Balkinization  

Monday, July 10, 2006

Clinton impeachment revisited yet again

Sandy Levinson

I note that Cass Sunstein begins his reply to Marty Lederman by writing that "[t]he Clinton impeachment was clearly unconstitutional, but very few conservative law professors (or lawyers) were willing to say so, at least in public." I find it interesting that Sunstein is willing to use the word "clearly" in this context, since, with respect, I don't find it so clear. It certainly seems to be plausible to believe that Clinton committed perjury. I suppose the argument is that this doesn't count as a "high crime and misdemeanor." That may be so, but if and only if one adopts an originalist methodology vis-a-vis the meaning of the Impeachment Clause, a methodology notably rejected by most of Clinton's supporters (and, I think, by and large by Sunstein). And, as I have argued elsewhere (and will be arguing in my forthcoming book), it is almost zany, given the responsibilities of the modern President, to argue that we are stuck for some years with a discredited president simply because he did not commit acts that would have counted in 1787 as a "high crime and misdemeanor."

I think that Sunstein may be impugning a lot of our conservative colleagues in the legal academy by seeming to suggest that they "knew" that Clinton was being railroaded but were too smitten by partisan politics to say so. This, of course, is precisely what people like Charles Cooper used to say about William J. Brennan and his supporters, that they willfully subordinated what hthey knew to be the "true" Constitution to their liberal agenda. I think that part of the reality of modern constitutional interpretation--or constitutional politics--is that sincere lawyers can have radically divergent views of what the Constitution allows or prohibits. Indeed, I take it that this is one of the reasons that Professor Tribe terminated his treatises, that the chasm among constitutional perspectives is just too great, at present, to bridge. (Mark Tushnet, incidentally, has a very interesting meditation on Tribe's decision in the just-published issue of Constitutional Commentary (though it has a 2005 date on the cover.)

I concede in advance that there were many good aspects to the Clinton presidency, and I would certainly have voted for him in 2000 had he been eligible for a third term. That being said, I also continue to believe that liberals are paying a very high price for rallying around Clinton the way we/they did and basically limiting impeachment to something so clearly egregious (and provable) as Richard Nixon's conduct in Watergate.

Sunstein also suggests that all of us must accept some reasonably strong version of the law/politics distinction. As Jack Balkin and I have argued, this may make sense if we are talking about "low politics," i.e., tailoring one's position precisely to fite the political interests of one's political preferences in the next election. But it makes very little sense if we are talking about "high politics," i.e., basic visionis of how best to structure the political order, especially with regard to an issue like the conflicts between natinal security, civil liberties, and basic issues of separation of powers.

In any event, I very much appreciate the debate between Marty and Cass.

Sunday, July 09, 2006

Cass Sunstein Replies

Guest Blogger

Cass Sunstein

Many thanks to Marty for continuing the discussion. By way of concluding my remarks at this stage, just three brief thoughts:

1. It is interesting to ask what the division on the Court would have been in Hamdan if the President had been named Clinton rather than Bush. Of course it's not clear that the division would have changed, but it might have been. (For supportive evidence, showing a strong effect of the President's party identification on judicial review of executive action, see this paper by Thomas Miles and me, appearing soon in the University of Chicago Law Review, entitled Do Judges Make Regulatory Policy? An Empirical Investigation of Chevron.)

2. On high-profile legal issues of this kind, there is a risk of group polarization, in which like-minded people (liberal or conservative) stir one another into a state of excessive confidence. Consider the (odd?) fact that before Hamdan, (almost all?) legally informed observers who didn't vote for President Bush tended to believe that the NSA program was unlawful -- whereas legally informed observers who did vote for President Bush tended to be far more sympathetic to the President's legal claims. Of course there are exceptions.

Note in this regard that in Hamdan itself, the majority and the dissent were divided on at least seven major questions, all of them pretty technical. Offhand I can't think of a time, in the Court's entire history, in which the Justices split, in a single case, on so many questions; Hamdan might in this regard be the all-time champion.

3. The real question, of course, is the effect of Hamdan. It will be interesting to see if executive branch lawyers can produce a plausible argument, post-Hamdan, in favor of the NSA program. In light of Justice Stevens' reasoning, the defense of the program is greatly weakened. Justice Thomas' dissenting opinion could easily be adapted in favor of the program, but of course skeptics could contend that military commissions are easier to defend -- and after all, Justice Thomas was dissenting.

Open Letter in Response to Cass Sunstein on the NSA and FISA

Marty Lederman

Dear Cass:

Thank you so much for that gracious and thoughtful response to my provocation. I greatly appreciate it, and that fact that you've agreed to continue this dialogue here on the blog.

Obviously, I'm pleased that our disagreements are diminishing on the question of the legality of the NSA program. I'll have more to say shortly about Hamdan and the NSA matter (see also Jack's post, which strikes me as entirely correct); but in the meantime, here are some quick, off-the-cuff reactions to the points on which we appear to continue to have some possible differences:

1. I'm surprised that you are so dismissive of Congress's actual intent. Of course it isn't conclusive on questions of statutory construction. But just as surely, an interpretation that virtually no legislator intended, that comes as a shock even to the strongest congressional supporters of the NSA program, and that could not possibly have secured anywhere close to a majority had it actually been on the table in Congress, ought at least to be strongly disfavored, no? Purposivism, even in its mildest form, ain't dead yet, is it? (Witness Hamdan.)

2. You begin your analysis with an "if FISA did not exist" counterfactual. I agree that if FISA did not exist, the AUMF would likely authorize at least certain applications of the NSA program. We critics have long conceded that point. But, as you acknowledge, the counterfactual begs the only question that matters, namely, whether the President must comply with a pre-existing statute (FISA) directly on point. It's as if one started the discussion of Hamdan with the hypothetical question of whether the commissions would be lawful if Congress had never enacted the UCMJ and if the Senate had never ratified the Geneva Conventions. In fact, Justice Stevens (appropriately) begins his analysis (page 28) by stating that the Court "need not answer" that question, because there is a statutory framework in place that renders that question immaterial.

Similarly, if there were not a slew of statutes and treaties regulating interrogation techniques, perhaps the AUMF could be read to authorize the President to engage in techniques approaching torture. But what would that prove, in light of the fact that such statutes and treaties do exist?

There is a very elaborate statutory regime in place both for interrogations and for electronic surveillance -- and the statutory question is whether a single, general, nonspecific sentence in an AUMF displaces that entire corpus of preexisting law. (I do not, of course, mean to suggest that you ignore this point -- obviously, you don't. I'm simply not sure why you think that before Hamdan it "made sense" to begin the statutory analysis by imagining that FISA did not exist. It's like the old "Try not to picture an elephant sitting in the middle of the room with pink pajamas" challenge. Hamlet without the prince. Etc.)

3. Part of the NSA program probably wouldn't be ok, even in the absence of FISA, because of the Fourth Amendment. Here's what I've written elsewhere (with David Cole) on this point:
It appears that the NSA program collects surveillance that would not be approved under FISA if the administration were to seek authorization by a FISA Court under the statute. According to the Administration, under the program the NSA must only find "reasonable grounds to believe" that at least one party to the communication is a member or agent of al Qaeda or an "affiliated terrorist organization"—a standard that could permit wiretaps of the phones of U.S. persons in the United States who are not themselves al Qaeda agents. Thus, it appears that NSA does not require in every case that there be probable cause to believe that the target of the electronic surveillance is a foreign power or an agent of a foreign power. Under FISA as currently written, the FISA Court could not approve such surveillance, and the leading judicial precedent indicates that without judicial approval such surveillance of U.S. persons would likely violate the Fourth Amendment. See Zweibon v. Mitchell, 516 F.2d 594, 614 (D.C. Cir. 1975) (en banc) (plurality opinion) ("[W]e hold today... that a warrant must be obtained before a wiretap is installed on a domestic organization that is neither the agent of nor acting in collaboration with a foreign power, even if the surveillance is installed under presidential directive in the name of foreign intelligence gathering for protection of the national security."); id. at 689 (Wilkey, J., concurring in pertinent part) (agreeing with plurality that if an exemption from the Fourth Amendment's warrant requirement exists, "it exists only for a narrow category of wiretaps on foreign agents or collaborators with a foreign power").
4. The 15-day war provision in FISA, 50 U.S.C. 1811, is dispositive, even if one doesn't buy all the other pro-FISA arguments. That's why it's a centerpiece of the letters I've written to Congress with Geoff Stone and others. I genuinely don't see what the plausible response to it might be, other than returning to the claim that the AUMF implicitly supersedes even that provision.

You don't mention the "exclusive means" provision of FISA, 18 U.S.C. 2511(2)(f); but that provision, too, would have to have been impliedly repealed by the AUMF -- an argument that Hamdan pretty much eliminates (see the top of page 30 of the slip opinion).

5. Most importantly, I was very much aware of your Harvard and Supreme Court Review articles; and that's why I found your AUMF/NSA argument so surprising.

I don't agree with your strong reading of Chevron as applied to war. It's certainly undermined by Hamdan, in which the Court gave virtually no deference to the President's interpretations of ambiguous provisions -- even of treaty provisions!

Be that as it may, however, I was understandably sympathetic to the notion you expressed in those articles that where individual liberties are seriously implicated, the President can't act without clear congressional warrant. Alas, I'm afraid I can't quite agree with you that Hamdan speaks to this question -- particularly since the case only involved the rights of aliens detained at GTMO, whose constitutional protections are still uncertain (but cf. footnote 15 of Rasul). Because the case is about violations of statutory restrictions (Jackson's Category III), and because no claim of constitutional protections was in the mix, the Court had no occasion to suggest, or even speak to, any such clear-authorization requirement.

But if this is your view -- and in the New Republic piece you seem to embrace it strongly, even as applied to the rights of a detained alien in Hamdan -- then why doesn't that simply settle the FISA/NSA question? We might disagree on some matters, but I would have thought we would surely concur on at least this much:

(1) The the NSA program seriously implicates individual rights -- indeed, constitutional rights of citizens.

and

(2) However strongly one might read the AUMF, Congress has not clearly authorized the President to ignore the "exclusive means" for electronic surveillance that FISA prescribes.

On your own view of the "clear authority" doctrine -- and let's hope you're right that the Court will one day embrace it! -- why was the NSA program legal, even before Hamdan?

6. I agree that, as weak as DOJ's AUMF defense of the NSA program may be, "it's far better than some of the ludicrous passages in the 2002 memorandum by OLC on coercive interrogation." But talk about damning with faint praise! I don't even doubt that, as you suggest, DOJ crafted the AUMF argument in good faith. But you had previously stated that DOJ "probably has the better argument," and that if "FISA is interpreted as preventing the president from doing what he did here, then the president does have an argument that the FISA so interpreted is unconstitutional." As I understand it, these aren't your current views, especially in the wake of Hamdan. If so, I'm heartened to hear of it. And if not . . . well, then let's continue the debate!

7. One other thing, which is a bit ancillary to the specific NSA question: In your previous remarks, you stated that "the Department of Justice is the president's lawyer, and they have a duty, the lawyers there, to protect the president's Constitutional prerogatives." I concede that, at least on issues realting to national security and foreign affairs, it is not hard to find historical instances, in Democratic and Republican Administrations alike, where it appears this is how OLC understood its role.

But I think it's mistaken. OLC's task is to assist the President in fulfilling his constitutional obligation to faithfully execute the law. Of course, one might adopt the view, often attributed to Madison, that the law itself -- the Constitution -- contemplates that each of the political branches will (should?) interpret the law so as to best protect its own prerogatives. I don't entirely agree, for reasons I've begun to express elsewhere; but I concede that it is a rich, complex and unresolved question. For now, I simply don't want everyone to simply assume the truth of the oft-heard canard that OLC's proper role in construing the law is to press as hard as possible in the direction of presidential prerogatives.

Thanks again for engaging me on these issues. I look forward to further discussion.

Best,

Marty

Saturday, July 08, 2006

The NSA and Hamdan

Guest Blogger

Cass Sunstein

Marty Lederman, who has not been entirely thrilled with my tentative thoughts on the NSA surveillance, has asked for my views on the relevance of the Hamdan decision to that controversy. I'm grateful to him for asking and to Jack Balkin for providing me with an opportunity to answer. I'll get to the real question shortly, but let me begin with some background.

1. I hope that we can agree, perhaps especially in this area, on the law-politics distinction. The Clinton impeachment was clearly unconstitutional, but very few conservative law professors (or lawyers) were willing to say so, at least in public. Their own political views, and their dislike of President Clinton, led them to silence themselves or instead to support an indefensible view of the law. (Let's not even mention Bush v. Gore.) In this light, law professors who did not vote for President Bush might understand themselves to have a special obligation to try to put their own political views entirely to one side -- and to accuse the President of violating the law, or acting without a good-faith legal argument, only when they are certain that they would say exactly the same thing if their favorite Democrat were president.

2. Before Hamdan, it made sense to analyze the NSA question in the following way.

(a) Suppose that FISA did not exist. If not, the AUMF probably carries with it the authority to monitor conversations involving Al Qaeda, on the theory that such surveillance is a legitimate incident of the use of force. (Hamdi supports this argument, because the plurality found the AUMF to authorize detention, even though it is hardly explicit on that topic.) This argument might not be entirely convincing by itself, but it is strengthened by the fact that several lower courts have said that the President has the inherent power to engage in foreign surveillance. Putting these decisions together with the AUMF, the issue is pretty straightforward if FISA is put to one side. (There's also a Fourth Amendment issue but the President is probably on solid ground here.)

(b) FISA does make the issue much harder for the President. There's a plausible argument that FISA (i) overcomes the AUMF, because it's more specific and (ii) is constitutional, because it doesn't intrude on any authority that the President has under Article II. The contrary argument, which also seems to me plausible, is (i) that the AUMF is in a way more specific than FISA (because it deals with Al Qaeda), (ii) that the AUMF is the later enactment and hence trumps FISA in the event of conflict, and (iii) that the two statutes should be construed together in a way that fits, if fairly possible, with what might be part of the President's power as Commander-in-Chief. (Recall that lower courts have said that foreign surveillance is included within the power of the Chief Executive.) On this view, FISA does not ban the President from engaging in surveillance if he is monitoring conservations that involve Al Qaeda.

The specific intentions of the legislators who voted for the AUMF don't much matter (see Hamdi, refusing to ask about those specific intentions; see also Bradley and Goldsmith in the Harvard Law Review, carefully parsing the meaning of the AUMF without asking about specific intentions). But a powerful objection to this argument in favor of the legality of the NSA surveillance is made by Geoffrey Stone, who points out that FISA has a particular provision governing war. Maybe that provision means that the AUMF has to be fit with FISA -- and that so long as FISA, construed as applicable to foreign surveillance involving Al Qaeda, is constitutional (as I believe it probably is), then the program is unlawful after all. That's a reasonable argument, and in the end it might well be right. But the President has some possible responses here too.

What seems to me clear, on the basis of all this, is that even if the President's argument is unconvincing, it can be offered in good faith. It's far better than some of the ludicrous passages in the 2002 memorandum by OLC on coercive interrogation, and than other over-the-top OLC arguments, in the same general period, about the President's broad power to protect national security. It's probably better than President Truman's argument in the Steel Seizure Case. It's hardly a clear winner, but it's also not an entirely clear loser in the Supreme Court (would anyone be shocked, or faint, if it attracted two, three, or more votes?).

3. After Hamdan, the defense of the NSA foreign surveillance program is much more difficult. Justice Thomas took a route very similar to that sketched by the most plausible arguments for the NSA program -- and his view was squarely rejected by a majority. The Court refused to construe the AUMF as overriding the Uniform Code of Military Justice -- and it would be easy to say that the AUMF has the same relationship to FISA as to the UCMJ (that is, it leaves it 100% intact). The Court gave little attention to the claim that the President has full authority to create military tribunals in the face of congressional restrictions on that power -- and it would be easy to say the same thing for foreign surveillance. (The President does have historical support for his surveillance claim, but he also had such support for creating military tribunals. Maybe the historical support is stronger for surveillance -- but that is not clear.)

Perhaps most important, the Hamdan Court seemed to demand clear congressional support for the presidential action at issue, and the President does not have clear congressional support for foreign surveillance. (In case it's of any interest, I defend a general requirement of clear congressional authorization, at least when constitutionally sensitive rights are at issue, in a paper in the 2004 Supreme Court Review.)

The upshot is that after Hamdan, the NSA surveillance program, while still not entirely indefensible, seems to be on very shaky ground, and it would not be easy to argue on its behalf in light of the analysis in Hamdan. On the other hand, the Court was divided 5-3 (and on the lower court, Chief Justice Roberts voted with the 3). It remains to be seen whether and to what extent the analysis in Hamdan will stand the test of time -- especially if the composition of the Court changes.

Friday, July 07, 2006

Hamdan and the NSA Domestic Surveillance Program: What Next?

Marty Lederman

As most of you probably know, I was from the outset not especially persuaded by the Justice Department's statutory defense of the NSA domestic surveillance program. Be that as it may, however, it seems to me that Jack, David Barron, and "Anonymous Liberal" are all correct that the Hamdan decision fairly decisively undermines whatever slight plausibility that argument might previously have enjoyed. (Orin Kerr intimates likewise.)

As David points out, if (as the Court held) the AUMF does not trump the limitations on military commissions that are only vaguely and implicitly lurking in 10 U.S.C. 821 and 836(b), surely that force authorization cannot supersede FISA's express provision that FISA and title 18 prescribe the "exclusive means" of engaging in electronic surveillance, and FISA's specific wartime surveillance provision, which authorized surveillance outside the FISA framework through December 3, 2001, but no later.

If we're all correct about this -- and I haven't seen any argument to the contrary -- then it raises two interesting questions:

1. What will OLC do when -- presumably within 45 days -- the NSA program must be reapproved? A.L. suggests that responsible lawyers, even those who are charged to push the legal envelope, should call a halt to the program. David recommends that Congress should tee up the question to DOJ. Stay tuned.

2. Will Cass Sunstein finally give up the ghost on his idiosyncratic view that the AUMF can be construed to authorize the NSA program?

I ask this not only because, as far as I know, no legislator has agreed with Sunstein and DOJ that the AUMF provided such authority. (One should be suspicious of any argument about congressional intent that doesn't reflect, well, any legislator's intent. Handy new canon of statutory construction: Interpretations that would come as a shock to all 518 legislators who voted for a bill are disfavored.) Nor even because Hamdan has so severely undermined the theory.

No, the main reason I'm curious about Professor Sunstein's current views is that he has just published an article in which he reads Hamdan to confirm the principle that "[i]f the president is acting in a way that threatens civil liberties, he will be probably lose unless Congress has explicitly authorized him to do that."

The Hamdan decision doesn't actually say that, and is not really about that question: The Court's holding does not depend on the absence of clear statutory authorization -- it turns instead on the fact that the President's commissions violated statutory limitations. But more to the point, even if Sunstein's characterization were apt, and clear stautory authorization is necessary in order for the Executive to infringe on personal freedoms, how can Sunstein adhere to his previous view that the vague and general authorization of the AUMF silently authorized the President to act in a way that would otherwise not only infringe on personal freedoms, but also transgress clear pre-existing statutory limitations?

The Future of Same Sex Marriage

JB

Although supporters of same-sex marriage are no doubt disappointed, the New York Court of Appeals decision refusing to require same-sex marriage is not a significant defeat for the same-sex marriage movement. Rather, it is a setback for the particular strategy of using law suits based on state constitutional law to achieve equality for same-sex couples.

Once a majority of the New York Court of Appeals stated that "our Equal Protection Clause `is no broader in coverage than the federal provision,'" the result was a foregone conclusion. (A foregone conclusion, that is, based on a prediction of what the U.S. Supreme Court and most federal courts would probably do today.) In both Massachusetts and Vermont, courts read their state Equal Protection Clause (or common benefits clause, the Vermont equivalent), in ways significantly different from the federal Equal Protection Clause. That gave these courts room for maneuver, and allowed them to conclude that denial of marriage rights to same sex couples violated basic principles of equality.

However, when the New York Court of Appeals began with the assumption that it must follow federal constitutional doctrine in its current form, the result was disappointing but not at all surprising. Supporters of same-sex marriage are well aware that the last place they want to litigate same-sex marriage claims right now is in the federal courts.

The court-based strategy has been premised on finding states whose courts do not regard their constitutional doctrines as mirror images of the current U.S. Supreme Court's but have a significantly more progressive cast. The idea is that litigators would raise state constitutional challenges in these courts, hoping to get judicial decrees either ordering same-sex marriage outright (as in Massachusetts) or sending the issue back to the state legislature with instructions to come up with an equitable alternative (as in Vermont). Then supporters of same-sex marriage would fight hard to prevent the inevitable backlash effects and hope that the public would get used to the idea, which, in Vermont and Massachusetts it mostly has. After a number of successful state court victories of this type, other states would eventually come around, and, after winning victories in a majority of states, litigators would finally be ready to approach the federal courts.

However, this court-based strategy cannot be the dominant strategy for success for two reasons. First, there are only a limited number of state courts that fit these characteristics. Second, the strategy is far too optimistic about backlash effects. People feel very differently about legislatures creating rights for same sex couples than they do about courts doing the same thing. Winning in the courts is fine, but unless there is already significant public support for what courts do, choosing a litigation strategy often leads to populist reprisals that combine opposition to change on the merits with opposition simply because a court ordered the reforms. Unless supporters of same-sex marriage can quickly mobilize to respond to the backlash, their victories may be short-lived.

The better strategy in many states, perhaps most, is to work for legislative reforms directly, pushing for same-sex marriage but settling for civil unions if that can be achieved. If people win in legislatures, the courts tend to follow; if lots of state legislatures recognize same-sex marriages, civil unions or other marriage equivalents, it will become much more obvious to courts that denying same-sex couples the right to legally sanctioned partnerships treats them unfairly. That is to say, courts tend to change their minds just about when legislatures do: sometimes a little before and sometimes a little after. It is a mistake to think that all or most state courts will be significantly ahead of their legislatures on this issue. The Vermont and Massachusetts courts were ahead of their legislatures, but they are not necessarily a good sample of state supreme courts, as the New York decision suggests.

Proponents of same-sex marriage already are working for legislative reform as well as in the courts. They recognize that the more avenues of reform you pursue, the more likely it is that you will make progress. The problem with a multipronged strategy, of course, is limited resources. But an even more important resource will be patience; this will be a long struggle for equality.

One effect of the loss in New York may be a renewed emphasis on going to legislatures for reform rather than constitutional challenges in the courts, especially, as the number of likely state court venues diminishes. If that leads to a series of legislatures making changes on their own, without being prodded by courts, it will greatly enhance the democratic legitimacy of the movement for same sex marriage. And if that happens, it may turn out that the loss in the New York Court of Appeals was not a serious setback for same-sex marriage at all, but a blessing in disguise.


Thursday, July 06, 2006

Hamdan, Geneva and Interrogations

Marty Lederman

Over on the new Georgetown Law Faculty Blog, some of my colleagues and I posted preliminary thoughts about Hamdan over the weekend:

Randy Barnett

Rosa Brooks

Neal Katyal (transcribed from oral remarks)

David Luban (transcribed from oral remarks)

Mark Tushnet (transcribed from oral remarks)

Carlos Vazquez

My contribution addresses some of the questions that have been raised about Hamdan, Common Article 3, interrogation policy, and a possible congressional move to supersede Common Article 3.

Also, Rebecca Tushnet has posted a link to a webcast of the terrific panel discussion on Hamdan that the GULC Supreme Court Institute convened last week, with Carlos, David, Neal and Mark.

Tuesday, July 04, 2006

Chalk on the Spikes: What is the Proper Role of Executive Branch Lawyers, Anyway?

Marty Lederman

Well, Sandy's provocative challenge certainly deserves a response. Unfortunately, I don't have time for a full retort right now, because I'm consumed with other projects. Fortunately for me, I've already drafted or signed a couple of things that are a partial response, at least. One is this memo that I drafted along with 18 of my former OLC colleagues, articulating what we think are some of the "best practices" of that office. It is concedely aspirational: Although it describes, I think, the way the office usually operates, at least at its best, obviously it is not hard to find counterexamples, from any and all Administrations.

Also, my very first post to this blog identified some of the process-based ways in which OLC opinion-writing can go astray, with reference to the contrast between the two OLC torture memos.

Finally, last New Year's Eve, Jack published a post raising questions about government lawyering very similar to those that Sandy raises. In response, I drafted the following post that evening. (I'm not big on New Year's Eve celebrations.) Because I didn't have time to work on it, it never got to the point where I was satisfied with it. I'm still not satisfied. But I'm not going to work further on it anytime soon, so I thought it might be worth publishing now, at least as a rough first cut at some of the questions Jack and Sandy raise. And since its subject is, in some sense, constitutional "faith" -- namely, what it means for the President to "faithfully" execute the law -- perhaps it's appropriate to publish it now, in response to my far-too-generous-with-praise friend Sandy. All caveats relating to such a rough draft apply, of course:

Jack's post on lawyering raises some very interesting questions. Surely he's right that lawyers -- really good, respected lawyers -- have always been available to defend the indefensible. (By "indefensible" here, I am not referring, as Jack principally is, only to that which is morally indefensible, such as waterboarding; I'm also referring to conduct that might be perfectly acceptable from a policy perspective but that doesn't have a legal leg to stand on, such as the NSA wiretapping program.)

One minor observation: Although Jack is surely correct that some such lawyers are "rhetorical whores," willing to justify whatever their clients wish, or whatever will support their preferred political or policy objectives, that doesn't describe all that's occurring in these cases. I assume that Cass Sunstein, for instance, truly believes that the AUMF may have superseded FISA. I think that conclusion is egregiously, indefensibly wrong -- but Sunstein is not arguing it because a client has asked him to push the envelope or because he'll reflexively defend whatever the Bush Administration does: He's speaking his mind. Similarly, although many lawyers who tried to defend Bush v. Gore (including the writers of the per curiam) almost certainly did not believe what they were arguing, there are those (Nelson Lund, for example) who are, from all that appears, sincere defenders.

But I'd like to focus here on a more fundamental question that Jack's post raises but doesn't discuss in detail: whether lawyers -- especially government lawyers -- should be so "creative," at least in cases (unlike torture or slavery) where the legal judgments are not in the service of moral evil. "Is" doesn't equal "ought," of course, and so the question arises: Is it acceptable for government lawyers to (in Jack's words) "push the envelope on behalf of their client," where they believe that the policy being supported is morally defenisble? And, if so, to what degree?

The question is much, much harder than most people think -- and it's very different from the same question as applied to lawyers in private practice. If a private client asks a lawyer to push the legal envelope, client and lawyer both understand that there's a risk that the advice will turn out to be wrong in the eyes of the authorities, with possible legal consequences for the client. If the lawyer is any good, the advice will reflect such risks. In other words, the lawyer's job is to tell the client both what the "best" view of the law is, and what is at the outer bounds of legal arguments that might (but probably won't) carry the day.

The Executive, however, is the prosecuting entity. Thus, when an OLC lawyer or the AG advises that a course of conduct is lawful, she is not simply giving the President advice about possible legal exposure; she is, instead, effectively determining what the law will be as a practical matter -- she is sanctioning the conduct, and immunizing it against future prosecution by the Executive, at least insofar as the advice is within the bounds of what the legal culture deems "reasonable." (If the advice is widely viewed as wrong, the Executive may pay a cost in its relations with Congress, or the court of public opinion, or even in international courts or civil cases, where relevant. But it's inconceivable that the Executive would ever prosecute someone who reasonably relied on OLC or AG advice -- in part because of serious due process concerns.)

Given this lawmaking function of DOJ advice, is the DOJ lawyer obliged to provide the best view of the law, or is pushing the envelope, within the outer bounds of the "reasonable," acceptable? I start from the proposition that I hope all will share that it is the role of Executive lawyers -- the AG and OLC lawyers, in particular -- to assist the President in his constitutional obligation to faithfully execute the law. OK, but how broad is the range of faithfulness, or fidelity? And "faithful" to . . . what, exactly?

As a general matter, OLC attempts to give the President the "best" view of what the law allows, where "best" is generally understood to mean the answer to which the governing legal doctrines would most likely point (more or less akin to what a lower court does when it's trying to follow the "rules laid down" by the Supreme Court). If that view means that the President cannot undertake his preferred course of action, then in that case OLC has performed its proper role -- it's really the only entity within the Executive branch that is in place to impose such legal limits -- and OLC ought then to work with the White House to see if there is some other, lawful way to accomplish the President's ends, at least in part.

But let's be honest -- such a typical "neutral expositor" model does not invariably describe the advice that OLC and DOJ give the President, especially in matters related to war and national security. Historically there have been clear cases in which what the AG or OLC has done is to try to come up with a justification for Executive conduct that lies at one extreme of the range of possible "reasonable" legal answers, but that is fairly clearly not the "best" view of the law.

Perhaps the most notorious example was Attorney General Robert Jackson's opinion (prior to the Lend-Lease Act) that existing statutes gave the President the authority to acquire from the British Government rights for the establishment of naval and air bases in exchange for over-age destroyers and obsolescent military material. See 39 Op. A.G. 484 (1940). This opinion was roundly (but not uniformly) criticized as being an extremely tendentious, that is to say, mistaken, reading of the relevant statutes -- but obviously, Jackson was comfortable that it was within the bounds of what the legal culture would allow, even if he did not think that it represented the "best" legal answer to the important question that was posed to him.

Another, more modern example occurred in 1986, when Samuel Alito was one of the Deputy Assistant Attorneys General at OLC. A statute required the Executive to give prior notice of covert intelligence activities to eight members of Congress, and post-conduct notice to the intelligence committees "in a timely fashion." President Reagan did not give prior notice of the Iran-Contra affair to anyone in Congress, and delayed the post-conduct disclosure on a completely discretionary basis. OLC wrote an opinion concluding that this failure to provide notice satisfied the statutory mandate, see 10 Op. O.L.C. 159 -- what Professor Jeff Powell described as "the bizarre outcome . . . that a statute meant to limit the President's discretion places no practical limits on that discretion." The President's Authority Over Foreign Affairs at 13 (2002). As Powell rightly explains, the OLC opinion "is an exercise in statutory construction only in the Pickwickain sense that it assigns meanings to the words Congress enacted. If, as is generally assumed, the purpose of statutory construction has something to do with identifying and applying what presumable was the will of the legislating body--however difficult that may be in practice and even in theory--the opinion is a simple and indeed unembarrassed failure as a reading of section 501." (This is basically my view of DOJ's current reading of FISA and the AUMF -- but obviously others disagree.)

The key word here is "unembarrassed." OLC was more than willing to offer what was very plainly not the best reading of the statute, but a reading that OLC thought was at the far edge of the plausible and that least impinged on what OLC viewed as the President's constitutional prerogatives. (The statutory construction in the 1986 Timely Notification opinion was actually not the most outrageous thing about it -- that honor is reserved for the opinion's understanding of Congress's authority in the fields of foreign affairs and national security. But that's a subject for another day . . . .)

From everything I know, this is the model of legal advice that President Bush has expected of his lawyers, including OLC lawyers, with respect to the war against Al Qaeda. In Dana Priest's remarkable story the other day about the aggressive legal interpretations in this Administration in support of CIA covert action, there's this wonderful quotation from Deputy Director of National Intelligence Michael Hayden about their approach to the law:

"We're going to live on the edge. . . . My spikes will have chalk on them. . . . We're pretty aggressive within the law. As a professional, I'm troubled if I'm not using the full authority allowed by law."

This confirms what I've read in several places and what I've heard from numerous lawyers in the Executive branch: What the White House has asked of them is not to provide the "best," or most objective, view of the law, but instead to read the law as aggressively as humanly possible so as to give the President the broadest possible discretion in preventing another domestic attack: Don't worry so much about exactly where the line is -- it's ok to get chalk on your spikes. Lives are at stake. [UPDATE: Confirmation from Newsweek: "The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it."]

They are completely unapologetic about this. And I don't think it is obviously the wrong perspective to be using (even if it is very troubling if all the lawyers in the Executive Branch are using this standard, and no one is advising the President of what the best view of the law is). Of course, some of their legal advice -- the August 2002 Torture Memo, in particular -- has been far, far outside even the most extreme bounds of what's reasonable: The chalk is but a distant memory there. And I'm not defending that. But I think it is a very hard question whether Executive branch lawyers ought to "push the envelope," within the bounds of what the legal culture views as "reasonable," in order to enhance presidential authority in matters of national security.

I'm curious to hear what others think of this difficult question. But this much, I think, should be clear: If the Executive Branch is going to adopt such extreme legal views, it must do so publicly, in a way that allows for critique and democratic accountability. If it is acting on idiosyncratic, and extreme, readings of the law, it is wrong to hide that fact from the public -- to pretend as if it's business as usual. Justice Jackson's view of the legality of the destroyers deal might have been wrong, but he and the President announced the sale to the Congress and had the courage to provide the legal analysis supporting it -- thus giving Congress and the public the opportunity to apply checks and balances.

The practice in this Administration has been the polar opposite.

It is not acceptable to announce repeatedly to the world that we don't torture, that we abide by all our treaty obligations, and that we treat detainees "humanely" -- only to engage in secret waterboarding and hypothermia, based on equally secret legal determinations that construe the words "torture" and "humane" in an Orwellian fashion, that diminish treaty obligations down to nothing, and that assert a right of the President to ignore all statutory limits.

It's not ok to give the world the impression that we are staying true to our 50-year-old tradition of compliance with the minimum protections of Common Article 3 of the Geneva Conventions, whilst secretly trampling all over those protections.

It's not proper to give the public and the Congress and the FISA Court the impression that the Administration is in perfect compliance with FISA, all the while secretly approving a massive surveillance program that flatly violates FISA -- and that is based on a secret conclusion that Congress unknowingly approved such a program when it authorized the use of force against Al Qaeda.

We can argue about the virtues, the propriety, of unorthodox readings of the law by the Executive -- of going right up to the line and getting chalk all over one's spikes. But even if unorthodox, and pro-Executive, and aggressive, readings of the law are in some cases permissible, what should be beyond the pale is acting in accord with a body of secret law.

Monday, July 03, 2006

"Creativity," candor, and lawyering

Sandy Levinson

I consider Marty Lederman to be the best--and most scrupulous--constitutional lawyer in the country, which means that I take everything he says with the utmost seriousness. In the thread on John Yoo, he suggests (responding to a comment by me) that "creative" lawyers should be candid about their straying from the relatively unimaginative straight and narrow. But I wonder to what degree any lawyers, including such admirable lawyers as those who served with Marty in the in the Office of Legal Counsel that he graced with his service between 1994-2002, are entirely candid with regard to the "creativity" of their arguments. Don't lawyers always claim that their arguments are well-founded in traditional materials, and that any "creativity" actually represents a "deeper understanding," rather than creative transformation, of these materials? I'd be curious to know of any briefs or opinions that openly acknowledge the "creativity" of the arguments being made, at least with regard to constitutional or statutory interpretation. I assume that one can more openly acknowledge "creativity" in common law cases where one decides that the traditional rule has become dysfunctional (e.g., contributory negligence as barring any recovery at all).

Consider the government lawyers during the New Deal, with regard to federal power under the Commerce Clause. In some ways this is at the heart of the debate between Bruce Ackerman and some of his critics, such as Cass Sunstein, with regard to the New Deal. Ackerman, of course, regards the New Deal as a fundamental, and therefore highly "creative," transformation of the American constitutonial system. Sunstein, like most New Dealers (at least in public) offers a more "restorationist" account, in which the Court returns to the correct understanding of federal power set out by John Marshall in Gibbons. Nothing "creative" there! Is there a "fact of the matter" as to which account is correct? And, if we agree with Ackerman, should New Deal lawyers have been expected to admit that they really were inventing bold new ways of conceptualizing congressional power under the Commerce Clause that affected a non-Article V amendment of our operating system (as, Marty and I would both agree, John Yoo is doing with regard to Article II and presidential power)?

Sunday, July 02, 2006

Is Congress autonomous?

Sandy Levinson

As some readers know, I am a big fan of Daryl Levinson's article, "Empire-Building Government in Constitutional Law," 118 Harv. L. Rev. 915 (2005), in which he argues that the Madisonian thesis, expressed in Federalist 51, that members of Congress would be assiduous in protecting the "prerogatives" of their institution, is false, for two quite different reasons. The first, a variant of David Mayhew's well-known argument, is that members of Congress are primarily motivated to seek re-election (or, for the even more cynical, well-paying jobs on K St.), not by a concern to protect institutional prerogatives except inasmuch as they contribute to re-election. The second reason is that the rise of the political party, which the Madison of 1788 thought inimical to democracy, makes members of Congress more loyal to their parties than to their institution, especially when their party controls the presidency. This thesis is further elaborated in an article that Levinson has co-authored with Richard Pildes in the current Harvard Law Review, "Separation of Parties, not Powers."

So consider the consequences re the all-too-likely response to Hamdan. As Mark Graber has ably argued, it is far too early to have any confidence about the importance of the case. (Consider Zhou en-Lai's famous comment about its being too early even to pronounce on the ultimatele impact of the French Revolution.) But it is surely possible that the response will be exactly as Mayhew and Levinson would predict: The Republican Party is desperately eager to run one more election on the "terrorism" issue, and the Washington Post article cited by Mark suggests that they will try to make anyone who supports Hamdan--which, after all, says only, at the end of the day, that Congress has not authorized Bush to ignore the Geneva Conventions and existing laws--by refusing to give Bush a blank check to fight the war as he sees fit is, at best, a wimp and, at worst, a collaborator with terrorists. See, e.g., John Boehner's absolutely disgraceful attack on Nancy ("San Francisco liberal") Pelosi and the idiotic claim that she is supporting "special rights" for terrorists (as against the rights set down in existing law). If Republicans could run on the basis of demonstrated accomplishments, perhaps some would resist playing the "terrorism card," but, of course, they cannot, so basic incentives for re-election suggest that Republicans will try to make Hamdan into an albatross around the Democrats' neck. (Query, how many Democrats, themselves desiring re-election, will stand firmly behind Geneva and the Uniform Code of Military Justice? More or fewer than stood firm against the idiocy of the flag-burning amendmeng? And, of course, here the key number may be 60 instead of 67, if we are talking about the possibility of a filibuster against a blank check for Bush.) In addition to re-election pressures, there is also party loyalty, as Bush will play every card at his disposal to keep any independent-minded Republicans in line. John Warner, who is old enough to be beyond any further ambitions, may stand firm. But will Arlen ("all the backbone of a banana') Specter really do so, even though he is probably dying of Hodkins disease? There is nothing in the record of the past two years to give any encouragement on this point.

In any event, the response to Hamdan in Congress may be an interesting natural experiment with regard to whether anyone on Capitol Hill really cares about defending congressional independence against executive overreaching or whether, on the contrary, they will all, Republicans and Democrats alike, behave in accordance with loyalty to their own electoral intersts and their parties' perceived institutional interests.

One final, perhaps unrelated, point: Although I think that Stevens' opinion was admirable in every way, am I the only person who foundn it quite uneloquent, when all is said and done? That is, it seemed to me a wonderfully "lawyerly" opinion as it carefully eviscerated the Administration's arguments. But, in contrast, say, to Hugo Black's First Amendment opinions of the 1950s, which permanently etchned themselves in my then-undergraduate consciousness, or, for that matter, almost any of Scalia's dissents, where the reader always gets a very strong sense of what Scalia believes is a stake with regard to the country or culture outside the courtroom, there is little in Stevens' opinion that stirs the passions or leads one to want to mobilize politically. And, inasmuch as it is basically a "legal process" opinion, focusing on the lack of congressional authorization, it places the ball in Congress's court to stand firm or capitulate to those like David Addington, the subject of a superb--and extremely scary--profile in this week's New Yorker by Jane Mayer, who are, like John Yoo, certainly not remotely persuaded by the Hamdan majority. So perhaps this point isn't unrelated after all: Wouldn't it be wonderful if the opinion contained more quotable language about how basic American values are at stake with regard to the substance of the issues--i.e.. the rights enjoyed even by the (suspected) worst among us--rather than the focus on how existing law hamstrings the Administration in its desires to protect us against terrorists?

The Knicks Are No Mickey Mouse Organization

Ian Ayres

In an essay published in today's New York Times, John Donohue and I point out the eerie similarities between the rise and fall of Larry Brown and Michael Ovitz. Both were hired with great fanfare, both were fired after about a year. But there is a big difference. Disney paid Ovitz $140 million, while Knicks are refusing to pay Brown $40 million. The payment led to a huge shareholders suit at Disney:

In essence, shareholders sued Disney for not doing to Mr. Ovitz what the
Knicks did to Mr. Brown.

We argue that the Knicks' action may be a harbinger of things to come:

Corporations have felt that they were caught between a rock and a hard place with failed executives. They either have to stick with a manager who isn't working out, or they have to pay him or her an ungodly severance amount. This was the Hobson's choice that Disney's board encountered when it chose to pay Mr. Ovitz $140 million.

But the Knicks' action shows that corporations have a third option. In the end, it may not apply to Mr. Brown if the accusations of misconduct are contrived. But the examples of the Knicks and Disney suggest that corporations should give serious consideration to invoking the for-cause option before they fork over millions to an executive they think has been misbehaving.

Truer Words Were Never Spoken

Marty Lederman

"'What the court is doing is attempting to suppress creative thinking,'" said Professor Yoo."

Saturday, July 01, 2006

Hamdan's Politics

Mark Graber

The news this morning highlights Republican efforts to use the recent Supreme Court decision in Hamdan to paint Democrats and liberals as weak on terrorism. There are a great many debating points to be scored on why this is silly in theory, but fewer as to why this is silly in politics. The events of the past several days, I suggest, highlight that the American violations of human rights associated with the war on terrorism have been sponsored by the Republican Party and not only by the Bush Administration. Hamdan as a separation of powers decision in a period of united government is barely worth the paper it was printed on. Those us who believe in the principles of Hamdan also need to recognize that a great many Americans are so scared, they are willing to slaughter numerous innocents if there is the possibility of getting a terrorist among the bunch, so that due process seems a luxury we can no longer afford. Republicans play on this fear. Remove it, and the party collapses, but removing it is a political challenge of the highest order, one that cannot be accomplished with legalisms and the proper intepretation of the constitution or the holdings of Supreme Court decisions. Hamdan will mean very little if anything unless the Republican Party's stranglehold on the national government can be broken, and that stranglehold will be broken only if the left stops waiving the constitution simplitur (or asserts that future legal actors are bound by our interpretation of Hamdan), and actual persuades people the due process rights are not a luxury, that demonstrating respect for human rights is a crucial component in the war against terrorism.

Friday, June 30, 2006

Hamdan and the NSA dispute

JB

While Stevens' Hamdan opinion appears on its surface to be merely concerned with statutory interpretation, it effectively undermines the Administration's strongest claims about Presidential power. Justice Kennedy's concurrence makes the constitutional points more explicitly, and that is why, I predict, his concurrence will become as important as the majority opinion itself.

In particular, Hamdan undermines the Administration's arguments for the NSA's power to engage in domestic surveillance. As you may recall, the Administration offered two arguments for why it did not have to conform with the Foreign Intelligence Surveillance Act (FISA). The first is that the September 18th, 2001 Authorization of the Use of Military Force (AUMF) provided independent statutory authority to spy on citizens outside of the limits in FISA; the second was that FISA is unconstitutional to the extent that it limits the President's Article II powers as Commander-in-Chief to engage in wartime surveillance. (Note that FISA already has built-in exceptions for wartime which the NSA program does not comply with.)

Hamdan undermines both of these arguments. The President could-- and did-- argue that the AUMF gave him authority to establish military commissions any way he liked. Second, the President could argue that he had inherent authority under Article II to establish military commissions under whatever rules he chose and that to the extent that Congress limited his discretion it acted unconstitutionally. Therefore courts should construe all Congressional statutes (and the Geneva Conventions) to avoid clashing with the President's discretion.

The Court rejected both of these positions in Hamdan. It held that "Neither [the AUMF or the Detainee Treatment Act] expands the President's authority to convene military commissions. . . .[T]here is nothing in the text or legislative history of the AUMF even hinting that Congress intended to expand or alter the authorization set forth in Article 21 of the UCMJ. Cf. Yerger, 8 Wall., at 105 ("Repeals by implication are not favored")." "Together, the UCMJ, the AUMF, and the DTA at most acknowledge a general Presidential authority to convene military commissions in circumstances where justified under the `Constitution and laws,' including the law of war."

If the AUMF is silent about the issue of military commissions, it is equally silent about expanding Presidential power to engage in domestic surveillance. As before, repeals by implication are not favored. Instead, Hamdan suggests that there is Presidential power to engage in domestic surveillance within the scope afforded by Congress, i.e., within FISA itself.

Kennedy's concurrence is equally important on this point: "[T]he President has acted in a field with a history of congressional participation and regulation. . . .While these laws provide authority for certain forms of military courts, they also impose limitations, at least two of which control this case. If the President has exceeded these limits, this becomes a case of conflict between Presidential and congressional action-- a case within Justice Jackson's third category [where Presidential power is at its lowest ebb], not the second or first." The NSA program also occured in a field with a history of congressional participation and regulation, indeed, a field of congressional regulation that occured in response to a history of Presidential abuses of power. Kennedy's argument, based on Youngstown, is thus equally applicable to the NSA program: Where the President goes outside FISA, he is acting at the lowest ebb of his powers.

What about the President's inherent powers under Article II as Commander-in-Chief? Don't they override Congressional limitations? No, said the Court in Hamdan in a footnote: "Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 637 (1952) (Jackson, J., concurring). The Government does not argue otherwise."

Put another way, when we say that the President has inherent authority to do something, we don't mean that his authority is competely unchecked. Rather, we might mean only that as a default rule he can act on his own without Congressional authorization. That default rule is particularly important in cases of emergency. But if Congress enters the field under its various powers in Article I, section 8, the President must exercise his authority within the rules that Congress provides.

Thus, in 1978 Congress created a comprehensive statute to regulate domestic surveillance used to gather foreign intelligence, namely FISA. FISA specifies when the President may engage in surveillance of American citizens, and it provides for a brief exception at the beginning of war to give the President time to request additional authorization. The President's inherent authority to engage in surveillance incident to warfare does not trump FISA; rather, the default rule is that he may collect foreign intelligence as an natural incident of his powers as Commander-in-Chief if Congress does not act. But when Congress does act, he must work within the laws Congress provides.

To be sure, the Bush Administration might try to argue that the power to engage in foreign inteligence surveillance is importantly different from the power to try detainees by military commissions. The former, but not the latter is so centrally part of the President's core powers that Congress may not restrict it in any way. Therefore although it would be within Congress's "proper exercise of its own war powers" to limit military commissions, it would not be within the proper scope of Congress's powers to limit electronic surveillance of American citizens. But after Hamdan, I wouldn't bet on that particular proposition.

Georgetown Faculty Blog

JB

Georgetown Law School has now started its own faculty blog, with a very impressive list of participants, which you can find here.

Hamdan is a Big Deal Regardless of What Congress Does

Marty Lederman

A short response to my co-blogger Mark Graber:

Mark is not wrong about the uncertain nature of Hamdan's impact on the future of military commissions: That will, of course, depend on what Congress does with such commissions. In this respect, Hamdan could not have accomplished much beyond such a result -- indeed, the whole point of the legal challenge was to require the President to conform the commissions to the standards already prescribed by statute, and to insist that if new procedures are to be created, such a change must be effected by both political branches, in the ordinary democratic manner, rather than by Executive fiat. As Jack explains, that's no small thing!

But more importantly, I think Mark's equivocal reaction misses the forest for a tree -- a very important tree, to be sure, but a tree nonetheless. The exact same critique Mark offers could have been leveled at the Youngstown decision the day the Court issued it: The fate of industrial seizures for war purposes obviously depended, going forward, on what the Congress would do in response to the Steel Seizure opinion. And Congress might have even enacted a statute giving Truman exactly the authority he was asserting.

But even if Congress had done so -- i.e, had agreed with Vinson about the state of the emergency and given Truman everything he wished for -- Youngstown would be just as significant a fixture in the constitutional firmament as it is today. And I predict the same will be true for Hamdan.

That is to say, I think Hamdan will be remembered as a decision about military commissions to the same extent that Youngstown is recalled as a leading case about steel mills (or about just compensation). As I suggested in my earlier post, the Court's decision today is about much more than military commissions. Among the broader principles established are these:

-- That the President's powers are limited by statute and treaty, and he acts independently at his peril where such statutes and treaties are in the picture. (The Kennedy concurrence, in particular, is really quite devastating with respect to the Administration's Commander-in-Chief theories.);

-- That statutes should be construed, absent evidence to the contrary, to require the Executive branch to comply with the laws of war; and


-- That Common Article 3 applies to all armed conflicts, a holding of enormous implications, not least of which is with respect to the debate about torture and other interrogation techniques.

I think these major holdings will survive, no matter what Congress does with respect to commissions, and regardless of the Court's composition in the years to come. And that's why Walter Dellinger is onto something when he writes that "Hamdan is simply the most important decision on presidential power and the rule of law ever. Ever." That might be a bit of an exaggeration (Milligan? Nixon?) -- but maybe not: It's a close call. See also Linda Greenhouse: "A historic event, a defining moment in the ever-shifting balance of power among branches of government that ranked with the court's order to President Richard M. Nixon in 1974 to turn over the Watergate tapes, or with the court's rejection of President Harry S. Truman's seizing of the nation's steel mills, a 1952 landmark decision from which Justice Anthony M. Kennedy quoted at length."

Thursday, June 29, 2006

Hamdan As What We Make It

Mark Graber

Hamdan is a 5-3 decision that is for all practical purposes a 5-4 decision and one that puts the ball, at least temporarily in the legislative court. It is neither to be celebrated nor condemned until [sorry about typo in previous version] the future is clearer. On some futures, the main feature of Hamdan is sanitizing a vicious policy. On others, the decision might do serious good. Consider the following.

1. Hamdan history 1. Within the next year, one of the moderate 4 or Justice Kennedy leaves the Court and is replaced by a Samuel Alito clone. Hamdan is overruled or confined to cases involving chauffers. Politics continues in its present direction and the case is never heard from again.

2. Hamdan history 2--Congress produces a fairly vague statutory response. Bush claims power under that statute and is sustained either because Kennedy (or Breyer) thinks the statute sufficient or bacause Bush has had another judicial appointee, altering the balance of power (see history 1). The statute remains on the books for the foreseeable future, largely because Congress is uninterested in taking responsibility for much of anything.

3. Hamdan history 3--The Democrats win big, really big in 2006 and 2008, Congress passes a law sharply limiting military commissions, President H. Clinton gets four judicial appointees in her first term (replacing Kennedy, Scalia, Stevens, and Roberts) , and those appointees share Marty's interpretation and enthusiasm for Hamdan. While the Democrats lose control of the White House in 2012, Congress remains committed to controlling military tribunals and the Supreme Court remains committed to Congressional power.

4. Hamdan history 4. Same as in 2, only in 2112, something like 3 occurs. When asked to justify this assertion of legislative and judicial power, the Speaker of the House and Chief Justice cite Hamdan. We could tell a similar story about Marbury.

In short, Hamdan is the sort of decision that is likely to depend a great deal on the future course of American politics. On some versions (versions I suspect are fairly likely), Hamdan will not matter much. On other versions, versions I would prefer, the decision may prove very important.

The main lesson may be that those of us who hope for 3, should recognize that the court can only do a little work for us, that Hamdan is only likely to become a landmark case if people are elected who want Hamdan to be a landmark case.

Legislative Supremacy, The Laws of War, and the Geneva Holding

Marty Lederman

Crossposted from SCOTUSBlog

As I indicated here, the holding that the military commissions are unlawful -- although of enormous significance -- is hardly the most important holding of the Court today in Hamdan. At least three other holdings are likely of greater lasting significance:

1. That the President's conduct is subject to the limitations of statute and treaty (see, e.g., footnote 23, and the Kennedy and Breyer excerpts that Orin Kerr quotes).

2. That Congress's enactments are best construed to require compliance with the international laws of armed conflict, absent contrary legislative direction.

3. That Common Article 3 of Geneva aplies as a matter of treaty obligation to the conflict against Al Qaeda. (See also the AMK concurrence: "The provision is part of a treaty the United States has ratified and thus accepted as binding law. By Act of Congress, moreover, violations of Common Article 3 are considered 'war crimes,' punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U. S. C. § 2441.") This ruling has enormous implications for the Administration's detention and interrogation practices, because the Administration's legal conclusion that CA3 does not apply, and that we will not apply it as a matter of practice, was the key linchpin to the entire edifice of legal maneuvers that led to waterboarding, hypothermia, degradation, etc. See my post here. Per today's decision, the Administration appears to have been engaged in war crimes, which are subejct to the death penalty. Although I don't think due process would allow prosecution based on conduct previously undertaken on OLC's advice that CA3 did not apply (after all, the Chief Justice concluded, in the D.C. Circuit, that CA3 did not apply), practices going forward are bound to change, and quick. (I'm sure the memos are being drafted and distributed in the CIA and DOD even as we "speak.")

Contrary to several blogs I've read, the Court did not hold that all of the protections of the Geneva Conventions apply to suspected Al Qaeda detainees, or that they are entitled to all of the protections of POWs. It held "merely" that the minimum baseline protections of Common Article 3 are binding -- which is a floor far, far higher than the practices of this Administration.

See more from Jack Balkin here.

Hamdan as a Democracy-Forcing Decision

JB

The key to understanding Hamdan is that the Court did not tell the President that he could under no circumstances create military tribunals with very limited procedural guarantees (in this case, without any right to know what the charges are or the right to know what evidence is being used against you). Rather, the Court told the President that under Article 36 of the Uniform Code of Military Justice (UCMJ) and Common Article 3 of the Geneva Conventions, he could not do so. That is because Article 36 of the UCMJ requires that the rules for military commissions be roughly the same as those for courts martial (which generally are used for offenses committed by our own soldiers). The UCMJ also requires that military commissions comport with the laws of war, which include the Geneva Conventions. Article 3 of the Geneva Conventions, in turn, requires that people like Hamdan be tried by "regularly constituted court[s] affording all the judicial guarantees . . . recognized as indispensable by civilized peoples." As Justice Kennedy's concurrence points out, the latter requirement dovetails to some degree with the UCMJ's requirement of uniformity between what we do for our own soldiers and what we do for people like Hamdan. The courts have to be regularly constituted, i.e., they can't be special purpose fly-by-night courts with their own made up procedures, and the procedures have to comport with basic guarantees of fairness, as, one presumes, our court martial system does.

The reason why the President is bound by these requirements is because Congress passed the UCMJ and because the UCMJ uses the laws of war-- which include the Geneva Conventions-- as a benchmark for procedures in military commissions. So when Congress acts under its constitutional authority to regulate military justice, as it has throughout the country's history, the President must abide by those regulations. Presumably, then, the Court has rejected the Article-II-on-steroids theory that John Yoo and others have offered-- that Congress may never interfere with the President's views about how best to run the military (even and including Presidential decisions to torture detainees, which was the subject of the infamous OLC torture memo). Hamdan holds that the President may not disregard the UMCJ even if it limits his discretion regarding how to deal with persons captured on the battlefield.

But note: If Congress decides to alter the UCMJ and override the Geneva Conventions, the President can have his military tribunals with procedures as unfair as he wants. But that would require that Congress publicly decide (1) that it no longer wanted to abide by the principle of uniformity announced in the UCMJ, (2) that it no longer required that military commissions abide by the laws of war, or, finally, (3) that Congress no longer considered the Geneva Conventions binding on the United States. Taking any of those steps is possible-- particularly the first two-- but doing so requires that Congress make a public statement to this effect and pass new legislation. The President, in turn, can withdraw the United States from the Geneva Conventions, but for political and military reasons alike, there is almost no chance that he would do that.

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way. It is possible, of course, that with a Congress controlled by the Republicans, the President might get everything he wants. However this might be quite unpopular given the negative publicity currently swirling around our detention facilities at Guantanamo Bay. By forcing the President to ask for authorization, the Court does two things. First, it insists that both branches be on board with what the President wants to do. Second, it requires the President to ask for authority when passions have cooled somewhat, as opposed to right after 9/11, when Congress would likely have given him almost anything (except authorization for his NSA surveillance program, but let's not go there!). Third, by requiring the President to go to Congress for authorization, it gives Congress an opportunity and an excuse for oversight, something which it has heretofore been rather loathe to do on its own motion.

I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching. Given this Administration's history, that's not necessarily a bad thing.

Hamdan Decided-- Geneva Conventions Not So "Quaint" After All

JB

The Supreme Court decided today that the Bush Administration lacked authority to set up military tribunals for the Guantanamo detainees, and that the tribunals also violated both applicable military law and the Geneva Conventions.

Justice Stevens wrote the main opinion, joined by Justices Souter, Ginsburg, and Breyer, and joined in part by Justice Kennedy, who wrote separately. Chief Justice Roberts, who joined in the opinion of the D.C. Circuit below, recused himself. Justices Scalia, Thomas, and Alito each wrote dissenting opinions.

As Marty notes over on SCOTUSBlog, the big news is that the Court has now held that Common Article 3 of the Geneva Conventions are judicially enforceable and binding on the President. That provision of the Geneva Conventions also bans cruel treatment and torture. The Supreme Court has decided that the Geneva Conventions aren't so quaint after all.


Wednesday, June 28, 2006

Flag Desecration Through the Zodiac

Marty Lederman

What a public service! The Washington Post leaves no stone unturned. (Click on "By Astrological Sign.") Proving once again just how fundamentally incompatible Scorpios and Capricorns truly are.

UPDATE: Okay, this is really spooky: In the vote in the House of Representatives, it was again the Capricorns most likely to vote for the constitutional amendment (tied with Aquarians, actually), and the Scorpios who were most likely to vote against! Coincidence? You be the judge . . . .

(Thanks to Katherine for running this down . . . .)

Monday, June 26, 2006

The Administration That Cried Wolf

JB

The Bush Administration is quite upset with newspaper reports that it is spying on people's financial records, arguing that revelation of the secret surveillance program undermines our struggle against global terror. In the abstract, at least, the Administration has a point. The difficulty is that the Administration so often leaks sensitive information for political purposes that we can no longer be sure when we should really be concerned. Because the Administration is so transparently political in its behavior, it's hard to take all of its claims of severe damage to our national interests at face value.

First, the government often leaks information that it would condemn the press for leaking if the information came from another source or without the Administration's blessing. The most obvious example is the infamous Plame affair, where an Administration official disclosed the name of an operative with a covert identity. One can only imagine the Administration's reaction had the press reported this information against the Administration's wishes. And just the other day, government sources leaked-- to the New York Times!-- information from a classified briefing about plans to scale down U.S. forces in Iraq. The Administration quickly confirmed the disclosure, so quickly in fact, that there is little doubt that the Administration was happy that the news leaked out. After all, the leak sent signals to the American people that we would not be in Iraq forever, and that is a point particularly worth making as the 2006 elections near. Yet one would think that secret military plans for withdrawal of American troops are exactly the sort of information that our opponents in the Iraqi insurgency would like to know about. And yet, unlike the disclosure of the secret banking surveillance program, the Administration did not suggest that *this* leak to the New York Times was "disgraceful," to use President Bush's words. And unlike the financial records story, no Congressman, to my knowledge has demanded that the New York Times be prosecuted for it. One can only conclude that is because the Administration figured that leak of possible troop withdrawals benefited the Administration's domestic political agenda.

Second, even the way that the Administration deals with leaks it clearly does not support is transparently political. In the past year newspapers have revealed a great deal of controversial Administration behavior, including (1) the secret NSA domestic surveillance program, (2) the secret collection and collation of domestic phone records, (3) secret surveillance of financial records, (4) the Administration's constellation of secret overseas prisons which engage in cruel, inhuman and degrading treatment and (5) the Administration's practice of secret rendition to countries that abuse and torture prisoners. In cases (4) and (5) the Administration has denied the practice despite considerable evidence to the contrary; in the cases of (1), (2), and (3) it has quickly admitted the practice and then proceeded to condemn the press for revealing it.

The major difference between the two sets of cases has largely to do with whether the Administration believes that there is any political advantage in fessing up and then blaming the press. Thus, it calculates that Americans will be happy to hear that it is engaging in surveillance that keeps them safe, but that Americans don't want to know that their government tortures or sends people off to be tortured. It regards the NSA program as a political winner but the torture revelations as a political loser, and so it says that it is proud of its "terrorist surveillance program" but repeatedly states that it does not torture or condone torture, despite mounting evidence to the contrary. But its decision about what to confess to and what to deny has almost no relationship to national security. It is, rather, about domestic political advantage.

Make no mistake: there are plenty of things that the press should not report, even in a free society such as ours. But we also live in a society in which the Executive has concentrated increasing amounts of power in itself and has used executive secrecy and national security as means of avoiding oversight into the competence and the legality of its actions. This Administration has misbehaved and misled the country so often that it is hard to avoid the conclusion that now it is mostly trying to beat up on the one remaining institution that can bring any degree of oversight to bear on its mistakes and its illegality-- the press. After all, had the press not disclosed the domestic surveillance story and the abuse of prisoners and detainees, it is highly unlikely that the Congress would have made even the feeble attempts oversight it has so far offered. In a political climate with a supine and feckless Congress the press is the only institution that has any chance of holding this Administration accountable for what it has done.

The Administration has misled the American people so often about matters of national security that it is hard to trust it even and especially when it complains the most loudly; it has repeatedly disclosed secret information for political ends unrelated to national security, while employing the rhetoric of national security to avoid political embarrassment. If people now view the Administration's current complaints against the press with skepticism, it has no one but itself to blame. This is truly the Administration that cried wolf.


Sunday, June 25, 2006

Detention for Dangerous Speech?

JB

In his discussion of the Administration's policies of detention at Guantanamo Bay, Eric Posner offers a far broader defense of detaining people without the criminal procedure protections of the Bill of Rights in a wide range of different circumstances. Posner's main thesis is controversial enough. But in the middle, he offers the following rather surprising statements about the First Amendment:
Throughout American history, states and the federal government have criminalized speech that advocates the violent overthrow of the United States government and other subversive activities. These laws, which long survived judicial scrutiny, authorized criminal punishment of people who were dangerous but hadn't actually caused harm.

Although in 1969 the Supreme Court held that under the First Amendment governments can ban only speech that would cause "imminent" harm-- like incitement to riot-- it remains an open question whether this standard is workable in an age of global terrorism exemplified by the Sept. 11 attacks. Less restrictive tests applied in earlier cases could be resurrected if the United States created a similar statute to counter the modern wave of terrorism.


Whatever one may say about the wisdom of Posner's argument for expanding civil commitment because of the War on Terror, is he seriously suggesting that the government may arrest and detain people if they advocate things that the government deems dangerous, whether or not their speech threatens serious imminent harm? Posner seems to suggest that the question remains open, and the general tenor of his remarks suggests that it might even be a good thing if we retreated to earlier doctrines because of the global war on terror, and imprisoned "subversives" simply because their speech made them dangerous.

But there is a good reason why our free speech doctrine has developed the way it has: if the government is not required to prove that subversive speech imposes a danger of imminent and serious harm, government will tend to use its power to punish people it deems subversive for political reasons. Government will tend to punish people it deems "subversives" not because they pose a real danger but in order to squelch dissent or to find easy scapegoats to punish. For example, the Wilson Administration arrested and imprisoned Eugene V. Debs for making an anti-war speech. Debs' conviction was upheld by the Supreme Court (in an opinion by Justice Holmes) using the older doctrines that Posner refers to. If Posner is suggesting that we return to the speech restrictive doctrines of World War I and the McCarthy Era, this is one reform that we can do quite well without.


Thursday, June 22, 2006

A Compendium of Presidential Signing Statements

JB

Joyce A. Green, an attorney in Virginia, has created links to all of the Bush Administration's presidential signing statements.

Why Close GTMO?

Marty Lederman

I realize that this will be viewed as apostasy in some circles, but I must confess I remain very dubious of the increasingly frequent calls to close the base at Guantanamo.

Regularize the procedures there? Of course. Apply the laws of armed conflict, including Common Article 3 of Geneva? Yes. Implement and apply a much more tailored and specific definition of "enemy combatant"? Absolutely. Increase transparency? You bet.

But close GTMO? And do . . . what, exactly, with the detainees? Indeed, wouldn't it be better if all suspected Al Qaeda and Taliban detainees -- e.g., those at Bagram, and at "black sites" -- were transferred to GTMO, where there is more legal process and greater judicial oversight (at least as a practical matter)?

Today's Washington Post gets it pretty much right, I think, in suggesting that GTMO should be closed only when we are prepared to house all of the detainees in domestic facilities:

The military detention camp at Guantanamo Bay, Cuba, has become the focus of global protests against U.S. human rights violations during the war on terrorism. Images of the hooded, jumpsuited prisoners who were brought there in 2002 still pervade the world's media; so do lurid accounts by former inmates alleging abusive treatment, and reports of recent suicides and hunger strikes. Calls to close the facility and release or try its 460 foreign detainees are steadily mounting -- they come now from close allies such as Britain and Germany, from the United Nations Committee Against Torture, and from every major human rights group. Reluctantly, we have to agree: Guantanamo will have to be shuttered. But before coming to that, it's worth pointing out that the international campaign against the camp is more than a little perverse.

The illogic begins with the fact that Guantanamo now is, by far, the most comfortable and legally accountable detention facility maintained by the United States for foreign prisoners. Conditions there were crude in 2002, but since then one state-of-the art detention facility, modeled on a prison in Indiana, has been built, and a second is under construction. Guantanamo's detainees have recreation facilities and good medical care; their continued detention is reviewed once a year by military boards, and prisoners are assigned advocates to help argue their cases. Pending a decision by the Supreme Court, they are also able to appeal their detentions to U.S. federal courts, and many have U.S. civilian lawyers.

In contrast, some 500 detainees held by the United States at the Bagram prison in Afghanistan live in far harsher conditions and have fewer rights. They do not have their own advocates, and none has been able to appeal to U.S. courts. No American lawyers are available to broadcast any complaints they have about poor treatment; in fact, alarmingly little is known about what goes on inside the prison's walls. And Bagram's inmates are better off than the prisoners -- believed to number in the dozens -- held in secret CIA facilities. They have effectively disappeared, like the victims of a Third World dictatorship; they have never been registered with the International Red Cross, provided with a legal review of their cases or allowed to communicate with the outside world. From leaks to the media, we know that some have been tortured with techniques such as "waterboarding," or simulated drowning.

So the United States' treatment of its foreign detainees would improve enormously if all the prisoners it holds were transferred to Guantanamo. But -- and here is another fact ignored in the global anti-American din -- the Bush administration is already engaged in a concerted effort to close the prison or at least reduce its population to a minimum. No new prisoners have been brought there since September 2004, and scores have been transferred to their native countries. A quarter of the remaining population will be returned to Afghanistan once a new prison there is constructed and guards are trained, within the next year; a substantial number may be charged with crimes once the Supreme Court rules on the military's proposed system of justice. The remaining prisoners -- mostly from Yemen and Saudi Arabia -- haven't gone home mainly because U.S. officials worry they will be abused or released without adequate monitoring.

Some of those who demand that Guantanamo be closed insist that all its detainees either be tried or quickly freed. This is wrongheaded and, for some Europeans, hypocritical. In fighting their own wars against terrorists, Britain and other countries have relied on preventive detention to hold dangerous militants who cannot immediately be charged. The German chancellor, Angela Merkel, has publicly acknowledged that existing legal categories for detention don't necessarily address the problem of stateless extremists who may be planning major attacks but haven't yet committed a specific crime. That doesn't mean that the current system of detention in Guantanamo is acceptable. But, as we argued in a previous editorial, the United States needs a way to hold some suspects without charge for a limited period under procedures regulated by law and U.S. courts.

Once that regime is established, it will be possible to hold detainees from the war on terrorism in many U.S. prisons. In our view, Guantanamo should not be one of them, because it has become a symbol of abuses with which the United States needs to make a clean break. But the most urgent concerns of those pressing the Bush administration ought to be the closure of the CIA's secret facilities and the conversion of Bagram into an Afghan-only facility operated by the Afghan government. Foreign prisoners held by the United States, wherever they may be, should receive Red Cross visits; their detention should be governed by law, with the right of review and appeal to independent judges. Their interrogation should be conducted according to a single set of rules consistent with the Geneva Conventions and the Convention Against Torture. And they should be tried according to a system of justice that closely resembles the current court martial system.

It is the pursuit of these reforms, rather than the simple closure of Guantanamo, that ought to be the focus of those who seek to address U.S. violations of human rights.