Revamping the Blog

Of course, given what “vamping” means, I think “revamping” ought to mean something altogether different. But I digress.

Anyway, the thing is, I’ve decided to jettison politics on the blog in favor of (mostly) straightforward legal analysis (with occasional forays into sports and music, because it’s my blog and I can do that if I want). But no more politics, left, right or center.

I’m doing this for at least a couple of reasons. First, being a lawyer, the law is something I actually know something about, and I’ve grown weary of people who are experts in one field (say, economics) believing themselves to be experts in everything even tangentially related to their field of expertise; and, specifically, believing themselves to be experts in politics and the political process itself … which most of them (us) most assuredly are not. So I think I’ll stick to writing about something I actually know. Which is the law.

Second, politics is toxic. It really doesn’t matter if you are liberal or conservative – or one of those mythical independents, who, I think, are really just conservatives for the most part – because no matter what your frame of reference, if you write about politics long enough you will be attacked, and not just by the other side. You will be attacked by people who agree with ninety percent of what you have to say, but who’ve decided, for reasons no one really understands, that the ten percent on which you disagree is far more important than the ninety percent on which you’re jake; so much so that the fact that you disagree on that particular ten percent makes you worse than the political opposition, ninety percent jake-ness not withstanding.

So I leave the politics to those who know what they’re talking about and to those who can deal with the circular firing squad that politics has become, left, right and center.

One last thing. I don’t plan to post nearly as frequently as I’ve done in the past. Maybe once or twice a week, maybe more often, depending on whether I can actually devote the time to it. Occasionally, I may post short pieces on sports or music or whatever else strikes me (but not politics). But by and large, my presence here will be less than it’s been over the past few months. I don’t doubt that that will cause many readers to lose interest, but so be it. Nobody’s getting rich doing this anyways.

Your Friday Clash Song: Generatin’ Steam Heat …

So, yeah, I know I’ve mentioned this song before, but when I was out for a run this morning listening to my iPod both the Clash and the Ramones came up in rotation (“Police On My Back” and “I Wanna Be Sedated,” respectively), and it hit me: What you really need today is a double dose of punk. Because it’s Friday, after all, and who doesn’t need a double dose of punk, any day of the week. It’s like an IV-bag full of black coffee and a cold hard slap in the face. And I mean that in a good way.

So, I give you a minute-long full-metal-’70s cover of “Blitzkrieg Bop” by The Only Band That Mattered. Or matters, depending on your perspective. The only thing wrong with this song is that there’s not more of it. The Clash Wiki says their cover of “Blitzkrieg Bop” “[w]as played live during 1978, where the band would segue it into the end of Police & Thieves” and “[a] live performance from Le Stadium, Paris 1978 is included as a hidden track on the promotional album Rockers Galore.” So we got that goin’ for us. Which is nice.

The video posted above is one of at least a half dozen live recordings of “Blitzkrieg Bop” you can find on YouTube, all of which are roughly the same length and all of which seem to be truncated at either the beginning or the end. I chose this one because the sound is marginally better that the others. Emphasis on marginally. I just wish there was a longer version because … I mean, holy hell (pardon the expression) it’s the Clash doing the Ramones, fer Chrissakes.

But it does give me the opportunity to add this, from Joe Strummer and the Mecalaros:

Yeah, I know. I posted that before too. But, come on. It’s awesome.

And, just because it’s my blog and I can do what I want, here’re the Ramones at the end of their storied career, doing it the way nobody else ever could:

So there you go. Your Friday Clash Song: The Clash + the Ramones = Unmitigated Awesomeness.

Turn. It. Up.

Saddest Song Ever?

Yesterday on Facebook, local deejay Lin Brehmer of WXRT was taking suggestions for a list he was compiling of the saddest songs ever. I haven’t seen the final list, but the first song that came to mind for me was Bruce Springsteen’s “Stolen Car” from The River (1980):

She asked if I remembered the letters I wrote

When our love was young and bold

She said last night she read those letters

And they made her feel one hundred years old

And I’m driving a stolen car

On a pitch black night

And I’m telling myself I’m gonna be alright

But I ride by night and I travel in fear

That in this darkness I will disappear.

Yeah, that’s pretty … um … gloomy, eh?

Still, I can’t say it’s necessarily the saddest song ever. Scanning through my iTunes library, a few others occur to me … like the Replacements’ “Sadly Beautiful” from All Shook Down (1990). Here’s Paul Westerberg performing “Sadly Beautiful” live in New York in 1996 (appropriately enough, because All Shook Down was really meant to be his first solo record, not the Replacements’ final LP):

Of course, “Straight to Hell” by the Clash would also fit the bill:

As railhead towns feel the steel mills’ rust

Water froze in the generation

Clear as winter ice

This is your paradise …

Another worthy selection: James Taylor’s “Fire and Rain,” a song about the death of a close friend and Taylor’s own struggles with drug addiction, which might be one of the most finely crafted pop songs ever written:

“San Diego Serenade” by Tom Waits, another song from my misspent youth, certainly deserves consideration:

And since we’re wandering all over the map, genre-wise, I’ll just go ahead and throw this out: Vince Gill’s “Go Rest High On That Mountain,” easily the saddest country/bluegrass song ever written:

Here’s another version, featuring Ricky Scaggs and Urbana, Illinois’ own Alison Krauss. (Religious implications aside, having lost two brothers I know whereof he speaks.)

Anyway, speaking of country/bluegrass/folk/etc., John Prine’s “Paradise” earns an honorable mention. This a live version from 1982 featuring Vince Gill and Marty Stuart that captures the song’s wistfulness and sense of loss:

And the Pogues’ “Streets of Sorrow/Birmingham Six” would certainly make my list:

You’ll be counting years

First five then ten

Growing old in a lonely hell

Round the yard and the stinking cell

From wall to wall, and back again …

You can’t have a list of the saddest songs of all time without at least one reference to The Old Sod, now can you?

Finally, I can’t overlook “No Woman No Cry” by the great Bob Marley (though it’s hard to think of reggae as “sad” …):

Anyway, I’m sure I’m missing all sorts of obvious choices, but that’s what I came up with off the top of my head. Feel free to make suggestions in the comments section …

UPDATE: So, my sister Joan alerted me to the fact that Lin Brehmer has now posted his list of “The Rock and Roll Generation’s Ten Saddest Songs,” and I note that Mr. Brehmer, my erstwhile Best Friend In The Whole World (as he likes to say to all of his listeners), did not take my suggestion and include “Stolen Car.” I still say the lyric about a guy’s wife reading his old love letters and them making her “feel one hundred years old” is, maybe, the saddest lyric I’ve ever heard, but whatev.

On the other hand, he has some excellent selections. I can’t believe I overlooked Warren Zevon’s “Keep Me In Your Heart,” although Bruce Springsteen’s cover of “My Ride’s Here” is nearly as poignant. It’s hard to top a song written by a guy who knows he’s dying and doesn’t want you to forget him, though. I also forgot about the Cure’s “Pictures of You,” which Lin lists at No. 5. Here’s a pro-tip. If your brother dies and you’re asked to find pictures of him for his wake: Do not listen to the Cure’s Disintegration while you’re doing it. Because “Pictures of You” will come on, and you will die. Trust me. I know this to be true.

So, there’s that.

Oh, and Hüsker Dü’s “Hardly Getting Over It” at No. 2? Well played, sir. Well played indeed.

But I still would’ve included “Stolen Car.”

Was Ron Paul “Shafted” by the Media?

Roger Simon at Politico thinks so:

I admit I do not fully understand Ron Paul and his beliefs. But I do understand when a guy gets shafted, and Ron Paul just got shafted.

On Saturday, the Ames Straw Poll was conducted in Iowa amid huge media interest and scrutiny. The results were enough to force one Republican candidate, Tim Pawlenty, out of the race, and catapult another, Michele Bachmann, into the “top tier.”

…

As The Daily Beast put it: “The new top tier of Bachmann, Perry, and Romney — created by Bachmann’s Iowa straw poll win, Perry’s entry into the race and Romney’s lead so far in many national and state polls — has unleashed torrents of talk about the reshaped race.”

Paul’s name was not mentioned in this piece nor in many others. A Wall Street Journal editorial Monday magnanimously granted Paul’s showing in the straw poll a parenthetical dismissal: “(Libertarian Ron Paul, who has no chance to win the nomination, finished a close second.)”

But “close” does not fully describe Paul’s second-place finish. Paul lost to Bachmann by nine-tenths of one percentage point, or 152 votes out of 16,892 cast.

It’s a sentiment I’ve seen elsewhere, too: that the media treats poor libertarian Ron Paul differently, takes him less seriously, than other candidates, and that, presumably, is “unfair.”

I’m not altogether sure the media is shunning Ron Paul, to be honest with you. He may have done well in the altogether meaningless Ames Straw Poll this year, but he has essentially no track record on the national level. During the 2008 Republican primary elections he mostly polled in the single digits; and, as for the current election cycle, in the latest RealClearPolitics average of major opinion polls Ron Paul garners 9% support among Republicans, fourth behind Mitt Romney, Rick Perry, Michele Bachmann, and the as-yet undeclared Sarah Palin. Consequently, I suspect a lot of folks in the media just don’t think his 2012 campaign will amount to much, and so they may not be shunning Ron Paul so much as allocating scarce resources elsewhere.

But even if the media is shunning Paul, it may have less to do with his cranky libertarianism than his troubling past. I’m referring, of course, to his pre-internet era newsletters, first known as The Ron Paul Political Report then later renamed The Ron Paul Survival Report, which often contained disturbingly racist ad hominems for which Paul still hasn’t offered a cogent explanation. In 2007, Daily Kos documented some of the carnage, including a 1992 piece in which the author wrote, in response to the Los Angeles riots, “our country is being destroyed by a group of actual and potential terrorists – and they can be identified by the color of their skin.” In January 2008, James Kirchick at The New Republic waded further into the dreck, writing:

Finding the pre-1999 newsletters was no easy task, but I was able to track many of them down at the libraries of the University of Kansas and the Wisconsin Historical Society. Of course, with few bylines, it is difficult to know whether any particular article was written by Paul himself. Some of the earlier newsletters are signed by him, though the vast majority of the editions I saw contain no bylines at all. Complicating matters, many of the unbylined newsletters were written in the first person, implying that Paul was the author.

But, whoever actually wrote them, the newsletters I saw all had one thing in common: They were published under a banner containing Paul’s name, and the articles (except for one special edition of a newsletter that contained the byline of another writer) seem designed to create the impression that they were written by him--and reflected his views. What they reveal are decades worth of obsession with conspiracies, sympathy for the right-wing militia movement, and deeply held bigotry against blacks, Jews, and gays. In short, they suggest that Ron Paul is not the plain-speaking antiwar activist his supporters believe they are backing--but rather a member in good standing of some of the oldest and ugliest traditions in American politics.

And as far as I can tell, Ron Paul has never really come clean on those bigoted rants. After the Kirchick piece in The New Republic, Paul told CNN that he “repudiate[s] everything that is written along those lines,” but his explanation for how they got there strains credibility:

Paul told CNN’s “The Situation Room” … that he didn’t write any of the offensive articles and has “no idea” who did.

Yeah, right. It may be true that Ron Paul didn’t write those words, although, as Kirchick pointed out, they went out under his name, without attribution to any other writer, and were often written in the first person so as to imply they were, in fact, his words. But even if he didn’t write them, I find it hard to believe that he has “no idea” who did; and, more to the point, he must have approved that racist garbage at the time the newsletters were published. If his views have changed in the meantime, I think he owes us an explanation as to why he thought those rants were acceptable back then, and what caused his change of heart. Without that, Paul’s statement that he “repudiates” the vicious racism put out under his own name just rings hollow.

So, I can understand why the media might be a little uneasy with Ron Paul. And, frankly, it’s nobody’s fault but Ron Paul’s.

On the Air Again With Tim Corrimal and Friends – Episode 178

After a one week hiatus, Tim and I are back with Episode 178 of The Tim Corrimal Show. This week, Tim and I were joined by husband and wife team Raine (@Raine1967 on Twitter) and Bob (@BobberDC on Twitter) of The Four Freedoms Blog to discuss state of the world.

After naming our Twitter Friends of the Week (and do check out mine: @Picassokat), it was time for the Republican 2012 Clown Car Update, with Tim noting that former Minnesota Gov. Tim Pawlenty apparently dropped out of the race today; Michele Bachmann won the all-but-meaningless Ames Straw Poll beauty contest (closely followed by Ron Paul, the guy who still hasn’t explained those troubling newsletters he published in the 1980s and ’90s …); and the ascension and near-coronation of Texas’ other semi-literate Republican Governor, Rick Perry, who announced yesterday that he’s running for president. We also discussed Newt Gingrich’s assertion that he’s the King of Twitter (video via Countdown With Keith Olbermann), which, as Gawker explained last week, is pure Gingrichian fantasy.

We also spent some time discussing Standard & Poor’s downgrade of the nation’s credit rating, including the story of the St. Louis area woman who hired a plane to fly over Wall Street with a banner reading: “Thanks for the Downgrade. You Should All Be Fired.” Tim also played a clip of Robert Kuttner from The American Prospect discussing the downgrade with Keith Olbermann. That segment is well worth watching in its entirety.

Although we were running short on time, we briefly discussed last week’s recall elections in Wisconsin, in which Democrat Jessica King defeated incumbent Republican Randy Hopper in the state’s 18th Senatorial District, and Democrat Jennifer Shilling defeated incumbent Republican Dan Kapanke in the 32nd District. Because we were running late at that point, we did not have a chance to play this clip of Jessica King and State Sen. Chris Larson discussing the recall elections with David Shuster, but I recommend it. In particular, as Sen. Larson points out, Republicans now have only a 17-16 majority in the Wisconsin Senate, and Republican Dale Schultz (whom I mistakenly referred to as Dan Schultz – apologies to @pastordan!) is known for moderation. In fact, Sen. Schultz voted against the state’s controversial anti-collective bargaining bill last March, the lone Republican to do so. Which means the Democrats’ gaining two seats in the Wisconsin Senate is, in fact, a significant win.

More to the point, though, the Wisconsin experience shows that the key to progressives’ success is to focus on the state and local level, where real change is possible. This is a lesson that cannot be stressed enough these days. If liberals and progressives want to change Washington, we have to do it one congressional district at a time.

In any event, in my Legal Corner segment today I went over the two federal appellate court decisions I wrote about last week – Vance v. Rumsfeld and Ali v. Rumsfeld – in which the U.S. Court of Appeals for the Seventh Circuit found that former Defense Sec. Donald Rumsfeld could be sued for the torture and abuse of American citizens at a military base in Iraq; but the District of Columbia Circuit ruled that Sec. Rumsfeld and other military officials could not be sued for the torture and abuse of Afghan and Iraqi nationals at Bagram Air Force Base and Abu Ghraib prison. I should point out that August 4, 2011, the U.S. District Court in the District of Columbia also ruled that former Sec. Rumsfeld could be sued by a U.S. military contractor over allegations of torture that occurred in Iraq.

That case is captioned John Doe v. Donald Rumsfeld, et al., No. 08-CV-1902 (U.S. Dist. Ct., D. D.C.), and you can download a copy of Judge James Gwin’s August 4, 2011 ruling in .pdf format here. In the John Doe case, the District Court determined that the plaintiff could not sue Rumsfeld for violation of the Detainee Treatment Act of 2005, 42 U.S.C. § 2000dd(a), which provides that “[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.” Doe v. Rumsfeld, mem. op. at 9-10. Ultimately, however, the District Court found that the plaintiff could assert a claim against Rumsfeld under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violation of his Fifth Amendment substantive due process right “to be free from conduct and conditions of confinement that shock the conscience.” Doe v. Rumsfeld, mem. op. at 28.

Finally, we ended the show with a discussion of Pat Buchanan’s latest racist faux pas, the one where he referred to Pres. Obama as Rev. Al Sharpton’s “boy” on Sharpton’s MSNBC show. Tim played a clip of The Jimmy Dore Show in which the panel considered Buchanan’s almost-equally-unbelievable “defense” of that remark (“I was … using boxing terminology …”) and found it to be, um, lacking.

So, I’ll end here by reiterating the point I made at the close of today’s show: The Buchanan incident reminds me, and it should remind all liberals and progressives, that this is what Pres. Obama is up against. Day after day after day. This is what the President of the United States has to deal with; and if we on the left aren’t conscious of that fact, well … we should be.

Your Friday Clash Song: As the Daily Crown Disperses, No One Says That Much …

So, I resisted the temptation to go with “London’s Burning” or “Guns of Brixton” this week, as much as those songs might seem to fit the bill, because I don’t want to exploit the recent violence in the UK and I feel woefully ignorant about the real causes of what’s going on there. For further reading on that subject, local blogger extraordinaire Emily Hauser recommends this post by Londoner Penny Red. I’d rather read and listen to people who live there and are directly affected by the upheaval than speculate about it from thousands of miles away, but I’m sure the situation is far more complex than American media let on.

Anyway, in lieu of more obvious choices, I elected to go with “Somebody Got Murdered” from Sandanista! (1980) in honor of Tariq Jahan, a Birmingham father who rose above the tragedy of his own son’s death last week to promote peace:

In a message to the local community, [Jahan] implored: “Today we stand here to plead with all the youth to remain calm, for our communities to stand united.

“This is not a race issue. The family has received messages of sympathy and support from all parts of society.”

Visibly emotional, Jahan added: “I lost my son. Blacks, Asians, whites – we all live in the same community. Why do we have to kill one another? Why are we doing this? Step forward if you want to lose your sons. Otherwise, calm down and go home – please.”

If that’s not one of the most compelling stories to come out of England these days, I don’t know what is.

So, about the song. Joe Strummer described the genesis of “Somebody Got Murdered” this way:

We got a phone call from Jack Nitzsche and he said “We need a heavy rock number for this movie with Al Pacino” so I said OK. I went home and there was this guy in a pool of blood out by the car parking kiosk. That night I wrote the lyric. I gave it to Mick and he wrote the tune. We recorded it and Jack Nitzsche never called back.

Maybe it’s just as well, because the song stands on its own as a testament to one of the band’s core principles: its longstanding opposition to violence, political and otherwise. More than anything, “Somebody Got Murdered” speaks to the utter futility of urban violence in a way that resonates this week, especially after the senseless death of Tariq Jahan’s son:

And you’re minding your own business

Carrying spare change

You wouldn’t cosh a barber

You’re hungry all the same

I’ve been very tempted

To grab it from the till

I’ve been very hungry

But not enough to kill

Somebody got murdered

His name it can’t be found

A small stain on the pavement

They’ll scrub it off the ground

As the daily crown disperses

No one says that much

Somebody got murdered

And it left me with a touch …

(A “cosh,” by the way, is a blackjack or bludgeon; the verb “to cosh” means “to hit on the head with a cosh.”)

It’s a haunting song, “Somebody Got Murdered,” but it’s further proof that the Clash were the moral voice of pop music at a time when no one else really cared to be. It’d be nice if people still listened to what they had to say.

So there you go. Your Friday Clash Song. Turn. It. Up.

Torture Week Continues …

It was not my intention to blog all week about legal liability for claims of torture, but it’s been a hot topic in the news lately. Yesterday, veteran Chicago political reporter Carol Marin reported on a local case that’s taken on national interest:

For the first time, a federal judge has ruled former [Chicago] Mayor Richard M. Daley can be sued as a defendant for his alleged role in what plaintiffs claim is a citywide conspiracy to cover up police torture.

And Daley could be deposed by lawyers representing alleged victims, all African American, who charge their abuse came at the hands of a small band of predominantly white police officers under the command of former Chicago Police Cmdr. Jon Burge.

…

Burge was convicted last summer of perjury and obstruction of justice for lying in a civil court case when asked if he knew of the torture. He is serving a four-and-a-half year sentence in federal prison.

The alleged cover-up dates back to the mid 1970s.

…

Michael Tillman spent 23 years in prison for murder. He confessed, said [Tillman’s attorney, Flint] Taylor, because he was suffocated and beaten by Chicago Police officers. “They used a form of waterboarding, pouring 7-Up up his nose,” Taylor said. “That’s the kind of torture they used over a four-day period with Michael Tillman.”

When he was released in 2010, Cook County special prosecutors concluded there was no reliable evidence against him. Tillman received a certificate of innocence from the chief judge of the Criminal Courts of Cook County.

In his civil lawsuit, Tillman alleges the city conspired to cover up torture cases.

The case is captioned Michael Tillman v. Jon Burge, et al., No. 10 C 4551 (U.S. Dist. Ct., N.D. Ill.), and you can read Judge Pallmeyer’s July 20, 2011 Memorandum Opinion and Order in which she ruled that former Mayor Daley could be held liable for some of Tillman’s claims here; you can download a .pdf copy of that ruling here.

By way of background, Tillman sued Burge, Daley and several city, county and police department officials who allegedly were involved in committing and/or covering up widespread torture at the city’s Area 2 Police Headquarters where Burge served as a commanding officer in the 1980s, all of which began well before Tillman was arrested and tortured there. As against Mayor Daley:

Plaintiff alleges that as Mayor and State’s Attorney, Defendant Richard Daley had personal knowledge of the alleged abuses perpetrated by Burge and other Defendants at Area 2, but declined to investigate the abuses and failed to disclose these exculpatory allegations. Plaintiff asserts that, had Daley and Martin investigated the allegations of abuse at Area 2 prior to his arrest, he would not have been tortured and would not have been wrongfully convicted. Plaintiff further alleges that as a result of a conspiracy between Daley, [former Police Superintendent LeRoy] Martin, [former Police Superintendent Terry] Hillard, [former Superintendent’s Aide Thomas] Needham, [former Office of Professional Standards Director Gayle] Shines and others to suppress information about torture at Area 2, “Plaintiff’s wrongful prosecution was continued, his exoneration was delayed and his imprisonment lasted far longer than it otherwise would have.” According to Plaintiff, between 1989 and 1992, Daley and Martin were given “additional actual notice that Burge was the leader of a group of Chicago detectives that systematically tortured and abused African American suspects” through an Amnesty International report and public hearings. Plaintiff alleges that in 1996, despite his knowledge that findings of torture and abuse had been made against Defendant Dignan, Daley promoted Dignan to lieutenant. Plaintiff also alleges that Daley, against the advice of his senior advisers, “personally insisted” throughout his tenure that the City of Chicago “continue to finance the defense of Burge, Byrne, Dignan, and other Area 2 detectives, despite his personal knowledge that Burge committed acts of torture.”

Tillman v. Burge, Mem. op. at 9 (.pdf) (citations to Complaint omitted).

Tillman’s Complaint asserts claims for violation of his federal constitutional rights under Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983; various state law claims for malicious prosecution, intentional infliction of emotional distress and the like; and conspiracy claims under both state and federal law. (Id. at 2.) While Judge Pallmeyer found that Daley could not be held liable on the substantive torture and abuse counts because Daley was not directly involved in those acts (and Tillman acknowledged that Daley, when acting in his capacity as Cook County State’s Attorney, was entitled to immunity; see id. at 22-23 n. 13), she ruled that Daley, in his capacity as Mayor, could be held liable on the conspiracy counts. With regard to the federal conspiracy count under Section 1983, the court explained:

In this case, Plaintiff has explained the role that each of the individual Defendants played in greater detail. His allegations suggest that Plaintiff’s torture was more than just an isolated incident, and suggest, further, that the suppression of the truth about what occurred at Area 2 was the result of coordinated efforts that continued for some time. As discussed above, the Defendant Officers are alleged to have participated directly in the torture, as did Burge; [former Assistant State’s Attorney Timothy] Frenzer allegedly did so as well, by attempting to take a statement when he knew the torture was ongoing; Martin and Daley are said to have undermined and obstructed findings of torture; Shines allegedly suppressed findings of torture; and Plaintiff claims that Needham and Hillard continued to suppress findings and undermine investigations into torture at Area 2 after they took office. Plaintiff has listed a litany of actions at Area 2 furthering and concealing the abuse that took place there, and has also provided specific allegations regarding acts of torture performed on this Plaintiff and on others. These allegations are sufficient to allege a § 1983 conspiracy. More specific allegations against the individual Defendants–a showing that their decisions to join in the general purpose of the conspiracy were deliberate and coordinated, for example–would indeed be helpful. The nature of conspiracy itself often prohibits such detail at the pleading stage, however. The court concludes Plaintiff has presented more than “naked assertions,” and his conspiracy claim survives.

Id. at 36-37 (citations to Complaint omitted).

Of course, it is important to note that Tillman’s civil case against Burge, former Mayor Daley and the other city, county and police officials is far from over. At this juncture, all the court has done is to deny (in part) the various defendants’ (including Daley’s) motions to dismiss. That means that insofar as Daley is concerned, the court determined that the conspiracy counts of Tillman’s Complaint are legally sufficient, and so he may proceed with discovery (including Daley’s deposition) and, barring further dispositive motions down the road, to trial on those counts. As with the Vance v. Rumsfeld case I discussed on Monday, there is still a long way to go before Tillman obtains justice, and it’s anyone’s guess whether there will be appeals down the road that may derail that process altogether. Still, I am encouraged by the District Court’s ruling in Tillman’s case.

We may yet see elected officials and high ranking cabinet members held accountable for torture and abuse committed on their watch. Judge Pallmeyer’s ruling in the Tillman v. Burge case brings us a step closer to that day.

Ghost Town

I’ve purposefully avoided writing about the riots in the UK because news coverage in America has been remarkably thin and I don’t want to comment about something that sensitive without knowing the facts. But all of this is eerily reminiscent of the strife that gripped that country in the early 1980s, and immediately upon hearing about the violence I thought of this: “Ghost Town,” the 1981 record by the English ska group The Specials.

Turns out, my musical instincts were correct.

From Dorian Lynskey in The Guardian on August 9, 2011, discussing “crisis music” that captures the mood of social upheaval:

Certain genres are aflame with crisis music: late-60s rock, mid-70s reggae, punk, early-90s hip-hop, the bleaker end of grime and dubstep. I can’t help notice that a common newspaper headline echoes the title of a Clash crisis song, London's Burning, but the one most mentioned over the last few days is Ghost Town by the Specials.

Like all cultural myths, the myth of Ghost Town can be annoying and overstated. The charts, as a rule, are not stuffed with records documenting social anxiety. My colleague Alexis Petridis is fond of pointing out that the single competing for the No 1 spot when riots exploded across Britain in the first week of July 1981 was Bad Manners’ version of the Can-Can, which would certainly make for a more antic soundtrack to archive footage of Brixton and Toxteth. …

But still, [“Ghost Town”] was the No 1 single and a remarkable one at that. Forget the lyrics for a moment: the mood is the message. As I wrote in my book: “It is the negative image of a song like Babylon’s Burning: hollowed out rather than crammed with incident, smouldering instead of blazing. Like all great records about social collapse, it seems to both fear and relish calamity.” …

Ghost Town is a prophecy that sounds like an aftermath. The ghost town it describes, gutted by recession, is the terrain before a riot (“people getting angry”) but you sense it will be as bad or worse after the anger has erupted. Hence the song’s circularity: it begins as it ends, with a spectral wail that could be either a cold wind or distant sirens. When the riots did break out, the Specials found the experience frightening rather than vindicating. …

In its nauseous fatalism Ghost Town expresses how I’ve felt watching the chaos on London streets over the past few days. The comments, in newspapers and online, which chime with me are the ones professing sadness, confusion and a willingness to wait for more information before jumping to conclusions, the latter being particularly welcome.

Understanding what’s going on in the UK far less than someone like Mr. Lynskey, I, of course, will jump to no conclusions, but I do want to echo something my friend Danielle Blake (@DCPlod) said on Twitter earlier today. Danielle lives there, so she knows what she’s talking about; and so I took notice when she said this:

I have so much respect for Tariq Jahan - the guy’s just lost his son, and he’s urging peace and calm. Cops better catch his son’s killers.

And then:

Also, Tariq Jahan’s response and the bravery of the three dead young Muslims is the strongest possible rebuttal to Islamophobia. #ukriots

What she’s referring to is this:

The pressure on [Prime Minister David] Cameron followed a day of rising tensions in Birmingham as community leaders and police appealed for calm following the death of Haroon Jahan, 21, and brothers Shazad Ali, 30 and Abdul Musavir, 31. The three were part of a group of around 80 guarding a petrol station and shops from looters in Winson Green when they were victims of a hit-and-run in the early hours of Wednesday. A murder inquiry has been launched, and a 32-year-old man is being questioned.

Amid fears the deaths could spark inter-communal reprisals, the distraught father of Jahan made an emotional appeal to the community, revealing he had desperately tried to resuscitate his youngest son.

Holding a photograph of Haroon, Tariq Jahan, said he was nearby and rushed to help. “I ran towards the commotion and the first guy I found was someone I didn’t know. I started giving him CPR until someone pointed out that the guy behind me was my son on the floor,” he said.

“So I started CPR on my own son, my face was covered in blood, my hands were covered in blood. Why, why?

“He was trying to help his community and he has been killed.” Describing his son, a mechanic and keen boxer, as “a very well-liked kid”, he said: “I can’t describe to anybody what it feels like to lose a son. He was the youngest of three, and anything I ever wanted done, I would always ask Haroon to sort it out for me.

“A day from now, maybe two days from now, the whole world will forget and nobody will care.”

In a message to the local community, he implored: “Today we stand here to plead with all the youth to remain calm, for our communities to stand united.

“This is not a race issue. The family has received messages of sympathy and support from all parts of society.”

Visibly emotional, Jahan added: “I lost my son. Blacks, Asians, whites – we all live in the same community. Why do we have to kill one another? Why are we doing this? Step forward if you want to lose your sons. Otherwise, calm down and go home – please.”

As I say, I don’t pretend to fully grasp the underlying cause of the unrest there, but I do understand basic human decency, and it’s clear to me that Tariq Jahan embodies that virtue. I hope his message, ultimately, is the one that prevails.

And Now the Bad News …

Yesterday I reported on a federal appellate decision out of the Seventh Circuit in Chicago in which the Court of Appeals affirmed a ruling by the District Court denying motions by former Defense Secretary Donald Rumsfeld and the United States to dismiss a lawsuit brought against them by two U.S. citizens for alleged acts of torture they endured at the hands of U.S. forces while in custody in Iraq. Although that case is far from over (see today’s piece Adam Serwer at The American Prospect in which he briefly describes how that case and others like it can still go south), the ruling, if it stands, is an important step toward holding high ranking Bush Administration officials responsible for serious wrongdoing – including torture – committed in the so-called “war on terror.”

But the key thing to remember about that case, Donald Vance and Nathan Ertel v. Donald Rumsfeld and the United States of America, Nos. 10-1687, 10-2442 (7th Circuit August 8, 2011), is that the two plaintiffs who sued Rumsfeld and the U.S. government were American citizens. Consequently, the Seventh Circuit found that if the allegations of the plaintiffs’ complaint were true, then they were entitled to maintain a claim for damages against Rumsfeld for violations of their constitutional rights under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The fact that their rights were violated in Iraq, rather than in the United States, was immaterial:

[W]e agree with the district court that a Bivens remedy is available for the alleged torture of civilian U.S. citizens by U.S. military personnel in a war zone. We see no persuasive justification in the Bivens case law or otherwise for defendants’ most sweeping argument, which would deprive civilian U.S. citizens of a civil judicial remedy for torture or even cold-blooded murder by federal officials and soldiers, at any level, in a war zone. United States law provides a civil damages remedy for aliens who are tortured by their own governments. It would be startling and unprecedented to conclude that the United States would not provide such a remedy to its own citizens.

Vance v. Rumsfeld, slip op. at 3 (.pdf).

At the same time, however, the Court of Appeals in Vance recognized that other circuits have held that non-U.S. citizens could not maintain lawsuits for damages based on allegations of torture that occurred outside U.S. territory. In particular, the Vance court cited a recent decision by the District of Columbia Circuit, Ali v. Rumsfeld, No. 07-5178 (D.C. Cir. June 21, 2011) (.pdf), in which the court upheld the dismissal of claims brought by Afghan and Iraqi civilians against Rumsfeld and various U.S. military officials for abuse and torture at Bagram Air Force Base and Abu Ghraib prison.

The allegations of torture and abuse in Ali v. Rumsfeld are similar to, but even worse than, the allegations in Vance (I set out the Court of Appeals’ summary of those allegations in Vance in yesterday’s post). Without reiterating those allegations verbatim here, the amended complaint filed in Ali alleged that four of the plaintiffs, who were Afghan citizens, were held for various lengths of time during 2003 and 2004 at Bagram, and the other five plaintiffs, who were Iraqi citizens, were held for various lengths of time during the same period at Abu Ghraib. Each of the plaintiffs alleged that he was subject to various forms of torture and abuse, including sleep deprivation, exposure to extreme temperatures, beatings, deprivation of medical care, death threats, mock executions, deprivation of food and water, and sexual assault. See Ali, slip op. at 3-5. With regard to the individual defendants, including Rumsfeld and various high ranking military officials, the plaintiffs alleged that they:

(1) formulated or implemented policies and practices that caused the torture and other cruel, inhuman or degrading treatment of Plaintiffs; and (2) had effective command and control of U.S. military personnel in Iraq and/or Afghanistan and knew and had reason to know of torture and abuse by their subordinates and failed to promptly and effectively prohibit, prevent and punish unlawful conduct.

Id. at 5.

Like the plaintiffs in Vance, the Ali plaintiffs brought Bivens claims against Rumsfeld and the others for violating their rights under the Due Process Clause of the Fifth Amendment and the Eight Amendment’s prohibition against cruel and unusual punishment. The Ali plaintiffs also asserted claims under the Alien Tort Statute, 28 U.S.C. § 1350, for violations international law, and directly under the Geneva Conventions; and sought a declaratory judgment against Rumsfeld finding that he violated international law, U.S. treaty obligations and the Constitution. Ali, slip op. at 5-6. The District Court dismissed all of the plaintiffs’ claims, and the plaintiffs appealed every issue except the dismissal of their claims under Geneva. Id. at 6-11.

The bulk of the Court of Appeals’ decision deals with the constitutional issues raised by the plaintiffs, and that discussion turns on two major questions: Whether the plaintiffs, who were not U.S. citizens, could assert claims based on the U.S. Constitution; and whether the defendants were entitled to qualified immunity in the event the plaintiffs could do so. With regard to the first issue, both the District Court and the Court of Appeals relied on a series of cases, including Johnson v. Eisentrager, 339 U.S. 763 (1950), and United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), and Zadvydas v. Davis, 533 U.S. 678 (2001), all of which essentially hold that while non-U.S. citizens are protected by the U.S. Constitution while they are physically present within the territorial limits of the United States, they do not have rights under our Constitution in relation to actions taken by the U.S. government outside the territorial limits of the United States. See Ali, slip op. at 7-8 n. 5 for an explanation of those cases.

However, the Court of Appeals recognized that all of those cases were decided prior to the Supreme Court’s decisions in Rasul v. Bush, 542 U.S. 466 (2004), and Boumediene v. Bush, 553 U.S. 723 (2008), which held that foreign detainees at Guantánamo Bay, Cuba, were entitled to file habeas corpus petitions under the Suspension Clause of Article I, Section 9 of the Constitution. So, the question arose whether Rasul and Boumediene effectively overruled or modified earlier cases that held that foreign citizens could not avail themselves of rights under our Constitution for acts occurring outside the country. The Ali court concluded that the answer was most likely no, noting that “the Supreme Court in Boumediene ‘explicitly confined its constitutional holding “only” to the extraterritorial reach of the Suspension Clause’ and ‘disclaimed any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause.’ [Rasul v. Myers,] 563 F.3d [527,] at 529 [(D.C. Cir. 2009) (per curiam)] (quoting Boumediene, 553 U.S. at 795).” Slip op. at 14.

In other words, Ali interpreted the Supreme Court’s decision in Boumediene to be limited to allowing non-citizens at Guantánamo the right to assert habeas corpus rights; that ruling, according to the Ali court, did not apply to non-citizens located anywhere else in the world (and, in particular, to the plaintiffs in this case who had been incarcerated in a war zone), and it did not apply to any constitutional rights other than the right to bring a habeas petition.

In the end, however, the Ali decision turned not so much on a finding that the plaintiffs had no constitutional rights (although the court believed they had none), but instead on the defendants’ qualified immunity. As the court explained, “[q]ualified immunity shields a government official from civil liability if his conduct ‘does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,’” citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Ali, slip op. at 13. And so, based on the its reading of Boumediene, the court concluded:

As it was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens detained at Guantanamo Bay—where the Supreme Court has since held the Suspension Clause applies—it plainly was not clearly established in 2004 that the Fifth and Eighth Amendments apply to aliens held in Iraq and Afghanistan—where no court has held any constitutional right applies. … [T]herefore, the defendants here are protected from the plaintiffs’ constitutional claims by qualified immunity.

Id. at 14-15 (footnote omitted).

Unfortunately, if I were a betting man I would lay odds that the Supreme Court would agree with the District of Columbia Circuit in Ali, and would, perhaps, go a step further and conclude that non-citizens in the plaintiffs’ circumstances – that is, detained, tortured and abused in a war zone outside the United States – are not entitled to any constitutional rights at all. So, as encouraging as the Vance case was with regard to the rights of U.S. citizens who were subjected to torture in Iraq, the Ali decision has a much broader, and, unfortunately, very negative, impact on our ability to hold the Bush administration accountable for its crimes.