Balkinization  

Saturday, June 05, 2004

Ronald Reagan: An Assessment

JB

President Ronald Reagan passed away today in California. He and his successor, George H.W. Bush, successfully presided over the end of the Cold War, leading to a period of American hegemony that we find ourselves in today. Reagan was a staunch anti-communist. However, after ramping up military investments early in his Presidency, Reagan had the good sense to reach out to Mikhail Gorbachev and seek arms controls just as the Soviet Empire was crumbling. By the time he left office, the Cold War was all but over, and his successor, George H.W. Bush, used his considerable diplomatic skills to smooth the transition.

Reagan was a popular president-- his approval ratings are very close to those of Bill Clinton, another popular two-term President. He had a sunny and optimistic disposition that made many Americans feel that the problems they faced could be solved. Although many Americans did not like his policies, they liked the man himself.

His domestic policies were less successful than his foreign policy. His experiments with supply side economics eventually produced enormous budget deficits. Both he and his successor George H.W. Bush had to compensate for the fiscal problems his early policies created by raising taxes, which eventually helped cost Bush the 1992 election. Reagan's domestic policies and cuts in social programs exacerbated increasing income and wealth inequality in the United States which continues to this day. His decision to underfund enforcement of financial regulations led directly to the Savings and Loan Crisis which culminated during George H.W. Bush's presidency, and cost the country billions of dollars.

The most serious blemish on his presidency was the Iran Contra scandal, in which members of his Administration misled and in some cases lied to Congress, engaging in covert transactions in the 1980s to provide funds to the Nicaraguan contra rebels from profits gained by selling arms to Iran. Congress had enacted legislation prohibiting the Defense Department, the CIA, or any other government agency from providing military aid to the contras. The U.S. also had a trade and arms embargo with Iran. The Reagan Administration attempted to get around these legal restrictions by using the National Security Council to supervise covert military aid to the contras and secretly sell and ship arms to Iran, using the proceeds to fund the contras.

Not only did members of the Reagan Administration violate federal law but they also obstructed Congressional investigations into the matter, thus creating a constitutional crisis. Barely a decade after Nixon's resignation, the country had no taste for a second impeachment investigation, but the violations of the Constitution implicated in the Iran-Contra scandal were very serious indeed. In 1992 Reagan's successor, George H.W. Bush, pardoned Caspar Weinberger and other officials who had been indicted or convicted for withholding information on or obstructing investigation of the affair. The pardons forestalled further inquiry into the matter.

In the long run, Presidents are judged by the balance of their successes and failures. By any account, Reagan's Presidency had its share of accomplishments. And politically Reagan was an absolutely pivotal figure, who helped create the successful political coalition of religious conservatives, economic conservatives, suburbanites, Southerners, and working class whites that forms the contemporary Republican Party. Reagan's political success can be measured by the fact that he shaped the terms of debate for the next several presidents who succeeded him. Indeed, Bill Clinton's remark that "the end of big government is over" was an acknowledgement that Reagan's presidency had fundamentally shifted the terms of political debate.

Of the twentieth century presidents, Reagan falls somewhere in the middle of the pack. He was not as great a figure as FDR, Truman, Wilson, or Teddy Roosevelt. On the other hand, he was certainly more successful than Taft, Harding, Coolidge, Hoover, Nixon, Carter, and George H.W. Bush. Reagan is a combination of successes and failures, of accomplishments and liabilities. He falls into the middle category of presidents like Eisenhower, Kennedy and Johnson, (all of whom, coincidentally, served one after another in the middle of the century), who had both important accomplishments and failures, although he is really like none of them.

Reagan is the only successful president in the twentieth century who was also a strongly ideological conservative (I do not count the environmentalist, trustbusting TR as a conservative, and Eisenhower was far more moderate than today's conservatives). Liberals, by contrast, are spoiled for choice, for they can point to several great and near great presidents in the twentieth century. For this reason alone, we can expect continuing and fervent attempts by conservatives to canonize Reagan in as many ways as possible. In some ways that is unfortunate, for these attempts will probably keep Reagan a more divisive figure than he should be. In hindsight, I predict that both liberals and conservatives will find things to admire about the man. And in twenty years' time we will have a much better picture of his accomplishments.

Josh Marshall and "Real Voters"

JB

I think Josh Marshall mischaracterizes the situation when he accuses "Republicans (and also non-Republicans) [of arguing] that non-white voters somehow aren't quite real voters. The point is often framed as noting how up-the-creek Democrats would be without black voters."

Parties are made up of collations of voters. It's pretty clear that blacks are key members of the Democratic Party's coalition, just as white Christian evangelicals are key parts of the Republican Party's coalition. (In fact, white evangelicals are likely to split their votes more evenly among the two parties than are African-Americans.).

Unlike Josh, I don't think this sort of rhetoric is trying to argue that blacks aren't real voters. No one is claiming that they aren't American citizens. (That insinuation is more likely to be raised with respect to other minorities, like Asians or Latinos. On the other hand, it has been insinuated about the Labor Party in Israeli elections in years past because of consistent support for Labor by Israel's Arab citizens.)

Rather, reminding people that Democrats would do terribly without a particular constituency (like blacks) is usually offered to insinuate that Democratic politicians are too much influenced by the interests of blacks (or gays or, in the case of the recent South Dakota House election, Native Americans.) Arguing that Democrats would be nowhere politically without the black vote is a way of saying that Democrats care about blacks too much and aren't paying enough attention to the interests of white voters. You can see how this sort of rhetoric meshed easily over the years with the Republican southern strategy. (By the way, I think that some Democrats, particularly in the North and East, do pretty much the same thing with the Religious Right-- they make hay by arguing that the Republican Party is in the pocket of the Religious Right. This is an exaggeration, as I shall explain below).

There are two ironies about this sort of argument. First, it tends to be made about the groups most loyal to the party in question, but not about swing voters. But swing voters may in fact, as their name implies, be the most crucial determinants of who actually wins elections. Take Latinos as an example. In the 2000 Presidential election, Democrats got about 62 percent of the Latino vote, while the Republicans got about 35 percent. That's a margin of 27 percent for the Democrats, and it was crucial to Democrats doing as well as they did. However, you don't hear all that many Republicans going around arguing that the Democrats would be nowhere without the Latino vote. But that's not because it's not true. In fact, Latino voters do make a crucial difference for Democrats. Rather, it's because Republicans really want the Latino vote. Ideally, they'd like to increase Latino support from about 35 percent to 40 percent or more. If they can do that they will do very well in national elections.

Thus, even though Latinos are crucial to Democratic margins of victory, most Republicans don't want to piss off Latinos by blaming them for Democratic successes. Indeed, the last thing they want to insinuate is that the Democrats are altogether too solicitous of the interests of Latinos, because Republicans want to claim that they are the ones who really care about the things that Latinos care about.

Contrast this to African Americans. For some time now, lots of (but certainly not all) Republicans, particularly in the South and the West, have pretty much written off the black vote, and so they are perfectly happy reminding their white constituents that the Democrats are altogether too cozy with African-Americans and are not paying enough attention to the interests of disgruntled white voters.

The second irony follows from the first. The insinuation that Democrats are too wedded to black interests is particularly ironic because the more loyal a group is to a particular party, the easier it sometimes is to take them for granted. Both African-Americans and the Religious Right have often felt taken for granted by the two major political parties for this very reason. Both blacks and the Religious Right have no place else to go if the two parties stiff them. And so the two major political parties regularly do stiff them on all sorts of issues.



Friday, June 04, 2004

Fallout from the Clinton Wars

JB

The Seattle Times offers this explanation for why President Bush sought legal counsel from a private attorney.

Georgetown University law professor Paul Rothstein cautioned against "overstating" the possibility of Bush's personal involvement in the leak. But he said the president's decision suggested, at least, that Bush might be anticipating a grand-jury appearance.

"My eyebrows went up when I heard about it," Rothstein said. "I think we have to read this move as some kind of feeling that there's some chance, no matter how remote, that there may be some personal liability on the president's part, or that someone might try to suggest there is."

White House officials declined to explain why Bush contacted Sharp. They also refused to say whether other top officials had sought legal advice, although a spokesman for Cheney left the impression that the vice president had consulted a lawyer.

Bush's need to rely on a private attorney, rather than White House counsel, may have its roots in the legal troubles of former President Clinton.

Faced with possible prosecution in the Whitewater probe, Clinton turned to the White House counsel for help, thinking his consultations would be kept secret under traditional attorney-client privileges.

But two federal appeals courts ruled in 1997 and 1998 that presidential communications with White House counsel weren't privileged when they were about personal, rather than governmental, matters. The rulings changed the presidency forever.

"It means the president needs his own lawyer if he's going to talk about personal liability, whether it's civil or criminal," Rothstein said.



Capitol Hill Blue: Bush Feeling the Pressure

JB

One must take this report from Capitol Hill Blue, suggesting that Bush is turning into an evangelical version of Richard Nixon, with a grain of salt. (link via Atrios). The one thing that does sound right is that the President, now some three and a half years in office, is feeling the pressure of failed policies and slipping poll numbers. Who in his position would not? For all of the jokes people make about Bush's lack of interest in the world, and his lack of interest in public policy, he is, above all, a savvy politician. And good politicians are always keenly aware of what other people think of them and their accomplishments. So, even if Bush reads only digests of news stories prepared by his advisors, you can bet that he and his chief political advisor Karl Rove are paying close attention to how the Administration's policies have been playing. He knows that things have not gone well. He must feel a terrible weight on his shoulders.



Thursday, June 03, 2004

Naughty, Naughty, George

JB

Capitol Hill Blue offers an account of grand jury testimony in the Plame case that explains why President Bush suddenly needed to hire a lawyer.

Apparently Karl Rove also needs the services of a good attorney.

So let's see: Top Administration officials outed an undercover CIA operative out of political spite and Defense Department officials gave Ahmed Chalabi classified information about Iranian codes which he then leaked to the Iranians.

As the President likes to remind us: "You are either with us or against us in the fight against terror."

Which side is this Administration on again?


UPDATE: Matthew Ygelsias believes he has the answer.


Justice Department: Constitution? We Don't Need Your Stinking Constitution

JB

In a news conference on Tuesday, the Justice Department offered evidence that Jose Padilla, whom it has held in a military prison for two years, is a dangerous terrorist. This evidence, they argue, justifies their unprecedented violation of the constitutional rights of an American citizen. Justice Department officials stated that Padilla had confessed to meetings with Al Qaeda operatives and that he had planned to blow up apartment buildings by leaking natural gas and setting it on fire.

Of course, the word "confessed" has to be used advisedly here. These are merely the second hand reports of Justice Department officials who desperately need to justify their actions before an increasingly skeptical public. Padilla has never been allowed to speak for himself. Moreover, he has been held in solitary confinement and subjected to repeated interrogations for two years without being able to meet with a lawyer for most of this period. (He was allowed to meet with a lawyer for the first time in the past few months). That is to say, Padilla has been denied all of the basic protections that the Bill of Rights affords citizens of the United States, which are designed to prevent overreaching by overzealous government officials. Remember, even Terry Nichols and Timothy McVeigh, who masterminded the Oklahoma City bombing, were given the protections of the Bill of Rights. Jose Padilla should receive no less.

Let me state once again that I have no reason to doubt that Padilla is a bad fellow. He is, by all accounts, a street tough who got caught up in radical Islamic movements. But we really have no idea whether what the Justice Department is telling us is true or has been spun and stretched to justify their actions. We do not know whether Padilla really said what he is supposed to have said, and, perhaps more importantly, we do not know whether he was coerced into saying it.

Coerced into saying it, you ask? My goodness, we are Americans! We do not torture or coerce persons in our custody. Unfortunately, we have learned, much to our dismay, that our government has repeatedly employed coercive tactics, up to and including actual torture, against people it thinks may have information relevant to its continuing War on Terror. The evidence has come in from Guantanamo Bay, from Afghanistan, and most recently from Iraq.

Given these precedents, the trust we would like to afford government officials who, after all, are seeking to protect us, has been fatally undermined. What reason do we have to believe, given the information about prisoner abuse and torture that has recently come to light, that Jose Padilla has not been subjected to coercive interrogation techniques that violate not only international human rights agreements but also our own Bill of Rights? None whatsoever. And that is why what the Justice Department says to justify its violation of Padilla's rights is worthless. The government asks us to trust them. But it has destroyed the very basis of that trust.

The Justice Department admits that if it had given Padilla his rights, he would have obtained a lawyer and been free from its two year regimen of interrogations and solitary confinement. Had Padilla been given the rights that every American citizen is born with under our Constitution, Deputy Attorney General James Comey remarked, "he would very likely have followed his lawyer's advice and said nothing, which would have been his constitutional right. He would likely have ended up a free man, with our only hope being to try to follow him 24 hours a day, seven days a week, and hope -- pray, really -- that we didn't lose him."

In other words, Comey admitted that the government did not have sufficient evidence to charge Padilla with a crime and keep him in custody. He would be a free man. But of course, that's what citizens of this country who are not charged with any crime are supposed to be in this country. Free.

Imagine that this had happened to you. Or to someone you love. Suppose that in the middle of the night the government had taken you and held you incommunicado in a military prison and coerced statements from you in violation of your constitutional rights. "But they would never do that to me," you respond. "I haven't done anything wrong." But the government doesn't know that. They think you are an enemy of the state. And so they keep you in prison until you say something they want to hear. And then they hold a press conference in which they use your words to demonstrate that they were justified in holding you in the first place. "But our government would never do such a thing," you protest. "We're the good guys. We don't make mistakes. We don't imprison innocent people. We don't spin the facts. We can be TRUSTED." Indeed. But the reason we are the good guys is that we believe in the Rule of Law and the Bill of Rights. Once we abandon those protections, we begin to resemble the very things we are fighting against.



Wednesday, June 02, 2004

What's A Few No Bid Contracts Among Friends?

JB

Dick Cheney has long insisted that he has severed all connections with Halliburton, the company he formerly ran, the company which recieved no-bid contracts for the Iraqi occupation from the U.S. Government, and which, incidentally overcharged the military on several occaisions.

Apparently, however, not all connections were severed. According to Reuters, Cheney may have diverted business to his former firm.

A newly unearthed Pentagon e-mail about Halliburton contracts in Iraq prompted fresh calls on Capitol Hill on Tuesday for probes into whether Vice President Dick Cheney helped his old firm get the deals.

The e-mail, reported by Time magazine, provided "clear evidence" of a relationship between Cheney and multibillion-dollar contracts Halliburton has received for rebuilding Iraq, Sen. Patrick Leahy said.

"It totally contradicts the vice president's previous assertions of having no contact" with federal officials about Halliburton's Iraq deals, Leahy, a Vermont Democrat, said in a conference call set up by John Kerry's presidential campaign. "It would be irresponsible not to hold hearings."

The March 2003 Pentagon e-mail says action on a no-bid Halliburton contract to rebuild Iraq's oil industry was "coordinated" with Cheney's office. Cheney was chief executive officer of the oilfield services giant from 1995 until he joined George W. Bush's presidential ticket in 2000.


But, so far, at least, the Republicans who control Congress don't want to hold hearings. Can you really blame them? After all, they've already had to deal with the 9-11 Commission's revelations of the Administration's incompetence in dealing with terrorism, as well as the revelations of prisoner abuse at Abu Ghraib. Calling attention to to possible financial corruption by the Vice-President is probably not going to make them any happier.

Nevertheless, Congress should hold hearings on this issue immediately. I've been quite concerned about the lack of attention paid to the question of profiteering during this war. Cushy contracts were offered to friends of the Administration without having to go through the usual competitive bidding rules, and those companies then proceeded to line their pockets with unnecessary charges while American soldiers were being shot and killed. It's enough to make any patriotic American's blood boil. When will Congressional leaders recognize that this is a serious matter?



Sunday, May 30, 2004

Just Wild About Harry

JB

Billmon notes this Washington Post essay suggesting that George W. Bush will beat John Kerry in the same way that Harry S Truman defeated Thomas Dewey in 1948. Billmon's right that if you have to start comparing an incumbent president to Harry Truman in May of an election year, things are bleak indeed. Truman and Bush did face Congresses controlled by the Republican Party, which Truman ran against to great effect. However since Bush is himself a Republican, it seems unlikely that running against the do-nothing Republican Congress will prove an equally effective strategy.

In 1948 Truman also took a series of courageous stands on civil rights, much more courageous than his precedessor Franklin Roosevelt felt up to. After appointing a civil rights commission in the previous year, (which produced the famous report "To Secure These Rights,") Truman adopted many of its recommendations, proposing new civil rights legislation, including the abolition of the poll tax and anti-lynching laws. He issued executive orders desegregating the military and the civil service and ran his 1948 campaign as a champion of civil rights.

How does this compare with Bush? Well, let's see, Bush's great act of courage was endorsing a constitutional amendment that would prevent gays and lesbians from ever attaining equal civil rights.

Yes, it's true: the similarities really are quite astonishing.

I've been doing a lot of thinking about Truman in the past several months because this year marks the 50th anniversary of Brown v. Board of Education. What does that have to do with Harry Truman, you might ask? Plenty. Most people don't realize it, but there's a pretty strong argument that without Harry Truman's courage, Brown v. Board of Education (and progress in civil rights for blacks) would have been delayed for many years.

Not only did Truman get behind civil rights through his executive orders, and not only did he appoint William Hastie to the Third Circuit court of appeals, which was at that point the highest federal judicial appointment given to any African-American, but Truman's Justice Department continuously pushed for civil rights before the Supreme Court, particularly in the 1948 case of Shelley v. Kramer.

In 1950 the Truman Justice department asked the Supreme Court to overrule the separate but equal doctrine of Plessy v. Ferguson in a trio of cases, the most famous of which is Sweatt v. Painter. The Justices, however, were not so bold as Truman; they simply struck down Texas's dual law school system without overturning Plessy. Two years later, when a series of cases led by Brown v. Board of Education came to the Supreme Court, the Truman Justice department again asked that Plessy be overruled. Two years later, in 1954, the Supreme Court finally agreed, striking down state segregation of public schools in Brown and segregation of public schools in the District of Columbia in the companion case of Bolling v. Sharpe.

Putting the prestige of the Justice Department and the Solicitor General's office behind ending Jim Crow was an important step in paving the way for Brown and Bolling. But probably the most important thing Truman did to make Brown happen was desegregating the Armed Forces by executive order in 1948. Most people don't realize how crucial this act was in shaping everything that happened in the next decade.

To see why, suppose that Truman had not been so courageous. Suppose he does not desegregate the Armed Forces, the war in Korea becomes a long hard slog, as before, and Brown and Bolling come before the Court in 1952, just as Eisenhower assumes the Presidency.

The first question the Justices will have to decide is whether overturning the separate but equal doctrine of Plessy v. Ferguson will have any consequences for federal segregation in other programs, in particular, the military. Bolling v. Sharpe said that the federal government couldn't segregate the D.C. schools. But the Court might well have thought twice about that result if they knew that the next case would concern military desegregation. That's because in general courts do not like to interfere with military decisionmaking and they generally like to defer to military judgments. Case in point is Korematsu, in which the Court upheld internment of Japanese aliens and Japanese-Americans, despite acknowledging that racial classifications were disfavored and subject to the most searching scrutiny.

The fear that ordering desegregation of the D.C. public schools in Bolling would quickly lead to a court challenge to desegregation of the military would put strong pressure on the Court not to order desegregation of the D.C. public schools. And if the D.C. schools can remain segregated, it looks quite bad to say that the schools in the South must desegregate. (This is, in fact, one reason why Bolling and Brown are decided at the same time. In Bolling Warren says it would be "unthinkable" to desegregate state schools and not the D.C. schools. But this logic cuts in both directions).

Thus, the problem of military segregation might have made the Court much more cautious, and tipped the scales the other way in Bolling and Brown. In the alternative, Chief Justice Warren might have gotten a majority to overrule Plessy, but faced dissents from Justices Jackson, Clark, and Reed, based on their fears of what this would mean for the military, especially given the United States's recent experience in Korea. (The one thing Warren wanted to avoid was a dissenting opinion in Brown, particularly from a Southerner like Reed. The strong threat of a dissent from one or more of these Justices might have made Warren and the other Justices think twice.).

Warren wouldn't have gotten much support elsewhere, either: The Joint Chiefs would have been opposed to desegregation, as they were when Truman was President, and there is no reason to think that Eisenhower, who thought Brown premature, would have gotten behind a decision that might have led to judicial supervision of the Armed Forces.

The conclusion seems inescapable: Without Truman taking the issue of desegregation of the military off the table in 1948, Brown is a very, very hard sell. On the other hand, because Truman set a precedent by desegregating the Armed Forces, he made it possible for the State Department to urge the Court to overrule Plessy a few years later, arguing, as it did, that Jim Crow had become an embarrassment that was hurting American foreign policy interests overseas. The United States was fighting a battle for the hearts and minds of the newly independent countries of the Third World. Jim Crow was the best propaganda weapon that the Soviet Union had. The "Cold War imperative" for Brown became much stronger once the Armed Forces had been desegregated and the South remained the one part of the country that still practiced Jim Crow.

Truman is widely acknowledged to be a great president for many reasons. But he does not get enough credit for his civil rights policies, which were among his most important achievements. It is true that some of these decisions also benefited him politically. But not all of them did, and many of them took enormous moral courage, the sort of moral courage one rarely finds these days in the White House. George W. Bush is supposed to have once told New Yorker writer Ken Auleta: "No President has ever done more for human rights than I have." That statement is laughable on its face. But the more one learns about Harry Truman, the more one has to conclude that he is one of the great defenders of human rights among American Presidents.



Saturday, May 29, 2004

The Method Formerly Known as Prints

JB

Jennifer Mnookin explains why it was possible for three professional FBI fingerprint experts to mistakenly insist that Oregon lawyer Brandon Mayfield's fingerprint matched a partial print found on a bag in Madrid that contained explosive detonators:

Fingerprinting, unlike DNA evidence, currently lacks any valid statistical foundation. This is gravely troubling. Even if we assume the unproven hypothesis that each fingerprint is unique when examined at a certain level of detail, the important question is how often two people might have fingerprints sufficiently similar that a competent examiner could believe they came from the same person. This problem is accentuated when analyzing a partial print, as those recovered from crime scenes frequently are. How often might one part of someone's fingerprint strongly resemble part of someone else's print? No good data on this question exist.

The growing size of computer fingerprint databases makes this issue still more acute. As a database grows in size, the probability that a number of people will have strikingly similar prints also grows. Instead of ignoring the issue, forensic scientists need to investigate the frequencies of different ridge characteristics and develop difficult proficiency tests that examine the capability of fingerprint experts to accurately differentiate between superficially similar prints.

The FBI called the resemblance between Mayfield and Daoud's prints "remarkable." What is truly remarkable is that we simply do not know how often different people's prints may significantly resemble one another, or how good examiners are at distinguishing between such prints. DNA profiling provides what is called a "random match probability": the odds that the DNA of someone picked at random would match the profile in question. With fingerprinting, we entirely lack the information to provide an equivalent statistic. Yet without this knowledge we cannot accurately evaluate the evidentiary value of a supposed fingerprint match.



Friday, May 14, 2004

JB

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

JB

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

JB

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.


JB

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

JB

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.

JB

The World According to Inhofe

Shameless:

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.


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