As Dean of Harvard Law School, Elena Kagan not only moved Harvard away from teaching the case method (invented at Harvard circa 1870), she eliminated Constitutional Law from the list of required courses.

As CNS reports, American Constitutional Law was demoted in favor of more international perspectives.

[I]n a 2006 Harvard news release explaining the changes, Kagan explained the move away from constitutional law was deliberate: “From the beginning of law school, students should learn to locate what they are learning about public and private law in the United States within the context of a larger universe — global networks of economic regulation and private ordering, public systems created through multilateral relations among states, and different and widely varying legal cultures and systems.

“Accordingly, the Law School will develop three foundation courses, each of which represents a door into the global sphere that students will use as context for U.S. law,” the guide said.

Among the three new required courses Kagan introduced, one focuses on public international law, involving treaties and international agreements, and the second is on international economic law and complex multinational financial transactions, according to a Harvard news release.

But the third course, on comparative law, “will introduce students to one or more legal systems outside our own, to the borrowing and transmission of legal ideas across borders and to a variety of approaches to substantive and procedural law that are rooted in distinct cultures and traditions,” the release said.

What could be a more eloquent demonstration of the precise level of deference to the US Constitution Ms. Kagan would bring to the Supreme Court?

Mohamedou Ould Slahi, Osama bin Laden, Ramzi Binalshibh and Mohammed Atta

All poor Mohamedou Ould Slahi did was recruit Mohammed Atta, Marwan al Shehhi, and Ziad Jarrah, the suicide pilots of American Airlines Flight 11, United Airlines Flight 175, and United Airlines Flight 93, for their mission on September 11, 2001.

Mr. Slahi and his defense team allege that he was tortured, i.e., beaten, exposed to uncomfortable temperatures, threatened, frightened by threats against his family, and sexually taunted by female interrogators. A DOD inquiry failed to confirm most of these allegations, but they were obviously credited, and considered to constitute torture, by the officer in charge of prosecution.

Wall Street Journal:

Although the treatment apparently induced Mr. Slahi’s compliance, the military prosecutor, Marine Lt. Col. V. Stuart Couch, determined that it constituted torture and evidence it produced could not lawfully be used against Mr. Slahi.

Col. Couch, in a March 31, 2007, Page One story in The Wall Street Journal, cited legal, professional and moral reasons for declining to prosecute.

Mr. Slahi, who was then viewed as a cooperator by interrogators, was granted various privileges at Guantánamo Bay, including his own quarters and garden to tend.

Col. Couch, now in private practice in North Carolina, said Monday’s order “is one of the consequences that the decision-makers should have foreseen when they decided to adopt a policy of cruelty, and the interrogation techniques that flowed from it.”

The same Journal article informs us that he is consequently being freed to resume his former activities.

A suspected al Qaeda organizer once called “the highest value detainee” at Guantánamo Bay was ordered released by a federal judge in an order issued Monday.

Mohamedou Ould Slahi was accused in the 9/11 Commission report of helping recruit Mohammed Atta and other members of the al Qaeda cell in Hamburg, Germany, that took part in the Sept. 11, 2001, terrorist attacks.

Military prosecutors suspected Mr. Slahi of links to other al Qaeda operations, and considered seeking the death penalty against him while preparing possible charges in 2003 and 2004.

U.S. District Judge James Robertson granted Mr. Slahi’s petition for habeas corpus, effectively finding the government lacked legal grounds to hold him. The order was classified, although the court said it planned to release a redacted public version in the coming weeks.

Mr. Robertson held four days of closed hearings in the Slahi case last year. Mr. Slahi testified via secure video link from Guantánamo Bay, said his attorney.

“They were considering giving him the death penalty. Now they don’t even have enough evidence to pass the test for habeas,” said the attorney, Nancy Hollander, of Albuquerque, N.M.

Spiegel did a major article in October of 2008 on Slahi.

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What can one possibly say about the kind of stupidity that equates misinforming, threatening, taunting, scaring, and even roughing up or inflicting some discomfort on a mass murderer with torture? Or about the legal acumen of jurists who award habeas corpus protection to unlawful belligerents apprehended overseas during time of war?

Do you suppose they can quote “Quos Deus perdere, dementat” [Those whom the gods wish to destroy, they first make mad] in Arabic?

Alcee Hastings

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In 1989, the future Rep. Alcee Hastings (D – 23FL) became the sixth federal judge in American history to be impeached and removed from office. He was found guilty of bribery and corruption, having accepted $150,000 to arrange a favorable sentence.

Hastings was subsequently nonetheless elected to the House of Representatives from a safe seat representing a “minority-majority” racially-gerrymandered district in 1992. Hastings was in line to succeed to the Chairmanship of the House Intelligence Committee when democrats regained the majority in 2006 and Nancy Pelosi expressed the intention of passing over Jane Harman (D – 36CA), but Hastings’ dishonorable past was just little too much. Hastings is now chairman of the Legislative/Budget Process sub-committee of the House Rules Committee, where he gets to “just make stuff up.”

Neal Katyal celebrates the decision in Hamdan v. Rumsfeld

Andrew C. McCarthy rebuts misleading editorial claims that certain attorneys now employed by the Department of Justice were “only doing their job” and following the conventional ethical obligations of the Bar in pursuing various kinds of innovative litigation on behalf of War on Terror detainees.

The fictional premise of these wayward complaints is that the Justice Department’s al Qaeda lawyers stand in the same shoes as criminal-defense lawyers. The latter must represent even unsavory characters because the Constitution guarantees counsel to those charged with crimes.

To the contrary, the Justice Department’s al Qaeda lawyers were volunteers, just as Mr. Holder volunteered in the Heller case. Unlike the British soldiers represented by John Adams, the Gitmo detainees are not entitled to counsel. They are not criminal defendants. They are plaintiffs in offensive lawsuits, filed under the rubric of habeas corpus, challenging their detention as war prisoners. The nation is at war, and the detainees are unprivileged alien enemy combatants. By contrast, the United States was not at war with England at the time of the Boston Massacre, and the British soldiers were lawful police, not nonuniformed terrorists.

There is no right to counsel in habeas corpus cases. Thousands of American inmates must represent themselves in such suits—there is no parade of white-shoe law firms at their beck and call. Until 2004, moreover, enemy prisoners were not permitted to challenge their detention at all. The Supreme Court rejected such claims in the 1950 Eisentrager case, precisely because they damage the national war effort. Yes, left-leaning lawyers have convinced the Supreme Court’s liberal bloc to ignore precedent and permit Gitmo habeas petitions. That neither makes these suits less damaging, nor endows the enemy with a right to counsel.

Advocating for the enemy is a modern anomaly, not a proud tradition. Defense lawyers representing accused criminals perform a constitutionally required function. Not so the Department of Justice’s Gitmo volunteers. They represented al Qaeda operatives because they wanted to, not because they had to. The suggestion that they served a vital constitutional function is self-adulating myth. Their motive was to move the law in a particular direction.

Ironically, a number of Republican and conservative lawyers have written editorials and signed letters expressing the same specious analysis that equates the proactive defense of the enemy by the members of the treasonous community of fashion with the conventional acceptance of an assigned duty to provide representation to an unpopular or controversial client. You do not find Mr. Katyal, Mr. Holder, or certain representatives of Shearman & Sterling volunteering to defend the marines charged with murder or the Navy seals who gave the leader of a mob that murdered and mutilated Americans a fat lip.

Former Attorney General Michael Mukasey and former Solicitor General Theodore Olson, I suppose, deserve some special appreciation for their highmindedness and inclination to bend over backward in order to refrain from pointing fingers at members of their own profession in the opposing camp, but their insistence on placing the best interpretation on the motives of opponents seems more than a little naive in a world in which the democrat party left endeavors to criminalize policy differences as frequently as possible.

There is the difference between Republicans and democrats, between the American right and the American left in a nutshell. Mukasey and Olson are found hastening to defend Neal Katyal’s efforts to utilize American law for the benefit of those making war against it and the Geneva Convention to protect illegal combatants who routinely flout it, while the left is enthusiastically trying to claim that Bush Administration attorneys deserve prosecution for violations of international law as well as sanctions for professional misconduct.

What we have here is the successful application by the left of Saul Alinsky’s radical technique of “making your opponent obey his own rules” on two levels. Leftwing attorneys have successfully compelled the United States government to accord constitutional protections and the privileges of domestic legal process to armed enemies captured overseas and effectively contrived to have the Supreme Court enforce Article 75 of Protocol I (1977) of the Geneva Convention which the United States never signed. Meanwhile, the left accuses and makes strong efforts to punish Republican attorneys for legal and ethical violations on the basis of ultra-partisan and highly strained interpretations. Yet, prominent Republican legal figures shrink from criticizing, even from accurately identifying, enthusiastic advocacy on behalf of the enemy in time of war as what it really is.

I would give the following paper by Amichai Cohen, International Law professor at Ono Academic College, Israel, a gentlemanly C.

Excerpt

Armed conflicts of this type have sometimes been termed “asymmetrical” –- an adjective used principally with reference to the fact that the protagonists are a state, with all its might and force, and an organization with few heavy arms and a limited number of fighters. But such conflicts are also asymmetrical in a more complicated sense: they are fought between a state, in possession of sound reasons for following the laws of armed conflicts (LOAC) or international humanitarian law (IHL), and a high incentive and organizational obligation to do so, on the one hand, and on the other hand, an organization that almost never follows these rules and has very little incentive to do so.

States involved in these conflicts mostly attempt to follow, or are expected by the international community to follow, IHL as detailed in customary international law, in the Geneva Conventions, and in other sources of applicable international law. However, it has become increasingly difficult to abide by these laws, mainly because of the novel nature of the problems that constantly arise. This brief review will only deal with two of the most prominent of such problems:

The first is how to apply the rule forbidding indiscriminate attacks on a civilian population when the enemy deliberately operates from within that environment. Direct attacks against civilians are of course always forbidden. However, what are
the appropriate norms that a state should apply when the only possible way of fighting the enemy involves risking the lives of civilians whom the enemy is using for its own protection?

A second problem arises from the fact that non-state actors are not susceptible to the range of formal and informal sanction which may be used against states. Since international law is not policed effectively, non-state actors may readily assume
that their violations of the laws of war, including those mentioned above, will not be punished by law. For example, they may target civilians of the state actor in the knowledge that there exists very small chance that they will be punished for
doing so by any international judicial body. Consequently, while one side to the conflict behaves in accordance with IHL, the other considers itself to be free of the limitations imposed by these rules.

Read the whole thing.

My criticism is that, although Professor Cohen does a workmanlike academic job of dividing alternative perspectives into models, his fundamental approach is fundamentally far too abstract, unempiric, and ahistoric.

Restricting consideration of the practical responses to terrorism, guerrilla warfare, and violations of the laws and customs of war to a small number of very recent, poorly handled examples which occurred under the leadership of democratic governments, which obviously failed satisfactorily to implement or articulate clear policies, was a fundamental mistake.

The world did not suddenly spring into existence in 1993. “Assymetrical warfare” and the cynical exploitation of the chivalrous instincts and humanitarian values of honorable and civilized armies by outlaws and barbarians has always been part of the human experience. Military commanders from Classical Antiquity down to WWII frequently dealt with decisive effect with the same problems without scandalizing posterity by cruelty and excesses.

Professor Cohen is too satisfied with the classification of perspectives into “models,” and too cautious and timid about identifying explicitly the major and important role played in the fraudulent framing of the issue as presented to the public by dishonest and ideologically biased humanitarian organizations and the media.

The courage of the elite: Metropolitan Museum prudentially removes images of Mohammed and renames Islamic Galleries.

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High rise buildings in Mecca make it evident that roughly 200 mosques are pointing in the wrong direction.

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Crime pays in Norway.. Foreigners qualify for welfare after a year in jail. If they serve three years, they get health benefits and qualify for old age pension. Hat tip to the News Junkie.

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Lawsuit begins in California federal court contending that the US Constitution mandates Gay Marriage. Wouldn’t Gouverneur Morris be surprised?

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Obama postpones State of the Union address in order to avoid preempting season opener of Lost.

Myleene Klass

British model and singer Myleene Klass called the police after she waved a knife and managed to scare off two intruders trying to break in at 12:45 A.M. British police warned her that she might very well be arrested if she did that again.

Telegraph:

Miss Klass, a model for Marks & Spencer and a former singer with the pop group Hear’Say, was in her kitchen in the early hours of Friday when she saw two teenagers behaving suspiciously in her garden.

The youths approached the kitchen window, before attempting to break into her garden shed, prompting Miss Klass to wave a kitchen knife to scare them away.

Miss Klass, 31, who was alone in her house in Potters Bar, Herts, with her two-year-old daughter, Ava, called the police. When they arrived at her house they informed her that she should not have used a knife to scare off the youths because carrying an “offensive weapon” – even in her own home – was illegal.

Jonathan Shalit, Miss Klass’s agent, said that had been “shaken and utterly terrified” by the incident and was stepping up security at the house she shares with her fiancé, Graham Quinn, who was away on business at the time.

He said: “Myleene was aghast when she was told that the law did not allow her to defend herself in her own home. All she did was scream loudly and wave the knife to try and frighten them off.

The Roosevelt Administration did not send Nazi saboteurs landed in Long Island during WWII over to Foley Square for civilian prosecution. It gave them a secret military trial and then executed 8 out of 10. The other two got lesser sentences (which were ultimately commuted after the war) in exchange for cooperation.

The Telegraph reports that once Farouk Abdulmutallab was lawyered up, we lost a potentially extremely useful intelligence source.

President Barack Obama is under fire over claims that the Christmas Day underwear bomber was “singing like a canary” until he was treated as an ordinary criminal and advised of his right to silence.

The chance to secure crucial information about al-Qaeda operations in Yemen was lost because the Obama administration decided to charge and prosecute Umar Farouk Abdulmutallab as an ordinary criminal, critics say. He is said to have reduced his co-operation with FBI interrogators on the advice of his government-appointed defence counsel.

The potential significance became chillingly clear this weekend when it was reported that shortly after his detention, he boasted that 20 more young Muslim men were being prepared for similar murderous missions in the Yemen.

And that’s why putting National Defense in the hands of ultra-liberal idealogues like Barack Obama and Eric Holder holds the potential for disaster.

The Supreme Court held in Ex Parte Quirin:

…the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.

In a less politically correct century, a humane commander would have invited the women and children to leave Fallujah prior to leveling the city and putting all of its adult male inhabitants to the sword for the atrocities committed upon four American civilian contractors who were ambushed while delivering food, dragged from their vehicle, beaten, and burned to death, after which their mutilated bodies were displayed as trophies on the side of a highway bridge over the Euphrates.

Today, as Fox News reports, we arrest and try Navy seals for roughly handling the organizer of the atrocity.

Ahmed Hashim Abed, whom the military code-named “Objective Amber,” told investigators he was punched by his captors — and he had the bloody lip to prove it.

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Michael Goldfarb is rightly disgusted.

They could’ve executed him in the desert and left him in a shallow grave for all I care…

A fat lip? That’s enough to get you rough military justice from the Obama administration, but blow up the World Trade Center and you get all the due process rights of the civilian criminal justice system. Sounds fair, right?

Lindsey Graham must have decided that he wants to keep his job. Yesterday he left Eric Holder baffled during Senate Judiciary Committee Hearings, simply by asking him: Can you give me a case in United States history where a enemy combatant caught on a battlefield was tried in civilian court?

This dialogue then followed:

GRAHAM: If bin Laden were caught tomorrow, would it be the position of this administration that he would be brought to justice?

HOLDER: He would certainly be brought to justice, absolutely.

GRAHAM: Where would you try him?

HOLDER: Well, we’d go through our protocol. And we’d make the determination about where he should appropriately be tried. […]

GRAHAM: If we captured bin Laden tomorrow, would he be entitled to Miranda warnings at the moment of capture?

HOLDER: Again I’m not — that all depends. I mean, the notion that we —

GRAHAM: Well, it does not depend. If you’re going to prosecute anybody in civilian court, our law is clear that the moment custodial interrogation occurs the defendant, the criminal defendant, is entitled to a lawyer and to be informed of their right to remain silent.

The big problem I have is that you’re criminalizing the war, that if we caught bin Laden tomorrow, we’d have mixed theories and we couldn’t turn him over — to the CIA, the FBI or military intelligence — for an interrogation on the battlefield, because now we’re saying that he is subject to criminal court in the United States. And you’re confusing the people fighting this war.

NYM made the same point as Mr. Graham last week.

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Courtesy of our elite law schools, Shearman & Sterling, and a liberal Supreme Court majority, some news agency reports that federal judges are busy right now turning captured jihadis loose.

Complying with a Supreme Court ruling last year, 15 federal judges in the U.S. courthouse (In Washington, D.C.) are giving detainees their day in court after years behind bars half a world away from their homelands.

The judges have found the government’s evidence against 30 detainees wanting and ordered their release. That number could rise significantly because the judges are on track to hear challenges from dozens more prisoners. …

Bush administration Defense Secretary Donald Rumsfeld once promised Guantanamo held “the worst of the worst.” The judges here have rejected pleas for release from eight detainees, but they have concluded the government doesn’t even have enough evidence to keep 30 other detainees behind bars.

“There is absolutely no reason for this court to presume that the facts contained in the government’s exhibits are accurate,” District Judge Gladys Kessler wrote in ordering the release of Alla Ali Bin Ali Ahmed. He was repatriated to Yemen after a seven-year stay at Guantanamo, where he was brought as a teenager.

“Much of the factual material contained in those exhibits is hotly contested for a host of different reasons ranging from the fact that it contains second- and third-hand hearsay to allegations that it was obtained by torture to the fact that no statement purports to be a verbatim account of what was said,” Kessler said. She ruled the government failed to prove the detainee was part of or substantially supported Taliban or al-Qaida forces.

How can a case against a foreign enemy apprehended by another government possibly be prosecuted within the rules of domestic criminal procedure? Khalid Shaikh Mohammed obviously was never Mirandized. What can Eric Holder and Barack Obama possibly be thinking? Are these people hopelessly naive?

Andrew McCarthy doesn’t think so. He thinks they know exactly what they’re doing.

We are now going to have a trial that never had to happen for defendants who have no defense. And when defendants have no defense for their own actions, there is only one thing for their lawyers to do: put the government on trial in hopes of getting the jury (and the media) spun up over government errors, abuses and incompetence. That is what is going to happen in the trial of KSM et al. It will be a soapbox for al-Qaeda’s case against America. Since that will be their “defense,” the defendants will demand every bit of information they can get about interrogations, renditions, secret prisons, undercover operations targeting Muslims and mosques, etc., and — depending on what judge catches the case — they are likely to be given a lot of it. The administration will be able to claim that the judge, not the administration, is responsible for the exposure of our defense secrets. And the circus will be played out for all to see — in the middle of the war. It will provide endless fodder for the transnational Left to press its case that actions taken in America’s defense are violations of international law that must be addressed by foreign courts. And the intelligence bounty will make our enemies more efficient at killing us.

Read the whole thing.