August 2009

  • August 24, 2009

    Today, the CIA released this report by the agency's Inspector General. The Washington Independent reports that the just-unclassified document, which remains heavily redacted, "was so charged within the agency that former CIA Director Michael Hayden clashed with [Inspector General John] Helgerson over the inspector general's independence and investigative authority."

    While a statement from CIA Director Leon Panetta says that "[i]n many ways, this is an old story," the report's revelations include the following: 

    • 1. The report states, "One of the psychologists/interrogators acknowledged that the Agency's use of the technique differed from that used in SERE [Survival Evasion Resistance Escape] training and explained that the Agency's technique is different because it is 'for real' and is more poignant and convincing."
    • 2. Also, the CIA failed to disclose accurate medical information to the Justice Department when requesting permission to waterboard detainees. Rather, they provided medical information relevant to waterboarding as performed during SERE trainings which, as mentioned above, was less "poignant and convincing" than the method employed by the CIA.
    • 3. While the report expressly implicates Justice Department attorneys who gave oral permission for torture to CIA officials, it appears that this permission was only granted after several uses of the "extreme interrogation techniques."
    • 4. In what the report calls the "most significant" incident, one debriefer acted without authorization, using an unloaded handgun and a drill to coerce a detainee.
  • August 24, 2009
    With a federal court contemplating a proposed settlement of a lawsuit challenging Google's book search technology, Professor James Grimmelmann examines the details. In his ACS Issue Brief, now available in the new edition of Advance: The Journal of the ACS Issues Groups, Grimmelmann writes:

    For the past four years, Google has been systematically making digital copies of books in the collections of many major university libraries. It made the digital copies searchable through its web site--you couldn't read the books, but you could at least find out where the phrase you're looking for appears within them. This outraged copyright owners, who filed a class action lawsuit to make Google stop. Then, last fall, the parties to this large class action announced an even larger settlement: one that would give Google a license not only to scan books, but also to sell them.

    Grimmelmann, an associate professor of the Institute for Information and Law at New York Law School, in The Google Book Search Settlement: Ends, Means, and the Future of Books, says several aspects of the proposed settlement deserve scrutiny.
    Regarding the treatment of "orphan works," titles where the original copyright owner can no longer be located, Grimmelmann states:

    The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.


  • August 21, 2009

    A frequently overlooked consequence of laws aimed at deterring support of terrorism is their effect on rendering humanitarian aid throughout the world.

    In his ACS Issue Brief, which is now available in the new issue of Advance, Ahilan T. Arulanantham writes that because of the "enormous breadth" of "material support" laws humanitarian groups and volunteers have scaled back their work. In A Hungry Child Knows No Politics: A Proposal for Reform of the Laws Governing Humanitarian Relief and ‘Material Support' of Terrorism, Arulanantham also notes that the laws barring material support of terrorism include "no general exception for humanitarian assistance, even if it is necessary to save the lives of people who happen to live in territory" controlled by groups that have been designated as terrorists. 

    Arulanantham writes:

    The current material support statute, with its limited exceptions and extremely broad intent requirement, leads to truly irrational results. A humanitarian organization may send medicine to perform dialysis, but risks prosecution if it also seeks to send either the doctor or the equipment needed to perform the dialysis itself. Surely we do not enhance our nation's security by enacting statutes that lead to such absurd, and cruel, results.

    All articles of the new issue of Advance: The Journal of the ACS Issue Groups are available here.


  • August 21, 2009

    Non-unionized American workers generally may see their employment terminated for any reason not expressly forbidden by the National Labor Relations Act and other protections. In other words, unlike most other industrialized countries, the United States operates under an at-will system of employment, permitting employers to fire employees without explanation. There is an exception, however.

    The state of Montana has operated under the requirement of just cause for termination of employees. Under a just-cause system, employers bear the burden of proof to justify dismissals of employees, usually by offering evidence of the employee having violated company policy or rules. 

    This unique experiment in labor law is the subject of Just Cause in Montana: Did the Big Sky Fall? by labor law exper Barry D. Roseman, and ACS Issue Brief included in the latest edition of Advance: The Journal of the ACS Issue Groups

    In his brief, Roseman applies the lessons of just cause in Montana to the broader national policy debate. While those defending at-will employment claim that it is necessary to maintaining a low unemployment rate, Roseman observes that, in the only state in the Union to adopt just-cause employment, this is not true.

  • August 20, 2009
    Guest Post

    By Alex Kreit, professor of law and director of the Center for Law and Social Justice at Thomas Jefferson School of Law, San Diego, Calif.

    We're only three months into Gil Kerlikowske's tenure as head of the Office of National Drug Control Policy-a position commonly referred to as "drug czar"-but already there have been a number of steps toward reforming some of drug policies that I highlighted as most in need of change in my ACS Issue Brief, which is now available in the new issue of Advance: The Journal of the ACS Issue Groups.

    Since President Obama took office, we've seen positive developments in the areas of sentencing reform, needle exchange funding, medical marijuana, and overseas crop eradication programs, just to name a few. With respect to sentencing reform, the Fairness in Cocaine Sentencing Act, which would eliminate the 100-to-1 disparity between crack and powder cocaine penalties, and the Ramos-Compean Justice Act, which would allow courts to sentence below the mandatory minimum sentence in some circumstances, have both made read progress through committees in Congress. A few weeks ago, the House of Representatives voted 218-211 to lift the ban on federal needle exchange funding. Attorney General Eric Holder has repeatedly said he will discontinue the Bush Administration's medical marijuana raids (while the DEA executed paramilitary-style raids of two dispensaries in Los Angeles just last week, reportedly allegations of tax evasion are being used to try and distinguish them from previous dispensary raids.) And, the U.S, envoy for Afghanistan, Richard Holbrooke, has announced an end to the failed poppy eradication program, calling eradication "a waste of money" that had "just helped the Taliban."

    Perhaps even more encouraging than developments with respect to any specific policy, however, was the Senate's confirmation two weeks ago of addiction expert A. Thomas McLellan for the post of Deputy Director of National Drug Control Policy. This is because the nomination of McLellan, previously a professor at the University of Pennsylvania School of Medicine, to such an important position is a hopeful indication that the Administration may be interested in exploring making broader changes to our drug abuse strategy and pursuing a public health approach to the problem.

    McLellan is committed to the view that addiction is a medical problem, not a criminal or moral problem, and has spoken out strongly in favor of the use of methadone to treat opiate addiction. To get a sense of why McLellan's confirmation is such a positive sign for those of us who believe that treatment and prevention, not mass incarceration, is the most effective strategy for reducing drug demand, this interview he gave to Bill Moyers in the late 1990's is worth a look.