Friday, May 14, 2004


Misleading the Surpremes

The Supreme Court did not know of the revelations about Abu Ghriab when the Administration argued the Guantanamo Bay, Hamdi, and Padilla cases before it last month, and the Administration did not volunteer the information. Indeed, when Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement in the Hamdi cases whether judicial review should be foreclosed even in cases of alleged torture, Clement dodged the question. "Our executive," he insisted, doesn't engage in torture. "Judicial micromanagement" was inappropriate in wartime; "you have to trust the executive."

In fact, the Justice Department did know about-- and approved-- the Administration's "stress and duress" techniques, like "water boarding"-- forcibly holding prisoners under water and making them believe that they will drown unless they cooperate. But conveniently, the government has defined the concept of "torture" to exclude these techniques so that it can technically claim that it "tortures" no one. Perhaps even worse, it has placed prisoners in the hands of other governments with the expectation that even more aggressive techniques will be employed, a practice that also violates the Geneva Conventions. All of this was kept from the Court at oral argument.

Although the Guantanamo Bay, Hamdi and Padilla cases have distinct legal issues from those raised in the current prison abuse scandals in Iraq, the question of whether the Administration can be trusted to protect human rights lies at the heart of all of these cases. The government's argument has been that the Administration needs no judicial oversight because the U.S. would never detain innocent people as enemcombatantsts and would never torture or abuse prisoners in its custody. These promises have turned out to be hollow.

There is no direct evidence that the Solicitor General's office knew at the time it argued these cases about the Justice Department's approval of coercive CIA interrogation techniques, or that it knew about the Red Cross's report given to the Bush Administration in 2003 detailing prisoner abuse and estimating that some 70 to 90 percent of the detainees in Iraqi prisons were innocent of any wrongdoing. At the very least, however, it would have been prudent for the government's lawyers to ask its client-- and other Justice Department officials-- before arguing its case before the Supreme Court. In light of these revelations, the government's representations that "our executive" doesn't engage in torture were seriously misleading. For more on the controversy, see Eric Muller and Unfogged.

Thursday, May 13, 2004


Formalism and High Politics

I've been meaning for some time to comment on Larry Solum's interesting theory of formalist judging which he offers as a corrective to what he regards as the downward spiral of politicized judging. Matthew Yglesias's recent posting on the subject offers a useful entry point. Larry argues that the politicization of constitutional law, which he believes has had terrible consequences for the Rule of Law, can be avoided if judges commit themselves to a certain kind of formalism, by which he means super-strong respect for precedent.

I've never thought that respect for precedent is at all inconsistent with my (and Sandy Levinson's) view that constitutional judging reflects differences of constitutional vision that get worked out in constitutional doctrine-- what we have called "high politics"-- and that constitutional change often occurs through doctrinal developments that further those constitutional visions. The reason is simple: There's usually more than one way to argue from existing precedents in most important and controversial cases in constitutional law. "More than one," by the way, doesn't mean an infinite number. It means, simply, more than one. There are many arguments that are completely off the wall given existing precedents, and the existing configuration of legal doctrine, but the fact that many answers are off the wall doesn't mean that only one answer is not. (Nor do I assume that Larry would ever suggest such a thing). Rather, existing precedents usually underdetermine the results of the sorts of cases that tend to come before the Supreme Court. On this I assume both Larry and I are in full agreement.

Moreover, as Karl Llewellyn pointed out many years ago, lawyers have a wide variety of techniques for reading precedents broadly and narrowly, drawing analogies from existing precedents, and formulating new principles from older precedents. All of these techniques are generally called "following precedent." But they sometimes lead to very different results. Indeed, much of constitutional adjudication involves dueling examples of Llewellyn's catalogue of precedental techniques, so that it is very often the case that both sides of a dispute can plausibly claim that they are following precedent, (while insisting that the other side is not, because they are using those techniques quite differently and with a different result).

Now it is not clear to me whether Larry wants to contend that some subset of Llewellyn's catalogue of common law practices of precedental argument is illegitimate for formalist judges. If he does not, and if he accepts the common law tradition as part of what he means by formalist judging, then it's not clear how much he and I disagree, and I'm proud to sign on as a formalist at least to that extent. However, if he thinks that substantial parts of this catalogue of precedental techniques are illegitimate, then he has a lot of explaining to do in showing how his theory of judging fits the actual practices of judges over the last several centuries. Put another way, my claim is that the actual practices of what lawyers call "following precedent" are quite flexible. The politicization of the judiciary that Larry decries has not occurred outside of those practices. To the contrary, it has occurred largely within them. And the reason why the work of precedental argument is so flexible is that over the years it has served a variety of different functions. One of those functions is allowing strong conflicts of political principle to be mediated by and worked out through professional discourses of law.

Please note the claim being made here: It is not that anything goes in legal adjudication generally. The claim is only that in the sort of high profile constitutional cases that come before the Supreme Court, precedents usually underdetermine the result, so that people with very different visions of the Constitution, and different varieties of what Levinson and I have called "high politics," can argue for somewhat different results given the existing body of materials and the various techniques of precedental argument. Over time, that doctrinal development can lead to very significant change. That is, following precedents does not simply prevent change, it is also how judges effect change.

Judges cannot come to just any result through precedent-- for precedent and the techniques of precedental argument really do impose constraints on professionally socialized lawyers. But there is enough play in the joints that people with different constitutional visions can often believe in good faith that very different results are the best ones and the best way of following previous precedents.

What this means is that disputes about constitutional high politics get worked out *through* precedental arguments, not outside of them.

Here's a simple example. In the 2000 case of United States v. Morrison, the Supreme Court considered whether the Violence Against Women Act (VAWA) was within Congress's powers to regulate interstate commerce. The dissenters argued that violence against women had cumulative effects that affected interstate commerce, and therefore, under the reasoning of Wickard v. Filburn, VAWA was within Congress's power. They read Wickard and earlier cases broadly to mean that if Congress could reasonably conclude that a particular activity affected interstate commerce, that activity could be regulated under the Commerce Clause. They read the Supreme Court's 1995 decision in Lopez narrowly to hold that in close cases, when Congress had not produced sufficient findings of fact of the effects on interstate commerce, the Court did not have to pretend that these cumulative effects existed. The majority opinion written by Chief Justice Rehnquist, by contrast, read Lopez broadly and Wickard and older cases narrowly. Rehnquist created a new doctrinal distinction that he claimed explained all of the Court's previous cases. That distinction was between economic activities and non-economic activities. In his view, Wickard and earlier cases stood for the proposition that Congress could regulate economic activities that had a cumulative effect on interstate commerce, but this reasoning did not apply to non-economic activities like violence against women. The New Deal was about economic regulation, and nothing more. Hence VAWA was unconstitutional.

Both the majority and the dissent claimed that they were following existing precedents. The dissent argued that Rehnquist was making his new economic/non-economic distinction out of whole cloth. Rehnquist argued that the distinction was implicit in the logic of the previous cases.

The majority and the dissent offered contrasting techniques for reading existing precedents. Undergirding those contrasting techniques were opposed visions about the role of the Federal government, the meaning of the New Deal and the Civil Rights Movement, and the meaning of VAWA. The dissenters saw VAWA as ordinary social and economic legislation, (consistent with the New Deal settlement), and, moreover, as a federal civil rights provision. Since the 1964 Civil Rights Act, protecting civil rights through regulations of interstate commerce had been part of the Federal government's job. This was the larger constitutional meaning of the New Deal and the Civil Rights Movement. The majority, by contrast, read the meaning of the New Deal and the Civil Rights Movement more narrowly. They did not see VAWA as a civil rights law. Rather, they regarded it as nothing more than Congressional grandstanding that intruded on traditional state subjects like family law and criminal law. (Yes, I know it sounds odd given the current debates over the Federal Marriage Amendment, but back in 2000, conservatives insisted that family law was a traditional subject of local regulation that the federal government should stay out of.).

Thus, immanent within the precedental arguments in Morrison were opposed constitutional visions, opposed versions of "high politics." The clash of high politics was not inconsistent with precedental arguments and with following existing precedents; rather it was worked out through those arguments and through different techniques for following precedent. Put another way, existing precedents shape, mediate between, and articulate competing constitutional visions. In this way precedents constrain the boundaries of constitutional adjudication and help transform what might otherwise be political disagreements into legal disputes. High politics and the clash of opposed constitutional visions is not foreign to precedental argument; rather it is immanent in disputes about the meaning of past precedents. Precedents, and indeed all of the modalities of constitutional argument, are the vehicles through which highly politicized disputes can be debated through the professional discourse of law. That is how precedents serve the function of channeling political disputes into a professional discourse that subjects those disputes to values associated with the Rule of Law. The system of precedental argument hardly perfect or foolproof, but it has a point to it. It serves, however, imperfectly, important Rule of Law values. But at the same time it also serves as the vehicle for constitutional development, mediating the struggle between opposed constitutional visions. It does both of these things at one and the same time. Indeed, I would suggest that if it did one of these tasks without doing the other, it would not be doing its job.

Wednesday, May 12, 2004


My God Can Torture Your Idol

As if the public relations debacle couldn't get any worse, it appears that Lt. Gen. William G. "Jerry" Boykin, the deputy undersecretary of Defense for intelligence, may have been involved in the recommendation to use questionable methods to soften up detainees for interrogation. Boykin became controversial for his statements that in the war on terror the United States is a "Christian nation" fighting Satan and for his considered opinion of the religious beliefs of a Muslim Somali warlord: "I knew my God was bigger than his. I knew that my God was a real God and his was an idol."

Boykin is free to believe whatever he likes. But the costs of putting him in such a position of responsibility have now been made apparent. There could be nothing worse for the United States than to have a top military official who publicly proclaims that this is a holy war enmeshed in a scandal involving the abuse and torture of Muslim detainees, the vast majority of whom appear to be innocent of any crime at all.


Anything Goes

Rosa Ehrenreich Brooks, a professor at Virginia who has also served as a senior advisor to the State Department on Human Rights policy, connects the dots:

Since Sept. 11, high-level administration spokespeople — including the president — have repeatedly asserted that the executive branch of the U.S. government is free to ignore both the laws of war and the U.S. Constitution, and that executive branch actions are essentially unreviewable by the courts.

It began shortly after Sept. 11, with President Bush's breezy announcement that he wanted Osama bin Laden "dead or alive — either way. It doesn't matter to me." The administration also offered a multimillion-dollar reward for Bin Laden, although such statements and bounties have traditionally been viewed as contrary to the laws of war and U.S. military regulations. Soon after, Bush signed a secret intelligence order permitting the CIA to expand covert actions, which, as one senior U.S. intelligence official put it, gave the agency "the green light to do whatever is necessary. Lethal operations that were unthinkable pre-Sept. 11 are now underway."

In his 2003 State of the Union address, Bush continued to imply that legal niceties were of little importance in the war on terror, commenting that while some Al Qaeda members had been arrested, others had "met a different fate." What kind of fate? "Let's put it this way," he said: "They are no longer a problem to the United States."

Vice President Dick Cheney, Atty. Gen. John Ashcroft and Rumsfeld wasted no time establishing their own tough-guy credentials after 9/11. Rumsfeld insisted that military detainees in Afghanistan "do not have any rights" under the Geneva Convention. At home, Ashcroft asserted that foreign terrorist suspects "do not deserve the protections of the American Constitution." Cheney stuck to the same script, insisting that terrorism suspects "don't deserve" judicial "guarantees and safeguards." Never mind the fact that due-process protections are designed not to give the guilty what they "deserve" but to ensure that the innocent, who may be wrongly accused, get the rights that they deserve.

The Bush administration has been similarly cavalier about the use of torture-like practices against detainees. In 2002, a series of media stories reported that U.S. detainees in Afghanistan were hooded, deprived of food, water, sleep and pain medications, forced to remain in agonizing positions for hours, kept naked, and beaten. The truth of these allegations was tacitly acknowledged by numerous senior national security officials (none willing to be named). As one official said, "If you don't violate someone's human rights some of the time, you probably aren't doing your job. I don't think we want to be promoting a view of zero tolerance on this."

No high-level administration official either denied the reports or publicly promised to investigate. Indeed, their response consisted of little more than winks and nods: As J. Cofer Black, then head of the CIA's Counterterrorist Center, told the House and Senate intelligence committees, "all you need to know [is this]: There was a before 9/11, and there was an after 9/11. After 9/11, the gloves come off."

Over the last year, prisoners released from Guantanamo Bay have alleged they too were subjected to brutal and humiliating detention conditions and interrogations. Maj. Gen. Geoffrey Miller, the former Guantanamo commander recently sent to oversee Iraqi detention facilities, wrote in a report last fall (based apparently on his Guantanamo experiences) that military guards in Iraq should be "enablers for interrogations," actively "engaged in setting the conditions for successful exploitation of the internees." When pressed on how conditions at Abu Ghraib prison would be reformed to prevent further abuses, Miller told reporters, "Trust us. We are doing this right."

"Trust us" has been the sole assurance the Bush administration has offered in the face of concerns about possible abuses. In its response to court cases brought on behalf of detainees at Guantanamo, the administration has insisted that executive branch actions at Guantanamo cannot be reviewed by any U.S. court. When judges on the U.S. 9th Circuit Court of Appeals asked Justice Department lawyers whether the administration position would be the same "even if the claims were that it was engaging in acts of torture or that it was summarily executing the [Guantanamo] detainees," the administration's lawyers said yes.

Similarly, in recent U.S. Supreme Court arguments involving two U.S. citizens being held by the U.S. military as alleged "enemy combatants," the administration insisted that it had the right to designate any citizen an enemy combatant on the basis of secret and unchallengeable evidence and to hold such a person as long as it wanted, without charge or any right to counsel, and with no mechanism for the detainee to challenge detention conditions. (The administration claimed that allowing access to counsel would undermine the "trust and dependency that is essential to effective interrogation.") When asked directly by Justice Ruth Bader Ginsburg whether the administration would acknowledge any judicial check to prevent the use of torture against detainees, Deputy Solicitor Gen. Paul Clement ducked the question. He disparaged "judicial micromanagement" and informed the court that "you have to trust the executive."

There are two related points here. One is about executive power. The other is about the value of respecting international law. The lesson about executive power is simple: Unrestrained power without accountability will lead to abuses. It has happened before in human history. It is happening now. It does not matter how noble people are or how just they believe their cause to be. Power without out accountability leads to corruption. That is why the American Constitution creates checks and balances between separated powers of government and it is why executive action must ultimately be subject to judicial review.

The lesson about international law is slightly different: International legal convenants like the Geneva Conventions help to create a system of mutual restraint that give countries with very different political interests reasons for mutual forbearance. If Country X believes that Country Y is mistreating its prisoners of war and/or killing them, it may have no incentive (other than its sense of morality) to behave any better. The result is a downward spiral of abuse, torture, and death. By agreeing beforehand to minimum standards of decency for the treatment of prisoners of war, signatories can check each other through shaming in the court of world opinion, even if there is no supranational dispute resolution body with the power to enforce the standards. That is precisely what is happening now in the context of Abu Ghraib. America is not (yet at least) being dragged into court for what it has done. But the United States is suffering a public relations disaster around the world that is seriously harming its foreign policy interests.

In this sense, the Geneva Conventions are doing precisely what they should do: act as a focal point that can be used to shame the United States for misbehavior. The lesson, however, is that America should never have let itself get into this situation in the first place. It should have taken the Geneva Conventions seriously from the start. Instead, after 9/11 it decided that "anything goes." Its Iraq policy is now suffering the consequences of that failure.

Tuesday, May 11, 2004


Manipulating the Definition of "Torture"

My friend and co-author Sandy Levinson writes in this week's Village Voice about how the United States has manipulated the legal definition of torture:

For over a decade, the United States has lived with a loose definition of "torture" that is significantly out of line with that of most of the rest of the world and invites the kind of manufactured distinctions that give lawyering a bad name. Moreover, officials in both Congress and the executive branch have winked and nodded at practices such as sending prisoners to countries that will do our dirty work for us. Our chief executive, in our name, professes to be shocked, just shocked, that scandalous practices are occurring in Afghanistan and Iraq. Perhaps George W. Bush would offer the excuse that he reads no newspapers; he gets his information only from self-serving courtiers. There is no excuse for presumably better-read members of Congress and, most of all, those of us who did read the stories and simply went on with our lives as if they had nothing to do with us and concerned only the various "others" living in strange and faraway places.


The World According to Inhofe


As others condemned the reported abuse of Iraqi prisoners, U.S. Sen. James Inhofe on Tuesday expressed outrage at the worldwide outrage over the treatment by American soldiers of those he called "terrorists" and "murderers."

"I'm probably not the only one up at this table that is more outraged by the outrage than we are by the treatment," the Oklahoma Republican said at a U.S. Senate hearing probing the scandal.

"These prisoners, you know they're not there for traffic violations," Inhofe said. "If they're in cellblock 1-A or 1-B, these prisoners, they're murderers, they're terrorists, they're insurgents. Many of them probably have American blood on their hands and here we're so concerned about the treatment of those individuals."

Coalition military intelligence officers estimated that about 70 percent to 90 percent of the thousands of prisoners detained in Iraq had been "arrested by mistake," according to a report by Red Cross given to the Bush administration last year and leaked this week.

The report also said the mistreatment of prisoners apparently tolerated by U.S. and other coalition forces in Iraq involved widespread abuse that was "in some cases tantamount to torture."

In heated remarks at odds with others on the Senate committee who took aim at the U.S. military's handling of prisoners at the Abu Ghraib prison outside Baghdad, Inhofe said that American sympathies should lie with U.S. troops.

"I am also outraged that we have so many humanitarian do-gooders right now crawling all over these prisons looking for human rights violations, while our troops, our heroes are fighting and dying," he said.

You tell'em Jim, it's the fault of that goddamn Red Cross sticking its nose in where it doesn't belong! We don't need your stinking human rights! After all, we didn't come to Iraq to promote democracy and human rights, we came to ..... Uh, what exactly was the reason again?

P.S. Flash from the past: Inhofe exposes global warming as a scientific hoax.