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 Who's Afraid of Ceballos? Regime Politics and Non-Majoritarian Problems Ceballos-- The Court Creates Bad Information Policy Do Public Employees Have Any First Amendment Rights to Complain About Wrongdoing? So, What About the Merits?: Was the Search of Rep. Jefferson's Chambers Lawful? Why Did Bush Seal the Documents from the Jefferson Raid? Give Credit Where It's Due A corrupt Congress is shocked to discover a lawless Executive The Unfortunate Transparency of Law: Why They (Allegedly) Could Not Simply Amend FISA Price Gouging is Not a Disparate Impact Defense Michael Hayden and Article II The Twin Dangers of the National Surveillance State Pretty Boy Democracy FBI: We're Using National Security Letters to "Backtrack" Reporters' Calls A Lot of Reporters Must Be Calling Al Qaeda Redeeming Lottery Tickets West Wing and the Constitution (finale) The whiff of fascism in the air Where There's Smoke . . . There's Cheney and Addington Paying the price for defending Clinton Tice: Even More Illegal NSA Spying Malfeasance and misfeasance Bush is just another word for nothing left to lose
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Wednesday, May 31, 2006
Who's Afraid of Ceballos?
Anonymous
Most of the commentary on the Ceballos decision has been negative, including posts by Jack and Marty here. I confess I'm not that troubled by the decision. I think that it takes essentially the right view of the problem of public employee speech. At the least, to damn with faint praise, it's not the worst thing about the Court's employee speech jurisprudence. Regime Politics and Non-Majoritarian Problems
Mark Graber
Howard Gillman, the founder of historical institutionalism in public law, is writing some very interesting stuff on the Empirical Legal Studies Blog. Today, he focuses on "regime politics," the view, espoused by many political scientists, that judicial review in practice more often serves than thwarts the will of elected officials in the dominant national coalition. My work is often cited as being in this tradition. But I am not sure. Below is a version of my comment on Professor Gillman's post. Tuesday, May 30, 2006
Ceballos-- The Court Creates Bad Information Policy
JB
Marty has explained the details of the Ceballos opinion below and I won't repeat what he has to say here. Instead let me offer a few remarks on the larger meaning of the case. The Court's employee speech cases rest on an unstable tension. On the one hand, government cannot punish people for expressing their views on matters of public opinion as contributions to public discussion. Nor can it punish people for criticizing the government and its internal operations. On the other hand, government employers have interests in workplace harmony and managerial efficiency. Statements by employees can interfere with both. What to do then, when government employees criticize government operations or make statements that annoy or embarrass their employer? The Court has resolved this tension by dividing cases into two categories. Where the employee is not speaking on a matter of public concern, there is no first amendment protection. Where the employee speaks on a matter of public concern-- i.e., something that is a contribution to public discussion-- the Court balances the employee's rights against the damage to the employer's legitimate interests in managerial efficiency and workplace harmony. Balancing tests are messy, ad hoc, and difficult to apply fairly. Ceballos tries to avoid the balancing test by carving out a new bright line rule. If the statement is made as part of the employee's duties, or in the employee's capacity qua employee, there is no first amendment protection at all. It is as if the statement were not a matter of public concern or a contribution to public discussion. The result is that employees get some first amendment protection only if their speech is outside of their duties and responsibilities as employees. What this means is that the paradigm case of protection becomes a case like Rankin v. McPherson, in which a local sheriff's dispatcher said, upon hearing that President Ronald Reagan had been shot, but would survive, "if they go for him again, I hope they get him." Note that the dispatcher had no special expertise about Reagan; rather, she was just blowing off steam and expressing her hatred of the President. She would receive some degree of First Amendment protection if the work of the local sheriff's department was not too greatly undermined by the fact that one of its dispatchers expressed support for what was, in fact, a very serious crime. As Justice Scalia said, the issue was whether she could "ride with the cops and cheer for the robbers." The Court concluded, 5-4 that the disruption was not sufficiently serious. In the original decision in this line of cases, Pickering, the Court suggested that one reason for protecting employee speech is that employees, by their position and expertise, might have information and perspectives that would be particularly valuable contributions to the public in deliberation about public issues. Not all employees would, of course, but enough would that protecting employee speech would leverage their knowledge and expertise. (At the same time, the Court was worried that employees would use their assumed expertise to make false statements of fact that would be difficult for employers to rebut). Thus, we can see Pickering as a case about *information policy*; i.e., a set of decisions about how government should promote the creation and dissemination of valuable information throughout society. The Pickering test, as originally conceived, sought to promote the spread and diffusion of valuable information from people who would have reason to know about government policies and whether they made sense or were inefficient, unwise, corrupt, or illegal. The problem with this vision was that it ran headlong into the government's interest in preserving workplace harmony and managerial efficiency. No employer likes an employee who makes him or her look bad, and this almost always causes strife within the workplace, since the employee who complains is almost always suggesting that someone else did a bad job, was corrupt, or in Ceballos's case, acted illegally. Instead, the Court has retreated to a vision of employee speech cases where employees are protected only where they are least likely to be in a position to know what they are talking about, as in the case of Rankin v. McPherson. After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect. Note that if employees have obligations to settle disputes and make complaints within internal grievance procedures, then they are doing something that is within their job description when they make complaints and so they have no First Amendment protections in what they say. Hence employees will have incentives not to use such procedures but to speak only in public if they want First Amendment protections (note that if they speak both privately and publicly, they can be fired for their private speech). However, if they speak only publicly, they essentially forfeit their ability to stay in their jobs, first because they become pariahs, and second, because they have refused to use the employer's internal mechanisms for complaint (mechanisms which, if they used them, would eliminate their First Amendment rights). In short, whatever they do, they are pretty much screwed. So the effect of the Court's decision is to create very strong incentives against whistleblowing of any kind. (Another possible result of the case is that employees will have incentives to speak anonymously or leak information to reporters and hope that the reporters don't have to reveal their sources). I am sympathetic to the Court's desire to reduce the burden of ad hoc balancing by creating a bright line rule of no protection. But in this case, the Court's decision doesn't really create a bright line rule, because the boundaries of what is within an employee's job description may turn out to be quite contestable, and will be contested in future cases. Perhaps more important, the Court resolves the original tension in its doctrine by creating a rule that completely undermines the doctrine's information policy goals. All the doctrine does now is protect people like the dispatcher in Rankin v. McPherson, who is contributing nothing to information about the government's operations, but is just blowing off steam. Perhaps the dispatcher does deserve First Amendment protection, but the doctrine shouldn't be organized around her. Do Public Employees Have Any First Amendment Rights to Complain About Wrongdoing?
Marty Lederman
Cross-posted from SCOTUSblog. Saturday, May 27, 2006
So, What About the Merits?: Was the Search of Rep. Jefferson's Chambers Lawful?
Marty Lederman
I don't intend to answer the question here, only to provide some pointers for folks more interested in the nitty-gritty: Why Did Bush Seal the Documents from the Jefferson Raid?
JB
Ostensibly Bush was worried that three of his advisors, including Attorney General Gonzales, would resign. But this is a White House known for its stringent demands of (and enforcement of) loyalty. The President might also have been worried that the House would demand that Gonzales resign, but calls for Bush cabinet officials to resign have hardly deterred this White House before (think Donald Rumsfeld). A third, far more interesting reason-- also alluded to in Marty's previous post-- appears at the very end of this Washington Post story about the raid on Congressman Jefferson's office: Give Credit Where It's Due
Marty Lederman
Turns out it was none other than David Addington who was the official within the Executive branch questioning the legality of the search of Congressman Jefferson's office: Thursday, May 25, 2006
A corrupt Congress is shocked to discover a lawless Executive
JB
I've noticed several attempts in the news to connect the FBI's raid on Congressman Jefferson's office with the Bush Administration's heavy handed assertion of executive authority. I think this is a distraction. There is no constitutional or legal bar to the search that I am aware of. The Speech and Debate Clause does not prohibit it. Although as a matter of tradition and comity, the Executive should avoid invading the offices of Congressmen and Senators whenever possible, in this case the warrant authorizing the search came only after Congressman Jefferson refused to obey a subpoena for documents. The Speech and Debate clause, and indeed, the principles of respect and comity between the branches should not be employed to insulate government officials from liability for acts of illegality and corruption. And that is the real issue: Illegality and corruption, both by members of the Executive branch *and* by members of Congress. The Bush Administration has, over the past six years, detained American citizens without any of the protections of the Bill of Rights, engaged in cruel, inhuman and degrading treatment of detainees, imposed new forms of secrecy to insulate itself from oversight both by the Press and by Congress, used the state secrets privilege to shut down any investigation into its mistreatment of detainees, hid and prevaricated about the evidence justifying, the reasons for, and the cost of Iraqi war, and begun a massive spying program on American citizens. Throughout all of these events, the United States Congress has been essentially supine, unable or unwilling to lift a finger to oppose an executive branch that was simultaneously incompetent, arrogant and out of control. And now, when the FBI catches redhanded a Congressman engaged in the most egregious act of corruption, *now* members of Congress are upset that the Executive is asserting too much authority. They have their nerve. Quite frankly, I find the bipartisan closing of ranks over this issue disgusting. If Congressmen are interested in Executive overreaching, they should start demanding that the President justify his NSA program; instead they doing everything they can to paper over its illegalities. They should hold hearings on how the Executive misused and manipulated intelligence reports, hearings that have repeatedly been promised and have repeatedly been postponed. They should hold hearings on the Administrations's policies of no-bid contracts in Iraq and elsewhere, and the many reports of corruption, incompetence, and war profiteering by these very same contractors who didn't have to engage in competition or oversight. They should investigate the President's decisions about torture, about rendition, about detention policies, about, well, you name it-- all the incompetent and corrupt activities of this most incompetent and corrupt Administration. Instead of being upset about the President spying on Americans without a warrant, and in violation of federal law, the members of the U.S. Congress are upset about the FBI searching a Congressman's office with a legal warrant. Instead of being upset about the cruel, inhuman and degrading tactics of the CIA and military interrogators, members of the U.S. Congress are upset that a corrupt Congressman's office has been disturbed. Instead of being upset about abuses of government contracting and incompetence that have cost the tax payers countless sums of money and sapped resources from our troops overseas, members of Congress are busy protecting corruption in the halls of Congress itself. Make no mistake: the real reason why Congress is so concerned about the raid on Jefferson's office is that many of them know that corruption within Congress is rampant. If the FBI and the Justice Department can start getting serious about investigating corruption in Congress, many of their colleagues (and possibly they themselves) could be next. Is it any accident, do you think, that instead of trumpeting corruption by a Democratic Congressman, Speaker Hastert-- who himself is rumored to be under investigation in the Abramoff affair-- is objecting loudly to the search of Jefferson's office? The American Constitution is premised on the idea that any Executive overreaching that might take us on the path to tyranny and dictatorship would be met with Congressional objection and Congressional oversight. For six years we have been subjected to an arrogant, self-righteous, and incompetent Administration, which has grabbed for power and avoided accountability in every way it could, chipping away at Americans' proud traditions of freedom, harming our country's interests around the world and undermining the deliberative processes that produce sound policy and good governance. It is an Administration blinded by smug self-righteousness, devoted not to the development of competent and sound policies for the governance of our country, but to the concentration and perpetuation of its own power. But at the moment that we need the Congress most, it is feckless, corrupt, and venal, offering no resistance to mounting evidence of this Administration's illegality and incompetence. If Congress now finds that Executive power is encroaching a bit too close for comfort, it is poetic justice, for this Congress has thoroughly abdicated its constitutional responsibilities to protect the American people from Executive overreaching. Monday, May 22, 2006
The Unfortunate Transparency of Law: Why They (Allegedly) Could Not Simply Amend FISA
Marty Lederman
So, why aren't the Senate Democrats making more of a fuss about the fact that the Attorney General and Michael Hayden determined to ignore FISA on the theory that the President has the constitutional power to violate such statutes? If Hayden's testimony is any indication, there appear to be two reasons: Price Gouging is Not a Disparate Impact Defense
Ian Ayres
In certain markets, disparate impact law prohibits policies that disproportionately burden protected groups -- unless those policies have a sufficient business justification. Friday, May 19, 2006
Michael Hayden and Article II
Marty Lederman
According to General Michael Hayden's testimony yesterday, in the days following September 11th, Hayden was of the view that FISA outlawed the sort of surveillance program that the NSA eventually implemented. UPDATE from the transcript: Wednesday, May 17, 2006
The Twin Dangers of the National Surveillance State
JB
Previously I noted that because of the changing nature of warfare and the digital revolution, the United States is rapidly moving toward a National Surveillance State. Whichever party is in power will work toward the creation of such a state, the only difference is how they will negotiate the risks to civil liberties and the concentration of power in the Executive. The National Surveillance State poses two distinct dangers. The first is that the executive's power to conduct war will displace the area previously assumed to fall within the criminal justice system. Hence the Executive increasingly has the choice to treat dangers within the United States as matters of war and national security rather than as matters of crime and criminal justice. The latter, but not the former, come with a series of traditional civil liberties protections that constrain and check the Executive. If the government can create a parallel law enforcement structure that routes around the traditional criminal justice system, and which is not subject to the oversight and restrictions of the criminal justice system, it may be increasingly tempted to make use of that parallel system for more and more things. It may argue that the criminal justice system is insufficiently flexible and outmoded for the types of problems it faces. However, the more that it routes around the criminal justice system, the more it institutionalizes the parallel system as the method of choice for the government to pursue. For example, by going outside of FISA and telecommunications privacy laws, the government ensures that the information gleaned from monitoring phone calls and data mining phone records cannot be used to justify traditional judge-issued warrants, and the evidence produced cannot be introduced in ordinary criminal trials. Similarly, evidence derived from coercive interrogations or interrogations involving cruel, inhuman and degrading treatment cannot be introduced in criminal trials. This means that if the government attempts to use the criminal justice system after having used the parallel system it is put at a significant disadvantage in its ability to prove its case. Faced with this disadvantage, it may choose increasingly to expand and defend the parallel system of intelligence, interdiction, incarceration, interrogation, and punishment. The Padilla case is an interesting example. My suspicion is that the government tried as long as it could to keep Padilla out of the criminal justice system in part because much of the evidence it had against Padilla was probably illegally obtained from the perspective of the criminal justice system; for example, it may have been elicited through coercive interrogation of or cruel, inhuman and degrading treatment of persons held by the CIA or other intelligence operations. A second example is the recent revelations of NSA interception of domestic to overseas telephone calls. One of the justifications offered for the legality of the program is that going outside FISA (and other laws) is not by itself illegal, but merely means that the information elicited cannot be used in criminal trials, but can be used in the government's military operations. That justification shows how parallel tracks are produced and reinforced over time. The more that the government depends on NSA-style domestic surveillance, the more it will want to expand the parallel track of enforcement to make use of the information it derives. As the laws of war encroach on the criminal law, and the needs of national security encroach on domestic criminal law enforcement, the government will be increasingly tempted to take the path of least resistance-- and least accountability-- and choose to treat individuals within the United States as subject to intelligence, interdiction, incarceration, interrogation, and punishment under the aegis of national security rather than criminal procedure. The second danger of the National Surveillance State is not that the criminal justice system will increasingly be displaced by a parallel track of military and national security enforcement, but that the criminal justice system will become increasingly like the parallel track, that is, that it will lose the civil liberties protections, checks and balances, and oversight by independent actors (e.g., judges) that we normally associate with the criminal process in the United States. Take the FISA example once again. Right now the government may be arguing that going outside FISA means that evidence can't be introduced at criminal trials. If so, then why not simply ask Congress to amend FISA so that the NSA's searches are legal and the evidence can be admitted in criminal trials? (This has, in fact, been suggested as a solution to the problem of illegality). After all, the Supreme Court has given Congress a fairly wide berth to determine how to draw the boundaries of foreign intelligence. A second example is the increasing use of preventive detention, indefinite detention of material witnesses, administrative warrants and National Security Letters. These strategies modify the previous understandings of the criminal justice system and allow the executive to detain and engage in surveillance without the usual civil liberties limitations, checks, and oversight. A third example drives from the NSA's data mining program. Although the NSA is currently using its datamining operations to locate threats to national security, there is no reason in theory why the same technologies can't be harnessed to aid domestic criminal law enforcement. Once the databases of all phone calls made in the United States are compiled, and combined with consumer data derived from private organizations like ChoicePoint (to take only one well known example), one can produce rich digital dossiers (to use Dan Solove's term) that could be used either by the nation's national security agencies or its criminal law enforcement arm. The information that is useful to one will increasingly be useful to the other. Knowing this, the government will use it for more and more features of everyday law enforcement. As William Arkin wrote recently in his Washington Post column, "tomorrow, there could be an illegal immigrant tax and pay record monitoring tip-off system, a sexual predator and pornography attention algorithm, a drug dealing and buying behavior inconsistency profile." That is to say, if the information gleaned from the government's national security wing is transferred over to its law enforcement wing (and shared with state and local law enforcement authorities) criminal law enforcement will be transformed into increasing surveillance of ordinary Americans to prevent not only the most serious threats to national security, but also everyday crimes, including even misdemeanors and administrative infractions. The government will be tempted to move increasingly from investigation and arrest after crimes occur to surveillance, prevention and interception before crimes occur. After all, if we can keep our citizens safe from Al Qaeda using the most advanced information technologies, which become increasingly inexpensive to use and implement, why not use the same technologies to protect our citizens from crimes, whether major or minor. And if we use the surveillance state to prevent threats to national security from coming to fruition, why not use the same technologies to head off criminals, both dangerous and petty, before they have a chance to act? The twin dangers of national security displacing the criminal justice system and the criminal justice becoming increasingly like the national security system are consequences of technological change. Although the National Surveillance State arises from the changing nature of war, changes in technology do not stop with the problem of war, as least as traditionally conceived. Rather, the very same changes in technology threaten to transform the ways that democratic governments interact with their citizenry. That is why the debate over the NSA program is so incredibly important. We need to have a national debate on how we will implement a system of information gathering and processing that is quickly becoming the norm and not the exception. If we do not have this debate, the system will be implemented so as to displace the civil liberties and rights of citizenship we hold dear. Pretty Boy Democracy
Mark Graber
A good deal of my recent work focuses on non-legal aspects of constitutionalism. For example, constitutional law requires that the president be 35 years or older, a citizen of the United States, and get a majority of the electoral vote, etc. Any person who meets those standards is legally qualified to be president of the United States. But the constitutional qualifications were also designed to privilege a certain kind of person. Thus, we might ask constitutional theory questions about a) whether George Bush or Bill Clinton was the sort of person whose election the constitutional system was designed to privilege and b) what sort of persons does the constitutional system for elections presently privilege. Here is some brief thoughts. Tuesday, May 16, 2006
FBI: We're Using National Security Letters to "Backtrack" Reporters' Calls
JB
From ABC News: "It used to be very hard and complicated to do this, but it no longer is in the Bush administration," said a senior federal official. . . . The official said our [ABC's] blotter item was wrong to suggest that ABC News phone calls were being "tracked." "Think of it more as backtracking," said a senior federal official. But FBI officials did not deny that phone records of ABC News, the New York Times and the Washington Post had been sought as part of a investigation of leaks at the CIA. . . . Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL). The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government. For those of you who might be interested, here's what a National Security Letter looks like. (And here's an interesting Washington Post story from last November on how the FBI has used National Security Letters for more and more purposes). Note the requirement of secrecy to ensure than the parties investigated (in this case the members of the press) have no idea that their records have been looked at by the FBI. This requirement of secrecy makes some sense if the person investigated is a terrorist suspect; it makes much less sense if the person being investigated is a reporter or a member of the public whom the FBI does not actually believe is associated with terrorism or espionage. This last point is particularly relevant because the government's ability to issue national security letters was greatly enhanced by the Patriot Act, as discussed here. Most important for present purposes, the Patriot Act changed the old rule that the FBI could use National Security letters only to gain records concerning suspected terrorists or persons suspected of engaging in espionage. The Patriot Act allowed the FBI to issue National Security Letters-- which require virtually no independent supervision-- as long as the FBI officer believes that the information could be relevant to an investigation related to terrorism or espionage. Since there is almost no oversight over National Security Letters, and since the FBI works quite hard to avoid disclosing what it has done using National Security Letters and why it has done it, the practice is easily subject to abuse and overreaching, relying largely on the good faith of lower level agents and their professional capacity to restrain themselves. Indeed, the National Security Letter offers so few restraints on executive overreaching that it is not significantly different from simply dispensing with a warrant requirement altogether. Once again, compare the FBI's own admissions with President Bush's previous statement. While the President assured us that the NSA was only looking into people with contacts to Al Qaeda and other terrorist organizations, he said nothing about the FBI, and the FBI admits that its use of phone call records is not limited to those suspects, but is aimed at members of the press. Monday, May 15, 2006
A Lot of Reporters Must Be Calling Al Qaeda
JB
ABC News reports that "the government is tracking the phone numbers [reporters] call in an effort to root out confidential sources." Apparently the Bush Administration is upset at leaks revealing that it has been spying on Americans and wants to put a stop to the revelations. The President explained a few days ago that the NSA was data mining phone numbers of domestic calls solely in order to determine who was making contact with terrorist organizations. Should one be surprised that the Administration has been less than honest about this point, and that its surveillance activities are aimed at members of the press? The question answers itself. Redeeming Lottery Tickets
Ian Ayres
In this Forbes column, Barry Nalebuff and I suggest creating a new lotto ticket that lets people have the excitement of a traditional lottery while they are investing for their retirement. Sunday, May 14, 2006
West Wing and the Constitution (finale)
Sandy Levinson
Tonight was the final episode of West Wing. I, for one, found it immensely moving in its emphasis on the peaceful transfer of power and the almost magisterial abruptness with which it's out with the old (Jed Bartlett) and in with the new (Matt Santos), symbolized by the movers coming in at 11:45 or so and stripping the Oval Office of Bartlett's personal affects and changing the presidential pictures. Indeed, given my previous posting about the whiff of fascism in the air, which I certainly don't recant, I think it is important to note that not even the biggest critics of Bush & Co. (of which I'd like to think I'm one) believe that he (or they) will move to cancel the 2008 elections and declare themselves in office for life. Nor, even more obviously--so obvious that it goes almost literally without saying--do we fear a military coup, for all of the talk of the (justified) revolt of the (former) generals against the egregious Donald Rumsfeld. It is not contradictory, I believe, to argue at one and the same time that Bush's conception of his prerogatives of office is dictatorial (or, if one prefers, "authoritarian" or "monarchical," which is Bruce Fein's term) AND that he gives no hint of rejecting the most basic norm of American constitutionalism, which is the opportunity to vote the rascals out in an election. I have no particular illusions about the circumstances of the last two elections, but the remedy, at least in part, is Joe Hill's (I think) "Don't Mourn; Organize." Saturday, May 13, 2006
The whiff of fascism in the air
Sandy Levinson
In tomorrow's New York Times, David Brooks's column is titled (presumably not by him) "From Freedom to Authority." The general thesis is that "we're moving from what you might call loose conservatism to tight conservatism. We're seeing a conservatism that emphasizes freedom give way to a conservatism that emphasizes authority." The most remarkable sentences are the following: Where There's Smoke . . . There's Cheney and Addington
Marty Lederman
It was only a matter of time, right? This can't come as a surprise to anyone by now: The New York Times reports that the idea of engaging in electronic surveillance in violation of FISA was hatched by the Vice President's Office, on the theory that the President has the constitutional authority to run roughshod on piddling technicalities such as laws enacted in conformity with our constitutional design. Paying the price for defending Clinton
Sandy Levinson
In my last post, I bewailed the fact that we have no workable constitutional mechanism--and, just as much to the point, acceptable and widely shared political rhetoric--for getting rid of an incompetent, rather than a criminal, president. Let me suggest that liberals are now seeing certain chickens coming home to roost because of their highly legalistic defense of Bill Clinton in 1998. Thus many prominent legal academics (I think particularly of Cass Sunstein, but there are certainly others) insisted that Clinton could be impeached only for a high crime and misdemeanor, and neither disgracing his office nor perjury seemed to count. And Sean Wilentz, in testifying before Congress, described the Andrew Johnson impeachment as merely "political." Not only might one proper response be "so what" (though I admit that the language of the Constitution presents certain problems), but it is also the case that Wilentz, in his zeal to save Clinton, utterly ignored the fact, as spelled out by Bruce Ackerman in his pathbreaking work on the constitutional "transformation" during the aftermath of the Civil War, that the impeachment was central to getting the Fourteenth Amendment, among other things. In any event, isn't it clear, in retrospect, that the country would have been far better off had Clinton resigned (and given Gore the advantage of presidential incumbency)? Instead, liberals, like Monica Lewinsky herself, played into Clinton's narcissism--and the rhetorical pull of the fixed-term presidency, which gives presidents an almost feudal-like sense of a property entitlement to the White House. Far better that we adopt a Ross Perot notion of the president as simply our employee, to be bounced whenever he (or in the future she) manifests sufficient incompetence to warrant firing. But that would require a Constitution that gave the employers (We the People) the right to fire their agent (the President) for just cause even if the agent hadn't actually robbed the till. (Shouldn't it be enough if he consistently misplaces the goods and alienates the customers?)
Tice: Even More Illegal NSA Spying
JB
According to former NSA employee Russell Tice, there's more illegal domestic surveillance that the NSA is engaged in, and President Bush's new nominee for the CIA, General Michael Hayden, knew about it. This from a report by Chris Strohm from CongressDaily (National Journal): Friday, May 12, 2006
Malfeasance and misfeasance
Sandy Levinson
I have mentioned in an earlier posting a forthcoming book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), that the Oxford University Press will be publishing in October. Reading Jack Balkin's most recent post--on how George Bush is, in some strange sense, "liberated" by the polls and his lame-duckness to do whatever he wants, however reckless, I want to bring to readers' attention one section of the chapter in the book on Article II and the presidency, titled "On "Malfeasance" and "Misfeasance"; Why Criminal Presidents Present Less of a Threat than "Merely" Incompetnet Ones." In that section, I argue that one of the worst legacies of the framers is a rigid, fixed-term presidency that can be escaped only if a president is indeed sufficiently criminal to meet whatever the "high crimes and misdemeanors" clause of the Impeachment Clause means. Although I am well aware that many people on the left believe that Bush has manifested his criminality by aspects of the war in Iraq, the NSA surveillance, and the like, it is, I believe, a sign of our constitutional pathology that we feel we must label him a criminal, about which there is reasonable debate, rather than a blithering incompetent, which seems more widely accepted across the political spectrum. (And, incidentally, one obvious problem with impeachment, under the current system, is that it would give us Dick Cheney as president, which would be even worse on almost any criteria. So then one must fantasize impeaching Cheney as well, which gives us Dennis Hastert, who no sane person would believe is competent to be president in today's complex world. Next in line is Ted Stevens (ditto).) Bush is just another word for nothing left to lose
JB
Yesterday my colleague Bruce Ackerman pointed out to me that if things continue to go as they have, President Bush is never likely to regain his popularity and his political capital; as a result, he has very little to lose if he engages in even greater risk taking behavior than he demonstrated in his first six years in office. If his gambles pay off, he regains some political capital; if they don't, he can't lose much more popularity than he already has. Moreover, even if the Democrats retake the House and Senate in 2006, the chances of impeaching him are slim and the chances of impeaching him *and* removing him from office are even slimmer. It's true that a risk taking Bush might screw things up for the Republican Party for the next election cycle or two, but he has already done that quite nicely, thank you. Moreover, he has never been one to put the interests of other politicians ahead of his own, so why should he start now? Throughout his Presidency Bush has shown a desire to engage in gambling and risk taking behavior. Now that he has gambled himself into a failed presidency, he may well decide that taking even greater risks has considerable upside and very little downside. What kinds of risks might he be willing to take? Although I do not believe it will happen, the most obvious is a unilateral decision to bomb Iran. Many people think that this is a spectacularly bad idea. But look at it from the perspective of a failed Presidency with two and a half years to go. Right after the bombing starts, there's a good chance that many Americans will rally around the President. If Bush were to preemptively attack Iran, politicians of both parties will be placed in a difficult position. They might gamble that a public, tired of constant war, will react negatively to the strikes. But if they criticize the President without finding out whether the public supports what he is doing, they risk looking soft on national security and bucking a popular upsurge of support. Gambling and picking the wrong side has greater consequences for them than for Bush: They are facing reelection, while the President is not. Hence they will be tempted to take the safer route and support the President. If the expedition turns out badly, they can always criticize him later on. Indeed, if the President goes ahead and bombs Iran, we might see both John McCain and Hillary Clinton falling over themselves to see who can take the toughest stance. Several people have speculated that the President might bomb Iran before the 2006 elections in order to preserve a Republican Congress. The irony is that if the Democrats win one or more Houses, Presidential risk taking is even more likely. And remember, it does not have to be Iran. There are always plenty of other places where the President might think a little bombing might do some good. But let's put Iran to one side. There are lots of other gambles that a failed President can take with very little downside risk. For example, with a Democratic controlled Congress, he can veto bills left and right (well, mostly from the right); it will be hard to override his veto. He can make more recess appointments. And he can try to stock the courts with even more strongly conservative judges. What does he care if the Democrats can block some of them? Finally, he can stop investigations in their tracks by withholding information on national security and executive privilege grounds, and he can prevent embarrassing criminal investigations by using his pardon power as his father did. He can become increasingly truculent and he can dare the House to impeach him and the Senate to remove him. I mean, what are the chances that two thirds of the Senate will vote to convict and remove? Not very great, even if the Democrats retake the Senate. And even if the risk is, say twenty percent, he might conclude that it's a gamble worth taking. But, you may object, what about his legacy in history? Won't engaging in even greater risk taking damage what historians will say about him? Well Bush has every reason to believe that if he will be honored at all by later generations, it will be for pursuing aggressive policies following 9-11 that helped keep the country safe and prepared it for a long struggle against terrorism. He may well assume that he will be regarded retrospectively with the same degree of respect and warmth that Harry Truman received many years after he left office. Remember that Truman was also regarded as a stubborn man who got the country embroiled in a frustrating war overseas (Korea), and his approval ratings were just as low. Nevertheless, Truman was eventually remembered as the President who first formulated and implemented the successful policy of containment during the Cold War. In the same way, Bush might reason, he will be remembered not for deficit spending, Katrina and the Iraq debacle but for his policy of muscular responsiveness to the threat of Islamic terrorism, which later Presidents will adopt just as Truman's containment policies were adopted by Presidents of both parties during the Cold War. And here's the kicker: Bush has every reason to think that the next series of Presidents, whoever they may be, will follow many of his policies in the War on Terror. As Sandy Levinson and I have explained, we are gradually moving from a National Security State to a National Surveillance State, with an increasingly powerful executive acting largely with the blessing of Congress. Given the changing nature of warfare and the threats America faces, we would have done so no matter who took office in 2000. The only difference between the two parties would have been how they finessed the issue of civil liberties, and it's important to remember that the Democrat Bill Clinton was not a great civil libertarian, particularly when it came to national security policy. There is little reason to think that someone like Al Gore or Hillary Clinton would make a fetish out of protecting civil liberties or reducing Presidential power once they took office. Thus, Bush may reasonably conclude that he will be the Harry Truman of the early 21st century-- he made some mistakes, and he went overboard on civil liberties, but future Presidents will thank him for pushing the envelope on Presidential power because it cleared a wide space for them to use in their Administrations. Perhaps you imagine (or you hope) that future Presidents make it a point to reveal all the bad things that were done during the Bush Administration. You are wrong. Future Presidents will not waste much time or political capital trying to expose what Bush did while in office; quite the contrary, they may try to take advantage of the climate of secrecy and Presidential unilateralism that he created. After all blowing the whistle on what the previous Administration did makes it more difficult for them to do similar things in the future. (Moreover, if future Presidents appear to be even a little less aggressive than Bush, they will seem quite moderate in comparison.) If the various misdeeds of this Administration ever to come to light and come to justice, it will not be because later Presidents expose them out of the goodness of their hearts, but because Congress and the judiciary reassert themselves, and more people risk their careers by leaking information. Without such courage, much of what Bush and his subordinates did in the past several years will never be fully known, and Bush's reputation will be burnished by later Presidents following his example. Now I don't actually believe that Bush is the second coming of Harry Truman-- I think that history will be far less kind. But from Bush's perspective, it's a plausible legacy to shoot for. If that's so, Bush has no incentive to admit any mistakes or to ask forgiveness for anything he's done in office. Indeed, he has every incentive to be just as risk taking, just as stubborn, and just as bull headed as he has been for the past six years, if not more so. And that, I am afraid, does not bode well for the future of our country.
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