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Thursday, 29 April 2004




April 29, 2004 -- WASHINGTON - The vast majority of the United Nations' oil-for-food contracts in Iraq have mysteriously vanished, crippling investigators trying to uncover fraud in the program, a government report charged yesterday.
The General Accounting Office report, presented at a congressional hearing into the scandal-plagued program, determined that 80 percent of U.N. records had not been turned over.
The world body claims it transferred all information it had - including 3,059 contracts worth about $6.2 billion for delivery of food and other civilian goods to the post-Saddam governing body, the Coalition Provisional Authority.
But the GAO report also found that a database the U.N. transferred to the authority was "unreliable because it contained mathematical and currency errors in calculation of contract costs," the report found.
The GAO findings, which were aired at a hearing of the House International Relations Committee, raise new questions about corruption and mismanagement in the biggest-ever U.N. aid program - and what has been called the biggest financial scandal in history. An earlier GAO report said Saddam ripped off over $10 billion.
Committee Chairman Henry Hyde said the report raised serious concerns - and could have "a potential impact on the reputation and credibility of the United Nations."
"If these charges prove true, some of the obvious victims are those Iraqis who failed to receive needed assistance," Hyde (R-Ill.) said.
"But the damage extends further. The massive windfall resulting from this organized theft allowed Saddam to maintain his grip on the country, line his pockets and make companies and countries dance to his tune, with consequences we are still trying to contain."
Investigators are interested in Benon Sevan, the U.N. official who managed the program. Sevan denied wrongdoing after his name appeared on an Iraqi newspaper's list of several officials, businessmen and others who profited from the program.
The oil-for-food program, which the U.N. ran from 1997 until the war, allowed Iraq to sell oil in order to buy food and other civilian goods - thereby easing the sanctions imposed after the 1991 Gulf War.
A former oil-for-food program coordinator testified at yesterday's hearing that in the early stages his U.N. superiors were openly hostile to U.S. efforts to contain Saddam.
"For reasons I have yet to fully understand, several U.N. leaders approached the implementation of the oil-for-food program with more distrust towards the United Kingdom and United States than towards the regime of Saddam Hussein," Michael Soussan said.
U.N. Secretary-General Kofi Annan fired back.
"If you read the reports, it looks as if the Saddam regime had nothing to do with it. They did nothing wrong - it was all the U.N.," Annan said.

NEW YORK POST is a registered trademark of NYP Holdings, Inc.

Annan says some Oil-for-Food charges 'outrageous,' probe will clarify issues

28 April 2004 - While reiterating his determination to "get to the bottom" of allegations surrounding the United Nations Oil-for-Food programme in Iraq, Secretary-General Kofi Annan today stressed that some of the issues have been blown out of proportion and the UN has been unfairly blamed for things that had been beyond its control.

"[S]ome of the comments that I have read have been constructive and thoughtful. Others have been rather outrageous and exaggerated," the Secretary-General said, responding to questions from reporters during a news conference at UN Headquarters in New York. "If you read the reports, it looks as if the Saddam regime had nothing to do with it - they did nothing wrong; it was all the UN."

Referring to the frequently cited issue of oil smuggling, for instance, Mr. Annan emphasized that the UN actually had no mandate to do it. "There was a maritime task force that was supposed to do that," he said. "They were driving the trucks through northern Iraq to Turkey. The US and the British had planes in the air. We were not there. Why is all this being dumped on the UN?"

On the general process for the approval of contracts, he noted that the Security Council's "661 Committee" was responsible for approving contracts or putting them on hold. "Of course the Member States are not coming out saying, 'We had a role,' or, 'We had an oversight responsibility,' so all is dumped on the Secretariat."

Mr. Annan, who last week named former United States Federal Reserve Board Chairman Paul Volcker to lead an independent probe of the alleged improprieties, voiced hope that the inquiry "will clarify the issues."

In response to other questions, the Secretary-General defended his son's involvement with a company that did business with the Oil-for-Food programme and said the allegations against him were groundless.

"Let me say that there is nothing in the accusations about my son. He joined the company even before I became Secretary-General, as a 22-year-old, as a trainee in Geneva, and then he was assigned to work for them in West Africa, mainly in Nigeria and Ghana. Neither he nor I had anything to do with contracts for Cotecna. That was done in strict accordance with UN rules and financial regulations," he said.

"Be as it may, these allegations are doing damage, and we need to face it sternly and do whatever we can to correct it," he added, expressing hope that "once the panel's report is out some of the issues of corruption will also be dealt with, because we want to get to the bottom of that too."

The Secretary-General also noted that the panel had the full backing of the Security Council, which adopted a resolution including language calling on countries' regulatory agencies to cooperate fully with its work. "The Council members have indicated they would [cooperate fully], and they are urging other Member States to do the same," he said.

"If at the end any UN staff members are found guilty of wrongdoing, we will deal with them," he emphasized. "In some situations we may even want to lift the immunity of the staff so that we do not impede the judicial process."

Independent inquiry will yield facts on Iraq Oil-for-Food Programme - Annan

22 April 2004 - Secretary-General Kofi Annan today voiced confidence that an independent panel into allegations of corruption in the United Nations Oil-for-Food Programme will yield results, and voiced hope that its work would proceed apace.
"I'm very keen on Mr. [Paul] Volcker, Judge [Richard] Goldstone and Mr. [Mark] Pieth to really get to work and give us a report as soon as possible," the Secretary-General told the press this morning, referring to the members pursuing the inquiry.
Responding to a question about the former head of the Programme, Benon Sevan, who has been the subject of numerous allegations in the press, Mr. Annan said, "He should and will be available for the investigation, and we are discussing how to make sure that he will be available."
"He has indicated he will cooperate as I expect all other staff members to cooperate," the Secretary-General emphasized.
Mr. Annan also underscored the value of the relief effort for Iraq. "It is unfortunate that there have been so many allegations, and some of it is being handled as if they were facts, and this is why we need to have this investigation done," he said.
"In all this what has been lost is the fact that the Oil-for-Food Programme did provide relief to the Iraqi population; every household was touched," he said. "With the government, we set up one of the best distribution systems, to such an extent that even some suggested we should use the distribution cards for elections, to show you how pervasive [it was], so that should not be overlooked."
Begun in 1997, the Oil-for-Food Programme, over the course of six years, oversaw the delivery of some $39 billion worth of humanitarian assistance. Virtually all Iraqis benefited from the country-wide food network, and 60 per cent were totally dependent upon the food assistance. The nutritional value of their daily food basket nearly doubled between 1996 and 2002, to about 2,200 kilocalories per person per day. During the same period, malnutrition rates of children under five fell by half in the centre/south; and in the northern governorates, chronic malnutrition fell by 56 per cent, with a 44 per cent reduction in the incidence of underweight children.
"The fact that there may have been wrongdoing by a few should not destroy the work that many hard working UN staff did," Mr. Annan said.
He also pointed out the importance of distinguishing who was responsible for illegal activities. "If the Iraqi government has smuggled oil and done all sorts of things, I don't think it is fair to lump it all together and blame the UN and the Secretariat, because there are things that were definitely beyond our control, not only the Secretariat, but even the Member States."
"Once the issues have been looked at and separated, I hope people will put things in perspective and will be able to get the facts out," he said.
Mr. Annan also repeated his earlier pledge to act against those found to have committed any wrongdoing. "As I said, if UN staff are found to be guilty, we will deal with them very severely."


April 29, 2004 -- WHEN a student said he had consulted the great philosophers without finding evidence of God, Benjamin Jowett, master of Oxford's Balliol College from 1870 to 1893, replied, "If you don't find a God by five o'clock this afternoon, you must leave the college." Deadlines can be useful spurs.
But they also can be foolish fixations. On June 30, the deadline for transferring "sovereignty" to something Iraqi, no such thing will happen. There will be nothing to receive real sovereignty, and the United States, whose writ does not run throughout Iraq, does not yet possess real sovereignty to give away.
The new faux government will lack two main attributes of sovereignty - a monopoly on the legitimate use of violence and the ability to make laws.
* U.S. responsibility for using violence to maintain - actually, to create - order will remain.
* And Lakhdar Brahimi, the U.N. envoy to whom President Bush has delegated the task of devising the interim government that will serve until January elections, says the interim government should not legislate.
We may call this a government, but as Lincoln said: If I call a dog's tail a leg, how many legs does the dog have? Five? No, four, because calling a tail a leg does not make it a leg.
Brahimi is a useful reminder of how limited are the U.N.'s uses. He says Israel is complicating his governmental carpentry in Iraq, and force is "never" the right answer to problems such as the seizure of Fallujah by armed insurgents. So, calm would come to Iraq if Israel returned to the 1949 armistice lines?
Brahimi is called the best the "international community" has to offer, which may be true.
U.S. forces in Iraq can never be at the disposition of such people. Which makes it especially urgent to get to elections, the only possible source of legitimacy for an Iraqi government. The one clear use for the U.N. in Iraq is to help conduct elections. This prophylactic dose of U.N. involvement should reduce the need for any more involvement of the likes of Brahimi.
Elections should assure the Shiite majority that they will rule, thereby concentrating their minds on the practicalities of governance. Elections will put the Sunnis on notice that they must come to terms with majority rule.
Might elections provoke a Shiite-Sunni civil war? Yes. The presidential election of 1860 catalyzed the American Civil War. But in Iraq, civil war might be preferable to today's combination of disintegration tempered by violent Sunni-Shiite collaboration against U.S. supervision.
There is no historical precedent for the position the United States is now in. The fate of an immensely important undertaking - the entire Iraqi project - rests on the good will, or at least the forbearance, of one reclusive, inaccessible man, the Grand Ayatollah Ali Sistani, who has never consented to meet with Paul Bremer, the president's man in Iraq. Sistani has it in his power to make the U.S. presence in Iraq untenable.
Democracy is not merely majority rule but it is essentially majority rule. Democracy should restrict the rights of a majority to work its will and should protect minority rights. Ideally, majorities should be unstable, shifting coalitions of minorities. This is why James Madison sought a geographically "extensive" and sociologically complex society that would generate a wholesome multiplicity of factions, which is the best guarantee against the tyranny to which democracies are prone, the tyranny of the majority.
But regardless of what democracy should do, broadly and over time it must mean majority rule. In Iraq, the Shiite majority needs to be assured now that it will rule soon.
Violent Sunnis must be crushed. Shiites need an incentive - protecting their capacity to rule after elections - to crush them and to discipline their own ranks. Iraq's third component, the Kurds, have representative institutions up and running, and an army to strengthen their hand in negotiating favorable parameters of federalism. They also seem amenable to a U.S. military presence in their midst.
The results of elections, including theocratic elements, may be markedly unlovely. That may break the big hearts of those in the U.S. government who hope for a luminously liberal democracy to shame the entire Middle East into emulation, thereby justifying the war originally justified primarily by the threat of Iraqi weapons of mass destruction. But pursuit of that ideal can impede achievement of something tolerable - a stable, perhaps illiberal, even authoritarian Iraq which cooperates in the war against terrorism.

Call this an exit strategy.



April 29, 2004 -- WHERE'S Rudy Giuliani when we really need him? Looking back on a year of mistakes in Iraq, it's clear he would have been a better choice to run our occupation than those we sent.
Hizzoner's great insight was a blinding flash of the obvious: Respect for the law in great things starts with respect for the law in small things. Want to reduce urban violence? Bust the juvie who jumps the subway turnstile. Before he kills somebody.
It's appalling how we've blustered on about building a civil society and a rule-of-law democracy in Iraq, while letting the streets degenerate into a wilderness. It began with the post-war orgy of looting. Our over-confident leaders looked away. Yes, some of the initial destruction after Saddam's fall was an inevitable blowing off of steam by a long-oppressed population. But gutting museums, libraries and hospitals didn't fall into the post-game-exuberance category.
We never made more than a half-hearted effort to enforce order on Iraq's streets thereafter. Often, we made no effort at all - in terror-cities such as Fallujah, Ramadi or Samarra. Even when street thugs danced atop damaged U.S. vehicles in Baghdad, we treated them as if they were respectable citizens expressing their rights of free speech.
The truth is that, after conquering a vast state and deposing a monstrous dictator, the Bush administration didn't really want to get involved.
News from the briar patch, guys: We're in it now.
If anything has encouraged insurgents, terrorists and opportunist thugs in Iraq, it's been our lack of resolve to enforce order. The effect has reached beyond the country's borders. We've never made a serious effort to view our actions (or inaction) through regional eyes - except to recite mistaken claims that we mustn't use too much force for fear of alienating those who are already our enemies.
Whether among the confused people of Iraq or in the squalor of the greater Arab world, those images, repeated almost daily, of Iraqi gangstas jumping up and down on our burned-out combat vehicles created, then reinforced, the impression that American troops not only could be defeated, but were being defeated.
The truth was irrelevant. In the age of the satellite dish, the image trumps all. The greatest recruiting tool for our enemies in Iraq and beyond its borders has been those clips of Iraqis plundering disabled Humvees with impunity.
It may be too late to recover the chips we've squandered at the strategic poker table. But we have to try our damnedest to come from behind.
In addition to the military reduction of the last breath of resistance in Fallujah and the arrest or killing of the renegade cleric Muqtada al-Sadr in Najaf, we need to change the rules on Iraq's streets.
If any adult touches a damaged or destroyed U.S. military vehicle, he must be shot. Start with a one-week warning period to get out the new rules. Then execute. The Iraqis playing trampoline on the hoods of our charred vehicles aren't the ones who will build a better future.
As for the juvies, send them to reformatory camps. No exceptions, even if daddy's the Sheik of Araby.
If we can't or won't bring order to that festering country's streets, we'll never see a lawful state emerge. I still believe that most Iraqis want democracy - in some adjusted form that gives them a voice in their country's affairs. But they want and need security even more. You can't build a legal economy or hold honest elections if you can't control the neighborhoods in broad daylight.
Law first, then democracy. Sorry, but it doesn't work the other way around.
The lack of resolution and common sense on the part of the Coalition Provisional Authority has plunged Iraq into crisis. You can't change history's direction on the cheap. From turning a corner six months ago - we were doing exactly that - our diplomats' taste for displays of weakness and empty "negotiations" dragged the country back from the brink of success.
So, as the hordes of punk terrorists are merrily ringing our doorbell, here are "three simple rules for dating Iraq":
Bring order to the streets, no matter what it takes: If you shoot plunderers and the Arab world wails, too bad. If we won't pay the price of unpopularity in the short-term, we'll fail and be despised for decades to come. Changing the direction of the Middle East is not about immediate popularity - it's about go-the-distance effectiveness.
Never interrupt an ongoing military operation for "negotiations": Finish the job, then talk. In the Middle East, strength, not chitchat, elicits respect.
Add the stick to the carrot: Stop this nonsense of trying to bribe terrorists and murderous Ba'athists to love us. Instead of pouring money into cities and town that kill American soldiers, expend development funds on the communities that behave. The present policy of rewarding those who assassinate our troops is as unacceptable as it is counterproductive.
This doesn't take a genius. Just the sort of common sense that Rudy Giuliani brought to the greatest city in the world. Baghdad doesn't need another "brilliant" diplomat. It needs a Wyatt Earp.

Ralph Peters is the author of "Beyond Baghdad: Postmodern War and Peace."

Rejecting the All-or-Nothing Approach in the Moussaoui Case and the Guantanamo Detainees Oral Argument
Wednesday, Apr. 28, 2004

In two cases last week, the federal courts appeared to reject the Bush Administration's contentions that national security requires that civil liberties be entrusted to the Executive Branch during wartime.

The first case was Rasul v. Bush and Al Odah v. United States. Last week, during oral argument in the Supreme Court, most of the Justices seemed dubious that prisoners at Guantanamo Bay Naval Base could be completely denied access to civilian courts.

The second case was that of the alleged "twentieth hijacker," Zacarias Moussaoui. A federal district judge had held that Moussaoui's Sixth Amendment right to call witnesses entitles him to introduce some exculpatory evidence obtained by the United States from suspected foreign terrorists currently in U.S. custody. Last week, a three-judge panel of the Fourth Circuit Court of Appeals largely agreed.

If there was a common theme in the Supreme Court and the Fourth Circuit, it was an emphasis on pragmatic compromise--and rightly so. The striking of a balance between security and liberty may seem like the obvious role of the courts in troubled times. Yet much of the debate over civil liberties in wartime has, to this point, been framed in all-or-nothing terms. Against that backdrop, the courts' efforts to find a middle course are welcome.

The Guantanamo Bay Case: Justices Suggest a New Interpretation of Precedent

By treaty, the United States holds a permanent lease on Guantanamo Bay, while Cuba remains nominally sovereign. The issue in Rasul and Al Odah is whether, given these facts, the naval base at Guantanamo Bay is U.S. or foreign territory.

Prior to this week's oral argument, it was generally understood that if Guantanamo were held to be foreign territory, that would be the end of the matter. That was because most observers had interpreted a 1950 Supreme Court precedent, Johnson v. Eisentrager, to mean that a nonresident alien enemy who has not been held within U.S. territory has no right of access to U.S. civilian courts.

However, during last week's oral argument, several Justices hinted at a different reading of the case: They suggested that Eisentrager permitted the enemy aliens--there, Germans captured in China at the end of World War II--to bring suit, but rejected their claims on the merits. That interpretation would suggest, then, that the Guantanamo detainees have the right to court access even if Guantanamo is held to be foreign territory.

Is the Justices' Proposed Interpretation of Eisentrager Tenable?

The Justices' reading of Eisentrager is, in my view, plausible but strained .

The best evidence for the new view comes from the conclusion of Justice Jackson's opinion for the Court in Eisentrager: "We are unable to find that the petition alleges any fact showing lack of jurisdiction in the military authorities to accuse, try and condemn these prisoners or that they acted in excess of their lawful powers." That language suggests that, if the prisoners had alleged different facts, they might have been entitled to a writ of habeas corpus from a civilian court. And to that extent, it therefore supports the Justices' reading.

But most of the rest of the opinion speaks in categorical terms, denying that the prisoners had "standing" to sue in light of their location.

Of course, Eisentrager is one case from over a half century ago; the Supreme Court may well want to diverge from, modify, or even overrule it. In the end, the Court must decide what rule makes sense going forward. And in that respect, the questions posed at oral argument are encouraging.

The Problem with the Detainees' Argument

The basic problem with the argument on behalf of the detainees in Rasul and Al Odah is that it leads to perverse consequences.

To see why, suppose the petitioners prevail, and the Court rules that Guantanamo Bay should be deemed U.S. territory, so that the writ of habeas corpus is available for civilian courts to examine the lawfulness of persons held captive there.

Even given such a ruling, or government could still easily hold enemy combatants in custody without access to judicial review. To do so, it would simply dismantle the detention center at Guantanamo Bay and move it somewhere that is undoubtedly outside U.S. territory, such as a military base in Afghanistan, Iraq or South Korea.

What would be the point of a constitutional rule that encourages military authorities to hold prisoners in such relatively unsafe locations?

How the Justices Will Probably Avoid a Set of Perverse Consequences

Recognizing the perversity of such a rule, the Justices appear ready to say that at least for prisoners held outside a theater of active hostilities, location outside of U.S. territory does not strip the courts of the power to grant writs of habeas corpus. Under such a rule, even detentions at a military base in Iraq, Afghanistan or South Korea--as well as Guantanamo--would be reviewable in U.S. courts.

At the same time, however, the Justices also appear ready to say that as a matter of substantive law, the courts would grant great deference to the determination of military authorities that custody is lawful. If so, then the result might be that, while noncitizen prisoners held by the U.S. abroad would be able to seek court review, they would be unlikely to prevail on the merits of their cases.

The Moussaoui Case: Allowing The Defendant to Use Exculpatory Statements

Moussaoui faces terrorism charges in federal court. The government hopes to persuade a jury that Moussaoui--who was apprehended and imprisoned before September 11, 2001--was a conspirator in the evil plot of that fateful day. Moussaoui acknowledges membership in al Qaeda, but denies involvement in the September 11th plot.

Moussaoui claims a right under the Sixth Amendment to call as witnesses in his defense a number of other al Qaeda members currently in U.S. custody who, he says, would confirm his account. Last week's ruling by the Fourth Circuit held, among other things, that this right can be vindicated by introducing written accounts of the exculpatory statements the witnesses would provide if actually produced. (The ruling also resolves a number of complex issues and raises troubling questions addressed by Joanne Mariner in a column earlier this week.)

The government had argued that Moussaoui had no Sixth Amendment right to call witnesses outside of U.S. territory--relying, as in the Guantanamo case, on Eisentrager. But the Fourth Circuit rejected this categorical argument. It explained that while national security might be impaired by requiring the government to produce the witnesses in person, existing transcripts of their interrogations were fair game--at least when access was restricted to approved defense lawyers.

The Fourth Circuit staked out a middle ground. Not only did it reject the prosecution's contention that no right to call witnesses existed; it also rejected the defense's contention that if Moussaoui were denied access to the witnesses, his Sixth Amendment right could only be vindicated by dismissing the indictment. As long as statements--though not witnesses themselves--were provided, the court reasoned, the indictment against Moussaoui could still stand.

Accordingly, the court remanded to the trial judge with instructions on how to provide Moussaoui and the jury with access to the witnesses' statements, though not the witnesses themselves.

Avoiding Another Set of Perverse Consequences

As in the Guantanamo case, so too in the Moussaoui prosecution, fear of perverse consequences may have been at work.

Suppose that the court had granted the defense request, and had ordered the government either to produce the witnesses or dismiss the indictment. Surely the government would have dismissed the indictment. But Moussaoui's Sixth Amendment right would hardly be vindicated as a result. To the contrary, Moussaoui would end up with even fewer rights honored.

In a conventional prosecution, dismissal of the indictment means the defendant goes free. But Moussaoui's is not a conventional prosecution. It is a terrorism prosecution of a foreign national.

Thus, if the government were to drop the charges against Moussaoui, he would likely be remanded to military custody, probably at Guantanamo. There, he would either be held indefinitely or tried before a military tribunal with fewer procedural safeguards than are available in federal district court.

The Appeal of the All-or-Nothing Approach

If the balancing and compromises seemingly at work in last week's cases seem sensible, why has the discourse so far been dominated by an all-or-nothing approach?

It's easy to see why the government does not want conventional civil liberties to apply to cases arising out of its pursuit of terrorists. Emphasizing that the United States is currently waging actual wars in Afghanistan and Iraq as well as a metaphorical war on global terrorism, the Administration sees civil liberties as simply too costly. Tools like the presumption of innocence, the right to counsel, and the right to compulsory process for calling witnesses are, in the Administration's view, ill-suited to the battlefield--and in today's wars, that includes the home front.

Perhaps surprisingly, some civil libertarians share the Administration's view that sharp distinctions should be drawn between military and civilian procedures. These civil libertarians worry that when called upon to adjudicate cases involving terrorism, our civilian courts will be so obsessed with national security that they will suspend the ordinary protections of the civilian justice system--and that the compromises made in terrorism cases will gradually undermine the procedural protections of the civilian justice system in all cases. From the war on terrorism, they fear, our courts will fashion rules that are then transported to the "war" on drugs and crime more generally.

These civil libertarians are prepared to strike a kind of deal: Allow some cases to proceed with minimal judicial scrutiny outside of the civilian courts, but, if the Administration makes use of the civilian courts--as it did with John Walker Lindh and is doing with Moussaoui--then insist on the full panoply of procedural protections.

In this view, it would be better for Moussaoui simply to be held indefinitely in a military brig than to be tried in federal court with less than the full measure of access to exculpatory witnesses. At least if he's simply held in military custody, his case sets no precedent for the next alleged drug dealer or racketeer the government wants to prosecute based on evidence obtained from a confidential informant.

The Need for Compromise

The civil libertarians' urge to keep the civilian courts pure and uncorrupted by the messy compromises of military justice is understandable. Nevertheless, in sacrificing Moussaoui and perhaps American citizens such as Jose Padilla and Yaser Hamdi--whose cases the Supreme Court hears today--they risk striking a Faustian bargain.

Sadly, the war on terrorism is not likely to be a brief and passing phase of our national experience. We will face a terrorist threat for years to come, and as the numbers of people who are treated as outside the ordinary civilian justice system reaches into the thousands, it will become increasingly difficult to maintain that we are maintaining the "purity" of that system by anything other than an act of willful blindness.

Accordingly, if we care about the values that underlie our civilian justice system--especially the notion that people should not be imprisoned or executed except upon proof of their guilt after a fair opportunity for them to challenge the evidence against them--we will have to find a way for that system to face the challenges posed by the terrorism cases directly. Last week's oral argument in Washington and the Fourth Circuit's decision in Moussaoui suggest that our courts stand ready to accept that responsibility.

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Michael C. Dorf is Professor of Law at Columbia University. His new book, Constitutional Law Stories, is published by Foundation Press, and tells the stories behind fifteen leading constitutional cases.

Posted by maximpost at 9:57 PM EDT

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