All Hail King Bush, God's Captain and Leader of His People

Brian Tamanaha

The 1628 session of the English House of Commons was occupied with debates over the king's claimed martial power to imprison people outside of ordinary legal processes as the king deemed necessary in defense of the state. The king's Secretary gave the following justification:

There is no man but desires to live under the law, and we all hold the common law our inheritance that does preserve us. We are in the government of a state. The martial law touches kings highly. It is their very original. They are God's captains and leaders of his people. The name of kings is sacred, and the foundation of the commonwealth depends on them. All civil government may pass well and have a happy success. And for arms and conducting of armies, it can admit of no formal law.

Four Centuries later, the Bush Administration has offered much the same argument: we are a nation under laws, but in his global war on terror Bush exercises authority above the law.

Sir Edward Coke's short answer to this argument, as sound then as it is now, was that England is a nation of laws. Either we abide by the rule of law, or we don't.
Posted 1:00 PM by Brian Tamanaha [link] (2) comments

How the Death of SUVs Reduced Race Discrimination at GM dealerships

Ian Ayres

Usually African-Americans get hurt during economic downturns. They are last hired and first fired and the standard deviation on cyclical black unemployment is larger than for whites.

But somewhat surprisingly GM's economic crisis may have caused it to adopt a more uniform pricing strategy that reduces dealer's opportunity for discrimination. The ThirdWay Ad Blog argues that reducing racialized mistreatreatment concerns for consumers is an intended part of the campaign:

[The General Motors Employee Discount "You pay what we pay" ads have] been
the most successful promotion in the car industry for some time and may have
single-handedly given General Motors and its embattled CEO Rick Wagoner some
breathing room.

There is no question that General Motors is offering rock-bottom pricing,
but it is the way they are doing it that's important. The last time the industry
went through a wave of price cutting it was done with 0% apr financing.

This price promotion is smarter because it fixes one of the largest
problems in the industry - one that is well-understood, has been studied in
controlled tests and one that GM itself was the first to address years ago. The
problem is price discrimination.

When asked, most people will say that if you are a woman or black and walk
into a car dealership, you will have difficulty getting the same price as a
white man. In fact, this was shown quantitatively in a study by Ian Ayres called
Pervasive Prejudice? Unconventional Evidence of Race and Gender Discrimination
(Chicago:University of Chicago Press, 2001).

The power of the "Employee Discount for Everyone" is not in the word
'discount' - it's in the last word 'Everyone.' In fact, the spot announcing this
discount is weighted towards non-white male speakers. Of the 7 spokespeople in
the spot (all employees), only two are white men. There are two more men - one
Hispanic and one Black and three women, one white, one Asian and one Black.
While this is not unusual in advertising in general, it serve a very specific
purpose here - to underline the world 'Everyone.'

In Pervasive Prejudice, I discussed a similar kind of ad that Saturn ran a few years ago. In a voiceover of photographs, a man remembers as a boy going with his dad to buy a car and how his dad felt he had been mistreated. That's why the man is now so proud to sell Saturn cars. Race is never mentioned but all the photographs are African Americans.
Posted 8:35 AM by Ian Ayres [link] (13) comments

The Heroes of the Pentagon's Interrogation Scandal -- Finally, the JAG Memos

Marty Lederman

On Monday, the Senate began consideration of several amendments to the annual Defense Authorization Act that would codify certain standards for interrogation of detainees in what was the Global War on Terror (but what is apparently to be known henceforth as the (perpetual) "Global Struggle Against Violent Extremism"). Yesterday, the Administration decided that it would rather put off the Authorization bill until after Labor Day, rather than risk any chance that it would be prohibited from engaging in cruel, inhuman and degrading conduct.

The Senate debate nevertheless was extremely valuable, because Senator Lindsey Graham submitted into the Congressional Record six remarkable memos written by Judge Advocate Generals of the Armed Forces during February and March of 2003. [In addition to that pdf file, I’ve republished the memos as a separate post, below.] The Senate Armed Services Committee requested these memos in October of last year, but DoD just recently declassified them. (An aside: As anyone who reads the memos can plainly see, there was no justification for classifying these memos, and from all that appears they were classified merely to prevent public debate about an important Administration policy. The improper classification of numerous Administration documents in this affair—including even the Church Report and its accompanying documents—is a scandal onto itself, but is not the topic of this post.)

The memos are extraordinary. They are written by JAGs from the Air Force, Navy, Army and Marines. As Senator Graham put it on Monday, these folks "are not from the ACLU. These are not from people who are soft on terrorism, who want to coddle foreign terrorists. These are all professional military lawyers who have dedicated their lives, with 20-plus year careers, to serving the men and women in uniform and protecting their Nation. They were giving a warning shot across the bow of the policymakers that there are certain corners you cannot afford to cut because you will wind up meeting yourself."

A bit of context, for those who may not have been following my (perhaps interminable) series of posts: From the mid-1960's until February 2002, military interrogations were governed by the (relatively) non-coercive techniques described in Army Field Manual 34-52, which (in theory) describes only techniques that would be permissible to use on POWs under the Geneva Conventions, the Uniform Code of Military Justice, and other federal laws. Generations of military personnel were trained in the specifics of Geneva and the Field Manual. In February 2002, however, the President determined that the "principles" of the Geneva Conventions would apply to detainees at GTMO only "to the extent appropriate and consistent with military necessity," thereby deviating from more than a half-century of U.S. policy and practice of adhering to at least the minimum protections afforded under Common Article 3 of the Conventions (which forbids "outrages upon personal dignity, in particular humiliating and degrading treatment").

And in late 2002, Secretary Rumsfeld approved for use, on at least one GTMO detainee, several interrogation techniques that went beyond what the Field Manual had recognized. General Miller and others at GTMO construed this authorization to permit treatment that the military itself now concedes is "abusive and degrading," but which the military to this day insists does not result in any violation of a U.S. law or policy.

In December 2002, career attorneys and others at the Pentagon raised serious legal, policy and practical objections to what the Secretary had approved, and, heeding the outcries, in January 2003 Rumsfeld suspended his approvals and ordered a review of military interrogation techniques by a DoD Working Group. As is now confirmed by these JAG memos, from the outset the Working Group’s extensive legal analysis was crafted almost entirely by the Office of Legal Counsel at the Department of Justice—by Deputy Assistant Attorney General John Yoo, in particular—and it largely tracked the extremely, shall we say, "novel" and "forward-looking" analysis contained in the now-notorious OLC "Torture Memo" of August 1, 2002. As Navy Rear Admiral Michael Lohr explains, the draft Working Group Reports—including the version of March 6, 2003, parts of which have been made public—not only were "informed" by OLC's analysis, but contain "large segments of DOJ work product," which "forms, almost exclusively, the legal framework for the Report's conclusions, Recommendations and PowerPoint spreadsheet analysis of the interrogation techniques in issue."

These six memos, written between February 5th and March 13th of 2003, provide the JAGs’ reaction to OLC’s handiwork.

It is fair to say that these accounts reflected sustained, uniform and passionate opposition to the OLC legal theories that were being foisted upon the military. Indeed, the tone of the memos is one of barely concealed incredulity, and outrage—disbelief—that a young legal academic from DOJ could sweep right in and so quickly overturn decades of carefully wrought military policy, using legal analysis that almost certainly would not withstand scrutiny outside the Administration and around the world. [I canvass some of the more striking aspects of the legal debate in some notes below.]

In particular, these memos eloquently warn of the grave harms that could result from such a radical shift in policies and legal understandings—harms not only to the prospects for nation's efforts to stop terrorism, but also to military interrogators and officers who could face domestic and international prosecution for engaging in such conduct, and, most importantly, to U.S. forces who are themselves detained in this and future conflicts. (One of the memos stresses, almost despairingly, that because "OLC does not represent the services," concern for servicemembers "is not reflected in their opinion.") As Air Force Major General Jack Reves wrote:

[T]he use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history. We have taken the legal and moral "high-road" in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty. It should be noted that law of armed conflict and code of conduct training have been mandated by Congress and emphasized since the Viet Nam conflict when our POWs were subjected to torture by their captors. We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful.

These memos reveal the JAGs as the real heroes of this story. Indeed, it's uncanny how prescient these memos were. As Senator Graham said on Monday, "the JAGS were telling the policymakers: If you go down this road, you are going to get your own people in trouble. You are on a slippery slope. You are going to lose the moral high ground. This was 2003. And they were absolutely right."

On March 14, 2003, just one day after the last of these memos was written, John Yoo delivered a memo to DoD General Counsel William Haynes, addressing the legal issues that had become the subject of the Pentagon debate. According to Senator Levin's account of the Church Report, once that memo was received, the debate was over—and the JAGs had lost, by decree of (at least) John Yoo and William Haynes: The DoD Working Group "was stopped from developing its own legal analysis and instead, was required to accept the legal analysis contained in [the March 14th] memorandum . . ., a memorandum [with] which the working group strongly disagreed. . . . This memo was presented, as [the Church] report indicates, to the working group as 'controlling authority' on all legal issues." And, indeed, the Yoo analysis appears, in full-throated form, in the Working Group's final Report, issued April 4, 2003.

Senator Levin has been asking DoD for the March 14th John Yoo memo for several months. Finally, last week, DoD informed the Senator that whether to release the memo is not a DoD decision, and that the request should be put to DOJ. There is simply no excuse for the continued withholding of this vitally important memo—a memo that, among other things, apparently expresses the view (not later repudiated by the Justice Department) that the Commander-in-Chief Clause gives the President the power to authorize violations of statutes such as the federal assault statute and the Uniform Code of Military Justice.

Is this entire contretemps merely a matter of historical record, with no particular relevance to the military's interrogation policies going forward? The Pentagon has suggested as much. In a hearing that Senator Graham chaired two weeks ago, a Pentagon Deputy General Counsel testified that DoD was "asked not to rely upon [the Yoo memo] going back to December of 2003 and [we] have not relied upon it since," and he further stated that the Yoo memo was formally "withdrawn as an operational document" in February 2005. (More on this soon, I hope.) Moreover, the military is currently working on a revised version of the Army Field Manual, which will be designed to guide all interrogations within the Armed Services, ostensibly in accord with all applicable legal constraints. (Unfortunately, the Pentagon plans to classify parts of it—something it has never done in the past.)

Unfortunately, however, the notion that this was all simply a problem during an unfortunate 12- to 14-month period two years ago is belied by the fact that the Administration—the Vice President, in particular—is pulling out all the stops in trying to prevent Congress from requiring the military to adhere to the Field Manual and from prohibiting cruel, inhuman and degrading treatment of detainees. If the Yoo analysis were truly a repudiated thing of the past, an unfortunate historical anomaly, why would the Administration hold up—and threaten to veto—the vitally important defense authorization bill, for fear of being saddled with extremely modest requirements that, as the JAGs explain, had served us very well for many decades?

[UPDATE: Terrific piece today by Spencer Ackerman at the New Republic, on why the JAG memos are important and on how the media have failed to adequately cover the story because they're cowed by the Newsweek/koran episode.]

* * * *

Here are a few of the legal highlights from the JAG memos. Even my overlong summary here, however, cannot do justice to these memos. Just read them. (They’re not long.)

1. The JAGs acknowledge what I have been trying to piece together on this blog for some time—namely, that OLC was crafting a series of legal moves to render GTMO virtually a law-free zone—a place in which numerous legal restrictions on interrogation did not apply. In the words of one of the memos, OLC's analysis established a "unique situation in GTMO where the protections of the Geneva Coventions, U.S. statutes, and even the Constitution do not apply." The key moves in this strategy were (i) the President's determination not to apply the standards of the Geneva Convention (even the most minimal protections of Common Article 3); (ii) the conclusion that the President could choose not to comply with customary international law; and (iii) the legal conclusions that because these detainees were "unlawful combatants" being held "outside" the U.S. (quotation marks in JAG memo), they are not protected by the Due Process Clause or by Article 16 of the Convention Against Torture.

2. The JAGs warned that if DoD embraced this clever strategy, in which there's a technical legal justification for ignoring every presumed legal restriction, "the American people will find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values," which would "affect our ability to prosecute the Global War on Terrorism."

3. Even so, there was widespread agreement that some of the techniques would violate the UCMJ and other criminal statutes, which still presented a hurdle that OLC sought to overcome. Yoo's theory for circumventing the UCMJ problem (and other statutory restrictions) was the "exceptionally broad" Commander-in-Chief "defense"—i.e., the theory that the UCMJ is unconstitutional to the extent it prevents the President from doing what he wishes to do in the current conflict. (As of February 27, 2003, however, the OLC work product apparently did not expressly speak about the UCMJ in particular).

4. It was Yoo who suggested that the Report recommend a written presidential directive that would grant immunity from criminal culpability for interrogators who would be acting in a manner prohibited by federal law.

5. Under OLC's theory, any presidential decision made in the context of the GWOT is a "controlling Executive act" that can supersede customary international law.

6. The purpose of the proposed (and approved) "false flag" technique—in which a detainee is led to believe he is being interrogated by foreign officials—was, indeed, to put detainees in fear of being transferred to a nation where they would be killed or injured—and that although it would be impermissible to inform a detainee of such possible consequences, the acknowledged objective was "to allow the detainee to form [his] own conclusions about such a [threatened false] move."

7. The final, April 4, 2003 Working Group report discussed 35 techniques. However, the draft March 6, 2003 Working Group report included a mystery, unnamed 36th technique (in a section of the draft that has not yet been made public)—a technique that the Working Group concluded "would constitute torture under international and U.S. law"; and there apparently was a possibility that Secretary Rumsfeld would approve this technique No. 36, although there's no indication that he ever did so. [I'm guessing it was water-boarding, and that Yoo concluded that it was not torture, in conformity with advice DOJ gave to the CIA in 2002. But that's pure surmise.]
Posted 8:10 AM by Marty Lederman [link] (1213) comments

The JAG Memos on Military Interrogation and OLC’s Legal Analysis

Marty Lederman

For explanation and comments, see here. And here's a pdf file of the memos themselves.

1. DEPARTMENT OF THE AIR FORCE, OFFICE OF THE JUDGE ADVOCATE GENERAL,
Washington, DC, February 5, 2003.

MEMORANDUM FOR SAF/GC

From: AF/JA

Subject: Final Report and Recommendations of the Working Group to Assess the
Legal, Policy and Operational Issues Relating to Interrogation of Detainees
Held by the U.S. Armed Forces in the War on Terrorism (U)

1. (U) In drafting the subject report and recommendations, the legal opinions of the Department of Justice, Office of Legal Counsel (DoJ/OLC), were relied on almost exclusively. Although the opinions of DoJ/OLC are to be given a great deal of weight within the Executive Branch, their positions on several of the Working Group's issues are contentious. As our discussion demonstrate, others within and outside the Executive Branch are likely to disagree. The report and recommendations caveat that it only applies to "strategic interrogations" of "unlawful combatants" at locations outside the United States. Although worded to permit maximum flexibility and legal interpretation, I believe other factors need to be provided to the DoD/GC before he makes a final recommendation to the Secretary of Defense.

2. (U) Several of the more extreme interrogation techniques, on their face, amount to violations of domestic criminal law and the UCMJ (e.g., assault). Applying the more extreme techniques during the interrogation of detainees places the interrogators and the chain of command at risk of criminal accusations domestically. Although a wide range of defenses to these accusations theoretically apply, it is impossible to be certain that any defense will be successful at trial; our domestic courts may well disagree with DoJ/OLC's interpretation of the law. Further, while the current administration is not likely to pursue prosecution, it is impossible to predict how future administrations will view the use of such techniques.

3. (U) Additionally, other nations are unlikely to agree with DoJ/OLC's interpretation of the law in some instances. Other nations may disagree with the President's status determination regarding the Operation ENDURING FREEDOM (OEF) detainees; they may conclude that the detainees are POWs entitled to all of the protections of the Geneva Conventions. Treating OEF detainees inconsistently with the Conventions arguably "lowers the bar" for the treatment of U.S. POWs in future conflicts. Even where nations agree with the President's status determination, many would view the more extreme interrogation techniques as violative of other international law (other treaties or customary international law) and perhaps violative of their own domestic law. This puts the interrogators and the chain of command at risk of criminal accusations abroad, either in foreign domestic courts or in international fora, to include the ICC.

4. (U) Should any information regarding the use of the more extreme interrogation techniques become public, it is likely to be exaggerated/distorted in both the U.S. and international media. This could have a negative impact on international, and perhaps even domestic, support for the war on terrorism. Moreover, it could have a negative impact on public perception of the U.S. military in general.

5. (U) Finally, the use of the more extreme interrogation techniques simply is not how the U.S. armed forces have operated in recent history. We have taken the legal and moral "high-road" in the conduct of our military operations regardless of how others may operate. Our forces are trained in this legal and moral mindset beginning the day they enter active duty. It should be noted that law of armed conflict and code of conduct training have been mandated by Congress and emphasized since the Viet Nam conflict when our POWs were subjected to torture by their captors. We need to consider the overall impact of approving extreme interrogation techniques as giving official approval and legal sanction to the application of interrogation techniques that U.S. forces have consistently been trained are unlawful.

JACK L. RIVES,
Major General, USAF,
Deputy Judge Advocate General.

______

2. DEPARTMENT OF THE AIR FORCE, OFFICE OF THE JUDGE ADVOCATE GENERAL,
Washington, DC, February 6, 2003.

MEMORANDUM FOR SAF/GC

From: AF/JA

Subject: Comments on Draft Report and Recommendations of the Working Group to
Assess the Legal, Policy and Operational Issues Relating to Interrogation of
Detainees Held by the U.S. Armed Forces in the War on Terrorism (U)

1. (U) Please note that while I accept that the Department of Justice, Office of Legal Counsel (DoJ/OLC), speaks for the Executive Branch and that its legal opinions in this matter are to be followed, I continue to maintain that DoJ/OLC's opinions on several of the Working Group's issues are contentious. Others may disagree with various portions of the DoJ/OLC analysis. I believe we should recognize this fact and therefore urge that certain factors should be prominently provided to the DoD/GC before he makes a final recommendation to the Secretary of Defense. I recommend the following specific modifications to the draft report dated 4 February 2003:

a. Page 2, add the following sentence to the end of paragraph 2:
It should be noted that several of the legal opinions expressed herein are likely to be viewed as contentious outside the Executive Branch, both domestically and internationally.

b. Page 54, change fourth full paragraph to read as follows:
(U) Choice of interrogation techniques involves a risk benefit analysis in each case, bounded by the limits of DOD policy and law. When assessing whether to use exceptional interrogation techniques, consideration should be given to the possible adverse effects on U.S. Armed Forces culture and self-image, which suffered during the Vietnam conflict and at other times due to perceived law of armed conflict violations. DoD policy, indoctrined in the DoD Law of War Program in 1979 and subsequent service regulations, greatly restored the culture and self-image of U.S. Armed Forces by establishing high benchmarks of compliance with the principles and spirit of the law of war, and humane treatment of all persons in U.S. Armed Forces custody. U.S. Armed Forces are continuously trained to take the legal and moral "high-road" in the conduct of our military operations regardless of how others may operate. While the detainees' status as unlawful belligerents may not entitle them to protections of the Geneva Conventions, that is a legal distinction that may be lost on the members of the armed forces. Approving exceptional interrogation techniques may be seen as giving official approval and legal sanction to the application of interrogation techniques that U.S. Armed Forces have heretofore been trained are unlawful. In addition, consideration should be given to whether implementation of such techniques is likely to result in adverse impacts for DoD personnel who become POWs, including possible perceptions by other nations that the United States is lowering standards related to the treatment of prisoners, generally.

Alternatively, change the last paragraph on page 68, to read as follows:
(U) The cultural and self-image of the U.S. Armed Forces suffered during the Vietnam conflict and at other times due to perceived law of armed conflict violations. DoD policy, indoctrinated in the DoD Law of War Program in 1979 and subsequent service regulations, greatly restored the culture and self-image of U.S. Armed Forces. U.S. Armed Forces are continuously trained to take the legal and moral "high-road" in the conduct of our military operations regardless of how others may operate. While the detainees' status as unlawful belligerents may not entitle them to protections of the Geneva Conventions, that is a legal distinction that may be lost on the members of the armed forces. Approving exceptional interrogation techniques may be seen as giving official approval and legal sanction to the application of interrogation techniques that U.S. Armed Forces have heretofore been trained are unlawful. General use of exceptional techniques (generally, having substantially greater risk than those currently, routinely used by U.S. Armed Forces interrogators), even though lawful, may create uncertainty among interrogators regarding the appropriate limits of interrogations, and may adversely affect the cultural self-image of the U.S. armed forces.

c. Page 68, add the following new paragraphs after the sixth full paragraph:
(U) Several of the exceptional techniques, on their face, amount to violations of domestic criminal law and the UCMJ (e.g., assault). Applying exceptional techniques places interrogators and the chain of command at risk of criminal accusations domestically. Although one or more of the aforementioned defenses to these accusations may apply, it is impossible to be certain that any of these defenses will be successful as the judiciary may interpret the applicable law differently from the interpretation provided herein.
(U) Other nations are likely to view the exceptional interrogation techniques as violative of international law and perhaps violative of their own domestic law. This places interrogators and the chain of command at risk of criminal accusations abroad, either in foreign domestic courts or in international fora, to include the ICC.

d. Page 68, add the following new paragraphs after the eighth full paragraph:
(U) Employment of exceptional interrogation techniques may have a negative effect on the treatment of U.S. POWs. Other nations may disagree with the President's status determination regarding Operation ENDURING FREEDOM (OEF) detainees, concluding that the detainees are POWs entitled to all of the protections of the Geneva Conventions. Treating OEF detainees inconsistently with the Conventions arguably "lowers the bar" for the treatment of U.S. POWs in future conflicts. Even where nations agree with the President's status determination, many may view the exceptional techniques as violative of other law.

2. (U) Should any information concerning the exceptional techniques become public, it is likely to be exaggerated/distorted in both the U.S. and international media. This could have a negative impact on international, and perhaps even domestic, support for the war on terrorism. It could likewise have a negative impact on public perception of the U.S. military in general.

JACK L. RIVES,
Major General, USAF,
Deputy Judge Advocate General.


----

3. DEPARTMENT OF THE NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL,
Washington, DC, February 6, 2003.

Subj: Working Group recommendations relating to interrogation of detainees.

1. Earlier today I provided to you a number of suggested changes, additions, and deletions to the subject document.

2. I would like to further recommend that the document make very clear to decision-makers that its legal conclusions are limited to arguably unique circumstances of this group of detainees, i.e., unlawful combatants held " outside" the United States. Because of these unique circumstances, the U.S. Torture Statute, the Constitution, the Geneva Conventions and customary international law do not apply, thereby affording policy latitude that likely does not exist in almost any other circumstance. (The UCMJ, however, does apply to U.S. personnel conducting the interrogations.)

3. Given this unique set of circumstances, I believe policy considerations continue to loom very large. Should service personnel be conducting the interrogations? How will this affect their treatment when incarcerated abroad and our ability to call others to account for their treatment? More broadly, while we may have found a unique situation in GTMO where the protections of the Geneva Conventions, U.S. statutes, and even the Constitution do not apply, will the American people find we have missed the forest for the trees by condoning practices that, while technically legal, are inconsistent with our most fundamental values? How would such perceptions affect our ability to prosecute the Global War on Terrorism?

4. I accept the premise that this group of detainees is different, and that lawyers should identify legal distinctions where they exist. It must be conceded, however, that we are preparing to treat these detainees very differently than we treat any other group, and differently than we permit our own people to be treated either at home or abroad. At a minimum, I recommend that decision-makers be made fully aware of the very narrow set of circumstances-factually and legally-upon which the policy rests. Moreover, I recommend that we consider asking decision-makers directly: is this the "right thing" for U.S. military personnel?

MICHAEL F. LOHR,
Rear Admiral, JAGC, U.S. Navy,
Judge Advocaate General.

---

4. DEPARTMENT OF THE NAVY,
HEADQUARTERS U.S. MARINE CORPS,
Washington, DC, February 27, 2003.

Memorandum for General Counsel of the Air Force

Subject: Working Group Recommendations on Detainee Interrogations

1. In addition to comments we submitted 5 February, we concur with the recommendations submitted by the Navy (TJAG RADM Lohr), the Air Force (TJAG MGen Rives), and the Joint Staff Legal Counsel's Office. Their recommendations dealt with policy considerations, contention with the OLC opinion, and foreign interpretations of GC IV (Civilians) and customary international law, respectively.

2. The common thread among our recommendations is concern for servicemembers. OLC does not represent the services; thus, understandably, concern for servicemembers is not reflected in their opinion. Notably, their opinion is silent on the UCMJ and foreign views of international law.

3. We nonetheless recommend that the Working Group product accurately portray the services' concerns that the authorization of aggressive counter-resistance techniques by servicemembers will adversely impact the following:

a. Treatment of U.S. Servicemembers by Captors and compliance with International Law.

b. Criminal and Civil Liability of DOD Military and Civilian Personnel in Domestic, Foreign, and International Forums.

c. U.S. and International Public Support and Respect of U.S. Armed Forces.

d. Pride, Discipline, and Self-Respect within the U.S. Armed Forces.

e. Human Intelligence Exploitation and Surrender of Foreign Enemy Forces, and Cooperation and Support of Friendly Nations.

KEVIN M. SANDKUHLER,
Brigadier General, USMC, Staff Judge Advocate to CMC.

DECLASSIFIED

Comments on Draft Working Group Report on Detainee Interrogations

1. Change p. 54, fifth paragraph, to read as follows (new language italic):
(U) Choice of interrogation techniques involves a risk benefit analysis in each case, bounded by the limits of DOD policy and law. When assessing whether to use exceptional interrogation techniques, consideration should be given to the possible adverse effects on U.S. Armed Forces culture and self-image which suffered during the Vietnam conflict and at other times due to perceived law of war violations. DOD policy indoctrinated in the DOD Law of War Program in 1979 and subsequent service regulations, greatly restored the culture and self-image of U.S. Armed Forces by establishing high benchmarks of compliance with the principles and spirit of the law of war and humane treatment of all persons in U.S. Armed Forces custody. In addition, consideration should be given to whether implementation of such techniques is likely to result in adverse impacts for DOD personnel who are including possible perceptions by other nations that the United States is lowering standards related to the treatment of prisoners and other detainees, generally.

2. Add to p. 68, a paragraph after the seventh paragraph that reads:
(U) Comprehensive protection is lacking for DOD personnel who may be tried by other nations and/or international bodies for violations of international law, such as violations of the Geneva or Hague Conventions, the Additional Protocols, the Torture Convention, the Rome Statute of the ICC, or the Customary International Law of Human Rights. This risk has the potential to impact future operations and overseas travel of such personnel, both on and off duty.

----

5. DEPARTMENT OF THE ARMY, OFFICE OF THE JUDGE ADVOCATE GENERAL,
Washington, DC, March 3, 2003.

MEMORANDUM FOR GENERAL COUNSEL OF THE DEPARTMENT OF THE AIR FORCE

Subject: Draft Report and Recommendations of the Working Group to Access the
Legal, Policy and Operational Issues Related to Interrogation of Detainees Held
by the U.S. Armed Forces in the War on Terrorism (U)

1. (U) The purpose of this memorandum is to advise the Department of Defense (DOD) General Counsel of a number of serious concerns regarding the draft Report and Recommendations of the Working Group to Access the Legal, Policy and Operational Issues Related to Interrogation of Detainees Held by the U.S. Armed Forces in the War on Terrorism (Final Report). These concerns center around the potential Department of Defense (DOD) sanctioning of detainee interrogation techniques that may appear to violate international law, domestic law, or both.

2. (U) The Office of Legal Counsel (OLC), Department of Justice (DOJ), provided DOD with its analysis of international and domestic law as it relates to the interrogation of detainees held by the United States Government. This analysis was incorporated into the subject draft Report and forms, almost exclusively, the legal framework for the Report's Conclusions, Recommendations, and PowerPoint spreadsheet analysis of the interrogation techniques in issue. I am concerned with several pivotal aspects of the OLC opinion.

3. (U) While the OLC analysis speaks to a number of defenses that could be raised on behalf of those who engage in interrogation techniques later perceived to be illegal, the "bottom line" defense proffered by OLC is an exceptionally broad concept of "necessity." This defense is based upon the premise that any existing federal statutory provision or international obligation is unconstitutional per se, where it otherwise prohibits conduct viewed by the President, acting in his capacity as Commander-in-Chief, as essential to his capacity to wage war. I question whether this theory would ultimately prevail in either the U.S. courts or in any international forum. If such a defense is not available, soldiers ordered to use otherwise illegal techniques run a substantial risk of criminal prosecution or personal liability arising from a civil lawsuit.

4. (U) The OLC opinion states further that customary international law cannot bind the U.S. Executive Branch as it is not part of the federal law. As such, any presidential decision made in the context of the ongoing war on terrorism constitutes a "controlling" Executive act; one that immediately and automatically displaces any contrary provision of customary international law. This view runs contrary to the historic position taken by the United States Government concerning such laws and, in our opinion, could adversely impact DOD interests worldwide. On the one hand, such a policy will open us to international criticism that the "U.S. is a law unto itself." On the other, implementation of questionable techniques will very likely establish a new baseline for acceptable practice in this area, putting our service personnel at far greater risk and vitiating many of the POW/detainee safeguards the U.S. has worked hard to establish over the past five decades.

5. (U) I recommend that the aggressive counter-resistance interrogation techniques under consideration be vetted with the Army intelligence community before a final decision on their use is made. Some of these techniques do not comport with Army doctrine as set forth in Field Manual (FM) 34-52 Intelligence Interrogation, and may be of questionable practical value in obtaining reliable information from those being interrogated.

THOMAS J. ROMIG,
Major General, U.S. Army,
The Judge Advocate General.

----

6. DEPARTMENT OF THE NAVY, OFFICE OF THE JUDGE ADVOCATE GENERAL,
Washington, DC, March 13, 2002.

MEMORANDUM FOR THE AIR FORCE GENERAL COUNSEL

Subject: Comments on the 6 March 2003 Detainee Interrogation Working Group
Report

My comments on subject report are provided below. These comments incorporate and augment those submitted by my action officer earlier this week. New comments are highlighted within the previously submitted text.

1. (U) Page 2, second paragraph: Add new penultimate sentence to read, "In addition this paper incorporates significant portions of work product provided by the Office of Legal Counsel, United States Department of Justice." In the last sentence change "by a Department . . ." to "by the Department . . ." Finally, add new footnote to reference the OLC opinion to read "Memorandum dated March xx, 2003., Re: xxxxxxxxxx.

Rationale: this WG paper contains large segments of DOJ work product, rather than being "informed" by DOJ. We believe the OLC opinion should be incorporated by reference into the WG report.

2. (U) Page 24, second paragraph, last sentence: delete.

Rationale: this sentence is not true. There are domestic limits on the President's power to interrogate prisoners. One of them is Congress's advice and consent to the US ratification to the Geneva Conventions that limit the interrogation of POWs. The willingness of the Executive, and of the Legislative Branch, to enforce those restrictions is a different matter.

3. (U) Page 24, footnote 20: delete or rewrite to read, "This is the stated view of the Department of Justice."

Rationale: Mr. Yoo clearly stated that he believes the viability of these defenses is greatly enhanced by advance Presidential direction in the matter. He specifically recommended obtaining such direction in writing.

4. (U) Page 26, first full paragraph, first sentence: delete.

Rationale: this statement is too broad. The similar language used at the end of the following paragraph is more accurate.

5. (U) Page 29, second paragraph, fifth sentence: Rewrite sentence to read, "A leading scholarly commentator . . ." and later in the sentence change ". . . section 2340 would be justified under . . ." to ". . . section 2340 should be justified under . . ."

Rationale: There is only one article written by one person cited. Also the quoted language from the commentator indicates his view that torture should be permissible, not a statement that international law allows such.

6. (U) Page 29, second paragraph, last sentence: delete.

Rationale: this conclusion is far too broad but the general principle can be inferred from the discussion.

7. (U) Page 31, para d, third sentence and penultimate sentences: delete.

Rationale: This analogy is inapt. There is nothing in law enforcement that would authorize the use of torture or excessive force against persons for intelligence gathering.

8. (U) Page 41, second paragraph, penultimate sentence: delete.

Rationale: it is not clear what the meaning of the sentence is.

9. (U) Page 59, second paragraph: it is unclear if SECDEF must approve exceptional techniques on a case-by-case basis, or just approve their use generally.

10. (U) Page 63, footnote 86. The text of this footnote does not correspond to its citation in the paper. It appears that the current text of footnote 86 belongs as part of the discussion of API in the paragraph above, or as part of the text of footnotes 83 or 84. Footnote 86 should detail the rationale for the Justice Department determination that GCIV does not apply.

11. (U) Page 67, technique 26: Add last sentence to read, "Members of the armed forces will not threaten the detainee with the possible results of the transfer, but will instead limit the threat to the fact of transfer to allow the detainee to form their own conclusions about such a move."

Rationale: threatening the detainee with death or injury (by the transfer) may be considered torture under international law.

12. (U) Page 72, second paragraph: in the last sentence replace "protections of the Geneva Conventions" with "protections of the third Geneva Convention."

Rationale: clarity

13. (U) Page 72, second paragraph: add new last sentence to read: "Under international law, the protections of the fourth Geneva Convention may apply to the detainees."

Rationale: this view is shared by Chairman's Legal and all the services.

14. (U) Page 72, third paragraph: at the beginning add, "In those cases where the President has made a controlling executive decision or action . . ."

Rationale: this is the standard by which the President may "override" CIL.

15. (U) Page 73, sixth paragraph: Add new last sentence to read, " Presidential written directive to engage in these techniques will enhance the successful assertion of the potential defenses discussed in this paper."

Rationale: much of the analysis in this paper is premised on the authority of the President as delegated/directed, in writing, to SECDEF and beyond. This point needs to be made prominently.

16. (U) Matrix Annex, Technique 33: delete.

Rationale: It is not clear what the intent of this technique is. If it loses its effectiveness after the first or second use, it appears to be little more than a gratuitous assault. Other methods are equally useful in getting/maintaining the attention of the detainee. It also has the potential to be applied differently by different individuals.

17. (U) Page 75, first paragraph, in the discussion re technique 36: Rewrite 3rd to last and penultimate sentences to read, "The working group believes use of technique 36 would constitute torture under international and U.S. law and, accordingly, should not be utilized. In the event SECDEF decides to authorize this technique, the working group believes armed forces personnel should not participate as interrogators as they are subject to UCMJ jurisdiction at all times."

This is a correct statement of the positions of the services party to the working group, who all believe this technique constitutes torture under both domestic and international law.

18. Thank you for the opportunity to comment. My action officer in this matter is CDR Steve Gallotta.

MICHAEL F. LOHR,
Rear Admiral, JAGC, U.S. Navy,
Judge Advocate General.

Posted 8:08 AM by Marty Lederman [link] (66) comments

Terrorism, Deterrence, and Searching on the Subway

Anonymous

Dave Hoffman (law, Temple) over at the Conglomerate blog, has written a very thoughtful retort to a recent post of mine (cross-posted at PrawfsBlawg and Balkinization) regarding the searching of baggage on NYC subways. I argued that:

It is another big waste of money and time, as well as a needless invasion of civil liberties -- all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.

Dave argues that I’m “underestimating the effect of random searches on public safety.” I am not much of an expert in behavioral law and economics and deterrence, so I’m straying far away from my turf. But I’ll try my best to defend the territory I’ve wandered onto.

Dave argues: “Terrorists are notoriously risk averse - they obey the law punctiliously until they attack. Thus, even a relatively minor risk of being caught will act as a very large deterrent, forcing terrorists to find other paths.” Really? Since when are terrorists risk adverse? Anybody willing to blow oneself up in the process of committing his or her crime is hardly risk adverse. And I just don’t see the relevance of the fact that terrorists obey the law prior to engaging in terrorism. However, suppose Dave were correct and the terrorists would “find other paths.” There are so many other targets that are even more dangerous and damaging. So we close off one target but leave the rest unguarded. Are we really any safer?

Dave also contends that if the police vary the number of searches, it will make it “hard for terrorists to intelligently evaluate the likelihood of being stopped on any given trip.” But unless the number of searches were really great in proportion to the number of subway riders (4.5 million each day), the variation would be relatively small. Wouldn’t the terrorists think that if three or four of them tried to bomb the subway on a given day, probably all (or at least most) would get through?

Dave argues that “there is a good argument that terrorists, subject to human behavioral tics, are likely to vastly overestimate the likelihood of being caught and therefore be more deterred than rational terrorists (what a contradiction in terms that is!) would be.” But Dave forgets that many terrorists are different from ordinary criminals in that terrorists are often on a suicide mission. They care about getting caught only because their mission might fail, not because of any potential legal sanction that might be imposed. If Dave is right, why on 9-11 did the terrorists try to use planes? Why not try some other means of terrorism? After all, planes involve a lot of security whereas other targets don’t. Wouldn’t the “risk-adverse” terrorist who might overestimate being caught attempt something else? Why did they go to flight school and expose themselves at many points to being detected when they could have tried something different? I’m certainly no expert on terrorist behavior, but I’m not very convinced by Dave’s theory.

Dave says: “Will terrorists then move on to other targets of opportunity? Probably. But forcing them to do so would be a victory.” I’m not so sure. This depends upon what the other targets are. Is it a victory to stop a terrorist from bombing a subway car and killing 40 people so that the terrorist decides instead to blow up a building or mall killing thousands?

Dave says I speak of two kinds of costs – law enforcement costs and civil liberties costs. For law enforcement costs, Dave argues that I neglect the other law enforcement benefits such as catching drug use and guns. True, the searching might help the police enforce other criminal laws, but I worry that the “special justifications” for fighting terrorism will then be used as a way to conduct general policing. The issue is whether we want ordinary crime policed at the same degree of invasiveness as terrorism.

The civil liberties costs are high, which Dave admits. There are also other costs as well, such as inconvenience and hassle, something which New Yorkers don’t like very much. Frankly, I wonder how long New Yorkers will be willing to put up with these searches.

Now, of course, let’s assume that the searches are not done using some kind of racial profiling – that they truly are random. If they’re not, then we need to address the profiling issue, which involves another cost Dave isn’t accounting for.

Finally, I’m a bit confused by Dave’s example. He uses a model of 1000 random searches per day, and calculates a “7% chance of being searched over the course of a year of weekdays.” I don’t know enough to say whether his rough calculations are correct, but I question the basic underlying assumption. Why look over the course of a year? Doesn’t this assume that a person rides the subway each and every day? Are terrorists likely to ride regularly each day and always be transporting materials for their plot on the subway each time?

Dave makes his arguments with humility, admitting that many of his points are made based on assumptions and models of behavior that he’s not entirely sure are correct. My arguments are made with a similar humility. I’m speculating a lot and am resting on a number of assumptions too.

There is another argument Dave doesn’t raise against my position that is worth thinking about. He might contend that even if I’m right that the searching provides mostly a “cosmetic” benefit, is there still a benefit worth considering? If a cosmetic but ineffective security measure makes people feel better, doesn’t making people feel better have value? So if Security Measure X is much less effective and more costly than Security Measure Y, but X makes people feel much better, to what extent should this attribute weigh in the balance? But even if we can placate people based on false perceptions, should we?
Posted 3:18 PM by Anonymous [link] (28) comments

A "Sick" Political-Legal System

Brian Tamanaha

Let's take a momentary break from John Roberts tea leaf reading prognosticating (never have I read so much, but learned so little about a person), and instead contemplate the broader situation.

How could we have developed a political-legal system in which a single man has so much apparent power to determine the fundamental principles and legal rules that will govern our individual, social, political, and economic lives?

What political or legal theory could justify or legitimate vesting so much power in a single judge in our liberal democracy of 300 million people?

Why are we collectively (liberals and conservatives, including President Bush) in the helpless position of hoping that the views of this one person won't be too contrary or harmful to our understandings of the law?

Skip the reasons for judicial review and explanations about the contemporary 5-4 alignment, and never mind saying that judges don't decide everything--yes, yes, yes--we know all that. Those points, correct as they may be, distract us from seeing the situation as it is: a single judge, a single man, will have immense power over us all (as did the woman he will be replacing).

Although is impossible to tell whether our political-legal system is suffering from a really bad case of the flu that we cannot seem to shake, or from terminal cancer, it seems clear that the system is sick. If you think this is an exaggeration, recall that five years ago five judges picked the President. I have made an attempt to diagnose some of the factors that have led to this condition, but it is beyond my ken. What I do know is that our political-legal system is in a terrible state.

Now, back to reading those Roberts tea leaves...
Posted 1:40 PM by Brian Tamanaha [link] (51) comments

Overruling Roe Isn't The Issue

JB

Posts like this and this speculate that John Roberts will vote to overturn Roe v. Wade despite what he said at his April 2003 confirmation hearings:

Roe v. Wade is the settled law of the land. It is not--it's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision. Accordingly, it's the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent, as well as Casey.

The reasoning is that as a circuit judge Roberts is bound by precedent, but as a Supreme Court judge he is not.

I think this misses the point.

First, the issue is not whether Roe is overruled. The issue is whether it is hollowed out and made practically irrelevant. As I've explained here and here and here there are good reasons why the Republican Party does not want to see Roe overruled. It would split their coalition and undermine their position in national politics for years to come. The far more strategic approach is to nominate candidates who will "follow the law:" they will uphold Roe's ban on outright criminalization of abortions but slowly whittle away at the decision until it provides the practical right to abortion only to relatively educated and affluent women with resources and connections. That is, ironically enough, pretty much what the effective "right" of access to abortion was before 1973 when Roe was decided.

If you think that's not possible, remember the fate of two other very controversial Supreme Court decisions. Brown v. Board of Education and Miranda v. Arizona. Brown v. Board of Education is now universally lauded, but our schools are increasingly segregated by race, and Brown is now used by conservatives to attack the constitutionality of affirmative action. Miranda v. Arizona is still disdained by many conservatives, but it was reaffirmed in 2000 in an opinion by Chief Justice Rehnquist himself. However, the rule of Miranda has been watered down in subsequent decisions and its practical effect undermined by generations of clever police tactics. Miranda survives in part because television shows have made it an icon, but that says nothing about its practical effect. If you are really concerned about abortion rights, you should stop worrying about whether Roberts will overturn Roe and start worrying about all the ways he could vote to limit it.

Second, why is it so difficult to believe Roberts when he says that Roe is settled law? If the Bush Administration has the strategy I attribute to them, they would nominate someone who sincerely believed precisely what Roberts said, not only in his capacity as a circuit judge, but also as a Supreme Court Justice. I predict that very soon we are going to see a conservative establishment position on Roe v. Wade which goes something like this:

We tried for years to overturn Roe, but the Supreme Court repeatedly rejected our attempts and told us in Casey that the issue was settled. Because of Casey, Roe is a "super stare decisis" precedent. We don't like it, but there are lots of other liberal opinions (like Miranda) that we don't like either. However, the fact that Roe is settled doesn't mean that it should be read the way liberals want-- abortion on demand. Rather, it means only that you can't criminalize abortion and you can't deliberately try to stop women from getting abortions. Anything else is fair game, even if it reduces the number of abortions.

Roe doesn't say you can have any method of abortion you want, just a medically safe one, even if it's more expensive than others that the state prohibits. The key point is that there's nothing unconstitutional about state policies designed to reduce the number of abortions as long as women aren't directly coerced. Casey itself said that states could prefer childbirth to abortion, and we'll vote to uphold almost any statute that does so. Eventually we think most Americans will agree that we should have a culture that respects unborn life, and Roe won't matter very much

The expression "super stare decisis," by the way, isn't original with me. It was coined by none other than Michael Luttig in a decision in the 4th Circuit. Of course Luttig was also speaking in his capacity as a circuit judge. Nevertheless, I think that the idea is going to gain currency among lots of conservatives: we think Roe was a mistake, but we'll uphold the basic rule against criminalization and coercion. You can also see the signs in how conservative courts are treating Lawrence v. Texas, which struck down state sodomy laws: Lawrence, like Casey, does not protect a fundamental right, only a "liberty" interest. It prohibits criminalization of sodomy, and nothing more.

Again, I can easily see someone like Roberts, who is a lawyer's lawyer, and who believes in all the Rule of Law values, taking a position very much like this when he gets on the Court.

In my view, that's going to be the mainstream conservative position of the future, and it's the one that pro-choice people ought to be worried about.

Posted 7:35 AM by JB [link] (36) comments

Guest Blogger-- Dan Kahan

JB

My colleague Dan Kahan, a major figure in criminal law, whose specialty is the study of social norms and social cognition, will be posting occasionally on Balkinization. Please give him a warm welcome.

Posted 10:36 PM by JB [link] (49) comments

The Gun Debate: Impervious to Fact, but Not Insusceptible of Resolution

Dan Kahan

Can individuals be expected to change their mind in the gun control debate? Perhaps, but definitely not as a result of empirical evidence relating to the supposed efficacy or inefficacy of various forms of gun control. This is one of the conclusions supported by data collected in the National Risk Culture Survey.

The basic hypothesis investigated by the Survey was that individuals adapt their perceptions of risks to their values. To avoid cognitive dissonance, most of us are predisposed to believe that morally worthwhile behavior is benign, and morally objectionable behavior dangerous. In addition, most of us aren’t in a position to gather empirical data, or to evaluate the empirical studies conducted by others, on whether global warming is a serious threat, whether being operated on by an HIV-positive surgeon presents a serious risk of HIV infection, whether obtaining an abortion poses a serious threat to the health of women, etc. Instead we must rely on the word of those whom we trust. The people we trust, not surprisingly, are the ones who share our basic cultural values and who are likely to be disposed to accept one set of factual claims or another to avoid cognitive dissonance. Put all these dynamics together, and we should expect to see cultural polarization on various societal and personal risk issues. And that’s exactly what we found in the National Risk Culture Survey.

One of the issues on which we found such a pattern was "gun risks." The gun control debate is naturally framed as one between competing risk perceptions: that too little gun control risks a world pervaded by gun violence and accidents versus the risk that too much gun control risks a world in which the law-abiding are unable to defend themselves from violent criminals. Which one of these risks individuals take more seriously, we found, is strongly predicted by their cultural worldviews: persons of an egalitarian or solidaristic worldview worry more about gun crime and accidents, persons of an hierarchic or individualistic worldview worry more about defenselessness. These conflicting gun-risk perceptions correspond to the positive and negative social meanings that guns bear across these competing cultural ways of life.

The survey collected information on a host of different sorts of gun attitudes. We collected information not only on our respondents’ attitudes toward competing gun risks, but also their beliefs about gun control laws and the value they attach or antipathy they experience toward guns for essentially cultural reasons.

We found, not surprisingly, that these various sorts of attitudes tend to be strongly correlated. That is, if someone has a positive cultural evaluation of guns, he or she very likely thinks guns aren’t dangerous, and that gun control increases rather than reduces crime; in contrast, if a person has a negative cultural evaluation of guns, he or she likely thinks guns are dangerous, and that gun control would reduce rather than increase crime. This strong clustering of views is consistent with the idea that individuals conform their factual beliefs about risk and risk-regulation to their cultural appraisals of the activities subject to regulation.

Nevertheless, it’s still possible to try to figure out what matters more to people facts or values. Although people generally believe that gun control works or doesn’t depending on whether they are culturally disposed to dislike or like guns, we can simply ask them: would you change your position on gun control if, contrary to your existing views, evidence were produced that showed stricter gun control would make society more safe or less?

Our Survey did that, and we found, unambiguously, that for the vast majority of Americans, cultural values trump gun-control facts. Overall, about 59% of the respondents in our 1600-person nationwide sample agreed, and 39% disagreed, that American society needs “stronger gun control laws.” Of the persons who indicated they favor more gun control, 79% expressed agreement with this statement: “[e]ven if the widespread ownership of guns greatly reduced crime, I wouldn’t want to live in a society where lots of people armed themselves for self-protection.” Of the persons who indicated that they oppose more gun control, 87% agreed with this statement: “[e]ven if banning handguns would greatly reduce crime, it would be wrong for society to forbid law-abiding people from owning guns for self-protection.”

The bottom line seems clear: more facts on guns won’t generate consensus on whether and how to regulate private weapons possession.

But does that mean that the prospects for overcoming societal dissenus on gun control are essentially nil? We don’t think so.

Return to the finding that all individual gun attitudes tend strongly to cohere: that is, if they have a positive cultural attitude toward guns, they tend to believe guns are safe and gun control inefficacious, whereas if they have a negative cultural attitude toward guns they tend to believe guns are dangerous and gun control effective. Individuals have “global gun attitudes” that are largely cultural in origin. That gun attitudes are “global” and “cultural” in this sense implies that that individuals could be expected to change their views, and that individuals of diverse cultural orientations could in fact be expected to converge in their factual beliefs and overall attitudes, if doing so could be made compatible with their basic cultural commitments.

The results of the National Risk Culture Survey imply that conflict over guns is, at bottom, an artifact of a type of cultural status anxiety. Persons naturally identify strongly with the their cultural values and with those who share them. When a societal conflict seems to pit the values of their cultural group against those of another, individuals instinctively adopt a defensive posture, blocking out messages that they believe emanate from or ultimately bolster the position of their cultural adversaries. That’s what’s happening on guns, on environmental protection, and a host of other issues.

But there’s nothing immutable about the cultural valences that particular policy outcomes bear. On the contrary, through the appropriate expressive framing of policies, and the appropriate selection of culturally authoritative policy advocates, a variety of policies can be constructed that are appealing simultaneously to persons of diverse cultural orientations. In the resulting climate of trust that emerges, groups of diverse orientation can in fact be expected to become receptive to factual information relevant to improving their common welfare. This expressively pluralistic form of democratic deliberations has worked on various issues fraught with cultural conflict, and it can work on guns.

At this point, I’m sure you are impatient for specifics. You can find some in our working paper, Overcoming the Fear of Cultural Politics: Constructing a Better Gun Debate. Other papers downloadable from the Cultural Cognition Project site can also give you a more complete picture of the theoretical and empirical underpinnings of this argument.

But if you are looking for a simple take-away message, it’s this: in the American gun debate, as in a host of other risk regulatory disputes, culture is prior to fact, both cognitively and politically.

Posted 9:36 PM by Dan Kahan [link] (25) comments

Cheney v. McCain for the Soul of the Republican Party?

Marty Lederman

Here's Andrew Sullivan today on the impasse between the Vice President and Senators McCain/Graham/Warner, which I discuss below:

It's going to be a battle of wills—between decent conservatism and the lawless, government-knows-best policies of Cheney and Bush. . . .

It beggars belief that, after Abu Ghraib, Bagram, Gitmo and the dozens of deaths in interrogation that the administration wouldn't want some way out of its own impasse. But no: as so often, it sticks its heels in, and refuses to acknowledge an obvious and terrible mistake in the war. I look forward to the hard right describing McCain as a leftist or unpatriotic because he wants to restore America's reputation as a country that acts ferociously but always humanely in its own defense.

Posted 11:59 AM by Marty Lederman [link] (22) comments

Congratulations, Bill Haltom and Michael McCann

Mark Graber

Congratulations to Bill Haltom and Micheal McCann, whose study of tort reform, DISTORTING THE LAW: POLITICS, MEDIA, AND THE LITIGATION CRISIS (Chicago 2004) has just won the Pritchett Award for the best book published in public law over the last two years. Haltom and McCann do a wonderful expose on how major corporations, posing as tort reformers, have used the mass media to portray a tort crisis that does not exist. Focusing on the famous McDonald's episode and other popular media anecdotes, they highlight how the media, egged on by corporate lawyers, focuses on sensational cases, ignoring both the disturbing practices underlying those cases (McDonald's was repeatedly warned that their coffee was causing injuries) and the more numerous cases in which plaintiffs with powerful tort claims get nothing. Well written and well worth reading. Special congratulations are in order to Professor McCann, as this is his record setting second book (RIGHTS AT WORK) that has won the Pritchett prize.
Posted 1:34 PM by Mark Graber [link] (32) comments

President Tells Congress to Take a Hike on Detention and Interrogation

Marty Lederman

As I noted earlier this week, Senators Graham, McCain and Warner have indicated that they are prepared to craft legislation dealing with three questions that have been at the heart of debates about detention, interrogation and torture: (i) What is the definition of an "enemy combatant" who may be detained by the military outside the ordinary civil justice system?; (ii) What procedural rules should be employed by military tribunals?; and (iii) Which interrogation techniques should be authorized, and which prohibited?

In addition, Senator Levin and others are proposing the creation of an independent commission to address these and related questions (including questions about what the Administration's practices have been thus far).

The White House now is trying to cut these initiatives off at the pass. In a Statement of Administration Policy issued yesterday, the Administration articulated its support for S.1042, the National Defense Authorization Act for Fiscal Year 2006. But the SAP goes on to issue a rare and strongly worded veto threat, as well:

The Administration understands that amendments may be offered to establish a national commission on the detainee operations or to regulate the detention, treatment or trial of terrorists captured in the war on terror. The Administration strongly opposes such amendments, which would interfere with the protection of Americans from terrorism by diverting resources from the war to answer unnecessary or duplicative inquiry or by restricting the President's ability to conduct the war effectively under existing law. The Constitution and the Authorization for Use of Military Force Joint Resolution (Public Law 107-40, September 18, 201) provide the authority the President needs to conduct the war effectively and protect the American people. If legislation is presented that would restrict the President's authority to protect Americans effectively from terrorist attack and bring terrorists to justice, the President's senior advisers would recommend that he veto the bill. (Emphasis in original.)

Fancy that: Even before any amendments are offered—by leading conservative Senators of the President's own party—and therefore before the White House has even seen what the statutory language might be, the President categorically concludes that the legislation necessarily "would interfere with the protection of Americans from terrorism . . . by restricting the President's ability to conduct the war effectively under existing law."

Heaven forbid Congress should have the nerve to actually exercise its authorities under Article I, section 8, clauses 10, 11 and 14 of the Constitution—which empower Congress to define and punish Offences against the Law of Nations, to make Rules concerning Captures on Land and Water, and to make Rules for the Government and Regulation of the land and naval Forces. For to do so will invariably hamper the Executive's abiltity to keep the Nation safe from terror.

Isn't this just a tad too much arrogation of power, even for this President?

What if Congress, for example, decided to heed the advice of the 9/11 Commission (see page 380), and passed a bill codifying the modest standards of Common Article 3 of the Geneva Conventions, which provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment"? (Such a statute would "merely" require that U.S. policy be brought back into line with what it had been from 1949 (if not earlier) until February 2002—an exceedingly modest restoration of civilized conduct, albeit far less than what ought to be done.)

The President would actually veto the all-important Defense Authorization bill simply because Congress would forbid him from authorizing "outrages upon personal dignity, in particular humiliating and degrading treatment"?! And he would have the gall to do so on the ground that forbidding such degrading treatment—such as tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks, using female interrogators to sexually humiliate him, and pouring water on his head 17 times during interrogation—would "restrict[] the President's ability to conduct the war effectively"?

Well, that certainly would be an interesting justification for this President's first veto.

Fortunately, it appears that Senators Graham and McCain are not so easily cowed, despite the apparent pleas of the Vice President himself: "McCain, who endured torture as a prisoner of war in Vietnam, said after meeting at the Capitol with Vice President Dick Cheney that he still intended to offer amendments next week 'on the standard of treatment of prisoners.'"

[UPDATE: Great story in Saturday's Washington Post about the desperate efforts of the Vice President to deep-six the Graham/McCain/Warner initiative. Excerpts:

The Bush administration in recent days has been lobbying to block legislation supported by Republican senators that would bar the U.S. military from engaging in "cruel, inhuman or degrading treatment" of detainees, from hiding prisoners from the Red Cross, and from using interrogation methods not authorized by a new Army field manual. Vice President Cheney met Thursday evening with three senior Republican members of the Senate Armed Services Committee to press the administration's case that legislation on these matters would usurp the president's authority and -- in the words of a White House official -- interfere with his ability "to protect Americans effectively from terrorist attack."

It was the second time that Cheney has met with Senate members to tamp down what the White House views as an incipient Republican rebellion. . . . This week's session was attended by Armed Services Chairman John W. Warner (R-Va.) and committee members John McCain (R-Ariz.) and Lindsey O. Graham (R-S.C.). . . .

No effort has been made by McCain to cultivate Democratic support [for the draft legislation], although his aides predict he could get it easily. . . . A spokeswoman for McCain, Andrea Jones, said yesterday that McCain plans to introduce the legislation next week. McCain, who was a prisoner of war in Vietnam, has criticized the way detainees have been treated by U.S. forces and is said by aides to want to cut off further abuse by requiring that the military adhere to its own interrogation rules in all cases.

One McCain amendment would set uniform standards for interrogating anyone detained by the Defense Department and would limit interrogation techniques to those listed in the Army field manual on interrogation, now being revised. Any changes to procedures would require the defense secretary to appear before Congress.

It would further require that all foreign nationals in the custody or effective control of the U.S. military must be registered with the International Committee of the Red Cross -- a provision specifically meant to block the holding of "ghost detainees" in Iraq, in Afghanistan or elsewhere. The provision would not apply to detainees in CIA custody at nonmilitary facilities. . . .

Another McCain amendment prohibits the "cruel, inhuman or degrading treatment or punishment" of anyone in the custody of the U.S. government. This provision, modeled after wording in the U.N. Convention Against Torture -- which the United States has already ratified -- is meant to overturn an administration position that the convention does not apply to foreigners outside the United States.

Graham, who has been outspoken on the need for Congress to get involved in the issue of detainee treatment, said in an interview that he intends to pursue additional amendments that would define the term "enemy combatant" for purposes of detention and regulate the military trials of detainees held at Guantanamo Bay.

Graham said he believes that his amendment would strengthen the president's ability to pursue the war on terror because it would give congressional support to the process of prosecuting detainees after they are transferred to Cuba, an issue that has been hotly contested in federal courts. "Every administration is reluctant to not have as much authority as possible," Graham said, adding that he has gotten mixed signals from the White House. "But we need congressional buy-in to Guantanamo."

Posted 10:44 AM by Marty Lederman [link] (27) comments

Grasping at French Fries: Evaluating Judge Roberts

Anonymous

So much speculation has erupted throughout the blogosphere and in the mainstream media about what kind of Supreme Court Justice Judge Roberts will be. Some make mention of some of his statements in briefs and legal pleadings. Bernie Meyler (law, Cornell) guesting on PrawfsBlawg discusses a few sentences of his rhetoric in some opinions from his meager two years on the bench. And Kim Scheppele here at Balkinization looks to a case involving French fries on the DC metro. And then there’s talk about whether he was a member of the Federalist Society or not (he wasn’t, as Orin Kerr points out).

We’re really grasping at French fries, I think, to fuel our speculation over Judge Roberts. The only thing we can say for sure is that we have so extremely little to go on. Circuit court judges are bound by Supreme Court precedent, are also bound by the precedent of their circuit. So we don’t know much about how they’ll be when they’re unbound, when they grow comfortable in their Supreme Court robes. And advocates argue their clients’ positions, not their own, so we’ll never know if any of the statements he made as a lawyer were his own beliefs.

Certainly we can read the tiny opus of opinions Judge Roberts authored in his short stint as a judge. But it often takes time for judges to ripen on the bench, so even these will not be very telling. The short of it is that we just don’t know. And that’s what’s so frustrating.

Michael Dorf (law, Columbia) looks to whom Roberts chose to work for:

I doubt that President Bush directly sought from Roberts a commitment on particular issues, and as I share the general view of Roberts as a man of integrity, I am certain that if he were asked, he wouldn’t have provided such assurances. So how can movement conservatives be confident that Roberts will vote as one of them?

The short answer is that they cannot be wholly confident, but the longer answer is that they can take considerable comfort from the company Roberts keeps. He clerked for then-Associate Justice William Rehnquist when Rehnquist was clearly the Court’s most conservative member. He spent most of his career in the federal government, but only during Republican administrations. Thus, while Roberts is entitled to say that briefs he wrote, including those calling for the overruling of Roe, were in the service of a policy set by his political bosses, skeptics are equally entitled to ask why Roberts chose to work for these and not for other bosses.

But the fact that Roberts clerked for then-Justice Rehnquist doesn’t say all that much about what kind of justice he’ll be. Nor does the fact that Roberts worked in Republican administrations.

Perhaps the only thing we can be confident in is that the Bush Administration was not being cavalier about this appointment. I doubt anybody forgot about Justice Souter. So to the extent people are betting on what kind of Justice Judge Roberts will be, I’ll place my bet that the insiders selected a nominee who would be a reliable conservative vote on the Court. After all, I bet that they looked at more of Roberts’ French fries than any of us.

But in the end, who really knows? We just don’t have enough right now to go on.
Posted 11:23 PM by Anonymous [link] (44) comments

Baggage Checks on NYC Subways -- Another Cosmetic Security Measure

Anonymous

The AP is reporting that police will begin random checking of people's bags on NYC subways:

Police will begin random searches of bags and packages carried by people entering city subways, officials announced Thursday after a new series of bomb attacks in London.

Passengers carrying bags will be selected at random before they pass through turnstiles, and those who refuse to be searched won't be allowed to ride, Police Commissioner Raymond Kelly said.

"We just live in a world where, sadly, these kinds of security measures are necessary," Mayor Michael Bloomberg said. "Are they intrusive? Yes, a little bit. But we are trying to find that right balance."

The announcement drew complaints from civil liberties advocates in a city where an estimated 4.5 million passengers ride the subway on an average weekday. The system has more than 468 stations — most with multiple entrances — and the flood of commuters hurrying in and out of stations during rush hour can be overwhelming.

Kelly stressed that officers posted at subway entrances would not engage in racial profiling, and that passengers are free to "turn around and leave." He also downplayed the possibility of bottlenecks at subway entrances.

That makes me feel better -- people are just free to leave, so the searching is fine. I'm dashing this post off quickly, so I won't explore the legality of this. But regardless of the legal issues, this seems to me to be a very silly policy. It is another big waste of money and time, as well as a needless invasion of civil liberties -- all for a cosmetic security benefit. There are 4.5 million passengers each day on the NYC subways. What good could a few random checks do? The odds of the police finding the terrorist with a bomb this way are about as good as the odds of being hit by lightning. I doubt it will have much of a deterrent effect either.

Also consider this from the story:

Kelly said passengers selected for searches will be approached by officers, who will ask them what they are carrying, and request them to open their bags. If an officer looking for explosives finds some other form of contraband, police said that person would be subject to arrest.

Does this mean that if the police find illegal drugs that they will arrest people? It isn't clear what categories of "contraband" are included in this statement.

A more effective strategy might be to use bomb sniffing dogs, as this would better prevent the police from conducting searches for drugs or things other than bombs. But even the use of dogs, with the sheer numbers of subway passengers, does not strike me as very effective either.
Posted 5:28 PM by Anonymous [link] (6) comments

Substance vs. Structure

Anonymous

Structural arguments are still quite in vogue these days. Federalism versus a national government. Judicial “activism” versus judicial restraint. Filibuster rule versus no filibuster rule. All of these arguments purport to be about structural rules, and they are independent of ideology insofar as they could be argued by liberals or conservatives depending upon who happens to be in power at the moment.

So while liberals will support a robust judicial review, with the Warren Court hovering in their memories, an increasingly conservative judiciary might change all that. During the Lochner era, it was the liberals who attacked judicial review and argued for greater judicial restraint. That all changed with the rise of the Warren Court, when the positions of the liberals and conservatives flipped. If the judiciary becomes increasingly conservative, I wonder whether these positions will flip again. Interestingly, in the Terri Schiavo case, it was the conservatives calling for more judicial review, for federal judicial involvement, and for finding a new constitutional right.

What about dividing power between the states and the federal government? For years, it has been the conservatives harping for more state power. Yet in Bush v. Gore, it was the conservatives who were all in favor of the Supreme Court striking down state law and the liberals who were arguing that the Court should not become involved in this state law matter. Today, the Republicans control Congress, and increasingly many states are being more progressive about issues such as protecting privacy or allowing for medical marijuana. As a liberal, I find my views on federalism changing. I used to be staunchly in favor of more federal power; increasingly I find myself wanting the states to be left alone to regulate as they want.

And the filibuster rule. I wonder how many Democrats would be fighting as vigorously to retain it if the situation were reversed, with the Republicans in the minority and Democratic judicial nominees being considered.

Although there appear to be traditional positions for liberals and conservatives on these structural issues, I doubt that the commitment runs too deep in many cases. One theory is that structural arguments are made as a guise to hide substantive arguments. Instead of having a reasoned debate on substance, people resort to claims about structure because it appears more neutral, because it avoids a confrontation on substantive ideology.

Another theory is that people are just more committed to substance than structure. As state law increasingly becomes more protective of rights and civil liberties, liberals may shift to being federalists. This may happen because liberals care more about their substantive ideological goals rather than some vision of the proper structure of governmental power.

Under either explanation, substance trumps structure. If we understand this, perhaps we should more directly address arguments about substance.

I don’t believe that anything I’ve said here should strike many as all that surprising. Nevertheless, although we know that structural commitments are often skin deep, that they are often driven more by substantive disagreements underneath, the arguments and rhetoric still continue on as usual. We watch as people play the surface game, with the same tired old arguments trotted out. And we know it is just surface play. When we realize that it’s just a game, should we continue to keep playing it and pretending along?

Perhaps the reason is that many believe that people have intractable substantive ideological disagreements and there is little way to find a meaningful consensus or compromise. Thus, under this view, arguments over substance will be futile. Maybe structure is all that’s left, even if it is just a game. I sure hope that this isn’t the case.
Posted 4:32 PM by Anonymous [link] (42) comments

Why Do We Bother With the Legal Niceties?

Brian Tamanaha

The World Tribunal on Iraq, after holding 20 hearings in various cities around the world, with appearances from numerous witnesses and advocates, issued its findings a few weeks ago: the US has committed egregious violations of international law, including crimes against humanity. The United States has engaged in an illegal war, and is illegally occupying Iraq. The stated justifications for the war were false, based upon manufactured intelligence (no weapons of mass destruction, no connection with 9/11, no imminent threat to U.S.). A hundred thousand Iraqis have died since the war began. Tens of thousands of Iraqis have been held in prisons, many subjected to torture, and a number killed. US corporations are engaged in profiteering of Iraqi resources.

This so-called “World Tribunal” was a Kangaroo Court, of course, an elaborate public relations campaign put together by a bunch of leftist groups from around the world. They disregarded the fact that we had authorization from the UN for the war to enforce the UN resolutions (indeed the “Tribunal” had the temerity to castigate the UN Security Counsel for going along with the US), and they dismissed our international coalition of the willing as a farce. And while we might have been wrong about the weapons of mass destruction—perhaps the WMDs were just hidden really well—the “Tribunal” failed to recognize that our faulty intelligence was Sadaam Hussein’s fault, who acted as though he had WMDs (by inviting UN inspectors to look for them, and then being cagey as if he had something to hide). And of course the torture that occurred was by a few errant, poorly trained soldiers, who will be punished; and the deaths are being duly investigated. As for Guantanamo, well, our courts have already ruled on that, and internal investigations have shown that evidence of purported torture is lacking. Besides, the prisoners are terrorists (or might be terrorists, which is close enough), who are lucky they are being held by a civilized country like the U.S.

This is all more U.S. bashing. Good thing the U.S. press ignored completely the “Tribunal” and its findings. They are unfairly trying to make the U.S. look bad by pointing out stuff like how many Iraqis have died (and surely the number is much lower than 100,000—we don’t hear anything about Iraqi deaths). They forget that we’re there to save the Iraqi people!

It makes you wonder why we bother with all the legal niceties. The rest of the world doesn’t buy it, and Americans aren’t worried about it. We are the U.S. of A. We know we are the good guys, the white hats, the honorable sheriff in town. We do the right thing. We live by the rule of law, so whatever we do is legal.



Addendum: Please, no more e-mails asking about a change in my political views. To get my meaning, imagine that this essay was being delivered by Jon Stewart (I can dream). It is pure sarcasm--with a straight face, making absurd points in defense of US conduct in Iraq (like blaming Sadaam for our poor intelligence). I guess these points didn't appear obviously absurd because our own leaders have been repeating them so much, but the last line should have been a giveaway. I used irony in the hope that it would be a bit more provocative than the usual anti-war stuff--which gets little attention.

Let me be explicit: Not only is the war and occupation illegal, in my view, it is a moral, political, legal, economic, and security disaster. We are an outlaw nation that engages in torture, holds people indefinitely, and flouts international law, all the while claiming to abide by the rule of law (read Marty Lederman's postings please). The undertaking and conduct of this war has betrayed many of the most important ideals held dear by this country, and it will stand over time as one of the worst (that is, most evil, destructive, dumbest, and inexplicable) actions we have ever taken. It says a lot that we don't know (or seem to care) how many tens of thousands of Iraqis have died since the war began.

I hope this clears up my position. Next time I will think twice about using irony in Blogdom.
Posted 3:26 PM by Brian Tamanaha [link] (20) comments

Stigmatized Abortion

Mark Graber

Three positions on abortion seem possible. One view is that abortion should (almost) always be legal. Another is that abortion should (almost) always be illegal. The third is that abortion should be legal, but stigmatized, the stigma being reflected by a lack of other federal funding and various other restrictions (the three positions are probably points on a continuum). Persuading most people of the normative virtues of stigmatized abortion is likely to be worthless. Most people who read this blog have strong feelings on the subject and, my sense is that all of us have run out of new normative arguments that might prove persuasive. Let me instead suggest two political virtues of stigmatized abortion.

First, the empirical evidence suggests that keeping abortion legal has far more powerful effects on access to abortion than any restrictive policy short of outright bans on the procedure. For example, the most conservative estimate I have seen is that 75% percent of persons formerly eligible for aid are able to obtain abortions when funding is cut off. The most liberal estimate is 95%. My best guess on the data is about 85-90%. Many restrictions on abortion are administered in ways that makes their impact entirely symbolic. Very, very few women have partial birth abortions. When abortion is legal, the crucial variable in determining access is whether private parties provides services, not the existence of restrictive laws. Point of emphasis. This is not to claim that restrictive laws do not matter and that many are medically stupid (misinforming people under the guise of informed consent being the best example). The big point is that a heavily regulated abortion right is not a hollow shell, that the vast majority of persons able to obtain abortions because of Roe v. Wade will still be able to obtain abortions if all the standard restrictions become law.

Second, the public opinion evidence suggests that most Americans favor some version of stigmatized abortion, that the overwhemingly disproportionate influence of activists on the Democratic and Republican party explains why neither party can get to the middle on this one. Whether or not it is true in principle, most Americans do not see bans on partial birth abortions as placing them on the slippery slope toward banning abortion altogether. What these means politically is that if debate over Justice Roberts, future judicial nominees, and abortion in general focuses on the immediate issue of partial birth abortions, parental consent, etc., the left loses. If the issue is retaining Roe, the left wins. Having lost more than my fair share of elections over the past years, I think I might be willing to stomach a few stupid consent laws to win some political battles for once. But then again, I am a member of the party and profession that given the opportunity to fight the 2004 election over whether homosexual sodomy should be criminalized, egged on a Massachusetts court to make the decision guaranteeing that the 2004 election would be fought over gay marriage.
Posted 10:54 AM by Mark Graber [link] (49) comments