Balkinization  

Sunday, July 18, 2004

Whoops, Wrong Country!

JB

Apparently, those links with Al Qaeda were with Iran, not Iraq.

Well, it's a simple spelling error, the kind anybody could make.

Now before we do anything else really stupid, are we quite sure it wasn't Ireland? Iceland? Idaho?



Friday, July 16, 2004

What Corrine Brown Should Have Said

JB

Florida Representative Corrine Brown (D. Fla.) had her remarks striken from the record during a debate on whether federal officials should be forbidden from inviting international observers for the 2004 Presidential election. The disciplinary action came after she made the following comments (story from the Washington Post):
"I come from Florida, where you and others participated in what I call the United States coup d'etat. We need to make sure it doesn't happen again," Brown said. "Over and over again after the election when you stole the election, you came back here and said, 'Get over it.' No, we're not going to get over it. And we want verification from the world."

After Brown objected to the ruling of the chair, the House voted 219-187 to strike her comments from the record. Unfortunately, Brown violated a norm that members are not supposed to make personal attacks on each other, at the very least they are not supposed to accuse each other of lawbreaking.

As I understand the rules, all Brown had to do was to avoid saying "you." She could have said that Republican operatives in Florida had stolen the election. She could even have accused Governor Jeb Bush directly. (But not Katherine Harris, who is now a Florida congresswoman!). Those remarks might have angered her Republican colleagues every bit as much, but they wouldn't have been grounds to strike her remarks from the record.

What seems to have gotten lost in the fracas is that the proposed measure passed by a vote of 243-161 as an amendment to a $19.4 billion foreign aid bill. The amendment bars any federal official from requesting that the United Nations formally observe the U.S. elections on Nov. 2. The amendment is little more than silly xenophobic posturing. It is also a stupid idea. We should be doing everything in our power at this crucial moment to assure the legitimacy of American democracy in the eyes of the world. Saying that we are so afraid of international observers that we must officially bar their entry does little to elevate our badly battered reputation, and merely confirms an image of American arrogance. In any case, judging from our last Presidential election, and the current shenanigans over electronic voting machines and felon disqualification, if any place needs international observers to ensure fair elections it is Florida.

Youngstown and The President's Power to Torture

JB

Yesterday I mentioned that the Supreme Court's 1952 decision in Youngstown Sheet and Tube Co. v. Sawyer. exploded the arguments made by the OLC (and the Defense Department) that the President of the United States is not bound by laws prohibiting torture. One important criticism of the OLC's Torture Memo is that it does not even mention Youngstown or attempt to distinguish it.

Several people have asked me why Youngstown is so important and whether it is even relevant to foreign affairs, because it concerns the seizure of domestic property. Because people seem unsure about Youngstown and what it means in a post-September 11th world, I thought I would spend a little time talking about Youngstown, its importance as a landmark decision restraining arbitrary power exercised in time of emergency, and why it is so important today as a means of countering Presidential Caesarism.

People who seek to concentrate and maximize Executive power don't much like Youngstown. They much prefer an earlier case from the 1930's, United States v. Curtiss-Wright Export Corporation, whose language gives the President broad authority in matters of foreign relations. But the Youngstown decision came later, and it arose in a crucial moment in American history, when a President claimed that war had changed everything and that emergency justified his actions as Commander-in-Chief.

Youngstown involved an Presidential Order by Harry Truman on April 8th, 1952, issued while the United States was fighting the Korean War. Truman ordered that steel mills be seized in order in anticipation of a strike against the nation's steel companies. "The indispensability of steel as a component of substantially all weapons and other war materials," Justice Black later wrote, "led the President to believe that the proposed work stoppage would immediately jeopardize our national defense and that governmental seizure of the steel mills was necessary in order to assure the continued availability of steel."

In fact, the President had authority from Congress under the Taft- Hartley act to order a 60 day cooling off period in order to persuade the striking steel workers to settle with management. Truman, however, had opposed this provision of the Taft-Hartley Act. Instead, he argued that he had inherent power as Commander-in-Chief of the Armed Forces to take over the steel mills in order to keep the supply of steel flowing. Congress had considered giving the President the power to seize property under the Taft-Hartley Act but had rejected it in favor of other procedures, including the cooling off period. As Justice Burton put it in his concurring opinion, "Collective bargaining, rather than governmental seizure, was to be relied upon. Seizure was not to be resorted to without specific congressional authority. Congress reserved to itself the opportunity to authorize seizure to meet particular emergencies."

Thus, the question before the Court was whether the President's powers as Commander-in-Chief gave him authority in an emergency to seize private property. There was some dispute among the Justices whether Congress had effectively prohibited the President from seizing steel mills without its prior authority or whether the Taft-Hartley Act was merely silent on that point.

The Truman Administration did not view its seizure of steel mills as purely a domestic question. Indeed, it thought the stakes for national security were quite high. Chief Justice Vinson's dissent well captured the tenor of the times:

Those who suggest that this is a case involving extraordinary powers should be mindful that these are extraordinary times. A world not yet recovered from the devastation of World War II has been forced to face the threat of another and more terrifying global conflict. . . . For almost two full years, our armed forces have been fighting in Korea, suffering casualties of over 108,000 men. Hostilities have not abated. . . . Congress, recognizing the "grim fact . . . that the United States is now engaged in a struggle for survival" and that "it is imperative that we now take those necessary steps to make our strength equal to the peril of the hour," granted authority to draft men into the armed forces. As a result, we now have over 3,500,000 men in our armed forces.

At oral argument before the Supreme Court, Assistant Attorney General Baldridge, arguing on behalf of the Truman Administration, made arguments about Presidential power that may sound quite familiar to those who have followed the pronouncements of the Bush Administration:

The Court: [I]s it not . . . your view that the powers of the Government are limited by and enumerated in the Constitution of the United States?

Mr. Baldridge: That is true, Your Honor, with respect to legislative powers.
The Court: But it is not true, you say, as to the Executive?

Mr. Baldridge: No. Section 1, of Article II of the Constitution . . . reposes all of the executive power in the Chief Executive. . . . In so far as the Executive is concerned, all executive power is vested in the President. In so far as legislative powers are concerned, the Congress has only those powers that are specifically delegated to it, plus the implied power to carry out the powers specifically enumerated.

The Court: So, when the sovereign people adopted the Constitution, it enumerated the powers set up in the Constitution but limited the powers of the Congress and limited the powers of the judiciary, but it did not limit the powers of the Executive. Is that what you say?

Mr. Baldridge: That is the way we read Article II of the Constitution. . . . It is our position that the President is accountable only to the country, and that the decisions of the President are conclusive. . . . [H]aving a broad grant of power[,] the executive, particularly in times of national emergency, can meet whatever situation endangers the national safety of the country. . . . I want to say that we had an emergency situation here. Somebody had to deal with it. [T]here would have been an indefinite stoppage of steel production. Are we to say, then, that there is no power in Government any place to meet as serious a situation as this, when it confronts the security of this nation? . . . [A]s of midnight on April 8th this seizure procedure appeared to be the only effective way to avoid a strike and to avoid a cessation for an indefinite period of production of steel necessary to national security and national defense.


When the Youngstown opinion came down on June 2nd, 1952, the Supreme Court decisively rejected Truman's assertion of unlimited Executive power, just as it would do in Hamdi v. Rumsfeld in 2004. The majority opinion was written by Justice Hugo Black. Black argued that Truman lacked power as Commander-in-Chief to seize the steel mills:

The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. The Government attempts to do so by citing a number of cases upholding broad powers in military commanders engaged in day-to-day fighting in a theater of war. Such cases need not concern us here. Even though "theater of war" be an expanding concept, we cannot with faithfulness to our constitutional system hold that the Commander in Chief of the Armed Forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the Nation's lawmakers, not for its military authorities.

Viewed only in the context of the steel seizure dispute, Black's majority opinion might be read very narrowly as a case that says that the Commander-in-Chief power does not apply to domestic questions that are properly the subject of Congressional legislation. But Youngstown has come to mean something more than this, or rather something different from this, and the concurring opinions, particularly the opinion of Justice Jackson, which I will discuss in a moment, have generally been viewed as the most important statements of the law.

That is important because the issue of whether the President may torture people overseas raises a specific problem that Black does not address: What happens when the President wants to do something under the Commander-in-Chief power because he claims there is an emergency and Congress has told him that he cannot do it? Justice Black did not reach this issue in his majority opinion. However, six of the other Justices did.

Justice Jackson's opinion, which my friend and co-author Sanford Levinson has called the greatest single opinion in the history of the Supreme Court, viewed Truman's conflict with Congress as a special case of a more general problem of how to set boundaries on Executive power. He offered a famous delineation of the possible relationships between the President and Congress:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power. A seizure executed by the President pursuant to an Act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it.

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.


The OLC Torture memo raises the third case, where Congress has told the President he may not do something and the President insists on doing it anyway. The only defense the President has, Jackson says, is that Congress has no constitutional authority over the subject. In the Steel Seizure Case, that argument was unavailable; Congress clearly had authority to regulate wages and working conditions under the Commerce Clause. It is also unavailable, however, in the case of overseas torture. Although the President is Commander-in-Chief of the Armed Forces, Congress has power under Article I section 8, to regulate how the Armed Forces can treat enemy combatants or other persons captured in wartime. Here are the sources of Congress's power:


10. To define and punish piracies and felonies committed on the high seas, and offences against the law of nations:

11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water:

. . .

14. To make rules for the government and regulation of the land and naval forces:


We do not, in short, have a situation in which Congress has no power to legislate on the matter of captured soldiers, or on the behavior of the land and naval forces towards them. And because torture is an offense against the law of nations (as recognized by several international agreements to which the United States is a signatory), it also has power to define and punish torture.

Given these facts, Presidential orders to torture individuals clearly fit into situation three. The President cannot reasonably claim that the law against overseas torture is not directed to him. Moreover, he cannot deny that it was passed pursuant to Congressional authority granted by the Constitution and it specifically and directly prohibits him from torturing people. Thus, he cannot simply assert, as the torture memo does, that it is unconstitutional to apply it to him.

But, you may object, my argument is based on Jackson's opinion. Perhaps Jackson's is the most famous, most influential, and most hallowed opinion in the Youngstown case, but does it state the law? Most constitutional scholars agree that Jackson's opinion offers the basic framework for separation of powers disputes, including those in foreign affairs. But more importantly, the Supreme Court itself has said so in its 1981 decision in Dames and Moore v. Regan. While adopting Jackson's basic framework, the Supreme Court cautioned that the three categories Jackson mentioned were not "black and white."

[I]t is doubtless the case that executive action in any particular instance falls, not neatly in one of three pigeonholes, but rather at some point along a spectrum running from explicit congressional authorization to explicit congressional prohibition. This is particularly true as respects cases such as the one before us, involving responses to international crises the nature of which Congress can hardly have been expected to anticipate in any detail.

However, Section 2340A-- the prohibition of torture overseas, does not present the problem the Court was worried about in Dames and Moore v. Regan, for it is an explicit congressional prohibition specifically designed to respond to treaty obligations which ban the use of torture. Congress well understood that people are always tempted to use torture in times of emergency, and always tempted to exaggerate the emergency in order to justify torture. That is why it banned the practice. If you disagree with Congress's decision, you should work to change the law.

Even without Dames and Moore, it is worth noting that six Justices in Youngstown-- Jackson, Frankfurter, Clark, and the three dissenters, Vinson, Reed and Minton-- agreed on a key point: If Congress, acting within its constitutional authority, had prohibited Truman from seizing the steel mills, he would not have power to disobey them even when acting under his powers as Commander-in-Chief. The three dissenters did not dispute this: they merely disagreed with the majority about whether Congress had prohibited seizures of property. Indeed, the dissenters argued, far from disobeying Congress, Truman was only moving to preserve the situation until Congress could act. Of the three remaining Justices, none indicated disagreement with the basic principle that the President's powers are circumscribed when he acts directly contrary to constitutionally authorized Congressional command. Black and Douglas decided the case on other grounds, and Burton specifically refused to address the question as it pertained to activities overseas.

Presidents, like all powerful people, do not like to have their authority or their power limited. And over the years, some scholars, drawn to and perhaps overly enamored of executive power, have sought to downplay or even jettison Youngstown, arguing that the President should be clothed with absolute and unreviewable authority in matters of national security. That was the argument of the Truman Administration in 1952; it was the argument of the Nixon Administration in the 1970's, and it is the argument of the Bush Administration today. But Justice Jackson's wisdom is still sound. Jackson himself had been Attorney General under Franklin Roosevelt, and he had made his share of arguments for a strong executive. But once he became a Justice, charged with defending America's Constitution, he saw things from a different perspective:

That comprehensive and undefined presidential powers hold both practical advantages and grave dangers for the country will impress anyone who has served as legal adviser to a President in time of transition and public anxiety. While an interval of detached reflection may temper teachings of that experience, they probably are a more realistic influence on my views than the conventional materials of judicial decision which seem unduly to accentuate doctrine and legal fiction. But as we approach the question of presidential power, we half overcome mental hazards by recognizing them. The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies - such as wages or stabilization - and lose sight of enduring consequences upon the balanced power structure of our Republic.

Jackson was wise enough to understand that every Executive sees himself as the savior of the nation, every Executive believes that the emergency he faces justifies his policies, and every Executive thinks he needs unlimited power in order to preserve the United States from its enemies. Giving the Executive manifold powers, as our Constitution does, only makes the Executive hungry for more. The point of the Constitutional structure, however, is to hold arbitrary power in check.

September 11th changed everything, we are told. But it is important to remember that the Justices who decided Youngstown had also seen war, plenty of war. Pearl Harbor was only a decade previous, and since that day the United States had been twice at war, and had continuously sent its forces around the globe to protect its interests. These Justices well understood the importance of national security to national survival. Indeed, they were all appointees of Roosevelt and Truman, Presidents who had taken the country to war. Yet they saw beyond the urgencies of the moment, and the ubiquitous declarations that war had changed everything. They upheld the principle of checks and balances, and rejected the claim of an unlimited Executive. And they helped preserve our democratic system of government in the process.



Thursday, July 15, 2004

Stuck in the middle with you

JB

I took Slate's test  to determine whether I am a Red State or a Blue State kind of guy. Believe it or not, it turns out I'm exactly in the middle.

Clearly the test correctly senses that I'm a Kansas City boy who's a liberal Democrat.

Child rape alleged at Abu Ghraib

JB

Seymour Hersh now claims that there is videotape of boys being sodomized at Abu Ghraib prison. (link via Atrios). "The worst is the soundtrack of the boys shrieking," Hersh said. Ed Cone has more details.

Meanwhile, the Iraqis are trying to change the prison's image, with new locks and new coats of paint:

"The building itself isn't evil. It's just a question of who's running it," said its newly appointed warden Bassim, a prison employee for 25 years under Saddam.

So it would seem.

Vermeule and Posner Defend the Torture Memo

JB

Two very fine young scholars at the University of Chicago, Adrian Vermeule and Eric Posner (son of Judge Richard Posner), have defended the OLC torture memo's legal analysis, and its restrictive view of what constitutes torture as "standard lawyerly fare, routine stuff." They also argue that the there is nothing particularly problematic about the memo's conclusion that the President cannot be bound by federal laws prohibiting torture overseas:
As for the constitutional arguments, the memo explicitly limits their context to the interrogation (1) outside the U.S. (2) of identified enemy combatants (3) concerning the enemy's plans of attack. The logic of the arguments might be stretched further, but need not be, and it is routine for executive-branch lawyers to proceed one step at a time, just as courts do. Everyone, including even the most strident of the academic critics, agrees that Congress may not, by statute, abrogate the president's commander-in-chief power, any more than it could prohibit the president from issuing pardons. The only dispute is whether the choice of interrogation methods should be deemed within the president's power, as the memo concludes. That conclusion may be right or wrong -- and we, too, would have preferred more analysis of this point -- but it falls well within the bounds of professionally respectable argument.
. . . .
The Justice Department memorandum came out of the OLC, whose jurisprudence has traditionally been highly pro-executive. . . . Not everyone likes OLC's traditional jurisprudence, or its awkward role as both defender and adviser of the executive branch; but former officials who claim that the OLC's function is solely to supply "disinterested" advice, or that it serves as a "conscience" for the government, are providing a sentimental, distorted and self-serving picture of a complex reality.

There is an important intellectual context behind the academic critics' complaints. An older generation of legal academics developed something like a consensus in favor of enhanced congressional power over foreign affairs; support for the War Powers Act; and a favorable attitude towards Youngstown and other decisions that restrict presidential power. That conventional view has been challenged in recent years by a dynamic generation of younger scholars who emphasize constitutional text, structure and history rather than precedent, and who argue for an expansive conception of presidential power over foreign affairs, relative to Congress.

Among this rising generation are legal scholars who have recently held office in the Justice Department, including John Yoo at Berkeley. The memorandum thus focuses not on restrictive Supreme Court precedents, but on the constitutional text, the structure of foreign affairs powers and the history of presidential power in wartime. From this perspective, the academic critics' complaints have a distinct methodological valence, one with intellectually partisan overtones.


Vermeule's and Posner's citation of John Yoo is not adventitious. It appears from this Newsweek report that although the torture memo was signed by Jay Bybee, it is the work of John Yoo during his days at the OLC.
The memo, drafted by former OLC lawyer John Yoo, has been widely criticized for seeming to flout conventions against torture. It defends most interrogation methods short of severe, intentionally inflicted pain and permanent damage. White House officials told reporters that such abstract legal reasoning was insignificant and did not reflect the president's orders. But NEWSWEEK has learned that Yoo's August 2002 memo was prompted by CIA questions about what to do with a top Qaeda captive, Abu Zubaydah, who had turned uncooperative. And it was drafted after White House meetings convened by George W. Bush's chief counsel, Alberto Gonzales, along with Defense Department general counsel William Haynes and David Addington, Vice President Dick Cheney's counsel, who discussed specific interrogation techniques, says a source familiar with the discussions. Among the methods they found acceptable: "water-boarding," or dripping water into a wet cloth over a suspect's face, which can feel like drowning; and threatening to bring in more-brutal interrogators from other nations.

Vermeule and Posner must deal with the rather embarrassing fact that the OLC memo does not even cite the famous 1952 Youngstown decision, which held that President Truman did not have constitutional authority to seize steel mills in the U.S. as part of the Korean War effort. Youngstown is a central pillar of separation of powers jurisprudence, and it explodes the OLC torture memo's constitutional arguments. Vermeule and Posner appear to argue that OLC lawyers can simply disregard existing precedents limiting Presidential power and rely solely on their own interpretations of the Constitution's text, history and structure.

This view is deeply flawed. The decisions of courts, and in particular the Supreme Court, are binding law, and in particular, they bind the parties to the original litigation, in this case the President of the United States. Law professors like myself, Vermeule, and Posner, are of course free to contend that Youngstown is bad law and should not be followed. But as lawyers representing the Nation, the OLC does not have the same latitude.

In effect, Vermeule and Posner argue that government officials need not follow existing law if it conflicts with the academic theories of a "dynamic" new generation of legal scholars. They argue that critics of the torture memo "have a distinct methodological valence, one with intellectually partisan overtones." But it seems to me that the OLC's memo better fits this description.

Much as I respect Vermeule and Posner's other work, I must confess that I'm deeply worried about the abdication of moral responsibility in this op-ed, as well as its cavalier assumption that the purpose of the OLC is to push a particular ideological agenda heedless of any larger responsibilities to the Nation as a whole. The notion that government officials can simply discard relevant precedent if it gets in the way of ideology is inconsistent with the basic obligations of government lawyers. Is this truly, as Vermeule and Posner tell us, characteristic of the next generation of constitutional scholarship? I shudder at the thought.


UPDATE: For reasons unclear to me, the op-ed has been removed from the University of Chicago Law School's website. I've provided a link to the Google cache.


UPDATE: In the L.A. Times, Professor Yoo, in his role as academic commentator, defends the OLC Torture Memo, which Newsweek tells us he wrote himself:

It is easy now for critics to claim that the work was poor; they haven't produced their own analyses or confronted any of the hard questions. For example, would they say that no technique beyond shouted questions could be used to interrogate a high-level terrorist leader, such as Osama bin Laden, who knows of planned attacks on the United States?

Here Professor Yoo shows himself to be the master of the false dichotomy. Either the torture memo is right or Osama gets off scot free. How silly of us to think that there might be a third alternative that doesn't give the President carte blanche to torture and maim. Professor Yoo is certainly right about one thing: It is easy for critics of the torture memo to claim that the work was poor. That's because it is poor work. Yoo has done many fine things in his career. This is not one of them.


UPDATE: Michael Froomkin has more.



Tuesday, July 13, 2004

Not Your Founding Fathers' Checks and Balances

JB

Mark Kleiman tries to assure us that we need not worry too much about a second Bush term:
The reason that the American Revolution created a republic that has done so well for so long, while the French and Russian revolutions degenerated so quickly into tyranny, was that the American Framers didn't try to create a government capable of doing great good in the hands of brilliant and well-intentioned people. Instead, they tried to create a government that couldn't do too much to ruin the country in the hands of a bunch of corrupt morons. And they did a pretty good job of it.

Mark's argument actually cuts in the opposite direction he thinks it does. We no longer live under the Constitution of 1787. The basic devices that the founding generation believed would keep the Executive out of the most serious mischief have largely been eroded. For example, Congress no longer puts up much of a fight when it comes to foreign affairs, and that is particularly so when the President and Congress are of the same party. (The Framers didn't imagine that there would be parties, either, by the way). In recent times it has become fairly clear that when the President wants to take the country to war, he can do so, whether the adventure is wise or not, and thus he can drag the rest of the country along with him.

The Iraq war was a case in point. The President was able to get Congressional approval without saying how much the war would cost or estimating how long it would take. (Apparently he was also able to divert money from the Afghanistan War to pay for initial preparations for Iraq.) And once the troops were in harm's way in Iraq, the President simply asked for more and more money without providing very much information about future costs. He essentially dared Congress not to appropriate the money necessary to support the troops. The checks and balances of the 1787 Constitution did not do their job: The Bush Administration bullied its way into a badly thought out and badly executed occupation, creating a terrible mess that we will be paying for years to come-- not simply in money, but in lost lives, frayed alliances, damaged legitimacy and strategic disadvantage.

But, you say, now that the Iraq adventure has proved a fiasco, surely the President will be unable to do much more harm in the area of foreign policy. The preemptive theory of war is as good as dead. Yet the President can still attempt to rule through fear. He can still remind the nation that we are under attack from the terrorists. And, ironically, because he has mismanaged the nation's foreign policy so badly, we are in fact probably in much greater danger than we were before we invaded Iraq. And the worse things get, the more powerful the appeal to fear becomes. Although you may believe that we won't get fooled again, it will take only one more terrorist attack (made possible by the Administration's relative inattention to investments in homeland security) to bring the American people back rallying around their Dear Leader.

Next, consider the nation's fiscal health: A second Bush Administration would have little reason to get serious about the deficits created by federal spending and tax cuts. We have not seen the last bill we will have to pay for the President's Iraqi adventure, and there is no reason to think that the President will not continue to try to buy constituencies off with additional spending. Here again the separation of powers will be of little help: Congress is unlikely to put up much of a fight against out-of-control deficits because they are very largely to blame for helping create them. Neither the President nor the Republican-controlled Congress will consider raising taxes to restore fiscal solvency. Indeed, if anything, they will work together to try to make the unwise tax cuts of the first Bush Administration permanent. As a result, the fiscal problems created by the Bush Administration in its first Administration are only likely to be compounded in the second. Someday the piper must be paid, but President Bush seems quite determined that it won't be paid on his watch.

Finally, although Mark assumes that the constitutional system will keep us safe during a second Bush term, he overlooks the fact that the Constitution as we know it is very much up for grabs in this election. As I have explained in a previous post:

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 [August 2002] OLC [torture] 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.


Indeed the Supreme Court did rap the Bush Administration soundly across the knuckles in Hamdi and Rasul. But the next President will be able to appoint new Justices to the Supreme Court, creating a new working majority that is considerably further to the right of the current one. Don't think that Hamdi and Rasul can't be read narrowly by a future majority of conservative Justices so as to give the President virtually everything he wants. They can easily be so read.

I'm hoping that Mark is right that a second Bush term won't be a disaster. But I'm not counting on it.



Monday, July 12, 2004

Postponing the Election?

JB

The Bush Administration is now considering contingency plans for postponing the November 2nd, 2004 elections if a terrorist attack should occur in the fall immediately before or on Election Day. Several readers have asked whether this would be constitutional. The short answer is that appropriate legislation passed by Congress could change the day of the election, but there are important constitutional limitations on how this could be done.

Here are a few of the relevant constitutional and legal issues.

The Constitution does not require that elections be held on any particular day. Article II, section 1, cl. 3 states that "[t]he Congress may determine the time of choosing the electors [for President], and the day on which they shall give their votes; which day shall be the same throughout the United States." Article I, section 4, cl. 1 states that "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators." This allows states to set the dates of elections for Congress unless Congress preempts them. Congress has done so in Title 2 sections 1 and 7, and it has chosen the same day for the Presidential election in Title 3 section 1: the first Tuesday after the first Monday in November.

Although Congress may set new dates for elections other than the one it has already chosen, elections for Congress and the President may not be postponed indefinitely past the end of their respective terms, because the Constitution provides that the members of the House are to be chosen "every second year" and members of the Senate serve for "six years." The President, likewise, "shall hold office during the term of four years."

The Twentieth Amendment to the Constitution specifies when the terms of the President and outgoing members of Congress expire, and when new members of Congress and the President are to take office: "The terms of the President and the Vice-President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January . . . and the terms of their successors shall then begin."

What happens if elections cannot be held on November 2nd, 2004? Currently the law works as follows: Title 3 section 2 states that "Whenever any State has held an election for the purpose of choosing electors [for President], and has failed to make a choice on the day prescribed by law, the electors may be appointed on a subsequent day in such a manner as the legislature of such State may direct." The law does not specify what happens if no election at all was held. However, one could read the statute together with the Election Clause of Article I, section 4, to imply that individual states have the right to reschedule an election that was never held. But the statutes do not give states the right to postpone an election in advance.

Note however, that the law does not require states to hold new elections for members of the electoral college. The state legislature could pick its own slate of electors, as the Florida legislature tried to do in December 2000. That is a reason for Congress to step in to provide for new popular elections for President.

What about Congressional elections? Well, Title 2, section 8 provides that "[t]he time for holding elections in any State, District, or Territory for a Representative or Delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law . . . may be prescribed by the laws of the several States and Territories respectively." This means that the state has the right to schedule new elections for members of the House. Because Title 2 section 1 says that Senators are to be elected at the same time as Representatives, the same rules (presumably) apply to the election of Senators as House members. The Seventeenth Amendment contemplates temporary appointments, or appointments to fill out an existing term of an elected Senator, but it would seem to require elections to fill wholly new Senatorial terms. The bottom line is that if no election is held on November 2nd, 2004, federal law suggests that individual states would be empowered to set their own makeup elections for Congress. But, once again, states have no power to postpone elections in advance.

Under the Elections Clause of Article I, and Article II, section 1, Congress could, if it wanted, pass a new law preempting any makeup dates and setting a new uniform make-up date for the entire country.

Congress could probably also pass a law directing when elections would be held in case of an emergency on Election Day. Could Congress authorize the Department of Homeland Security to cancel a Presidential election and schedule a new date? Article II states that "Congress" (not the Executive) may determine the date of presidential elections; the language of the Election Clause of Article I, is different; it might be more flexible with respect to rescheduling Congressional elections.

How late can Congress postpone the election in case of emergency? One could argue that the Twentieth Amendment even allows Congress to postpone the date of elections past the date when the Presidential term expires, as long as it specifies a procedure to determine who shall be acting President: Section 3 of the Twentieth Amendment states that "If a President shall not have been chosen before the time fixed for the beginning of his term, . . . the Congress may by law provide for the case wherein neither a President elect nor a Vice-President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice-President shall have qualified." However, reading this section in conjunction with section 1 of the Twentieth Amendment, it seems fairly clear that Congress cannot cancel elections in order to take advantage of its powers in section 3 to pick a President. Rather, section 3 is for cases of genuine emergency, in which it was simply not possible to schedule an election (or get the electoral college to meet) before January 20th.

I emphasize this because if Congress were to pass a law allowing for rescheduling of an election in case of emergency, there would be strong constitutional reasons to reschedule the election as soon as possible in order to comply with the orderly processes of government.

There are three other points that are important to note.

First, some of the news stories I've seen have suggested that a terrorist attack a few days before an election is a sufficient reason to postpone an election. The claim is that the terror attacks in Madrid "influenced" the parliamentary elections in Spain, and we should not allow the same thing to happen here. I think this logic is faulty: What influenced the election was not simply the terror attacks but the government's manner of handling them; at first government officials tried to suggest that Basque separatists and not Islamic terrorists were responsible. This angered many voters, who then sought to teach the government a lesson.

The fact that a terrorist attack might influence voters one way or the other is not a reason to cancel an election. Lots of things happen before elections that can influence voters. Rather, the reason to postpone an election is that it is simply not possible to conduct the election in a particular jurisdiction, because, for example, there are dead bodies lying everywhere or buildings have been blown up and local services have to be diverted to matters of life and death. The September 11th attacks shut down large parts of New York and diverted essential services. It was no time to have an election. If a terrorist attack occurred on Election Day, it would make sense to postpone the election in the place where the attack occurred, but not everywhere in the country. (Note that under current law, states may pass new legislation rescheduling the election without Congress's intervention). One can imagine situations in which an election would have to be postponed everywhere, but they would be truly terrible situations, ones that effectively brought the entire country to a halt.

Second, it is very important to understand Congress's role in any decision to allow elections to be postponed. There are strong constitutional reasons, whether or not judicially enforceable, for Congress not to allow elections to be postponed or canceled lightly, and certainly not because of a fear that the population will be unduly influenced. We have had regular elections during wartime before, and we have even had regular elections during a Civil War.

Third, and finally, there are important structural reasons why the decision to postpone an election should rest in Congress, and should not be delegated to the Executive, as the Office of Homeland Security has recently suggested. The reason is that the Executive focuses decisionmaking in one person who is a member of one political party, while Congress consists of members of both parties representing all different parts of the country.

There is an enormous temptation for the Executive to overstate the danger in order to keep itself in power and bolster its chances in a postponed election. To be sure, there is also a danger of self-dealing in Congress. Nevertheless, that danger is mitigated by the fact that Congress is not unitary in the same way that the Executive is. If Congress were to consider such legislation, even in an emergency, the need to form a bipartisan consensus would be very strong, and this would help ensure that this very difficult decision was made for the right reasons.


Saturday, July 10, 2004

British Spy Chiefs Throw in the Towel

JB

And leave Tony Blair hanging out to dry. From the Scotsman:
Spy chiefs have retracted the intelligence behind Tony Blair’s claim that Iraq posed a “current and serious” threat, it was reported today.

The Prime Minister’s case for war was supposedly based on evidence that Saddam Hussein had chemical and biological weapons stockpiles and was trying to produce more.

But MI6 has since withdrawn the assessment underpinning that case, a senior intelligence source has told the BBC1 Panorama programme.

The rare step amounts to an admission that it was fundamentally unreliable, according to The Observer which revealed details of the interview.

Mr Blair has already admitted that Iraqi WMD may never be found ahead of Lord Butler’s report on intelligence failings.

But he insisted it would have been wrong to suggest that Saddam did not pose a WMD threat.

Now he will face questions about why he did not give ground earlier ahead of the Butler report on Wednesday.



Friday, July 09, 2004

Giving New Meaning to the Words "Intelligence Failure"

JB

Senator Rockefeller on the consequences of the intelligence failure:
"There is simply no question that mistakes leading up to the war in Iraq rank among the most devastating losses and intelligence failures in the history of the nation," Mr. Rockefeller said. "The fact is that the administration at all levels, and to some extent us, used bad information to bolster its case for war. And we in Congress would not have authorized that war — we would NOT have authorized that war — with 75 votes if we knew what we know now."

The West Virginian went so far as to assert that in some ways the intelligence failures leading up to the war in Iraq were worse than those that preceded the attacks of Sept. 11, 2001. "Leading up to Sept. 11, our government didn't connect the dots," he said. "In Iraq, we are even more culpable because the dots themselves never existed."

Mr. Rockefeller went on to challenge one of the Bush administration's basic positions: that the war to topple Mr. Hussein had made the United States, the Middle East and the world safer, notwithstanding the failure so far to find deadly unconventional weapons that the administration had said were a growing danger.

"Tragically, the intelligence failure set forth in this report will affect our national security for generations to come," Mr. Rockefeller said. "Our credibility is diminished. Our standing in the world has never been lower. We have fostered a deep hatred of Americans in the Muslim world, and that will grow. As a direct consequence, our nation is more vulnerable today than ever before."


Do you think anyone will be held to account?

The Senate report focuses only on the CIA's role. It deliberately sidesteps the question whether members of the Administration were in any way to blame for this catastrophe. That section of the report won't be finished until well after the election.

In the meantime, however, I offer one piece of advice, which is probably true on a number of different levels:

When you think intelligence failure, think George W. Bush.


Thursday, July 08, 2004

John Kerry's Electoral College Advantage

JB

If you look at this July 7th poll of states from Rasmussen, you will see that Kerry is in pretty good shape. [Please note: this post is based on numbers for July 7th. The numbers change regularly] Rasmussen now places Florida in the Kerry column. (According to Rasmussen's methodology, a state goes in a candidate's column only if the candidate is ahead by five or more percentage points. Otherwise the state is labeled a "toss-up.")

There are 98 electoral votes in states in which no candidate leads by more than five percentage points. (I'm using Rasmussen's figures. Your mileage may differ.). To obtain the necessary 270 votes, Kerry must win 33 more electoral votes; Bush must win 67 more. Kerry can do this by winning any two out of the three of Michigan (17), Ohio (20), and Pennsylvania (21). If he only wins one of these three, he will need to win three small states: Oregon (7), New Hampshire (4), and New Mexico (5). If he cannot win any of the three large states, he cannot win the Presidency. But a Democrat who cannot win either Michigan or Pennsylvania probably doesn't deserve to win.

Bush, by contrast, has a more difficult road ahead of him. Let's assume that Bush will win Missouri (11) and Virginia (13), which he will probably do if the race is close. That means he must win 43 more votes, and that means he must win two of the big three remaining states of Michigan, Ohio, and Pennsylvania. That is because even if he wins Oregon, New Hampshire and New Mexico, he is still 27 votes short.

Bush has to focus on the big three, and he must try to get Florida back in his column. That gives Kerry and Edwards the ability to move into other states and make trouble for Bush. They can take the offensive. Note, for example, that if either Virginia (13) or Missouri (11) goes for Kerry, the wheels start to come off of Bush's wagon. Kerry would still need 20 or 22 electoral votes, respectively, to win. But a Democrat who picks up either Missouri or Virginia is virtually guaranteed to pick up 22 more electoral votes from somewhere in that list.

In short, when you are ahead, the possible methods of disrupting your opponent multiply; when you are behind, the urgency of focusing on a few key states and holding onto what you have is enhanced.


UPDATE: In case you are wondering, in the second paragraph, I'm assuming that Missouri and Virginia are going Republican. Drop that assumption, and Kerry could lose all three big states, and theoretically win by winning Missouri (11) and Virginia (13) and two of Oregon (7), New Hampshire (4), and New Mexico (5). But it would be very unusual for a Democrat today to to lose Michigan, Pennsylvania and Ohio and pick up both Missouri and Virginia. (In the old days of the Solid South, it would have been less unusual).


UPDATE: As you will notice if you go to the website, Rasmussen's polls change regularly, so the mix of states that are toss-ups changes accordingly. My remarks apply to the mix of states as of July 7th.


Wednesday, July 07, 2004

Dick Cheney Can Be President

JB

Asked about the differences between John Edwards and Dick Cheney, President Bush tersely remarked: "Dick Cheney can be President."

And we all know that's true because Bush hasn't done a lick of work for the past three years.

Meanwhile, over at Fafblog, Giblets explains why picking John Edwards was a big mistake:

* He is a trial lawyer! As a trial lawyer Edwards repeatedly stole money from poor corporations to give to greedy children crippled by their products! Do we really need a vice president who is a lackey of Big Children? Giblets thinks not!
* He is an unaccomplished liberal! What war's he started, huh? How many pointless quagmires has he stranded the American military in? Can he take a look at the monstrously-swelling national debt and say "I did that"? How many no-bid war contracts has he handed out to incompetant corporate cronies? Giblets will take John Edwards seriously when John Edwards starts doing something serious.

Shorter Bruce Bartlett

JB

Courtesy of NRO:

Clinton's economic policies were good, but please don't think I believe Clinton was a good president. It's just that Bush has been so much worse.

Allegations of Child Abuse at Abu Ghraib Prison

JB

Der Speigel reports (Translated from German).

"Between January and May of this year we've registered 107 children, during 19 visits in 6 different detention locations" the representative of the International Red Cross, Florian Westphal, told the TV station SWR's Magazine "Report Mainz". He noted that these were places of detention controlled by coalition troops. According to Westphal the number of children held captive could be even higher.

The TV Magazine also reported of evidence and eye witness reports according to which U.S. soldiers also abused children and youthful detainees. Samuel Provance, a staff sergeant stationed in the now infamous Abu Ghraib prison said that interrogating officers had pressured a 15 or 16 year old girl. Military police had only intervened when the girl was already half undressed. On another occasion, a 16 year old was soaked with water, driven through the cold, and then smeared with mud.

UNICEF, the United Nations Children's Fund, confirmed the detention of Iraqi children by foreign military according to "Report" which cited an interim memorandum by the organization, The as yet unreleased report, which is dated June 2004, is quoted as follows: "Children who were detained in the cities of Kerbala and Basra because of alleged activities against the occupying forces were reportedly routinely sent to a detention camp at Umm Kasr. The classification of these children as detainees is worrisome because it includes unspecified length of detention without contact to their families pending further proceedings or legal actions".

The German section of the human rights organization Amnesty International is demanding a clarification of the allegations and a response from the US government.


Sadly No has more. No More Mr. Nice Blog links to this story from Norway.

This story has not yet hit the American media. An important question is whether there was a policy of abusing children in order to put pressure on their parents to confess.


Tuesday, July 06, 2004

The Problem With Second Choices

JB

I see that Bush is now running an ad noting that McCain was Kerry's first choice for Vice-President.

The Dems should run an ad noting that Al Gore was the country's first choice for President.

9/11 Commission: Cheney Off In La La Land

JB

Reuters reports:

The Sept. 11 commission, which reported no evidence of collaborative links between Iraq (news - web sites) and al Qaeda, said on Tuesday that Vice President Dick Cheney (news - web sites) had no more information than commission investigators to support his later assertions to the contrary.

1968, not 1972

JB

My reminiscence about McGovern/Eagleton reminded me of a point I have particularly wanted to stress. Don't think that this election is a replay of 1972. The Dems lost in 1968 and were eager to remove Richard Nixon, whom they thought shouldn't have won in the first place. But in 1972, Nixon ran a great campaign (and, not entirely coincidentally, his people also broke the law, and bugged the headquarters of the Democratic National Committee) and trounced McGovern.

Republican pundits would like that to be this election. But that's not this election. This election is more like 1968, in which a President and his advisors got ensnared in their own self-delusion, and created a credibility gap that ultimately prevented an incumbent President from being reelected during wartime, a very rare event in American history. Johnson saw the handwriting on the wall and didn't even try to seek renomination. Bush, by contrast, will fight to the bitter end. But I believe that the ultimate result will be the same.

There are lots of important differences between now and 1968. I can think of ten of them off the bat. But the key point is that this election is crucial to the future of the country, just as that one was, and it will shape what the two major political parties will stand for going forward into the future.

What Took Him So Long?

JB

You're probably wondering why Kerry took so long to pick Edwards, who was the most obvious pick. (I had thought a few weeks back that it might be Clark, but I was clearly out of the loop).

It was well worth taking the extra time to investigate everything one can find out about a prospective VP candidate. I am old enough to remember the Eagleton fiasco in 1972. Tom Eagleton was a fine Senator, respected by all, and if McGovern hadn't picked him to be his Vice-President, he could have stayed that way. But Eagleton wanted the job too much, and because the McGovern people didn't press Eagleton sooner to disclose about his history of depression and shock therapy, they gave their candidate a blow from which McGovern never recovered. Nixon was a formidable candidate by the fall of 1972, and I suspect that McGovern would have lost even if he had started out with Sargeant Shriver, but it would probably have been a much closer race.

Kerry's people also probably reasoned that delaying the announcement until the beginning of July gives positive press coverage at a key moment three weeks before the Democratic convention, and gives the public an opportunity to refocus their attention on Kerry. Whether or not Edwards himself can deliver a particular state in November, the choice of a Vice-Presidential candidate can help Kerry increase his lead by a few percentage points at this stage of what is shaping up to be a very close race.



Monday, July 05, 2004

Where Were the Liberals? All Over It, Bill

JB

William Safire's bizarre column in today's Times argues that when the Bush Administration began cracking down on civil liberties, liberals stayed silent. They are only "piling on" now in the wake of the Abu Ghraib prison scandals, because "It's safe; civil liberty is suddenly in vogue."

What planet is he on?

Liberals and a good number of brave libertarians were perhaps the only people speaking out against what the Administration was doing. Everyone else was running for cover, and conservative pundits were denouncing anyone who suggested that the Administration was going too far as soft on terror and hating America. Give me a break, Bill. I'm glad that you also were against the madness. But the idea that liberals weren't in the forefront of the opposition is not only self-serving, it's simply insane. In the legal academy alone, liberals like David Cole, Neal Katyal, Larry Tribe, George Fletcher, Bruce Ackerman, Harold Koh, and myself-- and others too numerous to mention, so please forgive me for not mentioning them -- were denouncing the Administration's high handed tactics early on.

And I'd go further. Don't think that because the Supreme Court has given the shaft to the Bush Administration's Caesarist ambitions, civil liberties are now safe in this country. As I've noted in a previous post, the most recent cases from the Supreme Court are only the beginning of the process, and it is quite possible that they will not offer detainees very much in the way of substantive protection.

In any case, for those of you who were wondering what liberals were actually saying in the days when civil liberties weren't quite so cool, here's an op-ed by a liberal-- yours truly-- written on November 29th, 2001-- two months after 9/11, and published in the Los Angeles Times. It is entitled, "Using Our Fears to Justify A Power Grab:"

Moments of crisis do not merely create emergencies. They also create temptations.

Many see the central issue before us as how to balance civil liberties and national interests. This is wrong. The danger we face today is not that government officials will make hasty decisions out of fear or that they will strike the wrong balance between liberty and security. It is that they will use a national crisis as an opportunity to make themselves more powerful and less accountable for what they do--not because they are corrupt and venal but because they are so utterly convinced of their uprightness.

In times of fear, authoritarian impulses are less constrained and people feel less able to complain about them. After all, no one wants to be thought unpatriotic when the country is in such grave danger. And when there is no check on government officials certain of their own rectitude, the temptation for them to act unilaterally and arbitrarily becomes irresistible. Such is the problem we face today, with a president and an attorney general who have dedicated themselves to stamping out all evildoers both outside the country and within it.

An increasingly authoritarian tone is pervading the Bush administration. We have seen it in the so-called USA Patriot legislation hastily pushed through Congress. We have seen it in the presidential order authorizing military tribunals without traditional due process protections and without a right of appeal to anyone but the president himself. We have seen it in new federal policies that permit eavesdropping of confidential communications between attorneys and their clients. And we have seen it in new regulations that allow the attorney general to imprison noncitizens indefinitely, even if an immigration judge has ruled that there is no evidence to justify holding them against their will.

Little by little, the basic elements of procedural fairness that keep democratic governments from acting arbitrarily are being chipped away. No apology is offered for these actions. Those who seize power always feel perfectly entitled to it. Instead, they blame their critics for failing to recognize the seriousness of the situation or for being soft on terrorism, as in the past other critics were blamed for being soft on communism.

The authoritarian impulse is justified, as it always is, through paranoia. The more fearful Americans are, the more they are willing to give their officials a free hand. It is no accident that the same attorney general who has withheld information about who is being detained and why has also repeatedly warned in ominous tones that more terrorist attacks are just around the corner. Secrecy lends credibility to paranoia, which in turn justifies increased secrecy and increased power.

Officials who want greater authority always prefer to work in secret so that they cannot easily be called to account. And when complaints are raised, lack of available information makes it all the more difficult to prove that violations have occurred.

Thus, it is entirely predictable that the current administration has made a fetish of secrecy, for secrecy increases power, not only overseas but in our own country.

Authoritarianism never attacks the institutions of freedom at their strongest point; it always attacks them at their weakest. Even before Sept. 11, the country's immigration laws were often arbitrary and highhanded. Therefore it is no surprise that the administration's latest grabs for executive authority have targeted noncitizens, who have no right to representation and no natural constituency to defend them. The present conflict may not be a war on Islam. But it is increasingly turning out to be a war on noncitizens.

The members of this administration do not want to be dictators. They simply do not want anyone getting in their way. They do not want to be autocrats. They simply do not want to be second-guessed when they know that they are right. They do not want to be antidemocratic. They simply want to be able to act unilaterally in the interests of righteousness. If we would merely allow them to go about their business in secret, and with as much authority as they feel they need, they will take care of things for us.

In times like these, it is a tempting offer, but we should refuse it. For what profit has a country if it shall control the whole world and lose its democratic soul?


Many people thought this was over the top in November 2001, but I have to say they weren't mostly liberals. They were conservatives. In Richard Posner's book, Law, Pragmatism, and Democracy written around this time and published in 2003, he points to this op-ed as an example of the sort of reasoning that should make a pragmatist like himself gag. I wonder if he still feels that way.




Sunday, July 04, 2004

Selections From the Greatest Op-Ed Ever Written

JB

We hold these truths to be self-evident:

That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness; that, to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles, and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.

But when a long train of abuses and usurpations, pursuing invariably the same object, evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

. . .

The history of the present King [George] is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute tyranny over these states. To prove this, let facts be submitted to a candid world.

He has refused his assent to laws, the most wholesome and necessary for the public good.

He has forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation till his assent should be obtained; and, when so suspended, he has utterly neglected to attend to them.

. . . .

He has erected a multitude of new offices, and sent hither swarms of officers to harass our people and eat out their substance.

. . .

He has affected to render the military independent of, and superior to, the civil power.

He has combined with others to subject us to a jurisdiction foreign to our Constitution and unacknowledged by our laws, giving his assent to their acts of pretended legislation:

For protecting [troops], by a mock trial, from punishment for any murders which they should commit . . .;

For depriving us, in many cases, of the benefits of trial by jury;

. . . .

For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments;

. . .

He is at this time transporting large armies of foreign mercenaries to complete the works of death, desolation, and tyranny already begun with circumstances of cruelty and perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the head of a civilized nation.

. . .

In every stage of these oppressions we have petitioned for redress in the most humble terms; our repeated petitions have been answered only by repeated injury. A prince, whose character is thus marked by every act which may define a tyrant, is unfit to be the ruler of a free people.

. . . .

And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.


UPDATE: Great minds think alike, here and here.


Friday, July 02, 2004

The Civil Rights Act of 1964

JB

Today is the 40th anniversary of the Civil Rights Act of 1964, signed into law by President Lyndon B. Johnson. The Civil Rights Act is one of the great achievements of American democracy. It is worth reminding ourselves how difficult it was to get the bill passed, and how many people opposed the bill, arguing it would interfere with private freedom and state's rights. The rights that many Americans now take for granted were the result of many years of courageous struggle by civil rights protesters and the persistence of politicans like Lyndon Johnson and Hubert Humphrey.

Title II of the Civil Rights Act mandated non-discrimination in places of public accomodation like restaurants, stores, and hotels. It responded to the demands of the Civil Rights Movement for an end to the discriminatory practices of private businesses across a wide spectrum of everyday life.

Title VII of the Act prohibited discrimination in employment, and created the Equal Employment Opportunity Commission. Title VII also banned discrimination on the basis of sex; thus it was a milestone in protection for women's rights as well as the rights of African-Americans.

Finally, Title VI of the Act required that educational institutions that received federal funds not discriminate on the basis of race. This made the Supreme Court's 1954 decision in Brown v. Board of Education practically enforceable, and it placed the weight of the national legislature behind the goal of school desegregation. After the 1964 Civil Rights Act, Brown v. Board of Education truly became the law of the land. It is therefore entirely fitting that we celebrate both the 50th anniversary of Brown and the 40th anniversary of the Civil Rights Act this year.


Thursday, July 01, 2004

The Next Battle: Transparency

JB

The Bush Administration wanted two things. First, they wanted to round up detainees and hold them indefinitely without oversight. Second, they didn't want anyone to know what they were doing to the people they detained.

Put another way, what the Bush Administration really wanted was silence.

That's why the Supreme Court's rulings in Rasul and Hamdi dealt the Bush Administration a double blow. They not only rejected the Administration's constitutional arguments about detention, they also held that detainees had the right to speak. And once the detainees have the right to speak, they will be able to tell the world how they were rounded up and what has happened to them since.

If the Administration has acted arbitrarily or has abused or mistreated persons in its custody, giving those persons the ability to speak is bad news indeed.

For this reason, we can expect that the next struggle will be over whether hearings for detainees will be public or private. The Administration will try to close as many hearings as it can for reasons of national security. And it will try to obtain gag orders against the attorneys representing detainees preventing them from talking about the information revealed at the hearings.

Failing that, the Administration will try to quietly release as many detainees as it can over the next few weeks. But it will no longer be able to do so quiely. Releasing detainees because they are not risks to national security will lead to the inevitable question of why the detainees were not released earlier. Their release will be additional proof that the government acted willfully and arbitrarily, and used the language of national security as a convenient excuse to cover up its mistakes.

In the case of Messrs. Padilla and Hamdi, the Government may soon move to indict them criminally. As soon as it does so, however, we will begin to learn what the government did to these two U.S. citizens over the course of two years.

When the Government lost these lawsuits, it lost its right to compel slience. It lost its right to keep its mistakes a secret.

But that's part of the point of having the rule of law.


Wednesday, June 30, 2004

Not A Liar

JB

Nicholas Kristoff thinks it's bad to call Bush a liar. But look what he says about Bush in the same op-ed:

Bush "stretch[es] the truth," "exaggerat[es], and "carefully avoids the most blatant lies." [as opposed to less blatant lies?] When he says things that aren't true he "always has available a prima facie defense of confusion." Bush "was overzealous and self-deluded" and "surrounded himself with like-minded ideologues" who "deceived themselves along with the public". "[T]here are so many legitimate criticisms we can (and should) make about this president that we don't need to get into kindergarten epithets." "Mr. Bush got us into a mess by overdosing on moral clarity and self-righteousness, and embracing conspiracy theories of like-minded zealots."

But he's not a liar.

I agree that calling someone a liar can be a conversation stopper. And it can impede reasoned analysis. But what do you do when a person repeatedly says things that are not true, and insists on saying them over and over when people object that they are false? Perhaps Bush didn't really understand the economic consequences of his tax proposals in 2000 or who they would actually benefit. Perhaps he really changed his mind repeatedly about why he wanted tax cuts. Perhaps he really thought that there were weapons of mass destruction after all the evidence showed that this was wrong. But at some point, the number of false and misleading statements becomes so great that you have to assume that *some* of them were deliberate. At that point, what word can one use?

Kristoff is certainly correct that liberals should not become conspiracy theorists, or allow themselves to become blinded by rage. But they should not allow government officials to get away with making false and misleading statements repeatedly in order to justify policies that are bad for the nation. For too long the problem with liberals was that they allowed their political opponents to get away with bullying and prevarication. The left shouldn't lose its cool. But it has a moral obligation to speak truth to power.


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.


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