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.
Posted 9:43 PM by Mark Graber [link] (4) comments

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.
Posted 3:44 PM by Marty Lederman [link] (6) comments

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.

Posted 1:07 PM by JB [link] (470) comments

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.

Posted 10:16 AM by JB [link] (5) comments

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 . . . .)
Posted 1:43 AM by Marty Lederman [link] (24) comments

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.

Posted 8:42 PM by JB [link] (38) comments

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.

Posted 10:45 PM by JB [link] (18) comments

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.

• text of signing statements unannotated
  
• text of signing statements annotated
  
• index of all signing statements
  

Posted 5:31 PM by JB [link] (0) comments

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.

Posted 8:43 AM by Marty Lederman [link] (14) comments

Awards to Brian Tamahana and Ian Ayres

JB

I'm very pleased to announce that Brian Tamanaha has won the Inaugural Dennis Leslie Mahoney Prize in Legal Theory in honor of his book A General Jurisprudence of Law and Society (Oxford University Press, 2001). According to the official announcement "[t]he prize, to be awarded every five years, will go to the author or authors of an outstanding published work in the field of jurisprudence which best reflects an approach combining legal theory with sociological inquiry, in the tradition of the jurisprudence of the late Professor Julius Stone. Stone’s approach, expounded in his seminal work of 1946, The Province and Function of Law and in many other works throughout his life, sought to demonstrate that the law inexorably responds and changes as society changes."

And while I'm at it, I should remind folks that another fellow blogger, Ian Ayres, has recently been elected into the American Academy of Arts and Sciences.

Congratulations!

Posted 8:17 AM by JB [link] (0) comments

US Foreign Policy: From Anything Is Better Than Communist, To Anything Is Better Than Islamic

Brian Tamanaha

The recent military victory by Islamic militiamen in Mogadishu over Somali warlords reportedly "caught Washington and the world by surprise." A report by Marc Lacey in the New York Times yesterday offers the following appraisal of the uncertain situation in the aftermath of the victory:

With the old warlords gone, Mogadishu is safer, and more dangerous, too. It is a happier place, and a more oppressive one. It is a capital city that is also a rundown shantytown, churning with change....

In the old Mogadishu, militiamen would barge into a home and haul a girl or woman away and rape her. Bullets rang out routinely, and gunmen set up roadblocks and charged taxes on anybody who happened by.

Fewer guns are visible now. The man-made roadblocks have disappeared, leaving livestock and huge craters as the main obstructions to navigation. But a new, more silent battle us under way, for control of the Islamic movement in Somalia.

By all accounts, the situation in Mogadishu under the warlords was terrible for the people of the city: more than a decade of unrelenting insecurity, violence and pockets of anarchy. One would think, therefore, that we would rejoice in the victory of Islamic forces.

It is thus surprising to learn, as documented in this report, that the US government provided financial and other forms of support to the warlords against the Islamic forces, over the opposition of officials in the UN and the government of Somalia. Some of this support went to the very same warlords who attacked US and UN troops in Mogadishu in the 1990s. Our apparent reason for supporting the warlords is the fear that an Islamic-run city will provide a haven for terrorists (notwithstanding explicit denials of this by the Islamic forces involved in the takeover).

So let's get this straight: our government supported warlords--who created anarchy and brutalized their own people--owing to the fear that an Islamic takeover--which would bring peace to the city--might provide a training ground for terrorists. Granted, it is not yet clear what shape the Islamic-run city will take, but it is absolutely clear that the previous situation was horrendous and intolerable for its people.

Never mind the dubious morality of choosing to sacrifice the lives of the residents of Mogadishu in this manner for our own speculative, distant benefit; never mind the dubious morality of providing support for warlords who killed our troops a decade ago. Moral considerations such as these apparently don't carry much weight with the realpolitik crowd.

Let's instead ask a realpolitik question. In the long run, what has the greater potential to facilitate terrorism: a generation of ruined and hopeless lives, and a city of perpetual disorder and insecurity, or a peaceful Islamic society?

Our government's policy in this matter brings to mind the old cold war days, when we formed alliances with right-wing dictators in the belief that they were preferable to socialist or communist governments. The cost of that policy, in terms of lives lost and damage to the reputation of the US, is still being tallied. Is the current view of our government that anything (even anarchy) is better than an Islamic government?
Posted 12:12 PM by Brian Tamanaha [link] (12) comments

How Torture Works

JB

From a Washington Post review of Suskind's new book:

"I said [Abu Zubaydah] was important," Bush reportedly told Tenet at one of their daily meetings. "You're not going to let me lose face on this, are you?" "No sir, Mr. President," Tenet replied. Bush "was fixated on how to get Zubaydah to tell us the truth," Suskind writes, and he asked one briefer, "Do some of these harsh methods really work?" Interrogators did their best to find out, Suskind reports. They strapped Abu Zubaydah to a water-board, which reproduces the agony of drowning. They threatened him with certain death. They withheld medication. They bombarded him with deafening noise and harsh lights, depriving him of sleep. Under that duress, he began to speak of plots of every variety -- against shopping malls, banks, supermarkets, water systems, nuclear plants, apartment buildings, the Brooklyn Bridge, the Statue of Liberty. With each new tale, "thousands of uniformed men and women raced in a panic to each . . . target." And so, Suskind writes, "the United States would torture a mentally disturbed man and then leap, screaming, at every word he uttered."

And for this we shredded our Constitution.

Torture works all right. It's very effective at what it does. It undermines our credibility. It stains our image in the world. It corrupts our officials. It barbarizes our soldiers. It evicerates our commitment to human rights and the rule of law.

The only thing it doesn't do is keep us safe.

Posted 8:17 AM by JB [link] (23) comments

The Public Private "Handshake" and the National Surveillance State

JB

This Washington Post article describes an important but relatively little noticed feature of the emerging national surveillance state. When people think of government surveillance, they often think of the government spying on them or collecting information about them. But the government need not do this directly. Instead of directly spying on American citizens and/or collecting information about them, the government can simply purchase large databases from private companies, who in turn purchase it from a host of other private companies. There is in fact a huge industry in private data collection with companies whose primary customer is the government; as the Washington Post article details, many of these public/private contracts are classified. The information is then collated by private contractors and presented to the government, which combines it and collates it with other information already in its possession and analyzes it further. Personal information by itself can be innocuous but when combined with other information about a person (and about other persons judged to be similar) it can help create a relatively rich profile of a person's activities, preferences and tendencies.

This form of public-private cooperation (or in many cases public purchase of information from private sources) allows the government to do an end-run around the Fourth Amendment's prohibitions on invasion of privacy. The reason is that the state is not doing the data collection; it is only purchasing information already collected and collating the results with other information it possesses. As the article explains, this information can be used for far more than protecting national security; it can be used for ordinary law enforcement, or even to find teenagers who would be most willing to join the military. Once the information is available to the government for purchase and collation, and absent privacy laws prohibiting its use, there is no particular reason for government not to use data mining for as many different policy purposes as possible. If the government thinks it would be useful to know the preferences, tastes, habits and tendencies of its citizens for any reason of governance, it will eventually attempt to find out and make use of the information if it can do so at reasonable cost, unless the law prevents it. And the digital revolution, of course, makes it increasingly possible (and relatively inexpensive) to do so.

These relationships between private data collection companies and the government have become a central albeit unacknowledged tool of governance in the emerging National Surveillance State. As with all governance, this tool can be used for good or for ill, used wisely in the public interest or abused. The Constitution as currently understood places few limits on this form of governance; the major protections will have to be statutory and administrative and technological. The key goal of such protections will not necessarily be to prevent data collection and collation, but to limit its uses, and to trace and keep tabs on how the information is flowing, how it is being used, who is using it for what purpose.

Put another way, when collection and collation become major techniques of governance, we will need methods of accountability for these practices. And that means that contracts and practices that are currently classified and kept out of the public eye will have to be subjected to some form of scrutiny and accountability, either by the public or by some independent agency. Otherwise the National Surveillance State, like all well meaning forms of governance, will swallow up our liberties in the name of serving the public interest and getting the job done.

Posted 4:41 PM by JB [link] (6) comments

The Democrats' Family Values

JB

This New York Times article suggests that Senator Hillary Clinton has begun to strike the right tone on the abortion question.

"Let us unite around a common goal of reducing the amount of abortions," she said, "not by making them illegal as many are attempting to do or overturning Roe v. Wade and undermining the constitutional protections that decision provided, but by preventing unintended pregnancies in the first place through education, contraception, accessible health care and services, empowering women to make decisions."

Mrs. Clinton, a potential candidate for the presidency, also used her speech to take a jab at Republicans who, while adamantly opposed to abortion, have resisted efforts to pay for programs providing greater access to contraception and other family planning services.

Specifically, Mrs. Clinton criticized the Bush administration for failing to provide adequate money for family planning programs, as well as for refusing to approve over-the-counter sales of Plan B, an emergency contraceptive.

Despite what one might gather from media coverage, the pro-life movement is hardly monolithic. Some people opposed to abortion are also opposed to contraception, either because they believe that contraception by itself is prohibited by their religion or because they believe that easy access to contraception encourages premarital sex. But many people who oppose abortion on moral grounds do not oppose contraception.

Focusing on preventing unwanted pregnancies through family planning can help forge a new coalition of liberal and moderate voters who want sensible policies that will reduce unwanted pregnancies, and particularly unwanted teenage pregnancies. Doing this will help avoid not only the severe personal burdens that these women and their children will face but also the larger social problems that are exacerbated by the plight of impoverished single mothers.

But Democrats should do even more than focus on contraception. They should take the opportunity to connect family planning with a more general commitment to family values and sound family policies that assist women who choose not to have abortions, both during their pregnancies and after their children are born. That means pushing for government policies that can help prospective mothers with pre-natal care, with nutrition, with affordable child care once their children are born, and with affordable health insurance. Focusing on issues like these can help pro-choice Democrats make common cause with important elements of the pro-life movement whose voices are not always heard in the mass media. There are many many people in the pro-life movement who not only wish to prevent abortions, but who are sincerely interested in the welfare of mothers and their children, and support a variety of social programs to help them. Some of these pro-life people also agree with pro-choice Democrats on family planning and contraception, while others do not. Nevertheless, pro-choice Democrats should reach out to both of these parts of the pro-life movement.

Although the debate portrayed in the media seems to feature irrevocably polarized and entrenched positions, there are actually substantial areas of common ground in family policy if we move beyond the limited focus on whether to overturn Roe v. Wade and allow states to criminalize abortion procedures. Enlarging our focus, and thinking about family policy in all its various aspects, is the way forward in the future.

Posted 9:33 PM by JB [link] (10) comments

I Could Tell You Why What I'm Doing Is Legal But Then I'd Have To Shoot You

JB

Today the United States government took the position that its domestic surveillance program is beyond legal review and that even to hold the program to the basic rudiments of the rule of law-- that is, a hearing to determine whether the program violates the law-- would itself be illegal. From the New York Times:

[A]ddressing Judge Anna Diggs Taylor of the Federal District Court, [a government lawyer stated that] "the evidence we need to demonstrate to you that [the NSA program is] lawful cannot be disclosed without that process itself causing grave harm to United States national security."

The only solution to this impasse, the lawyer, Anthony J. Coppolino, said, was for Judge Taylor to dismiss the lawsuit before her, an American Civil Liberties Union challenge to the eavesdropping program, under the state secrets privilege. The privilege can limit and even extinguish cases that would reveal national security information, and it is fast becoming one of the Justice Department's favorite tools in defending court challenges to its efforts to combat terrorism.
. . . .

The government's main argument today, repeated numerous times, was that more facts are required in the case but that more facts cannot be disclosed. Judge Taylor asked few questions but at one point appeared frustrated by this approach.

"You have conceded, have you not, that a program has been authorized?" she asked Mr. Coppolino. He responded that the administration's public defense of the program has been too general to serve as the basis for judicial adjudication. "There is very much a difference," Mr. Coppolino said, "between the existence of an activity and the details of that activity."

Even portions of the government's brief that were said to demonstrate why further information about the program cannot be disclosed have not been filed in court. Instead, the government "lodged" the brief and other classified papers at the Justice Department in Washington, inviting Judge Taylor to make arrangements to see them. At today's hearing, she shook her head no when Mr. Coppolino asked her whether she had "had a chance to review our classified submission."

If the issue were not so grave, the government's arguments would simply be farcical. If the federal judiciary accepts the government's argument to dismiss the case without requiring the government to make somewhat finer grained distinctions about what it can and cannot disclose, it might as well close up shop. The state secrets privilege normally allows the government to refuse to disclose certain information within an ongoing litigation in the interests of national security. Now the Administration is trying to use the privilege to prevent litigation entirely, and, in particular, litigation that accuses the Executive of illegal and unconstitutional activity. Letting the government march into court and shut down inquiries into its possibly illegal actions on its mere say-so creates the worst of bad incentives. If the government can do so in this case, it can and will do the same thing whenever the legality of its actions is challenged in the future, and then we will be well down the road to the destruction of our constitutional system of checks and balances. What is at stake in this case is the principle that the Executive, like all other government servants, is subject to the rule of law.

I do not mean to suggest that the state secrets privilege should not exist or that it does not have considerable value. Rather, the claim is that the government must do more than simply assert the privilege. The burden should rest on the government to make a fair showing about what elements it can and cannot disclose, and it should be required to assert the privilege in the way that is least destructive of the orderly determination of legal claims. This is especially so when the legality of the government's own actions is at issue. Courts should be reluctant to allow the privilege to quash lawsuits entirely unless there is no practical alternative; the better course is to limit the disclosure of particular types of information, hold in camera hearings, and use other devices to allow the ordinary course of legal proceedings to continue. What the government is doing here is short circuiting that careful balancing of interests. It is trying to stonewall the investigation.

Moreover, the government's demand that Judge Taylor drop everything and fly to Washington to read a secret legal brief is a fairly transparent attempt to impede the procedings. The government transports secret information and sensitive objects all the time. The notion that it cannot transport a file from Washington to Detroit without risking national security is little short of ludicrous. The government will have to do better than this if it wants people to take its claims seriously.

At some point in the process, the court may decide that certain details of the government's program may not be disclosed and it may uphold the state secrets privilege with respect to some elements of the government's program. But that is a far cry from what the government is asking now. The state secrets privilege does not mean and was never intended to mean that the government need do nothing to defend itself other than tell the court that it is the government and therefore it cannot be questioned about its actions.

Posted 4:05 PM by JB [link] (10) comments

An Asymmetrical Assault on Reality

David Luban

Three Guantanamo inmates hanged themselves on Saturday. Could it be that holding people for years in a limbo of rightlessness, telling them that they may be prisoners until the end of the war on terror, which has no end, and reminding them that their future does not exist, might drive them to suicide?

Absolutely not, according to the Guantanamo commandant, Rear Admiral Harry B. Harris, Jr. No American needs to suffer a single pang of conscience or a single moment of doubt about the endless detentions at Guantanamo. Don’t think of these as suicides, Harris tells us. Think of them as brutal attacks, sort of small-scale 9/11s. “They are smart, they are creative, they are committed,” Admiral Harris said. “They have no regard for life, neither ours nor their own. I believe this was not an act of desperation, but an act of asymmetrical warfare waged against us.” (Other U.S. officials dismissed the suicides as a "PR stunt".)

Those fiends in Al Qaeda, is there any atrocity to which they won’t stoop? Today we learn that they actually hid from their guards to commit suicide. The perfidiousness of their ruthless attack boggles the mind of decent Americans. They have taken advantage of our good-hearted, trusting nature and hit us below the belt by killing themselves.

Not only that: the New York Times reports that General Bantz J. Craddock, the Southcom commander, thinks the suicides “may have been timed to affect the Supreme Court decision in the Hamdan case” about the legality of military commissions. “This may be an attempt to influence the judicial proceedings in that perspective.”

Eureka! Now we can see the full depths of their plan. Recall the important warning in the Pentagon’s National Defense Strategy document: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” ‘Strategy of the weak’ is another term for asymmetric warfare. The idea is that the terrorists will ruthlessly manipulate law and public opinion to tie down the American Gulliver with a Lilliputian’s net of rulings and regulations. You might think that there is a difference between, say, protesting before the U.N.’s Committee Against Torture, litigating in the Supreme Court, and blowing up innocent civilians. Or between blowing up innocent civilians and hanging yourself in jail. But it’s just not true. They are alternative faces of the same evil, and we have to be on our guard against all of them.

The argument is this. Nobody can prevail against the United States on the battlefield. So they have to prevail against the United States off the battlefield, by swaying U.S. public opinion, inciting hatred or contempt for the United States around the world, or even getting our own courts – packed, of course, with liberal activist judges – to tie the hands of our military. (As Rambo asked, “Are they going to let us win this time?” Not if the lawyers and judges have their way!)

It follows that anything that either makes us look bad, or sways our judges to administer the stab in the back on the home front, is a weapon of the weak. Jailhouse suicides make us look bad – and the three men who killed themselves were hardened Al Qaeda types. Ergo, it was an attack on our forces using a weapon of the weak. Don’t think they killed themselves because they were unhappy about their potential life sentences without charges or a trial. They weren’t unhappy, only strategic and ruthless.

So, instead of national shame, Harris and Craddock give us national shamelessness.

You might think that their paranoid world view is confined to the true believers who write stuff like the National Defense Strategy or, like Admiral Harris, parrot its line. Would that it were so. Unfortunately, the same way of thinking has begun to enter our jurisprudence. Remember Judge David Trager’s opinion dismissing claims by Maher Arar, who was kidnapped by U.S. authorities and rendered to Syria for torture. According to Trager, allowing Arar to pursue his claims in court might reveal information that would make us or our allies look bad, and that would undermine national security. As I observed here, the principle seems to be that anything that makes us look bad undermines national security, and therefore the worse our conduct, the more it has to be insulated from accountability. And just last month, Judge T.S. Ellis III threw Khaled el-Masri’s case against U.S. officials out of court because his lawsuit – based on his kidnapping, rendition, and imprisonment – might reveal state secrets and therefore damage national security. The state secrets it might have revealed are, of course, details about outrageous U.S. government conduct. The logic is impeccable. Public knowledge of outrageous U.S. conduct might provoke a backlash that could make the U.S. halt the conduct. That’s the strategy of the weak. They can’t beat us on the battlefield, so they hope to resort to the ultimate evil action: publicizing what we do.

Of course, there might be another way to look at it. If I may enlist the help of a philosophical heavyweight, I will quote Immanuel Kant (in Perpetual Peace): “All actions relating to the right of other men are unjust if their maxim is not consistent with publicity.” As Kant explains, “if I cannot publicly avow it without inevitably exciting universal opposition to my project, the necessary and universal opposition which can be foreseen a priori is due only to the injustice with which the maxim threatens everyone.” If it can’t be publicized, it can’t be just.

Well, Kant is not exactly the favorite philosopher of the Bush administration and its supporters. Robert Kagan, whose book Of Paradise and Power beautifully articulates the philosophy underlying the National Defense Strategy, sneers at Europeans for wishing to use international fora and judicial processes to create a “Kantian paradise” – tying down the U.S. with the imaginary fetters of law and morality. If the Pentagon had to choose a different European philosopher, it would evidently be Nietzsche, who argued in On the Genealogy of Morals that morality is simply the subtle device of the weak to master the strong.

But the Bush administration is not big on European philosophers. So perhaps we can develop the philosophy in purely Bushian terms. To highlight its logic, I will present it in mathematical form, the way that Spinoza presented his ethics:

Axiom 1: We are good people.
Axiom 2: Our enemies are bad people.
Axiom 3: Anything that helps good people beat bad people is good.

Corollary 1: Whatever we do to beat our enemies is good.
Corollary 2: Whatever hinders us from doing what we do to beat our enemies is bad. Theorem 1: Anything that makes us look bad is false. (Proof: If it makes us look bad, it must be false, because, according to Corollary 1, what we do to beat our enemies is good, not
bad.)
Corollary 3: It can’t be true that the Guantanamo prisoners killed themselves because of how we treated them. (Proof: That would make us look bad. Whatever makes us look bad is false.)
Surprising Corollary 4: Facts that make us look bad are false.
(Proof: Follows directly from Theorem 1.) (Comment: If you thought that facts can’t be false, you haven’t understood that truth and falsity are moral terms: truth is what good people say, falsity is what bad people say. If bad people state facts, those facts are false.)
Theorem 2: Laws that constrain us are bad. (Proof: Follows directly from Corollary 2.) But –
Axiom 4: Good people support the rule of law, and that makes the rule of law good.
Corollary 4: We support the rule of law. (Proof: By Axiom 1, we’re good people; and by Axiom 4, good people support the rule of law.)
Surprising Theorem 3: Laws that constrain us don’t exist. (Proof: By Theorem 2, a law that constrains us would be bad. But by Axiom 4, the rule of law is good. Therefore there cannot be such a thing as a law that constrains us.)
Axiom 5: Anything that anyone uses against us is a weapon of our enemies.
Decisive Theorem: Any international forum or legal argument that might constrain us, or anything that might make us look bad, is a weapon of our enemies.
Axiom 6: We’re strong and our enemies are weak.
Corollary 5: Any international forum or legal argument that might constrain us, or anything that might make us look bad, is a weapon of the weak. To put it in other words, it is an act of asymmetric war against us.

QED

Posted 2:04 PM by David Luban [link] (11) comments

The National Surveillance State Goes Local

JB

In my previous post on the National Surveillance State, I pointed out that although the federal government is defending its domestic surveillance and datamining operations to discover threats to national security, there is no reason why the same procedures and technologies couldn't be harnessed to aid in everyday domestic criminal law enforcement. Indeed, once the tools are available, not only federal law enforcement officials, but also state and local officials, will want to use them for everyday law enforcement problems. So domestic electronic surveillance and data mining will not be limited to the most urgent threats to national security. Rather, they may be become part of the everyday operations of state and local law enforcement, if legislatures permit and fund these operations.

Today's Boston Globe includes a story describing how Rhode Island officials are seeking some of the same tools that the feds have-- to combat not terrorism but domestic Internet crime:

The Rhode Island General Assembly is considering legislation that could give police access to Internet and phone records and credit card and bank information without a warrant or other court review, civil libertarians said.

The state police said the legislation would help track down the increasing instances of Internet-based crime, including fraud and child exploitation. They say they are only seeking expanded access to Internet records, not phone or banking records.

But lawyers familiar with this area of law say the bills as crafted would give Rhode island police the right to obtain the same information that some of the nation's major communication companies have been accused of giving to the National Security Agency illegally.
. . . .

State police say going before a judge to get a warrant can be time-consuming and cumbersome.

Cpl. John Killian, the state police's computer crime specialist, said it can take three to four hours of work to obtain a warrant.

"There's a balance between privacy and police authority," Killian said. "The current situation is weighted too far on the side of privacy."

Posted 1:19 PM by JB [link] (5) comments

Sex Traffic at the World Cup

Mark Graber

The World Cup is a struggle for supremacy and national pride. This year, at the tournament in Germany, the World Cup is a different sort of struggle for some 40,000 women: a struggle for survival. 40,000 is the Coalition Against Trafficking in Women's (CATW) estimate of how many women have been taken to Germany to fill the extra brothels German entrepreneurs built in preparation for the event. These women have been brought from as far away as Brazil, some lured with false promises of an "all-expenses-paid trip to Germany," others abducted and forced across borders. But no matter where they come from or how they are brought, their fates are the same: to have their bodies be reduced to commodities to be bought and sold, used and abused by pimps and johns from all over the world.

Once these women become prostitutes, they will face a 62% chance of being raped and a 73% chance of being physically abused. Many will be forced to service upwards of 20 men a day, sometimes multiple men at the same time. A number will become substance abusers, forced by their pimps to take drugs to keep them going. Their chance of dying will be 40% than others in their age group.

Efforts to stop this tide of sexual slavery have been minimal at best. English officials have set up campaigns warning travelers to the World Cup that some of the prostitutes they visit may be trafficked. Members of Operation Pentameter, an English police organization working against human trafficking, have promised to "intervene" if they learn of English citizens committing crimes with trafficked prostitutes, but what can they do in a country where prostitution is legal and they have no jurisdiction? Still, England is at least trying to back their anti-trafficking language with action. Not so much can be said for the United States, which has publicly expressed concern over trafficking and the World Cup, but still ranked Germany as a country that "fully complies with the legislation's minimum standards" against human trafficking. This means the U.S. will take no action to pressure Germany into stopping the illegal trade. Even Sweden, widely recognized as having the best anti-trafficking and anti-prostitution policies in the world, has only taken symbolic steps in combating the link between sex trafficking and the World Cup, pledging that no member of the Swedish team will visit a brothel. Nice idea, but it won't even make a dent in the demand for prostitution. 40,000 women need more: they need for the global community to reveal their plight for what it is and take decisive action to stop it.

[This entry was written entirely by Rebecca Graber, age 16]
Posted 7:37 PM by Mark Graber [link] (11) comments

My Deanship

Mark Graber

On behalf of the University of Maryland School of Law, I would like to invite all Balkanization readers (and everyone else) attending the annual conference of Law and Society Association to attend our reception from 6:45 to 8:00 PM on Friday night, July 7, 2006, at the law school. Transportation from the conference hotel will be provided and it is an easy walk. The reception promises to be a particularly momentous occasion for me because, owing to other engagements, none of our deans will be present, so I will be serving as Acting Dean of the Law School during that time. I intend my reign to be activist. Indeed, with cooperation from Balkanization readers, I believe I can completely makeover the law school in my 75 minutes of power.

As is the case with most state law schools, we are the University of Maryland School of Law are striving to be an elite, national institutions. My analysis of recent law school recruitment patterns (see the Leiter and Solum blogs) demonstrates clearly that the central difference between national and local law schools is that national law schools are increasingly recruiting scholars who have no clue about the actual practice of law. One survey of the most elite law schools in the country found that more than 3/4s of recent hires could not give directions to any courthouse other than the Supreme Court of the United States, the European Court of Justice, and the house of the judge in Mali who fixes drunk driving tickets for tourists. Fortunately, the Law and Society meeting provides unparalleled opportunities to identify and recruit those legal thinkers most committed to avoiding anything of relevance to a law student committed to the actual practice of law. With a little advance preparation, I believe an hour and 15 minutes is all we need to acquire a faculty second to none in the hermeneutics of law, legal esoterics, and other arts of absolutely no use to any client, real or imagined.

I am in the process of assembling a search committee that will comb the law and society meeting for those scholars who best meet the increasingly demanding criterion of practical irrelevance. While the competition will be intense, I believe the following criteria will yield a manageable short list.

1. The paper or presentation refers to "semiotics" at least three times.
2. The paper or presentation contains enough Greek letters that, when rearranged, can be used to spell out the first chapter of Plato's republic.
3. The paper or presenter refers to the contributions students of the new historical institutionalism are making to the study of law (any reference to my work should suffice to identify a scholar with no understanding or interest in actual legal practice).
4. The paper or presenter, after pointing out that conservatives control the national legislature, executive and judiciary, seriously urges liberals to pass constitutional amendments as the best means for securing their constitutional vision.
5. The paper or presenter, after noting the new conservative majority on the supreme court, insists that scholars must now take history (as opposed to "originalism") seriously.
6. The paper or presenter frequently refers to Proust, Nietzsche or any other German romantic of the nineteenth century.
7. The author admits that in order to purchase the best dish network subscription, numerous movie or concert tickets, or dinners at Tex-Mex restaurants (see Levinson and Balkin’s article in Penn about a decade ago) necessary to study pop culture or law in everyday life, they were forced to cancel their subscription to Westlaw or Lexis-Nexis.
8. The paper or presentation does not contain a single sentence that can be diagramed as noun-verb or noun-verb-noun, and is more likely to be cited by an AP English student looking to use fifteen multisyllabic words in a sentence than a lawyer preparing a legal brief (especially important for those teaching legal writing).
9. The paper or presenter demonstrates vast knowledge of the scholarship on empirical research design and no evidence of any actual empirical research.
10. Most important, the presenter holds the audience at rapt attention, even though it is clear that no one has the remotest idea of what is being said.

Assuming the short list is in place by the time my deanship begins at 6:45 Friday night, we will have more than enough time to wrap things up by 8:00. Everyone on the short list will be interviewed from 6:45 to 7:15 at the Maryland reception. During these interviews, the appointments committee will be able to assess whether our candidates have truly no conception of legal practice or whether, as is probably the case with many, the otherworldliness of their Law and Society paper and presentation reflected only their expectation that this was the sort of thing one did at law and society from those who genuinely have nothing to say aboutlegal practice. A top school faculty, after all, should be incomprehensible across the board, and not merely in their scholarship. From 7:15 to 7:45, the faculty will vote on candidates. I do not expect any trouble, given that alcohol will be freely distributed at the reception. I recognize that there is some risk in having a bar near law professors, but I am in the process of obtaining a grant from the NEH cover expenses and do not expect the costs to more than double the national debt. All offers will explode at 8:00PM, when my deanship ends. Although 15 minutes may be a short time to make such an important decision, I have scientific proof that our approach is more humane that the "take your time" practiced by other institutions. A recent study done by law and economics faculty demonstrates that law professors making personal decisions consistent agonize for months and then make the wrong choice. While general agreement exists that nothing can be done the propensity of law professors to screw up their lives, offers which explode in 15 minutes at least reduce decision costs.

By 8:01 we should have a law faculty in place, whose commitment to legal education without law should vault us to the top of U.S. World News Report. Some of our older faculty may worry that no one will be left to supervise the clinicals, but, I believe that given the direction of law school recruitment, clinicals are antiquated, likely to be replaced by mandatory courses in legal conscious, run on the model of a Quaker meeting. Such courses will provide students with unique opportunities to contemplate the issues associated with thinking about what thinking about thinking like a lawyer must be like. Graduates may not know who to write a complaint or contract, but they will feel more personally fulfilled, which is increasingly seen as the object of higher education. Universities are committed to exposing students to a variety of experiences inside and outside of the classroom. Most of our students will spend 20-40 years practicing law. Any commitment to diversity entails that they should do something else when in law school.
Posted 11:04 AM by Mark Graber [link] (11) comments

Secret DOJ Memo Explains Why the Flag Burning Amendment is Unnecessary

JB

In anticipation of a possible unsuccessful vote on the proposed flag-burning Amendment, the Justice Department has declassified a secret Office of Legal Counsel (OLC) memo written shortly after the September 11th attacks:

Under the theory of the Unitary Executive underlying Article II of the United States Constitution, the President of the United States, as Commander-in-Chief-of-everything-under-the-sun, has plenary and unreviewable authority to detain, try, punish and execute enemy combatants. Persons who trample on, deface, or destroy the flag of the United States symbolically attack the country and the principles for which it stands, which include, among other things, the principle of the plenary and unreviewable authority of the Unitary Executive. Therefore the President, as head of the Unitary Executive, has plenary and unreviewable authority to detain, punish and execute any and all persons who desecrate the American flag, regardless of any laws or treaties to the contrary.

Moreover, Congress, in its September 18th, 2001, Authorization of the Use of Military Force (AUMF) gave the President, as Commander-in-Chief, power "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." The President, acting in his constitutional capacity as Commander-in-Chief, may reasonably determine that any person who would knowingly desecrate an American flag is a terrorist and that act of burning the American flag is an act of terrorism. Hence it follows that he may also reasonably determine that any person who would defend the right of a person to burn the American flag is engaged in defending-- and therefore aiding and abetting-- acts of terrorism. Thus the President has not only his own inherent authority under Article II but also Congressional authorization to detain, punish, and execute flag burners-- as well as those who defend, or give aid and comfort to the same-- as enemy combatants. "When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, [he may] be said . . . to personify the federal sovereignty." Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579, 636 (1952)(Jackson, J., concurring).

Moreover, because the President as Commander-in-Chief and head of the Unitary Executive has plenary authority under Article II to repel invasions and attacks on the United States, as well as to prevent future attacks from occurring, it follows that the President has plenary authority under Article II to detain, punish, and execute any persons that he suspects, has reason to suspect, or has no reason at all to suspect may be conspiring in the future to desecrate an American flag or to defend, harbor or otherwise support persons who would desecrate an American flag.

Indeed, it is well established under the laws of war-- including those laws of war which the President, as Commander-in-Chief, has plenary authority to completely ignore or declare "quaint"-- that the President, as Commander-in-Chief, may detain persons who have taken up arms against the United States until such time as hostilities are completed. The President may reasonably determine that any person who burns an American flag is hostile to the United States. By definition, a person who is "hostile" to the United States may be prepared at some point in the future to engage in "hostilities." Therefore the President has sole authority to detain any person suspected of conspiring to burn a flag in the future-- or to defend or otherwise assist such a person-- until such time as the President may be assured that the person will not, upon release, "return to the battlefield" by threatening an American flag or otherwise defending those persons who would threaten an American flag. Since the President, as head of the Unitary Executive, may execute enemy combatants on the battlefield, it follows that he may take the lesser step of arresting them and detaining them indefinitely.

It is no objection that flag burning-- or the defense of flag burning-- may not be punished under the First Amendment. As we have made clear in previous OLC memos on torture and domestic surveillance, the provisions of the Bill of Rights do not apply to persons whom the President deems, whether reasonably or unreasonably, to be enemy combatants. Of course some say that we should fight the Global War on Terror using the model of criminal law enforcement. However, it is clear that we face a new kind of enemy, using a new kind of matches and a new kind of lighter fluid. If we do not round up, detain and execute flag burners, suspected flag burners, defenders of flag burners, and suspected defenders of flag burners, the terrorists will have won.

Department of Justice
John Yoo Building
Washington, D.C.
Posted 6:05 AM by JB [link] (4) comments

Florida weighs in on post-modernism

Sandy Levinson

The following section, relating to the required curriculum, of the Florida Omnibus Education Bill was recently passed by the Florida legislature and signed by Gov. Jeb Bush (declared, incidentally, by the Weekly Standard on its cover as "the best governor in America"):

(g) The history of the United States, including the

2 period of discovery, early colonies, the War for Independence,

3 the Civil War, the expansion of the United States to its

4 present boundaries, the world wars, and the civil rights

5 movement to the present. The history of the United States

6 shall be taught as genuine history and shall not follow the

7 revisionist or postmodernist viewpoints of relative truth.

8 American history shall be viewed as factual, not as

9 constructed, shall be viewed as knowable, teachable, and

10 testable, and shall be defined as the creation of a new nation

11 based largely on the universal principles stated in the

12 Declaration of Independence.

What can this possibly mean? Would it be permissible for a history teaching in Florida to present, say, conflicting views of the Jacksonians and the Cherokees regarding the forced removal from Georgia, on the ground that it is simply a fact, and not constructed, that there were, indeed, conflicting views regarding the forced removal? Query, is it permitted to call it "The Trail of Tears," given that this is certainly a "constructed" term, just as, indeed, is the case with "the Holocaust" (see Peter Novick's excellent book on the subject) or, for that matter, "the French and Indian War, which is the American name for the Seven Years War.

Note that the young must be taught that that it is simply the case (and not a constructed notion) that the "new nation [was] based largely on universal principles stated in the Declaration of Independence." Does the "largely" allow a Florida teacher to note that these "univeral principles" were denied with regard to (for starters) slaves, women, indentured servants and others without property, Jews, "Mohammedans," in some colonies non-Protestants, etc., or are these "constructed" notions.

Does the "civil rights movement to the present" include teaching about women's rights, including access to abortions, disability rights, and gay- and lesbian-rights? Could labor history, which is omitted from the list, be shoehorned into the "civil rights movement" (even though organized labor was often antagonistic to the move for full rights for African-Americans)?

Is it relevant whether a single member of the Florida legislature (or "America's best governor") could get even a "Gentleman's C" on a test question asking them to discuss "relativism" and "post-modernist viewpoints of relative truth"?

Finally, are there any "relatists" or "post-modernists" who deny that American history is "knowable, teachable, and testable"? What would it mean to assert this?

I look forward to finding out whether the Florida legislature will similarly declare that the "correspondence theory of truth" is correct and that, say, Thomas Kuhn (or perhaps David Hume) cannot be taught in the Florida public schools, except as exemplars of error, and so on. (Incidentally, would it violate the statute to teach one or another of Justice Holmes's savage dismissals of the notion of natural law?)

Is this legislation basically harmless venting by ignorami who should simply be ridiculed by people like me (and, I suspect, most of the readers of this blog), or is it something "we" should be worried about? I omit, of course, the third option, which is that reasonable people should be grateful that the Florida legislature is willing to stand up to the "relativists" and "post-modernists" who are destroying America. Am I wrong to do so?
Posted 12:28 PM by Sandy Levinson [link] (22) comments

Tales of Horror from Dr. Distracto

JB

Dr. Distracto: All right, children, it's 6/6/06, the day of the Beast, so gather round, while I regale you with tales of horror that are sure to curdle your blood!

Children: Yippie! Tell us the one about the big flood that destroyed New Orleans! Tell us the one about the deficit that ate the economy! Tell us the one about the war in Iraq!

Dr. Distracto: No, children, I don't want to talk about those things right now. I have something *much* scarier.

Children: Hurray!

Dr. Distracto: If you don't vote Republican in the next election, gay couples will burn American flags at their weddings!

Children: Noooooo!

Dr. Distracto: Then they will drive Mexican nationals across the border in hybrid cars!

Children: Noooooo!

Dr. Distracto: And then they will take all the Mexicans to abortion clinics, and force them to watch Al Gore's documentary on global warming!

Children: Oooooh, that's so scary, Dr. Distracto. I'm so frightened I can't think about anything else!

Dr. Distracto: Mission Accomplished.

Children: Oh no, not those words! Now you're scaring me again!
Posted 9:59 AM by JB [link] (4) comments

If Jesus Had a Child, (Probabilistically) We’re All Jesus' Heirs

Ian Ayres

Charlemagne was approximately 40 generations back from the present day. Each person has 2 parents, 22 = 4 grandparents, 23 = 8 great-grandparents, ... and 240, or approximately 1,000,000,000,000 (one trillion), 40th-generation ancestors, which means half a trillion male ancestors. Of course, since the entire male population of Europe at the time of Charlemagne was only about 15 million, these half trillion ancestors cannot all have been different men -- obviously there has been a lot of cross-breeding, and many of our ancestral lines cross and re-cross, eventually ending up at the same person. Let's assume that each of my 40th-generation male ancestors is a randomly-chosen man from eighth-century Europe (this is not really valid, but more on that below). Choosing any one such ancestor, say my father's father's ... father's father, the probability that that particular person is Charlemagne is one in 15 million. Pretty small. To put it another way, the probability that any particular ancestor was not Charlemagne is 1 - 1/15,000,000, or approximately 0.999999933

But now consider the probability that none of my 40th-generation ancestors is Charlemagne. For that to happen, every one of my half trillion male ancestors has to not be Charlemagne, which would be an amazing coincidence. To see how amazing, let's compute the probability. Assuming all of these various not-being-Charlemagne occurrences are independent of each other (more on this below), the laws of probability state that the probability of all these events occurring simultaneously is obtained by multiplying together their individual probabilities:
(0.999999933)·(0.999999933)·...·(0.999999933) =
(0.999999933)500,000,000,000.
This turns out to be an incredibly small number: about one chance in 1015,000. That's a one with 15,000 zeroes after it, a number that's too big even to display in a browser window. This is way more than the number of atoms in the universe (which is estimated to be about 1080). Therefore, if this analysis is even remotely close to correct, it's virtually impossible that Charlemagne is not among my direct ancestors.

Posted 9:01 AM by Ian Ayres [link] (5) comments

Stop the Stop Hiliary Movement

Mark Graber

I was struck during recent visits to Borders and Barnes and Noble by the number of "Stop Hiliary" books and articles on display, not all by conservatives. Senator Clinton is probably not my first choice for president, but her demonization in the popular press and the lack of any liberal outcry against it are disturbing. True, she's ambitious, but then again, so is every other elected official and candidate for office in the United States. No doubt she has cut some corners as, again, has pretty much every elected official in the United States, including the sainted John McCain (does anyone remember the Keating 5). In short, while Senator Clinton is flawed, the flaws strike me as partly the inevitable flaws of democratic politicians and partly the less than inevitable flaws of our present not-so-democratic system. Certainly, in terms of honesty, intelligence, and decency, Senator Clinton towers above the present occupant of the White House and any Republican likely to run for the presidency in 2008. Democrats should also not fool themselves. Senator Clinton is being targeted largely because she is perceived as a frontrunner. The Republican attack machine will turn as viciously on anyone who is nominated (remember what happened to the war hero v. draft dodger in 2004). Maybe the left ought to begin practicing defend its own rather than trying to find the perfect candidate.
Posted 7:50 AM by Mark Graber [link] (4) comments

Trial Court Enjoins Unconstitutional Iowa Religion-in-Prisons Program

Marty Lederman

Judge Robert Pratt of the U.S. District Court of the Southern District of Iowa yesterday issued a judgment and a 140-page opinion declaring unconstitutional the State of Iowa's establishment of a rehabilitation program operated in the state prison system by the InnerChange Freedom Initiative, a substidiary of Chuck Colson's Prison Fellowship Ministries.

The court's opinion, which follows a very long bench trial, examines at great length the facts underlying the Iowa program. But the central facts are quite simple, and basically undisputed: In the court's words, "state funds were used intentionally to indoctrinate Iowa inmates [within the state prison], by a non-profit religious service provider preferred by the state in its selection process, into a form of the Christian religion in the belief that the indoctrination, combined with the communal rehabilitation model, would be of some help in their rehabilitation." The funded program is faith-intensive, and fundamentally religious in nature: "The overtly religious atmosphere of the InnerChange program is not simply an overlay or a secondary effect of the program—it is the program. There are no separate educational and religious functions in the InnerChange program as there were in Agostini . . . . Here, every activity—worship services, revivals, community meetings, daily devotionals—is organized and developed by the InnerChange program and is designed to transform an individual spiritually. Even the otherwise traditional rehabilitation classes themselves . . . have been turned into classes intended to indoctrinate inmates into the Christian faith."

Although the court's basic analysis is sound, there are several parts of the opinion's constitutional discussion that are a bit off-point, that may be controversial, and that detract from the central holdings, such as: (i) the court's nominal application of the three-pronged "Lemon Test" (a wooden and unilluminating "test" that, at this point, appears to be at most a placeholder in the Supreme Court's doctrine, and which IMHO obscures the important questions in most cases); (ii) an analysis of whether InnerChange is a "pervasively sectarian" program (a question that, in and of itself, almost certainly no longer has any purchase with the Supreme Court -- the important point in this case is simply that the secular and religious aspects of the program cannot be segregated: InnerChange is faith-intensive at its core); and (iii) a discussion of whether there is impermissible "entanglement." There's nothing especially wrong with any of those discussion, but they could easily have been eliminated, and the basic analysis would remain the same, to wit:

The court properly concludes that the Iowa program is unconstitutional for five of the six reasons I offered a few weeks ago for why a similar new federal prisons program is unconstitutional:

1. The program involves direct, and impermissible, financing of religious teaching and indoctrination. (The defendants argued that the money was only subsidizing the "secular" percentage of the program costs; but the Supreme Court, in cases such as Nyquist, Lemon, and Mitchell (the controlling O'Connor opinion) has expressly rejected such a "pro rata" allocation of religious and secular funding; and, in any event, the district court correctly found here that the secular and the religious are inextricably intertwined through the InnerChange program.)

2. Indeed, and wholly apart from the problem of funding, the program involves the state's own indoctrination of religion, because the officers and employees of InnerChange are, in this context, state actors.

3. The state has singled out a religious provider for favored treatment, and such favoring of religion is unconstitutional.

4. The program invovles a de facto denominational preference.

and

5. The program was gerrymandered to ensure that Prison Fellowships operates it.

In addition, the court found that the prison provides inmates with incentives to attend InnerChange.

Any one of these six reasons would be enough to invalidate the program. In the aggregate, the question isn't even remotely a close one.

Three other aspects of the opinion are noteworthy:

i. The court rejects one of the six grounds I offered for why such programs are unconstitutional -- namely, impermissible purpose. The court correctly notes that the state's primary purpose was to reduce recidivism rather than to inculcate religion. That's true, but there's a further purpose-based problem that the court does not discuss -- namely, that the government cannot specifically aim at religious transformation, as Iowa has done here, as a means of accomplishing legitimate secular ends.

ii. Second, apparently the defendants' primary defense of the program was that it was akin to a voucher program (see, e.g., Zelman, Zobrest, Witters), where the state merely subsidizes "genuine and independent private choice." The court properly explains at length why this is not a true "private choice" program. Moreover, even if it were a "private choice" program, it would still be unconstitutional, because the government itself may not engage in religious indoctrination, and the court correctly finds that the InnerChange program is state action.

iii. Finally, the court-ordered relief runs not only against the state, but also against Prison Fellowship and InnerChange, which are ordered to pay back more than $1.5 million in money that they have received from the state. In ordering this remedy, the court appears to have been strongly influenced by the fact that the constitutional questions here were not difficult ones, and that the defendants, "well-financed and sophisticated entities who know every contour of First Amendment law," had "retained experienced, knowledgeable legal counsel that should have been aware of the constitutional risks associated with state funding of InnerChange."
Posted 3:46 PM by Marty Lederman [link] (19) comments