Dahlia Lithwick Raises A Question Bigger Than Torture

Substitute “Constitution” for “anti-torture policy” in the second excerpted paragraph below and note the even greater aptness of the question she poses: Authorizing torture with the very best of intentions

If we manage to erase one hideously bad idea from our collective memories of the law in the war on terror, please, please let it be this one: Legal questions are neither “hard,” nor “novel,” nor “open” merely because someone at the White House didn’t like the legal answer that followed them. Easy questions don’t morph into tough ones just because you can find some guy willing to argue the other side. And if—as both Sands and Lederman have observed—Haynes and his colleagues shut down efforts by Jane Dalton, the legal adviser to the chairman of the Joint Chiefs of Staff, to review the techniques, then we truly are witnessing something astonishing: Haynes turned an easy legal question into a hard one by avoiding it altogether.

Which brings us back to Attorney General Mukasey, the editors at the Wall Street Journal, and Jim Haynes. Is it enough to say in hindsight that the men who knowingly gutted the American anti-torture policy were genuinely terrified of the next attack, genuinely bending to intense White House pressure, or genuinely behaving in “good faith?” I suspect they were genuinely all of the above. Are we prepared to commit ourselves to a legal regime—particularly in times of great national fear and uncertainty—in which the good faith of those who act, and act in secret, is all that matters?

An Experiment

The e-Book Test: Do Electronic Versions Deter Piracy

[M]my own publisher, O’Reilly, is about to offer a bunch of its bestsellers for sale on the Amazon Kindle.

Early next month, the company will also start selling electronic versions of certain books with no copy protection. For a single price (cheaper than the printed-book price), the package will include the book in three formats: PDF, Mobipub (compatible with the Amazon Kindle), and Epub (soon to be compatible with the Sony Reader).

Anyway, I’ve agreed to try an experiment involving one of my books (”Windows Vista: The Missing Manual”): to offer it as part of that buy-the-electronic-versions program.

[…] I’m encouraging O’Reilly to adopt some antipiracy steps […] [t]hat might deter people from posting their copies online for all to download.

This is not, of course, quite what Kevin Kelly is proposing; I’m not offering the book for free. But at least I’m defusing the argument that says, “The only reason people are pirating your books is that you’re not offering e-versions for legitimate sale.”

Now, all kinds of factors affect a book’s sales over time: the seasons, the economy, the popularity of the topic, the age of the book and so on. Even my mentioning this experiment here may skew the results. As I wrote originally, there’s no way to conduct a perfect sales-comparison without creating a parallel universe. So I’m not sure how conclusive the results will be.

Even so, I’ll report back to you in a few months. […]

Ramming HR 6304 Through

The power of process — although the Thomas summary of HR 6304 looks typically benign (referred to Committee, etc.) a look at the related HR 1285 shows what’s really going on:

6/19/2008 5:35pm:
The House Committee on Rules reported an original measure, H. Rept. 110-721, by Mr. Arcuri.

6/19/2008 5:35pm:
All points of order against consideration of the bill are waived except those arising under clause 9 or 10 of rule XXI.

6/19/2008 5:37pm:
Placed on the House Calendar, Calendar No. 240.

And HR 110-721?


The resolution provides for consideration of H.R. 6304, the `FISA Amendments Act of 2008,’ under a closed rule. The resolution provides for one hour of debate equally divided among and controlled by the chairman and ranking minority member of the Committee on the Judiciary and the chairman and ranking minority member of the Permanent Select Committee on Intelligence.

The resolution waives all points of order against consideration of the bill except those arising under clause 9 or 10 of rule XXI. The resolution provides that the bill shall be considered as read. The resolution waives all points of order against provisions of the bill. The resolution provides one motion to recommit with or without instructions. Finally, the resolution permits the Chair, during consideration of the bill, to postpone further consideration of it to a time designated by the Speaker.

Note that clauses 9 & 10 are about the outcome of conferences, and whether one can contest “germane” amendments from conferences — hardly going to be effective since, of course, the bill hasn’t even been approved by either house of Congress. So, no points of order at all.

Also, the NYTimes’ Congress Strikes Deal to Overhaul Wiretap Law.

The proposal — particularly the immunity provision — represents a major victory for the White House after months of dispute.

“I think the White House got a better deal than even they had hoped to get,” said Senator Christopher S. Bond, Republican of Missouri, who led the negotiations.

The White House immediately endorsed the proposal, which is likely to be voted on in the House on Friday and in the Senate next week.

While passage seems almost certain in Congress, the plan will nonetheless face opposition from lawmakers on both political wings, with conservatives asserting that it includes too many checks on government surveillance powers and liberals asserting that it gives legal sanction to a wiretapping program that they maintain was illegal in the first place.

Senator Russ Feingold, Democrat of Wisconsin, who pushed unsuccessfully for more civil liberties safeguards in the plan, called the deal “a capitulation” by his fellow Democrats.

[…] The arcane details of the proposal amount to a major overhaul of the landmark surveillance law known as the Foreign Intelligence Surveillance Act, which Congress passed in 1978 after the abuses of the Watergate era. But much of the debate over the bill in the last six months has been dominated by the separate question of whether to protect the phone companies from legal liability for their role in the eavesdropping program.

On that score, the bipartisan proposal marks a clear victory for the White House and the phone companies.

The proposal allows a district judge to examine what are believed to be dozens of written directives given by the Bush administration to the phone companies after the Sept. 11 attacks authorizing them to engage in wiretapping without warrants. If the court finds that such directives were in fact provided to the companies that are being sued, any lawsuits “shall be promptly dismissed,” the proposal says.

Even Democratic officials, who had initially opposed giving legal immunity to the phone companies, conceded there was a high likelihood that the lawsuits would have to be dismissed under the standards set out in the proposal. That possibility infuriated civil liberties groups, which said the cursory review by a district judge would amount to the de facto death of the lawsuits.

“No matter how they spin it, this is still immunity,” said Kevin Bankston, a senior lawyer for the Electronic Frontier Foundation, a pro-privacy group that is a plaintiff suing over the wiretapping program. “It’s not compromise; it’s pure theater.”

See What Nancy Pelosi, Steny Hoyer and Fred Hiatt mean by “bipartisanship”

Later: O-M-G — Obama says he supports FISA compromise — right now, it’s going to be a tough Election Day – *this* is the candidate for “change?”