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
Abbe Gluck abbe.gluck 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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Secret DOJ Memo Explains Why the Flag Burning Amendment is Unnecessary
In anticipation of a possible unsuccessful vote on the proposed flag-burning Amendment, the Justice Department has declassified a secret Office of Legal Counsel (OLC) memo written shortly after the September 11th attacks:
Under the theory of the Unitary Executive underlying Article II of the United States Constitution, the President of the United States, as Commander-in-Chief-of-everything-under-the-sun, has plenary and unreviewable authority to detain, try, punish and execute enemy combatants. Persons who trample on, deface, or destroy the flag of the United States symbolically attack the country and the principles for which it stands, which include, among other things, the principle of the plenary and unreviewable authority of the Unitary Executive. Therefore the President, as head of the Unitary Executive, has plenary and unreviewable authority to detain, punish and execute any and all persons who desecrate the American flag, regardless of any laws or treaties to the contrary.
Moreover, Congress, in its September 18th, 2001, Authorization of the Use of Military Force (AUMF) gave the President, as Commander-in-Chief, power "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." The President, acting in his constitutional capacity as Commander-in-Chief, may reasonably determine that any person who would knowingly desecrate an American flag is a terrorist and that act of burning the American flag is an act of terrorism. Hence it follows that he may also reasonably determine that any person who would defend the right of a person to burn the American flag is engaged in defending-- and therefore aiding and abetting-- acts of terrorism. Thus the President has not only his own inherent authority under Article II but also Congressional authorization to detain, punish, and execute flag burners-- as well as those who defend, or give aid and comfort to the same-- as enemy combatants. "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, [he may] be said . . . to personify the federal sovereignty." Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 636 (1952)(Jackson, J., concurring).
Moreover, because the President as Commander-in-Chief and head of the Unitary Executive has plenary authority under Article II to repel invasions and attacks on the United States, as well as to prevent future attacks from occurring, it follows that the President has plenary authority under Article II to detain, punish, and execute any persons that he suspects, has reason to suspect, or has no reason at all to suspect may be conspiring in the future to desecrate an American flag or to defend, harbor or otherwise support persons who would desecrate an American flag.
Indeed, it is well established under the laws of war-- including those laws of war which the President, as Commander-in-Chief, has plenary authority to completely ignore or declare "quaint"-- that the President, as Commander-in-Chief, may detain persons who have taken up arms against the United States until such time as hostilities are completed. The President may reasonably determine that any person who burns an American flag is hostile to the United States. By definition, a person who is "hostile" to the United States may be prepared at some point in the future to engage in "hostilities." Therefore the President has sole authority to detain any person suspected of conspiring to burn a flag in the future-- or to defend or otherwise assist such a person-- until such time as the President may be assured that the person will not, upon release, "return to the battlefield" by threatening an American flag or otherwise defending those persons who would threaten an American flag. Since the President, as head of the Unitary Executive, may execute enemy combatants on the battlefield, it follows that he may take the lesser step of arresting them and detaining them indefinitely.
It is no objection that flag burning-- or the defense of flag burning-- may not be punished under the First Amendment. As we have made clear in previous OLC memos on torture and domestic surveillance, the provisions of the Bill of Rights do not apply to persons whom the President deems, whether reasonably or unreasonably, to be enemy combatants. Of course some say that we should fight the Global War on Terror using the model of criminal law enforcement. However, it is clear that we face a new kind of enemy, using a new kind of matches and a new kind of lighter fluid. If we do not round up, detain and execute flag burners, suspected flag burners, defenders of flag burners, and suspected defenders of flag burners, the terrorists will have won.
This is the CIA. We know you have been obtaining these OLC memos from Martin Lederman, who stole them during his brief stint at Justice before he turned all crazy and lefty. These memos represent breaches of national security. Both of you have already been arrested. You just don't know it yet.
This OLC memo is compelling evidence of the Justice Department's adeptness if not adroitness at constructing non-fallacious slippery slope arguments. As we know, such arguments have different degrees of slipperiness. In this case we have occasion to rely on the 'vertical line' sort of slippery slope argument, referred to in covert intelligence circles as the '90 degree greased flagpole' argument. Those confused as to its impeccable logical and legal merits should consult the President's recent 'signing statements' wherein it is pellucidly clear as to the Executive branch's unimpeachable authority above and beyond Congress and outside the orbit of judicial review to resort to a hermeneutics of Sartrian bad faith in the interpretation of any and all legal arguments. Hail to the Chief.
Though your parody is mock serious, I detect a note of wistfulness, and appropriately so.
Nevertheless, to contribute commensurately, allow me to suggest the following broad analysis of some bill of rights matters currently at issue between Article I powers and Article II powers, namely that of DOJ TAKING THE 5TH AMENDMENT in a Senate Judiciary Hearing yesterday, or at least that is how a demagogic Senator from VT characterized it after listening to the Gonzalesian replies of DOJ attorney Friedrich in the reporter shield law inquiry, or, more precisely put, in re: subpoena of Jack Anderson reporter files dating from Nixon thru c.1998, which papers now are in the safe keeping of an author in journalism and political science at GWU.
As you probably have read, the government witnesses and experts including professors as well, declared essentially the 1st and 4th amendments are fairly well exhausted. I suspect that is the reason DOJ is beginning to accentuate the 5th amendment as one of the standing pillars of strength in the bill of rights.
One comment, and I must go, now; about the topic of your post, the flag; now, no one is burning these symbols; so, it is a safe rhetorical argument to make in its full unfurled glory, so to speak. Effigies are seen rarely in the US in demonstrations, though I believe there was an immolation of such an icon during the immigration parades last month; it is unlikely that is the group the proposed legislation is targeting, however. Rather, the law likely is a simple comfort zone regulation, one to assure many of the administrations closest supporters that the symbol of the country's political existence shall be revered and sanctions put in place to assure that special consideration is honored, nobly.