Note to regular readers expecting something to do with IP: as previously mentioned, I have been asked to host Blawg Review this week. BR is a weekly 'best of' compendium for law blogs.
I'm reminded of a joke on the liner notes to the comedian Martin Mull's greatest hits album. When asked to compile his best material and put it on one album, he replied "I thought that's what we were already doing."
So instead of scouring law blogs for the best interesting legal tid-bits over the past week, I will apply a different set of criteria.
I will judge blogs on whether they answer the question that interests me the most as a lawyer:
Is this Administration acting lawfully?
We have opinions, and we have 'news reports' but the truth is elusive.
For example.
The US government hires security contractors in Iraq. There are allegations that some of these contractors have committed crimes, perhaps murder.
What law applies to them?
Someone asked President Bush this question and the video of him saying that he doesn't know is here.
Not knowing the answer myself, I emailed various law bloggers asking them what law applies to US contractors in Iraq and the consensus answer was 'I don't know.'
Similarly, you are familiar of course, from Gitmo and Abu Gharib, with the issue of US treatment of 'unlawful combatants.'
Again, what law applies?
Hoping to get a non-partisan answer, I emailed the following pattern to some colleagues, using a World War II fact pattern:
"Germany, 1945: U.S. GIs take into custody five individuals in civilian clothing firing at them from a farmhouse. One individual says 'I didn't fire at you. This is my farmhouse. The others are German soldiers who took over my farm.'"
What process is due him?
The consensus answer among my colleagues (none of whom have JAG experience), was again, "I don't know."
Result? I've read a lot about Gitmo, and I can't form a meaningful opinion.
There are a bunch of other things I want to know the truth about. I have opinions, but I couldn't articulate the underlying legal framework for any of them. They include but are not limited to the following:
Were the Niger documents forged? If so, did any Government official disseminate information based on them, knowing of their falsity?
What is the truth of the Plame affair?
Were the 'torture memos' drafted with explicit instructions as to what conclusion to come to (simply out - to allow torture)?
Was bypassing FISA lawful and constitutional? It seems that there is a law in place that deals directly with exigent circumstances. How, then, can exigent circumstances be a defense?
Are the various NSA data-mining activities lawful and constitutional?
Are signing statements constitutional? My uninformed reaction is that if the President signs a bill into law, that that President would be estopped from arguing the unconstitutionality of that particular law.
I can't answer these questions. And these questions are more important than pretty much any other question - because they go directly to whether we are in fact a nation of laws, where no one is above the law.
I mean, what does it say about me, a so-called officer of the court, if I don't care about the answers to these questions?
And what does it say about me as a lawyer, if my answer is cynically partisan (as in - delay inquiry until after '06 if I 'm democrat, and delay forever, if I'm republican).
I do not comprehend how a lawyer could not want the truth to come out, as completely as possible, as quickly as possible.
Do any blogs discuss these questions on a regular basis (by discuss, I mean provide information and analysis, as opposed to punditry).
Some.
Talking Points Memo has been following the Niger Document story for a long time. Not a law blog, though, and a lot of invective surrounding original reporting.
FireDogLake, Tom MacGuire and Murray Waas are providing the best coverage of the Plame Affair. Again, a lot of editorializing but a lot of raw information.
Discourse.net, Balkinization and Intel Dump are doing good work with regard to the Torture Memo issue.
Volokh and Balkinization, and Orin Kerr, are regularly discusing the NSA issues.
As to signing statements, today's news brings word that the American Bar Association has appointed a panel to evaluation President Bush's practice of appending signing statements to laws. The usual suspects, Volokh, Discourse.net and Balkinization, sometimes write on these issues.
As far as I can tell, there are virtually no practitioners writing regularly on these issues. Which is too bad, because a lot of this writing is by professors for professors and not easily accessible to a wide audience.
This is an opportunity for the blawgosphere to assume a leadership position. It can be more than a compendium of firm brochures. Practitioner blogs can provide cool-headed legal analysis of issues such as the Niger Documents, Plame Affair, Torture Memos, NSA issues and Signing Statements, to a broader audience than the prof blogs can reach.
Is it a poison for a practitioner to discuss politics? Partisan politics, yes.
However I don't see a downside in arguing for equal application of and respect for the law. That may even be one of those civic duties they may have mentioned at the bar admission ceremony.
I would hope that there is a centrist bloc of practitioner bloggers who simply want the truth to come out. Jack Nicholson is wrong, we can handle the truth.
So let's continually ask whether our Government is acting lawfully.
I've been asked to note here that Blawg Review has information on next week's review and how you can submit entries. I sure hope you will address these issues then.
