all went kerflooey.
So, in fixing it, I took the opportunity to switch to a cleaner, more contemporary design. The downside is that I'm not sure whether the old RSS feeds, or email subscriptions, still work. You might need to resubscribe. If so, I apologize for the inconvenience.
Posted by James Milles at 1:38 PM
The FBI seized boxes of material from Congressman Jefferson's office investigating a bribery offense:
In a rare bipartisan action, House Speaker J. Dennis Hastert and minority leader Nancy Pelosi demanded yesterday that the Justice Department immediately return documents that were seized when federal agents raided the office of Representative William Jefferson as part of a bribery probe.
Pointing out that ``no person is above the law, neither the one being investigated nor those conducting the investigation," Hastert, an Illinois Republican, and Pelosi, a California Democrat, asserted that the Justice Department must cease reviewing the documents and ensure that their contents are not divulged. Once the papers are returned, ``Congressman Jefferson can and should fully cooperate with the Justice Department's efforts, consistent with his constitutional rights," the statement said.
The demands by Hastert and Pelosi further escalated a separation-of-powers conflict between Congress and the White House. The raid last weekend on the office of Jefferson, a Louisiana Democrat, was the first time in history that the FBI has executed a search warrant on the Capitol Hill office of a sitting lawmaker.
The Justice Department initially signaled an unwillingness to return the documents. But White House officials are concerned about the complaints of the congressional leaders and have pressed the Justice Department to find a way to placate Congress and defuse the controversy, according to a Justice official.
Many Republicans and Democrats contend that the unprecedented raid on a congressional office was unduly aggressive and may have breached the constitutional separation of powers between the executive and legislative branches of government that are meant to shelter lawmakers from administrative intimidation. However, legal scholars are divided on this issue, and some said yesterday that the raid does not violate the letter of the Constitution or subsequent rulings by the Supreme Court.
Read the rest of this article at the link above as reprinted in the Boston Globe or go to the
Washington Postwhere it was originally published. The number of gridlocks developing over constitutional questions of balance of power or separation of power is getting mind-boggling.
Posted by Betsy McKenzie at 8:00 AM
The Senate's immigration bill is nearing final compromises. The big job will be to work out the negotiations with the House. Read story on the link above.
Posted by Betsy McKenzie at 7:57 AM
Boston Globe article by Kathleen Burge on May 25, 2006 reports that four Massachusetts mayors are demanding that the state department overseeing telecommunications companies hold hearings. They want clear answers to the rumors about telecommunications giants allowing the NSA (National Security Administration) getting full tapes of all telephone conversations requested without warrants.
Evidently, Massachusetts may be the only state in the country that allows mayors to play such a role, thus forcing hearings to be public. The ACLU (American Civil Liberties Union), about 20 states and the FCC (Federal Communications Commission) are all involved in inquiries.
The citation giving the mayors this authority is M.G.L. 25, section 4a.
PART I. ADMINISTRATION OF THE GOVERNMENT
TITLE II. EXECUTIVE AND ADMINISTRATIVE OFFICERS OF THE COMMONWEALTH
CHAPTER 25. DEPARTMENT OF PUBLIC UTILITIES
Chapter 25: Section 4A. Hearings on change of rates or reduction in or discontinuance of service; time and place
Section 4A. Upon request of the mayor of a city or the selectman of a town, or of a member of the general court or of twenty customers of the company affected, a public hearing ordered by the department, to be held in connection with any change in rates or reduction in or discontinuance of service, shall be held in the city or town or area wherein the company affected does business or in which any decision of the commission would apply. No public hearing on a discontinuance of service by a common carrier of passengers by motor vehicle shall take place until the expiration of thirty days from notice thereof to the public in the city, town or area affected thereby, and such notice shall be given in the manner provided by section three of chapter thirty A. The department shall, at least fourteen days prior to holding any public hearing under this section, notify in writing the mayor of each city and the selectmen of each town in which the company does business of the time and place of such hearing.
Posted by Betsy McKenzie at 7:49 AM
Wednesday, May 24, 2006
Introduction: We use lots of words from biology to help us think about technology. We say "virus," for a fast-spreading, self-replicating bit of destructive code. Now, we are talking about the dangers of mono-cultures and the desirability of diversity. We are not talking about susceptibility to illness or the need for tolerance of other cultures. We are talking about forming too tempting a target for hackers, and being too vulnerable as an organization if struck. Higher education tends to want to limit ourselves to ONE type of every thing because it makes it so much easier to support. We might want to consider the desirability of enforcing monoculturalism in the IT realm....
Dan Geer, a security expert, began warning in 2004 that if everybody uses the same software, they will create a big, fat target for hacker attacks. First, he lost his job at Microsoft, who did not want to hear such analysis. Then, he got another job, and went on to write an article link in the online journal Perspectives about how Massachusetts' decision to use open source word processing would avoid the risks posed by Microsoft Word's monoculture. On May 19, Geer's predictions came true, and a virus emerged in Word documents, passed from computer to computer as documents are traded. See blog post below, or linked in title.
The Standardsblog, by technology attorneys Gesmer, Updegrove, LLP of Boston, on May 23, noted
Monocultures and Document formats: Dan's Bomb Goes Off
Tuesday, May 23 2006 @ 06:17 PM EDT
Dan Geer is an extremely well respected security expert. When he worries about something, people listen.
One of the things he has worried - and warned - about is the danger represented by IT "monocultures" - the situation that arises when everyone uses the same software, for example, and therefore everyone shares the same vulnerability to a computer virus or other security threat.
Just as the word "virus" has been borrowed from biology and provides an apt and vivid descriptor for its IT analogue, so also does the word monoculture function: think of the consequences of Irish potato blight, or of the wiping out of the American Chestnut tree, which once numbered in the billions in the forests of the American East and is almost extinct as a mature species.
Well, last November, Dan wrote a perspective piece for CNETnews.com, called Massachusetts Assaults Monoculture. In that article, he wrote:
As a matter of logic alone: If you care about the security of the commonwealth, then you care about the risk of a computing monoculture. If you care about the risk of a computing monoculture, then you care about barriers to diversification. If you care about barriers to diversification, then you care about user-level lock-in. And if you care about user-level lock-in, then you must break the proprietary format stranglehold on the commonwealth. Until that is done, the user-level lock-in will preclude diversification and the monoculture bomb keeps ticking.
As it happens, Dan's bomb went off a few days ago, with the breakout of the "Backdoor.Ginwui" virus, a malicious bit of code that Symantec introduced in an alert as follows:
It has been reported that Backdoor.Ginwui may be dropped by a malicious Word document exploiting an undocumented vulnerability in Microsoft Word. This malicious Word document is currently detected as Trojan.Mdropper.H.
The fact that Dan's expectation came true can hardly be a source of surprise. Indeed, the only curious aspect of the fulfilment of his prediction is that it took as long as it did to occur.
The reason, of course, is that hackers like targets that offer the most visible and dramatic results - and the bigger the better. If that target is unpopular (such as Microsoft), then again, so much the better. Thus it is that the more successful the software product, the more attractive it becomes. That's no criticism of Microsoft, or of any other vendor, but one of the regrettable costs of success.
Still, from the end-user point of view, it is an added burden on the value of the product in question. After all, it's one thing to have a target painted on your back and reap huge profits as a cost of doing business, and quite another to pay a premium price for a dominant product, and share the same risk without offsetting compensation.
It's also not a surprise that something as prosaic as a Word document should become the innocent carrier of a bit of malicious code. After all, stringent security policies (such as those my firm employs) already block jpegs, zip files and other vehicles known for problem code. But no one's policies automatically block all Word and Excell files, since those are what - for now at least - most people create, send and read (they do, of course, scan them for known viruses). This therefore elevates such files not only to the level of ideal vectors, but grants them the status of attractive challenges as well, capable of showcasing the chops of whatever hacker can succeed in employing them to pull off a high-profile assault.
All of which, as regular readers of this blog might assume, leads me to a conclusion that has something to do with ODF - a standard that is already supported by four major products, two of the proprietary persuasion (Sun's StarOffice and IBM's Workplace Managed Client) and two of the open source (OpenOffice and K Office) variety.
The risk profile between a monoculture and a diverse IT culture such as this is mathematically clear. By definition, even if ODF compliant products as a group were someday to trade marketplace shares with Microsoft Office, no individual user of any ODF compliant product would share the same degree of risk that every Office user has today, by reason of the fact that she would inhabit an IT culture with a much richer genetic pool. And no virus is likely to operate at the level of standardization at which these disparate products exist. As a result, just as a species with a diverse gene pool is likely to be able to withstand the assault of a new disease in far better form than a species of clones, so also would an IT environment based on multiple instantiations of ODF be more resilient than a monoculture of Office users, only more so.
Why more so? Because in nature, a virus isn't personal. No malign intelligence creates a natural virus to attack a specific target. But in the world of hackers, the opposite is the case.
The moral of the Dan's story, as well as the current reality of the Word Backdoor Ginwui virus is therefore clear: in IT diversity there is safety.
Another recent article I read spoke of the same monoculture problem as Apple computers begin to fall to virus attacks on their new Operating Systems which now are like those of DOS machines. They lost their diversity advantage that had always made them immune to such attacks, partly because they form a much smaller target. link here for a CNN version of a nice AP report. In brief, the report says
Among the other signs Macs are a growing target:
# The SANS Institute, a computer-security organization in Bethesda, Maryland, added Mac OS X to its 2005 list of the top-20 Internet vulnerabilities. It was the first time the Mac has been included since the experts started compiling the list in 2000.
# This week, SANS updated the list to warn against flaws in Safari, the Mac Web browser, which the group said criminals were able to attack before Apple could fix.
# The number of discovered Mac vulnerabilities has grown in recent years, with 81 found last year, up from 46 in 2004 and 27 in 2003, according to the Open Source Vulnerability Database, which is maintained by a nonprofit group that tracks security vulnerabilities on many different hardware and software platforms.
# Less than a week after Daines [Mac owner in the story] was attacked in mid-February, a 25-year-old computer security researcher released three benign Mac-based worms to prove a serious vulnerability in Mac OS X could be exploited. Apple asked the man, Kevin Finisterre, to hold off publishing the code until it could patch the flaw.
The Mac's vulnerability could also increase as Apple transitions to a product line that uses microprocessors made by Intel Corp., security experts said.
Posted by Betsy McKenzie at 3:06 PM
Those helpful law professors (and their student assistants!) at University of Pittsburgh School of Law's Jurist website! Hooray! Look at their wonderful current events page on the Immigration law changes and debate. They post short articles debating the ethics and also include loads of news and links. Bookmark it if this is an interest area! Link above!
I have included their lovely image of the Statue of Liberty with an American flag in the background to decorate this announcement. Thank you, guys!
Posted by Betsy McKenzie at 2:51 PM
Introduction:"American Law Schools, Meet the World," by David Fontana, is an interesting essay in The Chronicle Review, May 26, 2006. Fontana looks at how law schools have been slowly opening to new perspectives from other disciplines and other countries. He argues for more focus on foreign and international issues. Here are some helpful links to what legal education is doing with foreign and international contacts:
ABA Foreign Study Pages link
Includes not only lists of institutions but also the criteria the ABA uses to accredit programs. Includes semester abroad, summer abroad and study abroad in a foreign institution.
WashLaw Website link
Scroll down to Large bar for Law School Information, and choose, half-way down the list, "International Post-Graduate Degree Programs" to link directly to law school websites for information on these programs.
ForIntLaw at WashLaw link
Links out to websites for various foreign and international organizations and resources. Maintained by volunteers, organized by alphabetical order by country or organization name. This is just an index tool. What you find when you click on the link varies by whether the country or organization maintains a decent, current website.
ASIL (American Society for International Law) link
An excellent resource for international legal research and news.
ASCL (American Society for Comparative Law) link
Another good resource for research and news, includes excellent comparative, foreign and international law links, both U.S. and mostly European. Links also for online journals. Use this as a great starting place for research!
African Law Resources from Washlaw link
Asian Law Resources from WashLaw link
You probably want to look at specific countries as well as entire continents for both Africa and Asia. I just wanted to balance the very Euro-NA view of ASCL.
Caribbean Law Resources, WashLaw link
V-Lex: Latin American Legal Search Engine link
Hieros Gamos List of International Bar Assns., Other Organizations link
Look at the Left hand margin, for "International Law" or "Bar Associations" to begin.
Posted by Betsy McKenzie at 1:48 PM
Introduction:The May 26 issue of the Chronicle of Higher Education has an article by David Fontana on the insular nature of American law schools. It's interesting that this is still the case--we've all heard a lot of talk about the "global law school" and the "globalization of the legal profession." More form than substance?
American Law Schools, Meet the World
By DAVID FONTANA
It's long been a truism that the relationship of American law schools with the universities that sponsor them is more like a friendship with a stimulating colleague than an interaction with a boss. As with a colleague, the law school turns to the university for new ideas and enjoyable dialogue; unlike with a boss, the law school often chooses not to follow what the university says.
What has been less remarked, though, is how that tendency to go one's own way is especially marked in the way law schools relate to the world beyond American borders — in marked contrast to how the rest of the university does. While the rest of the American campus has welcomed perspectives from beyond our borders, the law school has been less interested.
Continued here: Some deans and professors are pushing to change that, but reform is by no means widespread. That is a shame. Law schools, at their core, educate students to face the world as talented and trained legal minds and today's world is a globalized one.
Why do law schools diverge so much from the rest of the university? Starting in the 1960s, colleges gradually began to respond to the massive expansion and diversification of their student bodies in two ways: by questioning universal theories of truth and fact, and by bringing in a greater variety of perspectives, both domestic and international. But American law schools have primarily questioned universal theories. While they have included welcome new perspectives, those have been almost solely American.
Law schools have questioned whether the law is a series of objectively discernible, purely logically based principles — what Justice Oliver Wendell Holmes once mockingly called the "brooding omnipresence in the sky." And, like campus central, they have looked at how the law affects different communities and their perspectives — but communities within the United States.
At the same time, the American law school, like the rest of the university, has been influenced, starting in the 1950s, by the behavioral revolution in the social sciences and the way it placed a priority on survey research, econometrics, and rational-choice theories. The work that came out of that revolution led to a variety of new scholarship that reflected more "universalist" perspectives, which were based on scientific methods that behavioralists believed applied to all questions social scientists wanted to answer.
The behavioral revolution has also changed the academic life of the law schools. Many law professors now have secondary degrees, and a large number of those secondary degrees are in fields particularly influenced by behavioral science, like economics or political economy. That has changed the way classes are taught in law schools, and the way scholars write on subjects in as wide-ranging areas as torts and contracts and criminal law. So, for instance, some of the most-famous articles on questions related to personal-injury law — a core portion of the first-year torts curriculum — ask a question very much in line with economics: What rules of personal-injury law are efficient?
Simultaneously, though, as in the rest of the university, the theories that question the classic Enlightenment premise of universal reason, rational behavior, and truth (core of the "posts" of poststructuralism and postmodernism) have also emerged in law schools. Critical legal studies, a scholarly movement based on the belief that law in many ways reflects and reiterates social hierarchy and inequities rather than universal principles, began to emerge in the late 1970s and generated much controversy on law-school campuses in the 1980s. It now includes movements like critical race studies and LatCrit, focused on how law affects and reproduces the experiences of specific racial and ethnic groups. However, critical legal studies and associated movements have paid most of their attention to life within American borders — to the plight of Latinos in the United States, for example, but not to any great extent to the law of Latin American countries.
It is certainly true that international human-rights law has become a hot topic in law schools. Fifty years ago, some of the best and brightest students and their faculty mentors were attracted to constitutional law because of the Brown v. Board of Education ruling, which promised to make constitutional law central to the American experience. In like fashion, many students and scholars today are attracted to international human-rights law because it promises to change the way governments do business, much like constitutional law did decades ago. Look at so many of the major issues we debate today — the treatment of prisoners in Guantanamo Bay, for one — and you'll see international human-rights law.
Still, rare is the basic American law-school class or American legal scholar who mentions foreign law in any significant manner. International human-rights law, for example, is usually dealt with in an elective class — not in the nuts and bolts of the law-school curriculum. The same is true of legal scholarship: The occasional article will mention non-American perspectives, but that kind of article tends to be rare, and rarely noticed. If one focuses on comparative law (the study of the law of foreign countries), as opposed to international law (the law governing relationships among countries), the classes and references decrease even more.
On one list of the most-cited contemporary legal scholars, produced by Brian R. Leiter of the University of Texas at Austin's law school, the highest ranking reached by a scholar studying foreign law to any significant extent is 32nd; nowhere on another list of the 50 most-cited scholars of all time, produced by the librarian and lecturer Fred Shapiro, of the Yale Law School, is there anyone with a substantial presence in comparative or international legal scholarship. In research that I have been conducting, I have examined the leading American law reviews and discovered that, between 1999 and 2004, only approximately one out of every 20 articles focused on foreign law to any significant extent. There are excellent foreign legal journals — the Oxford Journal of Legal Studies, for instance. Yet I found that journal cited far less than even very obscure American law journals.
Nowhere is the lack of international focus more pronounced than in the meat and potatoes of the law school, the courses it teaches and the casebooks (textbooks) it uses. According to one well-known 1997 study conducted by the International Legal Education Committee of the American Bar Association's Section on International Law and Practice, no more than an estimated 37 percent of law-school students at that time took any class in foreign (i.e., comparative or international) law. There are few signs that that has changed.
What about in the other classes law students take, the heart of the law-school experience, like in constitutional law or criminal law? As part of my research, I conducted a survey of more than 20 major casebooks in the subjects that law students are usually required to use. I found that, at most, a casebook of well over 1,000 pages would mention foreign law in a footnote or two or on a few isolated pages.
Globalizing the American law school is clearly on the agenda of many people. Close to two decades ago, when John Sexton became dean of the New York University School of Law, he promised to transform it into the first Global Law School Program. The University of Michigan Law School became the first law school to require a course in transnational law, commencing in 2001. Two years ago, Harold Hongju Koh — former assistant secretary of state during the Clinton administration and noted international-law scholar — was named dean of the Yale Law School. But, as my findings and those of others suggest, for all the potential for change that those particular breakthroughs promise, life inside American law schools more generally has hardly changed.
The best approach to make substantial changes would be to integrate foreign law into the entire American law-school experience, to use the so-called "pervasive method" (a phrase originally coined to discuss how legal ethics should permeate the law-school curriculum). That approach has been mentioned in passing over the years — most notably by the famous former Harvard law dean, Roscoe Pound, in a series of essays more than 70 years ago — and the new Florida International University College of Law, in Miami, has been experimenting with it on a grand scale. But it is time to make it the foundation of our pedagogy.
Such an approach is more realistic and desirable, I believe, than trying to substantially increase the number of new separate law-school courses in foreign law, or requiring students to take several such classes, or establishing foreign-law research centers. That kind of "maximalist" strategy is unrealistic because many law schools simply do not have the resources to create new classes, programs, and research centers. It is undesirable because it sends the message that foreign law is important — but separate. In fact, it has become increasingly relevant to domestic law.
Foreign law has become part of the daily legal issues lawyers face in their practice. According to some of the best available information, a study published in The American Journal of Comparative Law in 1998, well more than 10 percent of the revenue generated by the 100 largest law firms in the nation comes from foreign clients (and that figure is surely higher today), and more and more of our law graduates are working for those large firms. Even the small-town attorney now must face foreign legal issues — not with regularity, but with sufficient frequency. In family law, for instance, a lawyer might deal with a case where one of the parents lives or plans to live overseas, implicating international treaties regarding child custody.
If we integrate the study of foreign law into the curriculum, law students learning about the 1803 Supreme Court decision Marbury v. Madison and its potential establishment of American judicial review would also learn about the various permutations of judicial-review exercises around the world, at that time and today. A number of countriesfor example, Canadahave put parliamentary supremacy over judicial review, although that is beginning to change. The experiences of those countries could provide a contrast to the narrative about American judicial power.
Similarly, when we discuss our adversarial system of criminal justice, with its intense battles between prosecution and defense, with the judge as umpire, we could teach students about how other countries, like those in continental Europe, use different systems.
If such a method is to work, though, we have to change the professional socialization of the American law professor. There are notable postgraduate fellowships, like the Harry A. Bigelow Teaching Fellowships at the University of Chicago Law School, for recent law graduates considering a career in the university. American law schools might work with foreign universities to create similar fellowships for recent graduates interested in teaching — fellowships that would involve spending time overseas as well as at an American law school.
American law schools could also take greater advantage than they do today of the talented legal scholars who teach overseas, particularly those who have some American legal training. We could bring them on a visiting basis into American law schools, where they could teach classes and attend faculty workshops, influencing the thinking of their colleagues. Even better, law schools could establish permanent affiliations with foreign faculty members, having them teach a class on an American legal subject every year. The University of Michigan Law School has such a program; a few scholars, like Ronald Dworkin, a professor of law and philosophy at New York University and at University College London, do have joint appointments. But those are the exception, and we should move closer to making them the rule.
There is no reason for us to assume that the global cultural literacy that we make such a part of undergraduate education should end with the bachelor's degree. If the American undergraduate should know something about the French Revolution, then why should we be any less concerned about the American law student's knowing about the French legal system?
With all of the talk about Abu Ghraib and the Geneva Convention, the issue of whether our law can be separate from the law of the rest of the world has assumed central importance. Shouldn't we talk about that in law school?
David Fontana received a law degree from Yale University in 2005 and is working on a doctoral degree in sociolegal studies at the University of Oxford. He is a law clerk to Judge Dorothy W. Nelson of the United States Court of Appeals for the Ninth Circuit. In the fall, he will become an associate professor at the George Washington University Law School.
Posted by Marie S. Newman at 1:33 PM
Tuesday, May 23, 2006
I'm trying to limit my postings here to my original vision, focusing on law libraries, legal education, and legal information. If you're interested in hearing my political rants or my more frivolous postings, stop by at Buffalo Wings & Toasted Ravioli.
And don't forget Check This Out! for your listening pleasure.
All part of the JGM Media Empire.
Posted by James Milles at 5:22 PM
I've long believed that statistics should be a near-prerequisite for law school, and if you haven't had before law school we should offer it for credit, and encourage -- maybe even require -- students to take it.And here's Yair:
I think statistics should be a mandatory class for law students. Why? Because there are entire fields of law that are nearly impossible to fully grasp without a basic knowledge of statistics. To name a few, I would put employment discrimination, products liability, and much of torts and evidence in this category. In addition, statistical evidence or thinking plays (or at least should play) some roll in almost every area of law. The point is not to enable lawyers to produce competent statistical evidence, but rather to allow lawyers to be educated consumers of statistics.What is the least useful major for pre-law students? Pre-law:
If you really want to be a good lawyer, I don't personally recommend majoring in anything directly related to law as an undergraduate, or even taking courses in it. That includes "Juvenile Justice". Colleges always teach the stuff "wrong" from the point of view of a lawyer - maybe right from the point of view of a cop or probation officer or something, but wrong from the point of view of someone who needs to work with law rather than recite it. So you will start out behind the other students since you will have to 'unlearn' what you think you know. Really.
Far, far, better to major in something that teaches you about the world: history, economics, literature, math or even art. You will get all the law you need in law school - why waste college getting a 3rd-rate version of it? Why not get the stuff that makes you a well informed person, and thus a much better lawyer in the long run.
The only rule that over-rides the one above is: major in what you like best. Because ultimately you will get the best grades in what you like best, and grades count! A lot. A whole lot. Especially if you are not going to college at a very high prestige Ivy League or similar school.
If possible - it's not essential - I'd try to take the following courses at some point regardless of what you major in:
- two semesters of economics
- at least one Intro to Philosophy and/or Political Philosophy
- as much US history as you can stand (law is about context, and precedents must be understood in the context of their times)
- a course that covers the structure of the US political/governmental system
Posted by James Milles at 5:01 PM
From an email from one of our law profs at UB:
Every mine disaster is followed by a report of the violations previously found at that mine. The maximum fine for the failure to eliminate violations that actually cause death or serious injury is $60,000. Fines are generally reduced by the agency and many are simply not collected. If the new Senate bill passes, the cost of uttering an obscene word on the airwaves will be worth over 5 times the value of miners.
Posted by James Milles at 2:21 PM
Fascinated by the courageous efforts of Navy attorney Alberto Mora to prevent the government from torturing prisoners? See this excellent Frontline website with wonderful timeline and links to all kinds of documents.
Pulling together some more helpful links on Alberto Mora's story:
Mora's official Navy bio
Boston Globe article, March 16, 2005
by Charlie Savage
Top US Navy officials were so outraged at abusive interrogation techniques being used at the Guantanamo Bay prison in late 2002 that they considered removing Navy interrogators from the operation, according to a portion of a recent Pentagon report that has not been made public.
UPI story, March 16, 2005, "Navy threatened to quit GTMO over abuse"
Mora's memo for the Church investigation also said Mora had received a briefing in December 2002 from NCIS' chief psychologist Michael Gelles.
"Gelles concluded based on extracts of detainee interrogation logs that intelligence personnel at GTMO had started 'using abusive techniques and coercive psychological procedures,'" Levin said.
Gen. Bantz Craddock, the current commander of U.S. Southern Command who at the time served as Rumsfeld's senior military assistant, said at the hearing he had not yet read the Church report but the timeline comported with what he knew happened on detainee affairs.
In the autumn of 2002, U.S. military officials at Guantanamo Bay Naval Base who were holding alleged al-Qaida members asked for permission to use interrogation techniques whose harshness exceeded those allowed by standard military doctrine, said DOD officials last year after the Abu Ghraib prison scandal called into question operations at Guantanamo, or GTMO.
Officials at GTMO told the Office of the Secretary of Defense that at least three of the prisoners were proving resistant to standard methods allowed under the Geneva Conventions. They conducted a legal analysis of the techniques regarding international law, and presented a proposal of 20 new practices to Rumsfeld for his approval. They believed they had the latitude to change the techniques because the prisoners at GTMO were not deemed prisoners of war by the White House, and therefore were not protected by the Geneva Convention.
On advice of the DOD General Counsel William Haynes, Rumsfeld approved all but three of the new techniques, according to Pentagon documents and spokesman Larry DiRita at a meeting with reporters on May 20, 2004.
Memos leaked to the media and released under a Freedom of Information Act request detailed the request. It was broken into three categories. Category 1 included permission to yell at and deceive a detainee into thinking he is being interrogated by an official of another country with a reputation for harsh treatment of detainees.
Category 2 requested use of "stress positions" like standing for up to four hours and falsified documents and reports to deceive the detainee as well as solitary confinement for up to 30 days, with additional confinement possible if the commanding general approved it. It also requested sensory deprivation, hooding, removal of clothing, forced shaving and using detainee phobias like the fear of dogs to induce stress.
Category 3 requested permission to use scenarios that would convince the detainee that death or severely painful consequences are imminent for him and his family, exposure to cold weather or water (with medical monitoring), and the use of a wet town and dripping water to induce the misperception of suffocation. It also requested permission to use "mild, non-injurious physical contact such as grabbing, poking in the chest with a finger and light pushing."
On Dec. 2, Rumsfeld approved all of category 1 and 2, and only the mild-non-injurious contact request in category 3. Between Dec. 2 and January 15, many of those techniques were used.
Read more at the link above!
A top Navy psychologist reported to his supervisor in December 2002 that interrogators at Guantanamo were starting to use ''abusive techniques." In a separate incident that same month, the Defense Department's joint investigative service, which includes Navy investigators, formally ''disassociated" itself from the interrogation of a detainee, after learning that he had been subjected to particularly abusive and degrading treatment.
The two events prompted Navy law enforcement officials to debate pulling out of the Guantanamo operation entirely unless the interrogation techniques were restricted. The Navy's general counsel, Alberto Mora, told colleagues that the techniques were ''unlawful and unworthy of the military services."
The previously undisclosed events were disclosed at a hearing of the Senate Armed Forces Committee yesterday. The disclosures shed new light on the military services' objections to the Bush administration's policies on how to interrogate prisoners from the Afghanistan war.
Senator Carl Levin, Democrat of Michigan, said the events are outlined in the largely classified report on military detention and interrogation operations delivered last week by Navy Vice Admiral Albert T. Church. Levin did not disclose which techniques were used on prisoners that triggered the Navy's unusual concerns.
NY Times article: on the Mora memorandum
New Yorker article by Jane Mayer, "The Memo": in-depth on Mora's battle against torture.
Pentagon Process Subverted
Jurist article by JAG Lt. Col., Ret., Prof. Geoffrey S. Corn (S. Texas College of Law)
Going Native at Guantananamo
Jurist article by JAG Lt. Col. Victor Hansen
Mora's Internal Memorandum.
Thank you, New Yorker!
Executive Summary of the Declassified portions of the Church Report
Wonkette's blog entry guessing at the New Yorker's sources
NPR program on Mora's memo, and links to more recent reports on similar topics, Supreme Court on tribunals, Bush administration releases names:
The Nation op-ed "A Fabric of Illegality"
Balkinization blog entry
Wikipedia entry on Alberto Mora, nice links
ACLU press release, documents of torture
** ACLU Documents of Torture and Human Rights Violation (PDF format) Includes links to treaties against torture, news releases about activities and law suits.
Washington Post article on Guantanamo Torture Techniques as approved by Rumsfeld.
ABC News on Mora Memo w/ video
The interrogation techniques used at Guantanamo Bay Detention Center in 2002 triggered concerns among senior Pentagon officials that they could face criminal prosecution under U.S. anti-torture laws, ABC News has learned.Texas Tech School of Law quoting Financial Times article on related investigation of officer at Guantanamo and Abu Ghraib
Seymour Hersh article, New Yorker, "Torture at Abu Ghraib"
Posted by Betsy McKenzie at 12:04 PM
"It takes a lot of courage these days for a government official to stand up for the rule of law." (from an op-ed piece by Foundation CEO John Shattuck, "In Search of Political Courage" at the JFK Library site, link)
What a lot is summed up in that sentence!
The John F. Kennedy Presidential Library here in Boston recently awarded two Profile in Courage awards, marking the 50th anniversary of the publication of JFK's book of that title. The recipients are former U.S. Navy General Counsel Alberto Mora and U.S. Representative John P. Murtha (D-PA). Attorney Mora waged a behind the scenes battle for three years against the full brunt of the current administration's determination to use illegal torture against prisoners of war and detainees suspected of collaboration with Al Qaeda. Congressman Murtha demonstrated his extraordinary courage in reversing his conservative Democrat hawk stance supporting the invasion of Iraq when, in November, 2005, he called for withdrawal from Iraq.
The image of the Liberty Bell is from www.philadelphia-travel-services.com/images Let Freedom Ring!
On December 17, 2002 Alberto Mora received information from the Naval Criminal Investigative Service that prisoners at the Guantanamo Naval Base were being abusively interrogated. Mora, a loyal conservative, had been appointed by President Bush in 2001 to serve as General Counsel of the Navy. Since the Navy had no responsibility for Guantanamo interrogations, Mora could have referred the report to others in the Pentagon, or simply decided to ignore it. Instead, he chose to investigate. What he discovered was deeply disturbing.Congressman John P. Murtha
As he wrote in a recently declassified memo to the Navy’s Inspector General, Mora learned that his boss, Secretary of Defense Donald Rumsfeld, had authorized interrogation techniques that “could rise to the level of torture.” Mora told the Pentagon’s General Counsel, William Haynes, that Rumsfeld’s memorandum “could have severe ramifications unless the policy was quickly reversed.” He warned that the interrogation policy was “unlawful” and that its consequences could be “incalculably harmful to U.S. foreign, military and legal policies.”
When nothing happened, Mora set out to change the policy. He knew he had to find allies in the Pentagon, and he began to recruit them by openly debating the Rumsfeld memorandum with other officials. A small bureaucratic victory came when the Department of Defense created a “Working Group” to develop new recommendations. But this process was overwhelmed by the Justice Department’s Office of Legal Counsel (OLC), which weighed in with its own memo expanding the original Rumsfeld policy.
Mora challenged the Justice Department. He charged that the policy allowed “cruel, inhuman and degrading treatment of detainees,” and expressed deep disagreement with its “extreme and virtually unlimited theory of the extent of the President’s authority.” Mora confronted the author of the memo, OLC Deputy Director John Yoo, asking him “whether the President could order the application of torture.” Mora wrote in his memo to the Inspector General that “Yoo responded, ‘Yes.’”
Mora was shocked. He worked hard to get the Pentagon to shelve what he called this “deeply flawed” policy that now had been hijacked by the Justice Department. For nearly a year Mora thought he had succeeded in persuading his superiors to block the policy, because the Rumsfeld and OLC memoranda were never finalized.
Then in April 2004 the Abu Ghraib prison scandal broke. Mora learned the bitter truth -- the torture policy he and others inside the Pentagon had fought so courageously to stop had secretly been kept in place all along, and the horrors they had warned against had come to pass.
Mora did not prevail in his bureaucratic battle, but his defense of the law and the Constitution demonstrated great political courage. That’s why the John F. Kennedy Library Foundation today will recognize Alberto Mora with its Profile in Courage Award, together with John Murtha, a senior Member of Congress and Vietnam combat veteran who made a difficult decision of conscience last year when he reversed his support for the Iraq war and sparked a national debate by calling for the withdrawal of U.S. troops from the conflict.
In November 2005, John P. Murtha, a Vietnam War veteran and the ranking Democrat and former chairman of the House Defense Appropriations Subcommittee, galvanized debate about the war in Iraq by calling for the phased withdrawal of U.S. troops from the conflict. Murtha, who had voted in favor of the Iraq war, argued that American soldiers had become targets and “a catalyst for violence” in Iraq. His unexpected and dramatic reversal of support for the war put him at odds with military leaders, the Bush Administration, and many members of his own party.
While he was cheered in some quarters, Murtha’s call for an exit strategy sparked an angry backlash from war proponents, who accused him of wanting to “surrender to the terrorists.” Some complained that his comments were demoralizing to American troops serving in the conflict. Many of his fellow Democrats were reluctant to support him as long as public sentiment about the Iraq war remained opaque. Some critics publicly questioned whether Murtha deserved his Vietnam War decorations and demanded that his military records be opened to public inspection. Murtha refused to back down, instead stepping up his critique of the Administration’s handling of the Iraq war and demanding accountability.
As a combat veteran and a retired Marine Corps colonel with 37 years’ service in the U.S. military, Murtha’s decision to withdraw his support for the Iraq war carried particular weight. His decision to speak out against a protracted conflict shifted public sentiment about the war and generated a substantive national debate on the progress, policies and objectives of the U.S. presence in Iraq. Murtha continues to call for the withdrawal of troops from Iraq.
[Initially, Murtha had voted to support invading Iraq after the September 11 attacks.] But he soon began to feel he could not stay silent after what he began hearing from our troops and senior military officials. He criticized the inadequate armor and other supplies for our troops. In September 2003, he said he’d been misled into voting for the war the year before.
Finally, last November, he decided as a matter of conscience to speak the unvarnished truth. He stated publicly that our troops in Iraq had done all they could, and it was time for them to come home.
You could feel the earth move in Washington, and the White House knew it. Their political operation went into overdrive, the attack dogs were sent out, and the “Swift Boat” tactics were dusted off. His military record was wrongly and irresponsibly called into question. He was accused of surrendering to the terrorists and “endorsing the policy positions of Michael Moore and the extreme liberal wing of the Democratic party.”
It was a familiar response from an Administration with a pathological aversion to thoughtful criticism – or any criticism – of its policy on Iraq.
They couldn’t fire or demote him, as they did with critics of their policy. They couldn’t ignore him or marginalize him, as they did with Alberto Mora.
Through all the attacks on his patriotism, he never wavered or backed down from his strong view. His courage in speaking out touched the entire nation, and he continues to do so.
Last week, he called on the Marine Corps to disclose the full truth about a shocking incident involving the death of a Marine followed by the death of numerous civilians supposedly in a bus in Haditha last November. The casualties were initially attributed to an I.E.D. explosion and shrapnel and firefight, but Murtha said he kept hearing reports from Marines in the field that something much worse had happened.
As he stated, “There was no firefight. There was no explosion that killed civilians in a bus. There was no bus. There was no shrapnel. There were only bullet holes inside the homes where the Marines had gone in….Our troops over-reacted because of the pressure on them, and they killed innocent civilians in cold blood,” he said. That’s John Murtha, telling the war like it is.
As Andrew Jackson said, “One man with courage makes a majority,” and John Murtha has proved the truth of those words in our own time.
For his political courage and his dedication to principled public service, John P. Murtha is honored with the 2006 Profile in Courage Award.
Posted by Betsy McKenzie at 11:21 AM
Monday, May 22, 2006
I am an American, and I love my country. That does not mean that I support my government in every thing they choose to do. One of the wonderful things about being a United States citizen is that I have the right, and indeed, the duty, to think for myself, and to speak out about what I believe the correct course for our government should be. Every American citizen has this right and duty. We do wrong when we follow our government mindlessly. The brillian founders of our country counted on its citizens to continue thinking for themselves and to oppose the government when it wandered off course. "Eternal vigilance is the price of liberty." (Wendell Phillips) and perhaps more to the point in this post 9/11 world, from Ben Franklin:
They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safetyThomas Jefferson said
"I know of no safe depository of the ultimate powers of the society but the people themselves; and if we think them not enlightened enough to exercise their control with wholesome discretion, the remedy is not to take it from them, but to inform their discretion by education. This is the true corrective of abuses of constitutional power."
Let us then continue to educate ourselves and our fellow citizens, both about our constitution and about the current abuses of it. I do believe that when enough of my fellow citizens know and recognize how our government is seizing power away from its people, that they will finally object and take it back.
The image of the famous painting, Spirit of '76 came from www.sheppardsoftware.com
Posted by Betsy McKenzie at 5:26 PM
Important Department of Justice memo, dated November, 1993 for the President's counsel, Bernard M. Nussbaum on the subject of Presidential Signing Statements. Has a useful appendix surveying previous Presidents' uses. Here is a taste:
This memorandum provides you with an analysis of the legal significance of Presidential signing statements. It is addressed to the questions that have been raised about the usefulness or validity of a such statements. We believe that such statements may on appropriate occasions perform useful and legally significant functions. These functions include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition.(1)
These functions must be carefully distinguished from a much more controversial -- and apparently recent -- use of Presidential signing statements, i.e., to create legislative history to which the courts are expected to give some weight when construing the enactment. In what follows, we outline the rationales for the first three functions, and then consider arguments for and against the fourth function
THE LEGAL SIGNIFICANCE OF PRESIDENTIAL SIGNING STATEMENTS
Many Presidents have used signing statements to make substantive legal, constitutional, or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.
November 3, 1993
MEMORANDUM FOR BERNARD N. NUSSBAUM,
COUNSEL TO THE PRESIDENT
This memorandum provides you with an analysis of the legal significance of Presidential signing statements. It is addressed to the questions that have been raised about the usefulness or validity of a such statements. We believe that such statements may on appropriate occasions perform useful and legally significant functions. These functions include (1) explaining to the public, and particularly to constituencies interested in the bill, what the President believes to be the likely effects of its adoption, (2) directing subordinate officers within the Executive Branch how to interpret or administer the enactment, and (3) informing Congress and the public that the Executive believes that a particular provision would be unconstitutional in certain of its applications, or that it is unconstitutional on its face, and that the provision will not be given effect by the Executive Branch to the extent that such enforcement would create an unconstitutional condition.(1)
These functions must be carefully distinguished from a much more controversial -- and apparently recent -- use of Presidential signing statements, i.e., to create legislative history to which the courts are expected to give some weight when construing the enactment. In what follows, we outline the rationales for the first three functions, and then consider arguments for and against the fourth function.(2) The Appendix to the memorandum surveys the use of signing statements by earlier Presidents and provides examples of such statements that were intended to have legal significance or effects.
To begin with, it appears to be an uncontroversial use of signing statements to explain to the public, and more particularly to interested constituencies, what the President understands to be the likely effects of the bill, and how it coheres or fails to cohere with the Administration's views or programs.(3)
A second, and also generally uncontroversial, function of Presidential signing statements is to guide and direct Executive officials in interpreting or administering a statute. The President has the constitutional authority to supervise and control the activity of subordinate officials within the Executive Branch. See Franklin v. Massachusetts, 112 S. Ct. 2767, 2775 (1992). In the exercise of that authority he may direct such officials how to interpret and apply the statutes they administer.(4) Cf. Bowsher v. Synar, 478 U.S. 714, 733 (1986) ("[i]nterpreting a law enacted by Congress to implement the legislative mandate is the very essence of 'execution' of the law."). Signing statements have frequently expressed the President's intention to construe or administer a statute in a particular manner (often to save the statute from unconstitutionality), and such statements have the effect of binding the statutory interpretation of other Executive Branch officials.(5)
A third function, more controversial than either of the two considered above, is the use of signing statements to announce the President's view of the constitutionality of the legislation he is signing. This category embraces at least three species: statements that declare that the legislation (or relevant provisions) would be unconstitutional in certain applications; statements that purport to construe the legislation in a manner that would "save" it from unconstitutionality; and statements that state flatly that the legislation is unconstitutional on its face. Each of these species of statement may include a declaration as to how -- or whether -- the legislation will be enforced.
Thus, the President may use a signing statement to announce that, although the legislation is constitutional on its face, it would be unconstitutional in various applications, and that in such applications he will refuse to execute it. Such a Presidential statement could be analogized to a Supreme Court opinion that upheld legislation against a facial constitutional challenge, but warned at the same time that certain applications of the act would be unconstitutional. Cf. Bowen v. Kendrick, 487 U.S. 589, 622-24 (1987) (O'Connor, J., concurring). Relatedly, a signing statement may put forward a "saving" construction of the bill, explaining that the President will construe it in a certain manner in order to avoid constitutional difficulties. See Federal Election Comm'n v. NRA Political Victory Fund, 1993 U.S. App. LEXIS 27298 (D.C. Cir. 1993), at *11-*12 (Silberman, J., joined by Wald, J.) (citing two Presidential signing statements adopting "saving" construction of legislation limiting appointment power). This, too, is analogous to the Supreme Court's practice of construing statutes, if possible, to avoid holding them unconstitutional, or even to avoid deciding difficult constitutional questions.
More boldly still, the President may declare in a signing statement that a provision of the bill before him is flatly unconstitutional, and that he will refuse to enforce it. This species of statement merits separate discussion.(6)
In each of the last three Administrations, the Department of Justice has advised the President that the Constitution provides him with the authority to decline to enforce a clearly unconstitutional law.(7) This advice is, we believe, consistent with the views of the Framers.(8) Moreover, four sitting Justices of the Supreme Court have joined in the opinion that the President may resist laws that encroach upon his powers by "disregard[ing] them when they are unconstitutional." Freytag v. C.I.R., 111 S. Ct. 2631, 2653 (1991) (Scalia, J., joined by O'Connor, Kennedy and Souter, JJ., concurring in part and concurring in judgment).(9)
If the President may properly decline to enforce a law, at least when it unconstitutionally encroaches on his powers, then it arguably follows that he may properly announce to Congress and to the public that he will not enforce a provision of an enactment he is signing. If so, then a signing statement that challenges what the President determines to be an unconstitutional encroachment on his power, or that announces the President's unwillingness to enforce (or willingness to litigate) such a provision, can be a valid and reasonable exercise of Presidential authority.(10) And indeed, in a recent decision by the United States Court of Appeals for the District of Columbia Circuit, Federal Election Comm'n v. NRA Political Victory Fund, supra, the court cited to and relied upon a Presidential signing statement that had declared that a Congressionally-enacted limitation on the President's constitutional authority to appoint officers of the United States was without legal force or effect. Id. at * 11.
The contrary view -- that it is the President's constitutional duty not to sign legislation that he believes is unconstitutional -- has been advanced on occasion. For example, Secretary of State Thomas Jefferson advised President Washington in 1791 that the veto power "is the shield provided by the constitution to protect against the invasions of the legislature [of] 1. the rights of the Executive 2. of the Judiciary 3. of the states and state legislatures." Opinion on the Constitutionality of the Bill for Establishing a National Bank (Feb. 15, 1791), reprinted in III The Founders' Constitution 247 (Philip B. Kurland & Ralph Lerner eds. 1987). James Madison appears to have held a similar view and as President once vetoed a bill on constitutional grounds even though he supported it as a matter of policy. See Message to the House of Representatives (Mar. 3, 1817), in I James Richardson (ed.), Messages and Papers of the Presidents, 585 (1896) (while praising the bill's "beneficial objects," Madison wrote that he "ha[d] no option but to withhold [his] signature from it" because he thought it unconstitutional). Jefferson and Madison, however, did not in fact always act on this understanding of the President's duties: in 1803 President Jefferson, with Secretary of State Madison's agreement, signed legislation appropriating funds for the Louisiana Purchase even though Jefferson thought the purchase unconstitutional. See I William M. Goldsmith, The Growth of Presidential Power 438-50 (1974). In light of our constitutional history, we do not believe that the President is under any duty to veto legislation containing a constitutionally infirm provision, although of course it is entirely appropriate for the President to do so.
Separate and distinct from all the preceding categories of signing statement, and apparently even more controversial than any of them, is the use of such statements to create legislative (or "executive") history that is expected to be given weight by the courts in ascertain the meaning of statutory language. See Marc N. Garber and Kurt A. Wimmer, Presidential Signing Statements as Interpretations of Legislative Intent: An Executive Aggrandizement of Power, 24 Harv. J. on Legis. 363, 366 (1987). Although isolated examples can perhaps be found earlier, signing statements of this kind appear to have originated (and were certainly first widely used) in the Reagan Administration.
In 1986, then-Attorney General Meese entered into an arrangement with the West Publishing Company to have Presidential signing statements published for the first time in the U.S. Code Congressional and Administrative News, the standard collection of legislative history. Mr. Meese explained the purpose of the project as follows:
To make sure that the President's own understanding of what's in a bill is the same . . . or is given consideration at the time of statutory construction later on by a court, we have now arranged with the West Publishing Company that the presidential statement on the signing of a bill will accompany the legislative history from Congress so that all can be available to the court for future construction of what that statute really means.
Address by Attorney General Edwin Meese III, National Press Club, Washington, D.C. (Feb. 25, 1986) (quoted in Garber and Wimmer, supra, at 367).
We do not attempt finally to decide here whether signing statements may legitimately be used in the manner described by Attorney General Meese. We believe it would be useful, however, to outline the main arguments for and against such use.
In support of the view that signing statements can be used to create a species of legislative history, it can be argued that the President as a matter both of constitutional right and of political reality plays a critical role in the legislative process. The Constitution prescribes that the President "shall from time to time . . . recommend to [Congress's] Consideration such Measures as he shall judge necessary and expedient." U.S. Const., art. II, � 3, cl. 1. Moreover, before a bill is enacted into law, it must be presented to the President. "If he approve it he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated." U.S. Const., art. I, � 7, cl. 2.(11) Plainly, the Constitution envisages that the President will be an important actor in the legislative process, whether in originating bills, in signing them into law, or in vetoing them. Furthermore, for much of American history the President has de facto been "a sort of prime minister or 'third House of Congress.' . . . [H]e is now expected to make detailed recommendations in the form of messages and proposed bills, to watch them closely in their tortuous progress on the floor and in committee in each house, and to use every honorable means within his power to persuade . . . Congress to give him what he wanted in the first place." Clinton Rossiter, The American Presidency, 110 (2d ed. 1960). It may therefore be appropriate for the President, when signing legislation, to explain what his (and Congress's) intention was in making the legislation law, particularly if the Administration has played a significant part in moving the legislation through Congress. And in fact several courts of appeals have relied on signing statements when construing legislation. See United States v. Story, 891 F.2d 988, 994 (2d Cir. 1989) (Newman, J.) ("though in some circumstances there is room for doubt as to the weight to be accorded a presidential signing statement in illuminating congressional intent, . . . President Reagan's views are significant here because the Executive Branch participated in the negotiation of the compromise legislation."); Berry v. Dep't of Justice, 733 F.2d 1343, 1349-50 (9th Cir. 1984) (citing President Johnson's signing statement on goals of Freedom of Information Act); Clifton D. Mayhew, Inc. v. Wirtz, 413 F.2d 658, 661-62 (4th Cir. 1969) (relying on President Truman's description in signing statement of proper legal standard to be used in Portal-to-Portal Act).
On the other side, it can be argued that the President simply cannot cannot speak for Congress, which is an independent constitutional actor and which, moreover, is specifically vested with "[a]ll legislative powers herein granted." U.S. Const., art. I, � 1, cl. 1. Congress makes legislative history in committee reports, floor debates and hearings, and nothing that the President says on the occasion of signing on a bill can reinterpret that record: once an enrolled bill has been attested by the Speaker of the House and the President of the Senate and has been presented to the President, the legislative record is closed. See Field v. Clark, 143 U.S. 649, 672 (1892). A signing statement purporting to explain the intent of the legislation is, therefore, entitled at most to the limited consideration accorded to other kinds of post-passage legislative history, such as later floor statements, testimony or affidavits by legislators, or amicus briefs filed on behalf of members of Congress. See Regional Rail Reorganization Act Cases, 419 U.S. 102, 132 (1974) ("post-passage remarks of legislators, however explicit, cannot serve to change the legislative intent of Congress expressed before the act's passage . . . . Such statements 'represent only the personal views of these legislators . . .'.").(12) Finally, it is arguable that "by reinterpreting those parts of congressionally enacted legislation of which he disapproves, the President exercises unconstitutional line-item veto power." Garber and Wimmer, supra, at 376. See also Constitutionality of Line-Item Veto Proposal, 9 Op. O.L.C. 28, 30 (1985) ("under the system of checks and balances established by the Constitution, the President has the right to approve or reject a piece of legislation, but not to rewrite it or change the bargain struck by Congress in adopting a particular bill").
Many Presidents have used signing statements to make substantive legal, constitutional or administrative pronouncements on the bill being signed. Although the recent practice of issuing signing statements to create "legislative history" remains controversial, the other uses of Presidential signing statements generally serve legitimate and defensible purposes.
Assistant Attorney General
So far as we have been able to determine, Presidential signing statements that purported to create legislative history for the use of the courts was uncommon -- if indeed it existed at all -- before the Reagan and Bush Presidencies. However, earlier Presidents did use signing statements to raise and address the legal or constitutional questions they believed were presented by the legislation they were signing. Examples of signing statements of this kind can be found as early as the Jackson and Tyler Administrations, and later Presidents, including Lincoln, Andrew Johnson, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Lyndon Johnson, Nixon, Ford and Carter, also engaged in the practice.
According to Louis Fisher of the Congressional Research Service,
Andrew Jackson sparked a controversy in 1830 when he signed a bill and simultaneously sent to Congress a message that restricted the reach of the statute. The House, which had recessed, was powerless to act on the message. A House report later interpreted his action as constituting, in effect, an item veto of one of the bill's provisions. President Tyler continued the custom by advising the House in 1842 that after signing a bill, he had deposited with the Secretary of State "an exposition of my reasons for giving it my sanction." He expressed misgivings about the constitutionality and policy of the entire act. A select committee of the House issued a spirited protest, claiming that the Constitution gave the President only three options upon receiving a bill: a signature, a veto, or a pocket veto. To sign a bill and add extraneous matter in a separate document could be regarded "in no other light than a defacement of the public records and archives."
Louis Fisher, Constitutional Conflicts between Congress and the President, 128 (3d ed.) (citations omitted).
President Lincoln stated that he was signing the Confiscation Bill on the understanding that the bill and the joint resolution explaining it were "substantially one." He attached to his signing statement the draft veto message he had prepared before the joint resolution was adopted. In that draft, he raised various objections to the bill, some of which appear to be constitutionally-based. Thus, the draft singled out a provision that "assumes to confer discretionary powers on the Executive;" but Lincoln stated that he would have "no hesitation to go as far in the direction indicated" even without such legislative authority. VI James Richardson (ed.), Messages and Papers of the Presidents, 85-86 (1897). See also Norman Small, Some Presidential Interpretations of the Presidency, 183 (1932).
President Andrew Johnson signed but protested against an Army appropriations bill, claiming that one of its sections "in certain cases virtually deprives the President of his constitutional functions as Commander in Chief of the Army." VI James Richardson (ed.), supra, at 472.
In 1876, when signing a river and harbor appropriations bill that included "many appropriations . . . for works of purely private or local interest, in no sense national," President Grant issued a signing statement saying that "[u]nder no circumstances will I allow expenditures upon works not clearly national." VII James Richardson (ed.), Messages and Papers of the Presidents, 377 (1898). On the same day, Grant sent the House another signing statement relating to an appropriation for consular and diplomatic services that had in part prescribed the closing of certain consular and diplomatic offices. Grant objected that "[i]n the literal sense of this direction it would be an invasion of the constitutional prerogatives and duty of the Executive," and announced his intention of construing the section as intended merely "to fix a time at which the compensation of certain diplomatic and consular officers shall cease, and not to invade the constitutional rights of the Executive." Id. at 377-78.
President Theodore Roosevelt established several volunteer unpaid commissions to investigate certain factual situations and report back their findings to him. This practice "came to be denounced in Congress as 'unconstitutional,' and an amendment to the Sundry Civil Act of 1909 undertook to forbid the practice. Mr. Roosevelt signed the measure but proclaimed his intention of ignoring the restriction. 'Congress,' he argued, 'cannot prevent the President from seeking advice,' . . .". Edward Corwin, The President: Office and Powers, 85 (3d rev. ed. 1948).
President Wilson signed a merchant marine bill in 1920, but determined not to enforce a provision he found unconstitutional. He stated that executing the provision "would amount to nothing less than the breach or violation" of some thirty-two treaties. See Louis Fisher, supra, at 130.
In 1941, President Franklin Roosevelt confided an unpublished Presidential legal opinion objecting to the "two-House veto" provision in the Lend Lease bill to then-Attorney General Robert Jackson. Roosevelt found the provision "clearly unconstitutional," but signed the bill as a matter of diplomatic and political necessity. Robert H. Jackson, A Presidential Legal Opinion, 66 Harv. L. Rev. 1353, 1357 (1953). President Roosevelt also signed the Urgent Deficiency Appropriations Act of 1943, which included a section prohibiting the payment of a government salary or other compensation to certain named government employees deemed to be subversive. While signing the bill because it appropriated funds urgently needed to carry on the war, Roosevelt "'plac[ed] on record my view that this provision is not only unwise and discriminatory, but unconstitutional.'" United States v. Lovett, 328 U.S. 303, 313 (1946).
President Truman issued a statement on the occasion of signing the General Appropriation Act of 1951 in which he addressed a provision of the bill authorizing loans to Spain. Truman construed the provision in a manner that avoided what he thought would be an unconstitutional outcome, declaring that "I do not regard this provision as a directive, which would be unconstitutional, but instead as an authorization, in addition to the authority already in existence under which loans to Spain may be made." Public Papers of the Presidents: Harry S. Truman, 616 (1950).
President Eisenhower sought to put a "saving" construction on a 1959 bill amending the Mutual Security Act. He stated that "I have signed this bill on the express premise that the three amendments relating to disclosure are not intended to alter and cannot alter the recognized Constitutional duty and power of the executive with respect to the disclosure of information, documents, and other materials. Indeed, any other construction of these amendments would raise grave Constitutional questions under the historic Separation of Powers Doctrine." Public Papers of the Presidents: Dwight D. Eisenhower, 549 (1959). And in 1960, on the occasion of signing a bill providing for the admission of refugees, Eisenhower noted that "the Attorney General has advised me that there is a serious question as to whether this [one-House veto] provision is constitutional," but declared that "it would be better to defer a determination of the effect of such possible action [i.e., a legislative veto] until it is taken." Public Papers of the Presidents: Dwight D. Eisenhower, 579 (1960-61).
On the occasion of signing the Omnibus Crime Control and Safe Streets Act of 1968, President Lyndon Johnson criticized as "vague and ambiguous" certain provisions dealing with Federal rules of evidence in criminal cases, but stated that the Attorney General had advised him that those provisions could "be interpreted in harmony with the Constitution, and Federal practices in this field [e.g., the Federal Bureau of Investigation's practice of warning suspects of their constitutional rights] will continue to conform to the Constitution." Public Papers of the Presidents: Lyndon B. Johnson, 727 (1968-69).
President Nixon signed a 1971 military authorization bill, but objected to a provision in it (the Mansfield Amendment, which set a final date for the withdrawal of U.S. Forces from Indochina) as being "without binding force or effect." Public Papers of the Presidents: Richard Nixon, 1114 (1972).
President Ford, upon signing the Defense Appropriation, 1976, objected to a provision of that bill that restricted the Executive's ability to obligate funds for certain purposes until it received approval from several Congressional committees. Ford stated that he could not "concur in this legislative encroachment," and that consequently he would treat the restriction "as a complete nullity." I Public Papers of the Presidents: Gerald R. Ford, 242 (1979).
President Carter issued several signing statements, including statements on the FY 1980-81 Department of State Appropriations Act, the FY 1981 Department of Defense Authorization Act and the International Security and Development Cooperation Act of 1980. The first of these cases was a bill which, like the 1876 bill President Grant had objected to but signed, purported to mandate the closing of certain consular posts. Carter objected that Congress "cannot mandate the establishment of consular relations at a time and place unacceptable to the President," and accordingly stated his determination to construe the provision as merely precatory. II Public Papers of the Presidents: Jimmy Carter, 1434 (1980).
As noted above, the Reagan and Bush Administrations made frequent use of Presidential signing statements, not only to declare their understanding of the constitutional effect of the statutory language, but also to create evidence on which the courts could rely in construing such language. See, e.g., 22 Weekly Comp. Pres. Doc. 1534, 1536 (1986) (interpreting language of Immigration Reform and Control Act); 22 id. 831, 832 (1986) (interpreting language of Safe Drinking Water Act); Issues Raised by Section 102(c)(2) of H.R. 3792, 14 Op. O.L.C. 38 (preliminary print 1990) (provision of foreign relations authorization bill unconstitutionally infringed on President's authority to conduct negotiations; if President chose to sign bill, he would be entitled not to enforce provision); Appointments to the Commission on the Bicentennial of the Constitution, 8 Op. O.L.C. 200, 201-02 (1984) (discussing Senator Hatch's objections to constitutional claims made by President Reagan's signing statement on bill).
1 In addition, signing statements have frequently been used for purposes of little or no legal or constitutional significance, e.g., to applaud or criticize the policy behind certain provisions, to advise Congress how the President will respond to future legislation, to condemn practices such as attaching riders to omnibus bills, to congratulate members of Congress or the public who have assisted in the bill's passage, and so forth.
2 We do not in this memorandum attempt to reach a definitive conclusion on the question whether the use of signing statements to create legislative history on which the courts are to rely is or is not legitimate. We would be pleased to provide you with further research and analysis on that question should you so desire.
3 For example, on signing the Omnibus Crime Control and Safe Streets Act of 1968, President Johnson explained in some detail how the wiretapping and eavesdropping provisions of the bill both agreed with and differed from his Administration's original proposals to Congress, criticized Congress's decision to sanction certain law enforcement eavesdropping and wiretapping, asked Congress to reconsider that decision, served notice that the Department of Justice would continue to follow a narrower policy of confining wiretapping and eavesdropping to national security cases only, and urged caution and restraint on the States in exercising the powers that the bill allowed them. See Public Papers of the Presidents: Lyndon B. Johnson, 726-27 (1968-69). And President Kennedy signed an education bill "with extreme reluctance," objecting to several provisions, including "the continuation of the discriminatory and ineffective non-Communist disclaimer affidavit." Public Papers of the Presidents: John F. Kennedy, 637 (1961).
4 There are, of course, limits to this Presidential authority. Thus, the President cannot read into the Immigration and Nationality Act protection for a class of asylum seekers whom Congress did not include among those eligible for asylum. See Memorandum for the Attorney General from Walter Dellinger, Acting Assistant Attorney General, at 3 (August 20, 1993).
5 For example, when signing legislation governing the recruitment of agricultural workers from Mexico, President Kennedy made clear that the Labor Department would administer it so as to protect "the wages and working conditions of domestic agricultural workers." Public Papers of the Presidents: John F. Kennedy, 639, 640 (1961). Similarly, President Truman explained that the National Security Council would make broad use of the powers given to it under a rider to a foreign aid bill restricting trade with the Communist bloc to create exceptions from such restrictions. See Public Papers of the Presidents: Harry S. Truman, 319 (1951).
6 One reason such signing statements may be controversial is that the refusal to execute a statutory provision has substantially the effect of a line-item veto.
7 See, e.g., The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. 55, 59 (1980) (Civiletti, A.G.); Recommendation that the Department of Justice not Defend the Constitutionality of Certain Provisions of the Bankruptcy Amendments and Federal Judgeship Act of 1984, 8 Op. O.L.C. 183, 195 (1984). This advice is consistent with that given by Attorneys General to earlier Presidents, including Presidents Buchanan, see Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860), and Wilson, see Income Tax -- Salaries of President and Federal Judges, 31 Op. Att'y Gen. 475, 476 (1919), that the President was not bound by a law that unconstitutionally encroached on his powers.
8 For example, James Wilson, a prominent Framer, legal theorist, and later Associate Justice of the Supreme Court, told the Pennsylvania ratifiers
that the power of the Constitution was paramount to the power of the legislature, acting under that Constitution. For it is possible that the legislature . . . may transgress the bounds assigned to it, and an act may pass, in the usual mode, notwithstanding that transgression; but when it comes to be discussed before the judges . . . it is their duty to pronounce it void . . . . In the same manner, the President of the United States could shield himself and refuse to carry into effect an act that violates the Constitution.
II Jonathan Elliott (ed.), The Debates in the Several State Conventions on the Adoption of the Federal Constitution, 446 (1836) (emphasis added).
Also relevant (despite the fact that he did not attend the Philadelphia Convention) are the views of Thomas Jefferson. Believing that the Sedition Law was unconstitutional even though it had been upheld by the courts, Jefferson used his power as President to (in his own words) "remit the execution" of the Act by pardoning all offenders. See Norman Small, Some Presidential Interpretations of the Presidency, 21 (1932).
9 Further, as former Attorney General Civiletti has noted, the President refused to comply with the Act of Congress at issue in Myers v. United States, 272 U.S. 52 (1926), and the Solicitor General argued that that Act was unconstitutional. Yet "the Court ruled that the President's action in defiance of the statute had been lawful. It gave rise to no actionable claim for damages under the Constitution or an Act of Congress in the Court of Claims . . . . Myers holds that the President's constitutional duty does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day they are declared unconstitutional by the courts." The Attorney General's Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. O.L.C. at 59.
10 Indeed, more broadly, the President may use a signing statement as a vehicle to announce his unwillingness to accept a blatantly unconstitutional statute, even if it does not encroach upon his prerogatives, but otherwise violates a constitutional mandate. The Executive Branch has from time to time challenged Acts of Congress for such reasons: for example, it joined the plaintiffs in United States v. Lovett, 328 U.S. 303 (1946), in attacking an unconstitutional bill of attainder, and it intervened in Simpkins v. Moses H. Cone Memorial Hosp., 211 F. Supp. 628, 640 (M.D.N.C. 1962), rev'd, 323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964), to contest the constitutionality of an Act of Congress that provided Federal funding for racially segregated hospitals.
11 Significantly, the President's veto power is placed in Article I, thereby indicating that he has a share of the legislative power, rather than in Article II, which deals with the executive power. See I William Crosskey, Politics and the Constitution, 419 (1953).
12 But see Seatrain Shipbuilding Corp. v. Shell Oil Co., 444 U.S. 572, 596 (1980) (according "significant weight" to post-passage statements, particularly "when the precise intent of the enacting Congress is obscure").
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