Opening Argument – Nuclear Terror: Has Bush Made Matters Worse?

National Journal

"The United States of America will not permit the world’s most dangerous regimes to threaten us with the world’s most destructive weapons," President Bush vowed in his January 29, 2002, State of the Union address. Two and a half years later, one member of the "axis of evil" that Bush denounced in the same speech, North Korea, may have as many as eight nuclear bombs and be on its way to making about a dozen a year, with every intention of selling them to terrorists and other willing bidders.

Opening Argument – The Case of the Gradually Disappearing Supreme Court

National Journal

July 1, 2008 — With the retirement of 88-year-old Justice John Paul Stevens today, the Supreme Court’s membership dwindled to four. The remaining two liberals (Stephen Breyer and David Souter) and two conservatives (Antonin Scalia and Clarence Thomas) are almost certain to deadlock on big issues including abortion, affirmative action, gay rights, religion, and presidential war powers. So any tie-breaking replacement for Stevens would be in a position to rewrite vast areas of constitutional law.

Opening Argument – The Torture Memos: Putting the President Above the Law

National Journal

Some of the attacks on the recently leaked Bush administration legal memoranda about the use of torture and lesser forms of coercion to extract information are a bit facile. It’s easy to sit in judgment on those assigned to deal with the threat of catastrophic terrorism. It’s much harder to provide morally or legally satisfying answers to questions such as this:

Opening Argument – Must We Become More Like the Barbarians To Save Ourselves?

National Journal

My original headline posed a different question: "Presuming Guilt: Did Bush Set the Stage for Abu Ghraib?" Then came the videotaped beheading of 26-year-old American civilian Nicholas Berg. That ghastly demonstration of our enemies’ thirst for American blood may, a hard-line friend suggests, lead many Americans to "see Abu Ghraib as an ugly fraternity hazing." Be that as it may, the whole horrible tableau of news from Iraq wrenched my attention to the question posed by my revised headline.

Opening Argument – The Perils of Torturing Suspected Terrorists

National Journal

The abuses at the Abu Ghraib prison in Iraq stand out for their pointlessness as well as their cruelty. Done in the name of collecting intelligence about insurgents, this brand of brutality has surely created more of them. Sodomy with a chemical light, threats of rape, a female soldier posing gleefully next to a stack of naked male prisoners, beatings with a broom handle, to say nothing of the possible murders: These are the techniques of sadistic amateurs, not of intelligence experts. That’s why their criminality is so obvious. 

Opening Argument – The Fragility of Our Freedoms in a Time of Terror

National Journal

Deputy Solicitor General Paul Clement argued skillfully before the Supreme Court on April 28 for President Bush’s claim that the military can grab any American suspected of being an "enemy combatant," anywhere, at any time, and hold him incommunicado for months, years, even for life, with no chance to see a lawyer or tell a court that he is an innocent civilian.

Opening Argument – Guantanamo: Why the President Is Courting Defeat

National Journal

President Bush seems likely to lose the first big war-on-terrorism battle that has come before the Supreme Court. He richly deserves to lose, for he has claimed absolute, unaccountable power to lock up more than 600 foreigners as "enemy combatants" in his prison camp at Guantanamo Bay, potentially forever, with no semblance of a fair hearing for those who claim to be innocent civilians.

Opening Argument – 9/11: Save Some Blame for Courts That Created The ‘Wall’

National Journal

"We did not know an attack was coming because, for nearly a decade, our government had blinded itself to its enemies." So said Attorney General John Ashcroft in his April 13 testimony to the 9/11 commission. He accused commission member Jamie Gorelick of "flawed legal reasoning" in a 1995 memorandum in which, as Bill Clinton’s deputy attorney general, she had helped raise a legalistic "wall [that] left intelligence agents afraid to talk with criminal prosecutors or agents."

Opening Argument – It’s Time for Bush to Take Our Treaty Obligations Seriously

National Journal

Much of what goes by the name "international law" in academic and European circles these days deserves little respect from the United States, because it consists of rules made by foreign judges and professors that this sovereign nation has never adopted as binding. Many internationalists claim, for example, that firing missiles at terrorist leaders such as Osama bin Laden, as President Clinton once did, and aggressively interrogating captured terrorists, as the Bush administration is doing, violate international law. Bosh.