Balkinization  

Saturday, March 18, 2006

So Brutal, Even the CIA Flinches

Marty Lederman

Almost two years ago, Seymour Hersh reported in the New Yorker that Secretary Rumsfeld and Under-Secretary Cambone had established secret special access programs (SAPs) within DoD that are authorized to use rough treatment, and sexual humiliation, in interrogating not only suspected al Qaeda operatives, but also the numerous persons rounded up as possible insurgents in Iraq. And as Bart Gellman reported in the Washington Post in January 2005, Rumsfeld further concluded that such operations need not be disclosed to Congress, so that there is a wholly secret interrogation regime within the Department of Defense playing by its own interrogation rules.

No one in Congress or the press has done much until today to follow up on this brewing scandal, but thanks to the ACLU and the New York Times, now we have a small window into the handiwork of these military operations: Secret Task Force 6-26 and the horror chamber of Camp NAMA ("Nasty-Ass Military Area").

At Camp NAMA, placards posted by soldiers at the detention area boast "NO BLOOD, NO FOUL," and the adage is "If you don't make them bleed, they can't prosecute for it." "According to Pentagon specialists who worked with the unit, prisoners at Camp Nama often disappeared into a detention black hole, barred from access to lawyers or relatives, and confined for weeks without charges. 'The reality is, there were no rules there,' another Pentagon official said."

And their techniques are so brutal that even the CIA -- no stranger to waterboarding and hypothermia -- felt the need to bar its personnel from Camp NAMA! If the CIA thinks it's beyond the pale . . . .

Lots more details over at Andrew Sullivan's site. [UPDATE: And Katherine over at Obsidian Wings connects many of the dots, showing how Task Force 6-26 is at the heart of several of the most notorious instances of abuse, assault and murder that have previously been reported.] Andrew expressly draws the analogy to Milosevic's thugs. I'm generally averse to such analogies -- what's the value, really, in a side-debate about how we're not comparable to the Gulag? -- but at this point, is Andrew being so hyperbolic? How many stories such as this must be published before the rest of the world justifiably views the U.S. as one of the world's principal purveyors of torture and inhumane treatment? When we're accused of war crimes, what will be the response? That although our personnel have repeatedly breached the Geneva Conventions, they weren't "grave" breaches?

The Hersh story linked above reported that it was Cambone -- a close aid to Rumsfeld -- who instructed the Special Ops to take the gloves off, and to play without rules when it came to obtaining intelligence about Iraqi insurgents. Tomorrow's Times story reports that Cambone was shocked, shocked! to discover that there was mistreatment was going on in there! (You see, he never for a moment seriously believed that they would take him at his word . . . .)

What is there to add? Well, since my little corner of this debate has been the legal angle, let's put this in a bit of legal perspective.

-- It is a felony under the Uniform Code of Military Justice for military personnel to assault detainees, or to threaten them with assault -- or even to subject them to cruelty and maltreatment. And yet from all that appears, the very reason for Task Force 6-26's existence is to employ techniques -- i.e., elctric shocks, burns, punches -- that constitute assault, threats, and cruelty and that ordinary military interrogators consider off-limits.

-- Article 17 of the Third (POW) Geneva Convention prohibits all coercive, unpleasant and disadvantageous treatment of POWs: "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." For decades, military personnel have been trained to apply these standards, which form the basis for Army Field Manual 34-52. What ever could possibly have given Task Force 6-26 the idea that they could ignore Geneva with impunity?

-- Article 27 of the (Civilian) Geneva Convention requires that protected persons "shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof . . . ." The Times story indicates that the Task Force detention and abuse is not limited to suspected insurgents, but extends also to persons who apparently are detained simply because they might have information about insurgents. In early 2004, for example, an 18-year-old man suspected of selling cars to members of the Zarqawi terrorist network was seized with his entire family at their home in Baghdad. "Task force soldiers beat him repeatedly with a rifle butt and punched him in the head and kidneys, said a Defense Department specialist briefed on the incident." And in January 2004, "the task force captured the son of one of Mr. Hussein's bodyguards in Tikrit. The man told Army investigators that he was forced to strip and that he was punched in the spine until he fainted, put in front of an air-conditioner while cold water was poured on him and kicked in the stomach until he vomited." (Army investigators were forced to close their inquiry in June 2005 after they said task force members used battlefield pseudonyms that made it impossible to identify and locate the soldiers involved. The unit also asserted that 70 percent of its computer files had been lost.")

* * * *

If a military unit openly boasts of slogans such as "NO BLOOD, NO FOUL," it's not much of a stretch to assume that the unit for some reason does not consider itself bound by these provisions of the UCMJ, the Army Field Manual, and the Geneva Conventions.

What possibly could have led TF 6-26 to believe that it could ignore these laws with impunity? One day we may find out, if we ever have a serious public inquiry where experienced lawyers are able to closely question Cambone, Boykin, Miller, Sanchez, et al., along with the officers of units such as Task Force 6-26. But I'm not holding my breath.

P.S.: The Times reports one officials as saying that "[t]he harsh interrogations yielded little information to help capture insurgents or save American lives."

Friday, March 17, 2006

Conservatives Still Don't Get It: Their Mea Culpa on Iraq

Brian Tamanaha

A slew of prominent conservatives--including George F. Will, William F. Buckley, and Francis Fukuyama--are coming out to express their new-found conviction that the Iraq War was a mistake. It's hard to object to their belated announcement, but they seem to be missing the key point.

Take Andrew Sullivan's "What I Got Wrong About the War:"

In retrospect, neoconservatives (and I fully include myself) made three huge errors. The first was to overestimate the competence of government, especially in very tricky areas like WMD intelligence....The result was the WMD intelligence debacle, something that did far more damage to the war's legitimacy and fate than many have yet absorbed....

The second error was narcissism. America's power blinded many of us to the resentments that hegemony always provokes. These resentments are often as deep among our global friends as among our enemies--and make alliances as hard as they are important. That is not to say we should never act unilaterally....

The final error was not taking culture seriously enough. There is a large discrepancy between neoconservatism's skepticism of government's ability to change culture at home and its naivete when it comes to complex, tribal, sectarian cultures abroad.

Yeah, yeah, yeah, but:

The first and overarching error of neoconservatives, Mr. Sullivan, is their willingness (nay, eagerness) to use war to achieve their ideological objectives. Neoconservatives see war as a tool, perhaps messy and unpleasant, not to mention expensive, but sometimes useful.

War is the greatest horror we inflict upon one another, destroying bodies and lives, inflicting untold pain, often on innocent bystanders. War must be a last resort, undertaken with great reluctance, when no other option is available--appropriate only when necessary to defend ourselves against an immediate aggressor (as international law recognizes).

That was not the case with Iraq. Bush and the neoconservatives were bent on starting a war in Iraq for their own ideological and personal reasons and they made sure it came about. Bush's premptive war doctrine, recently reiterated, is more of the same failure to recogize the utimate horror of war.

None of the neoconservative mea culpas I have read have recognized this true (moral and pragmatic) error of their vision and understanding, which is more fundamental than Sullivan's three so-called "huge errors." If neoconservatives understood that war is appropriate only as an absolutely last resort to defend ourselves against an attack, the war would never have happened--hence no WMD debacle (because there was not enough to justify war), no offending allies with our arrogance of power, and no attempt to shape another country in our own image.

Sullivan, to his credit, does mention the tens of thousands killed and maimed in this war, but then he goes on to justify:

If we hadn't invaded, at some point in the death spiral of Saddam's disintegrating Iraq, others would. It is also true that it is far too soon to know the ultimate outcome of our gamble.

These are not the words of someone who understands the magnitude of war and its consequences. "Our gamble," as he put it, involved rolling the dice on the lives of tens of thousands of people, for our own purposes.

Until neoconservatives and the Bush Administration renounce the notion that war is a tool, we will not have learned our lesson, and more wars of aggression begun by us will follow.

The Reward for Lawbreaking Act of 2006

Marty Lederman

It's here. Glenn Greenwald has the goods. I don't have much to add to his thorough summary. (If I see something else important in the bill on a closer read over the weekend, I'll post about it here.) Basically, instead of doing something -- anything! -- to address the Administration's rampant violations of law, or even to carefully amend FISA to provide necessary additional surveillance authorities to the President, this bill would reward the President for his lawlessness by authorizing, in almost every detail, the complete circumvention of FISA that characterizes the secret NSA program. (Perhaps FISA should be amended -- I don't know enough about the details to have any firm opinion on that, except to note the serious Fourth Amendment concerns, and to suggest that such a fundamental amendment should be preceded by serious study by a legislature that has some idea of exactly what it's authorizing. But even so, surely Congress should also do something to address the serious harm to constitutional checks and balances.)

The bill would impose certain reporting requirements, prescribing that the Executive submit certain information to new congressional Terrorist Surveillance Subcommittees. They'd appear to be fairly toothless, however. The Washington Post reported today that "[t]he Bush administration could continue its policy of spying on targeted Americans without obtaining warrants, but only if it justifies the action to a small group of lawmakers," and that after 45 days of surveillance, the Administration would be required either to obtain an order from the FISA Court to to "convince a handful of House and Senate members that although there is insufficient evidence for a warrant, continued surveillance 'is necessary to protect the United States.'" As Glenn notes, this is almost certainly wrong: The Administration would not be required to justify its program to the legislators, nor to "convince" them of anything. And the Subcommittees could not, of course, do anthing to stop the program, short of persuading Congress to enact a veto-proof amendment to this law. (Indeed, if the bill required a sign-off by the Subcommittees, it would likely be unconstitutional.)

Thursday, March 16, 2006

Strange Days

JB

So the President, as best I can tell, has repeatedly violated federal law by spying on American citizens in violation of the Foreign Intelligence Surveillance Act. The Congress, controlled by his own party, responds not by demanding an investigation into the matter, but rather by asking meekly whether it might amend the statute so that whatever the President has been doing (which he won't actually tell us) could become legal. The President says, not really necessary, don't you fools realize that when I act as Commander-in-Chief I can't violate the law? And if you insist that I did, well then, your laws are just plain unconstitutional. A Democratic Senator then stands up and argues that if the President broke the law repeatedly, he should be censured, if not impeached. Everybody else makes fun of him. At this point the Republicans, who lined up almost as one to impeach the previous (Democratic) president for lying about sex to a grand jury, while making impassioned speeches about the rule of law, are now delighted by this development, using the fact that the Senator is talking about censure as an opportunity to fire up their base.

So children, here's the moral of the story: If you are the President, feel free to violate the law, early and often. Just make sure you do it when your party controls all three branches of government. Because just as blood is thicker than water, party is thicker than law.

Does the Army Field Manual Authorize "Creative" Humiliation of Detainees?

Marty Lederman

One of the principal provisions of the McCain Amendment, now the law of the land, states that "No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation." On its face, this would appear to be a fairly significant restriction, since the Army Field Manual, which for many decades prior to February 2002 governed interrogations conducted by the U.S. Armed Forces, purports to be consistent with the Geneva Conventions. As we now know, however, the McCain Amendment might not be very effective, because the current Pentagon has managed to construe the Field Manual to authorize criminal techniques that everyone had for decades understood to be prohibited.

Last July, I wrote here about the disturbing findings of the Pentagon's Schmidt Report, which concluded that the techniques employed on Mohammed al-Qahtani--including, for example, having female interrogators physically seduce and taunt a Muslim detainee; forcing him to wear a bra and placing a thong on his head during interrogation; tying him to a leash, leading him around the room and forcing him to perform a series of dog tricks; stripping him naked; and pouring water on his head during interrogation 17 times—although degrading and humiliating, were not only "humane," but also are authorized by the Army Field Manual.

Today's Washington Post reports that the Pentagon is adhering to its Orwellian readings of the Field Manual: The techniques in question, the Pentagon insists, are "creative and aggressive," and "degrading and humiliating" -- but nevertheless "did not violate any U.S. law or policy" (including, presumably, the criminal statutes that prohibit members of the armed forces from engaging in assault (10 U.S.C. 928) and cruelty and maltreatment (10 U.S.C. 893)). Not surprisingly, however, the highest-level JAG lawyers of the Army, Navy and Marine Corps once again disagree with the Pentagon's understanding: They informed Congress that these techniques do violate the Field Manual prescriptions.

Unfortunately, it's not the JAGs who will determine the meaning of the Field Manual going forward.

The Post article quotes Senator McCain as saying that "[w]hen it comes to interrogation standards, we must ensure that our men and women in uniform do not receive unclear or misleading guidance," and that the head of the U.S. Southern Command will have to "clarify" his opinion that the techniques did not violate any U.S. law or policy. OK -- but the JAG and DoD statements in question were all submitted to the Senate Armed Services Committee last summer, after the July hearing, and yet today's Post story is the first the public is hearing of them. What's up with that? Why hasn't the Armed Services Committee released these documents until now? And why hasn't the Committee insisted that the Penatagon "clarify" its position? (If anyone has copies of the statements in question, please post them -- thanks.)

P.S. Speaking of the Army Field Manual and the Geneva Conventions, Avi Cover of Human Rights First is blogging the court-martial of Abu Ghraib dog handler Sgt. Michael Smith now taking place in Maryland. The Pentagon has repeatedly asserted that the Geneva Conventions apply to the treatment of detainees in Iraq. Perhaps, then, someone will ask the witnesses, including Col. Thomas Pappas, how they possibly could have determined that the use of dogs to "set the atmosphere" for obtaining information is consistent with the Geneva Conventions, the Army Field Manual, and the Uniform Code of Military Justice.

Wednesday, March 15, 2006

All's FAIR in Law and War

JB

I haven't said much about the FAIR v. Rumsfeld case, in part because I have been a plaintiff in the Yale faculty litigation, Burt v. Rumsfeld, which raised many of the same issues. Now that the Supreme Court has delivered its opinion in FAIR, it's worth taking stock of the controversy.

In this post I explain why I joined the lawsuit, even though it pursued claims far broader than I would have liked. I also explain what the Court's decision means for constitutional challenges to antidiscrimination laws using Boy Scouts of America v. Dale. Finally, and, perhaps most important, I explain why the Court's decision doesn't end the controversy over the application of the Solomon Amendment to law schools. Indeed, as I shall point out at the conclusion of this post, the Court's opinion appeared to concede that law faculties and law schools had a First Amendment right against at least some applications of the Solomon Amendment. That aspect of the decision, I predict, will not make the military happy. Although the case was widely reported as a complete loss for the law schools and a victory for the military, things are actually a bit more complicated, and litigation over the Solomon Amendment may not be quite at an end.

There's lots to cover here, so let's get started.

Why I joined the litigation

I believed that the constitutional theory behind both the FAIR lawsuit, which I was not involved in, and the Yale lawsuit (Burt v. Rumsfeld), which I joined as a plaintiff, was a long shot. Moreover, I believed that, if successful, these lawsuits might cause problems for other areas of antidiscrimination law, in particular, in the area of Title VI and Title IX law. The reason is that Title VI and Title IX impose antidiscrimination obligations on schools that receive federal funds. If the FAIR and Yale plaintiffs had first amendment rights to be excused from the Solomon Amendment, racist and sexist institutions might claim that they were entitled to be excused from Title VI and Title IX obligations. There are ways to distinguish the two situations, but it requires some fairly fancy footwork and it might cause even more problems down the road. Therefore, when I joined the Yale suit as a platinff, my preference was for a much narrower theory of the case, one that would pose no danger of undermining federal antidiscrimination laws.

I favored an as-applied challenge. The goal would be to show not that the Solomon Amendment was unconstitutional on its face, or even that the Federal government could not condition funding, but rather that the Defense Department's regulations implementing the Solomon Amendment were unconstitutional as applied to particular law schools like Yale. The basic idea was that these regulations had been drafted and applied in an unnecessarily harsh way, in order, in the words of one military official, "to send a message" to pointy headed intellectuals at the nation's top law schools that they were being unpatriotic and that they shouldn't mess with the military. It's important to note (although it was not widely reported in the media) that the military had what was practically speaking effective access to Yale law students. The school repeatedly emphasized that it did not prevent or hinder access to students but rather required that the military's access be different than that enjoyed by non-discriminating employers. Nevertheless, the military objected to the symbolism of not being treated exactly the same as employers who had agreed not to discriminate. It resented, in short, the message that the law school was conveying. Hence, the regulations had been interpreted and applied out of a political motivation, to punish law schools like Yale because they publicly opposed the military's policy.

If these facts had been proved at trial they might have been sufficient to show an unconstitutional motivation in the application of the Solomon Amendment to Yale. The difficulty with this as applied theory, of course, would be making the requisite showing of illegal motivation. Nevertheless, I believed that we had at least some evidence that the Defense Department's real objection was the message that the law school was conveying by symbolically offering military recruiters a different form of access; I also believe that there was considerable evidence of ideological hostility toward the law school for opposing the military's policy on homosexuals. Note that this sort of evidence would not be sufficient in a facial challenge, because under United States v. O'Brien, one is not permitted to inquire into legislative motivation. However, O'Brien does not apply to executive interpretation and implementation of laws in an as applied challenge.

This, along with nonconstitutional objections based on stautory interpretation and administrative law, was my favored approach. However, the FAIR litigation, (and the Yale litigation) as they developed, became a more general challenge to the statute under the theory of compelled speech and freedom of association. The Supreme Court rejected these broader grounds.

Even though the litigation did not choose a narrower theory that I preferred, and even though the theory it did offer was, in my view, a long shot, I joined the Yale litigation for a simple reason: The military insisted that Yale make a special exception to its nondiscrimination policy for one employer only, the U.S. military, and it required Yale to make this exception because the military wished to discriminate against homosexuals. (Under the Clinton Administration's Don't Ask Don't Tell policy, homosexuals may not openly serve in the military.)

I believe that this policy, like the previous policy which simply excluded all homosexuals, is deeply unjust. It is wrong, and, I believe, someday it will also be regarded as unconstitutional as well. Someday, I hope and I predict, our country will be ashamed of our military's long history of discrimination against homosexuals. Someday we will look back on this episode and wonder what kind of country we lived in that would refuse to allow people to serve honorably in the nation's military simply because of their sexual orientation. Someday, I believe, we will see the military's prejudice and its homophobia as wrongful and shameful in much the same way that we now regard as wrongful and shameful the military's long history of discrimination against blacks and its requirement of segregation of black and white troops.

I believed then, and I continue to believe, that it was appropriate to bring this case to protest the military's unjust and discriminatory policies. Much litigation is brought, and has been brought in our nation's history, not merely because the litigants hope to win in the courts, but because whether or not it succeeds it puts an important issue before the public eye. Indeed, every important social movement in the country's history, from abolitionism to the conservative movements of the late twentieth century, has brought litigation of this sort.

In particular, I thought it appropriate to join this litigation to protest the military's threat to punish Yale and other educational institutions if they did not make a special exception to their nondiscrimination policies so as to facilitate the military's own unjust and discriminatory policy. It is one thing for the military to demand special treatment that no other employer enjoys; it is another to demand special treatment so that the military can continue to engage in an unjust policy of discrimination that this country should rightly be ashamed of.

One might well object that if the policy is unjust, it should be attacked directly. One should not employ the First Amendment as a proxy for gay rights. In the abstract, I agree. Using proxy-based litigation (arguing for right A when one really wants to secure right B) in public interest litigation often backfires. As Karl Llewellyn once said in a different context, covert tools are never reliable tools. As I noted earlier, if the plaintiffs won, they might do so through a decision that made bad law.

However, the history of social movement litigation has often made use of such proxy based arguments. For example, the NAACP often argued for First Amendment rights, as in the Herndon case, to promote black civil rights. Indeed, during the 30's and 40's the NAACP even used Plessy v. Ferguson in a series of equalization suits to try to improve conditions for black schoolteachers. A purist may object to such proxy-based litigation, but the history of social movements shows that in each case one has to make a contextual judgment about what is likely to do the most good and the least harm in the long run. In this particular instance, I believed that the litigation could do some good and would probably do very little harm whether the plaintiffs won or lost.

What the FAIR opinion does

In hindsight, my hope was borne out. Even though the FAIR plaintiffs lost, Chief Justice Roberts' opinion was carefully and skillfully written to make almost no new law. Clearly the Justices understood that they would have to thread the needle fairly carefully to achieve the unanimous opinion that would avoid making bad law for future cases.

Although news reports suggest that the 8-0 opinion was little more than a smackdown of the law schools' position, closer inspection reveals that it is very carefully written to avoid a whole host of problems that would arise if the Court had chosen a broader based rejection of the positions that the law schools offered. That is to say, the great thing about Roberts' opinion is that he makes the result look easy, and he makes it look easy by artfully dodging every interesting constitutional law question in sight. Several commentators have suggested that the law schools didn't know what they were doing in bringing the case; but in fact, the care and precision with which Roberts' opinion is written belies that claim. Only by writing an opinion as narrowly (and skillfully) as Roberts did could the Court avoid the Scylla of seriously entertaining the larger problems raised by the plaintiffs' claims and the Charybdis of expanding the law in several unfortunate directions. In the last part of this post, I'll give an example of one of the difficult doctrinal problems that remains unresolved by Roberts' opinion.

If one looks carefully at Roberts' beautifully written opinion, one discovers that the linchpin of the argument is his claim that

accommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade organizer's choice of parade contingents, a law school's decision to allow recruiters on campus is not inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A law school's recruiting services lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper; its accommodation of a military recruiter's message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.

By describing the placement office of law schools as essentially functional and ministerial, Roberts is able to argue that it is not all that different from, say, a shopping mall as in the Pruneyard case. The law schools, by contrast, argued that their placement function was continuous with their educational policies and was tied to their general interests in pedagogy. That is to say, law schools claimed that the way they structure the placement office is part of their job of teaching students how to behave as professionals. That is why they spend considerable amounts of time and effort in trying to attract public service employers and why they impose their nondiscrimination policy. If shaping the placement service in this way is paternalistic (as many have argued), it is the sort of paternalism that occurs naturally with education. Schools are describing what appropriate professional behavior is and what sorts of jobs their law students should aspire to.

Roberts' view, by contrast, is that nothing so grand is going on; rather law schools are simply operating glorified hiring halls to shuttle their students into the arms of corporate firms and other legal employers. A person with a more cynical cast of mind might argue that both the law schools and Roberts are right. The law schools are engaged in pedagogy and they are instilling values through the way they run their placement services, but the values they are promoting are that students should happily become cogs in corporate law firms, and that is why placement offices (especially at elite schools like Harvard and Yale) make the transition from law school to corporate firm relatively effortless; students who seek alternatives to the smooth escalator ride to corporate law practice must do considerably more work on their own. That is, in fact, the educational message that many students draw from law schools' placement policies; whether it is the message that law schools deliberately seek to instill is another matter. Viewed from this cynical perspective, Chief Justice Roberts has a point: if law schools are trying to instill messages about high minded professionalism in their placement policies, they are doing a pretty poor job, so poor, in fact, that the Supreme Court is justified in assuming that the placement function of law schools is purely utilitarian and has no important expressive elements.

A second notable feature of Roberts' opinion is its treatment of Boy Scouts of America v. Dale. Many gay rights advocates dislike Dale because it allowed the Boy Scouts to escape New Jersey's public accommodations laws. Conversely, some libertarian scholars who think that antidiscrimination laws have gone too far have embraced Dale as the thin opening wedge of a larger First Amendment attack on public accommodations law, and even some elements of employment law, such as sexual harassment law and hostile environment liability. If Dale were read broadly to support the plaintiffs' arguments in FAIR, many people worried that it would hasten the expansion of First Amendment defenses to antidiscrimination laws generally. That is one reason why many people, including myself, had qualms about some of the broader claims made in the FAIR litigation, and why I preferred a much narrower, as-applied challenge. (I should note that I also favored a nonconstitutional challenge based on administrative law and statutory interpretation.)

Fortunately, Chief Justice Roberts's opinion in FAIR reads Dale quite narrowly, in ways, I think, that may limit some future First Amendment attacks on antidiscrimination laws. He reads Dale as simply a case about membership and about laws that burden the right of an organization to choose their members or make membership in the organization less valuable and desirable to its members:

Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students -- not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school "'to accept members it does not desire.'" The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic speech, so too a speaker cannot "erect a shield" against laws requiring access "simply by asserting" that mere association "would impair its message.

FAIR correctly notes that the freedom of expressive association protects more than just a group's membership decisions. For example, we have held laws unconstitutional that require disclosure of membership lists for groups seeking anonymity, or impose penalties or withhold benefits based on membership in a disfavored group. Although these laws did not directly interfere with an organization's composition, they made group membership less attractive, raising the same First Amendment concerns about affecting the group's ability to express its message.

The Solomon Amendment has no similar effect on a law school's associational rights. Students and faculty are free to associate to voice their disapproval of the military's message; nothing about the statute affects the composition of the group by making group membership less desirable.


(citations ommitted.) Thus, if a group seeks to discriminate against those who do not seek to become members of the group, Dale does not apply. This makes Dale essentially irrelevant to a large number of antidiscrimination laws.

What the FAIR opinion leaves unresolved-- and why the military may not be happy with the result

Finally, FAIR v. Rumsfeld suggests that law schools may engage in "counter-speech" that criticizes the military's discriminatory policies. They can stage protests nearby military recruiters and they can offer official statements that criticize the military for its policies. Students, as well, are free to protest the military's policies.

Law schools remain free under the statute to express whatever views they may have on the military's congressionally mandated employment policy, all the while retaining eligibility for federal funds. See Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools "could put signs on the bulletin board next to the door, they could engage in speech, they could help organize student protests"). As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do -- afford equal access to military recruiters -- not what they may or may not say.

This language seems to resolve the case in a neat and tidy way. In fact, it leaves open a very important issue that will amost certainly arise in the future. At what point does protest and criticism of the military constitute unequal access under the Solomon Amendment? In FAIR v. Rumsfeld the Court fudged this question, sweeping a much more complicated set of issues under the rug for the moment.

If the Solomon Amendment means that law schools must treat the military just as well as employers that promise not to discriminate, then why doesn't the very counter-speech that the Court seems to suggest is permissible violate the Solomon Amendment? After all, if students routinely protest near the military recruiters, and if the school consistently sends a message that these recruiters are disfavored because they discriminate against homosexual students who seek to join the military, does this practice really treat the military as well as other, non-discriminating employers? Wouldn't this counter-speech, if persuasive (and pervasive), have the effect of making students shun the military, and won't it make the military recruiters feel unwelcome?

The Court refuses to engage with these questions, merely suggesting blithely (as it also did in oral argument) that there's nothing wrong with students and law schools openly protesting and criticizing the military and military recruitment because of its policies. That activity, the Court insists, is mere speech, not prohibited conduct.

But this answer is far too simple. If a school (and its faculty) were repeatedly to send the message that its black students were not welcome, even though the school did nothing else to prevent the students from attending the school, I have little doubt that the school would have violated Title VI of the 1964 Civil Rights Act. Similarly, if a restaurant had signs at its entrance saying "blacks go home" and "we resent serving blacks" and placed those signs deliberately in order to make blacks feel unwelcome, but did not refuse service to those blacks who came inside, the owners of the restaurant would probably be in violation of Title II. In other antidiscrimination laws, equal access isn't simply a requirement of no formal limits on physical access. Equal access usually means that you aren't allowed to send signals that the group is disfavored and unwelcome so as to discourage the group from entering and using the facility.

All this puts the Court between a rock and a hard place. What the Court seems to allow in FAIR v. Rumsfeld is the creation of a sort of "hostile environment" for military recruiters-- through speech and protest, to be sure-- as long as military recruiters are not physically barred from meeting students on campus and can use the same computer matching facilities. But if that's all the Solomon Amendment guarantees, it doesn't guarantee as much as the military thought it would. In particular, it doesn't give the military what it really wanted-- respect.

Suppose, then that the military objects, and argues that these demonstrations and signs of unwelcomeness violate the Solomon Amendment because no other employer is treated in the same way. Then the Court will once again be faced with a conflict between the Solomon Amendment and the First Amendment rights of law schools, only in a new guise.

If the Court says that schools can't make military recruiters feel unwelcome with speech and protests, because that would in effect be unequal access, then it undermines its arguments in FAIR v. Rumsfeld that the Solomon Amendment creates no First Amendment problems because it regulates conduct, not speech, and that there is no First Amendment problem as long as the law schools can organize anti-military protests and make clear to the student body that it disapproves of the military's discriminatory employment policies.

On the other hand, if the Court follows the reasoning offered in Chief Justice Roberts' opinion (and at oral argument), then it must hold that law schools and faculty can put up disapproving signs and even organize protests against the military that let the military know of the schools' disapproval. (For example, law schools might put signs next to the door where the military recruiters sit labeled "homophobes," and it might arrange for military recruiters to undergo a "walk of shame" as they enter the building). In that case, however, the Court must explain why the same reasoning would not apply in Title VI and Title II cases where racist schools and racist restaurants seek to drive off blacks by giving them formal access but sending a clear message that they are not wanted. That is to say, if the Court makes good on its promise of the law schools' and the law faculty's First Amendment rights to shun and protest military recruiters, it be must treating the equal access provisions of the Solomon Amendment differently than other antidiscrimination measures. That means that it will not really enforce the Solomon Amendment to give the military the same access as non-discriminating employers, because to do so would violate the free speech and associational rights of the law schools, their students, and their faculty.

If the Court takes this path, and follows through on what it said in FAIR v. Rumsfeld, then, ironically, it will have accepted that the Solomon Amendment does not really mean what it says: faculty and students must have the First Amendment right to make the military feel unwelcome, which is to say, they must have a First Amendment right to treat the military differently from other employers. And that would mean that the Court, without saying it directly, has actually accepted an important aspect of the law schools' argument in FAIR v. Rumsfeld. What looked at first like an 8-0 rebuff of law schools may turn out to be something quite different, something the military won't like one bit.

I have no idea what will happen in the future, but I strongly suspect that several law schools (although perhaps not Yale) will try to push the envelope as far as they can, employing their First Amendment rights as the Court describes them in FAIR v. Rumsfeld. The military will almost certainly object to this treatment, in part because one of the central purposes of the Solomon Amendment (and the military's implementation of it) was to get back at academics for failing to display what the military regarded as sufficient respect. That is to say, the Solomon Amendment wasn't really about access (there was effective access at Yale); it was about symbolism and respect, and it was about sticking it to pointy-headed liberal intellectuals in universities.

Thus, if law schools and law school faculty begin to protest military recruitment in earnest, and the military begins to complain that it feels unwelcome and isn't receiving truly equal access under the Solomon Amendment, then the case will wind up in the courts all over again. And the issues that Chief Justice Roberts so artfully dodged in his opinion in FAIR v. Rumsfeld will come back to haunt the both him and Court.

Soliciting Nominations for the Cox-Richardson-Ruckleshaus Award

Brian Tamanaha

One of the most disheartening aspects of the Bush Administration's assertion that it remains above the law (torture prohibitions and FISA) in its fight against terrorism has been the complicity of the Justice Department. Time and again Justice Department lawyers have lined up to defend the dubious legality of the Bush Administration's position on these issues.

Justice Department lawyers answer to a higher authority than the President. Their solemn oath is to uphold the law, even when contrary to the President's wishes. A glorious moment in the history of the Justice Deparment took place in the clash with President Nixon. Special Watergate Prosecutor Archibald Cox subpoenaed Nixon's tapes. Nixon ordered Attorney General Elliot Richardson to fire Cox. Richardson refused this direct presidential order and resigned. Nixon then ordered Assistant Attorney General William Ruckelshaus to fire Cox, who also refused. Solicitor General Bork finally carried out the deed.

This remains one of the most important events in the history of our nation's commitment to the rule of law.

The question is: where are the Justice Department lawyers who have resigned, or want to resign, rather than carry out or attempt to justify Administration policies that flout the law? They must be out there, since many Justice Department lawyers are honorable women and men. Perhaps they left in quiet protest, or are resisting internally in every way they can.

The internal resistance of Alberto Mora to the Administration's torture policy has been revealed, but he worked in the Defense Department. Former high ranking Justice Department lawyer David Kris recently condemned the legality of the warrantless surveillance program, but he is no longer with the Justice Department. Apparently, former Attorney General Ashcroft raised objections to the program early on, though the details of his resistance have not been fully disclosed.

The principle that the President is not above the law is under threat today. This is another pivotal moment in the history of our country. Administrations come and go, but respect for the law by government officials is a national legacy that each generation must preserve and pass on to the next.

Any Justice Department lawyers who step forward and explicitly resign (or announce that they previously resigned) in protest of these illegal policies would commit a brave act of principle, with immense national significance. Imagine the impact if a group of past and present Jutice Department lawyers collectively made this announcement. History would adjudge them national heroes in the Cox-Richardson-Ruckleshaus tradition.

ADDENDUM: A reader pointed me to a Newsweek report which indicates that James Comey and Jack Goldsmith left the Justice Department in protest. If that is correct, hooray for them! They are deserving nominees for acting pursuant to a great tradition. There must be more Justice Department attorneys out there who left, or who feel a compulsion to leave, for similar reasons. The principle of fidelity to the law obtains the most benefit, however, if a resignation in protest is widely known. Such public disclosure may be seen a betrayal of loyalty, and might have adverse career consequences, so it is understandable that this would be kept quiet, but something large is at stake.

Tuesday, March 14, 2006

Iran-Contra and our Present Constitutional Discontents

Sandy Levinson

It is quite fascinating—and not a little depressing—to read two essays written over fifteen years ago as contributions to a symposium on the Iran-Contra Affair published in the first volume of the National Political Science Review. Two of the essays were written by leading political scientists who went on to become president of the American Political Science Association, Theodore J. Lowi of Cornell and Matthew Holden of the University of Virginia.

Lowi offers a brilliant five-page riff, “Doin’ the Cincinnati or What Is There about the White House That Makes Its Occupants Do Bad Things?” He analogizes such persons as Col. Oliver North and Admiral John Poindexter to members of the 18th-century Society of the Cincinnati, “an organization of officers” who in effect refused to return to ordinary civilian life following American defeat in Vietnam, which, of course, they saw as an utter disgrace caused by “soft” civilians who did not recognize what was necessary to triumph in a tough world. They joined with neo-conservative intellectuals, such as Elliott Abrams and Richard Perle, in resisting what they thought were dangerous trends in American life. And, more to the point, their discontent in the 1970s was followed by service in the Reagan Administration.

Referring to North and his colleagues, Lowi writes that “it is not their individual dedication that counts; what is significant is their togetherness in a new Cincinnati society and their achievement: a coup d’etat that almost succeeded—to control and reorient U.S. policy toward two highly sensitive and strategic regions and, through that, to rededicate overall American foreign policy toward the bipolar definition of the world from which we had departed (or retreated) after Vietnam…. For them, the world may be objectively mulipolar, but it is morally bipolar.

"If the new Cincinnati has not as yet been recognized as coup d’etat plot, it is only because we generally define coup d’etat as an effort to replace an existing ruling group with an entirely new ruling group. But there can be other kinds, such as a partial or specialized coup d’etat, where only one domain or region is taken over…. Watergate itself can be understood as revelation of a coup by President Nixon’s own group of plumbers and others against those parts of the government thought to be out of control or less than loyal to what President Nixon was trying to achieve. In this respect, the Cincinnati coup of 1985-87 is shockingly like the Nixon coup to the extent that a White House-centered group took over a large chunk of foreign policy without the knowledge of, and once discovered, against the wishes of other less ideological parts of the national government….

"The coup failed, and the Cincinnati was exposed, but no thanks to the alleged genius of American political institutions. The coup was actually foiled by the Iranians themselves wit a leak to a Lebanese magazine….

"[We must] recognize that the Iran-Contra affair and the Cincinnati are reflections of a constitutional problem: What is there about the White House that makes its occupants do bad things? Pressure to produce results for the American people has made diplomacy and the presidency natural enemies. Each recent president has been pushed close to or over the brink of personal disgrace by one or more efforts to directly alter the history of a weak country that we have the military power to wipe out but lack the power to change. The evil here is not covert activity as such. There is ample constitutional justification for covert activity in foreign affairs, when that covert acivity is culy constituted. But when it is duly constituted, it is called diplomacy!

"As long as our system depends upon a presidency that requires a regular flow of international results, presidents will seek to short-circuit the slow-moving, bureaucratized diplomatic corp. That will require covert action by a rump group, and cooperation with such a group will leave the president vulnerable to true believers that are willing to put their own beliefs above the national and international procedures whose very purpose is to reduce the violence potential of intense ideologues. Procedures exist as protection against all mullahs, whether they are dressed in black or olive drab, speak Farsi or English, are bearded or clean shaven. Most of the fanatics who do not inhabit Teheran inhabit Washington. Orderly diplomacy is our protection against fanatics, wherever they are."

Holden offers an essay, “Congress on the Defensive: An Hypothesis from the Iran-Contra Problem.” Though he writes with less brio than the effervescent Lowi, it raises just as deep questions about our constitutional order. In particular, he takes issue with the passage in the majority report on the congressional Iran-Contra committee that the affair “resulted from the failure of individuals to observe the law, not from deficiencies in existing law or in our system of government.” This is, argues Holden, incorrect. “The ease with which the members of the White House staff and their allies outside carried out their preferences,” he writes, “makes it credible to believe that the working system tends to be closer to the Poindexter-North practice than the overt theory of political science or the conclusions of the committees might suggest. Congress is on the defensive. It is the victim of a structural weakening that long has been in process.” Devotees of executive power have been engaged in a long-term process, of which Iran-Contra was only one episode, to establish the “primacy” of the President regarding foreign and defense policy that ends up with “a concept of ‘the executive power’ substantially akin to what is ‘the royal prerogative’ in English law.”

Holden notes the importance of modern technology in making it much easier, as a practical matter, for the White House to establish genuine “command and control” over its subordinates, which includes establishing a ethos of secrecy and contempt for anyone outside the environs of the White House and its immediate political allies. He also offers several hypotheses as to why Congress has voluntarily ceded much of its power to the White House. One reason, of course, is that serious debate about public policy requires immense investments of time and energy actually to learn what is involved. Modern politicians get relatively little payoff for such investments, especially if the President can count on loyal supporters (which Holden analogizes to the king’s agents in 18th century British parliaments) to proclaim the supremacy of the President and the inappropriateness of a truly independent Congress (especially, of course, during a time of war). He also makes the important point that there is a long tradition of popular contempt for Congress, expressed by many “humorists,” whereas expression of similar contempt for presidents (who of course are “singular” individuals in a way that “Congress” is not) is thought to be bad form, perhaps even unpatriotic. Moreover, Holden argues, “The presidential office benefits from politics as theater. Politics as theater relieves boredom and frustration, both political and moral, and gives symbolic expression to people’s deep feelings…. The president’s aspirations to do what is right, if the president makes clear that is what he wants, will be respected, even if not venerated.”

I leave it to others to make the fairly obvious applications to our general situation. But might we might say that the seeds of the present constitutional crisis were laid by spineless Democrats who refused to take seriously the prospect of impeaching Ronald Reagan and who refused to raise a ruckus when President George H. W. Bush engaged in his infamous Christmas pardons of 1992 that effectively shut down the investigation of Special Prosecutor Lawrence Walsh into the culpability of Secretary of Defense Caspar Winberger and Bush himself? And, of course, Bush pardoned Abrams as well, who is now back in service in George W. Bush’s administration. No doubt, some of these Democrats are still around, opposing Sen. Russell Feingold’s mild-mannered suggestion that the President at least be censured for manifest contempt for the law. And so it goes…..

U.S. Loses Critical Battle in GWOT

Brian Tamanaha

Let's assume that the so-called Global War on Terrorism is more than a slogan cooked up by the Bush Administration to keep the public in a constant state of aggression and fear, and to justify the continuing string of lawless actions by an imperial presidency (committed in the name of defending the country in this new age war). These are large assumptions, of course, but many people apparently believe we are fighting a new kind of war, a 21st century war with a different set of rules, different kinds of battles, and different markers for victory and defeat.

If this view is to be taken seriously, we must recognize pivotal moments in the GWOT, which will take on unfamiliar guises. One such moment came last week in response to the issuance of the State Department's annual human rights report. As the New York Times reported, China's response was biting:

In a sharply worded response...China's cabinet said the American government should concentrate on improving its own rights record. "As in previous years, the State Department pointed the finger at human rights situations in more than 190 countries and regions, including Chnia, but kept silent on the serious violations of human rights in the United States," the Chinese report said.

The Russian government responded similarly:

"Even an initial analysis of the State Department report shows that it is full of distorted facts and appears to be a specimen of explicity double standards in assessing human rights," said a statement by the Russian Foreign Minister.

The U.S. has been accused of hypocrisy before, of course, but this time is different. This time the hypocrisy cannot be denied, with a government that openly flouts the law to spy on citizens, detains people indefinitely without charges, pursues a policy of torture, and twists intelligence to take the country into a war that has killed tens of thousands of people and maimed many more.

A key battle ground in the new Global War on Terror is the arena of international moral authority. There is no doubt that public opinion around the world overwhelmingly agrees with the reponse of China and Russian that we are hypocrites for pointing out their wrongs but not our own. Indeed, the U.S. government's excuses and justifications for its (for our) human rights violations sound strikingly like statements made by other guilty governments in defense of their conduct in the past.

Our country has suffered a major defeat in the GWOT. We has lost our moral authority in the eyes of the world. This is a defeat not just for the U.S., but also for the world. Never mind the snickering of cynics: the U.S. has been a force for good on many occasions in the past. We have enjoyed many admirers and supporters around the world. Our credibility right now, however, is zero.

The first step in recovering from this defeat is to halt our human rights violations: stop pursuing a policy of torture (really stop, not just claim that we don't do this), stop detaining without charges, and stop flouting the law.

But that alone is not enough. We must stop being hypocrites. We must acknowledge that we are wrongdoers as well. The State Department should issue forthwith an addendum to the report with a section on U.S. violations of humans rights last year, and the U.S. should be included in all future reports.

That would earn us some badly needed respect.

Monday, March 13, 2006

George W. Bush: not exactly the right spokesman against isolationism

JB

President Bush is correctly warning Americans against a growing tendency toward isolationism. The problem is that in the past five years he has done everything he could to stoke the same irrational fears that he now condemns. Together with Karl Rove, he cynically used 9-11 to scare Americans about threats from abroad. He disdained international law and international bodies. He generated disdain for traditional European allies ("Old Europe") even as he sought to form his own pick up team of dependent nations to fight the war against Iraq. He succeeded in getting most of the world to despise Americans, a hatred that only grew following the invasion of Iraq and reports of prisoner mistreatment at Abu Grahib and Guantanamo Bay. After all, the best way to stoke isolationism is to get Americans to hate and fear other countries, and other countries to hate and fear the United States. The latter hated merely increases the former in a vicious circle: Nobody wants to get involved with people who hate them.

After alienating former allies, and, indeed, most of the rest of the world, Bush then pushed the country into what in hindsight appears to have been a thoroughly unnecessary war against Iraq based on hyped intelligence reports. He then trumpeted American power in his "Mission Accomplished" pageant only to be hit with an insurgency that he didn't expect, leading to a long and drawn-out war that has cost thousands of American lives and billions of dollars wasted with no end in sight.

His colossal incompetence in planning the Iraqi occupation only exacerbated the suspicion that American interventions in other people's affairs aren't worth it. He then ran for reelection in 2004 based on a platform of fear-- the idea that the world outside America's borders was dangerous and only he could protect us. Again, this is not a good prescription for making Americans feel warmly toward the rest of the world or, more importantly, seek to engage with it. And after he was reelected, the attacks in Iraq continued, bringing that country dangerously close to all out civil war. Note to the President: if you want Americans to embrace internationalism, don't make promises you can't keep and above all, don't lose wars that you started.

Bush's ill considered doctrine of military preemption, his repeated fearmongering, his cynical use of 9-11, his deliberate generation of Americans' resentment toward traditional allies, his incompetent handling of the Iraqi war, his hubris following initial successes, his failure to recognize and address the problems of occupation in time, and (most recently) his cluelessness on how Americans would react to the Dubai port proposal make his current admonitions against isolationism necessary but also laughable, given the source. No one is more responsible for the current American hostility toward the rest of the world (and the rest of the world's hostility toward America) than George W. Bush. The best thing he could do now to prevent isolationism is to admit his mistakes, resign from the Presidency, and take Mr. Cheney with him.


Thursday, March 09, 2006

A Thorough Debunking of the "Statutory" Argument for the NSA Surveillance Program -- But Alas, Congress Doesn't Care

Marty Lederman

Today's Washington Post reports that David Kris, DOJ's Associate Deputy Attorney General in charge of national security issues from 2000 to 2003 -- now a counsel at Time-Warner -- is "highly critical" of the legal arguments that DOJ has offered in support of the legality of the NSA domestic spying program. That's putting it mildly.

I worked with David at the Department of Justice. It's very safe to say he was one of the very best appellate lawyers in the Department -- and became one of the most trusted, most well-respected authorities in the Department on criminal law and electronic surveillance issues once he moved on to the DAG's Office. He's extremely thorough, careful, and impartial. And those qualities are on display in his recent analysis of the NSA program, contained in this series of e-mails to the Attorney General's Office in December and January, and, much more importantly, in this remarkable 23-page memo dated January 25, 2006. (All were written in his personal capacity, and do not reflect the views of DOJ or Time-Warner.)

David's memo is by a large measure the most thorough and careful -- and, for those reasons, the most effective -- critique anyone has yet offered of the DOJ argument that Congress statutorily authorized the NSA program. It largely confirms the statutory argument contained in two letters that I and 13 other academics and former government officials recently sent to Congress (here and here), but David's analysis is much more comprehensive than anything we could have done in that format -- it delves deep into the interstices and legislative history of FISA (a subject that David knows inside and out), and takes apart with precision all of the technical statutory arguments offered in the DOJ "White Paper" defense of the program.

Two things in particular stand out:

(i) David provides a comprehensive analysis of FISA's "exclusive means" provision (18 U.S.C. 2511(2)(f)), and shows both why that provision precludes the NSA program unless it was impliedly repealed, and why it was not repealed.

(ii) David pinpoints (pp. 6-7 & nns. 59-62) why the DOJ notion that Congress approved the NSA rogram in the 9/18/01 Authorization for Use of Military Force is undermined by the drafting, negotiation and enactment of the PATRIOT Act that was happening at approximately the same time. We've heard a lot in recent days about how critical it is that the PATRIOT Act be renewed to permit the President to fight the War on Terrorism. Just check out the President's remarks today on signing the renewal -- it's all about how the PATRIOT Act is so critical to the fight against the terrorists responsible for 9/11. (Hasn't the President heard the news that those authorities were already enacted in the AUMF?) We heard the same thing back in 2001, when the Act was first introduced. But the logic of the DOJ defense of the NSA program, if it were correct, would mean that many key provisions of the PATRIOT are largely superfluous. (Few observers have noted one of the most extraordinary aspects of the DOJ White Paper: In footnote 13 of that White Paper, DOJ responds to this PATRIOT-Act-is-superfluous argument by explaining that, in fact, the PATRIOT Act was not necessary for the "current armed conflict against Al Qaeda and its allies," and that it was instead merely a vehicle for removing "long-standing impediments to the effectiveness of FISA." In other words, the "necessary to defeat Al Qaeda" argument was merely a stalking horse, and the PATRIOT truly was, and remains, a DOJ wish-list to address issues that had long preceded September 11th. This doesn't mean that the PATRIOT Act should, or should not, have been renewed; it's merely to point out that, on DOJ's own reading of the AUMF, the PATRIOT Act is hardly necessary to address the current conflict with Al Qaeda.)

Another remarkable thing -- perhaps the most important thing -- about the Kris memo is that it is dated January 2006, rather than January 2003: David did not produce anything of the sort when he was actually at DOJ, when the legality of the program was being considered. That's not David's fault. Although he was the person in the DAG's office whose portfolio included FISA and electronic surveillance, and although DOJ often trotted David out to testify and speak on such matters well after September 11th, David was never so much as briefed on the NSA program. Now we have reason to understand why: Perhaps DOJ knew that if it ran its legal arguments by serious, trusted and objective lawyers in the Department -- those who knew FISA inside and out -- they would not have passed muster. It's hard to imagine any other reason why someone of David's skills, and in his position on these precise issues, would have been kept out of the loop. Once again, it's evidence of an Administration that is indifferent as to what the correct legal answers might be, but is instead looking only for some legal hook, no matter how tenuous, on which to hang its desired operational programs. See also, e.g., the legal justifications for torture and other unlawful means of interrogation that were reached without the input of those lawyers in the Administration with the most knowledge on the questions; and the finalization and use of the DoD Working Group Report without even informing the Working Group itself (which included several skeptics). This is a much more systemic problem than the particular NSA dispute at issue here.

David's memo also includes shorter discussions of the Fourth Amendment and Commander-in-Chief questions. I don't agree with quite all of what David writes in these respects -- in particular, I don't think the bona fides of the Article II argument are as fact-dependent as he suggests -- but his analysis is, again, serious, balanced, and well worth reading.

I would go into more detail on the Kris memo, but I'm afraid this is where the story turns sour. (More on the Kris e-mails from "georgia10" here.) You see, David's analysis is really beside the point now, for two reasons: the first comforting, the other disheartening.

First, as far as I'm aware no one in Congress has been persuaded by the Administration's statutory argument: It was dead on arrival. As Senators Graham and Specter, among others, have explained, they were present at the negotiation and enactment of the AUMF, and they guarantee that neither they nor their colleagues intended to authorize the sort of circumvention of FISA that the Administration has been engaged in for the past five years. (Attorney General Gonzales's testimony, in response to Graham's explanation to this effect, was basically that Congress unknowingly authorized a major restructuring of a central framework statute, and that actual legislative intent is irrelevant. You can imagine how well that notion went over in Congress.)

Second, it now appears that Congress simply (and unfortunately) doesn't care that the Administration's (secret) legal justification was implausible, nor does it care that the Executive branch treated the legislature (and its statutory enactments) with contempt. Republican Senators, including Roberts and Hagel, yesterday negotiated a "deal" with the White House for legislation that would actually authorize warrantless, virtually unlimited surveillance of Americans. According to a report in today's New York Times, the bill "would give Congressional approval to the eavesdropping program much as it was secretly authorized by Mr. Bush after the 2001 terrorist attacks, with limited notification to a handful of Congressional leaders. The N.S.A. would be permitted to intercept the international phone calls and e-mail messages of people in the United States if there was 'probable cause to believe that one party to the communication is a member, affiliate, or working in support of a terrorist group or organization,' according to a written summary of the proposal issued by its Republican sponsors. The finding of probable cause would not be reviewed by any court. [A]fter 45 days, the attorney general would be required to drop the eavesdropping on that target, seek a warrant from the Foreign Intelligence Surveillance Court or explain under oath to two new Congressional oversight subcommittees why he could not seek a warrant." Details on Senator Snowe's webiste.

Oh, and in "exchange" for affording the Administration this huge loophole in FISA, the Senate agrees not to investigate the NSA program, and not to look further into the Administration's past lawbreaking. Quite a deal, right? Here's the best part: On Tuesday, Senator Rockefeller remarked that the Senate Intel Committee Republicans were "under the control" of the White House. Senator Roberts responded on Wednesday that he resented being portrayed as what he called a "lap dog of the administration," explaining that Rockefeller "doesn't know how hard we worked."

I don't doubt that Roberts and Hagel did "work hard" to reach their "compromise." After all, look where they started the "negotiations": The Vice President's opening gambit was to scoff at Congress altogether, and to insist that the program would go forward come hell or high water, no matter how many legislators thought it was illegal. So Roberts, et al., actually secured a great victory: They've put an end to the Administration's lawbreaking . . . by amending the law to make the conduct legal. (That'll show 'em.) Checks and balances in living color. (Much, much more on this development over at Glenn Greenwald's site, which is fast becoming the locale for one-stop web shopping on the NSA issue.)

P.S. In signing the PATRIOT Act extension today, the President included this typical qualification:
"The executive branch shall construe the provisions of H.R. 3199 that call for furnishing information to entities outside the executive branch, such as sections 106A and 119, in a manner consistent with the President's constitutional authority to supervise the unitary executive branch and to withhold information the disclosure of which could impair foreign relations, national security, the deliberative processes of the Executive, or the performance of the Executive's constitutional duties."

Translation: There are numerous provisions of the Act that require the Department of Justice to provide information and documents to congressional committees for purposes of oversight. We will ignore those requirements when we conclude that it will "impair" what occurs in the Executive branch. Thanks for asking, though.

Don't be surprised when the President included similar language if and when he signs the touted NSA-surveillance "oversight" bill that Senators Roberts, Hagel and Snowe just worked so hard to negotiate.

P.P.S. I've been meaning also to link to this brief filed a couple of weeks ago with the Foreign Intelligence Surveillance Court by Hogan & Hartson on behalf of the Constitution Project and the Center for National Security Studies. The brief argues at length that the NSA program is unlawful, and urges the FISA court to hold NSA's electronic surveillance under the program to be unlawful "in any proceeding where the lawfulness of any such surveillance is at issue." More on this development from Lyle Denniston on SCOTUSblog.

A FAIR Thought

Mark Graber

My favorite new book, Jon Gould's SPEAK NO EVIL: THE TRIUMPH OF HATE SPEECH REGULATION, documents how, on most campuses, speech codes restricting racist (etc.) expression were more vigorously championed by administrators seeking to pacify various constituencies and keep up with the Jones, than critical race theorists and minority activists who had more important fish to fry. Reading that book in light of the recent FAIR litigation, I wonder whether something similar may have taken place with respect to military recruitment on campus. My sense of the universe is that while most liberal law professors, like myself, believed that campuses could deny military recruitment consistent with the statute (the military had to obey the same rules as other employers, which meant no discrimination against gays and lesbians) that we were very queasy, to say the least about the spending clause argument (since the government's pocketbook has been used for more liberal good than bad, at least in my judgment). So a question to which I do not know the answer, but would welcome reader input. Was the constitutional attack (as opposed to the statutory attack) on the right of the military to recruit on campus largely driven by professors who believed the spending clause argument or by academic administrators looking to make a largely symbolic protest?

Monday, March 06, 2006

The unraveling begins

JB

Many are now wringing their hands over South Dakota's new abortion law, fearing that it means the end for abortion rights in this country. But the people who should really be cowering in fear are Republican political candidates. For South Dakota has begun the process of undermining the Republican Party nationally.

In response to the controversy over South Dakota's new law, three potential GOP candidates for President in 2008 have recently suggested they would sign a bill that banned almost all abortions:

Virginia Sen. George Allen's (R) chief of staff, Dick Wadhams, a national GOP strategist, said Allen "has consistently supported the rights of the people in their states to pass laws which reflect their views and values." A spokeswoman for Massachusetts Gov. Mitt Romney (R) said that if Romney were the governor of South Dakota, "he would sign it. [Romney] believes that states should have the right to be pro-life if that is the will of the people."

A spokesperson said Sen. John McCain, R-Ariz., would have signed the South Dakota legislation, "but [he] would also take the appropriate steps under state law -- in whatever state -- to ensure that the exceptions of rape, incest or life of the mother were included." (Exactly how such "steps" would be received by this bill's sponsors remains unclear).

Not far from their minds is the early-primary state of South Carolina, one of the most anti-abortion states in the country, where voters in 1994 elected a governor (Republican David Beasley) who wanted to outlaw all abortions -- even those endangering a woman's life.

"And there are lots of people here who agree with [Beasley]," said Henry McMaster, the state's attorney general and former GOP chairman. "This is a heavily pro-life state. Any presidential candidate who isn't, who doesn't prove himself on this issue, will suffer."


They might indeed suffer in the primaries. But what about the general election? Most Americans may want abortions more difficult to obtain (as they imagine current circumstances) but they don't want almost all abortions criminalized. If Republican presidential candidates announce their support for criminalizing abortions in the primaries in order to win the votes of the pro-life faithful, their Democratic opponents will be more than happy to remind the public of that position when the general election comes round. That, I predict, will help split the Republican coalition that has governed the country for years.

For this we can thank the wonderful folks in the South Dakota legislature, who have put the criminalization of abortion squarely on the table for public discussion. By making it important for Republican politicians to take a stand-- not on the relatively popular issues of partial birth abortion bans and parental notification requirements, but on the far less popular question of criminalizing abortion-- South Dakota has managed to do what years of Democratic politics could not-- create a wedge issue that will destroy the Republican party's winning coalition nationally.

Parental Notice and Consent Requirements: Neither Pro-choice nor Pro-life

JB

This New York Times article argues that passage of parental notification and parental consent laws following Casey has not had a significant effect in reducing abortions among teenagers, at least when judged in comparison to similar rates of abortion among 18 and 19 year olds who are not subject to the laws.

Parental notice and consent laws, which are quite popular, are premised on an idea of choice, but the relevant actor is the family instead of the individual woman. The family decides whether the woman will get an abortion. That sort of paternalism is unacceptable for adults, but many Americans embrace it for minor children, on the grounds that parents are asked to consent for other significant surgeries their children undergo.

Abortion rights groups are worried that parents will prevent children from having abortions they would otherwise choose (just as pro-life groups are hoping this will be the case) but the statistics from the Times suggest that the cumulative effect of the laws is not very great; indeed, the story reports, some parents urge their children to have abortions.

Thus even if parental notification and consent laws cause some minors not to have abortions, they may also cause some minors to have abortions when their parents would prefer it. In one sense, that's not what either pro-choice or pro-life people wanted. Pro-life people wanted to reduce the total number of abortions, while pro-choice people want the decision to be made by the individual woman and not forced on her by her family.

Parental notification and consent laws, however, are only one arrow in the quiver of pro-life groups. Bans on partial birth abortion, which the Supreme Court will revisit later this year, are another. However, these laws affect only a very small number of women each year, and the lack of a health exception in the Federal law may actually prevent almost no abortions; if the partial birth abortion procedure is safer in some small number of cases, banning it would simply make a small number of late term abortions that would happen anyway less safe. Thus, like parental notification and consent laws, these laws may have largely symbolic effects.

It would be well worth doing surveys that compare the effect of parental notification and consent laws with TRAP (Targeted Regulation of Abortion Providers) laws that impose fairly burdensome licensing and inspection obligations on abortion clinics, and with waiting periods laws that require women to make multiple trips to obtain abortions (which can be especially burdensome for women in rural areas). It is possible that these laws have the greatest impact on reducing the number of abortions by constricting opportunities for poor women and women in rural areas. If so, they may do comparatively little to hinder women in large urban areas or women who are comparatively affluent however. Once again, the effect on the overall number of abortions may not be as great as pro-life advocates have hoped; the effect of TRAP laws and waiting period laws may be mostly to make access to abortions difficult for the poorest women and for those with the fewest resources to raise children on their own.

Finally, it is worth considering that the reform that has done more to reduce the total number of abortions in the years since abortion was legalized in the United States is better access to and education about contraception. If pro-life forces are particularly interested in reducing the total number of abortions, they might join with pro-choice groups to promote the use of contraception and prevent unwanted pregnancies from happening in the first place. Abstinence programs aimed at teenagers can be a part of a larger effort at reducing total unwanted pregnancies, but by themselves they are unlikely to do the job.

Increased focus on making contraception widely available, especially to young people, educating them in how to use contraception, and emphasizing the importance of using it is probably the single most effective reform that the pro-life movement might make to reduce the total number of abortions in the United States.

Such a program might be acceptable to significant parts of the pro-life movement, but it may be unpalatable to others, either because they have moral and religious qualms about contraception, or because promoting contraceptive use does nothing to stem sexual activity by unmarried people or encourage greater chastity among women. That is to say, for important segments of the pro-life movement, the fight over abortion is not just a fight about reducing abortions, but is connected to a larger struggle about proper behavior, particularly the sexual behavior of women. For these parts of the pro-life movement, the discovery that parental notification and consent laws are not significantly reducing the number of teenage abortions may be doubly upsetting, for it also suggests that these laws are not significantly affecting the sexual behavior of teenagers.


Saturday, March 04, 2006

An Embarrassment of Riches

David Luban

A great deal is disturbing about Judge David Trager’s decision in the Arar case two weeks ago. (Arar is the Canadian of Syrian birth who was snatched by U.S. officials while he was changing planes in New York on his way from Tunisia to Canada, and then shipped off to Syria for ten months of torture and imprisonment in a grave-size cell.) Dismissing Arar’s tort claims against U.S. officials, Judge Trager argued that permitting the law suit to proceed runs the risk that embarrassing information might emerge during the discovery process – for example, information that Canadian officials may have secretly cooperated with the United States in the Arar snatch, despite their denials. In a blistering op-ed, New York Times columnist Bob Herbert accurately paraphrased the argument as an attempt to preserve Canadian officials’ sacred right to lie to their constituents. Judge Trager argues that embarrassing officials in a U.S. courtroom might adversely affect foreign affairs and harm national security.

The Bush Administration’s initial response to the Arar lawsuit, over a year ago, was to invoke the rarely used "state secrets" doctrine, which allows the government an unreviewable privilege to shield state secrets from courtroom revelation. (The doctrine’s most common use has been in cases where Defense Department whistleblowers file actions permitting them a financial award for revealing fraud and corruption. Sometimes, these actions risk revealing secret details of weapons systems.) In the Arar case, the government argued that because every single fact is a U.S. state secret, Arar could not possibly prove his case, and his suit should be dismissed. Veteran litigators referred to the state secret doctrine as "the nuclear option", because of course it automatically obliterates an adversary's case. In theory, the government can, if it wishes, invoke it every time it is sued.

Judge Trager never ruled on the state-secret motion, because he goes one step further. He argues, amazingly, that even invoking the state secret doctrine might prove embarrassing to the government, because "it could be construed as the equivalent of a public admission that the alleged conduct had occurred in the manner claimed." Therefore, the lawsuit must be tossed out without forcing the government to use the nuclear option. It's just too embarrassing to have to go nuclear in order to shield your officials (and those nice Canadians) from having it revealed that they colluded in the torture of their kidnap victim.

The problem is that there is no limit to the anti-embarrassment principle. To take an obvious example, the revelation of the Abu Ghraib photographs undoubtedly embarrassed the United States government and made it more difficult to orchestrate anti-terrorism action with other governments. Therefore, no law suit by Abu Ghraib victims can be permitted. On this logic, no law suit that ever reveals misconduct or criminality by U.S. personnel, no matter how atrocious it is, can ever go forward. After all, anything that might make us look bad could have adverse effects on the prosecution of the War on Terror. In fact, the more atrocious the conduct, the more embarrassing its revelation would likely be - so, under the anti-embarrassment principle, the worse the conduct the more protection it deserves.

So there we have it. Along with the famous "commander in chief override," which supposedly allows the President (in his role as Greatest Field Marshall of All Time) to override any law in the name of national security, we now have the anti-embarrassment principle, which allows courts to dismiss any law suit that might embarrass U.S. officials in the eyes of our allies.

Even this doesn’t get at one of the most breathtaking portions of Judge Trager’s Arar opinion, where he delivers the following obiter dictum on whether the snatch and torture of Arar "shocks the conscience":

While one cannot ignore the "shocks the conscience" test established in Rochin v. California, 342 U.S. 165, 172-73 (1952), that case involved the question whether torture could be used to extract evidence for the purpose of prosecuting criminal conduct, a very different question from the one ultimately presented here, to wit, whether substantive due process would erect a per se bar to coercive investigations, including torture, for the purpose of preventing a terrorist attack. Whether the circumstances here ultimately cry out for immediate application of the Due Process clause, or, put differently, whether torture always violates the Fifth Amendment under established Supreme Court case law prohibiting government action that "shocks the conscience" - a question analytically prior to those taken up in the parties' briefing - remains unresolved from a doctrinal standpoint. Nevertheless, because both parties seem (at least implicitly) to have answered this question in the affirmative, it will be presumed for present purposes that the Due Process clause would apply to the facts alleged.

Until now, no one thought this question "remains unresolved from a doctrinal standpoint." In 1980, the Second Circuit denounced torture in ringing language, in its Filartiga opinion, which established the right of foreign torture victims to sue their torturers in U.S. courts under the Alien Tort Statute. In a footnote, Judge Trager, for whom this decision is controlling precedent, acknowledges the strong anti-torture language in Filartiga, but reads it narrowly to conclude "this dictum does not address the constitutionality of torture to prevent a terrorist attack." He also acknowledges our treaty commitments not to torture, replying "the obligations...can be repudiated," and virtually invites Congress to do so by suggesting that customary international law against torture would not prevail over "congressional legislation to the contrary."

The last sentence of the quote is remarkable – it admits that even the Bush Administration doesn’t deny or contest that torture shocks the conscience and violates the constitution. So Judge Trager's musings on the subject are entirely gratuitous. He is just sounding off. The whole point of the paragraph seems to be a judicial protest that, for heaven’s sake, somebody ought to be arguing that interrogational torture does not shock the conscience. It looks as if Judge Trager was eager to lay down the first precedent toward that conclusion in a published judicial opinion.

At least for Judge Trager, the sands have shifted from the world of 1980, when the Filartiga court labeled torture a "dastardly and totally inhuman act," to a world where torture is not only thinkable, but not even shocking – at least when it’s done by us to stop terrorists. His opinion contemplates a world where U.S. officials torture away with an entirely clear conscience, while resting secure in the knowledge that no court will embarrass them by allowing their victims a forum to prove that it ever happened.

Gall (and Desperation): How Low Can Frist Stoop?

Marty Lederman

The White House must be really desperate to avoid any congressional investigation into whether the NSA's domestic spying program violates the law. How else to explain this remarkable letter? (Senator Frist demonstrates here that he is entirely a puppet of the Republican Party has absolutely no interest in preserving the Senate's institutional interests -- not that there's anything wrong with that, right?)

You see, rather than performing the critically important role of (in Frist's words) "conducting oversight of the intelligence community and its activities," the Senate Intelligence Committee Democrats -- and some Republicans (Snowe, Hagel) who actually care about the laws they are charged with overseeing -- are outrageously attempting to . . . conduct oversight of the intelligence community and its activities! For shame! You see, investigating whether the President is abiding by the laws enacted by Congress -- those carefully designed to strike a balance between the national security needs of the Nation and the privacy of Americans -- or whether he is instead trying to arrogate all power to the Executive, to the point where Congress, and statutes, are mere trifles -- is a project that "offers little (or no) value to the challenges our Nation now faces."

As a remedy, Frist threatens to alter the 30-year-old bipartisan nature of the Intelligence Committee -- which permits investigations to go forward on a motion of the minority party (the Vice-Chairman), if there is a majority of members in favor. Much more on this development from Glenn Greenwald.

It's a fairly notable day, isn't it, when the Senate Majority Leader is willing to take all necessary steps to emasculate the Senate's ability to check the Executive branch?

The next move, it seems to me, belongs to Senators Hagel and Snowe.

Thursday, March 02, 2006

What did the President know and when did he know it?

JB

The National Journal reports that President Bush was repeatedly given intelligence which contradicted the case for war he made to the American public.
The first report, delivered to Bush in early October 2002, was a one-page summary of a National Intelligence Estimate that discussed whether Saddam's procurement of high-strength aluminum tubes was for the purpose of developing a nuclear weapon.

Among other things, the report stated that the Energy Department and the State Department's Bureau of Intelligence and Research believed that the tubes were "intended for conventional weapons," a view disagreeing with that of other intelligence agencies, including the CIA, which believed that the tubes were intended for a nuclear bomb.

The disclosure that Bush was informed of the DOE and State dissents is the first evidence that the president himself knew of the sharp debate within the government over the aluminum tubes during the time that he, Cheney, and other members of the Cabinet were citing the tubes as clear evidence of an Iraqi nuclear program. Neither the president nor the vice president told the public about the disagreement among the agencies.

When U.S. inspectors entered Iraq after the fall of Saddam's regime, they determined that Iraq's nuclear program had been dormant for more than a decade and that the aluminum tubes had been used only for artillery shells.

The second classified report, delivered to Bush in early January 2003, was also a summary of a National Intelligence Estimate, this one focusing on whether Saddam would launch an unprovoked attack on the United States, either directly, or indirectly by working with terrorists.

The report stated that U.S. intelligence agencies unanimously agreed that it was unlikely that Saddam would try to attack the United States -- except if "ongoing military operations risked the imminent demise of his regime" or if he intended to "extract revenge" for such an assault, according to records and sources.

The single dissent in the report again came from State's Bureau of Intelligence and Research, known as INR, which believed that the Iraqi leader was "unlikely to conduct clandestine attacks against the U.S. homeland even if [his] regime's demise is imminent" as the result of a U.S. invasion.

On at least four earlier occasions, beginning in the spring of 2002, according to the same records and sources, the president was informed during his morning intelligence briefing that U.S. intelligence agencies believed it was unlikely that Saddam was an imminent threat to the United States.

However, in the months leading up to the war, Bush, Cheney, and Cabinet members repeatedly asserted that Saddam was likely to use chemical or biological weapons against the United States or to provide such weapons to Al Qaeda or another terrorist group.

The Bush administration used the potential threat from Saddam as a major rationale in making the case to go to war. The president cited the threat in an address to the United Nations on September 12, 2002, in an October 7, 2002, speech to the American people, and in his State of the Union address on January 28, 2003.


Although the Administration had multiple justifications for invading Iraq, the most important in garnering public and Congressional support was the imminent danger that Saddam posed to the United States. If Congress had known that intelligence services did not believe that Saddam posed such a threat, support for an authorization to go to war to overthrow Saddam would have been far smaller, and indeed, the President might not have been able to get a majority of Congress behind him. And if, in addition, he had been honest about how much the war would cost and how many troops would be needed it is very likely that Congress would not have gone along.

The President sold this war to the American public based on half truths. He then refused to acknowledge the cost of the war and the number of troops it would require. When his Administration botched the occupation, he repeatedly refused to admit how serious the situation was or how badly he had handled things. The Iraq war is a policy sold on misrepresentation, premised on wishful thinking, and carried out in denial. That's not a policy for success.


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