Category: Law

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Barack Obama Law Politics The Bush Legacy The Opinionsphere

The Games Obama Plays

[digg-reddit-me]Thesis: Obama is a systematic thinker – and given some of his clearly expressed views on the presidency – he may be setting up a situation where the other branches of government will be able to definitively limit the powers of the presidency. This is preferable to the president voluntarily renouncing powers – as it places the responsibility for checking the executive branch on the system rather than on the chief executive himself.

The Rest: In his inaugural address, Barack Obama seemed to clearly repudiate the Bush administration’s lawless approach to the War on Terror with this oft-quoted line:

As for our common defense, we reject as false the choice between our safety and our ideals.

In this, and in many other instances, Obama made clear that he would restore the Rule of Law – and that he considered himself, as president, to be subject to the law. This may seem to be a fundamental and basic understanding for any chief executive in a liberal democracy, but for the last eight years, the Bush administration advanced arguments and pursued policies as if it were not subject to the law.

Every time the Supreme Court ruled against the Bush administration, Congress passed a law to restrain the executive branch in some way,some quasi-independent parts of the executive branch opposed him –  it was always uncertain what Bush would do – whether he would simply ignore the attempts to check his power; whether he would declare the checks unconstitutional and then ignore them; whether he would secretly ignore them and prosecute anyone who informed authorities that he was breaking the law; or whether he would attempt to force Congress to pass a legislative justification for his actions. In fact, Bush at one time of another did all three of these. Obama has made clear that he not only respects the Rule of Law but considers checks and balances on the presidency to be part of the democratic process set out by the Constitution. Obama is mindful of the chief executive’s role is in this system – and that, as Gregory Craig, White House Counsel explained:

[Obama] is also mindful as president of the United States not to do anything that would undermine or weaken the institution of the presidency.

Combine this statement with Obama’s decisions regarding rendition, the state secrets privilege, and investigating abuses of the Bush administration – and many civil libertarians and critical observers of the Bush administration from Glenn Greenwald to Andrew Sullivan to Charlie Savage are preparing to be disappointed.

Let’s take a step back for a moment and postulate that Obama holds these three relatively uncontroversial and related positions that he has articulated on numerous occasions:

  1. He believes the president is subject to the law and is committed to upholding the Rule of Law.
  2. He believes that correct processes should be followed and that, “Each branch of government is balanced by powers in the other two coequal branches.”
  3. At the same time, he has little desire to use his political capital and energy prosecuting Bush administration officials.

Obama articulated these three sentiments in a response to a question by Sam Stein of the Huffington Post at his February 9, 2009 press conference:

My view is also that nobody is above the law, and if there are clear instances of wrongdoing, that people should be prosecuted just like any ordinary citizen; but that generally speaking, I’m more interested in looking forward than I am in looking backwards.

Dahlia Lithwick, another chronicler and critic of the Bush administration’s legal abuses, interpreted Obama’s statements and actions this way:

…by keeping the worst of the Bush administration’s secrets hidden, the Obama Justice Department can defer awkward questions about prosecuting the wrongdoers. In his press conference Monday night, Obama repeated his mantra that “nobody is above the law and if there are clear instances of wrongdoing, people should be prosecuted just like ordinary citizens. But generally speaking, I’m more interested in looking forward than I am in looking backwards.” The principle once again is that Obama is for prosecuting Bush administration lawbreaking only when proof of such lawbreaking bonks him on the head. All the more reason to keep it out of sight, then.

But to me, this sounds like an invitation to push him to do what is right – as FDR said to numerous audiences who came to ask him to pay attention to their issue (and here I paraphrase):

I agree with you, I want to do it, now make me do it

Supporting this, aside from Obama’s many statements on these matters, are the public opinions of many of those he appointed to key positions in the Justice Department, including the attorney general:

Our government authorized the use of torture, approved of secret electronic surveillance against American citizens, secretly detained American citizens without due process of law, denied the writ of habeas corpus to hundreds of accused enemy combatants and authorized the use of procedures that violate both international law and the United States Constitution…. We owe the American people a reckoning. [my emhpasis]

Here is where the speculation really starts though – and only time will determine if these guesses are correct. Obama, as president, does not believe it is his role to give up executive power. For one, by doing so, he is antagonizing certain elements of the executive branch that he needs to bring to his side – in the state secrets case, for example, the CIA.

Secondly, by voluntarily renouncing a power, he is in some sense affirming the inherence of this power. Bush believed he had the power to say an entire subject matter was a state secret and thus have an entire lawsuit revoked; if Obama claimed he didn’t have this power, and the Courts then ruled he didn’t, the Court would not be “checking” the president so much as deferring to the new president’s view of his own powers. However, if Obama maintains he has this power – and the Court rules that he does not – it does provide a check. If Congress passes a law restraining the president’s use of this power, it will again provide a check. Each of these scenarios provides a firmer check on presidential power than does Obama’s giving up of these powers. It places the responsibility for checking executive powers not on the President, but within the system, where it should be.

Third, Obama has a number of crises to deal with right now and realizes that there are significant elements who feel strongly about these balance-of-powers issues. What he wants then – is for those groups that are passionate about these issues to prepare the public and to force him to act on them. This way, he can preserve his political capital – and by merely responding to issues forced upon him can avoid charges of looking like he is merely out for retribution.

If this is Obama’s thinking, then we can expect him to not oppose efforts to reign in his powers too strongly – and to accept those limits once they have been legitimated by the Courts or the Congress. If this isn’t Obama’s thinking, we can still attempt to force him to act but the outcome will be less certain.

Categories
Barack Obama Criticism Law National Security Politics The Bush Legacy The Opinionsphere

The Abuse of the State Secrets Privilege

Glenn Greenwald, yet again demonstrating his usefulness, holds Obama’s feet to the fire for the apparent decision of his Justice Department to maintain the Bush administration’s radical view on state secrets. Highlighting the ridiculousness of the Obama Justice Department’s legal position here, Greenwald points out that:

The entire claim of “state secrets” in this case is based on two sworn Declarations from CIA Director Michael Hayden – one public and one filed secretly with the court.  In them, Hayden argues that courts cannot adjudicate this case because to do so would be to disclose and thus degrade key CIA programs of rendition and interrogation – the very policies which Obama, in his first week in office, ordered shall no longer exist.  How, then, could continuation of this case possibly jeopardize national security when the rendition and interrogation practices which gave rise to these lawsuits are the very ones that the U.S. Government, under the new administration, claims to have banned? 

Greenwald follows up today with a piece that gets to the core of the issue:

Nobody — not the ACLU or anyone else — argues that the State Secrets privilege is inherently invalid.  Nobody contests that there is such a thing as a legitimate state secret.  Nobody believes that Obama should declassify every last secret and never classify anything else ever again.  Nor does anyone even assert that this particular lawsuit clearly involves no specific documents or portions of documents that might be legitimately subject to the privilege.  Those are all transparent, moronic strawmen advanced by people who have no idea what they’re talking about.

What was abusive and dangerous about the Bush administration’s version of the States Secret privilege — just as the Obama/Biden campaign pointed out – was that it was used not (as originally intended) to argue that specific pieces of evidence or documents were secret and therefore shouldn’t be allowed in a court case, but instead, to compel dismissal of entire lawsuits in advance based on the claim that any judicial adjudication of even the most illegal secret government programs would harm national security.  Thatis the theory that caused the bulk of the controversy when used by the Bush DOJ — because it shields entire government programs from any judicial scrutiny – and it is that exact version of the privilege that the Obama DOJ yesterday expressly advocated (and, by implication, sought to preserve for all Presidents, including Obama).  

Greenwald ends his piece by misconstruing a remark made by Marc Ambinder – who in fairness to Greenwald probably misunderstands the essence of this issue – and turning it into a strawman he can take down. This is Greenwald at his worst – but the start of the article is Greenwald at his best, explaining succinctly and cleary why outrage is called for. I’m sure Greenwald mocks Ambinder only because his comments are illustrative of the wrong-headed Washington establishment thinking.

More important though is the question of, ‘What’s next?’ Greenwald clearly explains how this use of the state secrets privilege is abusive – and how Obama and Biden clearly opposed it when used by Bush. So, how do we begin to pressure Obama to change this position?

Categories
Humor Law

Exercise can cause serious or fatal injuries.

[digg-reddit-me]I bought a jump rope today. Taking off the cardboard slip it came in, I noticed the warning:

Consult your doctor before starting any exercise program. Exercise programs of any kind present an inherent danger to the participant. Serious or fatal injury can occur. All equipment is intended to be used by adults and only in the manner shown/illustrated/described. Anyone under the age of 18 should have adult supervision. Always follow instructions (if included). Always use proper techniques and common sense when exercising. Always check your equipment thoroughly.

Clark Stooksbury over at The American Conservative seems to have noticed this warning first last week.

This could easily turn into a rumination about how “overlawyered” we have become as a society – beginning with the infamous McDonald’s coffee case to now warnings about exercise causing death. But instead, taking a step back, let me make a different point. The McDonald’s case is greatly misunderstood and the facts make clear McDonald’s was negligent in the matter. And as for this warning that exercise may kill me – I’m going to chalk it up to one of those silly things companies do out of an excess of caution. The warning doesn’t hurt me – in fact, it’s somewhat amusing. Perhaps it is yet another sign that we are on a slippery slope to being drowned by laws and litigation – but

Categories
Barack Obama Law Liberalism Politics

The Last Thing We Need Is A Liberal Scalia

Dahlia Lithwick, who I rarely fail to mention, is one of my favorite writers, had a piece a few days ago on what she wants. In a Supreme Court justice that is. And I lightly paraphrase:

Wonky liberal lawyer seeking a hero, a bomb-throwing, passionate, visionary, liberal Scalia for a seat on the Supreme Court!

One of the main facts revealed in all those recent scholarship of the Rehnquist (O’Connor) court, though, was that Scalia’s brash personality and insulting style actually pushed the moderates to the left – or drove them to be less susceptible to being wooed to Scalia’s side in an argument. Though the Court has indisputably moved far to the right since Scalia entered it, seven of the past nine Supreme Court justices have been appointed by Republican presidents. The two appointed by Clinton were moderates chosen to be confirmed by a Republican Congress. Yet, the Court has only moved slowly towards conservative positions. There are many explanations of this, but for anyone who considers the social dynamics of the Court to be significant – and from her article Dahlia seems to be one who does – then Scalia’s antagonistic approach to O’Connor’s sloppy reasoning and Kennedy’s pomposity certainly must be one factor. A brash, bomb-throwing liberal then is exactly what the Court doesn’t need. 

What I think it does need is a libertarian-minded liberal who can forge an alliance with Scalia on certain issues – and perhaps Thomas as well. Both Alito and Roberts seem to be enamored of executive power – and perhaps that was why it was they who were chosen. I consider them lost causes. But Scalia and Thomas are conservatives of an older school – one which a contemporary liberal – such as Lawrence Lessig or even Cass Sunstein – has much in common with.

I think Dahlia would be happy with that though – a Lessig, a Sunstein, and a Lawrence Tribe. Perhaps a Harold Koh and an Elena Kagan. Instead of a bomb-thrower, I think Dahlia just wants a liberal with a vision instead of an incrementalist. On that, I agree.

Categories
Barack Obama History Law Liberalism National Security Politics The Bush Legacy The Opinionsphere The War on Terrorism

Why It Should Be A ‘War’ Against Terrorism

[digg-reddit-me]One of the big issues many kossacks had in responding to my post was that they objected to the term, “war” being used in describing efforts to combat terrorism.

Peter Feaver over at Foreign Policy nicely parries at least one of the points made – what he labels the “specious claims like the idea that calling it a war narrow options down to only military tools.” Feaver’s response:

On the contrary, of course, calling it a war actually has the opposite effect of expanding options: It admits the use of military and other war-like tools, but it also encompasses the rest of the non military tools in the toolbox, as I’ve argued here. Those who want to label it as something other than a war are the ones who want to limit the tools available.

What Feaver seems to support is what he calls a popular straddle that unites the semantic warriors:

Obama intends to say that we are really at war, but we will voluntarily not use all of the tools of war because we do not need to.

Although at the present, this is fine – it seems to offer the worst of all worlds should another attack occur. Politically, Obama will have boxed himself in by admitting that we are at war and at the same time, by saying that we do not need to use every tool at our disposal to win that war, a kind of anti-Powell doctrine.

The approach that I think bears the most promise – both as a solid grounding for understanding the struggle against terrorism and for creating a politically defensible position – is what I’m calling the Philip Bobitt approach. More on that in a moment.

I think it’s obvious to see why the Feaver approach ((It’s unfair to label it the Feaver approach as he actually attributes it to Obama, but for the moment, this is the least confusing way to go about explaining.)) would probably cause political damage to any candidate that embraced it if there is another attack. (Think of the mothers of the victims of an attack saying, ‘You said we didn’t need to do this, but my son died!’) At the same time, the policy of holding back would be discredited by a spectacular attack – or perhaps even a minor one. There would be a backlash. The delicate balance that would need to be struck between the war we are fighting and what we are holding back “because it is unnecessary” would necessarily come undone at the first loss of life.

Alternately, some claim we are not at war and that the struggle against terrorism is a law enforcement matter, and that politicians should embrace this view publicly. If there are no future attacks, then this position will work out fine. If there are only a small number of minor attacks, this also might work out fine. If there are a series of minor attacks, it’s possible that this position might get us through – both politically and substantially. But this doesn’t seem a smart bet to me. I’m not sure that anyone would deny that our society is vulnerable to catastrophic attacks – and that with technological improvements, increased travel, the increasing density of our urban areas, the spread of information, the worldwide and instantaneous nature of the media, and the growing importance and fluidity of markets – non-state actors are more empowered today, to do good or harm, that at any time in the history of the world. I’m not sure anyone would deny that there are significant numbers of individuals who seriously wish harm to America. Terrorism then – terrorism more serious than before – is inevitable.

Ron Suskind, whose critical books on the Bush administration earned him the ire of the former president, reported that an Al Qaeda agent accomplished a technological breakthrough and was prepared to launch a chemical attack on the New York subway system several years ago. The operation was within 45 days of being launched when it was called off by Ayman Zawahiri. Although we have no definite intelligence as to why this attack was called off, the most plausible explanation based on other statements Bin Laden and Zawihiri have made is that Bin Laden feared this attack would not surpass September 11. Societies throughout history have shown that they can acclimate themselves to a constant low-level of violence – even terrorist-created violence. Which is perhaps why Al Qaeda seeks spectacular attacks on their primary target, or none at all – because a spectacular attack is more likely to generate an overreaction.

If history is to be a guide, we can bet that if a terrorist group does enough damage, people will care little for triviliaties such as freedom – such is the effect of the fear of death. (At the same time, history must also inform us that a society’s fear of death can be manipulated by the state as well as by the terrorists.) It seems to me that the law enforcement approach is not especially suited to combatting the terrorism we now face because:

  • the consequences of letting an ordinary criminal go are far less serious than letting a terrorist go;
  • punitive measures that are supposed to deter crime don’t work regarding strategic terrorism (The death penalty, for example, doesn’t deter someone who wants to be a martyr like Khalid Sheikh Muhammad.);
  • law enforcement focuses on prosecution and punishment rather than prevention, when counterterrorism measures must do the reverse;
  • military engagement may at times be called for – as it was in Afghanistan after September 11;

The efforts to combat terrorism then don’t seem to fit into our traditional ideas of law enforcement. Neither of course, do they fit into our modern definition of war – as a military engagement between states (or within states) that ends with a treaty. The efforts to combat terrorism don’t fit into any of these preexisting categories neatly. We could invent a new term – but if we did, that would suggest that if this threat escalates, then war would be the next step. In other words, I don’t see any approach to terrorism short of “war” to be sustainable – because I believe it is likely that regardless of what steps we will not be able to prevent another attack.

So I suggest we adopt the term “war” and couple it with the main aim of this war – a preclusive victory against strategic terrorism. This victory would be the protection of the ability of citizens to consent freely to their government. ((I believe we must aim as a society for more than mere consent to government action – to actively shape it, etcetera – but that’s not the goal of this war.)) Any time the government violated the rule of law, it would be violating the war aim – it would be, as I described it in a post long ago, a “preemptive surrender of American values.”

This seems to me to be a sturdier construction for the protection of American values than either the law enforcement approach, the Feaver approach, or (and especially) the Bush approach.

Categories
Law National Security Politics The Opinionsphere

A Double Standard (cont.)

Glenn Greenwald, as always, over-the-top and on point:

That’s America’s justice system in a nutshell:  the President who deliberately and knowingly violated our 30-year-old law making it a felony offense to eavesdrop on Americans without warrants has the entire political and media class eagerly defend him against prosecution.  Those who enabled him – in both parties – block investigations into what was done.  Ruth Marcus and Cass Sunstein and friends offer one excuse after the next to justify this immunity.  But the powerless and defenseless – though definitively courageous – public servant who blew the whistle on this lawbreaking is harassed, investigated, and pursued by the DOJ’s Criminal Division to the point of bankruptcy and depression, while the lawbreakers and their enablers stand by mute and satisfied.

Categories
Criticism Law Politics The Opinionsphere

Yes, the Senate Can Refuse to Seat Roland Burris

[digg-reddit-me]Ever since Governor Blagojevich announced his appointment of Roland Burris to take Obama’s Senate seat, the Conventional Wisdom has been that while Blagojevich’s actions are unseemly they are within the law – and more importantly, that Harry Reid and the rest of the Senate can’t do anything to stop Burris from being seated. The LA Times opined:

Exasperated as they are at being outfoxed by Blagojevich, his colleagues and critics must face the fact that he is still the governor of Illinois and empowered to appoint an interim U.S. senator. It’s not a pretty situation, but it’s the law.

The Wall Street Journal suddenly discovered the Constitution and the Rule of Law after eight years of amnesia ((That’s unfair. The Journal always remembers to invoke the Constitution when slamming Democrats. It only ignores it when Republicans are acting unconstitutionally.)) and declared that this was a matter of “Harry Reid v. the Constitution,” claiming without equivocation that Blagojevich had “every legal right” to appoint Burris, that the “Beltway Democrats can’t inject themselves into what is clearly a matter of Illinois law,” and finally that:

Nowhere in the Constitution is there a “qualification” saying that a Senator must not have been appointed by an embarrassing Illinois Governor…now that Mr. Burris has been appointed, Mr. Reid can’t legally deny him his seat. If this is the way Democrats are going to use their new monopoly on Beltway power even against a member of their own party, we’re in for an ugly couple of years.

David Gregory, temporarily sans smirk, parroted the same Conventional Wisdom on this morning’s Meet the Press.

This Conventional Wisdom holds that the 1969 Supreme Court case of Powell v. McCormack limits the Senate’s power to take action pursuant to Article I, Section 5 of the Constitition. The Article states:

Each House shall be the judge of the elections, returns and qualifications of its own members…

Powell limited this power by holding that:

In judging the qualifications of its members under Art. I, § 5, Congress is limited to the standing qualifications expressly prescribed by the Constitution.

What the LA Times and Wall Street Journal and David Gregory fail to take into account – whether deliberately or not is unclear – is that the Powell case revolved around the question of whether the Congress could judge the qualifications of a member and exclude him or her for bad conduct while Reid is making his case under the Senate’s power to judge the process by which it’s members are selected or elected. On Meet the Press, Reid said that he didn’t know of anything Burris had done wrong or any qualification he lacked. Rather Reid pointed to the tainted process which lead to Burris’s appointment as the problem. This is an entirely separate issue from the one decided in Powell – in which a duly elected Congressman was denied his seat for misconduct during the previous session of Congress:

Our examination of the relevant historical materials leads us to the conclusion that …the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.

The key phrase being “duly elected.” The Senate still has the power to judge the returns and the elections – and this power was not limited by Powell. The corruption of the process leading to Burris’s appointment is also what Reid & co. keep harping on – rather than Burris’s qualifications. An election of a Senator marred by corruption, like a corrupt appointment, is to be judged by the Senate. Akhil Reed Amar and Josh Chafetz explain the history of this power and it’s previous invocations.

If Reid chooses to push this claim of Constitutional authority and refuses to seat Burris, he may well prevail, proving once again John Kenneth Galbraith’s prescience:

The enemy of the conventional wisdom is not ideas but the march of events.

Categories
Criticism Election 2008 Law McCain Politics The Opinionsphere

Looking Through Iseman’s Complaint Against The New York Times

[digg-reddit-me]Yesterday, Vicki Iseman – the lobbyist whose attentions may have had an undue influence on Senator McCain – filed a complaint in the United States District Court for the Eastern District of Virginia, Richmond Division against The New York Times Company, Bill Keller (editor of the Times), Dean Baqet (the Times‘s Washington editor), and the reporters over the allegedly defamatory story published in the Times on February 21, 2008. I’ve posted her complaint (PDF)  for your full perusal.

There are a few assertions in the piece which are questionable. One is that lobbyists have no personal relationships with the people they are lobbying:

The defamatory statements, express and implied, that Ms. Iseman exploited an alleged personal or social relationship with Senator McCain to seek favorable outcomes or improper influence on behalf of clients, are entirely false…Ms. Iseman’s relationship with Senator McCain was not different in kind from the cordial yet professional relationship that hundreds of lobbyists have with hundreds of members of Congress. [¶ 24]

Yet the job of a lobbyist does consist of using personal and social relationships with people of influence to push an agenda. The ISEA for one believes so – as it describes several tips on how to lobby successfully:

The most effective member-lobbyists are those who have developed a personal relationship with their legislators.

Jeff Kros, a legislative director in Arizona, describes why lobbying works in another how-to guide for lobbying:

Personal relationships take the anonymity out of the process.

Kurt Wise writing a scholarly piece analyzing the effect of interpersonal relationships on lobbying efforts suggests that many lobbyists consider these relationships to be “essential” to their success. It is precisely this fact – that to lobby means to use personal relationships and social skills to push an agenda – that has led an informal synonym of lobbyist to be “corporate whore.”

Iseman’s attorneys would be making a more truthful argument if they explained that if Iseman used her personal relationship to push her clients’ agenda, then that isn’t news – as such whoring is the essence of lobbying. The Complaint virtually acknowledges this in ¶27 as it almost concedes that most of the facts cited in the news article are actually true:

Setting aside the heavy emphasis on the allegedly inappropriate romantic relationship between Ms. Iseman and Senator McCain, the article contained no reporting that was new or newly newsworthy.

As the Complaint lists no complaints of the previous coverage – and in fact cites approvingly some of the coverage – it would seem that Iseman isn’t disputing these accounts of how she wooed McCain on behalf of her clients. The legal argument here is that – no one wants to see how politics is played, how influence is wielded, how sausages are made – but that doesn’t make any of the three newsworthy. It may be unsavory to describe all the perks McCain and other influentials are given by lobbyists – but it’s unfair to portray that as a news story, because it’s so common. I think this is one of the stronger points Iseman can make – but as it is demeaning to her profession, she wisely refrains from doing so.

If this piece seems a bit snarkier than usual, then it may be that I’m bitter at the numerous barbs directed against bloggers in the Complaint. For one, the Complaint calls Matt Drudge, the tabloid purveyor of right-wing trash and master of the political universe, a “blogger” and his website The Drudge Report, an “on-line blog” – despite the fact that neither meets any of the basic definitions of either word. Then in ¶42, the Complaint turns poetic – and implicitly defames all bloggers – with this passage:

As days and weeks went by, and the cruel gossip, whispers, blogs, rumors, confrontations, and innuendo about her continued, her despondency over the publication of the article and its impact on her life grew.

There are two issues of law at stake here aside from the basic facts which don’t seem as if they will be substantially disputed:

  • whether or not Vicki Iseman will be considered a private or public individual for the purposes of imposing a standard for defamation;
    (A public individual has a much higher standard to meet when alleging defamation; the public individual must prove “actual malice” on the part of the publisher of the controversial statement.)
  • whether a defense of the truth of every individual statement can hold up against what Iseman considers “defamation by insinuation” and “defamation by lack of complete context.”

Public versus Private

Iseman maintains that she must be considered a private rather than a public person as she “never sought to enter the arena of general public debate” (¶48). Of course, Iseman was attempting to influence the general public debate using her private relationships with public officials, making her actions of considerable interest to the public at large. But even further, it is my opinion that all people who are paid to consort with public officials – prostitutes, hookers, whores, lobbyists, and escorts –  should be considered public figures to the extent of their relationship with the public figure.This applies doubly to those who with “private” debate and use of their personal relationships attempt to affect the public debate rather than just serve as a “companion.” In other words, if Ashley Dupree‘s and Monica Lewinsky’s “companionship” with public figures can be mentioned in a news story, so can Vicki Iseman’s undisputed companionship. We can even call them “voluntary, limited-purpose public figures.”

Defamation by Insinuation

Iseman attempts to charge the Times with defamation based on “what was intentionally suggested and implied “between the lines” (¶16) of the news story. The Complaint later explains that the Times should be held responsible for “how the article was in fact received and understood by readers” (¶18). It strikes me that this is an incredibly slippery slope. The facts cited in the Times article aren’t substantially disputed in the Complaint – only the impression the article left on readers. As the Complaint tries to nail down a defamatory comment from the Times, you can see Iseman stretching, as in this example from ¶20:

The article then engaged in the classic phrasing of gossip and innuendo that two people are having an inappropriate romantic relationship, with the passage: “But in 1999 she began showing up so frequently in his offices and at campaign events that staff members took notice. One recalled asking,  “Why is she always around?” [my emphasis]

Notice that in explaining this specific, the Complaint tries to sidestep the issue it supposedly is trying to prove. While I’ll grant Iseman that the facts cited by the Times piece do suggest she was in an inappropriate romantic relationship with Senator McCain, that’s not the point she’s trying to make with this. Instead, she suggests that the Times is using “classic phrasing of gossip and innuendo” suggesting that they are using some form of commonly understood coded language to convey a clear meaning.  This neatly sidesteps the issue of whether or not the facts reported by the Times are true and tries to assert they are instead a form of code. The problem is that this isn’t a “classic phrasing” of any sort – and seems determined by the facts as understood by the Times reporters. The reporters may have been wrong in what they were implying, but I would think the truth of their statements should be a defense. If the Times reported there was smoke, and strongly insinuated there was a fire, but never stated so – and there was smoke – I don’t think they can be fairly faulted.

All this being said, Courts have recognized defamation by insinuation as a cause of action – although the focus in the jurisprudence has been what a passage was intended to convey rather than how it was “in fact received and understood by readers” as this Complaint discusses. As discussed in White v. Fraternal Order of Police:

[I]f a communication, viewed in its entire context, merely conveys materially true facts from which a defamatory inference can reasonably be drawn, the libel is not established. But if the communication, by the particular manner or language in which the true facts are conveyed, supplies additional, affirmative evidence suggesting that the defendant intends or endorses the defamatory inference, the communication will be deemed capable of bearing that meaning.

Iseman’s Complaint fails to make this argument, focusing instead on how it was received.

Defamation by Lack of Complete Context

The Complaint also argues that even if Iseman is considered a public figure, the Times was “deliberately and recklessly misleading” indicating “actual malice,” thus meeting the much higher standard of defamation required for a public figure, or a voluntary, limited-purpose public figure. Iseman alleges here that the Times demonstrates actual malice because it failed to place “the statements of the principal source for the article” “in truthful context” (¶44.) This seems to be a higher bar than defamation by insinuation – which considered unstated implications to be actual defamation. In ¶44, the Complaint alleges that a failure to provide an appropriate context for factual statements also consists of defamation. Under this standard, the McCain ad which deceptively uses video of Obama mocking the idea that he is “The One” without contextualizing it to demonstrate Obama’s intent could be considered defamation as well.

Using this extraordinarily high bar, Iseman states that even printing her denial of the unstated allegations didn’t negate entirely the impression readers might have based on the facts reported:

The article did print the fact that Ms. Iseman and Senator McCain had denied any romantic relationship or other inappropriate conduct. These denials, which most readers would understand as “obligatory,” and therefore precisely what Ms. Iseman and Senator McCain would be expected to say, did not negate the defamatory meanings that otherwise pervaded the article…(¶26)

Which again leads this Complaint to be blaming the Times for actions entirely out of it’s control.

Conclusion

Altogether, the Complaint is troubling in how it attempts to hold the Times to an unreasonable standard. If the Complaint’s legal arguments were accepted by a Court, it would have a substantially chilling effect on freedom of the press and free speech. If some magazine or newspaper reported that the President had signed off on a memorandum changing the definition of torture, and American military and paramilitary personnel subsequently tortured prisoners – this could be understood to imply that the President had responsibility for the torture, opening up the reporters and media sources to a possible defamation lawsuit.  But the Courts have enough established precedents in this area that I’m not worried yet. Clay Calvert, interviewed by The Wall Street Journal Law Blog, suggests that the case is unlikely to get to a jury and will probably be settled.

NB – I should give a shout-out to Matt Yglesias for what I think is his first time being cited in a Complaint in Federal Court (¶32) for this blog entry. Congrats Matt!

Also, I’m not trying to defend the Times story here. I tend to agree with Yglesias’s follow-ups to his original post cited in the Complaint. But I think the theme of the Times piece – the insight into McCain’s character that it revealed – stands up:

Even as he has vowed to hold himself to the highest ethical standards, his confidence in his own integrity has sometimes seemed to blind him to potentially embarrassing conflicts of interest.

Continue reading “Looking Through Iseman’s Complaint Against The New York Times”
Categories
Law Politics The Opinionsphere

The Source of Authority

I have my opinion of this statement, but it is somewhat more subtle than most who read this blog might guess – but here’s Dick Cheney being interviewed by Chris Wallace on Fox News Sunday:

The president of the United States now for 50 years is followed at all times, 24 hours a day, by a military aide carrying a football that contains the nuclear codes that he would use and be authorized to use in the event of a nuclear attack on the United States.

He could launch a kind of devastating attack the world’s never seen. He doesn’t have to check with anybody. He doesn’t have to call the Congress. He doesn’t have to check with the courts. He has that authority because of the nature of the world we live in. [my emphasis]

It’s interesting that though Cheney continually refers to the powers of the Constitution throughout his remarks, grounding his justifications of various extraordinary actions in his unique interpretations of the Constitution, his final source of authority is “the nature of the world we live in.” I don’t think this is the worst possible justification – but it is a hypocritical one for someone who opposed a judiciary that saw the Constitution as changing as the nature of the world we live in changed.

Categories
Financial Crisis Humor Law

Discretionary Spending (cont.)

Contra Raoul Felder, who asked for a bailout for divorce lawyers in an op-ed for the Wall Street Journal because:

There is no other profession more dependent on discretionary spending, except perhaps the oldest one.

Chris Thompson of Slate’s The Big Money:

Some of the luckiest attorneys in the world, he says, will be the divorce lawyers. “Suddenly, people find themselves cutting back, and that makes them lose face in their tony community,” he says. “So that exposes tensions in the relationship that may have been previously ignored. The matrimonial bar may see a flow out from this.”

So that’s what it’s come to for New York’s finest lawyers: waiting around for broke investment bankers to destroy their marriages.