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The New York Times warns that blogging and other home-office work may be hazardous to your health:
A growing work force of home-office laborers and entrepreneurs, armed with computers and smartphones and wired to the hilt, are toiling under great physical and emotional stress created by the around-the-clock Internet economy that demands a constant stream of news and comment.
... In the last few months, two among their ranks have died suddenly.
I agree with tech-journalist John Battelle: Oh, take a chill pill. "Twenty-four/seven stress" is hardly the emphatic province of the blogosphere. I dare not ask how many American attorneys were stressed to death in the last few months.
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Last Thursday, the 9th Circuit sitting en banc handed down an 8-3 opinion that will make Internet service providers think twice about what information they will require their consumers to divulge as a condition of service. In Fair Housing Council v. Roommates.com, the court considered whether the Communications Decency Act of 1996 gave immunity to an Internet service provider that matched people renting out rooms with people who needed a place to live. The court interpreted the statute to deny such immunity to providers who required users to identify themselves according to sex or sexual orientation before they could avail themselves of the service.
The irony of such cyber-discrimination is that the Internet was once seen as the way minorities and women would avoid animus. In 1991, Ian Ayres published a landmark article titled "Fair Driving" that has become part of the canon of civil rights scholarship. The article was an empirical study of race- and gender-bias in real-time car sales that used more than 180 testers of different races and genders. The tests revealed that white males received better prices than blacks or women did. Indeed, “white women had to pay forty percent higher markups than white men; black men had to pay more than twice the markup, and black women had to pay more than three times the markup of white male testers.”
What was the answer to such face-to-face discrimination? It used to be hiring a white male agent to do one’s bidding (literally). More recently, however, savvy surfers have used the Internet to combat the effects of real-time discrimination. As law professor Jerry Kang observes is his powerful 2000 article "Cyber Race," the Internet allows subordinated groups with physically visible traits to pass as members of the dominant group. And if a merchant cannot discriminate between two buyers, he cannot discriminate against one of them.
But the Internet is just a technology, meaning that it can be used to further discrimination as well as to thwart it. Web sites where one individual is seeking another for a relationship—romantic or contractual—often articulate blatantly discriminatory preferences. The question is whether the deep-pocketed Web site that hosts such a message can be held liable for providing the forum.
For the most part, the CDA has answered this question with a clear no. That has to be the right answer: In contrast to newspapers, which can sometimes be held liable for carrying private messages, Internet service providers carry too much content to be held responsible for it all.
However, as the 9th Circuit has interpreted the CDA, if the Internet service provider requires individuals to disclose information about themselves to use the service, it is enough of a participant to lose this immunity. This is also probably right, because the site is more actively creating incentives for the individual to expose herself to discrimination. (Indeed, the irony here is that some of these coerced disclosures unmask individuals who could pass in face-to-face interactions.)
The 9th Circuit remanded the case to the district court to let it decide whether, stripped of its immunity, the Web site had violated the federal Fair Housing Act (which prohibits sex-based discrimination) or California state law (which prohibits orientation-based discrimination in the housing context). But given that its sensible balance is at odds with decisions in other circuits, this may be headed to SCOTUS.
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To follow up my first post on Bruce Ackerman's and Oona Hathaway's op-ed, I'd also note that he and his co-author presume that Section 2(a)(2), authorizing military force to "enforce all relevant United Nations Security Council Resolutions regarding Iraq," referred only to subsequent U.N. authorizations pertaining to Iraq. Of course, Congress referred to several prior U.N. resolutions pertaining to Iraq, too.
Isn't it curious that Ackerman and Hathaway read the U.N.-resolution subsection as applying to future U.N. resolutions, while they read the national-security-threat subsection as applying only to pre-2003 threats?
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Too often, people caught up in heated political debates assert that disfavored policies are not merely disfavored but illegal. Of course, the debate over the war in Iraq has been no exception to this sorry habit, as the Bush administration's critics long have declared the war "illegal" or "unconstitutional."
Bruce Ackerman, usually a level-headed theoretician, falls prey to this error in today's Washington Post, when he (and Oona Hathaway) argue that the war in Iraq will become illegal on New Year's Day 2009.
They cite a provision of the congressional authorization that limits that the use of military force only (1) to prevent Iraq's threat to our national security, and (2) to enforce all relevant U.N. resolutions. They dismiss the applicability of the national-security prong, and note that the current U.N. resolution expires on Jan. 1, 2009. Thus, they argue, the war will be illegal on Jan. 1, 2009, absent a new resolution.
I dare say that Ackerman completely misreads the joint resolution authorizing the use of military force in Iraq. That enactment reads:
(a) AUTHORIZATION. The President is authorized to use the Armed Forces of the United States as he determines to be necessary and appropriate in order to
(1) defend the national security of the United States against the continuing threat posed by Iraq; and
(2) enforce all relevant United Nations Security Council Resolutions regarding Iraq.
In short, the authorization remains in effect so long as the president determines that military force is necessary and appropriate in order to defend the national security threat posed to the United States by Iraq.
Ackerman and Hathway glibly dismiss the possibility that the current state of unrest in Iraq threatens our nation's national security. They argue that al-Qaida in Iraq cannot qualify as part of the "continuing threat posed by Iraq," because "al-Qaeda only came into Iraq as a result of U.S. intervention[,] [and] Congress only authorized the use of force to defend against the 'continuing threat' posed by Iraq, not all threats that might someday exist in Iraq."
Pardon me if I disagree with their crabbed reading of the authorization. Congress recognized at the time that part of Iraq's threat in 2002 was the possibility that it did or could harbor terrorist organizations hostile to the United States. Again, let's look at the war authorization's plain terms:
Whereas members of al Qaida, an organization bearing responsibility for attacks on the United States, its citizens, and interests, including the attacks that occurred on September 11, 2001, are known to be in Iraq;
Whereas Iraq continues to aid and harbor other international terrorist organizations, including organizations that threaten the lives and safety of American citizens;
In short, the presence of terrorists in Iraq was and is grounds for Congress's authorization of the war effort. So long as the president determines that terrorists in Iraq pose a threat to our national security (or that Iraq poses other national security threats), the war remains authorized by Congress.
Bottom Line: Ackerman and Hathaway no doubt disagree with the war as a matter of policy. But to wrap their opposition up in the mantle of the rule of law, despite the plainly contrary words of the statute they purport to interpret, is silly.
(Note: After first posting this item, I edited it for length. AW)
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Today's Poetry Month nominee represents the most straightforward of the Slam's categories: No. 1, "
use of poetry in legal writing, by judges, lawyers, or legal scholars." Waxing poetic is the late Supreme Court Justice
Harry A. Blackmun, a lifelong National League fan. Blackmun's 1972 pæan to baseball,
Flood v. Kuhn, included a famous footnote 4:
Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:
"I knew a cove who'd never heard of Washington and Lee,"
"Of Caesar and Napoleon from the ancient jamboree,"
"But, bli'me, there are queerer things than anything like that,"
"For here's a cove who never heard of 'Casey at the Bat'!"
"* * * *"
"Ten million never heard of Keats, or Shelley, Burns or Poe;"
"But they know 'the air was shattered by the force of Casey's blow';"
"They never heard of Shakespeare, nor of Dickens, like as not,"
"But they know the somber drama from old Mudville's haunted lot."
"He never heard of Casey! Am I dreaming? Is it true?"
"Is fame but windblown ashes when the summer day is through?"
"Does greatness fade so quickly and is grandeur doomed to die"
"That bloomed in early morning, ere the dusk rides down the sky?"
—"He Never Heard of Casey" Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.
Blackmun's equally famous Footnote 5 continued in-verse, quoting the "Tinkers to Evers to Chance" refrain from Franklin Pierce Adams' "Baseball's Sad Lexicon."
In all, a boldly boyish use of poetry in legal reasoning.
To the rest of the Convictions team and all those in our virtual stands: Batter Up.
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Marty says I am "simply mistaken" to argue that there is considerable space between the lines set by the Army Field Manual and the legal lines imposed by various international obligations of the United States. I don't think I'm mistaken—certainly not simply so.
In rewriting the Army Field Manual, the military rejected almost all of the new techniques that Donald Rumsfeld earlier approved for use at Guantanamo. Some of these, to be sure, involved pretty coercive stuff. Some of them, by contrast, were pretty anodyne: yelling at detainees, denying them hot rations, and the like. I find it hard to believe that this kind of thing even approaches the legal line of cruel, degrading, and inhuman treatment, let alone torture. Even some of the harsher techniques, like temperature manipulations and sleep adjustments—which can certainly be torturous at one end of the spectrum—can also be done in ways that would be merely unpleasant. There is, after all, surely no legal requirements in the Geneva Conventions or elsewhere that detention facilities set their air conditionings to the optimum temperature for a given detainee's comfort. Nor, in my judgment, is it cruel or inhuman to interrogate detainees in the middle of the night instead of the middle of the day.
Don't get me wrong; I'm not advocating these techniques, and I fully concur with the military's judgment that military interrogators should keep well away from them. I'm merely arguing that their rejection by the military was in large measure a prudential, not a legal, judgment. And the CIA might have good reason to adopt interrogation methods that more closely approach the actual legal limits.
The CIA, after all, never detains POWs. Except in the situations of foul-ups, moreover, it only detains the true worst of the worst—very small numbers of the most dangerous people in the world. Its interrogation crew is small, nothing like the legions of young kids the military sends into combat zones all over the world to interview vast numbers of detainees, many of whom are entitled to treatment as POWs. So where the Army decided to keep clear of what the law might theoretically tolerate, the CIA might reasonably make a different judgment: that given its interrogators and its crop of detainees, it wants to make every tactic whose lawfulness it can defend available to its people. I don't think Congress should preclude that judgment.
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In his latest column, Ben alleges that although we can all agree that the Yoo memo, and the 2002-04 torture regime it engendered and immunized, were way out of bounds and that the subsequent national settlement about the rules for military interrogation is a good and salutary one, we are nonetheless ignoring the remaining question of what the CIA should be entitled to do: "We have yet to decide as a society," Ben writes, "how the CIA should handle [alleged 'high value detainees'—with 'value' presumably determined not by what they've done, but by what they (might) know] in the future."
Ben worries that this is a "wrenching" decision, one that "truly tests our core values."
No, it doesn't. The question is easy, and we have already decided it, based upon those "core values." Indeed, we basically decided it more than 200 years ago, codified it in the Lieber Code in 1863 (which specified that "military necessity" does "not admit of cruelty") and spent many long years persuading the rest of the world to go along with it: All coercion of POWs is prohibited. And as for non-POWs—so-called "unlawful combatants"—torture and cruel treatment are categorically prohibited. So is other conduct that "shocks the conscience." That's what the CAT and Common Article 3 say. And we cannot deviate from those very well-established norms without repudiating—that is to say, breaching—those treaties, thereby opening up a Pandora's Box with respect to "deviations" that might be adopted by all the other nations of the world. (Proponents of a new interrogation regime tend to ignore that if the U.S. in effect scoffs at Geneva and the Torture Convention, that will have profound effects with respect to treaty compliance by other nations, too, some of which might strike the "balance" in favor of even more cruelty than the Bush Administration has promoted.)
That is to say: What was good enough for Washington, Lincoln, Roosevelt, and Truman is good enough for us now. In every war we've ever fought, and all those we will fight in the future, it would be of great strategic and tactical value to be able to coerce important information from those we detain through the use of violence and threats of violence. (And all other belligerent nations think likewise.) Yet we have long concluded that the costs of allowing such techniques—by all belligerents—far exceed the benefits. Not to mention that they're simply immoral.
The historical settlement against all cruel treatment and threats of violence is more or less codified in the Army Field Manual that once again governs military interrogations. (If anything, the Field Manual authorizes some techniques that might be prohibited by treaty in many applications, such as "false flag" [when used as a threat] and "pride and ego down," broadly conceived.) Ben claims that the Democratic bill that would bind the CIA to the Army Field Manual, too, is "ill-conceived" and that there is "considerable space between what the field manual permits and what the law might reasonably tolerate." But he doesn't provide any arguments in support of these conclusions, and they are, as far as I know, simply mistaken.