Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Schumer NSA Bill and the Feingold Censure Resolution The Hamdan Oral Argument Kris Testimony on NSA Surveillance and Possible Amendments to FISA R.I.P. Lena Tobol Affirmation Action for the Privileged The New Constitutional Order and the National Surveillance State Interesting Thoughts on Judicial Tenure Bush Administration Claims Authority For Warrantless Physical Searches So Brutal, Even the CIA Flinches Conservatives Still Don't Get It: Their Mea Culpa on Iraq The Reward for Lawbreaking Act of 2006 Strange Days Does the Army Field Manual Authorize "Creative" Humiliation of Detainees? All's FAIR in Law and War Soliciting Nominations for the Cox-Richardson-Ruckleshaus Award Iran-Contra and our Present Constitutional Discontents U.S. Loses Critical Battle in GWOT George W. Bush: not exactly the right spokesman against isolationism
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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. 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." 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. 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. 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. 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. 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.) 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. 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 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: 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. 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. 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. 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. 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. Monday, March 13, 2006
George W. Bush: not exactly the right spokesman against isolationism
JB
President Bush is correctly warning Americans against a growing tendency toward isolationism. The problem is that in the past five years he has done everything he could to stoke the same irrational fears that he now condemns. Together with Karl Rove, he cynically used 9-11 to scare Americans about threats from abroad. He disdained international law and international bodies. He generated disdain for traditional European allies ("Old Europe") even as he sought to form his own pick up team of dependent nations to fight the war against Iraq. He succeeded in getting most of the world to despise Americans, a hatred that only grew following the invasion of Iraq and reports of prisoner mistreatment at Abu Grahib and Guantanamo Bay. After all, the best way to stoke isolationism is to get Americans to hate and fear other countries, and other countries to hate and fear the United States. The latter hated merely increases the former in a vicious circle: Nobody wants to get involved with people who hate them. After alienating former allies, and, indeed, most of the rest of the world, Bush then pushed the country into what in hindsight appears to have been a thoroughly unnecessary war against Iraq based on hyped intelligence reports. He then trumpeted American power in his "Mission Accomplished" pageant only to be hit with an insurgency that he didn't expect, leading to a long and drawn-out war that has cost thousands of American lives and billions of dollars wasted with no end in sight. His colossal incompetence in planning the Iraqi occupation only exacerbated the suspicion that American interventions in other people's affairs aren't worth it. He then ran for reelection in 2004 based on a platform of fear-- the idea that the world outside America's borders was dangerous and only he could protect us. Again, this is not a good prescription for making Americans feel warmly toward the rest of the world or, more importantly, seek to engage with it. And after he was reelected, the attacks in Iraq continued, bringing that country dangerously close to all out civil war. Note to the President: if you want Americans to embrace internationalism, don't make promises you can't keep and above all, don't lose wars that you started. Bush's ill considered doctrine of military preemption, his repeated fearmongering, his cynical use of 9-11, his deliberate generation of Americans' resentment toward traditional allies, his incompetent handling of the Iraqi war, his hubris following initial successes, his failure to recognize and address the problems of occupation in time, and (most recently) his cluelessness on how Americans would react to the Dubai port proposal make his current admonitions against isolationism necessary but also laughable, given the source. No one is more responsible for the current American hostility toward the rest of the world (and the rest of the world's hostility toward America) than George W. Bush. The best thing he could do now to prevent isolationism is to admit his mistakes, resign from the Presidency, and take Mr. Cheney with him.
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