Balkinization  

Tuesday, June 29, 2004

A Summary of Clarence Thomas' Recent Jurisprudence

JB

Putting together Justice Thomas' opinion in Hamdi with his vote in ACLU v. Ashcroft, we may infer that the President can throw any citizen in a military prison indefinitely, but that the citizen has the right to view pornography while there.

COPA sent back for retrial

JB

The Supreme Court upheld staying enforcement of COPA in Ashcroft v. ACLU but said that technological advances in filtering technology in the past five years may have resolved questions about whether less restrictive alternatives to COPA existed. Therefore a new trial was required.

The decision was 5-4, but the mix of justices was unusual: Kennedy was joined by Stevens, Souter, Thomas, and Ginsburg. Dissenting were O'Connor, Rehnquist, Scalia and Breyer.

This is not the best result the Court could have reached, but at least it keeps COPA from being enforced for now.

Scalia's dissent argues that the business of commercial pornography could be banned entirely, so there is no first amendment problem with COPA's lesser remedy of requring commercial websites to prevent access by minors. The premise, it seems to me, is absurd. Pornography does not lose its protected status because it is sold for profit. Scalia's argument that there is no first amendment protection for commercial entities that deliberately emphasize the salacious aspects of non obscene materials in order to appeal to a purient interest would, presumably, put a very large portion of the entertainment industry at risk of being put out of business.

Breyer's dissent discusses an important issue: Is there any first amendment problem with requiring adults who want to have access to pornography to use credit cards or obtain identification verification passwords? Breyer says this is only a modest cost.

I am not so sure. The effect of this solution is to require adults to obtain what is effectively a passport to travel through significant portions of the Internet, rather than the model that obtains in real space, where children are walled out from a small number of spaces that are open to adults. Creating this sort of passport model isn't necessarily a bad idea, but it's not clear that it has no serious effects in chilling speech and keeping away audiences.

In any case Breyer's dissent also raises the question of whether this decision is simply a temporizing move. It's quite possible that there were five votes to keep the stay, but not five votes to strike the statute down in its entirety. So the result is a compromise-- kick it back to the lower courts for another round. Breyer says: there's no more evidence you need to make a decision. So you should make one. If you think that there are no real less restrictive alternatives to this statute, or, put another way, that you don't want Congress legislating in this area, you should simply say so.


Monday, June 28, 2004

More on the detention cases

JB

Now that I've had a chance to read the Hamdi, Padilla, and Rasul cases, a few thoughts:

(1) Institutionally speaking, the Court is reasserting its authority in the face of an Administration that repeatedly said it was irrelevant. Generally speaking, this is not a good thing to tell courts. If you tell courts they have no jurisdiction to oversee Executive misbehavior, they will strain to find that they have the formal ability to do so, even if they don't exercise it in practice.

(2) The plurality opinion in Hamdi is clearly a pragmatic compromise. Justice O'Connor strains to find Congressional authorization for detaining enemy combatants (Justice Souter's concurrence explains why the argument is strained), so that she can then hold that some process is due-- essentially the right to be heard and present your own evidence to prove your own innocence and the right to rebut assertions from the state. Hamdi also has a right to an attorney on remand, but the plurality stops short of saying that enemy combatants always have a right to an attorney. In dicta, O'Connor states that the Executive may provide due process through military tribunals immediately after a person is captured, or, in a subsequent habeas proceedings in which the burden is on the accused to show that he or she is not an enemy combatant. This is unnecessary to the decision of the case but it's clearly advice to lower courts. The advice is worrisome precisely because it's unnecessary.

(3) The plurality dodges the question of whether the Executive can hold detainees forever. It insists that as prisoners of war detainees must be released when hostilities cease, and says that as of yet, the war in Afghanistan has not ended. What about the war against Al Qaeda? The Court has nothing to say on this point.

(4) Everyone on the Court categorically rejects the idea that the Congressional authorization for the use of force following 9/11 suspended the writ of habeas corpus.

(5) Props to my man Nino, who I regularly make fun of in these pages. Scalia, joined by Stevens, takes a hard line against the Administration. Either you treat U.S. citizens as criminal suspects, and charge them with the various federal crimes against aiding the enemy, or else you ask Congress to suspend the writ of habeas corpus and create special procedures. Scalia likes bright line rules, and so he draws them. His opinion does not apply to aliens, although if a resident alien is accused of aiding the enemy, Scalia does not fully explain why the Bill of Rights shouldn't apply. Scalia makes fun of the plurality's use of the balancing test of Matthews v. Eldridge-- a pension benefits case-- to devise its minimum rules of Due Process. His point is that the Supreme Court is doing what Congress should have done: had the guts to suspend the writ and impose its own rules. If Congress isn't willing to do that, the Court shouldn't step in and play "Mr. Fix-It" in Scalia's words. Although I don't agree with Scalia's either-or vision of how to deal with this problem, I have to say that he comes out strongly for protecting the rights of American citizens against Executive overreaching, something that he has been less eager to protect in other contexts.

(6) Clarence Thomas shows, once again, that he has no conception of what constitutional freedom means. Thomas swallows the Administration's strongest claims hook line and sinker. If the Executive determines that an American citizen is an enemy combatant, that is all the process that is due. Courts have nothing to say. This is an outrageous position for a Justice who purports to defend the American Constitution. Thomas's opinion shows how easily the theory of the "Unitary Executive" so much beloved by legal conservatives can be turned into a justification for authoritarianism. Because the Executive needs to be energetic, act in secrecy, and with dispatch, power to make decisions about war and foreign affairs must rest in a single hand. Because it must rest in a single hand, there can be no oversight by the judiciary. "Judicial interference in these domains destroys the purpose of vesting primary responsibility in a unitary Executive." That means that the Executive can simply round up whoever it likes, declare them an enemy combatant, and hold them indefinitely. Guaranteeing rights to be heard, present evidence, and consult with counsel will interfere with the ability of the Executive to interrogate abuse and torture detainees. Although Thomas is often praised for being independent-minded, when it comes to assertions of executive power-- and particularly executive power to mistreat prisoners-- he is the most syncophantic of the Justices. He has never seen an arbitrary executive action he didn't like. There is an authoritarian strain in his opinions that is truly frightening.

(7) The Padilla case turned on the question whether Padilla should bring suit in New York or in South Carolina. Now that he must bring suit in South Carolina, his constitutional claims will be subjected to the tender mercies of the Fourth Circuit. This leaves Hamdi as the major case in this area. And Hamdi is written to avoid addressing some of the most difficult issues. It was always clear that Padilla, who was arrested at O'Hare airport, presented a tougher case for the Administration than Hamdi.

(8) Rasul (the Guantanamo Case) expands habeas jurisdiction overseas on technical grounds. It does not reach any of the important constitutional issues.

(9) In essence, the Court has said in these cases: don't tell us that we are irrelevant. The flip side of that demand is that if the Administration now goes through the motions of justifying its decisions before a court, courts are much more likely to let it do what it likes. In that sense, the decisions in Hamdi and Rasul cannot be understood to be complete victories for civil liberties. But they are better than the alternatives.

Congratulations to Randy Barnett

JB

The Surpremes have agreed to hear the medical marijuana case, Raich v. Ashcroft. Randy has been representing the plaintiffs, who argue that Congress lacks power under the Commerce Clause to regulate certain private uses of medical marijuana (the patients grew it themselves or it was given to them for free). The case will test the scope of the Commerce Power after Lopez and Morrison.


UPDATE: Boy is my face red. I had forgotten that Randy won below in the 9th Circuit, so I'm sure he doesn't feel like being congratulated on the Court granting certiorari. But on the bright side, he'll be able to write a Supreme Court brief in one of the most important cases of next Term and maybe he'll even get to argue before the Justices.

Supreme Court Gives Access to Courts to Guantanamo Detainees

JB

MSNBC is reporting.

That's two for two.

What's the key principle in this case and Hamdi?

The President may detain people in order to protect national security. But it must afford courts the opportunity to decide whether the President's actions are lawful.

Say it with me now, people: RULE OF LAW

Flooding the zone

JB

The Bush Administration handed sovereignty over to the Iraqi government two days early, on the same day that the Supreme Court was about to announce whether it supported key aspects of the President's policies. By moving the handover forward, the Administration not only avoided security problems, it also upstaged the Supreme Court.

Conicidence? I think not. It's called flooding the zone, folks.

Hamdi can be held as illegal combatant but must have access to courts

JB

Justice O'Connor wrote the majority opinion. More details as they become available.

The Supreme Court upheld the President's power to detain unlawful combantants because Congress authorized it, but has upheld a basic right of access to courts to challenge the legality of detentions ordered by the President.

That's very good news.

The Padilla case has been sent back to the courts without a decision on the merits. That means that Hamdi is the key precedent.

Justice O'Connor wrote the plurality opinion, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. She held that Congress authorized the President to detain enemy combatants, including American citizens, but that citizens have the Due Process right to access to courts to test the legality of their detention. Justices Souter and Ginsburg concurred in the judgment, arguing that Hamdi's dentention was illegal, but specifically agreeing with the plurality (in order to create a majority holding for the case)that Hamdi had a Due Process right of access to the courts to challenge the legality of his detention. [from CNN]:

The administration had fought any suggestion that Hamdi or another U.S.-born terrorism suspect could go to court, saying that such a legal fight posed a threat to the president's power to wage war as he sees fit.

"We have no reason to doubt that courts, faced with these sensitive matters, will pay proper heed both to the matters of national security that might arise in an individual case and to the constitutional limitations safeguarding essential liberties that remain vibrant even in times of security concerns," Justice Sandra Day O'Connor wrote for the court.

O'Connor said that Hamdi "unquestionably has the right to access to counsel." . . .

O'Connor said the court has "made clear that a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

She was joined by Chief Justice William H. Rehnquist and Justice Stephen Breyer in her view that Congress had authorized detentions such as Hamdi's in what she called very limited circumstances,

Congress voted shortly after the Sept. 11 attacks to give the president significant authority to pursue terrorists, but Hamdi's lawyers said that authority did not extend to the indefinite detention of an American citizen without charges or trial.

Two other justices, David H. Souter and Ruth Bader Ginsburg, would have gone further and declared Hamdi's detention improper. Still, they joined O'Connor and the others to say that Hamdi, and by extension others who may be in his position, are entitled to their day in court.



UPDATE: More on the Hamdi and Padilla cases here.

The Myth of Foreign Policy Competence

JB

During the 2000 election, it was widely agreed that George W. Bush knew next to nothing about foreign policy. Not to worry, his supporters said. We'll surround him with tested hands like Dick Cheney who will advise him.

This article by the Washington Post shows how wrong they were. Key elements of Bush's foreign policy have failed and have been effectively repudiated by the Administration, while the President continues to insist in public that he has made no mistakes at all:

The occupation of Iraq has increasingly undermined the core tenets of President Bush's foreign policy, according to a wide range of Republican and Democratic analysts and U.S. officials.

In going to war 15 months ago, the president's Iraq policy rested on four broad principles: The United States should act preemptively to prevent strikes on U.S. targets. Washington should be willing to act unilaterally, alone or with a select coalition, when the United Nations or allies balk. Iraq was the next cornerstone in the global war on terrorism. And Baghdad's transformation into a new democracy would spark regionwide change.

But these central planks of Bush doctrine have been tainted by spiraling violence, limited reconstruction, failure to find weapons of mass destruction or prove Iraq's ties to al Qaeda, and mounting Arab disillusionment with U.S. leadership.

"Of the four principles, three have failed, and the fourth -- democracy promotion -- is hanging by a sliver," said Geoffrey Kemp, a National Security Council staff member in the Reagan administration and now director of regional strategic programs at the Nixon Center.

The president has "walked away from unilateralism. We're not going to do another preemptive strike anytime soon, certainly not in Iran or North Korea. And it looks like terrorism is getting worse, not better, especially in critical countries like Saudi Arabia," Kemp said.

As a result, Bush doctrine could become the biggest casualty of U.S. intervention in Iraq, which is entering a new phase this week as the United States prepares to hand over power to the new Iraqi government.

Setbacks in Iraq have had a visible impact on policy, forcing shifts or reassessments. The United States has returned to the United Nations to solve its political problems in Iraq. It has appealed to NATO for help on security. It is also relying on diplomacy, with allies, to deal with every other hot spot.

"There's already been a retreat from the radicalism in Bush administration foreign policy," said Walter Russell Mead, a Council on Foreign Relations senior fellow. "You have a feeling that even Bush isn't saying, 'Hey, that was great. Let's do it again.' "

Some analysts, including Republicans, suggest that another casualty of Iraq is the neoconservative approach that inspired a zealous agenda to tackle security threats in the Middle East and transform the region politically.

"Neoconservatism has been replaced by neorealism, even within the Bush White House," Kemp said. "The best evidence is the administration's extraordinary recent reliance on [U.N. Secretary General] Kofi Annan and [U.N. envoy] Lakhdar Brahimi. The neoconservatives are clearly much less credible than they were a year ago."


In their quest to assert American hegemony, the members of Bush Administration have undermined American hegemony, weakened our country's strategic position and made us a figure of hatred and distrust. If you had set out to destroy the advantages America enjoyned as the sole remaining superpower following the Cold War, you couldn't have done better than follow the path that President Bush chose.

The moral of the story: Put a fool in charge of foreign policy and what you'll get is a foolish foreign policy.



Sunday, June 27, 2004

Torture Memos as CYA

JB

Michael Froomkin makes an important point:
[T]he Bybee memo was not written in a vacuum, nor (perhaps) due to some order from on high motivated by a desire to squeeze more info from detainees who were not coughing up the locations of weapons of mass destruction. No, what the NYT suggests is that the memo was written after the CIA had already done something — presumably excessive — to one of the detainees. Thus, it seems likely the White House was scrambling to find some legal cover for abuses that had already happened.

And, of course, once the memo was written, it offered legal cover for future activities.

Now go back and reconsider this exchange in front of the Supreme Court, two years later, on April 28th, 2004 in this light:

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."

The Hamdi case will be coming down soon, possibly tomorrow.

Official Website Compares Bush Critics to Hitler

JB

The Bush-Cheney official website is now running an ad that suggests that Al Gore, Howard Dean, Michael Moore, and Dick Gephardt (yes, Dick Gephardt) are wild eyed lunatics like Adolf Hitler.

The spot juxtaposes images of these men criticizing Bush with clips of Hitler taken from an ad that appeared briefly on the Moveon.org site. That ad was part of a contest among the general public, and when people complained about the entry, Moveon.org took it off the site.

The official line is that the Bush-Cheney ad is just showing what different critics of Bush are willing to say about the President. The real point of the ad, however, is to weave angry speeches by Gore, Dean, Moore, Gephardt (and finally, John Kerry) with angry speeches by Hitler.

Note that this is not some random person off the street comparing Bush critics to Hitler. It's the official website of the President.

Bush Praises Turkey During Visit

JB

Which is the best subheadline for this headline I just saw on the Washington Post website?


(1) President likes chicken too.
(2) Cheney is good man, Bush explains
(3) "Glitter" is best movie I've seen, says Bush


The Work of Isolated Individuals

JB

What do torture and the torture memos have in common? The Bush Administration says they were the work of a few isolated individuals. Then it turns out, not so much.

The Washington Post reports that the torture memo that the Bush Administration is falling all over itself to repudiate was no frolic and detour by crazed lunatics. It was vetted at the highest levels:

Although the White House repudiated the memo Tuesday as the work of a small group of lawyers at the Justice Department, administration officials now confirm it was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel's office and Vice President Cheney's office. . . .

A Justice Department official said Tuesday at a briefing that the office went "beyond what was asked for," but other lawyers and administration officials said the memo was approved by the department's criminal division and by the office of Attorney General John D. Ashcroft.

In addition, Timothy E. Flanigan -- then deputy White House counsel -- discussed a draft of the document with lawyers at the Office of Legal Counsel before it was finalized, the officials said. David S. Addington, Cheney's counsel, also weighed in with remarks during at least one meeting he held with Justice lawyers involved with writing the opinion. He was particularly concerned, sources said, that the opinion include a clear-cut section on the president's authority.


You just knew Cheney's people were behind the Commander-in-Chief section.

Michael Froomkin has more.


Saturday, June 26, 2004

A Good Thing Dick Cheney Wasn't On the Golden Globe Awards

JB

or the Howard Stern Show, or the FCC would have fined his ass. Wait, can I say that on this blog?

Legal Scholars Assess the Torture Memos

JB

Several legal academics, including Cass Sunstein and myself, are quoted in this New York Times article by Adam Liptak on the OLC and Defense Department torture memos. Cass, by nature a gentle soul, does not mince words here: "It's egregiously bad. It's very low level, it's very weak, embarrassingly weak, just short of reckless." John Yoo, who worked at the OLC when the memos were written, dismisses the criticisms, saying they were mostly "political rather than legal."

Beyond the simple incompetence of these memos, however, is their misunderstanding of the duties of Justice Department lawyers. The Justice Department does not represent the President. It represents the nation. The Justice Department, and particularly the OLC, is not supposed to tell the President how he can get away with whatever he wants to get away with. Rather, its job is to explain to the President how to ensure that the laws be faithfully executed, as the U.S. Constitution puts it. These memos fail that test. Indeed, they go out of their way to make questionable claims about the scope of the President's power, arguing at one point that far from having a duty to faithfully execute the laws, the President is not bound by them at all. These memos do not read as if the authors were acting as counsel for the nation. They read as if someone in the White House told them to write a memo that stretched the law as much as possible in order to conclude that the President can do whatever he wants.

These memos make bad legal arguments. But quite apart from their incompetence, they are also bad lawyering; they misunderstand the ethical role of the government lawyer.

The Clinton Presidencies and The New Coalition

JB

Two valuable posts from Mark Schmitt over at the Decembrist. The first explains that Clinton's Presidency from 1993 through 1994 is quite different from his presidency from 1995 on. The latter, and not the former, involved the famous Clintonian triangulation. Although Mark does not mention it, it is worth pointing out that after 1998 Clinton's tactics changed again. The Lewinsky scandal led him to seek support from Democratic liberals in order to stay alive. However, precisely because of the Lewinsky scandal, he did not in fact make many important domestic policy initiatives during this period, so the alliance with his party's liberal wing did not amount to much.

The second post is about how Kerry can govern if he defeats Bush in 2004:

In short, President Kerry will only be able to govern if he is able to split the Republican Party. The split has already opened thanks to the White House's ideology of total control and the embarrassment and chaos it has caused; Bush's defeat will open it much wider, freeing Republican moderates to acknowledge the insanity of the past three and a half years. But Kerry must complete the split, just as Reagan completed the split of the Democratic Party, and we must allow/encourage him to do it. Otherwise, we're doomed to watch him negotiate the terms of surrender of his presidency to a soulless cat-murderer.

This seems right; I would add another level of analysis. The tenor of Bush's presidency was set early on by the fact that his party controlled all the branches of government although it did not enjoy wide ranging popular support (the Congress was almost evenly divided and Bush lost the popular vote). This encouraged Bush to try to ram though legislation with only a very tiny majority. His Administration wanted to get what it could while it still controlled all the levers of power.

If Kerry wins in 2004, he will face a very different set of considerations. He will probably not control both houses of Congress. That means that he will have to form a working coalition of Democrats and moderate Republicans to push for any of his legislative priorities. Knowing that you must form a bipartisan coalition gives an Administration a very different tone and style than knowing that you don't have to pay very much attention to your political opponents. The alignment of political forces will thus push Kerry toward conciliation and compromise. The frustration of the past four years and a widely shared belief that partisan demonization has gone too far will help him achieve this goal. But everything will not be sweetness and light. Bush partisans will be quite bitter about their loss. If Kerry wants to govern effectively and set a new tone, he will have to reach out to moderate Republicans very early and establish that they matter. That will give people incentives to believe that cooperation is better than divisiveness and confrontation.

On Hating the President

Cass Sunstein

Why did so many people hate Clinton, and why do so many people hate Bush? Here are the rudiments of a tentative general account: 1) The executive branch, in any year or even any month, makes a huge number of decisions. Just as a statistical matter, some of these will inevitably show some kind of major procedural or substantive problem (call these "potential scandals"). The decisions might turn out to be badly wrong. Or there will be at least the perception and possibly the reality of some kind of self-dealing or corruption. Even if a presidential administration shows unimpeachable integrity 99.9% of the time, the 0.1% will produce large numbers; and in the mix will be clear errors of judgment. 2) Countless people have a strong incentive, material or otherwise, to seek out and make loud noise about the potential scandals, and to portray them as much worse than they are. These include political adversaries or members of the news media. If 2) is put together with 1), it's inevitable that a lot of attention will be given to plausible reasons to hate a president. 3) Information spreads quickly, especially among like-minded people; and when like-minded people talk with or listen mostly to one another, they go to extremes. (There's evidence for this in countless domains, including the decisions of federal judges; in many areas of law, Republican appointees get super-conservative when sitting with fellow Republican appointees, and Democratic appointees get super-liberal when sitting only with fellow Democratic appointees.)

The result? A short-hand phrase (eg, the Patriot Act) or even a word or a name (Whitewater, Haliburton, Ashcroft) will soon trigger a set of intense negative associations among basically sensible people, even when the intensity of the negative reaction is quite senseless.

This isn't to deny that distinctive predispositions and interesting mechanisms lie behind, eg, hatred of Clinton or hatred of Bush, and it doesn't take a stand on whether intense negative reactions are justified. The claim is only that because of 1, 2, and 3, hatred of the President, among large numbers of citizens, is inevitable, at least after a nontrivial period of time (eg two years).

David Brooks on the state of liberal public intellectuals

JB

David Brooks thinks American liberals have lost it because Michael Moore is no Jean Paul Sartre. That's a bit like saying that American conservatives are intellectually bankrupt because Rush Limbaugh is no Edmund Burke. Come to think of it, he may be on to something.....

Implicit in Brooks' objection to Michael Moore is that we expect more from liberals-- they are supposed to be even tempered, judicious, able to see the other person's point of view and not given to exaggeration or hyperbole. Indeed, many liberals like to cultivate these traits, because they think that they are necessary to sound public deliberation.

But Brooks does not demand the same of conservatives. I've seen no broadsides from Brooks delivered against Ann Coulter for calling liberals traitors, or against Sean Hannity for his wish that America be delivered from evil, which he helpfully defines as "Terrorism, Despotism, and Liberalism." Excuse me David, but have you seen the trash being poured out in generous heaps by the most popular right wing pundits? Perhaps you should be more focused on preserving the integrity of the public face of American conservatism. No movement should be particularly proud of having Rush Limbaugh, Michael Savage and Bill O'Reilly among its most recognizable spokesmen.



Thursday, June 24, 2004

Why Did The Right Hate Clinton?

JB

Max Boot wonders:

The mystery of Clinton is that he was an essentially conservative president -- perhaps the most conservative Democrat in the White House since Grover Cleveland -- and yet he was loathed by conservatives. So much so that he was accused of all sorts of awful things he didn't actually do, from murdering Vince Foster to being in cahoots with the Chinese. I don't blame Clinton for getting a tad upset about the nutty accusations tossed his way and for not being able to figure out what a good ole boy with a saxophone and a smile had ever done to justify such venom.

Max thinks the answer is character. Kevin Drum thinks it's the culture wars. I have a different theory. Clinton was hated not simply because of who he was but because of the structure of political forces that brought him into power and defined his presidency.

Boot points out that "Clinton's presidency ("The era of big government is over!") essentially ratified the huge transformations wrought by Ronald Reagan." Put more correctly, Clinton understood that the Democrats could get back in the White House if they appealed to parts of the coalition of voters that had elected Ronald Reagan and George H.W. Bush. And so he set out consciously to do that. He fractured the existing winning coalition by producing a combination of economic policies designed to appeal to middle class voters while accepting certain elements of the values agenda that had played so well for the Republicans. He focused on issues like crime and welfare, emphasized his populist roots and religious sensibilities, while at the same time maintaining strong ties to secularism, feminism, and civil rights. In this way Clinton threatened to create a new winning coalition by borrowing the rhetoric of his political opponents and becoming a more "Republican version" of a Democrat.

You might think that Republicans would welcome such a candidate. Well, many independent and moderate republican voters did. But Republican politicians, and the conservative base of the party did not. They believed that Clinton was a Democrat who stole their ideas and rhetoric, and was secretly committed to promoting a liberal secular agenda. He was trying to put one over on the American public. Moreover, Clinton gained the White House at a time when Republicans believed that theirs was the "natural party of government," to use a phrase sometimes associated with the British Conservative Party. They had put together an effective coalition of interests that had dominated Presidential politics for some time. Who was this upstart to keep them out of the White House? So for many members of the Republican base, Clinton was easy to hate. He was a liberal wolf in sheep's clothing and he had no right to take the Presidency from the party it rightfully belonged to.

Clinton is not the first President of this type. In fact, there have been at least three in our nation's history: They are Clinton, Grover Cleveland, and Richard Nixon. Cleveland co-opted economic elements from the Republican Party and became the first Democrat to win the White House since the Civil War, taking the Presidency from the natural party of government since Reconstruction, that is, the Republicans. Cleveland actually won the popluar vote three times, but was denied the presidency the second time because he lost the electoral college. Nixon also co-opted wide swaths of the Democratic liberal domestic agenda while forming a new coalition that split apart traditional Democratic constituencies. Just as conservatives did not trust Clinton, liberals did not trust what was then called the "New" Nixon. He was a conservative wolf in sheep's clothing, who had stolen the White House from the party that had dominated it since 1932. (I'll get to Eisenhower in a moment, don't worry).

When a President does what Clinton, Nixon, or Cleveland does, break apart an older winning political coalition by coopting elements of that coalition's message, party regulars on the other side cannot easily fight back on the issues. That is because the President is by nature a straddler-- he is skimming off the most popular elements of the party's platform and leaving them with the less popular elements. So there is only one thing to do: stoke up public resentment against the co-opting or straddling President by undermining his legitimacy and destroying trust and confidence in his ability to govern.

The way this is done is through scandal.

What Nixon, Clinton, and Cleveland all have in common is that all three presidencies were littered with either scandals or attempts at proving scandals. There are other scandal plagued presidencies, to be sure, but my point is that the threat to coalitions produced by a co-opting President is likely to lead to an Administration where his political foes try to take him down through scandals and assaults on his character (Tricky Dick, Slick Willie, "Ma, Ma, Where's My Pa" Cleveland) rather than through a direct confrontation on the issues. Such Presidents tend to generate enormous hatred from party regulars on the other side, precisely because they believe that he is illegitimate and morally bankrupt.

Let me close by considering how I think this analysis applies to two other presidents who might be seen as co-opters. One is Dwight Eisenhower. The other is George W. Bush.

Eisenhower acquiesced in the basic contours of the New Deal and provided a moderate Republicanism that co-opted many elements of Roosevelt's and Truman's policies. But he was not subject to the same degree of scandal mongering that greeted Richard Nixon. Why? One reason is that he arrived in the White House with an enormous reservoir of trust. He was a war hero and most Democrats thought he was an admirable fellow: indeed, many of them had wanted him to run as a Democrat.

Which brings us, at last, to George W. Bush. Does Bush fit the pattern of co-opting Presidents like Clinton, Nixon, and Cleveland? To a certain degree he does, although the circumstances of his Presidency different in many respects. He is more a follower and reviver of Reganism than a co-opter of Clintonism. Nevertheless, let's consider the factors in common: First, Bush is to some degree a co-opter of the rhetoric if not the exact policies of his political opponents-- that was the point of "compassionate conservatism." Second, in the eyes of many Democrats, he lacked legitimacy, due to the shenanigans in Florida and the Supreme Court's decision in Bush v. Gore. And many Democrats hated the fact that Bush gained enormous political legitimacy from 9-11, i.e., that he was given legitimacy not by the American electorate but by Osama bin Ladin. Note that this meshes with the co-optation in a unique way: For some time after 9-11, there was very little space between the views of Democrats and the President on foreign policy. Third, once in office, Bush quickly showed that he was a wolf in sheep's clothing-- compassionate conservatism was largely a matter of rhetoric; the reality was a strongly pro-business agenda.

All of these reasons suggest that George W. Bush's Presidency has structural features that are similar to those of Clinton's, Nixon's and Cleveland's Presidencies. That means that we should expect that his political opponents will hate him quite fiercely, and that they will attack him through scandals and attacks on his character.
Whether those attacks succeed (or, equally important, whether they should succeed) in any particular case depends on a whole host of factors, including, among others, whether the President really does have serious character flaws and whether he really does have something to hide. We should not assume that because all of these Presidents were hated that they were equally flawed and equally culpable. Rather, I'm trying to get a handle on the sturctural features of American politics that would produce this level of hatred and these sorts of attacks.

Torture and the Iraq Constitution

Cass Sunstein

The interim Constitution of Iraq has played surprisingly little role in public debates involving the Department of Justice, the United States, and torture. The infamous and reckless Bybee memorandum, by the Office of Legal Counsel, ventured two key conclusions. The first, and more plausible, is that American officials have the legal authority to engage in “cruel, inhuman, or degrading” treatment of prisoners, if that treatment falls short of torture. The second, and far less plausible, is that as Commander-in-Chief, the President might well have the authority to torture suspected terrorists, and that Congress might well lack the constitutional power to infringe on the President’s authority to engage in torture.

Let's compare the interim Constitution of Iraq. As for the second issue, that document is unambiguous: Article 15(j) announces, flatly, that “torture in all its forms, physical or mental, shall be prohibited under all circumstances.” (The last three words are of course the crucial ones.) But Iraq's interim Constitution goes much further. While OLC says that "cruel, inhuman, or degrading" acts are permissible, Article 15(j) of the Constitution of Iraq imposes an absolute ban on “cruel, inhuman, or degrading treatment,” even if that treatment falls short of torture. The most ironic point is that the OLC uses the same words ("cruel, inhuman, or degrading") as the Constitution of Iraq, with OLC approving the very treament that the Iraqi Constitution bans.




Wednesday, June 23, 2004

Guest Blogger: Sandy Levinson

JB

I'm delighted to announce that my dear friend and co-author, Sanford Levinson, who is, among his many other accomplishments, one of the most distinguished members of the American legal academy, will be guest blogging on Balkinization. Sandy is the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at The University of Texas School of Law, as well as a member of the Political Science Department at U.T. His books include Constitutional Faith (1987), Written in Stone (1998), and Wrestling with Diversity (2003), and he is currently at work on a book on torture for Oxford University Press.

The Administration backtracks on torture

Sandy Levinson

The news conference yesterday with Alberto Gonzales--incidentally, does anyone seriously think his prospects for nomination to the Supreme Court have not been set back by recent disclosures?--and others was extraordinary in a number of ways. But the press wasn't knowledgeable enough to interrogate Gonzales and the others as fully as they should have. Thus, much was made of the premise that the United States simply doesn't "torture," though, of course, the US adopts a definition of "torture" that is considerably more interrogator-friendly, shall we say, than that set out in the United Nations Convention. As a matter of fact, several of the reporters asked some fairly good questions about what exactly the US means by "torture," though Gonzales was evasive in his answer. More seriously, none of the reporters asked about the American practices of "rendering" people in our custody to other countries where torture is almost certain to take place. Going back to the end of 2002, a number of articles in the mainstream press, including a stunning article in a January 2003 issue of The Economist, have alluded to the practice. It is crystal clear that it violates the UN convention and calls into question the Administration's insistence that it has not in effect accepted torture as a policy. Gonzales might have said, of course, citing the Senate language, that it doesn't violate US policy to "render" prisoners unless we believe that it is "likely" that torture will occur and, of course, we choose to believe assurances by Jordan, Egypt, and Morocco, among others, that torture won't occur. But, of course, there is no reason whatsoever to believe that we're even asking for such assurances or that anyone should believe them.

What is also Orwellian is the insistence that not only does the US not "torture" (given the OLC interpretation of the Senate definition, of course), but that we treat prisoner's "humanely." This is true if and only if one defines "humane treatment" as "not being tortured." But part of the OLC argument, which is altogether correct, is that "merely" "inhuman and degrading" treatment does not necessarily rise to the level of "torture," even under the UN definition. One hopes that reporters will have further opportunities to ask exactly what the United States means by "humane" treatment. It would be especially useful to get such answers from the ostensible person in charge, i.e., George W. Bush, who seems to have played no role in the vigorous debates that Gonzales describes.



Iraq and FDR

Cass Sunstein

I think that Jack Balkin, of this very blog, was the first to give public attention to a most curious provision of Iraq's interim Constitution. Article 14 provides, "The individual has the right to security, education, health care, and social security. The Iraqi State and its governmental units, including the federal government, the regions, governorates, municipalities, and local administrations, within the limits of their resources and with due regard to other vital needs, shall strive to provide prosperity and employment opportunities to the people."

Where did this provision come from? It's certainly jarring to American ears. But in terms of the history of constitutional thinking, it is in a direct line with a largely forgotten episode in American history: Franklin Delano Roosevelt's call for a Second Bill of Rights in 1944. When America's national security was last threatened, its wheelchair-bound president attempted a large-scale redefintion of the country's commitments. He contended that we had come to accept an economic Bill of Rights that would include:

The right to a useful and remunerative job in the industries or shops or farms or mines of the Nation;

The right to earn enough to provide adequate food and clothing and recreation;

The right of every farmer to raise and sell his products at a return which will give him and his family a decent living;

The right of every businessman, large and small, to trade in an atmosphere of freedom from unfair competition and domination by monopolies at home or abroad;


The right of every family to a decent home;


The right to adequate medical care and the opportunity to achieve and enjoy good health;

The right to adequate protection from the economic fears of old age, sickness, accident, and unemployment;

The right to a good education.

FDR unified these rights under the general rubric of "security," which, he argued, was the overriding goal of the post-war era.

Though pretty much forgotten at home, FDR's Second Bill has had a huge international influence. It helped to form the basis of the Universal Declaration of Human Rights, and from that point the contents of numerous constitutions throughout the globe -- including, now, the interim Constitution of Iraq.

Imperial Presidency Alive and Well

JB

The newspaper accounts have not been covering this point, but nothing in the documents released yesterday repudiates the theory of the Commander-in-Chief power at the heart of the OLC torture memo. Indeed, the President's claim that he had the authority as Commander-in-Chief to "suspend" the Geneva Conventions but chose not to in certain cases, and reserved the right to suspend these obligations in the future is entirely consistent with this view.

The position Bush and other members of the Administration have been taking is that although the President may do what he likes as Commander-in-Chief, he insists that we be humane, except, of course, where national security dictates otherwise. Note that this is no concession at all: The Administration still has the power to do what it likes whenever it likes but insists that it won't use that power wrongfully.

In other words, this is just another version of "trust us."


White House Backs Away from Torture Memo

JB

Today the White House disowned the legal advice of its top people, the Washington Post reports:

President Bush's aides yesterday disavowed an internal Justice Department opinion that torturing terrorism suspects might be legally defensible, saying it had created the false impression that the government was claiming authority to use interrogation techniques barred by international law.

Responding to pressure from Congress and outrage around the world, officials at the White House and the Justice Department derided the August 2002 legal memo on aggressive interrogation tactics, calling parts of it overbroad and irrelevant and saying it would be rewritten.

In a highly unusual repudiation of its department's own work, a senior Justice official and two other high-ranking lawyers said that all legal advice rendered by the department's Office of Legal Counsel on the subject of interrogations will be reviewed.

As part of a public relations offensive, the administration also declassified and released hundreds of pages of internal documents that it said demonstrated that Bush had never authorized torture against detainees from the wars in Afghanistan and Iraq. In doing so, the administration revealed details of the interrogation tactics being used on prisoners, an extraordinary disclosure for an administration that has argued that the release of such information would help the enemy.


However, the Post explains, the Administration still hasn't come clean about all of its interrogation practices:
None of the documents provided by the White House governed practices at Abu Ghraib and other military prisons in Iraq, although some of the ideas approved at least temporarily -- such as stripping prisoners -- would be mirrored in the graphic photos that drew international condemnation and heavy scrutiny of U.S. detention practices. . . .

The documents that were released and the White House briefing focused on military interrogations and left many questions unanswered. Gonzales refused to comment on techniques used by the CIA, beyond saying that they "are lawful and do not constitute torture." He also would not discuss the president's involvement in the deliberations.


And, in a particularly remarkable maneuver, the White House Counsel plans to repudiate himself.
At issue was an Aug. 1, 2002, memo from the Justice Department's Office of Legal Counsel to Gonzales. A Justice Department official said yesterday that the administration planned to scrap a provision in it opining that interrogators who torture al Qaeda or Taliban captives could be exempt from prosecution under the president's powers as commander in chief. "I don't believe it was necessary," the official said. "The president never asked us to overrule" laws barring torture, he said. Bush has not authorized any interrogations that would employ methods outside the law, he said.

Gonzales said that memo and a related Pentagon memo had been meant to "explore the limits of the legal landscape," and to his knowledge had "never made it to the hands of soldiers in the field, nor to the president." He acknowledged that some of the conclusions were "controversial" and "subject to misinterpretation."


All of this begs the most important question: Why would the White House Counsel have requested such a memo in the first place? Generally speaking, when a superior asks a subordinate to do legal work, there is usually a back and forth about what questions are to be asked and what conclusions the memo is going to reach. That is especially the case when, as in the Bybee memo, the result is a finished product. To say that this memo was simply dropped on Gonzales' lap is ridiculous. Rather, it is more likely that Gonzales, and Bybee, and the rest of the team went over the memo with some care.

The question I have for the White House is, why isn't Gonzales resigning over this? And why hasn't the White House strongly repudiated Bybee, who now sits on the 9th Circuit Court of Appeals? The reason seems clear enough: This wasn't a frolic and detour; Gonzales and Bybee were doing exactly what was asked of them.



Tuesday, June 22, 2004

Guest Blogger: Cass Sunstein

JB

I've invited University of Chicago law professor Cass Sunstein to guest blog on Balkinization. He'll be putting up a post in the next couple of days.

Cass is the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at the University of Chicago's Law School, and also has an appointment in the Political Science department. I consider him the most important legal scholar of my generation. There are few people I can think of who have made more important contributions to legal scholarship in such a wide number of different subjects. He's also an old hand at the op-ed form, having written for all the major newspapers as well being a regular contributor to the New Republic. His latest book, which is coming out this week from Basic Books, is called The Second Bill of Rights. I'm delighted to have him aboard.


The Election and the Constitution

JB

Jonathan Chait thinks the 2004 election isn't very important. Matthew Yglesias disagrees, pointing out that the election will decide, at the very least, whether Bush's tax cuts become permanent, and which team will have to deal with the many exigencies that await us.

I think there is another reason why the election of 2004 is important. It concerns the American Constitution.

The Bush Administration has promoted a highly controversial constitutional vision of the Presidency. It seeks to push the envelope of presidential power while preventing oversight by the Judicial and Legislative branches of government. This vision of the Presidency is organized around the notion that the Commander-in-Chief can do pretty much whatever he likes in time of emergency, and what constitutes an emergency is determined by the Commander-in-Chief. It is the constitutional equivalent of Bush's repeated declaration that he is a War President and his is a War Presidency, that 9-11 "changed everything" and that the President must be free to do whatever he can to protect the Homeland.

In the past three years, the Bush Administration has reinterpreted the Presidency, and hence the constitutional system of checks and balances, in the image of an all-powerful Commander-in-Chief. In its most extreme form, it produces the logic of the OLC torture memo, which asserts that Congress may not interfere in any way with the President-as-Commander-in-Chief, and that all laws and international obligations that might interfere with his decisions as Commander-in-Chief must be construed not to apply to him. This view of Presidential Caesarism (for that is what it is), is accompanied by an obsessive concern for secrecy and avoiding all forms of transparency and accountability. Although this Administration's disdain for accountability and transparency has been defended most recently in terms of the Commander-in-Chief Power, this trait emerged long before September 11th; it was at the heart of Vice President Cheney's refusal to reveal the members of his Energy Task Force, and President Bush's decision to withhold access to presidential papers.

Make no mistake: The Administration's vision of the Presidency is a constitutional interpretation, and, more to the point, it is an interpretation that the Administration can make a lasting part of our Constitutional system if it is returned to office. Even if the Supreme Court stands up to the Bush Administration in the series of cases that will come down this week or next, the Courts need the support of Congress to really check the power of the Presidency, and the Republican-controlled Congress has been so far unable or unwilling to exercise any significant oversight over this Presidency. Indeed, the greatest oversight has come from the independent bipartisan 9/11 Commission, which the Administration (not surprisingly) opposed, and which Republican leaders in Congress tried to close down early.

If President Bush is reelected in 2004, there is no reason to think that we will not see an even more aggressive attempt to redefine the powers of the Presidency at the expense of accountability and transparency. The Republican leadership in Congress has had no stomach for challenging the President in any important issue of foreign policy, and many conservative intellectuals have been cheerleaders for an ever more powerful Executive and for the political glorification of a War Presidency. The Administration well understands this, and so it has attempted to govern, as much as possible, through the constitutional persona of Commander-in-Chief. It sees that the way to maintain and increase political power in the present moment is to play the War on Terrorism card repeatedly and without shame or scruple, and turn the Commander-in-Chief Clause into the single most important grant of power in the U.S. Constitution. As the OLC memo shows, in the constitutional vision of the Bush Administration, the constitutional power of the Commander-in-Chief clause is more important than the President's duty to take care that the laws be faithfully executed; it trumps the legislative power of Congress; it is even more important that the procedural protections of the Bill of Rights. The Constitution we are likely to inherit from a second Bush Administration will be a bit like the famous New Yorker cartoon of the New Yorker's vision of the World, with the Commander-in-Chief Clause dominating the page in powerful, large letters, and the rest of the Constitutional text shrinking away into tiny, barely readable prose.

Add to this the fact that, if elected, President Bush will be able to appoint one, and possibly two or three Justices to the Supreme Court, who will be all the more willing to allow the President to do as he likes. Even if, as I hope, the Supreme Court raps the Administration across the knuckles in the next few weeks, those decisions can easily be distinguished and undermined in the next series of cases decided by a Court stocked with conservative true believers. With all three branches of government sharing a common ideological vision, the Bush Administration will be able to solidify its Caesarist vision of the Presidency for years to come. That is a prospect that should worry any of the friends of liberty.


UPDATE: Ernie Miller shows us what the new Constitution will look like.



Monday, June 21, 2004

Experimenting With Comments

JB

As faithful readers of this blog know, I've not had a comments section. But the latest version of Blogger allows you to have them, and I'd like to try them for the next few weeks to see how they work and whether readers like having them. Lots of people have been kind enough to send e-mails with their reactions to posts. Now they can publish comments instead. Have fun and play nice.



Misleaders Who Mislead

JB

In both senses of the word. The Philadelphia Inquirer takes the President to the woodshed (link via a proud Philadelphian, Atrios):

A poll of Americans taken in March of this year found that 57 percent of those polled believed that Iraq under Saddam Hussein substantially supported al-Qaeda or was directly involved in the Sept. 11 attacks.

Where did they get that misguided idea? Why, it was from their president, their vice president, their defense secretary, their national security adviser and other key players in the war on terror, of course.

Through assertion, implication and innuendo, the Bush administration - backed by an amen chorus of talk-show babblers and oped writers who filled in the blanks that White House rhetoric artfully left - has labored to plant the notion that invading Iraq was a logical, urgent response to Sept. 11.

What other impressions did the Bush team work to insinuate into public opinion, before and after its preemptive strike at Hussein?

That Iraq had a robust weapons program and was ready and willing to hand off biological or chemical weapons to a terrorist group; and that it would soon have a nuclear bomb.

That the bulk of the Iraqi people would greet Americans as liberators, with cheers and flowers.

That the Bush Doctrine of unilateral and preemptive military action against suspected enemies would make the United States safer and more respected.

That the Abu Ghraib prison abuses were a surprising, inexplicable outburst of evil by a small set of reservists from rural Pennsylvania, Maryland and West Virginia.

Let's review how those claims are faring in the court of reality:

Iraq and al-Qaeda:The Sept. 11 Commission, evenly split by party and led by a Republican, issued this conclusion last week: "We have no credible evidence that Iraq and al-Qaeda cooperated on attacks against the United States... . There is no convincing evidence that any government financially supported al-Qaeda before 11 September."

Weapons of mass destruction: As you may recall, the top American WMD hunter, David Kay, told Congress in January: "We were almost all wrong" about Hussein's WMD capability at the time of the March 2003 invasion. (That "we" includes this Editorial Board.)

The post-invasion hunt for WMD has produced two finds: one old artillery shell with the nerve agent sarin, another with mustard gas. The President has conceded that the main evidence he cited for Hussein's nuclear program was a forgery.

They love us, they really love us: The appallingly bloody insurgency in Iraq is now more than a year old. At least 70 people died in a wave of car bombings in Iraq last week. The Associated Press reported last week that a poll taken by the Coalition Provisional Authority found that 92 percent of Iraqis polled considered Americans "occupiers." A whopping 2 percent thought of us as "liberators."

The Bush Doctrine: A new group of 27 former military leaders and diplomats, including many Republicans appointed or promoted by President Bush's father, issued a blistering critique of the Bush foreign policy last week.

Calling his policies "overbearing," "insensitive" and "disdainful," the group said, as a result: "Our security has been weakened... . Never in the two and a quarter centuries of our history has the United States been so isolated among the nations, so broadly feared and distrusted."

Abu Ghraib: The administration's attempt to defuse the Abu Ghraib furor by blaming it all on a few low-level miscreants has triggered a flood of contrary evidence. It's clear now that the military and administration had been warned early and often, by multiple sources, about abuses. It's clear that dubious practices at prisons in Iraq and Afghanistan had been debated at high levels in the Pentagon and White House, and that military attorneys of high integrity had opposed efforts to treat the Geneva Conventions as a dead letter in the war on terror.

Ed Koch, when he was the voluble mayor of New York City, used to love to ask, "How'm I doin'?"

Given this sorry roster of fibs, flubs and fantasies, the Bush White House ought to be afraid to ask the American public the same question.

Instead, it has entered full-tilt spin mode. To counter the Sept. 11 panel's flat rejection of its implicit rationale for the Iraq invasion, the President, vice president and their surrogates have split semantic hairs like finicky medieval theologians.

It is true, as the President stressed last week, that he never flat-out said Saddam Hussein helped plan the Sept. 11 attacks.

It is also beside the point.

He said many other things, misleading things, to plant the idea that invading Iraq was a logical extension of - rather than a fatal distraction from - the effort to dismantle al-Qaeda.

In a nationally televised address in October 2002, just days before Congress passed a resolution authorizing force against Iraq, he said: "Iraq could decide on any given day to provide a biologial or chemical weapon to a terrorist group or individual terrorists. An alliance with terrorists could allow the Iraqi regime to attack America without leaving any fingerprints."

In the letter the President sent Congress explaining his decision to invade, he wrote: "The use of armed force against Iraq is consistent with the United States and other countries continuing to take the necessary actions against international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001."

What impression was he trying to leave there? We report, you decide.

Much of the evidence that administration officials cited to back up the claims in that speech and that letter have since been debunked or called into serious question. The Sept. 11 panel said flatly that the plot leader, Mohamed Atta, did not meet in Prague with an Iraqi agent, a favorite canard of Vice President Cheney. The CIA never confirmed Bush's repeated claim that Iraqis trained al-Qaeda members in bomb-making.

Yes, there were contacts between Osama bin Laden and ranking Iraqis a dozen or so years ago.

And the United States helped arm bin Laden to fight the Soviet Union in Afghanistan in the 1980s; the Sept. 11 hijackers were trained at American flight schools. Does that mean the U.S. government was in league with al-Qaeda? That, of course, is preposterous.

There may well have been, as the Weekly Standard magazine has reported, a "non-aggression pact" between Osama and Saddam. Those who harp on that never answer an obvious question: Why would close collaborators need to be prodded by a third party (Sudan) to agree to a "non-aggression" pact?

The evidence cited of Iraqi-Osama collaboration was always, at its strongest, tissue thin. Now, pieces of it appear to have been, like many of the wilder WMD claims, churned up by the Iraqi National Congress exile group to give the Bush White House the terrifying tales it needed to sell regime change (the INC's goal) to the American public.

Did the President and his top advisers lie to the American people? Or were they themselves deceived, by the INC, faulty intelligence and their own tendency to hear what they wanted to hear?

For now, those questions are unanswerable and essentially besides the point.

What matters is that Americans grasp a central point: The multipronged rationale behind this rushed invasion has been revealed as a house of cards.

(Deposing Hussein always was a legitimate strategic goal, given his history as an aggressor and butcher - but not in this reckless way, with these wrongful justifications.)

Consider the house of cards, and two other glaring facts.

First, preparation for the invasion's aftermath was tragically inept. That easily predictable failure has cost many Iraqis, Americans and others their lives.

Second, the prison abuses, which stem from poor planning for occupation and a bid to place U.S. behavior above international law, have lost America the moral high ground it rightfully occupied on Sept. 12, 2001.

Now, ask yourself, along with those 27 American diplomats and warriors: Have the last two years made America more secure, more respected?

The answer is obvious and appalling. The answer is no.


The moral of the story: when you mislead the nation about national security, you endanger national security.



Don't Ask, Don't Tell, Don't Win

JB

A study published today offers some results of a failed policy:

Even with concerns growing about waning numbers of military troops, 770 people were discharged for homosexuality last year under the military's "don't ask, don't tell" policy, a study to be released today shows.

The figure, however, is significantly lower than the record 1,227 discharges in 2001 — just before the attacks on Afghanistan and Iraq. Since "don't ask, don't tell" was adopted in 1994, nearly 10,000 military personnel have been discharged — including linguists, nuclear warfare experts and other key specialists. . . .

Aaron Belkin, author of the study, said: "For the first time, we can see how [the policy] has impacted every corner of the military and goes to the heart of the military readiness argument." . . .
The study found that the Army, the largest of the services, was responsible for about 41% of all discharges. The Army has invoked "stop-loss" authority to keep soldiers from retiring or otherwise leaving if they're deployed to Iraq or Afghanistan. . . .

Hundreds of those discharged had held key positions, including 90 nuclear power engineers, 150 rocket and missile specialists, and 49 nuclear, chemical and biological warfare specialists.

Of 88 linguists let go, at least were seven Arabic specialists.


In 1948 Harry Truman desegregated the Armed Forces over the objections of the Joint Chiefs of Staff, who thought it would damage morale. They were wrong. He was right. If anything, desegregating the military made it possible for lots of minorities to succeed in the Armed Forces. Just ask Colin Powell.

One of Bill Clinton's great failures was initially proposing the right of gays to serve openly in the military, and then backing off and folding his tent in the face of opposition by military officials and right-wing homophobes. As so often happened in his first few years in office, Clinton chose the wrong moment to push for reform and then let his opponents roll him. This combination of political ineptness and moral cowardice led to the Don't Ask Don't Tell Policy, which, while nominally better than the policy of complete exclusion it replaced, nevertheless left gay and lesbian servicemen in an untenable legal limbo.

Of course, once the Republicans-- the party of great moral clarity-- took the White House, there was no chance that this injustice would be righted anytime soon.

I miss Harry Truman. And that's not just because I'm from Missouri.


Moral Clarity, Part 2

JB

As I read this New York Times article about how certain conservative pundits are happily gearing up once again to decry the Clinton Presidency on the grounds that he was immoral and brought dishonor to the country, I began to wonder, what planet are they on? What vision of morality do they have? There is a moral crisis in the highest levels of government today, and they are paying no attention to it. Indeed, they are trying to direct our attention away from it.

Clinton was hardly a paragon of virtue: He had an affair and lied repeatedly about it, including under oath. But the Administration that followed him violated the civil liberties and the human rights of countless individuals, misled the public about its reasons for going to war, and justified abuse and torture. Clinton lied about his sexual behavior; this Administration has lied about far more serious matters. After the close of the Clinton Administration the world knew that American Presidents have affairs and lie about them under oath. After this Administration, we know that our country violates international human rights and enages in torture. Which is the more serious moral crisis for our nation? Which of these has brought greater dishonor on our land?:

"Yes, it's terrible to be caught," the Spectator wrote, "though rather delightful to commit moral error when no one is looking."

You mean, like getting caught in ordering attack dogs turned on prisoners, abusing them in violation of international law, or placing them in secret detention without informing the International Red Cross?
"I have found that the best way to get a rousing response from a crowd is to say that whatever disagreements you may have with President Bush on one issue or another, nobody can argue that he hasn't restored honor to the White house," said Gary L. Bauer, chairman of the organization American Values.

With all due respect, Mr. Bauer is on drugs.



A Quick Recap on Torture

JB

for those of you who were napping, from the Washington Post editorial page:

What might lead us to describe Mr. Rumsfeld or some other "senior civilian or military official" as "ordering or authorizing or permitting" torture or violation of international treaties and U.S. law? We could start with Mr. Rumsfeld's own admission during the same news conference that he had personally approved the detention of several prisoners in Iraq without registering them with the International Committee of the Red Cross. This creation of "ghost prisoners" was described by Maj. Gen. Antonio M. Taguba, who investigated abuses at Abu Ghraib prison, as "deceptive, contrary to Army doctrine and in violation of international law." Failure to promptly register detainees with the Red Cross is an unambiguous breach of the Fourth Geneva Convention; Mr. Rumsfeld said that he approved such action on several occasions, at the request of another senior official, CIA Director George J. Tenet.

Did senior officials order torture? We know of two relevant cases so far. One was Mr. Rumsfeld's December 2002 authorization of the use of techniques including hooding, nudity, stress positions, "fear of dogs" and physical contact with prisoners at the Guantanamo Bay base. A second was the distribution in September 2003 by the office of the top U.S. commander in Iraq, Lt. Gen. Ricardo S. Sanchez, of an interrogation policy that included these techniques as well as others, among them sleep and dietary manipulation. In both cases lawyers inside the military objected that the policies would lead to violations of international law, including the convention banning torture. Both were eventually modified, but not before they were used for the handling of prisoners. In the case of the Abu Ghraib prison, the policy apparently remained in effect for months.

Did senior officials "permit" torture? A Pentagon-led task force concluded in March 2003, with the support of the Justice Department, that the president was authorized to order torture as part of his war-making powers and that those who followed his orders could be immunized from punishment. Dictators who wish to justify torture, and those who would mistreat Americans, have no need to read our editorials: They can download from the Internet the 50-page legal brief issued by Mr. Rumsfeld's chief counsel.


Frankly, we're just waiting for the other shoe to drop. But this is pretty bad all by itself. It's worth considering whether there is already enough evidence to prosecute any top Bush Administration officials for war crimes, that is, if we had happened to be on the losing side of a conflict.

I'm also sure the Administration is breathing a sigh of relief that it repudiated the country's signature on the International Criminal Court on May 6, 2002. Hmmm, wasn't that just as the invasion was being planned?



Friday, June 18, 2004

Lie Big or Go Home

JB

The New York Times reports that President Bush, a day after reiterating his apparently baseless assertions of a working relationship between Iraq and Al Qaeda, argued that 9/11 attacks justified the Iraq war:

Today, as he stood before a sea of uniformed soldiers, Mr. Bush said over and over again that 9/11 was the reason the United States had to go to war in Iraq more than a year ago.

Why does the President keep doing this? Because he's got nothing left.

I realize that many people are outraged at the baldfaced nature of the President's and Vice President's increasingly blatant prevarications. But in the coming months no one should expect that the President will back away from his insinuations about Saddam/Al-Qaeda connections. Indeed, he will keep trying to connect the Iraq war to the 9/11 attacks in every way possible. He will simply continually redefine his terms to reach his desired conclusion. If the 9/11 Commission says there was no collaboration between Iraq and Al Qaeda, he will say that the Commission agreed that there were "contacts," even if those contacts occurred years ago and didn't lead to anything.

Of course, on this theory of "contacts," John Kerry would be in cahoots with George W. Bush, since they've had numerous contacts over the years. Indeed, we probably have greater reason to declare war on members of the Reagan Administration, who had numerous contacts with Saddam, some of which led to actual cooperation.

The President knows that his Presidency is going down the drain. Desperate times call for desperate measures. His Administration is already deeply morally compromised; why should he scruple to be honest at this point?



Thursday, June 17, 2004

Radioactive Judicial Candidates

JB

One of the little noted side effects of the Iraq war is that the Administration's eagerness to remove legal constraints from its interrogation of detainees in Iraq, Afghanistan, and Guantanamo Bay may well have torpedoed the chances of a number of Administration lawyers to become federal judges or Justices on the Supreme Court. These ambitious people may well have thought that doing the Administration's bidding would propel them into judicial office. In the case of Jay Bybee, who now sits on the 9th Circuit Court of appeals, the strategy worked. But that was before the Abu Ghraib scandals and the release of the OLC and Defense Department torture memos. Bush Administation lawyers who can be found to have participated in any way with these decisions are probably radioactive. Their judicial prospects are pretty much destroyed.

One of the most interesting examples is Alberto Gonzales, the President's counsel. People have long assumed that Gonzales, who would have been the first Latino nominee, was at the top of the list for any future Supreme Court appointment. But Gonzales' participation in memos attempting to escape the obligations of American and international law means that the Bush Administration would face a very lengthy confirmation battle if it tried to nominate him. Even if Bush wins a second term, the torture memo will give Democrats (and many Republicans) ample reason to oppose him.

There is a bit of poetic justice in this result. The torture memos, I firmly believe, show the corrupting influence of power, and the desire to advance one's political career by casting aside professional pride and telling one's superiors that they can do whatever they like, no matter how base or unjust it may be. In the Bush Administration, ambition and syncophancy have trimphed over professionalism, sound judgement and moral seriousness. The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so. Put another way, if the torture memos have made these very bright and talented lawyers radioactive, it couldn't have happened to a nicer bunch of guys.


Senate Violates Constitution, Tells President He May Not Torture

JB

From the Atlanta Journal Constitution:

The Senate, on a swift voice vote, approved an amendment to the defense authorization bill restating U.S. opposition to using torture and requiring the Pentagon to provide Congress with the guidelines it uses to ensure compliance with that principle.

This is in clear defiance of the profound and scholarly interpretation of our Constitution provided by the Office of Legal Counsel and the Defense Department. As the Defense Department memo puts it, "Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to detect troop movements on the field." "Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President."

Bad Senate. Very Bad! You should be ashamed of yourself for preventing our Commander-in-Chief from torturing people. Don't you have any respect for the Constitution? The President always knows best. Repeat after me: The President always knows best.




Wednesday, June 16, 2004

Lies and the Desperate Liars Who Tell Them

JB

Yesterday:

President Bush yesterday defended Vice President Dick Cheney's assertion this week that Saddam Hussein had longstanding ties with Al Qaeda, even as critics charged that the White House had no new proof of a connection.

At a news conference with Afghan president Hamid Karzai, Bush stood by his vice president, saying Hussein ''had ties to terrorist organizations," though he did not specifically mention Al Qaeda. . . .

Bush has previously said there was ''no evidence" linking Hussein to the Sept. 11, 2001, attacks, but he and other members of his administration have continued to say they believe there were ties between Hussein and Al Qaeda. In a speech to the conservative Madison Institute in Orlando on Monday, Cheney called Hussein ''a patron of terrorism" and said ''he had long established ties with Al Qaeda."

An April poll by the University of Maryland's Program on International Policy Attitudes found that 57 percent of Americans surveyed believed that Iraq was helping Al Qaeda before the war, including 20 percent who believed Iraq was linked to the Sept. 11 attacks.

However, a former top weapons inspector said yesterday he and other investigators have not found evidence of a Hussein-Al Qaeda link.

''At various times Al Qaeda people came through Baghdad and in some cases resided there," said David Kay, former head of the CIA's Iraq Survey Group, which searched for Iraqi weapons of mass destruction and links to terrorism. ''But we simply did not find any evidence of extensive links with Al Qaeda, or for that matter any real links at all."

''Cheney's speech is evidence-free," Kay said. ''It is an assertion, but doesn't say why we should be believe this now."

Cheney's comments Monday echoed a January interview with National Public Radio in which he said, ''There's overwhelming evidence there was a connection between Al Qaeda and the Iraqi government. I am very confident that there was an established relationship there."


Today:
WASHINGTON -- Bluntly contradicting the Bush administration, the commission investigating the Sept. 11 attacks reported Wednesday there was "no credible evidence" that Saddam Hussein helped al-Qaida target the United States. . . .

Bin Laden made overtures to Saddam for assistance, the commission said in the staff report, as he did with leaders in Sudan, Iran, Afghanistan and elsewhere as he sought to build an Islamic army.

While Saddam dispatched a senior Iraqi intelligence official to Sudan to meet with bin Laden in 1994, the commission said it had not turned up evidence of a "collaborative relationship." . . .

The Iraq connection long suggested by administration officials gained no currency in the report.

"Bin Laden is said to have requested space to establish training camps, as well as assistance in procuring weapons, but Iraq apparently never responded," the report said. "There have been reports that contacts between Iraq and al-Qaida also occurred" after bin Laden moved his operations to Afghanistan in 1996, "but they do not appear to have resulted in a collaborative relationship," it said.

"Two senior bin Laden associates have adamantly denied that any ties existed between al-Qaida and Iraq," the report said.


Will the issuance of the report cause Dick Cheney to change his tune? Don't bet on it. The President is still behind in the polls.



Tuesday, June 15, 2004

Karpinski: I Was Ordered to Treat Prisoners Like Dogs

JB

The BBC reports that General Janice Karpinski says her superiors ordered her to treat prisoners like dogs, just like they were treated at the Guantanamo Bay naval base.

The US commander at the centre of the Iraqi prisoner scandal says she was told to treat detainees like dogs.

Brig Gen Janis Karpinski told the BBC she was being made a "convenient scapegoat" for abuse ordered by others.

Top US commander for Iraq, Gen Ricardo Sanchez, should be asked what he knew about the abuse, she told BBC Radio 4's On The Ropes programme. . . .

Gen Karpinski said more damaging information was likely to emerge at those trials.

Gen Karpinski was in charge of the military police unit that ran Abu Ghraib and other prisons when the abuses were committed. She has been suspended but not charged. . . .

Gen Karpinski said military intelligence took over part of the Abu Ghraib jail to "Gitmoize" their interrogations - make them more like what was happening in the US detention camp at Guantanamo Bay, Cuba, which is nicknamed "Gitmo".

She said current Iraqi prisons chief Maj Gen Geoffrey Miller - who was in charge at Guantanamo Bay - visited her in Baghdad and said: "At Guantanamo Bay we learned that the prisoners have to earn every single thing that they have."

"He said they are like dogs and if you allow them to believe at any point that they are more than a dog then you've lost control of them."

Gen Karpinski repeated that she knew nothing of the humiliation and torture of Iraq prisoners that was going on inside Abu Ghraib - she was made a scapegoat.


Remember that Karpinski is trying to direct blame away from herself, so it is only natural that she would place blame on higher ups. Nevertheless, her charges are serious and need to be investigated thoroughly.



Monday, June 14, 2004

Thank God It's Standing

JB

Today the Supreme Court rejected Michael Newdow's challenge to public school teachers leading the Pledge of Allegiance using the words "under God." The Court held that Newdow did not have standing to raise the issue on behalf of his daughter. The Washington Post has the story. The text of the opinion is available here.

This is exactly what I hoped the Court would do. I wanted them to avoid a decision on the merits because the legal claims on the merits are very difficult indeed. Here are two discussions in February 2003 and March of this year. However, as I said in this post, despite the fact that the law is largely on his side "If Newdow wins his case, it will prove that atheism is wrong, because it's going to take a miracle." The Supreme Court today proved me right, holding against Newdow without badly mangling the law of the Establishment Clause. (The law of standing, on the other hand, is already so badly mangled that it's hard to see what more damage they could possibly do to it.)

Justice John Paul Stevens wrote the majority opinon. Chief Justice William Rehnquist, joined by Justices O'Connor and Thomas, also wrote to state their view that the recitation of the "under God" version of the Pledge does not violate the Constitution.

I'll have more when I get a chance to read the opinions.

UPDATE: Clarence Thomas uses the opportunity to argue that the Establishment Clause should not be held applicable to the States. Now we know what it would be like to have Judge Roy Moore on the Supreme Court.


It's Official: Bush Administration Received Legal Advice Permitting Torture

JB

Today the Washington Post published a copy of the Aug. 1, 2002, memorandum "Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A," from the Justice Department's Office of Legal Counsel for Alberto R. Gonzales, counsel to President Bush. The Memorandum was signed by Assistant Attorney General Jay S. Bybee, whom President Bush subsequently appointed to the 9th Circuit Court of Appeals.

The Gonzales/Bybee/OLC memo concludes that

under the circumstances of the current war against Al Qaeda and its allies, application of Section 2340A [a federal ban on torture] to interrogations undertaken persuant to the President's-Commander-in-Chief powers may be unconstitutional. Finally, even if an interrogation method might violate Section 2340A, necessity or self-defense could provide justifications that would eliminate any criminal liability.

Michael Froomkin analyzes the memo on his blog. The most important point is that this OLC memo is not a draft but official advice to the President. The OLC memo did not state that torture was wrong and that our government should not engage in it. Instead, it offered official advice about how to enagage in torture and escape criminal prosecution, or, in the alternative, to define prisoner abuse as not technically torture in order to escape criminal prosecution.

The Defense Department "torture memo" dated March 6, 2003 is from a Defense Department working group convened by Defense Secretary Donald H. Rumsfeld to come up with new interrogation guidelines for detainees at Guantanamo Bay, Cuba. It was first published by the Wall Street Journal. The torture memo is based on the Gonzalez/Bybee/OLC memo. The Gonzalez/Bybee/OLC memo is, if anything, even more damning to the Administration.

At hearings last week, Attorney General John Ashcroft refused to provide either memo to the Senate, while refusing to explain why or what legal privilege he was invoking to justify his actions.


Some Lawyers, Making a Difference

JB

As a tonic to the embarassment of the Administration's torture memo, here's a New York Times story about litigation by Navy Lt. Cmdrs. Charles Swift and Philip Sundel, who have been challenging the Administration's detention policies. They have been ably assisted by Georgetown Law Professor Neal Katyal, who I am proud to say is a former student of mine (Thanks to Ann Bartow for the pointer).


Dance to the Constitution

JB

You can download the text of the U.S. Constitution for your iPod, courtesy of the American Constitution Society. It's a great start, but it's only the beginning. Somebody needs to do a spoken version version on mp3s, with hip hop accompaniment. We the People, yo, check it out!

In the meantime, the Oyez Project has released mp3 files of famous Supreme Court arguments.



Sunday, June 13, 2004

A Few Bad Apples at the Top of the Barrel

JB

According to this report from the London Telegraph (link via Mark Kleiman), the recent torture scandals may well be due to the misguided efforts of a few individuals. Unfortunately, they appear to be top political appointees in the Bush Administration:

New evidence that the physical abuse of detainees in Iraq and at Guantanamo Bay was authorised at the top of the Bush administration will emerge in Washington this week, adding further to pressure on the White House.

The Telegraph understands that four confidential Red Cross documents implicating senior Pentagon civilians in the Abu Ghraib scandal have been passed to an American television network, which is preparing to make them public shortly.

According to lawyers familiar with the Red Cross reports, they will contradict previous testimony by senior Pentagon officials who have claimed that the abuse in the Abu Ghraib prison was an isolated incident.

"There are some extremely damaging documents around, which link senior figures to the abuses," said Scott Horton, the former chairman of the New York Bar Association, who has been advising Pentagon lawyers unhappy at the administration's approach. "The biggest bombs in this case have yet to be dropped."

A string of leaked government memos over the past few days has revealed that President George W Bush was advised by Justice Department officials and the White House lawyer, Alberto Gonzalez, that Geneva Conventions on torture did not apply to "unlawful combatants", captured during the war on terror.

Members of Congress are now demanding access to all White House memos on interrogation techniques, a request so far refused by the United States attorney-general, John Ashcroft.

As the growing scandal threatens to undermine President Bush's re-election campaign, senior aides have acknowledged for the first time that the abuse of detainees can no longer be presented as the isolated acts of a handful of soldiers at the Abu Ghraib.

"It's now clear to everyone that there was a debate in the administration about how far interrogators could go," said a legal adviser to the Pentagon. "And the answer they came up with was 'pretty far'. Now that it's in the open, the administration is having to change that answer somewhat."

Moral Clarity

JB

From the President's June 10th press conference:

Q Mr. President, the Justice Department issued an advisory opinion last year declaring that as Commander- in-Chief you have the authority to order any kind of interrogation techniques that are necessary to pursue the war on terror. Were you aware of this advisory opinion? Do you agree with it? And did you issue any such authorization at any time?

THE PRESIDENT: No, the authorization I issued, David, was that anything we did would conform to U.S. law and would be consistent with international treaty obligations. That's the message I gave our people.

Q Have you seen the memos?

THE PRESIDENT: I can't remember if I've seen the memo or not, but I gave those instructions.

. . . . .

Q Returning to the question of torture, if you knew a person was in U.S. custody and had specific information about an imminent terrorist attack that could kill hundreds or even thousands of Americans, would you authorize the use of any means necessary to get that information and to save those lives?

THE PRESIDENT: Jonathan, what I've authorized is that we stay within U.S. law.

. . . . .

Q Mr. President, I wanted to return to the question of torture. What we've learned from these memos this week is that the Department of Justice lawyers and the Pentagon lawyers have essentially worked out a way that U.S. officials can torture detainees without running afoul of the law. So when you say that you want the U.S. to adhere to international and U.S. laws, that's not very comforting. This is a moral question: Is torture ever justified?

THE PRESIDENT: Look, I'm going to say it one more time. If I -- maybe -- maybe I can be more clear. The instructions went out to our people to adhere to law. That ought to comfort you. We're a nation of law. We adhere to laws. We have laws on the books. You might look at those laws, and that might provide comfort for you. And those were the instructions out of -- from me to the government.

. . . . .


Please note what the President did not say: He did not say (1) that we Americans do not engage in torture, (2) that torture is immoral, (3) that international and U.S. law does not permit it, or (4) that even if the law permitted it, which it does not, we would not engage in it.

Clearly, the President is setting a moral example for the members of his Administration and for the country as a whole. The problem is that it is a disgraceful example. He has used every trick in the book to avoid confronting his Administration's complicity, and he does not even have the moral courage to denounce the most blatant abuses of human rights. Instead, he merely asserts that his subordinates should follow the law, that is, whatever legal arguments they can come up with to defend whatever they want to do.

Is this the sort of principled stand that wins the hearts and minds of the rest of the world? The world already suspects us of moral hypocrisy. The President has merely given them additional reasons to do so.







Saturday, June 12, 2004

Kerry/Clark?

JB

I used the Washington Post's Veep-O-Matic today to pick Kerry's running mate. Figuring that this election is going to be about Iraq more than anything else, the four criteria I used were: military service, foreign policy/defense expertise, big name, and from a battleground state. The one name that came back with all four criteria was Wesley Clark. (Clark also satisfies two other conditions that I didn't include but could have: He is a Southerner and not a professional politician).

You can just imagine him debating Dick Cheney: Cheney will say something completely crazy about foreign policy, and Clark will just look at him with a stern glance and a sorry shake of the head.

He seems the logical choice on paper. But Clark's campaign skills have yet to be fully developed. Will Kerry pick him instead of Bill Richardson, Dick Gephardt, Bill Nelson or John Edwards? Your guess is as good as mine.



Friday, June 11, 2004

Yoo: If you don't like our torture, vote us out of office

JB

John Yoo, who served in the Office of Legal Counsel from 2001 to 2003, tries, without much success, to defend the Bush Administration in this op-ed in the Los Angeles Times.

I've only met John once, at a Federalist Society panel on judicial nominations. He was charming, polite, and his arguments were lawyerly and well made, although since I was on the other side I wasn't fully persuaded. In this case, however, I have to say that I don't think the arguments he offers in the op-ed are very good at all. He also engages in a non-sequitur, dragging out the old ticking time bomb scenario (or in this case, "a nuclear weapon in an American city") to conclude that there must be general authorization for all "strategic and tactical decisions" a President might make as Commander-in-Chief. But the fact that we might give the President the benefit of the doubt in the ticking time bomb situation does not imply that he should be free from all congressional oversight.

Yoo also tries to defend one of the most wrongheaded claims in the torture memo, the claim that Congressional laws that impinge on the President's assertions of his Commander-in-Chief power should be construed not to apply to the President. I think this argument, taken to its logical conclusion, destroys the checks and balances in our Constitution and makes the President unaccountable to the Rule of Law.

There is one thing in this op-ed that I do agree with: At the very end, Yoo says: "If the American people disagree with [the President's] policy [on prisoner interrogations], they have options: Congress can change the law, or the electorate can change the administration."

And there you have it. If you don't like what we are doing, throw us out of office. We dare you. Double dare you.

I think we should take up that challenge, don't you?



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