an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
I work for a President who . . . has made clear from the outset, both publicly and privately, that our duty to uphold the law of the land admits no exceptions in wartime. The President himself put it best: He said, "We are in a fight for our principles, and our first responsibility is to live by them."
"Our duty to uphold the law of the land admits no exceptions in wartime."
A stunning assertion, given the source. Can the Vice President fairly be accused of flat-out dishonesty here?
Perhaps not, once one understands that the "law of the land" that trumps all others for this Administration is the Commander-in-Chief Clause of Article II of the Constitution, before which all mere statutes are but a formal pittance. This is, after all, the Administration that has unapologetically announced that no statute "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." "These decisions," say the Bush Administration, "under our Constitution, are for the President alone to make."
As I noted a couple of weeks ago, what this claim means is that numerous statutes -- bills signed by the President (or in one case, enacted by legislative supermajorities over his veto) -- are unconstitutional, and the President may ignore them when in his judgment they impinge on his discretion in determining how best to address the war on terrorism.
And who knows how many other laws . . . ? There's an important recent article written by presidential scholar Phillip J. Cooper of Portland State University. 35 Pres. Studies Q. 515 (2005). (Abstract and order form here.) Cooper explains how the Bush Administration has used signing statements to signal that it is reserving the right to ignore numerous enacted statutes. In Bush's first term alone, he offered 505 constitutional objections to various statutory provisions -- and many of those objections apply to multiple provisions within a particular bill. Moreover, many of the objections are written in such general terms that it is difficult to know just what they mean in terms of how the Administration is implementing the law.
Of course, some of these objections would have been made in any Administration, of either party. (Chadha violations, for example.) Indeed, I drafted my share of signing statements with constitutional objections in the Clinton Administration. I am not arguing that Presidents may not object to legislation, or even that Presidents must always implement statutes -- there are times when nonenforcement of unconstitutional statutes may be appropriate (a broader subject for another time).
But I can assure you, and as Prof. Cooper's study shows, this Administration has gone far, far beyond anything we've previously seen, not only in terms of sheer numbers, but with respect to the breadth and scope of the substance of the Article II objections that it makes to enacted legislation (e.g., unitary executive, Commander-in-Chief, appointments clause (objecting to, e.g., uncontroversial qualifications on appointments), recommendations clause, plenary authority over foreign affairs, right to keep everything secret from Congress, etc.).
I highly commend Cooper's article. I only wish he would have emphasized one thing a bit more (although it's implicit in his article): His data suggest that the Executive is likely refusing to implement hundreds of statutes enacted since 2001 (and many enacted prior to that date, too, suchas FISA and the UCMJ) -- but Congress and the public have little way of knowing which statutes those are, or how they are being executed.
Finally, a few words about the President's statement, prominently quoted by the Vice President, that "our first responsibility is to live by [our principles]":
As it happens, there were some principles to which the United States proudly pledged allegiance in wartime for over 50 years, even when such principles did not (in the view of the Executive branch) constitute a legal obligation: namely, the baseline, minimal "principles" 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."
One of the things President Bush did early in the current war was to ignominiously sweep aside that proud tradition, by announcing to the armed services that such "Geneva principles" are to be applied only "to the extent appropriate and consistent with military necessity," and by further telling the CIA that as far as that agency is concerned, such principles are simply inapposite.
In the affirmative view, and apart from addressing the question of veracity of the VP cited by ML, above, the best I could allot the administration as a field in which to explain would be that stern zone of an anxious congress; which is to say: I would allow that the administration was so freightened that it grabbed for the resources immediately available to counter the event at 9-11, namely all the ungentlemanly things Marty cites, egregiously illegal policies and execution of those policies. So, while, yes, this is abuse beyond framing, there needs to be a middle zone upon which the administration can correct course, and then emerge still leading. One of the eloquent underpinnings of totalitarian command is its efficiency until its moral corruption utterly wrecks the entire edifice. So, yes, we need to halt the four-year disregard for the FISA process; and the president must hear from brilliant jurists and legal scholars that it is time to return the executive scimitar to scabbard sufficiently to let constitutional law restore order to the land. The universities are always the first to recognize the disruptiveness. Vast masses of citizens understand little about how much is vitiated already. I have suggested to sundry advisors a sociologic view of what precipitated the chaos into which breach a unilateralist executive easily could step. Yet, politics is mere approximation and calculation. Let us hope the current crisis among constitutional scholars will generate the impetus for developing safeguards in the many areas which need shoring up as the backwash of the lawless measures employed ebbs. JB does us all a favor to sustain this thoughtful dialog.
"Our duty to uphold the law of the land admits no exceptions in wartime."
Admits. My rereadrereadreread alarm stuck here. This is no lie. This is easily deconstructible, obfuscative, weasel-wording that reveals precisely wot is up. Admit nothing. Claim everything. To wit: He said, "He said, "We are in a fight for our principles, and our first responsibility is to live by them."" Our principles. No lie there either. Impossible to dispute. True. "Geneva principles"... are simply inapposite. Right out there, face up on the table. That's the meat of it, as far as I can discern.
If all it takes is to say you've never broken a law to get away with doing so, what boundry is too tall to leap? If you have in your mind a notion of those laws and principles which supercede others, how easy would it be to simply point out that the 12th and 22nd amendments are superceded by the need to protect the citizenry in a 'crisis' or time of war? To me, its not that big a deal that DC can make such statements with a straight face, after all he's a successfull politician - that's what he does.
The itch in my mind is the blunt nature of the rational being used to bend the constitution by the current executive. Statements such as 'It's my job', 'Everything I can do to protect', 'save lives', and so forth look to be mottos so effective in their ability to selectively diminish the value of our laws and principles that not much can counter them.
Christopher S. Kelley, RETHINKING PRESIDENTIAL POWER - THE UNITARY EXECUTIVE AND THE GEORGE W. BUSH PRESIDENCY, paper prepared for the 63rd Annual Meeting of the Midwest Political Science Association (April 2005); available *HERE*.
(Dr. Kelley did his PhD disertation on this topic.)
2) I strongly concur with your observations concerning Geneva Common Article 3, and you've zeroed in on an important point here that I've tried to bring out in my amicus efforts IRT the Guantanamo detainees.
"I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."
"military necessity (DOD, NATO) The principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war."
But the laws of war absolutely forbid attacks on persons or places who are out of action / undefended -- no such attack could ever be lawful. Hence, the Bush memo is literally saying that we will obey Geneva except when we violate Geneva.
Further the word necessity has a meaning, both in ordinary usage and in law, and that meaning is NOT "whatever someone thinks is a good idea. There is a distinction between prudence and necessity, and the only real necessity here is to remove these criminals from the offices they have disgraced forthwith and see to it that every last one of them is prosecuted to the full exent of the law for their CRIMES.
The waterboard is used in US POW training. If it can be used there, its probably not torture. I went through it and it scared the S**t out of me, but better to learn there and be better prepared in real combat..........
Skippy-san, if that's true, it proves nothing. If you signed up for the military, you're not a prisoner, and you're not subject to "POW training" every single day for some unknown number of months or years. Similarly, there are things that some perfectly happy people here in San Francisco like to do to each other by mutual consent that, if you were kidnapped and subjected to against your will, would damn well be torture.