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
In effect, the Bush Administration has told the Supreme Court: we'll keep on doing what we want until you directly order us not to. The Bush Administration is clearly counting on the fact that it will take many years for a final determination of the legality of the NSA program; in the meanwhile, the Administration will ask for a stay of any lower court holding that rules against them. Assuming that most courts would grant such a request on national security grounds, the Administration figures that it can keep the NSA program running for many years. In the meantime, Justice Stevens, the Court's oldest member, and the author of Hamdan, may leave the Court due to retirement or death, to be replaced by a nominee more pliable to the Administration's wishes.
Given the Administration's intransigence, it falls to the public and to Congress to pressure it (or shame it) into acknowledging that it must change its policy on the NSA controversy just as it has been forced to on the question of prisoner detention and mistreatement (or at least *seems* to have changed, if Marty's previous post is correct). If the Administration wants to continue conducting electronic surveillance on American citizens, it must go to Congress and ask for amendments to FISA that bring its actions under the law. In the meantime, an Executive that acts beyond the law is a lawless Executive.
What the press and the public must understand is that this Administration does not play by the rules. It does not take a hint. Instead it will continue to obfuscate and prevaricate, as it has so often in the past on issues ranging from detention to prisoner mistreatment. This Administration will not conform its actions to the Rule of Law unless it finds doing so politically infeasible. As a result, the Congress, the courts, the press and the public will have to object-- repeatedly and strenuously-- if they want the Executive to abide by its constitutional obligation to take care that the laws be faithfully executed.
The witnesses were even dismissive of the new Pentagon memo applying the Geneva Conventions to all detainees for the first time. "It doesn't indicate a shift in policy," Dell'Orto said.
And in a veiled warning, Bradbury told Herb Kohl (D-Wis.) that Bush still didn't need Congress. "The court did leave open the theoretical possibility that the president could come back on his own," he said.
As legal support for warrantless surveillance shrinks -- at least outside the Bush administration bunker -- perhaps the immediate effect of the Hamdan ruling will be to energize opposition in Congress.
The administration strategy has been to avoid the courts and intimidate Congress. Remarkably, this strategy has been successful so far. What principled dissent there was among GOP senators -- especially Specter and Graham -- caved under White House pressure. Democrats, with the notable exception of Feingold, are completely cowed.
Lately there have been faint signs that members of Congress might develop some backbone. But having been disappointed so far this year, I am not optimistic.
As for the courts, I agree that the administration is playing for time. I think they plan to run out the clock on the whole presidential term, not just wait for a new SCOTUS nomination.
One new justice wouldn't matter if the core question of exclusive executive war powers were ever squarely before the court in a case that could not be ducked. I think the President would lose 8-1 or 9-0. However, there is a greater chance that the conservative bloc would buy into the claim of state-secrets-privilege, which would prevent the courts from reaching the constitutional merits at all.
How about Hamdi? The DoJ hired hands make a following claim that appears to make sense:
In Hamdi, five Justices concluded that the Force Resolution "clearly and umsistakably authorized detention," as a fundamental and accepted incident of the use of military force, notwithstanding a statute that provides that " ... no citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress ... ". Because the Terrorist Surveillance Program implicates a statutory regime analogous to the one at issue in Hamdi, we believe that the reasoning of Hamdi is far more relevant to the Terrorist Surveillance Program than the reasoning of Hamdan.
Given that the Bush administration believes, reasonably in my view, that Hamdan was wrongly decided, and given that, in your view, the decision is not secure prospectively and would likely be changed simply by the change in one member on the Court, why is the Bush administration wrong to continue with the NSA program?
Are you suggesting that the current Court is the source of law? If the current Court got it wrong, and in the near future the Court is likely to get it right, then why isn't it consistent with "the Rule of Law" for the Administration to refuse to extend Hamdan to new circumstances (unless and until ordered to do so by the Court)?
Thomas: the Executive does not get to decide what the law is, or what a future Court may say it is (if you're one of those positivist types). Bush, especially, is not competent to declare/predict the law. He, apparently, is only competent to break it, lie about breaking it, continue to lie about breaking it even in face of evidence to the contrary, then say what he did wasn't really breaking it, then say that he really needs to break it and should be allowed to. Hopefully with the Court's umpires behind them Congress will step up to the plate. And maybe they'll realize that 50%+1 of us don't go for fascism, and vote to keep our country by us and for us.
Or, in the alternative, Congress can simply cave in. That seems to be the news of the day. Here is an AP story about Specter reporting a deal with Bush: Surveillance Oversight Plan Gets a Boost, published at washingtonpost.com
I am very skeptical of this. Like Sen. Feinstein says at the tail of this story, "I really need to see the bill."
I especially want to know if the language in Specter's latest committee draft, ceding to the Article II authority of the President, remains in this latest version. That would give away the farm, essentially deferring to the executive as Congress did before FISA was enacted in 1978.
From the White House statement, it sounds like that is the case:
"The key point in the bill is that it recognizes the president's constitutional authority," [White House spokeswoman Dana Perino] said. "It modernizes (the Foreign Intelligence Surveillance Act) to meet the threat we face from an enemy who kills with abandon."
george bush has bo respect for the Law. why should he a rich boy he has never had to play by the rules. daddy's money was always there to save him. be it from actually doing well in school, to keeping him from going to vietnam.