Balkinization  

Tuesday, April 04, 2006

Honest Proponents of the Death Penalty (and Judges): Please Read this Book

Brian Tamanaha

Despite the life and death stakes, one gets the impression that our society is suffering from "death penalty fatigue." Polls show that the majority of the public is for the death penalty, and proponents are sick and tired of the obstructionist efforts of opponents.

Set aside the debate between advocates and opponents of the death penalty and consider instead a different proposition: assuming our society approves of the death penalty, it should be fairly administered.

It's hard to imagine that many people, including supporters of the death penalty, would disagree with this proposition. The problem with the public debate is that proponents of the death penalty tend to dismiss questions about fairness as merely another tactic raised by opponents, rather than a legitimate issue that everyone should be concerned about.

Of course it's fair, proponents (and judges) assume, and they point to the various procedural protections and years of appeals as conclusive evidence. They admit that a few mistakes have been made in the past (as DNA evidence has shown), but rarely any more; and a few will even acknowledge that there are persistent racial disparities in the imposition of the death penalty, but deny that this makes the system unfair with respect to any particular individual. And, anyway, they are sick and tired of these issues, which have been raised many times and settled by courts in favor of the death penalty.

But every judge and every fair-minded proponent of the death penalty should read a recent book by Craig Haney, Death by Design (Oxford 2005), which is a detailed exploration based on 25 years of studies of the legal processes that lead to the imposition of the death penalty.

Did you know that many people who vote to impose the death penalty would have voted instead to impose life imprisonment without parole if they had been informed that this was an option (that "life" really means the prisoner won't be let go)?

Did you know that many jurors misunderstand the jury instructions (specifically, the meaning of "mitigation"), and erroneously believe at the sentencing stage that the law in some sense requires the imposition of the death penalty?

These and many other serious issues surrounding the fairness of the imposition of the death penalty are explored in Haney's book. Anyone who claims to be informed about the reality of the death penalty, and any judge who participates in its imposition, has no excuse for not reading it.

This book does not challenge those who are convinced that the death penalty is a legitimate form of punishment. It does, however, point out (with a great deal of convincing empirical support) specific ways in which current procedures surrounding the imposition of the death penalty operate unfairly, and it proposes concrete and simple reforms to ameliorate the problems identified.

This book is not against the death penalty--it just wants the death penalty to be imposed fairly. And who can disagree with that?

Discrimination against the Single

Mark Graber

Students at the University of Maryland Law School are selling tickets to their annual dance at $45 a person and $80 a couple. As a person whom I suspect was voted "Most Likely to be Dateless" from ages 15-25, I've often wondered about the couple discount at school dances, whether or not gay couples are included. At middle school and even high school dances, the incentive system seems perverse, given that I do not think school authorities should encourage pairing up at that age (it will happen regardless). But even in law school, I wonder whether this is a minor form of discriminationthat, while hardly worth a federal case, is worth a paragraph or so in Balkinization (and probably no more). After all, if we worry about stigmatic messages, I think 20sometimes without dates get lots of them and might benefit from one less. Curious what others think.

Friday, March 31, 2006

The Schumer NSA Bill and the Feingold Censure Resolution

Marty Lederman

There's a hearing in the Senate Judiciary Committee today on Senator Feingold's censure resolution, dealing with the NSA's extra-legal electronic surveillance program. As I explain below, I think the legal substance of the Feingold Resolution is unassailable, and the emergence of the censure resolution certainly plays a valuable role in keeping the issue in the public eye. Beyond that, I don't have enough information or political acumen to calculate whether the Feingold Resolution is a politically astute tactic -- but the one thing I'm fairly certain of is that, although it's well-intentioned, it will not lead to cessation of the NSA program, or to any serious and effective assertion of congressional war-powers prerogatives.

Accordingly, I return to the question I asked two months ago: What can Congress do about this conflict, anyway? I continue to think that what I wrote then was correct: The only way for Congress to prevail in this important war-powers stand-off is if the Supreme Court declares the President's conduct unlawful. Assuming that's correct, the only worthwhile thing for Congress to do is to pass a statute such as that proposed by David Barron, establishing statutory standing for parties reasonably chilled by the NSA program, and facilitating expedited Supreme Court review.

Enter Senator Schumer's new bill, S.2468, which would do just that. This is the bill that should be the top legislative priority. The bill is very simple:

Most importantly, it would create a statutory cause of action -- and thus statutory standing -- for certain persons with a "reasonable fear" that their communications are being intercepted, authorizing them to file an action asking a court to enjoin or declare unlawful the NSA program. A reasonable fear would be established by evidence that the plaintiff either has regular wire communications from the U.S. to Afghanistan, Iraq or Pakistan, in the course of paid employment involving research pertaining to terrorism or terrorist groups, or commercial transactions with a bank or financial institution in those countries.

The bill would provide that a three-judge court in the District of Columbia would hear such a suit, and would be required to handle the action with dispatch. Appeal from a final judgment would be directly to the Supreme Court, by way of a jurisdictional statement filed within 30 days after judgment.

As David Barron explains here, this bill would at the very least remove the very formidable statutory obstacles to suit that the current FISA may currently impose, and it might well have a significant effect, as well, on any Article III argument that the government would raise against the plaintiffs' standing. (See more from David here on why it's a good idea to tee up the question for the Court.)

If the bill were, by some miracle, to become law, it would lead to a judicial resolution of this landmark dispute -- the only sort of resolution that will affect the Administration's conduct -- and become a very important doctrinal marker affecting the allocation of powers between Congress and the President, alongside Youngstown, U.S. v. Nixon, the Pentagon papers case, Nixon v. Administrator, and Morrison v. Olson. It would also permit the Congress to consider amendments to FISA on a clean slate, with the current statutory and constitutional framework firmly established. (See, e.g., David Kris's proposal that I discuss here.)

More likely, the Schumer bill would be defeated on roughly a party-line vote. Or, it's possible the Schumer bill might pick up sufficient Republican support for passage -- it's very difficult to publicly articulate a compelling reason for opposing such legislation -- in which case presumably the President would veto it. This would, alas, mean that the bill would not become a law; but in that case, the Administration's constitutional hardball would be clearly seen for what it is -- so dedicated to opposing any checks on untrammeled Executive power either by statute or by the independent judiciary that the President is willing to cast his first veto to prevent any evaluation by the other branches of the lawfulness of his conduct. Such exposure would, I hope, be chastening, and a very important signal to the public of the profound constitutional distinctions between the President and his critics.

OK, so a few quick words on the Feingold Resolution: There has been a great deal of discussion and debate in the blogosphere, including by Jack on this blog, with respect to two questions: the merits of the Feingold resolution and the politics of it. Actually, there's not much serious debate about the merits. Thus, as I've discussed in several posts, there's very little question that the President has authorized systematic violations of FISA. And unless I missed something, no one in Congress has so much as suggested otherwise. (If anyone has examples of any legislator agreeing with the Administration's AUMF argument, please let me know.) Therefore, as far as I can tell, everything in the Feingold Resolution is true. The only question even under serious discussion on the Hill -- obliquely raised by Senator Specter and more unequivocally embraced by Senator Roberts and, more recently, by Senator Hatch -- has been whether FISA (or any other law regulating intelligence-gathering and interrogation) is unconstitutional to the extent it constrains the President's discretion on how best to gather intelligence against the enemy. And even on that question, there hardly seems to be majority support in either the Republican Senate caucus or with the public for the Commander-in-Chief prerogative to circumvent statutory limits.

So the real issue, among those debating the Feingold resolution, has reduced to the politics of the matter--i.e., whether pushing for and voting in favor of the Feingold motion would be good or bad for Democratic electoral prospects. See, for example, numerous posts on Unclaimed Territory, and Kevin Drum here. I don't have much of anything to add to what others have said in this respect: It doesn't seem like a political liability to me . . . but what do I know about such things -- particularly the politics in specific states and districts that will be competitive come November?

What no one appears to be writing about, however, is how the Feingold Resolution might affect the institutional interests of Congress and, more generally, the proper checks and balances of the federal government. Of course, it is a sad fact that few politicians in this town (save perhaps for Bobby Byrd) give even a moment's consideration to such factors. But to the extent one thinks such things matter at all, the recent controversies are a fairly big deal: The President is asserting the power to ignore duly enacted statutes whenever they impinge on his judgment about how to best defeat the enemy. Not only that, but he also asserts the right to do so in secret, without meaningful congressional oversight, and without any public knowledge that the laws are being superseded. Indeed, as the Feingold Resolution points out, the Administration has taken great pains over several years to convince the Congress and the public that it is abiding by FISA (just as it publicly insists -- with fingers crossed behind its back -- that it does not condone torture and complies with all international obligations and statutory restricitons on interrogation). And in response to the President's assertions of Executive power, not only is the Republican-controlled Congress not asserting any institutional prerogatives (which might be expected in an era in which partisan considerations greatly outweigh institutional loyalties), but even the Democrats are acting as if this is merely another in a series of policy disputes, rather than a more fundamental, structural challenge to the balance of powers.

Make no mistake, however: The Vice President and others in the Executive branch are very serious about the long-term strategy of Executive aggrandizement -- and, except in the rare cases in which they are rebuffed by the Supreme Court (e.g., Rasul), they are largely succeeding at changing the baseline of the debate--and with very little pushback, at that. And if Cheney, et al. can so thoroughly prevail in this basic separation-of-powers struggle when the President is at a 33% approval rating -- with the Executive ending up significantly more empowered after Congress has responded than it was before its malfeasance came to light -- one shudders to contemplate the executive-imperialist implications if this President ever approaches Clinton-like approval ratings.

OK, but even assuming I'm correct that this is a serious test of the separation of powers, what would that mean for the Feingold Resolution? Frankly, I don't know. Even if all of the Democratic Senators got on board, Senator Feingold must know that a vote on the resolution would fail -- and that would leave things worse than they are now, because it would be perceived by many (including perhaps even some courts) as an implicit congressional rejection of the idea that the NSA program is unlawful (or, at the very least, an implicit congressional signal that the legal question is a difficult one). And, of course, there won't be uniform Democratic support, which would make the results of a vote even more troubling.

Either way, the Resolution would do nothing to stop the NSA program (or bring it into conformity with the law), or to check the Executive power-grab, and would likely only exacerbate the problem. Indeed, even if, by some miracle, the Resolution were to win a majority in the Senate, it still wouldn't accomplish anything, because Cheney and company would respond: "Thanks very much, but we respectfully disagree and will continue business as usual."

Thus, I'm afraid that from the perspective of the future of the balance of constitutional powers, the Feingold Resolution could not improve things any, and might, if defeated, actually set Congress back even further. On the other hand, the Resolution does keep the issue in the public eye, and, frankly, at some point those who are concerned about the President's aggrandizement must do something to assert constitutional principles. In the absence of any other possible congressional options for dealing with the problem, it might well be worth the practical risks.

So, ultimately, I'm fairly agnostic on the tactical wisdom of the Feingold Resolution. But whether or not that Resolution remains viable, I think the efforts of those concerned about the Executive's power-grab -- e.g., Senators Feingold and Specter, among others -- would do well to put their energies to work in support of the Schumer bill. It's not an either/or choice.

Tuesday, March 28, 2006

The Hamdan Oral Argument

JB

I must begin by saying that, in my opinion, Neal Katyal gave an excellent performance. Paul Clement was very polished too, but he soon found himself buffeted about by some very skeptical Justices. The only person who came to his aid was Justice Scalia, who, if one is to believe his ex parte statements, had already prejudged the case before the oral argument even began.

The two most interesting features of the Hamdan oral argument were, first, that despite the Detainee Treatment Act of 2005, the Justices seemed to downplay the idea that they lacked jurisdiction to decide anything. Justice Souter in particular tried to throw cold water on the idea that Congress had suspended the writ of habeas corpus, even though that seems to be precisely what Congress had in mind in passing the Detainee Treatment Act. It sought to deny the extension of statutory habeas to noncitizens held outside the United States. What was quite unclear is whether the Justices were assuming that Eisentrager was no longer good law, or that to eliminate the statutory right of habeas the Court found in Rasul was tantamount to suspending the writ itself.

Second, aside from comments by Justice Scalia, the Justices who spoke seemed to assume that the President did indeed have to comply with Geneva Conventions. The reason, as I understand it, is that if that Congress has authorized military tribunals because such tribunals are consistent with the laws of war, then the Geneva Conventions are part of the laws of war, or, in the alternative, they are strong evidence of what the laws of war require. Hence, by the end of the oral argument it seemed that the Court was likely to hold (contrary to the D.C. Circuit decision) that the Geneva Conventions did matter, and it was irrelevant whether or not they were self-executing.

If the Geneva Conventions apply as part of the laws of war, and the September 18, 2001 Authorization for the Use of Military Force (AUMF) only permits the President to act according to the laws of war, then this places important limits what the President may do, unless the Court holds that the President has inherent authority that goes beyond the September 18, 2001 AUMF. My guess is that a majority of the Court will try to avoid saying anything about the latter question. Instead, the Justices seem to be doing what they did in Hamdi, namely, construing the scope of Congressional authorization as a limit on what the President can do without reaching the question of unilateral executive authority.

Put another way, in Hamdi (and apparently in this case as well) the Court construes an agreement between the President and Congress, and then defers to the agreement it has constructed. Since the Court interprets the AUMF as allowing the President to do what is consistent with the laws of war, that means that the military tribunals must be consistent with the laws of war and the President may only try individuals in such tribunals for violations of the laws of war.

One might well ask why a Republican-appointed Justice like Kennedy (or in Hamdi, Sandra Day O'Connor and William Rehnquist) would sign on so readily to significant limits on Presidential power. The answer is that maximizing presidential power in the War on Terror was not the reason why Reagan and Bush I chose their nominees. As a result these nominees have split on this issue, with only Thomas making the strongest arguments for presidential power in Hamdi (In this case, he may be joined by Scalia, although it is worth remembering that Scalia's opinion in Hamdi was not at all favorable to claims of executive power.). George W. Bush, by contrast, did hope to use his Supreme Court appointments to maximize executive power. Therefore we can expect that Justice Samuel Alito will support the Administration's position, as one suspects, would Chief Justice Roberts. Ironically, Roberts recused himself from this case precisely because shortly before being nominated, he had demonstrated his pro-executive views by joining the strongly pro-executive decision in the D.C. Circuit below.

The moral of the story is that when Justices are appointed by a previous President, they are often appointed for reasons that may have little to do with the constitutional issues that arise later on. This makes what they do in those later cases far less predictable.

Kris Testimony on NSA Surveillance and Possible Amendments to FISA

Marty Lederman

Several weeks ago, I blogged about a superlative statutory analysis of the NSA surveillance program written by David Kris, who had been the Associate Deputy Attorney General in charge of national security issues from 2000 to 2003. Kris is currently testifying before the Senate Judiciary Committee on the same issues. The first portion of his testimony recapitulates his analysis of the legality of the NSA program. Although I don't necessarily agree with all of the details of Kris’s testimony (in particular, certain aspects of his Article II analysis), his statutory analysis is indispensable. Kris concludes that "I do not believe the statutory law will bear the government's weight. It is very hard to read the AUMF as authorizing 'electronic surveillance' in light of the nearly simultaneous enactment of the Patriot Act. It is essentially impossible to read it as repealing FISA's exclusivity provision. And the AUMF suffers further in light of FISA's express wartime provisions. Even with the benefit of constitutional avoidance doctrine, I do not think that Congress can be said to have authorized the NSA surveillance."

Unfortunately, the Department of Justice did not have the benefit of Kris's analysis while he worked in the Department, because Kris was not "read into" the NSA program, despite the fact that he was one of the highest-ranking, most respected Department attorneys on matters relating to FISA and national security.

The second portion of Kris's testimony is perhaps equally important. It consists of a very elaborate proposal on how FISA might be amended to permit the Administration to intercept communications involving Al Qaeda agents in cases where such interceptions might now be foreclosed under the FISA standards, in a manner that could satisfy Fourth Amendment concerns. Kris's proposed substantive standards are not nearly as open-ended as those in Senator Specter's bill, which would permit indiscriminate surveillance of any U.S. person who has ever communicated with an agent of a foreign power (i.e., virtually everyone). Kris's proposal also improves on the Specter proposal in several other respects, and candidly identifies the possible constitutional obstacles that such legislation would raise, including a serious Article III question about whether a court can pre-approve a surveillance "program" writ large, rather than (as under FISA) evaluating interceptions on a case-by-case individualized basis. I don't have time over the next few days to blog further about Kris's draft proposal. I welcome others' comments on it in the interim.

R.I.P. Lena Tobol

Mark Graber

My Aunt Lee was the last New Dealer. I was always fascinated by her stories of my grandfather, who I never knew, and of life in the New York of the New Deal, which I could only read about. One thing was very clear. At some point in the 1930s or early 1940s, the Democrats did something that made Aunt Lee and numerous other Americans of her generation lifelong loyalists. For the next sixty years, my aunt religiously voted for FDR or whatever Democrat happened to occupy FDR's rightful place on the ballot. Democrats were the source of everything good in the world. Republicans, particularly Ronald Reagan (my exotic aunt lived in California), were the source of all evil. The younger members of her family also vote for Democrats, but with much less passion. In truth, the Democrats have done nothing since the Great Society to merit the passion and loyalty my aunt demonstrated throughout her life. When thinking of a progressive revival, we ought to think about what drove my Aunt Lee, a poor child of immigrants, who despite poverty, illness, and social pressures against women, fought for an education, fought to educate her children, and fought for a decent life for her and her community.

Aunt Lee died last week after a long illness. She was an exceptionally kind and decent person, giving everything she had to her family, liberal causes, and the Jewish community. When 90 years old and suffering from very painful arthritis, she would nevertheless spend every Friday evening driving other senior citizens to temple for religious services and much needed companionship. One can only hope that as her divine reward, she will now spend eternity playing her beloved scrabble with the Roosevelts. Eleanor had better bone up on her two letter words!

Saturday, March 25, 2006

Affirmation Action for the Privileged

Mark Graber

Interesting oped in today's New York Times by an admissions officer at Kenyon College, noting that liberal arts colleges are routinely rejecting better qualified women in favor of lesser qualified men in order to maintain some reasonable gender balance on campus. My three daughers are reporting similar experiences. Dramatic differences between men and women in the resume you need to get into a good liberal arts school. Most of us have been aware of this phenomenon for at least half a decade. All that is missing is the conservative outcry about merit. Indeed, the outcry seems particularly necessary because clearly guys do not need compensation for past wrongs. And when will some conservative man complain that he feels inferior knowing he may have been accepted to a liberal arts college only because of his gender.

Thursday, March 23, 2006

The New Constitutional Order and the National Surveillance State

JB

Sandy Levinson and I will be presenting a paper tomorrow at a Fordham Law School conference on The New Constitutional Order? (The question mark is part of the title, suggesting that the conveners are not sure about the answer).

Both Sandy and I offered a theory back in 2001 about how constitutional change occurs through judicial interpretation. It's the theory of "partisan entrenchment," and roughly speaking, it holds that constitutional change stays in rough correspondence to the agenda of the national political coalition because of the appointments process. You can find more about the original version of the theory here.

In our Fordham talk, we address some of the things we learned in the five years since we first offered the theory. The most important event, of course, was 9/11 and the reconstitution of politics around the war on terror. One of the key points we'll be making tomorrow is that many constitutional changes are driven by larger forces that both parties find themselves responding to. Although the Republicans happened to be in power immediately following 9/11, we believe that the long term changes in constitutional understandings and institutions that are now occurring would have happened even if the Democrats were in power, although the details might be different in important respects. For example, whether or not President Gore would have conducted the NSA surveillance program in secret without informing Congress, or would have specifically come to Congress in 2001 for a revision of FISA to allow it, we think that there would be reforms in intelligence gathering process to make new forms of surveillance legal. That is not to say that there are no differences between the Bush Administration and a hypothetical Gore Administration on national security-- we suspect there would be many. But both would have participated in the long term trend in institution building we think is in the offing.

In our paper we describe the rise of what we call a National Surveillance State which occurs in response to the felt needs of warfare and foreign policy in the 21st century. Philip Bobbitt has pointed out that the geopolitical demands of war and foreign policy often provide the impetus for changes in domestic political arrangements, because the way that the state faces the world outside it is often reflected in the way that it faces its citizens. This National Surveillance State involves a significant increase in bureaucracies devoted to promoting domestic security and (as its name implies) gathering of intelligence and surveillance using all of the devices that the digital revolution allows.

Data mining--- through which agencies like the NSA can collect and collate vast amounts of conversations, e-mails and Internet traffic between individuals within the United States and foreign countries,-and, for all we know, substantial amounts of such communications within the United States as well--is the consequence of new developments in high-speed computers plus complex mathematical programs that allow computers to recognize speech patterns, e-mail messages, or Internet traffic patterns that indicate possible terrorist activity. Comprehensive data mining and other new forms of surveillance become especially important given the development of what Bobbitt terms "virtual states," geographically amorphous collectivities that, because of access to weapons of mass destruction, can present basically formidable if not undeterrable threats to the United States. Virtual states, because they lack geographical locations, must be nipped in the bud as soon as their activities and plans can be identified. This necessitates constant surveillance and processing of vast amounts of information because of the perceived costs of making even a single mistake in failing to identify a threat.

We do not doubt that similar concerns have led the Bush Administration to cut corners on international and domestic law concerning detention and interrogation of prisoners. However, we argue that the development of increasingly elaborate systems of surveillance is far more characteristic of the kinds of government policy necessitated by technological change. Torture and prisoner mistreatment have been around as literally as long as warfare itself-what is new is the harnessing of digital technologies to produce a Leviathan-like information processing machine. A second key change, we think, is the increasing merger between law enforcement and military security in the domestic arena, precisely because the domestic arena increasingly becomes part of the modern battlefield.

From a constitutional perspective, the National Surveillance State involves a further shift of institutional power and authority from Congress to the Presidency. There is no serious possibility, we think, of completely forestalling this shift, which, after all, can be said to have been underway at least since the end of World War II. Rather, the only questions are how much further executive aggrandizement will occur and whether new institutions can be adapted to prevent the inevitable risks that will accompany this shift.

The first is the risk of harm to individual privacy and civil liberties. The second is the inevitable dangers of concentrating too much power in one branch of government without accountability and transparency. The third risk, which stems from the second, is the danger of informational insularity, in which the executive is unable or unwilling to acknowledge and assimilate new information that requires it to reshape and redirect its plans. Irving Janis some years ago coined the term "group think" to refer to institutional tendencies toward such insularity, and recent work in behavioral psychology has reinforced such concerns. One advantage of a system of separated powers, especially if one of the competing institutions includes strong individuals from the opposition political party, is that the other branches, because of their natural competition, consistently force new information and impose hard learned lessons on the others. From this perspective a constitutional system is also a system of information gathering and a system of learning. But if one branch-the Presidency-- need pay no attention to the others, or can thoroughly dominate them through appeals to party loyalty, as has definitely been the case during the Bush Administration, then it will not be forced to confront the recalcitrant information about the world the others have the incentive and the opportunity to provide.

The National Surveillance State arises from a real concern: the enhanced need for processing information about the outside world and reacting appropriately to it given the changes in foreign affairs and warfare. The danger is that the concentration of power in this new state will prove particularly inept at processing the relevant information. The intelligence failures in the run-up to the Iraq war are an obvious and worrisome example.

The need for the National Surveillance State arises from war and foreign policy, but its consequences will reverberate throughout domestic politics. Courts will play a role in determining the boundaries of this emerging constitutional construction, but for the most part, we predict, they will legitimate and bless it, much as they legitimated and blessed the administrative state, the welfare state, and the national security state in previous years.

There is no particular reason to view the constitutional debate over the National Surveillance State as strongly partisan. For better and for worse, there may be no meaningful division between the Democratic and Republican parties with regard to the larger imperatives for and the broad outlines of the National Surveillance State, and indeed, the constitutional problems that these institutions present may cross cut existing party alliances. The difference between the two major parties will consist we think, in how new forms of governance are implemented, what kinds of accountability and transparency mechanisms are built into the new institutional framework, and how the balance between efficacy and civil liberties is struck. Even if some form of the National Surveillance State is in our future, a great deal turns on the details of what kind of state it becomes. And that is why it will matter a great deal who holds office and who is appointed to the federal courts in the next decade.


Monday, March 20, 2006

Interesting Thoughts on Judicial Tenure

Mark Graber

Those interested in the recent debates over a life tenure judiciary should take into consideration a finding by Justin Crowe anad Christopher Karpowitz, two graduate students in the Princeton Department of Politics. In a paper presented at the Western Political Science Association they assert with some evidence that the reason for the dramatic increase in the length of judicial tenure is at least as much the result of the decline of the short term judge, the judge who, like Goldberg, serves less than 8 years, than an increase in justices staying on longer than 20 years (though they recognize this has also increased). An interesting observation. In particular, the evidence seems to be that increased length of tenure is the result of better medicine (justices live longer because everyone is living longer and they no longer ride circuit) and more job satisfaction (maybe the office is more powerful, maybe the practice of appointing only federal circuit justices results in people who, unlike Hughes and Byrnes, have no other ambitions). Brief thoughts to consider when debating life tenure.

Sunday, March 19, 2006

Bush Administration Claims Authority For Warrantless Physical Searches

JB

This article in U.S. News and World Report states that the Bush Administration has taken the position that the President may authorize warrantless searches of the physical premises of persons suspected of having connections to terrorism or terrorist groups.

Warrantless physical searches are "black bag jobs" in which a government operative breaks into a place without a warrant hoping to find incriminating (or otherwise useful) evidence. The best arguments for warrantless electronic surveillance do not apply to surreptitious breaking and entering. In particular, one cannot argue that going around the warrant requirement is justified by the need to amass vast amounts of electronic data in a data mining operation. Rather, the Administration simply doesn't want to have to tell anyone, much less a court of law, what it's doing, even if that involves breaking, entering and pilfering from the homes and offices of American citizens. What distinguishes law enforcement investigation from burglary and theft are procedures that hold executive officials accountable and require them to explain why their actions are necessary. Increasingly, the Administration wants to do without those essential checks on the power of the state.

And there's a second disquieting revelation: Defenders of the President's NSA program have argued that warrantless electronic surveillance should be justified despite FISA because it is used for military purposes; going around FISA does not mean that the search is illegal, but merely that the material obtained will not be admissible in subsequent criminal prosecutions. However, the same U.S. News and World Report article reports that Bush Administration officials sought to use evidence from electronic warrantless searches in criminal prosecutions without identifying the means by which it was obtained, hoping to put one over on judges.

White House lawyers, in particular, Vice President Cheney's counsel David Addington (who is now Cheney's chief of staff), pressed Mueller to use information from the NSA program in court cases, without disclosing the origin of the information, and told Mueller to be prepared to drop prosecutions if judges demanded to know the sourcing, according to several government officials. Mueller, backed by Comey, resisted the administration's efforts. "The White House was putting pressure on Mueller to broadly make cases with the intelligence," says one official. "But he did not want to use it as a basis for any affidavit in any court." Comey declined numerous requests for comment. Sources say Mueller and his general counsel, Valerie Caproni, continue to remain troubled by the domestic spying program. Martin, who has handled more intelligence-oriented criminal cases than anyone else at the Justice Department, puts the issue in stark terms: "The failure to allow it [information obtained from warrantless surveillance] to be used in court is a concession that it is an illegal surveillance."

At some point, one has to stop giving the White House the benefit of the doubt about its desire to stay within the law. It's increasingly clear that we no longer have simply a good faith disagreement about the scope of Presidential power, one in which the President's lawyers somehow wind up making one implausible legal argument after another. Rather, it's a fairly deliberate strategy of concentrating power in the Executive regardless of its legality or constitutionality. In this Administration, the Bill of Rights and the rule of law are strictly optional.


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.

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