September 21, 2003

Why Michael Froomkin Should Have Become a Doctor

Now that Michael Froomkin has a weblog, he's telling stories--good stories--that I haven't heard--and I've known the guy since he was seven.

Here he talks about his grandmother Rose Burawoy from Bialystock, and why she was upset when he decided to become a lawyer rather than a doctor. And he links it to the Bush Administration's current suspension of habeas corpus (and I still haven't found anyone to tell me a reason why this is constitutional--other than the facts that Rehnquist believes that a good judge is hostile to "rights" by definition, and that Scalia believes that St. Paul told him that whatever the state does is holy).

Posted by DeLong at September 21, 2003 08:35 PM | TrackBack


Habeas corpus is alive and well except for belligerents in time of war or rebellion. Do you really think we need to follow the norms of civil society in times of war? The Supreme Court deferred to Lincoln in treating the Confederacy as war belligerents. See The Prize Cases, 67 U.S. (2 Black) at 670. Again during WWII the Supreme Court deferred to FDR in treating German terrorists (including an American citizen) as illegal combatants, Ex parte Quirin, 317 U.S. 1, 25 (1942). Has Bush gone beyond Quirin? I donít think so. I know war has not been officially declared, but why does that matter in current circumstances? Moreover, we are not limited to national states, as we went to war with the Barbary Pirates in colonial times.

Posted by: A. Zarkov on September 21, 2003 10:54 PM

"we went to war with the barbary pirates in colonial times"

no, the "shores of tripoli" was early 19th century; i don't know the exact date.

Posted by: john c. halasz on September 22, 2003 12:22 AM

Guantanamo is a wen on the neck of the American body politic, the gingivitis in the grin with which we attempt to charm the world, which blemishes we prefer to ignore. We can do this: we interned the Japanese during WWII, we exterminated most of the Indians, with no more than wistful regrets. We try to make the world safe for people like us.

The problem with denial is that the wen and the bad teeth are immediately obvious to anyone who actually takes a look, and the occasional glance in the mirror frightens us too.

Posted by: bad Jim on September 22, 2003 01:22 AM

The Barbary War was 1801-05.

Regarding A. Zarkov's point: the alarming thing about the Bush Administration is that (as a recent Washington Post editorial pointed out) it now insists both that (A) the government has the right to throw not only non-citizens but citizens in the slammer, simply on the President's word, without ever charging them at all or even publicly announcing their imprisonment, and (B) quoting Rumsfeld last week regarding the Guantananamo detainees, it should retain this right "until the end of the War on Terror" -- which, of course, will never end; the danger of large-scale terrorism will be a feature of human existence from now on.

What we need at a minimum -- as the Post says -- is some way of limiting the President's power to arrest people with no kind of judicial oversight whatever, and of providing detainees with some kind of legal rights -- even if the mechanisms for doing both must necessarily be different than those in a normal peacetime situation, and somewhat less tilted toward a defendant's rights. Bush, Ashcroft and Rumsfeld, however, want nothing whatsoever along those lines -- which may explain why scads of otherwise slavishly obedient GOP Congressmen are getting very nervous about the White House's tendencies in this matter.

Posted by: Bruce Moomaw on September 22, 2003 01:27 AM

There should be clear rules on how to treat these people. Either as criminals, with their rights, or as prisoners of war, with their rights, to incarcerate a any person, and put him,or her, outside the legal system, is what Habeas Corpus, is all about, it has had a good record, over the last 800 years. Where will you go next, execute them without a trial?

Posted by: big al on September 22, 2003 03:39 AM

I really do think a very winning thread in the upcoming 2004 election campaign will consist of campaigning against John Ashcroft and his intention to abuse our liberties. For some people, the sluggishness of the economy may be sufficicient to turn them around against the administration, but the irony of that is that the real damage done to the economy by the Bush administration hasn't actually happened yet. But the "USA PATRIOT" Act and upcoming Patriot 2 really have happened here and now. The more people know about these laws, the less happy they get, pretty much across the spectrum.

As an aside: there is a problem with Froomkin's grandmother's suggestion that he become a doctor, since that skill is portable. Medical degrees these days are emphatically not portable, and there are thousands of doctors now in the US who do not practice medicine for reasons that are primarily (although not completely) political, bureaucratic, and union-related.

Posted by: Jonathan King on September 22, 2003 07:29 AM

But we aren't at war. There has been no
declaration of war. How will we know when the
"war" ends? The changes are forever.
Or until we have different president.

Posted by: citizen on September 22, 2003 08:13 AM

The Ashcroft line is that only Americans are protected by the First Amendment and the US government can do what it likes to us lesser breeds – the “torturable” in Graham Greene’s charming phrase. This reflects an exceptionalism quite contrary to the spirit of the Founding Fathers, who surely saw these rights as instances of universal ones, justifying their rebellion. In any case, the USA is bound by the UN Charter, the Universal Declaration on Human Rights, and the International Covenant on Civil and Political Rights, all of which express the universalist idea of rights including the right to a fair trial.

Some American jurists fault the European Convention on Human Rights, a genuine judicial mechanism, for its mealy language on freedom of speech. But the European states it binds must apply its rules to “everyone within their jurisdiction”. They may suspend habeas corpus in a genuine emergency, but could not deny foreigners any trial at all.

Posted by: James on September 22, 2003 08:15 AM

We won the war in Afghanistan and in Iraq. Why not now organize and monitor elections in Iraq, and withdraw? We could focus in and on Afghanistan, where we have more support. Then, we could contiue to protect ourselves at home and continue to try to end international terrorism but the "war" would be over.

We won the war in Iraq. Why are we staying there? Are we aiming at empire or endless war? We won. Leave.

Posted by: Emma on September 22, 2003 08:41 AM

Maybe a little off-topic, but related to the habeas corpus issue: one of the really interesting things about this administration is the way it has selective states of emergency going on.

A few weeks ago it capped scheduled raises for federal employees because the executive order says there's a state of budgetary emergency. Another state of emergency was is referenced more recently about something else, I think involving veterans' benefits.

Does anyone know how many different selective states of emergency it has going now? Is there some kind of list? And why haven't the Dems jumped all over this?

Posted by: Altoid on September 22, 2003 12:51 PM

>>Habeas corpus is alive and well except for belligerents in time of war or rebellion.<<

No. Habeas corpus is alive and well except for those the executive claims are belligerents in time of war or rebellion.

There's a difference.

Posted by: Brad DeLong on September 22, 2003 05:28 PM

Well yes. I made a statement as to what the legal status of habeas corpus currently is. If you are saying that Bush has called people belligerents who are not belligerents, then name them.

Posted by: A. Zarkov on September 22, 2003 08:47 PM

"Well yes. I made a statement as to what the legal status of habeas corpus currently is. If you are saying that Bush has called people belligerents who are not belligerents, then name them."

Now, THAT'S interesting. Apparently Zarkov believes in redefining the U.S. legal system in accord with Napoleon's "guilty until proven innocent" principle.

Posted by: Bruce Moomaw on September 22, 2003 11:18 PM

Zarkov, I can think of nothing more fitting than for you to spend next weekend like this Harvard Law-educated fellow did last fall:

after your three-day vacation, please get back to us with the moral and legal insights you've gained.

Posted by: wcw on September 23, 2003 10:20 PM
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