A rather bizarre case in Illinois — even by the standards of that state.

For more than a decade, classes of students at Northwestern University’s journalism school have been scrutinizing the work of prosecutors and the police. The investigations into old crimes, as part of the Medill Innocence Project, have helped lead to the release of 11 inmates, the project’s director says, and an Illinois governor once cited those wrongful convictions as he announced he was commuting the sentences of everyone on death row.

But as the Medill Innocence Project is raising concerns about another case, that of a man convicted in a murder 31 years ago, a hearing has been scheduled next month in Cook County Circuit Court on an unusual request: Local prosecutors have subpoenaed the grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students themselves. The prosecutors, it seems, wish to scrutinize the methods of the students this time. The university is fighting the subpoenas.

Lawyers in the Cook County state’s attorney’s office say that in their quest for justice in the old case, they need every pertinent piece of information about the students’ three-year investigation into Anthony McKinney, who was convicted of fatally shooting a security guard in 1978. Mr. McKinney’s conviction is being reviewed by a judge. Among the issues the prosecutors need to understand better, a spokeswoman said, is whether students believed they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.

[...]

A spokeswoman for Anita Alvarez, the Cook County state’s attorney, who was elected last fall, said the prosecutors were simply trying to get to the bottom of the McKinney case. “At the end of the day, all we’re seeking is the same thing these students are: justice and truth,” said Sally Daly, the spokeswoman. She said the prosecutors wished to see all statements the students received from witnesses, whether they supported or contradicted the notion of Mr. McKinney’s innocence. “We’re not trying to delve into areas of privacy or grades,” Ms. Daly said. “Our position is that they’ve engaged in an investigative process, and without any hostility, we’re seeking to get all of the information they’ve developed, just as detectives and investigators turn over.”

Well, no. Without probable cause to believe criminal action on part of the students, the state has no right to any of this material.  And why would it matter if the students thought they would get better grades for getting provocative statements?  Surely, people aren’t going to confess to crimes or commit otherwise commit perjury in order to help out some rich college students they don’t know.

On this matter, there seems to be wide consensus.

American University conlaw prof Darren Lenard Hutchinson:

The subpoena raises several red flags. First, the information the prosecutors seek is completely unrelated to the question of McKinney’s guilt or innocence. Second, student grades are normally protected from disclosure by federal law. Third, the program is operated by the school of journalism and likely qualifies for protection by state journalism shield laws and the First Amendment. Fourth, the professor’s course materials are possibly protected from disclosure by the concept of academic freedom — which the Supreme Court has construed as a value secured by the First Amendment.

[...]

Daly also likens the subpoena to the routine disclosure of information by “detectives.” Police detectives, however, work for the government and assist the prosecution. They are colleagues. Although private detectives do not work for the government, they have an unambiguous financial stake in the outcome of their investigation. The students, by contrast, are private citizens and journalists. The Medill project exists to monitor and improve the criminal justice system — not to service the prosecutor’s office or inmates.

[...]

Illinois prosecutors are blatantly using the strong arm of the state to harass Medill journalism students. The prosecutors’ behavior evinces a deep contempt for the law, which makes the students’ efforts to uncover wrongful convictions even more compelling.

Emptywheel’s bmaz:

The Cook County prosecutors cite no evidence to support a credible belief there is anything nefarious behind the student journalists’ work. The students work, conclusions and supporting materials are all part of their project report. The prosecutors already have access to all of said pertinent material, as well they should. But what they now want are “grades, grading criteria, class syllabus, expense reports and e-mail messages of the journalism students”. Here is the actual subpoena. This is information that has nothing whatsoever to do with the students work on the project. “Fishing expedition” would be far too kind of a term.

The only visible purpose of the play by the prosecutors here is intimidation and instillation of a deep chill in the work of the Medill Innocence Project.

Retired federal judge H. Lee Sarokin:

I am always offended and annoyed with the labeling of some recent conduct or person with Nazism or Hitler or drawing analogies with the Holocaust and thereby belittling those horrific events in our history with some current less appalling and even minor occurrences. But I truly believe that the attempt of prosecutors to subpoena “the grades, grading criteria, class syllabus, expense reports and e-mail messages of their journalism students themselves” at Northwestern University warrants and deserves the Gestapo label.

It is a flagrant attempt to intimidate the Medill Innocence Project and other similar projects which have been so successful in overturning wrongful convictions. The alleged justification is that the prosecutors want to determine “whether students believed that they would receive better grades if witnesses they interviewed provided evidence to exonerate Mr. McKinney.” So I take it that would mean that every time a detective obtained incriminating evidence, his entire background could be examined in order to determine his motives when interviewing a witness; whether he had received or expected a raise or a promotion; and if so whether he needed money; how much his debt was; what he was paying for rent and alimony, etc. In other words, the scope of the investigation would be extended to the motives of the investigator rather than the witness being investigated and interrogated.

Wisconsin lawprof Ann Althouse asks “what information about students and classes should it be able to look at?”  She does not attempt to answer the question.  Her commentators give it a shot.

Tennessee lawprof Glenn Reynolds, aka InstaPundit, snarks, “Hey, it’s the Chicago Way. But the parallel is pretty striking — if you don’t like what they’re reporting, why, then, they’re not really journalists!“

As has been anticipated, the man who murdered 270 people by bombing Pan Am Flight 103 over Lockerbie, Scotland in 1988, has been given a compassionate release from prison so that he may spend his dying days with his family.

Abdel Basset al-Megrahi (L) walks up the stairs to a waiting jet at Glasgow airport August 20, 2009. The Scottish government decided on Thursday to free Lockerbie bomber Abdel Basset al-Megrahi from prison on compassionate grounds as he is suffering from advanced prostate cancer and he will return home to Libya. Megrahi was sentenced to 27 years in prison in 2001 for his part in blowing up New York-bound Pan Am flight 103 in December 1988, killing 259 people on board and 11 people on the ground in Lockerbie, Scotland. REUTERS/David Moir (BRITAIN CRIME LAW POLITICS IMAGES OF THE DAY)

I’ve written a lengthy roundup of the matter, “Lockerbie Bomber Released Over U.S. Objections,” for New Atlanticist.

Alex Massie argues that there’s nothing gained by keeping Abdelbaset al-Megrahi locked up, especially since we’re pretty sure he didn’t act alone.

Perhaps. Then again, he is the only person to actually be convicted in the mass murder of these 270 people. Surely, his part in that merits spending more than eight years in prison.

The decision, of course, is rightly with the UK Scots.  They, not the United States, have the jurisdiction here and, while our government has every right to express its wishes, they have the right to carry out the policy they think best.  Certainly, al-Megrahi would have been allowed to rot in prison were he in American custody; indeed, he may well have been executed for his crimes.  Despite our common law origins, there is quite a bit of divergence in the criminal justice cultures of the two countries and, indeed, within the Western democracies generally.

Also, is it just me or is it rather surreal that he’s flying home on a commercial airliner (not Pan American, which ceased operations long before al-Megrahi ever went to trial) and climbing stairs saying “Next time …Relax before you fly”?

UPDATE: Joe Gandelman has a nice roundup as well.

UPDATE II: I have corrected the above to note that the sovereignty here is with the Scots, not the UK central government.  Interestingly, all of the papers cited in the piece — mostly British but also the American Christian Science Monitor — treat the subject otherwise, writing about it in terms of US-UK relations and US-UK cultural disparity.

Photo: Reuters Pictures.

Rusty Shackleford:

Bush-Hitler: Holding terrorists indefinitely without charge in Gitmo.

Hope-Change: Holding terrorists indefinitely without charge somewhere else.

As Jacob Sullum notes in much more thorough post, it’s a natural consequence of the Obama administration’s continuing the Bush perspective that we’re at war with terrorists.

In Holder’s view, then, we are engaged in a war that started years before we noticed it and may never end, at least not in any definitive way. The enemy is not simply the guy who shoots at you on the battlefield, who can be readily identified; he can be anyone, anywhere who helps anti-American terrorists. He could be a guy captured in the Philippines suspected of funneling money to Al Qaeda, or (presumably) he could be the employee of an Islamic charity in the U.S. that is accused of sending money to Hezbollah. Given Holder’s invocation of cyber and mental battlefields, the enemy could even be someone accused of fomenting terrorism through incendiary online criticism of the U.S. government. The implication is that any of these people could be held in military custody without trial until the cessation of hostilities, i.e., indefinitely.

Right.

This was entirely predictable and, indeed, predicted by several of us here at OTB and by other analysts.  Being president is a hell of a lot different than being a candidate for president. No administration is going to simply release possible terrorists and take the resultant risk.

The key problem with the Bush policy wasn’t detention but rather the lack of even a modicum of due process.  So long as the Obama administration comes up with a way to let suspects put forth evidence that they’re not who we think they are, we’ll have moved forward.  Sullum isn’t happy:

Such suspects need not even be tried by military tribunals; they could simply be identified as “unlawful enemy combatants” through a process that is yet to be determined but that will certainly be much less rigorous than a full-blown trial. What will be the basis for deciding which suspects get full due process and which get something far less, which receive determinate prison sentences and which are held indefinitely? If the option is available, it will always be tempting to take the easier route, which could mean that every case related to terrorism will be militarized. Then anyone accused of aiding terrorism can forget about justice as it is usually understood.

So long as we treat terrorism as a national security problem rather than a criminal justice problem, no one should expect different.

There has been quite a bit of blogospheric reaction to the news that two former inmates at Gitmo appeared in an al Qaeda video:

Former detainee at Guantanamo Bay, Abu Sufyan al-Azdi al-Shahri (Formerly Prisoner 372)

Two men released from the US “war on terror” prison at Guantanamo Bay, Cuba have appeared in a video posted on a jihadist website, the SITE monitoring service reported. One of the two former inmates, a Saudi man identified as Abu Sufyan al-Azdi al-Shahri, or prisoner number 372, has been elevated to the senior ranks of Al-Qaeda in Yemen, a US counter-terrorism official told AFP. Three other men appear in the video, including Abu al-Hareth Muhammad al-Oufi, identified as an Al-Qaeda field commander. SITE later said he was prisoner No. 333.A Pentagon spokesman, Commander Jeffrey Gordon, on Saturday declined to confirm the SITE information. “We remain concerned about ex-Guantanamo detainees who have re-affiliated with terrorist organizations after their departure,” said Gordon. “We will continue to work with the international community to mitigate the threat they pose,” he said.

On the video, al-Shihri is seen sitting with three other men before a flag of the Islamic State of Iraq, the front for Al-Qaeda in Iraq. “By Allah, imprisonment only increased our persistence in our principles for which we went out, did jihad for, and were imprisoned for,” al-Shihri was quoted as saying.

Al-Shiri was transferred from Guantanamo to Saudi Arabia in 2007, the US counter-terrorism official said.

Obviously, if these two men were still being held prisoner indefinitely, they would have had a hard time making this tape.  And, if they’re in fact senior leaders and commanders in al Qaeda, it would seem just as obvious that they should in fact still be locked up.  (Note:  A couple of bloggers have treated this news as as additional piece of evidence piled upon Wednesday’s NYT story “Freed by the U.S., Saudi Becomes a Qaeda Chief.”  In actuality, said chief is the above-pictured al-Shahri.)

But here’s the thing: Former prisoners in our criminal justice system are let out all the time, either because they’ve completed their sentence, earned parole, a jury couldn’t be persuaded to convict them, or various other reasons.  A sizable portion of those people then go on to commit other crimes.   We nonetheless have not adopted a policy of keeping everyone who comes through the doors of our prison system locked up indefinitely as a precautionary measure.

Are al Qaeda terrorists different than American citizens suspected of committing crimes?  They are.  We’ve got more discretion at our disposal under international law than in our domestic system.   We can hold al Qaeda commanders caught on the field of battle “for the duration” of hostilities which, theoretically, is forever since this is a “long war” with no foreseeable end.  But, under the terms of international treaties that we’ve not only committed ourselves but led the way in negotiating, we have to provide some minimal level of due process establishing that these people are who we say they are.  Rather clearly, we were unable to do that in the case of these two individuals.

I don’t like the outcome here.  I’d rather have these two guys (and the numerous others Jim Hoft links to at the bottom of this post) still under the control of the American military.  But not at the price of a system that violates our treaty obligations and keeps hundreds of innocents locked up simply because we can’t distinguish the good guys from the bad guys and therefore treat them all like the latter.

In criticizing Barack Obama today, Andy McCarthy makes the claim that Barack Obama wants to end prison sentences for violent offenders.

Not to be a broken record, but it’s worth recalling that Obama gave a rave review to former terrorist Bill Ayers’s polemic against the criminal justice system, A Kind and Just Parent. More radical than even the Warren Court, Ayers’s book called for an end to prisons and harsh sentences for violent offenders. Obama praised it as a “searing and timely account.”

That’s pretty damning. Damning, that is, until you do a five-second search on Amazon for a book description and realize that Ayers’ book is a criticism of the juvenile justice system that advocates an end to prison sentences for juveniles. I would contend that there’s a world of difference between wanting an end to harsh prison sentences for juveniles as opposed to adults.

McCarthy’s leaving the word “juvenile” out of the above sentence makes a world of difference in evaluating Obama’s policy towards the justice system. Frankly, it makes McCarthy look desperate. Why not just argue honestly about Obama’s policies, based on his campaign platform and voting record? Is it really so hard to engage reality as opposed to indulging in bizarre shadow conspiracy theories?

The United Kingdom is seriously considering doing away with prison sentences for scores of “lesser” crimes, Home Affairs Correspondent Tom Whitehead reports for the Daily Express.

Hundreds of thousands of crooks could escape jail every year under the proposals by advisers to the Lord Chief Justice. Those sentenced to short, sharp shock jail terms of less than 12 months for “less serious offences” – including burglary – should be handed community penalties instead, they said. Even those who are likely to reoffend could walk free from court if it is believed they will go on to commit “non-serious offences”.

[...]

More than 292,000 burglaries were reported to police last year. Burglars are locked up for an average of six months – but the Sentencing Advisory Panel said unpaid work or a curfew could be a better way of punishing them.

The panel – which advises the Sentencing Guidelines Council, chaired by the Lord Chief Justice – said short custodial sentences are not as effective at rehabilitating offenders. But it stressed that, rather than suggesting longer jail terms, it was saying that “there may be better alternatives to short custodial sentences”. The panel’s review said: “A presumption in favour of a community order is most likely to be appropriate in relation to the less serious offences of theft and dishonesty, burglary and motoring offences, where there may be clear advantages in a sentence in the community.”

I got the story from Ace, who quips, “I assume such penalties will include standing outside doing make-work like picking up trash in neighborhoods, becoming familiar with local houses and security systems and blind spots and police presence.”

Really, though, I think they’re on the right track.  Burglars, especially repeat offenders, likely should be taken off the streets.  But it’s not at all clear that subjecting drunk drivers, drug offenders, and minor white collar criminals to the horrors of the prison system is a net plus for society.

James Q. Wilson asks of himself, “Can I Be a Meaningful Blogger?” and quickly demonstrates that, alas, he can not. Or, at least, will not.

Wilson is an extremely bright and accomplished fellow. Certainly, he’s ten times the social scientist that I’ll ever be. But perhaps the things which made him so successful as a scholar have impeded him as a would-be blogger.

A lot of readers have suggested that I am not a helpful blogger because I refer people to other studies for data to support my arguments. These critics are probably right. Were I devoted to blogging full time, I would quote all the data and summarize all of the studies, thereby getting nothing else done. I had assumed when I started my blog messages that people would pause, think, and look up facts. A few have, but most seem to have opinions they like to express quickly. There is nothing wrong with this, except that it doesn’t advance knowledge. Let me join the opinion parade by offering a few of my own: This country imprisons too many people on drug charges with little observable effect. A better solution can be found in Hawaii, where a judge uses his powers to keep drug users in treatment programs (it’s called Project Hope; look it up). The costs of crime are hard to measure (so are the costs of confinement). The reader who does not want to drive five miles to find the book, Prison State, that discusses this in detail is wasting my time and his. It is not hard to study deterring crime, but I can’t imagine trying to teach someone in a blog how to do a regression analysis. I wish I could do that, but it would take time, and blog commenters seem not to have much time.

Ha! He really told off those pesky would-be readers!

But the whole point of blogging — especially blogging by learned professionals such as Wilson — is to concisely summarize complex arguments, putting them in terms that reasonably educated non-specialists can understand, and provide hyperlinks to more extensive documentation for readers interested in further study.

I’m trained in regression analysis, although I’m more than a bit rusty these days. But I don’t want equations in my blog posts, anyway. What I would want from Wilson’s blog posts is a précis of the latest research results in his field, with minimal jargon, highlighting the findings and explaining what they mean for public policy.

It’s all well and good that Wilson knows more than I ever will about the criminal justice system. But he’s got a genius level IQ and has been studying the issue since before I was born, so I’m never going to catch up. Still, someone with that knowledge and his demonstrated writing skill should be able to spend 30-45 minutes summarizing his knowledge, linking to sources, and educating the interested public. That’s what public intellectuals — which is all bloggers are, really — do.

For my tastes, that would be an excellent use of Wilson’s time. Building knowledge is an important task. But spreading that knowledge is at least as important.

via memeorandum:

Lt. Cmdr. William Kuebler, who is serving as the defense attorney for Canadian citizen Omar Khadr’s war crimes trial (previously discussed on OTB here) has divulged that the Pentagon has been urging interrogators in Guantanamo Bay to destroy all of their notes regarding their interrogation of detainees.

The Pentagon urged interrogators at Guantanamo Bay to destroy handwritten notes in case they were called to testify about potentially harsh treatment of detainees, a military defense lawyer said Sunday.

The lawyer for Toronto-born Omar Khadr, Lt. Cmdr. William Kuebler, said the instructions were included in an operations manual shown to him by prosecutors and suggest the U.S. deliberately thwarted evidence that could help terror suspects defend themselves at trial.

Kuebler said the apparent destruction of evidence prevents him from challenging the reliability of any alleged confessions.

[...]

The case against Khadr, who was captured in Afghanistan when he was 15, is on track to be one of the first to trial. He faces war-crimes charges including murder for allegedly throwing a grenade that killed a U.S. Special Forces soldier during a 2002 firefight.

Kuebler said the nature of the interrogations is particularly relevant in Khadr’s case because prosecutors are relying on evidence “extracted” from him at Bagram air base in Afghanistan and at Guantanamo.

“If handwritten notes were destroyed in accordance with the SOP, the government intentionally deprived Omar’s lawyers of key evidence with which to challenge the reliability of his statements,” Kuebler said in an e-mail to reporters. [emphasis added]

I am racking my brain to come up with a reason to destroy interrogation notes that doesn’t involve covering up evidence of a crime, but am so far coming up short. Using torture and other coercive interrogation techniques to extract confessions is not only morally outrageous, but history has shown time and time again that the typical results are false confessions. I hope that Lt. Cmdr. Kuebler is successful in fighting this and gets the charges dismissed.

UPDATE (James Joyner): Alex has asked me to weigh in, based on my military background, about the nature of manuals, SOPs, and the like. Specifically: Who writes them? Who approves them? How do soldiers view them?

This depends largely on the type of document. Field Manuals, training manuals, and similar publications prepared for widespread dissemination — the entire DoD, one of the Services (Army, Navy, Air Force, Marines), or even an occupational specialty (Infantry, Military Police, etc.) — are typically written by a team of people supervised by someone of middle management rank (a field grade officer or civilian equivalent). Presumably, those that address matters pertaining to the Joint Staff and the like are staffed and approved at higher levels. They’re approved higher up the food chain but seldom at the level of political policy-maker. They’re taken rather seriously by the troops but generally don’t have enforcement provisions.

In this particular case, we’re talking about a much lower-level publication. Specifically, as the affidavit (PDF link provided by Lyle Denniston, who has some interesting thoughts on the legal matters Alex discusses above) makes clear, we’re talking about an organizational SOP. Specifically, a “Tiger Team SOP” with limited scope: “These procedures and responsibilities apply to Tiger Teams serving within the Interrogation Control Element (ICE), Joint Interrogation Group (JIG) of Joint Task Force (JTF) GTMO.”

Most likely, these were written by a relatively low level soldier — perhaps a senior NCO or company grade officer (I wrote these kinds of things as a 2nd Lieutenant) and approved by the JTF commander or perhaps his operations officer. Once promulgated, the members of the Tiger Teams would have felt obligated to carry them out unless they had strong moral objection or thought they were doing something illegal. Most personnel would take specific instructions in an organizational SOP as the equivalent of a written order from the commander.

Joint Task Force (JTF) GTMO, incidentally, is commanded by a one-star rear admiral.

Update (Alex Knapp)

Now that I’ve delved a little more deeply into this, a few more things have come to light.

(1) The operations manual apparently only orders the destruction of the handwritten notes after the creation of formalized typed notes or a formal intelligence report.

(2) Under normal circumstances, that type of procedure would probably be acceptable, and there’s not too much to object to there.

(3) The key words, though, are “under normal circumstances.” The Defense counsel in this case are making the argument that the handwritten notes should be preserved in order to impeach hearsay testimony. In a normal court of law, of course, this would not be necessary because hearsay is typically inadmissible (although there are exceptions). In the detainee trials at Guatanamo, however, hearsay is admissible, and so defense counsel wants access to the original notes.

As a policy matter, I would prefer that these notes be kept for detainee hearings. This is because I generally favor a maximum amount of transparency when it comes to prisoner interrogations in any setting. Indeed, if it were up to me, every interrogation in the criminal justice system would be videotaped (as is the law already in a handful of states). That said, from the standpoint of the current law, there may not be anything illegal in what has been ordered. And given that the handwritten notes are replaced with formal notes and/or reports, the taint of coverup in the initial reports is markedly diminished.

However, these issues only serve to further illustrate the legal frustrations that have shadowed the Guantanamo Bay detentions ever since 2001. Given that in the “War on Terror” we are not necessarily engaged in hostile military actions against governments, and that the duration of the “War” is pretty much indefinite–there’s always going to be “terror groups” out there, so it’s not like we can pretend we’re just holding them for the duration of hostilities–the need for a more reliable legal process is a necessity. But neither the Administration, Congress, or the Courts seems to be in much of a hurry to do so. The lack of proper procedures, the treatment of detainees, and the insistence on secrecy have cost us moral authority and prestige. Not to mention that our actions have only served to distance us from valued allies (Khadr, for example, is a Canadian citizen) while at the same time serving as convenient propagada for al-Qaeda and other guerilla outfits.

I do not necessarily subscribe to the view that the detainees in Guantanamo and other U.S. controlled foreign prisons need to tried in civilian courts in the U.S. But there does need to be fair, transparent procedures in place to protect the rights of those detainees. Transparency of the interrogation process and eliminating the use of hearsay in legal proceedings would be a good start.

Anthony Cordesman, a longtime Iraq War skeptic and administration critic, argued in yesterday’s Washington Post that the wars in Afghanistan and Iraq are “winnable.” It’s a tightly written piece that defies excerpting but here is the crux of it:

No one can return from the battlefields in Iraq and Afghanistan, as I recently did, without believing that these are wars that can still be won. They are also clearly wars that can still be lost, but visits to the battlefield show that these conflicts are very different from the wars being described in American political campaigns and most of the debates outside the United States.

[...]

What the situations in Iraq and Afghanistan have in common is that it will take a major and consistent U.S. effort throughout the next administration at least to win either war. Any American political debate that ignores or denies the fact that these are long wars is dishonest and will ensure defeat. There are good reasons that the briefing slides in U.S. military and aid presentations for both battlefields don’t end in 2008 or with some aid compact that expires in 2009. They go well beyond 2012 and often to 2020.

If the next president, Congress and the American people cannot face this reality, we will lose. Years of false promises about the speed with which we can create effective army, police and criminal justice capabilities in Iraq and Afghanistan cannot disguise the fact that mature, effective local forces and structures will not be available until 2012 and probably well beyond. This does not mean that U.S. and allied force levels cannot be cut over time, but a serious military and advisory presence will probably be needed for at least that long, and rushed reductions in forces or providing inadequate forces will lead to a collapse at the military level.

The most serious problems, however, are governance and development. Both countries face critical internal divisions and levels of poverty and unemployment that will require patience. These troubles can be worked out, but only over a period of years. Both central governments are corrupt and ineffective, and they cannot bring development and services without years of additional aid at far higher levels than the Bush administration now budgets. Blaming weak governments or trying to rush them into effective action by threatening to leave will undercut them long before they are strong enough to act.

Any American political leader who cannot face these realities, now or in the future, will ensure defeat in both Iraq and Afghanistan. Any Congress that insists on instant victory or success will do the same. We either need long-term commitments, effective long-term resources and strategic patience — or we do not need enemies. We will defeat ourselves.

Donald Douglas praises Cordesman as “scrupulous in his even-handedness” and Dave Schuler judges him “consistently a purveyor of sound advice on Iraq and Afghanistan,” assessments which I share. But Kevin Hayden says Cordesman is part of the “false promises” gang, noting that Cordesman called for just “one more year in Iraq” a mere four months ago.

Perhaps that’s because Cordesman reflects the sober judgment of the foreign policy community. Here’s his conclusion in that piece from last October:

The odds of success are less than even. But it’s worth a try because the stakes are immense. America’s reputation and credibility are at risk; it “broke” Iraq, put 28 million lives at risk and is morally responsible for the consequences. Global energy security — the continued flow of the oil exports that fuel the world’s economy — are also in play. We shouldn’t stay in a losing game indefinitely. I believe we should give ourselves until October 2008; if there’s no Iraqi political accommodation by then, we should get out.

Meanwhile, we must play out the hand we have dealt ourselves.

Is he already hedging his bits on the goalposts for withdrawal? So it would seem. But the underlying calculus remains the same: The odds of success aren’t as one would like but the cost of failure is high. So long as the casualties are low and there are hopeful signs, then, we may well continue to muddle through with calls for “another year” or, as anti-war wags would have it, two more Friedmans.

There’s not much question that Congress will continue to insist on instant victory and administrations will continue to blame weak governments. The question is whether we’ll continue muddling through, extending the operations a few months at a time, long enough to succeed.

I don’t have the answer to that. It’s slightly more likely to happen under a McCain administration than an Obama or Clinton administration — but only slightly. McCain would be a more reliable champion of the wars, especially the one in Iraq, but Obama and Clinton would have an easier time persuading what is almost certain to be a Democratic Congress.

Photo: Center for Strategic and International Studies

In a column entitled “Hate Springs Eternal,” Paul Krugman decries the rancor of the Democratic primary contest, which he likens to the style of Richard Nixon.

I won’t try for fake evenhandedness here: most of the venom I see is coming from supporters of Mr. Obama, who want their hero or nobody. I’m not the first to point out that the Obama campaign seems dangerously close to becoming a cult of personality. We’ve already had that from the Bush administration — remember Operation Flight Suit? We really don’t want to go there again.

What’s particularly saddening is the way many Obama supporters seem happy with the application of “Clinton rules” — the term a number of observers use for the way pundits and some news organizations treat any action or statement by the Clintons, no matter how innocuous, as proof of evil intent.

There’s no question that the Clintons sometimes start with the presumption of bad will and slick deception. Some might argue, though, that there’s reason for that.

In any event, though, this is rather rich:

[P]rogressives should realize that Nixonland is not the country we want to be. Racism, misogyny and character assassination are all ways of distracting voters from the issues, and people who care about the issues have a shared interest in making the politics of hatred unacceptable.

Er, hasn’t it been the Clinton campaign — especially Bill Clinton — who have used racism, misogyny and character assassination as ways of distracting voters from the issues?

Krugman is right, though, on one count: There is something of a cult of personality surrounding Obama. Despite a lack of a presidential résumé and a vision for leadership that’s remarkably short on specifics, he’s managed to convince a wide swath of people that he’s going to cure all the ills of our political system.

That’s especially ironic given that much of his support is among the well educated and affluent, who are supposed to be more rational. He’s managed to get most of the liberal intelligentsia on his side and even has people on the center-right swooning.

Update (Alex Knapp): To elucidate a little further on my comment below, I have to disagree with James on the “Obama lacks substance” issue, and I think that Matthew Yglesias has a salient post today on that very issue:

I’ve never heard an anecdote that involved someone talking to Obama about some policy question and walking away feeling he had a notably poor grasp of the issue. Those things do happen, though. I definitely had a conversation with a then-Senator about Iraq in 2006 in which I got the impression that though the Senator was working earnestly to inform himself about the issue his actual knowledge base was shockingly low considering how long the war had been going on. But with Obama? I haven’t heard about it.

Meanwhile, this story is one of several narratives that seems to me to overlook his time in the Illinois State Senate. Obama didn’t have some vast army of staffers to rely on in that role, and he wasn’t just serving time there, either. He successfully authored and passed legislation and impressed a lot of Illinois progressives. Nor is the University of Chicago Law School in the habit of handing out teaching positions to dullards. Which brings to mind the additional point that one way the allegedly vast Clinton edge in policy expertise sometimes gets argued for seems to be defining “policy” in such a way as to make things where Obama clearly has more knowledge, interest, and experience — constitutional law, criminal justice, non-proliferation policy — not count as “policy.” In the real world, appointing federal judges and prosecutors and weighing-in on federal litigation is an important presidential function.

Read the whole thing, because I think Yglesias makes a good case that part of the issue driving this perception of Obama is the media narrative of “Obama the cool kid versus Hillary the policy nerd”, which doesn’t have a lot of merit to it. I disagree with Obama on a number of policy issues, but I appreciate his intellect and more importantly, his instincts. Obviously, I am no mind reader, but everything I’ve seen and read about him seems to indicate a person who is open to working with folks who disagree with him and that he has a thoughtful, conservative temperment. I appreciate both of these things.

While James and Kim head to Aruba to try and straighten out the criminal justice system down there, I will be helping to fill in.

For those unfamiliar with me, I am an Associate Professor of Political Science at Troy University (where James and I were colleagues for several years) and have been blogging at PoliBlog for about two weeks less than James has been here at OTB (indeed, he inspired my entry into blogging, so you can blame him, if you like).

Jose Padilla has finally been found guilty of major terrorism charges.

Jose Padilla was convicted of federal terrorism support charges Thursday after being held for 3 1/2 years as an enemy combatant in a case that came to symbolize the Bush administration’s zeal to stop homegrown terror. Padilla, a U.S. citizen from Chicago, was once accused of being part of an al-Qaida plot to detonate a radioactive “dirty bomb” in the U.S., but those allegations were not part of his trial.

Padilla, 36, and his foreign-born co-defendants, Adham Amin Hassoun and Kifah Wael Jayyousi, were convicted of conspiracy to murder, kidnap and maim people overseas, which carries a penalty of life in prison. All three were also convicted of two terrorism material support counts, which carry potential 15-year sentences each.

Jurors deliberated a day and a half after a three-month trial. U.S. District Judge Marcia Cooke set a Dec. 5 sentencing date.

The three were accused of being part of a North American support cell that provided supplies, money and recruits to groups of Islamic extremists. The defense contended they were trying to help persecuted Muslims in war zones with relief and humanitarian aid.

My guess is that the phrase “the Bush administration’s zeal to stop homegrown terror” has a much different impact on most Americans than the AP thinks.

Still, the bizarre idea that the executive can simply declare a citizen an enemy to the country and lock him away without trial is as alien to the founding principles of the country as any I can imagine. Certainly, it’s much closer to “tyranny” than most of the charges leveled against George III by Thomas Jefferson and the boys in 1776.

Ultimately, this was the right verdict. The process that got us to this point, however, was not a proud one.

UPDATE: Others:

• Orin Kerr: “[T]his case adds one data point in favor of using the criminal justice system to prosecute terrorist suspects. . . . Most importantly, it doesn’t change how Padilla has been treated all this time; it doesn’t erase the last six years.”

• Glenn Greenwald: “Today’s verdict offers yet more evidence of just how unnecessary — on top of illegal, unconstitutional and destructive — the administration’s behavior here was.”

• Andrew Sullivan: “The verdict is not on the original charge of plotting a dirty bomb, and it was this charge that had Padilla arrested and detained without charges and allegedly tortured for three years in solitary. The question of Padilla’s innocence or guilt on a much lesser charge is therefore less salient than the way in which he was treated by the government. That remains a travesty; and the government should be relieved its clumsy handling of the case did not lead to his acquittal. “

Duke University has agreed to a settlement with the lacrosse players who were falsely accused of rape and then hung out to dry by university administrators and faculty.

Duke University has reached a settlement with each of the three former lacrosse players and their families. The university made the announcement this afternoon.

According to a press release issued by Duke, the terms of the settlement will not be disclosed. In a statement, Duke officials said the board of trustees and Duke President Richard Brodhead had determined that it was in the best interests of the Duke community to eliminate the possibility of future litigation and move forward. “This past year has been hard for many people who care about Duke — for students, faculty, staff, alumni, families and friends — and for the three students and their families most of all,” the Duke statement said. “We resolve to bring the Duke family together again, and to work to protect others from similar injustices in the criminal justice system in the future. ”

The players, Dave Evans, Collin Finnerty and Reade Seligmann, also provided a statement. “Years ago, each of us made a decision to attend Duke because it is one of the greatest universities in the nation,” the players stated. “We were drawn to Duke because of its sense of community. The events of the last year tore the Duke community apart, and forcibly separated us from the university we love.

“It is impossible to fully describe what we, our families and team endured. As we said from day one, we are innocent. But it took three-hundred and ninety-four days, and the intervention of the North Carolina Attorney General, before our innocence was formally declared. …We hope that today’s resolution will begin to bring the Duke family back together again, and we look forward to working with the University to develop and implement initiatives that will prevent similar injustices and ensure that the lessons of the last year are never forgotten.”

Whatever they paid, it wasn’t enough.

Charles Krauthammer argues that Attorney General Alberto Gonzales should resign or be fired sooner rather than later for his handling of the U.S. Attorney firing mess.

It’s not a question of probity, but of competence. Gonzales has allowed a scandal to be created where there was none. That is quite an achievement. He had a two-foot putt and he muffed it.

How could he allow his aides to go to Capitol Hill unprepared and misinformed and therefore give inaccurate and misleading testimony? How could Gonzales permit his deputy to say that the prosecutors were fired for performance reasons when all he had to say was that U.S. attorneys serve at the pleasure of the president and the president wanted them replaced?

And why did Gonzales have to claim that the firings were done with no coordination with the White House? That’s absurd. Why shouldn’t there be White House involvement?

That’s exactly right. My only dissent would be to note, as I have before, that “the White House” is a nebulous term meaning different things to different people. Gonzales may have meant “the president” rather than “the president’s staff.”

Krauthammer is right, too, about the rules of the game:

But the fact is that there are thousands of laws on the books and only finite resources for any prosecutor to deploy, which means that one must have priorities about which laws to emphasize and which crimes to preferentially pursue. Those decisions are essentially political. And they are decided by elections in which both parties spell out very clearly their law enforcement priorities. Are you going to allocate prosecutorial resources more to drug dealing or tax cheating? To street crime or corporate malfeasance? To illegal immigration or illegal pollution? If you’re a Democrat today, you call the choice “political” to confer a sense of illegitimacy. If you’re a neutral observer, you call the choice a set of law enforcement priorities reflecting the policy preferences of the winner of the last presidential election.

For example, both voter intimidation and voter fraud are illegal. The Democrats have a particular interest in the former because they see it diminishing their turnout, while Republicans are particularly interested in the latter because they see it as inflating the Democratic tally. The Bush administration apparently was dismayed that some of these fired attorneys were not vigorous enough in pursuing voter fraud.

There is absolutely nothing wrong with this. Pursuing voter fraud is not, as The New York Times pretends, a euphemism for suppressing the vote of minorities and poor people. It is a mechanism for suppressing the vote of (among other phantoms) dead people. Conservatives have a healthy respect for the opinion of dead people — conservatives revere tradition, which Chesterton once defined as “the democracy of the dead” — but they draw the line at posthumous voting.

If the White House decides that a U.S. attorney is showing insufficient zeal in pursuing voter fraud — or the death penalty or illegal immigration or drug dealing — it has the perfect right to fire him. There is only one impermissible reason for presidential intervention: to sabotage an active investigation. That is obstruction of justice. Until the Democrats come up with any real evidence of that — and they have not — this affair remains a pseudo-scandal. Which would never have developed had Gonzales made the easy and obvious case from day one.

That’s exactly right although there’s enough circumstantial evidence in the direction of interference to raise eyebrows.

I’ve written a piece for publication elsewhere on the need to depoliticize crime and decriminalize politics. Unfortunately, the two are not only related but self-reinforcing. While I take Krauthammer’s point that it makes sense for elected leaders to set priorities for prosecutors, drawing the line between that and political interference in the criminal justice system is problematic. Indeed, I’m not sure that we haven’t moved past the point where it’s possible.

Lee Hamilton and Ed Meese have told the Senate Judiciary Committee that the training of Iraq’s police and judges has been mishandled.

The U.S. erred by first assigning the task of shaping the judicial system in a largely lawless country to the State Department and private contractors who “did not have the expertise or the manpower to get the job done,” Hamilton and Meese said in testimony obtained by The Associated Press. In 2004, the mission was assigned to the Defense Department, which devoted more money to the task. But department officials also were insufficiently trained for the job, Hamilton and Meese said.

As a result, Iraq has little if any on-the-street law enforcement personnel or a functioning judicial system free of corruption, they said. Justice Department officials, they said, should lead the work of transforming the system. Police executives and supervisors should replace the military police personnel now assigned. And the FBI should expand its investigative and forensic training in Iraq, Hamilton and Meese told the panel.

The recommendations about the Iraqi judicial system were included in the Iraq Study Group’s report last year, but got little attention. Hamilton and Meese said Wednesday that unless the U.S. helps create a capable, trained professional police force and functioning criminal justice system, “ordinary Iraqis will not live in peace and will not have confidence in their new government.”

It’s unclear to me why military police, who are at least as well trained as their civilian counterparts, would not be up to the task of teaching police tactics. Further, as a logistical matter, there are almost certainly not enough FBI trainers available to go around and it’s unlikely enough civilian police would have any desire to deploy to Baghdad for this mission to matter.

I would argue, too, that the situation faced by Iraqi security forces far more closely resembles a military policing task than ordinary peacetime law enforcement. Indeed, I can’t imagine LAPD or NYPD would be all that effective in Baghdad under present circumstances.