-- Beginning tomorrow, we will kick off a series on the effects of the legal system, judicial rulings, and issues in an effort to raise the level of awareness of your vote and its impact on all of our lives and the legal system.  Elections have consequences, and one of the big ones at the federal level is the ability to impact the legal system for a very long time through lifetime appointments to the federal bench.  (Hello Roberts and Alito for starters.)

Joining us in this effort will be the Alliance for Justice.  And tomorrow, AFJ president Nan Aron will join us for a live chat at 11 am ET/8 am PT to kick off this issues series.  I hope all of you can join us!   From there on forward, we'll be featuring these pieces on the First Monday of each month (law nerds in the audience will get that, I'm sure.).

-- Former counsel to the 9/11 Commission, John Farmer, has an op-ed in today's NYTimes calling for the establishment of a separate terrorism-court, outside the criminal justice system.  On one hand, he has a point that there is a "pre-crime" aspect to terrorism conspiracy prosecutions that is inadequately addressed by the current system.  But that doesn't make for any level of comfort with the sort of "out of the public eye secret proceeding" sort of Gitmo-ization of the process that he seems to endorse.  Maybe because it isn't fully fleshed out in two online pages, but I'm not inclined to endorse this -- too few safeguards, and too few reasons to trust without them.

-- Which takes us back to an op-ed that Mr. Farmer wrote in 2006 criticizing the Padilla proceedings, which ended with this Justice Jackson quote:  "The real complaining party at your bar is civilization." 

-- Speaking of Padilla, he is expected to be sentenced in Miami this week.   It is worth a reminder that Mr. Padilla was indicted by the US government only after the conservative 4th Circuit called them on violating the constitutional rights of an American citizen by holding him indefinitely with wholly inadequate access to counsel...for years.  In case you missed the fantastic coverage that veteran journalist Lew Koch did for us on the Padilla trial, here you go. 

-- Stephen Griffen writing at Balkinization takes on the attempt at revisionist history that some factions of conservative legal scholarship are trying to advance.  And it is appalling and, worse, an outright lie.

...The basic flavor of the new conventional wisdom is that the internment was justified on the basis of the knowledge available to government officials acting in good faith in the confused months following the December 1941 attack on Pearl Harbor. Later, however, using the benefits of hindsight, “liberals” condemned the Korematsu case as racist and consigned it to the category of one of the worst decisions in the history of the American judiciary. I think exploring this new conventional wisdom yields some insights on the quality of constitutional analysis post-9/11.

One example is in a book written by Judge Posner on Bush v. Gore. Posner suggests that liberals “denounce [Korematsu] from the safe distance of half a century.” He comments that the threat posed by Japan was perceived to be great, “though in hindsight we know that the perception was exaggerated.” Apparently making a comment about liberals today, Posner states: “Liberals detest Korematsu, but not because it allowed pragmatism to trump principle; rather because of suspicion of the military and a sense of shame about the history of the nation’s mistreatment of East Asians.”

I was surprised to find another example of this sort of reasoning in a casebook on foreign relations law by Professors Bradley and Goldsmith. They refer to “intelligence information” about threats from Japanese civilians as if it was credible at the time. They note that Korematsu “is widely decried,” but apparently on the basis of an “ex post perspective” in “hindsight.” They ask students to reflect whether hindsight is “the proper perspective from which to determine the validity of military orders in response to perceived emergencies?”

It would be a shame if these examples were part of a conservative rewriting of constitutional history. This alternate-reality conventional wisdom has no contact with the standard historical literature on Korematsu which has been available for decades. They are bunk and an alarming sort of bunk at that. The internment was condemned by responsible lawyers in 1942 as wrong, unconstitutional, and based on flimsy evidence. All of this was known at the time, not the product of ex-post reasoning by “liberals.”...

It’s not as if everyone figured out decades after WWII that the internment had been a terrible mistake, as Posner would have it. Most responsible lawyers with access to relevant information knew the internment was unjustified at the time. Others without access to FBI files were capable of exercising their common sense judgment to figure out that the evidence available could never justify the deportation of whole families into internal exile.

There are some further obvious lessons to be drawn from Korematsu. Surprise attacks cause fear and confusion. The military and the president are quickly on guard against other attacks that might cost American lives. Fortunately, in WWII we had sensible lawyers in the DOJ who knew the proposed internment went too far. Unfortunately, they were overruled by the War Department and a president inattentive to constitutional rights. But the DOJ lawyers in WWII led by AG Biddle were on the right track and their ex-ante judgments about the true risks of sabotage were proven right by history. Too bad officials in the Bush DOJ were not more aware of this history and their proper role in our constitutional order in the aftermath of 9/11.

Amen.

-- Andrew Cohen at Bench Conference has a good colloquy on the whys and wherefores of Jose Rodriguez lawyering up in the CIA tape destruction case.  And what it could mean for the DOJ and the public inquiry into yet another allegation of misconduct, cover-up and overreach in the Bush Administration, and the prospects for oversight thereon.

-- Glenn has some thoughts on hate speech laws, and the consequences thereof.

-- And Paul Kiel at The Muck has some good news for the DOJ's civil rights section.  Here's to a heckuva lot more sunshine!

(Jimi Hendrix, Sunshine Of Your Love, live in Stockholm in 1969.  Yes, I am in a music mood this morning...)