Humble Response to the McCain-Graham WSJ Op-Ed on Gitmo - This is Not a Rant

What follows is the beginning of an extended response to an Op-Ed on page A15 of Wednesday, May 6th's Wall Street Journal, authored by Senators John McCain and Lindsey Graham. Online edition available here. And here it is for your reading pleasure . . . or not.

Senators John McCain and Lindsey Graham wrote an Op-Ed published in the May 6, 2009 Wall Street Journal titled, “How to Handle the Guantanamo Detainees.” While I fully realize that Senators Graham and McCain may never read a response from a young, former Navy judge advocate who writes part-time for a military justice blog, I pen this response because of my utmost respect for Senator McCain and his views on the prisoner of war debate. As an initial matter, I would say that I agree with the Senators’ desire to “move on” from the now decried opinions of various administration lawyers. Those legal opinions should not now become the focus of prosecutions, they should become a part of history.

Once we move on, there still remain issues in the debate started by President Obama’s announcement to close the detention facility at Guantanamo Bay, and I want to make three points in response to the Senators. First, the Senators create a straw man of “preventive detention” that ignores a core issue in the law of war—detention of enemy combatants is only for the duration of the conflict. Second, any war crimes tribunal must be used to punish exactly that, only war crimes. Unfortunately, that is not how they are currently being used. Finally, we must be careful to continue to distinguish between those detainees held at places like Bagram after seizure on the battlefield in Afghanistan and those taken to Bagram from non-battlefields, such as Iraq.

[To see the rest of my "response," click here]

Still ranting: Revisiting the proposal to eliminate or consolidate the CCAs

I don't have much time tonight, but I wanted to add a short addendum to last night's rant calling for the elimination or consolidation of the CCAs.

Several people in the comment section wrote about whether CAAF could take up the slack if the four CCAs were eliminated. The answer is: Yes, easily.

During FY 2008, the four CCAs decided 2,515 cases. In FY 2007, they decided 3,423 cases.

Back in FY 1987, when CMA was still a three-member court, it had 3,336 docket terminations. See 26 M.J. CXVI. And in FY 1984, it terminated 4,036 cases. See 20 M.J. CXXXI. So it's apparent that CAAF could handle the current combined workload because in the past it has handled that case load.

Let's also do a bit of comparison shopping. In 2002 -- the most recent year for which I could quickly find statistics (have I mentioned I'm under the gun tonight?) -- the Fourth Circuit decided 5,356 cases. For most of that year, it had eleven judges. So CAAF has 45 percent of the judicial staffing that the 4th Circuit had. Guess what 45% of the Fourth Circuit's 2002 docket would be -- 2,435 cases, which is close to the cumulative number of cases decided by the four CCAs last year. So a five-member court could handle that level of cases, assuming it sat in three judge panels.

But in reality, the workload would be far less for CAAF than it was for the 4th Circuit. Here's something that every 4th Circuit case decided in 2002 had in common -- they all raised issues. There's no such thing as a merits submission to the 4th Circuit. Compare that to the military. Last year, 43.8% of all the cases decided by the Air Force Court were submitted on the merits. I'll bet the percentage is even higher for the Navy-Marine Corps Court. Even using that number across the four CCAs, CAAF would actually be called upon to decide only 1102 cases raising issues. It could summarily deny the rest without even cracking the ROT's cover.

But wait, there's more. No doubt some not insubstantial subset of the 56.2% of the CCA appeals with issues raised only a sentence inappropriateness claim. But CAAF doesn't have sentence appropriateness powers. If the CCAs were eliminated, sentence appropriateness would no longer be a judicial decision, but would instead be confined to CAs, discharge review and clemency and parole boards, and the President's exercise of his pardon power. So whatever percent of cases that now raise only a sentence appropriateness issue would now be no issue cases, further reducing CAAF's workload. And, of course, CAAF would no longer have to review petitions first and then rereview those cases in which it grants the petition. Rather, there would be one streamlined process that would no doubt result in summary affirmance for the great majority of cases and more searching analysis of more difficult cases, just as is now the case with the Article III courts of appeals. (Of course the factual sufficiency function would also disappear with the CCAs, but it's very rare to see a factual insufficiency claim raised that isn't accompanied by a legal sufficiency claim, so that's unlikely to change the percentage of briefed cases.)

While the legislative history of the bill that expanded CAAF's size to five judges indicated that Congress contemplated the court would sit en banc in every case, CAAF doesn't appear to actually be compelled to do so. In other words, even without a statutory change, CAAF could start sitting in panels while allowing for en banc review when appropriate -- such as to resolve splits between or among panels. If the CCAs were eliminated, CAAF should move to such a system.

So CAAF could manage its own workload simply by no longer reviewing no issue cases on its own and by moving to sit in panels.

CAAF is a highly professional court with superb resources, including an outstanding library staff, a court executive, an efficient clerk's office, a central legal staff, and a couple of in-chambers clerks and a couple of in-chambers secretaries for each judge. The court has the spare capacity to take on all of the CCAs' cases with no increase in funding.

What if, several years down the line, military justice caseloads drastically increase? That seems unlikely to happen. But if it were to happen, then we could throw money at the problem then. But the possibility of having to increase CAAF's size later (which, again, strikes me as a low-probability contingency) shouldn't lead us to waste millions of dollars annually now to preserve excess capacity. The federal government simply doesn't have the resources to do that anymore.

Finally, the issue of waivers of appellate review as a PTA term came up in the comments. As I demonstrate above, we could eliminate the CCAs and have CAAF provide appellate review for every case now reviewed by the CCAs without increasing CAAF's staffing. So it isn't necessary to allow for waiver of appellate review as a PTA term to accommodate the CCAs' elimination. That said, I favor allowing waiver of appellate review as a PTA term regardless of whether the CCAs are eliminated. And I favor eliminating the CCAs regardless of whether waiver of appellate review is allowed as a PTA term. Obviously my first choice would be a system in which waiver of appellate review is allowed as a PTA term and in which the CCAs are eliminated and all court-martial convictions can be appealed to the Court of Appeals for the Armed Forces.

Rant: How can we justify retaining five military appellate courts in these budgetary times?

Secretary of the Air Force Michael Donley and Air Force Chief of Staff General Norton Schwartz published a remarkable op-ed in today's Washington Post. They extol the virtues of the F-22, which "is, unquestionably, the most capable fighter in our military inventory." They suggest that having more is better, but forthrightly indicate that we can't afford to buy as many as we probably want to have. (For more on the value of the F-22 and why we can't afford it, see this article by Mark Bowden from the March 2009 Atlantic.)

In these budgetary times -- when we are painfully sacrificing our military's teeth -- how can we justify the expense of maintaining five appellate courts that cling to the tip of the military's tail? Consider that at the moment, three of the five military appellate courts (ACCA, AFCCA, and CGCCA) are preparing to move . How many millions of dollars will be devoted to building new facilities for those three courts? How many millions of dollars are spent each year on the four CCAs' operating budgets? Could we find better uses for those millions of defense and homeland security dollars? Of course we can.

This is no time to maintain military entities simply because the wire diagram has included them for decades. I firmly believe that the Court of Appeals for the Armed Forces is capable of providing a one-level review of all military convictions -- just as the United States Court of Appeals for the Fourth Circuit is capable of providing a one-level review for every federal conviction in Maryland, Virginia, West Virginia, North Carolina, and South Carolina, as well as hearing appeals from federal civil cases in those states. Why should a servicemember get two levels of sub-SCOTUS appeals when a civilian gets only one? Is maintaining that two-layer review worth the millions of dollars in operating expenses and the many millions more in capital outlays that DOD and Homeland Security will have to pay in the next few years to move three of the CCAs? Also, a one-stop-shopping system -- in which CAAF would no longer itself hear cases in two stages -- would be far faster than the current system, thus saving still more money by reducing the time period servicemembers spend on appellate leave, with the resulting costs to the government (particularly for health care).

Finally, let's say I'm wrong. Let's say we really do need a two-layer appellate system. Then can't we at least consolidate the four CCAs into one CCA, thereby saving not only about two-thirds of the combined CCAs' operating costs, but also forgoing the need to build facilities for two of the three CCAs that are currently planning moves?

All of the money we would save by eliminating or combining the CCAs probably wouldn't buy one F-22 -- even if we added together all of the savings over 10 years. But I'll bet it would be enough to save some other valuable military program that contributes to DOD's war fighting capabilities.

If we are willing to sacrifice 60 of the "most capable fighter[s] in our military inventory" because they cost too much, it's time to give serious consideration to sacrificing a layer of redundancy in the military appellate process because, in these budgetary times, we can no longer afford such an extravagance.

CAAFlog Makes Specter's SG Nominee Questions

. . . well sort of. In a slight that the list of contributors to the right won't forget, I am kidding of course, Senator, Senate Committee on the Judiciary Ranking Member Arlen Specter sent a written question to Solicitor General nominee Elena Kagan, that began:

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Last year, in Kennedy v. Louisiana, the Supreme Court held that the death penalty for the crime of child rape always violates the Eighth Amendment. Writing for a five-justice majority, Justice Kennedy based his opinion partly on the fact that 37 jurisdictions – 36 states and the federal government – did not allow for capital punishment in child rape cases. In reality, however, Congress and the President specifically authorized the use of capital punishment in cases of child rape under the Uniform Code of Military Justice (UCMJ) in the National Defense Authorization Act of 2006, as reported first by Col. Dwight H. Sullivan in his blog and later by the New York Times. . . .

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See the full set of questions and the nominee's answers here.

Revisting my "why do we produce so many law school graduates?" rant

[WARNING: This post isn't about military justice.]

I previously ranted about the fact that our nation's law schools apparently spew out close to 44,000 new graduates each year. And I noted while my state of Maryland is in the midst of a horrible budget crunch, it supports two state law schools located within 1.52 miles of each other in Baltimore. Today I learned another fact that made me cringe even more. The state of Maryland is paying $92 million in public funds to build the University of Baltimore School of Law a new 12-story building.

Even if we were to accept the questionable proposition that the cash-strapped Maryland government should engage in some sort of Keynesian stimulus during this economic downturn, Maryland could at least buy something useful with its $92 million Keynesian jolt. Instead, it will get a 12-story glass "three-dimensional jigsaw puzzle" to replace an existing building that seems perfectly adequate for its task of pumping out its share of the nation's almost 44,000 annual law school graduates.

Heck, for $92 million, the Department of Defense could build six Centers of Appellate Excellence and still have $5 million left over to defend a couple of cert grants.

WARNING: The Surgeon General has determined that this is a non-military justice rant

Guess how many students will graduate from U.S. law schools this academic year. Go ahead, guess. Do you have a number in mind?

On Friday, I was astounded to learn from the ABA that the answer to that question is "nearly 44,000." That's 44,000 NEW law school graduates. That means that in 12 years, we will have half a million new law school graduates. How could our country possibly need that many law school graduates? What do all of those people do? 44,000 law school graduates suggests that around 132,000 of our fellow citizens are spending this year enrolled in a law school. Is that a sound use of Americans' time?

My state, Maryland, is in the midst of a horrible budget crisis. Maryland has two state-supported law schools, both in Baltimore. According to Map Quest, the two schools are 1.52 miles from each other. I assume (though I confess that I don't actually know this to be true) that each receives considerable support from Maryland's taxpayers. Should Maryland consolidate the schools or simply axe one of them? Does Maryland really need two state-supported law schools within walking distance of each other? I assume that eliminating one of them would result in substantial savings and I don't think that our collective society would suffer from a slight diminution in the number of new law school graduates spewing out into it each year.

Some thoughts on the new NMCCA courtroom

Twenty-three miles north of where I sit are two sublime sports stadiums, each peculiarly well-suited to its function: Orioles Park and Camden Yards and whatever the Ravens' stadium is called this week. The older of the two, Orioles Park at Camden Yards, was built in 1992. If it didn't singlehandedly end the era of the duel-use sports stadium, it at least drove a stake through that blighted era's heart. If only it had also prevented the dual-use courtroom.

The disappointing new courtroom in the Washington Navy Yard is designed for use as both a trial-level and appellate courtroom. And it suffers due to its lack of a focused purpose. While I haven't seen an actual oral argument in the courtroom, if it is configured for appellate arguments as it was the day I saw it, then I think it will have the widest gap between the podium and the bench of any appellate courtroom I've ever seen. (See a picture of the courtroom on the second page of this link.) And that is a horrible blow to functionality. The ideal oral argument isn't an oration, but a conversation. The old tiny, intimate NMCCA courtroom on the first deck of the Washington Navy Yard's Forge Building was perfectly configured to promote conversation. But in the new courtroom, with its huge well, the advocate may feel the need to use a bullhorn to be heard at the bench. (Even the Building 200 courtroom used in the interim between Building 111 and Building 58 had a well-worn charm that is absent from its successor.)

Another blow to functionality concerns the building's exterior. Architecturally, the building is pleasantly plain. Its subtle architectural features -- including a small brick cornice and soldier course brick arches above the windows on the front elevation -- are even more understated because of the uniform white-wash exterior. And the traffic light sticking out from the building's east elevation is delightfully quirky in a naval space-saving kind of way. But it isn't at all apparent to me how a member of the public actually gets into the building. I had an appointment each of the two times I've been there, and I was barely able to get in. According to the JAGMAG article about the courtroom, "Facility requirements included both public and restricted entry." It seems to have failed to meet the former criterion.

Apart from these functionality problems, the courtroom is architecturally incoherent in the most literal sense of the word. At the University of Virginia there is a story -- probably apocryphal -- that attempts to explain why the University's chapel is a revival Gothic stone structure while all the buildings around it are neo-classical brick edifices. There was a mix-up in building materials intended for the UVA chapel, so the story goes, and Sage Chapel at Cornell University -- which is made of brick while all the buildings around it are stone structures. Well perhaps someone mixed up the plans for the NMCCA courtroom's ceiling with those intended for another courtroom and some jurisdiction has a brand-new modern industrial courtroom with a classical ceiling. Because the interplay between the new NMCCA's courtroom and its overhead is so discordant that the most charitable possible explanation is a mix-up in the building plans. You can see some of this effect in the picture available through the link above, though you've got to sit in the courtroom to appreciate the full effect. From the floor to about nine feet up the walls, the courtroom is traditional but boring. Unfortunately, nothing in the courtroom is evocative of a naval experience -- this could be a county courtroom in just about any state in the Union. What a missed opportunity. Worse still, the marble in the courtroom -- no doubt intended to give the room a classy feeling -- looks like something out of a mid-range tract McMansion. It suggests not class, but an attempt at classiness. But from nine feet or so up, the room is exposed industrial -- with ceiling supports and HVAC equipment visible from the traditional courtroom below.

I suspect that functionality concerns -- so overlooked in the building's exterior -- suddenly took over in the courtroom itself and explain the architect's bizarre choices. The traditional courtroom is good for acoustics while the exposed industrial look was probably designed to allow light into the room from the skylights in the ceiling above. But these were hardly the only available choices. The very pleasant and functional AFCCA courtroom has a stark white drop ceiling made of metal panels formed with faux plaster design elements. And even with the louvered window shades partially closed during oral arguments, the AFCCA courtroom is brighter than the NMCCA courtroom with its large skylights. So a traditional courtroom with a cost-effective traditional ceiling was an option. Alternatively, the ACCA courtroom has a modern feel, with its wood-and-glass bench. (See an artist's rendition here.) If a major goal of the new NMCCA courtroom's design was to bring in natural light from above, then a courtroom designed like ACCA's could have fit well with the exposed ceiling supports and HVAC ducts. But unfortunately, no concern for symmetry was displayed.

The failure of NMCCA's courtroom is even more disappointing in light of the stunning architectural successes sprinkled throughout the Washington Navy Yard -- the Navy's oldest base and former Naval Gun Factory that now provides office space for thousands of naval servicemembers and bureaucrats. Consider, for example, the Washington Navy Yard's "town center" in Building 21. The building was once used to make huge guns for Navy warships -- and an enormous hook on a track that once slid molten metal across the production floor now looms over the dining area, giving the whole place a dynamic feel. Maybe one of the problems with the Building 58 renovation is that the structure was originally a barracks, later a storehouse, and finally a museum before its conversion to the "Appellate Center of Excellence." (Unfortunately, no, I'm not making up that name -- and certainly no one will be tempted to call it an architectural center of excellence.) So perhaps a cause of the courtroom's -- and entire building's -- lack of drama is the lack of drama in the building's history. But more could have been done to give the courtroom a sense of purpose and place.

With the money spent, it's probably too late to attempt to harmonize the courtroom's discordant elements -- or even to reduce their clash. But some things can be done to improve functionality. Signs could be placed on the building's exteriors to give visitors a clue how to gain entry. And while I'm not sure whether electronics require the podium to remain anchored where it is in the picture, if not, it should be pushed far closer to the bench. And surely some nautical elements can be added to give the courtroom a naval feel.

But even with such improvements, the Navy Yard's new dual-use courtroom will still disappoint. While I haven't been to the current CGCCA courtroom (though I once attended a CGCMR argument at Buzzards Point), NMCCA's courtroom as currently configured is the least successful of the military appellate courtrooms I have visited.

My apologies to the good -- and apparently sober -- people of Wisconsin

Last night I failed to heed that sage advise of President Reagan's: "trust but verify." I trusted ACCA, but I failed to verify what it wrote.

Let's recap. In its opinion in United States v. Hearn, __ M.J. ___, No. ARMY 20060128 (A. Ct. Crim. App. July 17, 2008), ACCA borrowed a voluntary intoxication test from State v. Kruger, offering this citation: "67 P.3d 1147, 1149 (Wis. Ct. App. 2003)." Hearn, slip op. at 13. Last night, I used that citation as an opportunity to poke fun at my friends from the Badger State: "In Hearn, ACCA follows the lead of the Wisconsin Court of Appeals. Based on many of the Badger Staters I know, it seems sensible to use Wisconsin law as a model when considering voluntary intoxication." It didn't occur to me until today to wonder what the heck decisions from Wisconsin are doing in West's Pacific Reporter 3d Series. It turns out they aren't; Wisconsin Court of Appeals decisions are published in the West's North Western Reporter. Hearn was actually a decision of the Court of Appeals of Washington, Division Three, not the Wisconsin Court of Appeals as ACCA erroneously wrote and as I erroneously copied.

But that said, for a company with a compass direction in its title, West Publishing does seem to have an amazingly poor sense of geography. I tend to think of Washington and Oregon as Northwestern states. But I am wrong; according to West Publishing, the "North Western" part of the country consists of the Dakotas, Nebraska, Minnesota, Michigan, and Iowa. Of course, there actually was a time when that general part of the country was thought of as the Northwest. West Publishing's North Western Reporter may be a quaint homage to the Northwest Ordinance of 1787. But wait a second -- didn't the old Northwest Territory include what are now Ohio, Indiana, and Illinois, the home of Northwestern University? So what are those three states' opinions doing in West's North Eastern Reporter? Can someone please alert West Publishing to the concept of the "Midwest"?

But at least some of the states covered by the North Western Reporter were once considered the Northwest. I'm pretty sure there was no point in American history when Kansas was considered a Pacific state. The only waves in Kansas are made of amber grain. Yet West's Pacific Reporter publishes decisions from Kansas courts. The capital of Kansas, as I learned in elementary school while studying the big rectangular states in the middle, is Topeka. Topeka is 300 miles closer to the Atlantic Ocean than it is to the Pacific Ocean. Topeka is also closer to the Gulf of Mexico, all five Great Lakes, Canada's Hudson Bay, and Lake Okeechobee than it is to the Pacific Ocean. Kansas is one of two states (the other is Oklahoma) that are entirely on the Atlantic watershed side of the Continental Divide but that West Publishing puts in its Pacific Reporter, which also includes cases from such "Pacific states" as Colorado, Wyoming, and Montana. I can only assume that no one at West Publishing has heard of the Rocky Mountains.

And apparently the next time I have a craving for Southwestern cuisine, I can head to KFC since West publishes decisions from the Blue Grass State in its South Western Reporter. When I think of the Southwest, I tend to think of New Mexico and Arizona. But according to West, those are "Pacific" states. S.W.3d is filled with decisions from such Southwestern states as Arkansas, Missouri, and Tennessee.

So maybe it's understandable that ACCA thought West would publish Wisconsin decisions in its Pacific Reporter. But ACCA borrowed its voluntary intoxication test from Washington, not Wisconsin. So I'm putting down my Leinenkugel and lifting a Redhook to toast the Washington Court of Appeals.

The ABA Museum of Law: We tour it so you don't have to

The word “museum” literally means “place of the Muses.” The Muses, of course, were the nine daughters of Zeus and Mnemosyne, whose role was to inspire the arts. The use of that word in the ABA Museum of Law's title seems misplaced, because there is nothing inspirational about it.

One thing the museum certainly hasn’t inspired is visitors. I was there on 29 November. The previous visitor signed the guestbook on 14 November. For comparison purposes, the great travel correspondent Cash Peters (the self-proclaimed “Best Goofy Tour and Kooky Museum Guy in the Business”) tells us that Worcester, Massachusetts’ American Museum of Sanitary Plumbing draws “[a]t least three people a day." Cash Peters, Gullible’s Travels 83 (2003). You would think that the ABA Museum of Law, right there on the heavily-trafficked north bank of the Chicago River, could do better than one visitor a fortnight. Part of the problem might be that the museum seems to be determined to remain as inconspicuous as possible. A pedestrian standing outside the massive office building that houses it would have no idea there's a museum inside. Nor is the museum mentioned in the Chicago listings in the AAA tourbook. (Hey, ABA is only ONE LETTER away from AAA – you would have thought the AAA folks would extend a little professional courtesy to the ABA.) Even a Google search for Chicago museums failed to reveal the ABA Museum of Law’s existence. So only someone who already knows that there is such a museum and where it is will ever visit.

Well, maybe. First you have to make it through security. When I presented myself to the building’s front desk and asked if I was in the right place for the ABA Museum of Law, the blue blazered security person asked me for a form of identification and called me in – to whom I have no idea. Several minutes passed before, apparently, I passed the i.d. check. She then referred me to another blue blazered apparatchik at another desk about 10 yards from the front desk. Does the ABA Museum of Law have some sort of blacklist of potential visitors not to be let beyond security? Does security turn away the roughly 29 visitors per fortnight it would take to raise the ABA Museum of Law up to the American Museum of Sanitary Plumbing’s levels? I have no idea.

The second blue blazered functionary pleasantly directly me around the corner and down an escalator. There, at the top of the escalator, was a sign that was the first indication of the museum’s actual existence. Down at the bottom of the escalator was the “museum” itself. The museum has only one exhibit at a time, and the current one runs into 2008. It is called America’s Lawyer-Presidents: From Law Office to Oval Office. According to the exhibit, 25 of the nation’s 42 presidents have been lawyers. The exhibit seeks to explore how their legal careers affected their presidencies. Or something like that – the exhibit is thematically weak, presenting its information almost exclusively through a series of two conjoined 4’x7’ panels containing blocks of text, pictures, and – in only a handful of instances – artifacts of or about a particular “lawyer-president.” Standing where the two panels join gives the viewer the impression of looking at the crease of a giant but largely uninformative book with its two open pages stretching out to each side. Only Lincoln rates more that two panels. Not even William Howard Taft – who was not only President but had previously served as Solicitor General and would later become Chief Justice of the United States – rates more. The Taft exhibit is distressingly emblematic of the entire museum. Not only is his extensive and significant legal career given remarkably short shrift, but his exhibit features not a single artifact. This is especially inexplicable because after he was President of the United States, Taft served a term as President of the ABA. How could the ABA possibly NOT have some document bearing Taft’s original signature, some chair that once supported Taft’s ample tush, or some other physical thing that Taft once used, touched, or tried to eat? If it does, you wouldn’t know if from a trip to the ABA Museum of Law.

In addition to the panels, the museum also had a couple of electronic exhibits – or, at least, it was supposed to. An electronic exhibit in the Lincoln area wasn’t working the day I visited. There was an interactive exhibit in the “New Century Presidents” area presenting short historical vignettes – such as FDR’s court packing plan or Woodrow Wilson’s free speech restrictions during World War I – and asking if the visitor would have handled it as the president did. While I was glad to be part of a majority opposing Wilson’s free speech restrictions, it was a bit disconcerting to see that the vote was 51% against while 49% voted for.

The museum also flunks a basic candor test. How can an exhibit about lawyer-presidents, which features the obligatory double panel about William Jefferson Clinton, fail to mention that Arkansas suspended his license to practice law for five years? See generally Clinton legal mess ends Clinton fined; law license is suspended, Arkansas Democrat-Gazette, Jan. 20, 2001, at A1. Or that he resigned from the Supreme Court’s bar after having been suspended? See In re Clinton, 534 U.S. 1016 (2001) (“Bill Clinton, of New York, New York, having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to the practice of law before this Court. The Rule to Show Cause, issued on October 1, 2001, is discharged.”); In re Discipline of Clinton, 534 U.S. 806 (2001) (“Bill Clinton, of New York, New York, is suspended from the practice of law in this Court and a rule will issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.”).

Actually, the museum flunked an even more basic test: I unsuccessfully searched the museum and all of its surrounding areas on the building’s lower level for a men’s room. There is a clearly marked women’s room, but no male equivalent. Now I’m sure THAT isn’t a problem at Worcester’s American Museum of Sanitary Plumbing. (After bearing the indignity of asking a second female staff member whether there was a men’s room, having failed to learn anything of value upon asking the first – you can just imagine the desperation that warranted that embarrassment – I was finally led to the men’s room down an unmarked secret passage. If any of the male CAAFlog readers decide to visit the museum, send me an advance e-mail and I’ll draw you a map.)

The one thing the museum does right is the cost of admission: it’s free. But a companion book to the exhibit rang in at an astonishing $43.55.

But despite the museum’s many faults, I actually learned some things about, of all things, the history of military law that I hadn’t known before. For example, I was familiar with the court-martial of General William Hull for surrendering Detroit during the War of 1812 without having fired a shot. But I was previously unaware that the special prosecutor at that court-martial was Martin Van Buren.

Van Buren wasn’t the only president who had litigated an important military justice case (or the only president of whose military justice connection I was previously ignorant). For example, I had no idea that the counsel who successfully argued Lambdin Milligan’s case at the United States Supreme Court was James A. Garfield, who was appearing in his first case as a lawyer. Nor did I know that Milligan had successfully sued for damages as a result of his trial by military commission – a case that was defended by Benjamin Harrison. Here is the Harrison exhibit’s description:

After Lambdin P. Milligan prevailed in the landmark Supreme Court case that bears his name – Ex parte Milligan – he sued the military commission that tried and sentenced him, seeking $100,000 in damages. Milligan stood on firm legal ground, armed with the high court’s ruling that the military commission had no jurisdiction in the earlier case. President Ulysses S. Grant, a named defendant, called upon Benjamin Harrison to lead the defense. In the trial, Harrison’s stirring oratory regarding the valor of Union soldiers and Milligan’s traitorous activities bore fruit. Though Milligan won the case, he was awarded a meager $5.00 in damages.

Grover Cleveland, the president who both preceded and followed Harrison in office, also had a military justice connection. The Cleveland exhibit provides this description of the Battle of Limestone Ridge:

In 1866, about 1500 Irish nationalists conducted an ill-fated invasion of Canada. Brought back to Buffalo and tried for organizing the expedition, Cleveland successfully defended them against the charges. Though they raised money to pay for their defense, Cleveland refused to accept a fee for his services.

I also picked up a few interesting non-military justice tidbits along the way. For example, I hadn’t realized that Richard Nixon was the losing counsel in Time v. Hill, 385 U.S. 374 (1967). When Andrew Jackson served as a Tennessee superior court judge, one of his colleagues provided this description of Judge Jackson’s decisions: “[S]hort, untechnical, unlearned, sometimes ungrammatical, and generally right.” And, in an early articulation of the legal realism philosophy, an 1810 letter from Thomas Jefferson to James Madison complained that Chief Justice Marshall’s “twistifications in the case of Marbury (and other cases) show how dexterously he can reconcile law to his personal biases.” I was also surprised to learn that only one President – Rutherford B. Hayes – has been a graduate of Harvard Law School. (If only Woodrow Wilson had graduated from UVA Law, which he attended from 1879-80, my alma mater would have been tied with Harvard Law.)

But a few interesting facts doesn’t rise to the level of inspiration. An hour spent reading virtually any legal book would probably be time better spent than an hour touring the ABA Museum of Law. Heck, an hour at the Chicago Hyatt Regency's Big Bar would probably be time better spent -- and it would probably cost less than the exhibit's companion book.

Perhaps the museum is especially disappointing because the ABA should have the resources and expertise to do far better. I regret that I didn't get to visit the previous exhibit, Famous Trials in American History: Cases that Shaped and Shocked the Nation. And if I'm back in Chicago in 2008, I'll probably at least check to see what the next exhibit is. I might even stop by -- if I can get past all those blue blazered security people for a second time.

Details:

Address: 321 N. Clark Street, Chicago, IL
Web site: www.lawmuseum.org
Hours: M-F 10-4
Admission: Free

Estimated time to see everthing in the exhibt: 1 hour (add 10 minutes if you might need to search for the men’s room)

--Dwight Sullivan