SALTLAW blog

I have not yet read Tamanaha’s piece so I can’t comment on that. However, I do feel that I can respond to the above question about what us liberal professors should do about the rising cost of legal education. I believe that there are two things that we should be doing – one of which I think we already are. First, continue to work towards transforming legal education into something that truly creates good lawyers. The many and loud critiques about the over-empasis traditional legal education places on theory divorced from practice have been occurring since Jerome Frank’s “Why not a Clinical Lawyer School?”. Law schools – moved by deans and professors alike – have been responding to the economic crises and its impact on schools by finally taking seriously the need for connecting theory and practice. That’s wonderful and I applaud those efforts. So, the second and next thing that we should be doing is showing the world – not just pre-law students – that we are now truly contributing vitally to the community by educating future lawyers and so it’s time that the world support us. We should start diversifying substantially our economic base and consider seeking government funding as well as foundation funding to support the transformation of legal education. As alluded to in the post, my forthcoming work, “Harmonizing Current Threats” builds the case for seeking much more substantial private and government support for legal education by creating a teaching law firm. That law schools have survived primarily through tuition dollars is just another symptom of the ivory tower disease. A law school that serves the community while providing a rich education that will not only create superb lawyers but also superbly ethical ones who will graduate and become pillars of their own communities is one that can proudly seek community support. Although my paper discusses teaching law firms as part of individual law schools, there is no reason why regional teaching law firms, created from several law schools pooling their resources together could not be created. Collaborating amongst law schools might not only make this kind of dream more scalable, it would be responsive to the legitimate concerns about too many law schools producing too many lawyers who aren’t employable. The bottom line – of course rising tuition is a tremendous problem. But the cost is all the more remarkable when legal education isn’t living up to it’s mandate to educate lawyers and ensure a just society. Professors who create classes and programs that do these two things, give themselves and their deans the talking points that they need to seek funding from sources other than tuition.

 by David Udell

A working group appointed by the NJ Supreme Court released on May 16, 2013 a report and recommendations dated April 30,2013 in which it urges adoption of a 50 hour law-related pro bono service requirement as a condition of admission to the NJ Bar.  The proposed rule is modeled on New York’s rule, but differs in various respects, as described below.  NJ is the third state, after California and Connecticut in which a recommendation to adopt a pro bono service requirement inspired by the NY model is now awaiting final approval.  The  NJ Court has invited submission of comments on the proposed rule by June 21, 2013.

In its report, the working group explained that adoption of the requirement is warranted in order to:

http://digitalcommons.law.ggu.edu/cgi/viewcontent.cgi?article=1570&context=pubs

Tuesday, May 7, 2013
Future of the legal profession
Many books and articles in the last few years describe a ”profession in crisis” with no shortage of demons to blame: many equity partners in large law firms pursuing ever increasing profits, tenured law professors sitting on big salaries with no incentive to change how they teach, accrediting institutions imposing expensive regulation on law schools, and the examples of finger-pointing continue. In the words of YouTube sensation Kid President, “I think we all need a pep talk.” I believe that the future of the profession requires all of us, regardless of practice sector or role, to answer the critical existential question of who lawyers are. Our future will be stronger and brighter if we come together to answer this question collectively and focus on the positive opportunities and valid roles of each sector. We don’t have to look far to find the words that answer this question. We need only return to the fundamentals and the foundation of the role and responsibility of being a lawyer. What are those essential values?

The preamble to the Model Rules of Professional Conduct (MRPC) set out a number
of great and grand principles about the role of lawyers. In addition to serving her client
and being an officer of the court, a lawyer has a “special responsibility for the quality of
justice.” Specifically, “as a public citizen, a lawyer should seek improvement of the law,
access to the legal system, the administration of justice and the quality of service
rendered by the legal profession.” The MRPC goes even deeper by distinguishing the
legal profession from others. Lawyers are not products of trade schools. Rather,
lawyers are members of a “learned profession.” As such, “a lawyer should cultivate
knowledge of the law beyond its use for clients, employ that knowledge in reform of the
law and work to strengthen legal education.” In essence, lawyers are builders,
thoughtful and courageous architects constantly striving to construct a more just and
fair legal system, one client at a time, as well as at a broader level. This role of lawyers
is essential for a stronger democratic society.

It is easy enough to read these words, but how can we best to internalize and live
these values as individuals and as a profession? How do we get there in the context of
so much noise and criticism about hourly rates topping $1,000, litigation as an
investment, and “churn that bill, baby,” regarding large law firms, and about law schools
not adequately encouraging prospective students to consider carefully the pitfalls of
practice in big law firms. The blame game is simply not productive. Instead, there are
other ways to reach a place of strength and legitimacy.

First, we must recognize that large law firms, while they exert a large influence, make
up only one part of the profession. Not all law students aspire to join Big Law. Not all law
schools train their students for careers in large law firms to the exclusion of other types
of practice. Lawyers work in government as public defenders and district attorneys.
They work as in-house counsel and in business. According to the ABA, 70 percent of
private practice lawyers work in solo practices or small firms (fewer than 20 lawyers).
Recognizing the multi-faceted nature of the profession, two coalitions of law schools
that make up Educating Tomorrow’s Lawyers and the Alliance for Experiential Learning
emphasize curricula that focus on a myriad of skills to prepare students for a variety of
practice areas and for a rapidly changing profession.

Lawyers are not products of trade schools. Rather, lawyers are members of a “learned profession.” Second, we must recognize the impact technology will have on the future of the
profession by creating new opportunities for young lawyers. Richard Susskind’s recent
examination of the legal profession, “Tomorrow’s Lawyers; An Introduction to Your
Future,” describes new legal careers that will be technology-driven to provide more
efficient, less costly, legal services. One example is using technology to address the
need for inexpensive dispute resolution to help the sluggish court system. High tech
entrepreneurs in California also take advantage of companies like LegalZoom, an
online service that helps clients create their own legal documents. Pearl.com contracts
with lawyers to offer online legal advice to clients. Firms are likewise responding to consumer demand for more efficient, lower cost services. Fenwick & West LLP, for example, launched Flex, a program that offers legal services at a fixed price.

Indeed, what emerges from Susskind’s book is a vision of lawyers as entrepreneurs
creating opportunities in a market more decentralized than the traditional corporate
clients served by large firms. Many law schools recognize that students have infinite
access to information, and thus continue to focus more and more on skills that will help
graduates create their own careers. Skills such as critical reading and thinking, legal
analysis, effective research skills, oral and written communication, fact investigation
and collaboration – all instilling confidence and resilience, as well as cultivating sound
judgment – are vital to supporting this entrepreneurial spirit and future. Law schools are
creating programs to help students capitalize on this highly innovative time while
ensuring they remain grounded in the fundamental values set out in the MRCP and the
important role of a lawyer as counselor and advocate for fairness and justice.
Third, in addition to focusing on the existential question, we should look for more
ways to collaborate to build a stronger community of lawyers. Experienced lawyers in
various sectors often serve as mentors for law students as part of externship clinics
that many law schools continue to develop. Expansion of these types of programs can
help forge and strengthen collegiality as well as a greater sense of professional identity.
Law schools should continue to discover more ways to collaborate among themselves
and with local bar associations. Such partnerships have the potential to provide
students with more career options and professionally enriching experiences.
Finally, and perhaps most importantly, we all need to find a way to quiet the noise
around us in order for us to cultivate a less anxious and reactive posture. Responding
to “the crisis” with a reflective, purposeful and mindful approach can help us internalize
and live up to the aspirations of our profession. Over the last 10-15 years, more
lawyers, judges, legal educators and law students have incorporated mindfulness
practices into their lives and careers. A number of law schools offer courses on
“mindfulness for lawyers.” Reflection and mindfulness helps law students and lawyers
of all sectors become better listeners, better problem solvers, better counselors at law,
and better colleagues. A focus on conscious lawyering has great potential for helping
lawyers develop attributes that are essential to happiness and satisfaction: empathy,
resilience and wisdom. I believe that such an approach can allow law students and
lawyers to respond with flexibility and calm in rapidly changing times.
Artist Jacob Lawrence’s 1989 piece, “To the Defense,” offers a quintessentially
positive vision of lawyers. He depicts a lawyer helping people. At the heart of the vital
principles of the MRPC quoted above, is the lawyer as adviser, advocate and
peacemaker. Lawrence stated of his print, “I tried to show that the lawyer was a very
important symbol of something, even beyond the law.” Lawyers are an important symbol
of access to justice, fairness, and thoughtful attention to solving problems without
violence. Lawyers are a symbol of the rule of law rather than the rule of men or women.
This is critically important for lawyers practicing in all of the different sectors. I believe
that by returning to the core of lawyering, the heart of what it means to be counselors at
law, law students and lawyers can have fulfilling and satisfying careers while they assist
and serve their clients and in so doing contribute to a more inclusive, just and equitable
society.
Rachel Van Cleave is dean and professor of law at Golden Gate University
School of Law.

What Is the Progressive Response to Law School Costs?

SALT CoPresidents Jackie Gardina & Ngai Pindell

Brian Tamanaha’s recent article, The Failure of Crits and Leftist Law Professors to Defend Progressive Causes (24 STAN. L. & POL’Y), raises important concerns about the current cost of legal education and student debt. SALT agrees that these problems need to be addressed and that all law professors should be contributing to the conversation. SALT also believes that the cost of legal education is a complex problem that cannot be solved by simply eliminating tenure or making adjustments to the curriculum premised solely on cost reduction.

Tenure is not the cause of the rising cost of legal education nor is eliminating tenure the best path for lowering costs. Quality legal education requires that faculty be free to research, teach, and perform service (including through clinical representation) without fear of reprisal, and all faculty (doctrinal, clinical, and legal writing) must have an effective voice in shaping the educational program of the law school through full participation in faculty governance. In recent years, SALT has focused attention on protecting the academic freedom that we think full-time faculty must have to fully perform their responsibilities with respect to scholarship, teaching, clinical representation, governance, and service, and we have criticized the current hierarchies that undermine the ability of faculty in historically marginalized categories to contribute effectively to the law school mission, including enhancing student learning and practice-readiness.

SALT has been skeptical of legal education reforms that rely predominantly on cost-cutting measures that change the composition of faculties to depend more heavily on individuals with short- rather than long-term commitments to legal education. Proposals to change the composition of law school faculties and the focus of legal education have to be evaluated with an eye towards the long-term costs to students and communities. We believe that lawyers play a critical role in ensuring a just society and that legal education reform should be premised on how to best prepare new attorneys for that role.

High law student debt and high law school tuition have class implications as Tamanaha notes. The composition of law school faculties and the substantive content of law school curricula also significantly impact class concerns. SALT has consistently encouraged initiatives that open faculty and administrative ranks to under-represented groups, that help students from diverse economic and racial backgrounds view themselves as important components of a law school community, and that help both groups envision and explore the many ways that a legal education can positively impact the communities these students come from and care about.

The cost of legal education certainly impacts who is able to access these educational experiences. The SALT Board and SALT members have repeatedly engaged the intersection of cost, pedagogy, and practice. During the October 2012 SALT Teaching Conference in Baltimore, Maryland (Teaching Social Justice, Expanding Access to Justice: The Role of Legal Education and the Legal Profession), several panels addressed education costs directly, including “Costs in Legal Education: An Interactive Conversation with Deans” and “The Role of Law Schools in Supporting Solo and Small Firm Lawyers to Address Access to Justice.” One of the articles published from the Teaching Conference explores how the current political and economic pressures on law schools create an opportunity to transform legal education and address access to justice deficits in practice (Cathryn Miller-Wilson, Harmonizing Current Threats: Using the Outcry for Legal Education Reforms to Take Another Look at Civil Gideon and What it Means to be an American Lawyer, U. MD. L.J. RACE, RELIGION, GENDER & CLASS, forthcoming 2013). At the conference we also discussed the forthcoming “SALT Consumer Guide for Social Justice Minded Law Students.” The Consumer Guide educates students about the costs associated with law school and encourages them to consider those costs when determining whether and where to attend school. The guide directly confronts issues relating to the costs of law school and law school debt but it also examines other pressing issues that challenge legal education including admissions; the role of the LSAT and U.S. News & World Report rankings; the need for students to carefully assess the “fit” with a law school’s curricula and community; and the obligation of the legal profession (as well as its aspiring students) to serve social justice and the public interest.

We encourage our members to continue this conversation. What do progressive, liberal law professors think law schools and law professors ought to do about the rising cost of legal education? We encourage you to post your response here on the SALTBlog. SALT also plans to continue this conversation at the September 13, 2013 Diversity in Legal Education Leadership Conference at the University of Washington and there will also be opportunities at the upcoming LatCrit conference (October 3-5, 2013 in Chicago, Illinois) to engage this issue. Please keep the conversation going!

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

(with great appreciation for a dialogue with Sheila Willamowski, 3L, University of Toledo College of Law)

Kidnapped off the street, hustled into a vehicle, disappeared into a structure, tortured, sexually assaulted, beaten, degraded, shackled, and so held as a captive for over ten years with no end in sight by a man.  Amanda, Gina, and Michelle and the little girl surge from that dark Cleveland hell into our collective conscious.  As we watch the first court appearance of the alleged perpetrator of these horrors and read the stories of the brutally forced miscarriages and the other degradation of these human beings, I for one am just left in shock at how this could have happened.  We hear the stories of people who saw the kidnapping of Gina and spoke to the police.  Of people who saw a naked woman running through the backyard before it was covered by the brutalizer and called the police.  Of people who saw a woman banging on a window and holding up that little girl to get a neighbor’s attention who said they contacted the police.  All to no  avail.  Only with the combination  of Amanda’s relentless desire to escape this hell, and the most sublime of innocent bystanders – Charles Ramsey, Angela Cordero, and Ms. Tejeda - was this decade long descent into the deep abyss of the human soul ended.  As we saw Amanda and Gina returned to their families and as we pray for the recovery of Michelle and the little girl too, we see the outpouring of love from their families and their neighbors.  We read of the heartache of Gina’s mom who died of a broken heart after all these years.  We are relieved that this brute will face his day in court and be held accountable.

The natural reaction that I have and that everyone I know has is that this man should be taken out and shot.  And, if I was Amanda’s father or brother, I might be tempted to do that.  I understand that these three women are not suffering from Stockholm Syndrome but are feeling and expressing the profound hate they have for their captor.  We share that hate and look for answers as to the source of his sociopathy – maybe genetic or maybe from his environment – neither of them being an excuse for his depravity.

But, consistent with a civilized society, their captor is not being taken out and shot.  He is to be tried, and if convicted, punished for his alleged crimes.  That is as it should be though I regret this did not happen years ago.

Kidnapped off the street, hustled into a vehicle, disappeared into a structure, tortured, sexually brutalized, beaten, degraded, shackled, and so held as a captive for over ten years with no end in sight by a government.  As described in the most recent report of the Constitution Project (subject of a C-span presentation this morning on Capitol Hill under the auspices of the National Religious Campaign Against Torture) years of thousands of people enduring massive torture across 54 countries done by men and women in the name of our country surge again from that hell into our conscious.  We learn that among those tortured it is without doubt that there were many who are as innocent as Amanda, Gina, and Michelle.  We know that some who likely bear some guilt like Al-Qahtani have been tortured into a mental state beyond the borders of sanity.  Still others like Khalid Sheikh Mohammed have aged significantly but remain within the borders of sanity even though we learn of the massive destruction he allegedly sought to cause.

Private black site in Cleveland, Public black sites in prisons that stretch around the world with names like Abu Ghraib, Poland and Gitmo.  A common theme in both places is one or more human beings torturing one or more human beings.

Some would say that I am making a false equivalence.  For example they would say that there was no redeeming feature to the torture in Cleveland by the private man in his depravity.  On the other hand, they would say that there was a redeeming feature to the torture around the world by my government and its servitors as that depravity was done to seek actionable intelligence or to break these enemies of the state.  Any innocence in that torture are unfortunate but necessary collateral damage in that effort.

Another way we might bring this home is to imagine that someone held at one of those CIA public black sites had information about where these women were being held in the Cleveland private black site.  Some would argue that the torture at the public black site would be both legal and legitimate as a means to provide the intelligence to end the torture in the private black site.  Surely, down this utilitarian path of argument, we would say that the public black site torture in theory would be good torture because it led to the outcome of ending the Cleveland black site torture(“bad torture”).  At a minimum, in this argument, the CIA public black site torture should be excused on some ground like necessity or self-defense (defense of another) for surely in this thought experiment a greater good has been created by the ending of the Cleveland black site bad torture.

One could also frame the discussion in another way in trying to measure the extent to which the public black site torture aided the elimination of the private black site torture.  Was it of no aid, of incidental aid, a substantial aid, or a beyond a reasonable doubt aid to the elimination of the private black site torture.  The degree of valence of the public black site torture might be broken down in terms of an act and its probability of aiding the ending of the black site torture.

Darius Rejali has written on this good torture/bad torture attempted distinction from the days of the dirty wars in Latin America.  The state did good torture and the rebels did bad torture – in that rationalization.

Ah yes, the state.  So we come to the role that we ask of our state.  In cases of private black site torture, the law criminalizes that activity and the state (even with prosecutorial discretion) is granted the power by the citizenry to try and, if successfully tried, punish the perpetrator  in accordance with law.  The contours of the crime and punishment are legislated as domestic law.

In the cases of public black site torture, so far the law criminalizes that activity and the state (even with prosecutorial discretion) is granted the power by the citizenry to try and, if successfully tried, punish the perpetrators in accordance with law.  The contours of the crime and punishment are legislated as domestic law.

That domestic law criminalization also occurs in the context of the ergo omnes peremptory norms against torture in both treaty and customary international law and whether one is in  international human rights law or international humanitarian law.  While domestic law may admit of defenses to excuse private black site torture, domestic law provides few pathways for excuse and international  law strictly prohibits the public black site torture.

For international law, there is no good torture.  What would have happened at the CIA public black site notwithstanding its benefit to ending, in our hypothetical, the Cleveland private black site torture would have been a crime.

And what happened in the massive public black site torture in the real world and what happened in the horrendous private black site torture in the real world remain what they are – horrendous criminality of epic proportions.

The private black site torture is on the path to prosecution and punishment with a risk of criminal liability being found leading to deprivation of liberty or even the death sentence.  The public black site torture has been a subject of low level prosecutions of the instruments of torture but absolutely no risk for the high-level civilians or military leaders of criminal liability leading to deprivation of liberty or even the possibility of facing a death sentence.

Some may wish to see these attacks on human dignity in the Cleveland private black sites as somehow different from the attacks on human dignity in the CIA public black sites.  What I see, through my minds eye, is a person shackled in a room who is being subject to abuse by another person – in the Cleveland private black site and in the CIA public black site.

No one – whether private individual or public individual working for the state – is permitted to torture, unless all of us permit them to torture.

And, all I ask is that – like Charles Ramsey – we put down our MacDonald’s and do not turn our heads from the screams of the past ten years or the silent scream of the ongoing hunger strikes in Guantanamo of those held without end in sight (indefinite detention) and make the duplicity and horror stop.  And, like that prosecutor in Cleveland, a prosecutor take the case against the high-level civilian and military leaders who put in place these CIA public black sites and punish these people to the full extent of the law.

I have been asking for this since 2004.  And others from far earlier than that.

After Cleveland, can you hear me now?

(Update –  Above I refer to the National Religious Campaign Against Torture program last Thursday on Capitol Hill. On Monday there is a program at the Heritage Foundation where four present and former civilians responsible for detainees will do a lessons learned and looking forward type presentation. One of the few frustrations of being out here is the inability to pop over on my own dime to these meetings in DC or New York to challenge these people. Two (Waxman and Stimson) were present at least as witnesses in the detainee treatment space in government when all the horrors of the Bush Administration were occurring. Lietzau was there at the time at least of the earlier hunger strike at Guantanamo. It strains logic that we ascribe credibility to such persons given what we know now about what happened on their watch and which they either cheerleaded or did insufficient amounts including resign in protest on the torture. I hope someone is there to speak that kind of truth to that kind of power as I am financially unable to do it.)

By Dawinder “Dave” S. Sidhu, Assistant Professor of Law, University of New Mexico

At the heart of President Obama’s domestic agenda lies the middle-class.  President Obama, for example, identified “our top priority as a nation” to be “reigniting” “a rising, thriving middle class.”  Memorializing this emphasis on the middle-class, official Obama reelection campaign signs read: “MiddleClass First.”

One-hundred days into his second term, some are challenging President Obama’s commitment to the middle-class.  For example, the headline of a recent Washington Post article read: “Despite promises, middle-class Americans still aren’t top priority.”

Rather than assessing whether and to what degree the middle-class is “top priority” in Washington, we should be taking a step back to ask whether the middle-class should be “top priority” in the first place.  For moral, religious, and social reasons, the answer should be an emphatic “no.”

The middle-class, by definition, is situated economically between the rich and the poor.  The poor are not an abstract stratum below the middle-class, but represent a significant and growing segment of our brothers and sisters in the American community.  The U.S. Census Bureau recently reported that there are roughly 50 million – or about 1 in 6 – Americans who are poor in the United States.  Further, approximately 16 million – or about 1 in 5 – children in the United States live with families that qualify as poor.

Poverty is not a mere description as to an economic situation, but is an experience in real terms.  The poor in the United States suffer poverty, which is to say they struggle to take care of their basic needs, are denied proper education and essential services, and are often effectively confined to the margins of our social space, such as inner cities.  They lack the economic opportunity or the requisite training to change their economic position or geographic location.  Such poverty also is likely to be generational in nature, resulting in a perpetual underclass.

The plight of this underclass is not morally sustainable.   Dr. Martin Luther King, Jr., observed that the poor have been “shut out of our minds and driven from the mainstream of our societies, because we have allowed them to become invisible.”  Dr. King understood that relegating the poor to the farthest reaches of our collective conscience and assigning them to the corners of our society does not alter the human bonds between us or otherwise lessen the solemn duty we possess to be our “brothers’ keeper.”  Mental and spatial separation may explain our neglect of the poor, but the moral obligation to help remains nonetheless.

Religious principles are an independent source of, and also reinforce, that obligation.  The religions of the world generally share a sense that man must help those less fortunate when possible, and that to attend to the poor is the functional equivalent of serving our creator.  In Sikhism, my religious tradition, one of the three foundational requirements of all adherents is to serve others, particularly the poor.  This mandate is grounded in notions of the equality of man and that virtue is more likely to reside with the poor than with those on the opposite end of the economic spectrum.  Under this view, to serve the poor is to elevate the welfare of your fellow man and to uplift your spirit and dignity in the process.

From a social standpoint, the poor are effectively extraneous to and expendable in our society.  The late civil rights scholar John O. Calmore referred to the fact that a “significant segment of today’s poor . . . are superfluous not only to the economy, but also to the nation’s societal organization.”  A fractured society is a deficient one.  The government should act, in all possible haste, to bring the poor back within mainstream society.

Doing so would make economic sense as well, as the poor would be able to find meaningful employment, contribute more in taxes, and impose less of costs on our social service and criminal justice systems.  Accordingly, even on economic terms, the poor have something significant to offer.

Despite the merits of these arguments, politics appears to stand in the way.  The middle class is the most sizable voting bloc in the United States, and is thus able to command considerable attention from our leaders.  Yet political considerations should not skew the order of need dictated by moral, religious, or social principles such that the middle-class may leapfrog above the poor.  This is not to diminish the economic problems faced by the middle-class, but only to insist upon the greater needs of the poor relative to the middle-class.

In the HBO-series The Wire, the newly-minted mayor asserts, “I believe that in the end we will be judged not by our efforts on behalf of those who vote for us, or those who contribute to our campaigns, or those who provide for our tax base.  I believe that we will be judged by what we provide to the weakest and most vulnerable.  That is the test.”

That test is supported by moral, faith-based, and social considerations.  But we will not able to meet it, unless we start asking the right questions of and demanding the right actions from our political leaders.

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law

Benghazi hearings of foreign service officers yesterday.  As a foreign service brat, when the tragedy happened, I was certain there was a screw up at Main State as well as in Tripoli rather than some nefarious conspiracy.

On the one hand, when one is going to be in a mission/consulate away from the Main Embassy on September 11th in a Middle Eastern country, it should be elementary that sufficient force be there to protect the Ambassador.  The Iraq Embassy experience would seem fairly relevant for that.  While a low-level foreign service officer like the one who recently was killed by Taliban in Afghanistan does not have the power to cause this to happen, an Ambassador should, before leaving.  I have not seen from the reports what were the discussions before the Ambassador left about the necessary security for this trip to the mission.  That would be interesting.

Next, from the contingent provided we see the result of the process – whether there was a request for more or not.  If there was a request for more security and more security was denied, the reasons for that denial at Main State would seem another area of inquiry.  By whom and at what level.

I suspect that the State command reaction on this was much like the 911 reaction of the police to the alleged calls over the years about naked women next door in the horrendous Cleveland case – strained resources coming up against multiple demands.  Triage and hope that one picks right.  This time one picked wrong.

Once the Benghazi attack started, more troops being sent and an Aviano plane flyover seem to be the next possible solution proposed at the Embassy.  The reports are that the more troops were nixed by Defense as was the Aviano flyover the latter due to lack of time and lack of a refueling plane.  Not even sure either of those would have been enough given the virulence of the attack.

Put another way, once the horse was out of the barn, there was no Plan B or too little available as a Plan B.  Inexcusable by the Embassy.  Appalling by Main State. In the make do situation, on the initial team and the reaction team, the call we are looking to be made is a call we ask our Defense Department to make. Given how much we value our soldiers, I am not surprised Defense was not willing to  send more troops in with high probability of them also being killed.  Cold business this Defense Department stuff – no matter how gung ho the special forces were to take the battle to them.

Too risk averse in the Defense Department? Maybe so, but they see things one way and the State person sees it another.  Remember the leeriness about sending troops into Libya during its civil war?  Nothing new under the sun so shortly thereafter.

Once people started dying, we then get to the weekend talk shows and Ambassador Rice’s performance.  Here we get the interagency weighing in and bureaucratic CYA operating – dismal but somehow not surprising whatever the party of the administration. Not privy to what was in the interagency, not able to know to what extent ( I am sure there is some but not sure just how much) this was being spun.  Person not in the loop + talking point = Rice as sacrificial lamb in the terrible political wars in DC.  Warned people at an ASIL meeting about knowing when you are in the loop or not.  She is a standup person but her sword was handed to her.  Maybe she should have been more skeptical – got played.  So it goes in this cold cruel Washington world.  Need a friend, get a dog.

As to retribution against the people speaking out, do not believe these people who testified have whistleblower status.   Admire their service and their courage for coming forward so we can hear their version – lived a terrible experience.

However, bureaucracies do not like to be made to look bad.  These whistleblowers must align their ambition with that of  Congress to survive.  To remain sane,  also prepare the way for the speaking and book circuit as a means of financing their life post these hearings.  The late Thomas Franck’s Resignation in Protest is not too promising on the outcomes for people who take these kinds of positions.

Where do we go from here? Like usual, Congress and the President have to be willing to admit there are serious risks, Main State needs resources, and all three should not nickel dime the folks in the field.  My dad served with State in war zones or near war zones like in Tunisia during the Algerian War and in Nigeria during the Biafran War.  The resources to protect him and his family on post were minimal in both settings – like sitting ducks that fortunately did not get in someone’s crosshairs.  In Tunisia, we went to the beach when I was real little with our French au pair and she was raped in front of us by a local – so much for security where we lived at the end of a road next to the dunes.  Beautiful but terribly exposed with the Algerian War and its havoc next store.  When we heard something, only solution was to call the police while my dad could be miles away in Tunis or worse on mission somewhere in the country.  In Nigeria, there was an unarmed night-watchman (watchnight) that was part of the rent for the housing, but we were as exposed as anyone could imagine.  As kids, all this was very exciting when we were on post, but looking back reminds me of my days hitchhiking in college around the United States – what was I (were they) thinking?  We grimly see that the resources dictate much of the outcomes.

Troubling thought:  all these people expressing outrage about the ineptitude and misleading of the American people and the deaths of four Americans do not seem to get the echo with the much huger disaster that is the intentional misleading of the American people into waging of the Iraq War on a lie as well as the 4000 dead and 30 000 wounded.  Surely that disaster is worth more scrutiny and accountability for higher-ups then this administrative screw-up that ended in  tragedy.  And I mean more than people being passed over for a promotion or people having trouble getting a nomination.  I am talking about a crime that should be prosecuted as I wrote about in my article “State Criminal Prosecution of a Former President: Accountability through Complementarity Under
American Federalism, 24 F.J.I.L.331 (2012)” available at SSRN: http://ssrn.com/abstract=2187402.

But what do I know.

 By Marjorie Cohn

More than 100 of the 166 detainees at Guantanamo are starving themselves to death. Twenty-three of them are being force-fed. “They strap you to a chair, tie up your wrists, your legs, your forehead and tightly around the waist,” Fayiz Al-Kandari told his lawyer, Lt. Col. Barry Wingard. Al-Kandari, a Kuwaiti held at Guantanamo for 11 years, has never been charged with a crime.

“The tube makes his eyes water excessively and blood begins to trickle from the nose. Once the tube passes his throat the gag reflex kicks in. Warm liquid is poured into the body for 45 minutes to two hours. He feels like his body is going to convulse and often vomits,” Wingard added.

The United Nations Human Rights Council concluded that force-feeding amounts to torture. The American Medical Association says that force-feeding violates medical ethics. “Every competent patient has the right to refuse medical intervention, including life-sustaining interventions,” AMA President Jeremy Lazarus wrote to Defense Secretary Chuck Hagel. Yet President Barack Obama continues the tortuous Bush policy of force-feeding hunger strikers.

Although a few days after his first inauguration, Obama promised to shutter Guantanamo, it remains open. “I continue to believe that we’ve got to close Guantanamo,” Obama declared in his April 30 press conference. But, he added, “Congress determined that they would not let us close it.” Obama signed a bill that Congress passed which erected barriers to closure. According to a Los Angeles Times editorial, “Obama has refused to expend political capital on closing Guantanamo. Rather than veto the defense authorization bills that have limited his ability to transfer inmates, he has signed them while raising questions about whether they intruded on his constitutional authority.

“I don’t want these individuals to die,” Obama told reporters. In fact, Obama has the power to save the hunger strikers’ lives without torturing them. Eighty-six – more than half – of the detainees remaining at Guantanamo have been cleared for release for the past three years. Section 1028(d) of the 2013 National Defense Authorization Act empowers the Secretary of Defense to approve transfers of detainees when it is in the national security interest of the United States. Fifty-six of the 86 cleared detainees are from Yemen. Yet Obama imposed a ban on releasing any of them following the foiled 2009 Christmas bomb plot by a Nigerian man who was recruited in Yemen. Obama must begin signing these certifications and waivers at once.

Indeed, Obama said in his press conference, “I think – well, you know, I think it is critical for us to understand that Guantanamo is not necessary to keep America safe . . . It hurts us in terms of our international standing . . . It is a recruitment tool for extremists. It needs to be closed.”

In addition, Obama’s March 7, 2011 Executive Order 13567 provides for additional administrative review of detainees’ cases. The Periodic Review Board (PRB) would provide an opportunity for a detainee to challenge his continued detention. Yet Obama has delayed by more than a year PRB hearings at which other detainees could be cleared for release. Despite a requirement that the PRB begin review within one year, no PRB has yet been created. Obama should appoint an official to oversee the closure of Guantanamo and commence periodic reviews immediately so that detainees can challenge their designations and additional detainees can be approved for transfer.

Moreover, as suggested by Lt. Col. David Frakt, who represented Guantanamo detainees before the military commissions and in federal habeas corpus proceedings, Obama should direct the attorney general to inform the D.C. Circuit Court of Appeals that the Department of Justice no longer considers the cleared detainees to be detainable. Obama has blocked the release of eight cleared detainees by opposing their habeas corpus petitions. “[W]hen the Obama administration really wants to transfer a detainee, they are quite capable of doing so,” Frakt wrote in JURIST.

The Constitution Project’s Task Force on Detainee Treatment, which includes two former senior U.S. generals, and a Republican former congressman and lawyer, Asa Hutchinson, issued a report that concluded the treatment and indefinite detention of the Guantanamo detainees is “abhorrent and intolerable.” It called for the closure of the prison camp by next year.

Twenty-five former Guantanamo detainees issued a statement recommending that the American medical profession stop its complicity with abuse force-feeding techniques; conditions on confinement for detainees be improved immediately; all detainees who have not been charged be released; and the military commissions process be ended and all those be charged tried in line with the Geneva Conventions.

The detainees who are refusing food have been stripped of all possessions, including a sleeping mat and soap, and are made to sleep on concrete floors in freezing solitary cells. “It is possible that I may die in here,” said Shaker Aamer through his lawyer, Clive Stafford Smith. “I hope not, but if I do die, please tell my children that I loved them above all else, but that I had to stand up for the principle that they cannot just keep holding people without a trial, especially when they have been cleared for release.” Aamer, a British father of four, was approved for release more than five years ago.

Col. Morris Davis, who served as Chief Prosecutor for the Terrorism Trials at Guantanamo, personally charged Osama bin Laden’s driver Salim Hamdan, Australian David Hicks, and Canadian teen Omar Khadr. All three were convicted and have been released from Guantanamo. “There is something fundamentally wrong with a system where not being charged with a war crime keeps you locked away indefinitely and a war crime conviction is your ticket home,” Davis wrote to Obama.

Marjorie Cohn is a professor at Thomas Jefferson School of Law and former president of the National Lawyers Guild. Her most recent book is The United States and Torture: Interrogation, Incarceration, and Abuse. See www.marjoriecohn.com.