Balkinization  

Tuesday, August 01, 2006

BLAB + Siegel (and the Rosenberg thesis)

Stephen Griffin

I am preparing to teach my fall Fourteenth Amendment class by going through the new edition of Processes of Constitutional Decisionmaking, the constitutional law casebook by Brest, Levinson, Balkin, Amar and, in the latest edition, Reva Siegel. This is hands down my favorite casebook (although I use Sullivan-Gunther for Conlaw I). It is a constitutional epicure’s delight, the conlaw equivalent of a five course meal at a Michelin three star restaurant.

In saying this, I am obviously not setting any records for moral courage, given that several BLAB authors contribute to this blog. Indeed, perhaps this blog can be viewed as a sort of extension of the casebook.

There are many discussions one could have based on the casebook, but I was somewhat jarred by the note that follows Brown v. Board of Education on Gerry Rosenberg’s 1991 book The Hollow Hope. The Rosenberg thesis was that courts cannot by themselves cause major social change and thus Brown was not a significant causal agent in the civil rights movement. These were fighting words, both when Rosenberg published them in 1991 and now.

As I recall, Rosenberg’s argument had two parts. As recounted in the casebook, the first part argued that “real change did not come until the political branches joined the desegregation effort and Congress enacted the Civil Rights Act of 1964.” This part of Rosenberg’s argument was based on the fact, well-known long before the book was published, that a very low number of black children were in integrated classrooms even ten years after Brown. Second, and more controversially, Rosenberg tried to assess Brown’s indirect impact on the civil rights movement and, as the casebook notes, was quite skeptical.

I was predisposed toward accepting Rosenberg’s argument when it was published due to some research I had done on the history of the civil rights movement. This research made me question the impact of Brown. In particular, I had read David Garrow’s 1986 biography of Martin Luther King, Jr. At one point, Garrow quotes Al Raby, one of King’s allies in his 1966 effort to desegregate various institutions in Chicago:

“I don’t see that the judicial process has really helped the Negro. . . .The same process, the process of legal opinion, got us twelve years ago a decision of the United States Supreme Court that we would have integrated schools, that segregation would be done away with. And the result of that legal opinion twelve years later is largely insignificant.” (Bearing the Cross, p. 522)

It’s clear from Garrow’s work and the work of others that Brown was culturally significant to the civil rights movement. For example, its anniversary was celebrated in some way in most years following the decision. But it is also clear that Brown’s practical value was contested, even in the 1960s. I was all the more puzzled, therefore, when Garrow turned out to be one of Rosenberg’s critics.

The casebook fairly reports that Rosenberg had numerous critics. One of the main lines of criticism was the defense of Brown as “culturally significant” and “symbolic.” These criticisms have always struck me as beside the point. If it were widely agreed that the main significance of Brown was symbolic, it would hardly have been necessary for Rosenberg to write his book in the first place. Rosenberg’s book was controversial because it attacked the ideology of cause lawyering, an ideology that gives courts a practical (not just symbolic) role in major social change. This ideology was still powerful in the 1990s, as Rosenberg discovered when he went to various law schools to defend his thesis. However, no one could contest the first part of Rosenberg’s argument, Brown’s very limited direct impact. In fact, the casebook goes on to amply support this point in the next few pages following the Rosenberg note. The main battle ground was over the more difficult question of indirect impact, of influence. But if we say we are interested in the general causal factors behind the civil rights movement as a whole, there is ample evidence that Christian moral beliefs played a far greater role than the legal principles exemplified in Brown.

Being Like Other Nations

Mark Graber

In the book of Samuel, the children of Israel insist "we, too, must be like other nations with a king to rule over us and lead us in warfare." Judged by this standard, Israel's recent actions may well be defensible. Certainly, Americans have shown no more enthusiasm for protecting innocents during the war against terrorism or the Iraqi occupation than has the Israeli government. And although repeated ad nauseam by apologists, it is still the case that the Israeli government is far closer to Mother Teresa than to Hezbollah or Hamas when judged on their relative concern for innocents. The latter groups seem desperately eager to create situations in which Israelis kill innocents in order to further incite hatred and recruit more assassins.

On the other hand, this desire to "be like other nations," at least in the commentaries I read, is not considered praiseworthy. Instead, Jews and Israel are expected to be "a light unto the world." There is rather little in recent Israeli actions that is "a light unto the world" unless one believes that Israel's survival and other democratic societies, at bottom depend on killing their enemies rather than persuading persons through example of the merits of democracy. Jewish survival may depend in part on the survival of Israel, but also depends in larger part on persons being proud of Israel and their Jewish heritage. Young Jews, young liberal Jews, in particular, are less and less proud of Israel and, as a result, are less and less proud of being Jewish. Israeli behavior in Lebanon may in the long run destroy more distinctively Jewish lives than Hezbollah.

Sunday, July 30, 2006

The Problem Isn't Signing Statements [UPDATED]

Marty Lederman

Nor is it the President's assertion of a power to decline to enforce statutes that he thinks are unconstitutional.

No, the problem -- the principal problem, anyway -- is the substance of many of this Administration's constitutional objections to statutes, including many (e.g., the Torture Act, ISA, the UCMJ, the Habeas statute) that were enacted and signed long ago.

Walter Dellinger takes aim tomorrow in the New York Times at the misplaced focus of the recent ABA Task Force Report on signing statements and the separation of powers.

Walter is right. [UPDATE: He and I and a half-dozen of our former OLC colleagues have much more on this matter over at the Georgetown site.]

[Disclosure: I worked with Walter and others on these and related issues at the Office of Legal Counsel in the Clinton Administration.]

Just Kidding, Really, Officer Levine

JB

Mel Gibson's next project is a mini-series on the Holocaust. Apparently, it has a surprise ending.

The Real Pro-Life Agenda

JB

The New York Times has a story about how human beings have become larger, healthier, and longer-lived in the past century. The key seems to be whether your mother was healthy and well fed during pregnancy and whether you yourself were healthy and well taken care of during the first two years of your life. Healthy conditions and plenty of food early in life translate into longer life and fewer diseases. By contrast, trauma, illness and lack of nutrition early in life often have long-term ramifications in middle and old age, increasing the chances for chronic pain, debilitating diseases and senility.

If these studies are true, we should be devoting far more money than we now do to prenatal care, infant nutrition and social programs that benefit children and pregnant women-- particularly the poorest women and children, who are often the most vulnerable to nutritional deprivation, disease and trauma. A small amount of money spent during the earliest years of life will reap enormous rewards in human happiness, health, and productivity later on.


Saturday, July 29, 2006

Bush Creates Common Ground Between Liberals and Conservatives

Brian Tamanaha

Lest anyone think that only liberals are appalled at the claims and actions of the Bush Administration, consider this passage from a recent New Yorker article (July 3, 2006) by Jane Mayer detailing the dark activities of David Addington, Cheney's Chief of Staff:

Bruce Fein, a Republican legal activist, who voted for Bush in both Presidential elections, and who served as associate deputy attorney general in the Reagan Justice Department, said that Addington and other Presidential legal advisors had "staked out powers that are a universe beyond any other Administration. This President has made claims that are really quite alarming. He said there are no restraints on his ability, as he sees it, to collect intelligence, to open mail, to commit torture, and to use electronic surveillance....It's got the sense of Louis XIV: "I am the State." Richard Epstein, a prominent libertarian law professor at the University of Chicago, said, "The President doesn't have the power of a king, or even that of state governors. He's subject to the laws of Congress! The Administration's lawyers are nuts on this issue." He warned of an impending "constitutional crisis," because "their talk of the inherent power of the Presidency seems to be saying the courts can't stop them, and neither can Congress."


In an interview last week, William F. Buckley, the intellectual leader of American conservatism, made the following tart comments:

I think Mr. Bush faces a singular problem best defined, I think, as an absence of effective conservative ideology--with the result that he ended up being very extravagant in domestic spending, extremely tolerant of excesses by Congress, and in respect of foreign policy, incapable of bringing together such forces as apparently were necessary to conclude the Iraq challenge....

There will be no legacy for Mr. Bush....I think his legacy is indecipherable.


Several publications put out by the American Enterprise Institute and the Cato Institute, two respected conservative think tanks, characterize Bush Administration economic policies in terms of gross "corporate welfare." Republican Peter Peterson's book, Running on Empty, is a frightening description of our huge deficit, and its future implications, brought on by the mindless Bush Administration policy of cutting taxes for the rich. Peterson was quoted in Nation: "I'm rather offended that fat cats like me are getting tax cuts which over the longer term will only serve to increase taxes on my own children and grandchildren at a time when our entitlement programs are underfunded."

In the period leading up to the 2004 election, a number of conservatives expressed opposition to various Bush Administration policies, but most tempered their criticism. The few isolated voices then is now a chorus headed toward a crescendo. Beside oil companies and defense contractors, the one constituency that appears to remain firmly behind Bush are religious conservatives (see stem cell veto).

When liberals criticize the Bush Administration they are often dismissed by conservatives as unbalanced Bush-haters. That doesn't cut it anymore. In an extraordinary feat, the extremism of the Bush Administration appears to be creating common ground for the left and the right.

Friday, July 28, 2006

Another Measure of How Far We Have Fallen

Brian Tamanaha

Jack's below post details the contortions involved in the Bush Administration's effort to protect U.S. officials and troops engaged in possible war crimes. A different aspect of the same article--focusing on the origin of the War Crimes Act of 1996--also bears comment:

The...legislative sponsor [of the War Crimes Act of 1996] is one of the House's most conservative members, Rep. Walter B. Jones Jr. (R-N.C.). He proposed it after a chance meeting with a retired Navy pilot who had spent six years in the notorious "Hanoi Hilton," a Vietnamese prisoner camp. The conversation left Jones angry about Washington's inability to prosecute the pilot's abusers.

Jones's legislation for the first time imposed criminal penalties in the United States for breaches of the Geneva Conventions, which protect detainees anywere. The Defense Department's deputy general counsel at the time declared at the sole hearing on it in 1996--attended by just two lawmakers--that "we fully support the purposes of the bill," and urged its expansion to cover a wider range of war crimes. The Republican-controlled House passed the bill by voice vote, and the Senate approved it by unanimous consent.

The law initially criminalized grave breaches of the Geneva Conventions but was amended without a hearing the following year to include violations of Common Article 3, the minimum standard requiring that all detainees be treated "humanely." The article bars murder, mutilation, cruel treatment, torture and "outrages upon personal dignity, in particular humiliating and degrading treatment." It applies to any abuse involving U.S. military personnel or "nationals."

Jones and other advocates intended the law for use against future abusers of captured U.S. troops in countries such as Bosnia, El Salvador and Somalia, but the Pentagon supported making its provisions applicable to U.S. personnel because doing so set a high standard for others to follow....


"On second thought...never mind that last part," now says the Bush Administration.

Given the overwhelming support for the Act, it is likely that not one of the many members of the Senate and House who voted for it imagined at the time that its terms would ever apply to us in any systematic way. That was unthinkable. The U.S. simply does not do that kind of stuff to detainees.

That was before 9/11, repeats the Bush Administration again and again. The once unthinkable is now sometimes necessary. Terrorism is different, nastier business, requiring nastier treatment of detainees. Watch out bad guys (or suspected bad guys), cause we are ready and willing to make you suffer. In this new reality, setting a high standard for others to follow is no longer a priority--defending the nation from attack matters above all else. The War Crimes Act of 1996 was well meaning, but naive and incautiously worded.

When the Bush Administration submits its proposed amendments to the law, Congress can agree that it (and the Defense Department) was naive a decade ago, and that things have changed. Or it can confirm that it was right the first time, that it was and remains unthinkable that the U.S. would treat prisoners inhumanely, that under no circumstances will we systematically engage in conduct remotely resembling that of Vietnamese prisoner-of-war camps, that this country represents and aspires to high standards, that to sacrifice these ideals would mean the terrorists have scored a significant victory in their effort to bring down the United States.

We must not forget that the terrorists are not out to defeat or conquer the U.S. in any traditional sense. That is impossible. Above all else, they want to expose us as evil.

And While You're at it, We'd Like Impunity from War Crimes Too, Please

JB

The Washington Post reports that the Bush Administration, having correctly recognized the legal ramifications of the Hamdan decision, is now requesting that Congress amend the War Crimes Statute, 18 U.S.C. 2441, to insulate American operatives and military personnel from interrogations that fall just short of outright torture. The Post rather gratuitously refers to the 1996 War Crimes Statute as an "obscure law," but it is quite well known to people working in the area of human rights and international law.

As Marty has explained, the Bush Administration would like a "shocks the conscience test" that would offer less protection than Common Article 3 and would allow various forms of prisoner abuse and mistreatment, which would be justified on the grounds that it was necessary to obtain important information. As the Post explains:

The Justice Department's top legal adviser, Steven G. Bradbury, separately testified two weeks ago that Congress must give new "definition and certainty" to captors' risk of prosecution for coercive interrogations that fall short of outright torture.

Language in the administration's draft, which Bradbury helped prepare in concert with civilian officials at the Defense Department, seeks to protect U.S. personnel by ruling out detainee lawsuits to enforce Geneva protections and by incorporating language making U.S. enforcement of the War Crimes Act subject to U.S. -- not foreign -- understandings of what the Conventions require. [Ed.-- This last statement in the Washington Post article is not quite accurate. Rather, the idea is to adopt language that offers less protection than the language of Common Article 3 provides-- or the Army Field Manual, for that matter. It is not simply imposing a particular domestic interpretation of the Treaty; this point is made clear in the next paragraph]

The aim, Justice Department lawyers say, is also to take advantage of U.S. legal precedents that limit sanctions to conduct that "shocks the conscience." This phrase allows some consideration by courts of the context in which abusive treatment occurs, such as an urgent need for information, the lawyers say -- even though the Geneva prohibitions are absolute.

The Supreme Court, in contrast, has repeatedly said that foreign interpretations of international treaties such as the Geneva Conventions should at least be considered by U.S. courts.

Some human rights groups and independent experts say they oppose undermining the reach of the War Crimes Act, arguing that it deters government misconduct. They say that any step back from the Geneva Conventions could provoke mistreatment of captured U.S. military personnel. They also contend that Bush administration anxieties about prosecutions are overblown and should not be used to gain congressional approval for rough interrogations.

"The military has lived with" the Geneva Conventions provisions "for 50 years and applied them to every conflict, even against irregular forces. Why are we suddenly afraid now about the vagueness of its terms?" asked Tom Malinowski, director of the Washington office of Human Rights Watch.

Since the U.S. invasions of Afghanistan in 2001 and Iraq in 2003, hundreds of service members deployed to Iraq have been accused by the Army of mistreating detainees, and at least 35 detainees have died in military or CIA custody, according to a tally kept by Human Rights First. The military has asserted these were all aberrant acts by troops ignoring their orders.

Defense attorneys for many of those accused of involvement have alleged that their clients were pursuing policies of rough treatment set by officials in Washington. That claim is amplified in a 53-page Human Rights Watch report this week that quoted interrogators at three bases in Iraq as saying that abuse was part of regular, authorized procedures. But this argument has yet to gain traction in a military court, where U.S. policy requires that active-duty service members be tried for any maltreatment. The War Crimes Act, in contrast, affords access to civilian courts for abuse perpetrated by former service members and by civilians. The government has not filed any charges under the law.


This problem did not sneak up on the Bush Administration unawares. Rather, from the beginning the Administration sought to impose coercive interrogation methods that might violate Common Article 3, and was concerned that the Geneva Conventions might someday be invoked against it.
Since September 2001, however, Bush administration officials have considered the law a potential threat to U.S. personnel involved in interrogations. While serving as White House legal counsel in 2002, Gonzales helped prepare a Jan. 25 draft memo to Bush -- written in large part by David Addington, then Vice President Cheney's legal counsel and now Cheney's chief of staff -- in which he cited the threat of prosecution under the act as a reason to declare that detainees captured in Afghanistan were not eligible for Geneva Conventions protections.

"It is difficult," Gonzales said in the memo, "to predict the motives of prosecutors and independent counsels who may in the future decide to bring unwarranted charges." He also argued for the flexibility to pursue various interrogation methods and said that only a presidential order exempting detainees from Geneva protections "would provide a solid defense to any future prosecution." That month, Bush approved an order exempting those captured in Afghanistan from these protections.


Thus, the Administration is now moving in two related directions. On the one hand, it wants a "clarified" standard for what constitutes war crimes, which really means that it wants a standard far weaker than Common Article 3 of the Geneva Conventions. After all, it's hard to argue that "shocks the conscience" is a particularly bright-line test. At the same time, the Administration has made noises that it still regards the War Crimes Act as potentially unconstitutional when applied to persons acting under orders from the Commander-in-Chief. And all the while, the Administration has continued to insist that the most egregious forms of prisoner mistreatment or abuse were not authorized or ordered by anyone higher up in the Administration, but rather was solely the result of a few bad apples or rogue elements acting completely without authorization-- that the Administration has always treated detainees humanely, and therefore has always acted within the boundaries of Common Article 3.

So the Administration position, post-Hamdan, is that Congress should excuse Americans (and Administration officials) from liability for possible war crimes, either because the act is unnecessary-- since we have always acted humanely except for a few bad apples who didn't take orders from the Administration-- or because it is necessary-- since the Administration has in fact ordered people to violate Common Article 3. Finally, if Congress does nothing, the President will continue to take the position that the War Crimes Act may be unconstitutional as applied to him and to persons acting on his orders. (That unitary executive stuff comes in real handy!)

And what about those bad apples who were acting completely on their own? Well, there's the rub, you see. If any of them is ever prosecuted under the War Crimes Act, their most likely defense will be that they weren't really bad apples after all, but were actually following orders of the Administration-- the same Administration that insists that it has always treated its detainees humanely. And if a jury were to find that they believed this defense, it would be a bit-- shall we say-- embarrassing for the Administration. So to minimize the risk of any such embarrassments, the Administration would prefer that even the bad apples don't get prosecuted under the War Crimes statute.

So there you have it. A law making it a illegal to commit war crimes is simply a luxury that we Americans can't afford. Freedom isn't free, you know. If you want to protect human rights and democracy around the world, you have to break a few testicles-- I mean, eggs.


Thursday, July 27, 2006

The Bush Administration Draft Hamdan Response Bill

Marty Lederman

Here's one version of the draft legislation that the Bush Administration is considering in the wake of Hamdan. I believe it's the same version that the New York Times and Washington Post have reported on in recent days. (NOTE: FWIW, I did not receive it from anyone in the Administration or those two newspapers. My sense is that it's been floating all around town today.)

I think it's fair to assume that it's a work in progress. There's also reason to believe that this is not the entirety of the proposals -- for one thing, Common Article 3 is discussed only in the Findings, not in any operative provisions. But it likely contains most of the draft proposals on military commissions -- and even, for the first time, statutory detention authority, defined to cover all "enemy belligerents."

Others will undoubtedly have more to say about the numerous proposals with respect to military commissions, some of which seem very troubling. [UPDATE: Invaluable initial thoughts from Dave Glazier over at Intel Dump.] But I'd like to focus on the definitions of who can be detained and tried, and on Common Article 3, because those issues are probably more important, yet are receiving far less attention. [UPDATE: One general matter: Section 104(a) appears to authorize the President to use his "constitutional authority" to establish other commissions, independent of those prescribed in the Act, "should circumstances so require." That seems like a huge, gaping loophole that presumably Congress will want to address if its intent is to provide a framework under which the President must act.]

As for who can be detained and tried in military court:

On first glance, the proposal does not appear to be limited to aliens (the word "alien" was repeatedly deleted), nor even to Al Qaeda and other groups and individuals covered by the September 18, 2001 AUMF -- it covers any and all "enemy combatants" against the U.S. and its allies in any conflict, anywhere and at any time. And "unlawful enemy combatant" is defined to include -- but not be limited to -- an individual or is or was "part of or supporting" Taliban or Al Qaeda forces, or associated forces engaged in hostilities against the U.S. or its coalition partners. If I'm reading this right, if you're a citizen alleged to have "supported" a hostile group "associated" with Al Qaeda, you can be (i) detained until the "cessation of hostilities" (with whom? doesn't say); and (ii) tried before a military commission.

As for Common Article 3, and interrogation techniques:

This draft does not contain any of the operative provisions relating to Common Article 3, so we can't yet tell what the Administration's proposals will be. But the draft's Section 102(9) contains two "findings" that may give us some clue of the direction in which they're heading:

-- The first is that the standards for treating detainees under the McCain Amendment "fully satisfy any obligations of the United States regarding detainee treatment under common Article 3(1)." As I've explained (See Myth No. 6), that might be true if the McCain Amendment were construed to prohibit all of the "cruel treatment and torture" proscribed by Common Article 3. But there is a good chance that the Administration is not construing the McCain Amendment to prohibit the enhanced CIA techniques, e.g., Cold Cell, Long Time Standing, stress positions, sleep deprivation, and possibly waterboarding -- in which case the McCain standards would not, in fact, satisfy U.S. obligations under Common Article 3. [UPDATE: Jeffrey Smith's terrific article in the WaPo tomorrow confirms this strategy: "The aim, Justice Department lawyers say, is also to take advantage of U.S. legal precedents that limit sanctions to conduct that 'shocks the conscience.' This phrase allows some consideration by courts of the context in which abusive treatment occurs, such as an urgent need for information, the lawyers say -- even though the Geneva prohibitions are absolute."]

Administration officials are already making noises that the "clarification" is necessary because of the so-called vagueness or ambiguity of Common Article 3, especially the prohibition on "humiliating" treatment. This is a red herring. The issue is the CIA, which is not so concerned with the ban on humiliation in section (a)(3) as it is with the ban on "cruel treatment and torture" in section (a)(1). Moreover, the substantive standard of the McCain Amendment (the "shocks the conscience" test) is actually much more uncertain, and vaguer, than the terms in Article 3(1)(a) itself, and arguably more subject to a case-by-case post hoc analysis rather than categorical limits. Don't take my word for it; listen to the Vice President: "The rule is whether or not it shocks the conscience. . . . Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose that's in the eye of the beholder."

Once you realize that the McCain Amendment is even vaguer and more indeterminate than Common Article 3, it becomes clear there's really no other reason for the Administration to seek to construe CA3 to be coterminous with McCain other than to circumvent the categorical prohibitions in CA3 section 1(a) on "cruel treatment and torture."

Accordingly, the thing to watch for, as the legislative process moves forward, is some specification -- in the statute itself or in the legislative history -- of what, exactly, the McCain Amendment prohibits.

-- The second finding is that "the Geneva Conventions are not a source of judicially enforceable individual rights." That language seems fairly sweeping. But as with the rest of this evolving debate, the devil will be in the details of the operative statutory language. It would be one thing to cut off possible causes of action by private parties directly under the Geneva Conventions. In and of itself, that would be very controversial. But it would be quite another thing entirely -- and much more alarming -- if the bill made it impossible for parties to invoke Geneva under any other cause of action, such as, e.g., a habeas petition (as in Hamdan itself), or the Alien Tort Statute or, for that matter, a criminal prosecution under the War Crimes Act.

The best news I've seen on a quick glance is that the bill purports to reflect an intent to comply with the laws of war, including the customary laws of armed conflict. See sections 102(5); 104(e). Thus, presumably the Act would have to be construed, where possible, consistently with the laws of war (something that would be the ordinary, Charming Betsy default rule, in any event). In other words, there's no obvious intent -- yet -- to enact any laws that would conflict with treaty obligations and other laws of armed conflict.

Wednesday, July 26, 2006

Bush Administration to Congress: We're Not Budging on Military Tribunals

JB

The New York Times reports that the Administration's new proposal for military tribunals is largely based on the model the Supreme Court struck down in Hamdan. It allows detainees to be excluded from their own trials and it states that the Geneva Conventions "are not a source of judicially enforceable individual rights." Although it bans the introduction of statements obtained through "torture", it allows introduction of statements made under "coercion" (i.e., anything the Administration regards as less than torture-- which turns out to be a wide array of forms of prisoner mistreatment) unless a military judge finds that the evidence would be "unreliable." It is no accident, then, that the draft demands that Common Article 3 of the Geneva Conventions not be judicially enforceable.
"This draft shows that the executive branch doesn't think the Supreme Court got the questions on the Geneva Conventions right in Hamdan," said John C. Yoo, a law professor at the University of California, Berkley, who as a Justice Department lawyer helped draft the president's original order establishing the military commissions.

On this matter, at least, Professor Yoo and I agree.

The interesting question will be whether Congress will give up and give the President what he wants or whether it will demand significant changes in how the military tribunals are conducted. As we've noted in this blog, Senator Specter's response to the NSA controversy has been to legalize what President has been doing illegally. Much of the American public probably cares more about their privacy being violated by domestic surveillance than about the rights of detainees at Guantanamo, which suggests that Congress would be more likely to give in here. However, in the case of military tribunals, unlike the NSA case, the Supreme Court has declared the President's plan illegal.


Tuesday, July 25, 2006

The Politics of Signing Statements

Mark Graber

The controversy over President Bush’s signing statements seems to overlook what might seem a puzzling point. In times of polarized politics, one might expect that a president of one party would think legislation passed by a Congress controlled by the other party contained numerous unconstitutional provisions. Reasonable questions might arise as to presidential obligations to enforce legislation the executive branch believes unconstitutional. Given Congressional tendencies during periods of divided government to package constitutionally controversial measures with measures all agree necessary and proper, I have a good deal of sympathy with the position that the presidents should sign such measures without committing the executive branch to enforcing every iota. Presumably, however, the strong Republican majority in Congress has no desire to embarrass President Bush with such poison pills. The interesting question, which I have not seen debated much, is why during a time of partisan polarization a very conservative Republican Congress would pass almost 800 provisions that a very conservative Republican president thought unconstitutional.

Separation of powers theory may explain some of this. Madison told us more than 200 years ago that persons would identify with their office rather than party. Hence, we should not be surprised that Republican legislatures have a difference conception of executive power than the Republican president. A good many of the controversial provisions may trench on executive power, though the Bush administrative consistently refuses to explain which ones and why. Still, this Congress is not exactly aggressively asserting legislative authority (any one remember declarations of war). My suggestion is that a more partisan game is afoot.

President Bush’s practice of stating that he will not enforce certain provisions of bills he signs enables Republicans in Congress to stand for everything good in the world without taking any responsibility for increasing the good in the world. Republicans declare themselves against torture, against corruption in the military, against censoring scientific data, for diversity, etc. The President then does not enforce the relevant provisions in the bill under question. Everyone wins (well, not people being tortured, etc., but they were not likely Republican voters anyway). This is quite similar to the Republican practice of voting for mild campaign finance reform, then nominating and confirming federal judges and FEC commissions known to think such laws unconstitutional.

A Republican Congress committed to preventing torture, limiting military corruption, and makeingsure public policy is based on honest scientific data would not be content with symbolic statements in bills the president claims he will not enforce. Congress would engage in actual oversight. Committees would subpeona government officials and publicize their activities. Officials that declined to attend would be held in contempt. That Republicans in Congress are utterly uninterested in such endeavors suggest that they are more interested in appearing to be against torture than actually limiting torture. The sad truth is they may represent the American people on this one.

Monday, July 24, 2006

Secret Earmarks

JB

In my previous post I noted that Congress has used secret budget provisions to shield the Administration's surveillance programs from public scrutiny, making it quite difficult to tell whether the Administration is violating the law. Today the Boston Globe reports that one Congressman, the infamous Randy Cunningham, used classified portions of the budget to shield his own pet projects:
Cunningham's case has put a spotlight on the oversight of classified budgets. Unlike legislation dealing with social and economic issues, intelligence bills and parts of military bills are written in private, in the name of national security. That means it is up to members of Congress and aides with security clearances to ensure that legislation is appropriate.

Cunningham used secret earmarks to "slip items into classified bills that would benefit him and his associates." He used the privilege of secrecy to shield inquiries into his corruption. But an equal danger is that members of Congress will fund secret programs without oversight, allowing the Administration to shield inquiries into illegal conduct. That appears to be what happened with the Total Information Awareness program. Congress must reform the way it constructs secret budgets not merely because they can be misused by corrupt politicians like Duke Cunningham, but also by overreaching Administrations like the present one.

Total Information Awareness-- it's back (and never actually left)

JB

USA Today reported last week that elements of the Total Information Awareness program that Congress purportedly dismantled in 2003 were actually maintained. (National Journal also covered a different part of this story last February). It seems that John Poindexter's Total Information Awareness-- which attempted to compile massive databases on American citizens' daily lives, and then use the information to predict future crimes and terrorist incidents-- wasn't totally disbanded, despite all the media coverage stating that it was. It was just divided up into little pieces and called by a different name. And here's the best part: Congress has made it quite difficult to tell whether what the Administration has done is illegal, although, as I shall point out at the end of this post, we do have some interesting clues.
U.S. intelligence agencies have invested millions of dollars since 9/11 on computer programs that search through financial, communications, travel and other personal records of people in the USA and around the world for connections to terrorism, according to public records and security experts.

The software is designed to find links between terrorism suspects and previously unknown people; track the international flow of money, operatives and materials; and search for clues in the worldwide communications over phone lines, wireless connections and Internet links.

Industry officials, government reports and contracting records do not say specifically how much the CIA and Pentagon have spent to develop, purchase and upgrade such data-mining programs, because that information is classified.

At least five of the data-mining programs were developed under a Pentagon program, called Total Information Awareness (TIA), that Congress disbanded nearly three years ago because of concerns that it threatened personal privacy, according to government records and participants in the projects.

President Bush and administration officials say the searches for terrorists' trails follow the law and don't invade Americans' privacy.

Bush said May 11 that the government was "not mining or trolling through the personal lives of millions of innocent Americans." White House spokeswoman Dana Perino declined to elaborate.


Has the White House once again violated federal law? Well, it's difficult to say. That's because when Congress defunded TIA, it created an escape hatch. The key provision of the Department of Defense Appropriations Act of 2004 which defunded TIA states that:
Sec. 8131. (a) Notwithstanding any other provision of law, none of the funds appropriated or otherwise made available in this or any other Act may be obligated for the Terrorism Information Awareness Program: Provided, That this limitation shall not apply to the program hereby authorized for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence, as described in the Classified Annex accompanying the Department of Defense Appropriations Act, 2004, for which funds are expressly provided in the National Foreign Intelligence Program for counterterrorism foreign intelligence purposes.

(b) None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:

(1) lawful military operations of the United States conducted outside the United States; or

(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non-United States citizens. (c) In this section, the term "Terrorism Information Awareness Program" means the program known either as Terrorism Information Awareness or Total Information Awareness, or any successor program, funded by the Defense Advanced Research Projects Agency, or any other Department or element of the Federal Government, including the individual components of such Program developed by the Defense Advanced Research Projects Agency.

The statute allows the President to continue elements of TIA (and create new ones) in secret, funded by a classified portion of the Defense Department Appropriations Act. Thus, we don't know how many parts of TIA continued after 2003 or are still in operation to this day, funded with Congress's blessing. But according to the 2004 Defense Department Appropriations Act (which was actually passed in 2003), these secret programs must be for intelligence or surveillance wholly outside the United States or, if within the United States, they must be wholly directed at persons who are not United States citizens. That means in particular that something like the current NSA domestic surveillance program would not be permitted, because it examines phone calls that occur at some point in the United States and may involve U.S. citizens. Thus it is not "wholly" overseas or "wholly" directed at non-U.S. citizens. Nor, for that matter, would the NSA program that seeks to create a database of all U.S. phone calls, because these phone calls involve domestic communications and are overwhelmingly between U.S. citizens.

In fact, if the statutory language is to be believed, we can conclude that most if not all of the original TIA program was meant to be defunded, because, as originally conceived, it was directed at commercial transactions and personal communications within the United States and overwhelmingly involving American citizens.

That means, that even though we do not know the precise details of the elements of the TIA program that are still in operation, there is a very good chance that they are illegal, even under the secret escape hatch created by Congress in 2003.

What to do? The problem, as you may have expected, is oversight. The Administration has stated that these programs are legal because they fall under the escape hatch. But there is no way of knowing whether that is true, and the USA Today story suggests that it is not true: many of these programs involve domestic surveillance and include U.S. citizens. Members of Congress who are permitted to see classified information could provide the public with oversight, but Congress has thus far been particularly feckless in this regard. The NSA program is a perfect example: Congress paid little attention to the program until the New York Times revealed its existence, and then, as the recent Specter bill suggests, instead of trying to hold the Administration to account, it has mostly tried to facilitate what the Administration had already been doing illegally.


Sunday, July 23, 2006

ABA Task Force Report on Presidential Signing Statements

Marty Lederman

The American Bar Association this evening released a Report by a bipartisan task force on presidential signing statements and the separation of powers. The Report was prompted by the President’s stealth signing statement regarding the McCain Amendment back in December, and by the terrific archival work of Phillip Cooper, Christopher Kelley and Charlie Savage, demonstrating the Bush Administration’s prodigious use of signing statements to announce the President’s constitutional doubts about numerous statutory enactments, and the President's intentions to construe and implement numerous statutory provisions in a manner inconsistent with legislative intent.

There is much in the Report with which I agree -- especially (i) its recommendation that the President should work much harder with the Congress before passage of a bill to explain the Executive's constitutional objections, and to use the legislative process to craft a statute without constitutional infirmities -- that is to say, a strong presumption that nonenforcement of a law should be, at best, a measure of last resort; and (ii) its conclusion that the President has an obligation to be much more transparent and forthcoming, about Executive practice and theory, whenever the Administration refuses to implement a statute in the manner Congress intended.

But I am a bit surprised by the Report's central conclusion, which is that the President may not refuse to enforce statutes that he deems unconstitutional. The Report urges that the President should veto any bill that contains unconstitutional provisions, and concludes that it is "contrary to the rule of law and our constitutional system of separation of powers" to issue signing statements claiming an authority, or stating an intention, to disregard or decline to enforce part of a law that the President has signed. (As I read the Report, the Task Force is not really opposed to the signing statements announcing such an intent not to enforce, as such -- instead, it is opposed to the practice of constitutional-objection-based non-enforcement.)

As the Report notes, this recommendation would cut against a long history of Presidents declining to enforce statutes that they deem unconstitutional (although there's some dispute about exactly how old or frequent the practice is). And, as the Report also notes, it's contrary to the views of the Office of Legal Counsel in the Clinton Administration, as expressed in Assistant AG Walter Dellinger’s 1994 memorandum to Abner Mikva. (Disclosure: I worked in OLC at the time.)

To be sure, a President may not exercise a dispensing power to ignore statutes that he thinks are unwise, or wrong, or politically inexpedient. See Kendall. He has an obligation under Article II to faithfully execute the laws. But that includes an obligation, above all, to faithfully execute the Constitution. Thus, in some very limited and relatively rare circumstances, the President might best fulfill his constitutional obligation to faithfully execute the laws by refusing to enforce a statutory provision.

Which is not to say that he can or should always choose noncompliance, every time he has constitutional doubts. The question of when the Executive ought to refuse to enforce a statute -- rather than, say, the more common practice of enforcing the statute but then not defending it in court -- is a very difficult and sensitive one, which has inspired a rich literature on the subject. For some of the best treatments, see that Dellinger memo, as well as the colloquy a few years back in Law & Contemporary Problems between my former OLC colleagues Dawn Johnsen and David Barron, along with Peter Strauss. Here’s Walter Dellinger on this point:
Th[e] decision to refuse enforcement on constitutional grounds] is necessarily specific to context, and it should be reached after careful weighing of the effect of compliance with the provision on the constitutional rights of affected individuals and on the executive branch's constitutional authority. Also relevant is the likelihood that compliance or non-compliance will permit judicial resolution of the issue. That is, the President may base his decision to comply (or decline to comply) in part on a desire to afford the Supreme Court an opportunity to review the constitutional judgment of the legislative branch.
But if I'm reading it correctly, the Task Force Report appears to go much further, condemning the practice of constitutional nonenforcement in any circumstances, advising that a veto is appropriate even where a plainly unconstitutional provision appears in an otherwise important omnibus bill (see page 23).

It is, I suppose, understandable that an ABA Task Force would focus on a phenomenon -- the President reserving the right not to enforce constitutionally dubious statutes -- that characterizes all Administrations, Democratic and Republican alike. I only hope that such focus does not detract attention from what is novel and alarming about the practice in the current Administration -- principally, the substance, the merits, of President Bush's constitutional objections.

I hope to have time to write more on this subject later, but other commitments beckon . . .

Proof Positive That Arlen Specter Does Not Read Balkinization

Marty Lederman

And here I thought everyone did . . .

In tomorrow's Washington Post, Senator Specter has this Op-Ed defending his indefensible so-called "compromise" bill on the NSA/FISA question.

Specter writes:
Critics complain that the bill acknowledges the president's inherent Article II power and does not insist on FISA's being the exclusive procedure for the authorization of wiretapping. They are wrong. The president's constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct [Specter cites the three courts of appeals decisions, pre-FISA, concerning the President's "inherent" power], FISA is not the exclusive procedure. If the president's assertion of inherent executive authority meets the Fourth Amendment's "reasonableness" test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power. The bill does not accede to the president's claims of inherent presidential power; that is for the courts either to affirm or reject. It merely acknowledges them, to whatever extent they may exist
If Senator Specter would only bookmark Balkinization, he would know that this is utter malarkey. Whether the President has the "inherent" authority to engage in such surveillance, as those courts of appeals held -- and as I would concede, at least as to some of the NSA program -- tells us absolutely nothing about whether a statute can constitutionally limit that authority, as FISA does. To be or not to be -- whether "the president's constitutional power exists or does not exist" -- is not the question.

This basic misunderstanding of modern separation-of-powers doctrine, and of Youngstown and Hamdan, continues to trip up Specter. (Where's his staff? Haven't they shown him footnote 23 of Hamdan?)

At the end of his Op-Ed, Specter writes: "In my opinion, it is intolerable to let this matter drift indefinitely. If someone has a better idea for legislation that would resolve the program's legality or can negotiate a better compromise with the president, I will be glad to listen."

Here's a better idea: Let the Article III courts decide the lawsuits, currently pending, that raise the question. And if you're looking to get behind some effective legislation, Senator, how about throwing your support to the Schumer bill, which would strengthen the ability of plaintiffs in those cases to keep the cases alive against claims that they don't have standing?

Thursday, July 20, 2006

Hobbes on the Euphrates

Scott Horton

Back in April, I found myself in Baghdad across the table from one of the nation’s most prominent judges. A man with a reputation for integrity and independence, he had resigned from the bench rather than implement a cruel set of directives issued by Saddam Hussein. He suffered and was forced into a marginal existence thereafter. The Coalition forces, noting the respect his name commanded, tapped him for a particularly sensitive role, which he has held ever since. Since judges are killed at the rate of one-per-week in Iraq, however, I am going to refrain from using his name.

In a wide ranging discussion, he came very quickly to talk about the occupation and its shortcomings.

“We despised Saddam Hussein, and his overthrow raised such wonderful possibilities for Iraq. But how could a country like the United States behave so stupidly as it did in those first crucial months? Saddam was a nightmare. But our country had a strong state with secular traditions. That needed to be preserved at all costs. Instead the Americans smashed that state. What did they expect Iraqis would do? It sent people scurrying back to the basic building blocks of our society, which are the clans and tribes. People turned to them for basic self-protection, not because of any political conviction. And this has led directly to the social disintegration we have today. The choices that the coalition took had consequences. You destroyed the state and you failed to put order in its place. You created chaos, in other words. And now we have to try to live with the consequences of the coalition’s decisions.”

These comments dovetailed with a “lessons learned” analysis I understand was done within the Department of Defense. As a part of the review, a “lack of cultural awareness” of Iraqi society was repeatedly cited. A DOD anthropologist notes that many of the most serious mistakes made in the early phase of the occupation relate to a misunderstanding of the consequences of the fall of the state. Just as my interlocutor noted, the people turned immediately to family ties for protection.

Surely political scientists already know this. The first chapters of Thomas Hobbes’ Leviathan reflect exactly the points that the Iraqi judge was making. With the collapse of the state and with no new order to replace it, Iraq fell into the war “of all against all.” Hobbes wrote,

“During the time men live without a common power to keep them all in awe, they are in that conditions called war; and such a war, as if of every man, against every man… To this war of every man against every man, this also in consequent; that nothing can be unjust. The notions of right and wrong, justice and injustice have there no place. Where there is no common power, there is no law, where no law, no injustice. Force, and fraud, are in war the cardinal virtues.” (ch. 13).

Put differently, the occupation heralded by the capture of Baghdad lacked the essential characteristic of an occupation - namely a new order. Hence, in Hobbesian terms, it was that form of war which encompasses the natural state of man.

In the August issue of Harper’s, Ken Silverstein probes more deeply into this process of social disintegration. He takes as his vehicle the rise of one particularly powerful, but shadowy figure in the current Iraqi Government: Bayan Jabr, the current minister of finance. Silverstein dubs him the “Minister of Civil War.” This article is fascinating and it offers an unusual glimpse deep inside the transformative process in Iraq that coincided with the “rule” of the Coalition Provisional Authority. This was a period which combined immense attention to public relations with Western media with an excruciatingly poor grip on the cancer that was developing in Iraq. The article is a must-read.

Wednesday, July 19, 2006

Stem Cell Compromise

Mark Graber

Seems to me that the perfect compromise that might resolve the stem cell controversy is for the scientific community to agree to do research only on embryos that could possibly mature into terrorists. After all, our president who so emphasizes morality believes there is nothing immoral about torturing persons who are suspected of being terrorists, even in the absence of any legal procedure that even confirms the suspicions are reasonable (much less a legal procedure which convicts them of any crime). Our president who so emphasizes morality also finds nothing immoral about killing innocent civilians and children in military missions that also kill a certain number of terrorists. If we can torture and kill people suspected of terrorism or people who live near people suspected of terrorism, then surely we ought to be allowed to experiment on embryos that we suspect might have become terrorists.

What the Bush Veto Means

JB

Perhaps you think that the Bush veto of the stem cell bill today suggests a divided Republican Party, or a weakened presidency, or a newfound ability of Democrats to form bipartisan collations with their colleagues across the aisle. In fact, it means none of these things.

Bush has never vetoed a bill before because (1) his party has controlled both houses of Congress throughout most of his presidency and because (2) vetoing was not the most politically propitious alternative. That's to be expected when the President and the Congress are from the same party. Usually the President could get what he wanted-- or avoid most of what he didn't want-- through his Republican allies reshaping or watering down bills, jamming up legislation in committee, or through Presidential signing statements. It just so happened that with this particular piece of legislation, politics dictated that the veto was the best alternative both for Bush and for the Republicans in Congress.

To understand why, over five years into his Presidency, George W. Bush finally vetoed a piece of legislation, it's worth comparing President Bush's veto of the stem cell bill with two other pieces of legislation that he strongly opposed but nevertheless allowed to become law: The McCain Feingold Campaign Finance Bill and the McCain Amendment which became part of the Detainee Treatment Act (DTA). (You will note, not entirely coincidentally, the presence of John McCain's name in both pieces of legislation).

First let's compare the stem cell bill with the DTA. The DTA was part of a very large defense appropriations bill that it would have been quite difficult to veto. Congressional leaders deliberately attached it to that appropriations bill. Hence the President worked hard to weaken the bill by limiting the jurisdiction of the federal courts to hear allegations of prisoner mistreatment. This is what the Graham-Kyl amendments did (Senators Graham and Kyl even went so far as to insert bogus legislative history in the Congressional Record to help the President's cause). Moreover, when the President signed the bill, he offered a signing statement that indicated that he reserved the right, at some undisclosed point in the future, and in various undisclosed ways, to refuse to enforce it. So although he signed the bill, we have no idea whether it will really do what it says. And that's just the way the President wants it.

The stem cell bill was different from the DTA in two important respects. First,the Congress arranged matters so that the bill was not hitched to other crucial legislation that the President would be politically unable to veto. The fact that Congressional leaders did this is quite significant, and it suggests that Republican supporters of the bill were far less upset about the possibility of a Presidential veto than the public debate might lead one to believe. Indeed, the most important story is not why the bill was vetoed, but what political bargains (and Congressional rules) led to it not being attached to other more important pieces of legislation.

Second, a signing statement made far more sense in the case of the DTA than in the case of the stem cell bill. The President might have issued a signing statement announcing that he would withhold any funds appropriated for stem cell research. But a signing statement to this effect would be a far less effective alternative. A signing statement threatening to withhold funding would have no obvious constitutional basis for objection-- unlike the signing statement for the DTA-- and would itself have precipitated a constitutional debate about impoundment of appropriated funds that had lain mostly dormant since the Nixon years. It was far cleaner and easier just to veto the legislation, especially since Congress had not attached it to a crucial appropriations measure. Perhaps equally important, a veto is a far more powerful political gesture; a signing statement would seem particularly devious and unsatisfying, both to the public at large, and, perhaps more importantly, to the President's supporters in the pro-life movement, who would have demanded a clear rejection of the bill rather than allowing it to become law.

An equally interesting comparison is to the McCain-Feingold Campaign Finance bill, which the President opposed but ultimately signed rather than veto. The most important difference is the political meaning of the veto. The White House probably predicted that vetoing McCain-Feingold in early 2002 would portray the Republicans as the party of corruption and would hurt the party's chances in the 2002 and 2004 elections. (Remember that the House didn't pass McCain-Feingold until after the collapse of Enron). By contrast, the White House probably imagines that vetoing the stem cell bill does more good than harm for Republicans: it signals to the conservative base that the President supports the pro-life agenda while allowing individual Republican Congressmen and Senators to signal to moderates and independents that their views are different.

In sum, this first veto of the Bush Presidency does not signal anything out of the ordinary, other than ordinary politics. Of course, if the Republicans lose one or both houses of Congress in the 2006 elections, we may see a lot more vetoes coming from this White House. But that, too, will be an entirely predictable consequence of ordinary politics.

Mission Accomplished, Indeed

JB

From today's Los Angeles Times:
Retaliatory massacres by gunmen and bombers linked to rival Muslim sects have left more than 130 people dead across Iraq over the last two days, the latest casualties of what some politicians now are calling an undeclared civil war.

At least 57 Iraqis were killed Tuesday and scores more injured when a suicide bomber lured a group of day laborers to his minivan with the promise of work before setting off explosives.

The bombing in Kufa rained blood, burnt debris and charred body parts on a small market across the street from the Muslim bin Aqil mosque, the main platform for radical Shiite cleric and militia leader Muqtada Sadr.

Since the beginning of May, attacks by Sunni Arab and Shiite Muslims have claimed the lives of more than 6,000 Iraqi civilians, according to a United Nations study and Iraqi police reports.

The Kufa blast, coming on the heels of mass killings and bombings attributed to Sadr's Al Mahdi militia and its Sunni Arab enemies, brought the battle to the Shiite cleric's doorstep, igniting fears of a fresh wave of reprisal killings.

"The message is clear, and the message confirms the sectarian differences," said Fadhil Sharih, a leader of the Sadr movement. "It seems clear that it's been moving toward the direction of civil war."

U.S. and Iraqi government leaders have argued that the 150,000-strong foreign troop presence has kept the country from descending into full-scale civil war. But many Iraqi officials fear the threshold has been crossed.

"What is happening in Iraq is a disaster and a tragedy," Adnan Dulaimi, a Sunni Arab leader, said in an interview.

"It's bloodshed and killing of the innocents, killing the elderly and women and children. It's mass killings. It's nothing less than an undeclared civil war."


Meanwhile, CNN reports that Iraqi civilians are dying in large numbers:
"More than 14,000 civilians have been killed in Iraq in the first half of this year, an ominous figure reflecting the fact that "killings, kidnappings and torture remain widespread" in the war-torn country, a United Nations report says.

Killings of civilians are on "an upward trend," with more than 5,800 deaths and more than 5,700 injuries reported in May and June alone, it says.

The report, a bimonthly document produced by the U.N. Assistance Mission for Iraq, covers May and June, and includes chilling casualty figures and ugly anecdotes from the insurgent and sectarian warfare that continues to rage despite the establishment of a national unity government and a security crackdown in Baghdad.

The report lists examples of bloody suicide bombs aimed at mosques, attacks on laborers, the recovery of slain bodies, the assassinations of judges, the killings of prisoners, the targeting of clergy -- all incidents dutifully reported by media over these three-plus years of chaos in the streets."


This was George W. Bush's war of choice. He thought he could make the world better with force of arms, with shock and awe. In May of 2003, he got dressed up in a flight suit and sat on a fighter plane and pretended to be a great war hero. Here is what he said:
Major combat operations in Iraq have ended. In the Battle of Iraq, the United States and our allies have prevailed. And now our coalition is engaged in securing and reconstructing that country.
. . .
In the images of fallen statues, we have witnessed the arrival of a new era. For a hundred years of war, culminating in the nuclear age, military technology was designed and deployed to inflict casualties on an ever-growing scale. In defeating Nazi Germany and imperial Japan, Allied Forces destroyed entire cities, while enemy leaders who started the conflict were safe until the final days. Military power was used to end a regime by breaking a nation. Today, we have the greater power to free a nation by breaking a dangerous and aggressive regime. With new tactics and precision weapons, we can achieve military objectives without directing violence against civilians. No device of man can remove the tragedy from war. Yet it is a great advance when the guilty have far more to fear from war than the innocent.

Not quite.

This is not the first time that misguided leaders believed they could control the chaos of war and make it serve their will. It won't be the last. But one has to shake one's head in amazement and wonder what combination of arrogance, ignorance and hubris led this President to be so confident that he, finally, had mastered the art of destruction, that with the aid of new tactics and new technology the war he started would reach only the guilty and spare the innocent.

Note to Senator Specter -- A Youngstown Refresher

Marty Lederman

Dear Senator Specter: On several occasions, most recently at yesterday's hearing with the Attorney General, you have articulated the following reasoning in (possible) support of the legality of the NSA surveillance program:

1. Several courts of appeals held, pre-FISA, that the President has "inherent" constitutional authority to engage in warrantless electronic surveillance for purposes of foreign affairs or national security, even where such surveillance might intercept communications of U.S. persons -- at least as long as the surveillance passes Fourth Amendment muster. (NOTE: The leading pre-FISA case, Zweibon v. Mitchell, held that such warrantless surveillance would not satisfy Fourth Amendment scrutiny where the target of the surveillance is not a foreign power or agent of a foreign power. See page 1356 n.10 here.)

2. If the President has an "inherent power" to engage in certain conduct, then a duly enacted statute may not restrict the President's exercise of that conduct.

3. FISA restricts such conduct.

Ergo,

4. If the courts of appeals were correct that the President has an "inherent" power to engage in such warrantless surveillance, FISA's restrictions of it are unconstitutional. As you put it yesterday, if the President has such an inherent power, then the provision of FISA establishing the "exclusive means" of electronic surveillance is "superseded."
This is not correct, because premise No. 2 is wrong -- a category error.

The President has a great number of constitutional powers -- call them "inherent" (or , as in Hamdan, "independent") powers -- that he may exercise in the absence of statutory restriction. (This is basically what's described in "Category II" of Jackson's Youngstown concurrence.)

But the fact that a power is "inherent" does not mean that it is exclusive, or non-defeasible.

For examaple, under the Commander-in-Chief Clause alone -- at least as it has come to be understood in modern times -- the President has "inherent" authority: to set rules for the military; to establish courts martial and (possibly) military tribunals; to deploy troops; to govern and make rules for occupied territory; to seize enemy property (think of the Emancipation Proclamation); to engage in defensive military measures; even, to some undetermined and contested degree, to introduce troops into hostilities (e.g., Korea, Bosnia, Haiti, Somalia, etc.); and so on.

But this does not mean that Congress may not enact statutes to regulate these functions. Of course it can. For exmaple, the Court held in Swaim v. United States, 165 U.S. 553 (1897), that the President has inherent authority to convene courts-martial in the absence of statutory authority. But that doesn't mean that Congress cannot, by statute, regulate how such courts-martial will operate. And once it does so, the President is bound to comply with statutory limits. See Loving v. United States, 517 U.S. 738 (1996).

Similarly, in Hamdan itself, the Court assumed for purposes of argument (see top of page 28) what has been assumed since the Civil War, namely, that the President may constitutionally convene military commissions to try suspected enemies for violations of the laws of war without the sanction of Congress in cases of controlling necessity. But, the Court went on to explain, "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)."

In other words, deciding that a presidential power is "inherent" or "independent" does not begin to answer the question of whether it is defeasible, or regulable, by statute.

Thus, even if those courts of appeals you cite were correct that the President would have "inherent" constitutional authority to engage in warrantless electronic surveiilance, FISA placed limits on such surveillance and specifically restricted the President from doing what his "inherent" powers might allow. That limitation is perfectly constitutional. Nor did the courts of appeals in those cases suggest otherwise. To the contrary, in the one case decided after enactment of FISA, United States v. Truong Dihn Hung, the court indicated that FISA’s restrictions were constitutional. See 629 F.2d at 915 n.4 (noting that "the imposition of a warrant requirement, beyond the constitutional minimum described in this opinion, should be left to the intricate balancing performed in the course of the legislative process by Congress and the President").

Therefore the provisions of your bill that would elimimate that "exclusive means" restriction, and that would expressly reinstate a provision ceding the President the right to act in accord with his inherent powers, would undo FISA altogether and work a radical change in the law that has governed surveillance for almost 30 years. Perhaps that would be advisable social policy; perhaps not. But it would decidedly not be business as usual. See my previous post here, and Patrick Keefe in Slate today, summarizing the radical changes in the Specter bill.

For further explanation, see our letters here and (most recently) here, and Jack Balkin's Youngstown primer post here. And Walter Dellinger to similar effect (with a similar plea to Senator Specter) in the immediate wake of Hamdan.

Hope this clarifies matters. At the very least, all this confusion with respect to the notion of "inherent" powers -- as if such an adjective were in the Constitution itself! -- is proof-positive that we ought to heed Justice Jackson’s caution that "[l]oose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers," and that terms such as "'[i]nherent' powers, 'implied' powers, 'incidental' powers, 'plenary' powers, 'war' powers and 'emergency' powers" are often bandied about "without fixed or ascertainable meanings." 343 U.S. at 646-647.

Sincerely,

As If Hamdan Never Happened: Don't Give an Inch on Article II

Marty Lederman

As I noted here, DOJ is asserting the rather remarkable view that the Court's decision in Hamdan "does not affect our analysis of the Terrorist Surveillance Program." A response to this proposition from a group of constitutional scholars and former government officials (of which I am part) is here.

On Monday, DOJ submitted answers to 109 Questions on the NSA/FISA issue that the Senate Judiciary Committee posed to the Attorney General following his testimony last February. It's about what you'd expect: DOJ refuses to answer virtually all factual inquiries about the NSA program; strongly suggests that there are other secret surveillance programs in addition to the "Terorrist Surveillance Program" that are not limited in the ways the TSP is said to be; and won't reveal any internal deliberations or memoranda -- except, of course, those that it chooses to disclose.

DOJ's basic legal defense of the NSA program apparently has not changed since February -- as far as I can tell on a quick read, there's nary even a mention of Hamdan.

A couple of things are noteworthy, however:

1. DOJ refuses to concede that Congress could prohibit physical abuse of POWs (Question 100: wouldn't be "prudent" to comment on the constitutionality of such "abstract[ly]" described legislation); refuses to disclaim the possibility that the McCain Amendment (prohibiting cruel, inhuman and degrading treatment of all detainees) might unconstitutionally restrict the President (Question 101: refusing to disclose DOJ memos that apparently address this question); won't take a view on whether the Uniform Code of Military Justice might be unconstitutional as applied in some circumstances (Question 36); and won't even concede that the President could not ignore the torture statute (Question 99).

In other words, they're not giving an inch on their Article II arguments.

This is especially important with respect to the War Crimes Act, which is now in the headlines as a result of the Court's ruling that Common Article 3 protects Al Qaeda detainees. (Violations of Common Article 3 are war crimes, pursuant to 18 USC 2441.) DOJ represents (Question 98) that the President "has examined the obligations of the United States under the international conventions enumerated in [the War Powers Act] and has required that his subordinates abide by those obligations." That's reassuring -- although the Attorney General yesterday complained that the standards incorporated in Common Article 3 are so difficult to understand that a statutory clarification is in order.

However, it's important to note that even in this context, DOJ does not disclaim the possibility of an Article II override: DOJ will not even answer whether the War Crimes Act can limit the President's constitutional authority. (DOJ represents that "we have not examined the interaction between the President's Commander in Chief power and the War Crimes Act of 1996." I suppose that depends on who DOJ means by "we": A draft OLC memo sent by John Yoo and Robert Delahunty to the Pentagon General Counsel on January 9, 2002 advised that to the extent the War Crimes Act were construed to apply the standards of Common Article 3 to the conflict against Al Qaeda, it "would represent a possible infringement on presidential discretion to direct the military.")

2. DOJ states (Question 102) that there are "numerous cases in which the Supreme Court specifically has acknowledged the limitations on Congress's ability to regulate the President's conduct of foreign affairs generally and military campaigns specifically."

The emphasis on the word "numerous" is DOJ's own -- which is odd, because DOJ cites exactly zero cases in which the Supreme Court has ever acknowledged any such limitations, "specifically" or otherwise. Indeed, DOJ cites only two SCOTUS cases at all:

i. First, DOJ cites Hamilton v. Dillon as "noting that 'the President alone' is 'constitutionally invested with the entire charge of hostile operations.'" This is, to say the least, not the most auspicious lead citation for DOJ's bold argument about how the Court has repeatedly acknowledged limitations of Congress's power to regulate the Commander-in-Chief's conduct of military campaigns. Hamilton did not deal with the Commander-in-Chief authority over the land and naval forces at all, let alone with statutory constraints on that power.

The case involved a Civil War regulation of the Treasury Department, imposing a fee on goods transported from the Confederacy to the Union. DOJ's "entire charge" quotation is accurate -- indeed, it's indisputable that no one else but the President has the charge of U.S. military campaigns -- but it doesn't begin to support DOJ's view about the constitutionality of statutory limits on the Commander-in-Chief power. Indeed, in the very sentence in which that quotation is embedded, the Court declined even to decide "[w]hether, in the absence of Congressional action, the power of permitting partial intercourse with a public enemy [the power at issue in Hamilton] may or may not be exercised by the President alone, who is constitutionally invested with the entire charge of hostile operations." 88 U.S. at 87. The Court did not need to opine as to the President's power in the "absence" of statute, because the Court's holding in the case was that the President's actions were statutorily authorized. Id. at 88-97. The Court understandably wrote not a single word in Hamilton about whether statutes could constrain any of the President's war powers.

ii. DOJ's only other citation to a Supreme Court case is to Ex Parte Milligan. This is somewhat ironic, since the holding in Milligan was that Congress had, in the Habeas Corpus Act of 1863, restricted the discretion of the President to try enemy collaborators for war crimes. DOJ relies not on the opinion of the Court, but on a dictum from Chief Justice Chase's concurrence that Congress may not interfere with the conduct of military campaigns -- a power that, Chase wrote, belongs to the Commander-in-Chief. In Hamdan, Justice Stevens cites language from Chase's concurrence to like effect. This dictum is, in fact, the best judicial authority DOJ has for its broad Article II claims. But as the decisions in Milligan, Hamdan and Rasul demonstrate, to the extent the Chase dictum is correct at all, it does not reflect a principle that would invariably restrict Congress's authority to restrict the President's power to deal with the enemy.

Tuesday, July 18, 2006

Tales from the Unitary Executive, Part II

JB

You may recall that the Bush Administration halted the Justice Department's probe into the legal ethics of the NSA's domestic surveillance program on the grounds that the Department's own lawyers lacked the necessary security clearance to investigate any possible misconduct. As I pointed out at the time, this had the ironic consequence that private phone company employees at AT&T and other corporations had sufficient security clearances to know what the NSA was doing- because they worked with the NSA in running the program-- but the Justice Department's own ethics lawyers did not.

Today Attorney General Gonzales noted that the decision to cut off any Justice Department inquiry into ethics violations was made by the President himself.

This revelation nicely symbolizes the problem we currently face. The unitary executive theory demands that there be a final chain of command in executive authority that leads all the way up to the President, or, in other words, that the President is the boss of everyone in the Executive Branch and, at least in theory, has the final say on anything that anyone in the Executive Branch does. (For the moment I put aside the obvious counter-examples in the independent federal agencies).

But if one adopts this vision of Executive power, then it becomes extremely important to have some other method outside the Executive branch of overseeing the decisions that the President makes. Otherwise the President will be sorely tempted to confuse what is necessary to safeguard the country with what helps him avoid oversight and political embarrassment, and he will use his position as capo di tutti capi of the Executive Branch to enforce his will.

For this reason, the idea of a unitary executive-- i.e., that the Executive Branch ultimately has one boss-- must not be confused with another idea sometimes also identified with the "unitary executive": the notion that the President has inherent authority to do certain things (because, for example, they are "executive" in nature) and that in doing them he may not be checked, impeded, regulated, or overseen by the other branches. Indeed, *precisely* because the President is ultimately the boss of everyone who works beneath him in the Executive Branch, somebody who *doesn't* work for him must be able to check him.

And what that means is that these two different interpretations of the unitary executive-- which are often confused with each other-- are actually at war with each other. You can have the President be the boss of everyone in the Executive Branch or who exercises executive functions. Or you can make the President immune from oversight and checking by the other branches. But you can't have both. If you have both, you don't have a system of checks and balances. You have a system that produces corruption, mismanagement, abuse of power and tyranny.


Sunday, July 16, 2006

The Letter

Scott Horton

Was Leo Strauss democracy’s best friend? In a letter written at the time of his emigration, Strauss describes his political principles - Fascist, Authoritarian, Imperialist

“We believe that failing to call a spade a spade is not scientific.”
— Leo Strauss, Thoughts on Machiavelli (1958)

In the last several months, the New York Times has run four pieces defending Leo Strauss from his critics. By comparison, the Times has run no pieces in which Strauss is actually criticized, which suggests an odd editorial posture. Indeed, the Times seems to have mounted a veritable campaign for the defense of the beleaguered Leo Strauss, which seems strange considering that he has been dead for over thirty years.

These pieces are remarkably consistent. For one, each turns the very serious criticism of Strauss and his relationship with the American Neoconservative movement into a point of ridicule. The criticism is grossly distorted and key elements are misstated. For another, they present Strauss as a “liberal democrat,” not in a domestic political context, but rather as a defender of the tradition of liberal democracy we associate with Locke, Hume and J.S. Mill.

The Liberal Critique of Strauss
The key criticisms of Straussian political thought are complex and difficult to summarize. There are a great number of liberal critics, but three seem to take the leading position: Shadia Drury, Stephen Holmes and Anne Norton (though Norton’s work may more accurately be called a criticism of Straussians than of Strauss himself, a point which is true to some extent of all three). Of these, Holmes does the most convincing job of contrasting Strauss with the thinking of the liberal tradition, and his critique can be summarized as follows:

(1) Strauss rejects the fundamental liberal idea that wide-open, uncensored public disagreement is a creative force, mobilizing decentralized knowledge and bringing it to bear on issues of public importance. Liberalism, above all, insists that the factual premises of the use of force must be tested in an open adversarial process, but Strauss’s entire philosophical posture is a sarcastic rejection of this idea. For Strauss, knowledge belongs to a few - we know ahead of time who can and who cannot contribute something serious to a discussion. This “closed club” view of knowledge and debate with its essentially anti-democratic premise contributed to the atmospherics of the Bush drive to war against Iraq.

(2) Strauss believed that the liberal-Enlightenment tradition was naïve, and in particular the notion of Enlightenment thinkers that “revelation” (religious myths and dreams) could be banned from politics (as noted below, this was the crux of Strauss’ dissertation done under the great Neo-Kantian Ernst Cassirer). For Strauss, this is impossible; the repressed will return; hence it is crucial for the secular few, the men of science, to bring religion into politics on their own terms. The American Neocons' bizarre alliance with America’s Religious Right follows directly from this analysis.

(3) One of the pillars of liberal democracy is the embrace of the Rule of Law, and the notion that no one, even the king or Executive, stands above the law. For Strauss this idea was foolishness. Strauss’ critique can be seen in his writings on Plato and Xenophon, but their origin clearly lies with the Nietzschean criticism of Christianity as a slave morality designed to trick and “tie down” the natural geniuses. Strauss applies this criticism to law; law spells weakness; law is a trick of the weak to tie down the strong. Hence, Strauss applauds the decisive leader who acts outside of the law to achieve his goals. Nevertheless, the consequences of Strauss’ dismissive attitude towards the Rule of Law can be seen today in the Neocon advocacy of jettisoning traditional norms of the law of armed conflict and in allowing the president to operate outside of clear criminal statutes (like FISA) as an aspect of his war-making powers.

(4) Strauss always said that liberalism was unable to defend itself; that it must be defended, if at all, by non-liberals, willing to go outside the rules. This argument again has a firmly Nietzschean aspect. While Strauss seeks to cast it in terms of writers of classical antiquity, it is hard to read much of his writings without having an image of Carl Schmitt come to mind. Strauss would present himself as a “savior” of liberalism, but in the end, like Schmitt, one must fear that he would “save” liberal democracy by putting it to death.

See Stephen Holmes, The Anatomy of Antiliberalism (1993).

Put simply, Strauss takes firm target at the core values of liberal democracy, and particularly the American variant. Before his arrival in America, Strauss was blunt in these criticisms. After his arrival, he adopted a far more circumspect approach. After all, he was in America and writing in English, and his own philosophy would demand that he flatter or indulge national prejudices and write as if he believed in them. Like his mentor, Ernst Cassirer, Strauss had concluded by the mid-thirties that Europe, and even Britain, was simply unsafe. Only America, with its formidable resources and protected by expansive oceans from its potential adversaries, offered the prospect of safe haven.

These aspects of Neocon thought are extremely important to Americans today. While the Bush Administration cannot really be cast as a bearer of pure Neocon thought, it does appear to have embraced many of these ideas with gusto, and has scored astonishing successes in implementing them.

Both the Rothstein review and the Smith book attempt to present Strauss as a person right at home with the land to which he emigrated and its Enlightenment tradition. This is extremely doubtful. But it is an act of serious deception to present Strauss as “democracy’s best friend” (to quote the last, a review essay by Edward Rothstein published on July 10, in turn quoting Steven Smith’s new book, Reading Leo Strauss: Politics, Philosophy, Judaism) without at least making clear the deep-boring criticism that Strauss directs at American democracy.

Strauss’ Intellectual Milieu
One thing consistent among these defenses of Strauss is either a remarkable ignorance of Strauss, the intellectual milieu from which he came, his life and his thinking, or conscious dissembling about them. Strauss is a fascinating figure, well worth reading today. His scholarship had a strong focus on a handful of texts from classical antiquity – principally Greeks such as Plato, Xenophon and Thucydides. This approach seems quaint to Americans, but for those who emerged from the academic milieu of the German-speaking world in the first decades of the twentieth century (think of novels such as Heinrich Mann’s Professor Unrat [The Blue Angel] or Hermann Hesse’s Unterm Rad [Beneath the Wheel]) it is actually typical. Strauss contemporaries like Karl Jaspers and Hannah Arendt, who like Strauss were close to Heidegger, had a focus on many of the same texts, though they do not adopt Strauss’ at times quite eccentric interpretations.

Strauss’ writing at the time he went into emigration and started the series of moves that led, ultimately, to the United States, serves powerfully to show just how doubtful the current efforts to rehabilitate Strauss are. Two contemporaries weigh heavily in Strauss’ writing and thinking: Martin Heidegger and Carl Schmitt. Strauss’ thinking and attitudes towards the politics of this seminal era make sense when seen against this background, but otherwise can be confusing. There seems little doubt that Strauss saw himself as an acolyte of Heidegger’s, and the thrust of his criticism of modern society (and his intellectually arrogant supposition to be the leader of a tiny clan of intellectuals who are fully cognizant of the depth of “the crisis of modern times”) and his fascination with texts of antiquity reveals a Heideggerian hallmark. Carl Schmitt was likewise a critical influence on Strauss’ concept on the state, and Schmitt’s own positive assessment of Strauss’ work on Hobbes enabled Strauss to secure a Rockefeller Foundation fellowship to study in Paris, and thus exit the disintegrating remains of Weimar Germany. As reflected by Strauss’ comments on Schmitt’s Der Begriff des Politischen (The Concept of the Political), there were few barbs hurled in this love fest. Like Diogenes Laërtius’ Pythagoras, Strauss puts his faith in the philosopher to salvage mankind from the cruel degradations of modern society. Schmitt, on the other hand, counts on the man of action. We might call it a guild distinction between an academically inclined lawyer and a philosopher tout court.

The Löwith-Strauss Relationship
Karl Löwith was another Heideggerian who was close to Leo Strauss in this period. Like Strauss, Löwith faced the dilemma of being a Jew anchored in the German academic community. By 1933 it was clear that Jews had no future in this system and that emigration was essential to those who wanted to pursue a livelihood in the academy. It was against this background that, on May 19, 1933, Strauss penned a letter that he consciously marks as a political confession.

The Letter
I attach below my translation of the letter, which I am posting in blog form to solicit comments and corrections or improvements. This is a document of great importance to understanding Strauss and his politics, and it’s important to get this right. My translation should at this point be viewed as a work-in-progress. The letter has a number of ambiguous turns of phrase, and ripped from its historical context it may be difficult to understand (I say this in part with irony because of Strauss’ fierce opposition to an analytical approach that puts writers in the historical framework of their times, but with respect to correspondence, I have no doubt that Strauss would agree with me). Moreover, whereas to one of Strauss’ contemporaries, anyone who did not master classical Greek (much less Latin) would be considered a hopeless rube, few serious scholars today have such linguistic tools. I have therefore incorporated annotations which provide necessary explanations, as well as translations of the non-German phrases (which I leave untranslated in the text) with some musings on the thoughts that I suspect they are designed to evoke.

In this letter, Strauss looks at the fate he faces in consequence of the Nazi seizure of power in Germany. He admits that it is impossible for him as a Jew to live under their regime, since they have adopted anti-Semitism as a keynote of their rule. But while expressing abhorrence at their anti-Semitism, Strauss consciously refuses fully to repudiate Nazi fascism. To the contrary, he accepts fascism as a legitimate bearer of “the principles of the right,” and he embraces them, namely: fascism, authoritarianism and imperialism. He then proceeds to ridicule the Enlightenment values of inalienable rights, quoting the French Declaration of the Rights of Man and of the Citizen from 1789 (though he could just as easily have quoted the American Declaration of Independence), and he quotes a passage of Virgil’s Aeneid, a passage which Carl Schmitt was also fond of quoting.

I am convinced that this is a very candid statement of Strauss’ politics at the time he wrote it, a reading signaled by his confessional closing. Indeed, anyone who carefully reads Strauss’ book on Hobbes (Hobbes’ politische Wissenschaft in ihrer Genesis, 1936, but largely complete in 1933; translated in English as The Political Philosophy of Hobbes: Its Basis and Its Genesis) or his dissertation, written on the anti-Enlightenment writer Friedrich Heinrich Jacobi, would suspect these sentiments.

Was Strauss a fascist?
It seems almost impossible to imagine a German-Jewish refugee in France, a man who describes his religious upbringing as “Conservative, if not Orthodox” actually embracing the political philosophy of his persecutors. On the other hand, we should be cautious about projecting postwar sensibilities back into the thirties. Strauss was a Middle European intellectual living in a period where liberalism looked exhausted and unable to function, and many of his contemporaries, and indeed many of Strauss’ mentors, were engaging with fascist thought. Specifically, we should consider that the two contemporary thinkers who appear to have exerted the greatest influence on Strauss at this time – Heidegger and Schmitt – were each entering into a dalliance with fascism. In their respective Faustian pacts, one emerged as the rector magnificus of one of Germany’s most famous universities, while the other (indeed, the week of this letter) became a Prussian State Councillor and key legal advisor to the Reich-Chancellor. This situation no doubt contributed to Strauss’ inability to make a clean break.

It seems fair to say that fascist thought was appealing to Strauss, otherwise why would he be willing to toy with the label? At the same time, the aspect of fascism that most appealed to Strauss is also evident from the letter: it is the reliance on thoughts of classical antiquity, particularly of the early imperial era of Rome, as they were distorted in the political mirror of the thirties - most effectively by the Italian fascists. We should take care to note the time of the letter: it comes a year before the famous Night of the Long Knives (Nacht der langen Messer), the point at which the Nazi regime first revealed its fangs by summarily executing Ernst Röhm and roughly a hundred figures associated with him, including a former chancellor and other prominent persons. There can be no doubt but that this and later events would have produced a more resolute turn by Strauss against the Hitler regime.

Nevertheless, the Löwith letter is profoundly revealing of the nature of Leo Strauss’ conservatism. It places his conservatism outside of the Anglo-American tradition that links to figures like Locke, Hume and Burke. Instead, it springs from a traditional Continental European variant which is deeply rooted in religion and in the notion of a benevolent (though sometimes not particularly benevolent) authoritarian leader legitimized by religion.

I note that Andrew Sullivan, in his forthcoming book, The Conservative Soul, takes a different view, putting Strauss in the tradition of conservatism of doubt. Andrew’s book is a significant accomplishment, and his dissection of trends in conservative thought in the last generation is little short of dazzling. However, I disagree with him about Strauss, and am particularly confident of my conclusions as to the young Strauss.

Strauss, Lessing and the Spinozastreit
For Strauss, the Enlightenment and its embrace of reason over faith as a political lodestar was a monumental wrong turn in European intellectual history. Moreover, Strauss was particularly convinced that the American Republic was built on a shaky foundation. In his dissertation, Strauss dwells at length on the so-called Spinozastreit that erupted in late 18th century Germany, involving Jacobi, Samuel Reimarus and the shining twin stars of the German Enlightenment, Gotthold Ephraim Lessing and Moses Mendelssohn. Considering Lessing’s towering position in the period as an advocate of tolerance (and notably also as an aggressive and convincing advocate for the emancipation of the Jews), Strauss has a hard time assailing him – but he attempts instead a bizarre and completely unconvincing posthumous conversion, suggesting that at the end of his life, Lessing had come back to religion and understood once again its proper role in society as a tool for those who govern. The particular vehicle that Strauss chooses for this purpose is reinterpretation of a less well known, but nevertheless important Lessing work. Ernst und Falk: Gespräche für Freimauer (1781) are the “Masonic Dialogues” in which Lessing quotes Benjamin Franklin and hails the American Revolution and the values it announced as the beginning of a new era for politics premised on reason and tolerance. The technique of dialogue introduces a hint of ambiguity to the work – ambiguity that Lessing felt he needed for a number of reasons, largely relating to his position as a public servant. However, Lessing’s preference for reason over faith, and particularly, his enthusiastic embrace of the American Revolution, lie at the undeniable center of the work. And they form precisely the perspective that Strauss struggles to debunk throughout his dissertation. All of which helps explain Strauss’ homesickness for Germany, and his lack of enthusiasm for the English-speaking world in general, and America in particular, at this snapshot point in 1933.

Strauss between Athens, Jerusalem… and Berlin
While Strauss appears alarmingly willing to accept the Nazis as the carriers of his Conservatism in May 1933, this certainly does not mean that he views fascism, or much less Nazism, as his political ideal. A close reading of his works at the time suggests a different perspective. He clearly had no love lost for the Weimar Republic and the values it embraced. He eagerly adopts Carl Schmitt’s critique of those values. While it is easy to cast Strauss in terms of the distant juxtaposition of Athens and Jerusalem, if we look for models of more immediate application, it seems clear that Strauss saw in Wilhelmine Germany a close approximation of his conservatism: an authoritarian state with a strong military tradition, a prodigious academy and flourishing art, and also a formal role for religion. Curiously, it’s precisely those elements of Wilhelmine Germany against which Strauss’ suspicions are turned – the left and the advocates of bourgeois liberalism - that seem to present something redeeming in an otherwise disturbing, if not suffocating intellectual landscape.

It may be argued that during his forty years in emigration, Strauss’ political views changed – that the horror of the Second World War, which clearly touched him deeply, caused a reassessment of his conservative principles. Strauss’ writings after the war present some basis for such argument. But they also are filled with passages that suggest straight-line continuity with the thinking he expressed in his letter to Löwith of May 1933. One example would be Strauss’ 1948 book On Tyranny, a study in Xenophon’s dialogue Hiero, in which Strauss embraces the concept of the philosopher-tyrant “who has committed any number of crimes” in the pursuit of the interests of his polis. The work and many of the thoughts expressed it in resonate with fascism, and particularly the Italian variant – and this resonance seems more closely linked to Strauss than to Xenophon.

I don’t ultimately consider Strauss a fascist, though I believe his writings fuel legitimate suspicion. I am troubled by the extent to which he is prepared to play with fascist thoughts, which now belong on history’s dust heap. But conversely, Strauss does not by any stretch of the imagination embrace democracy as the American Founding Fathers saw it. He is a clear critic of their project, and his criticisms seem remarkably consistent with the tactics that Neocons have used to come to power and hold on in the face of withering public criticism and rejection. All of which should suggest to the would-be guardians of America’s democratic traditions the wisdom of Isaiah Berlin’s words:

“I am bored by reading people who are allies, people of roughly the same views. What is interesting is to read the enemy; because the enemy penetrates the defenses.”

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The Letter: An English Translation

Paris, May 19, 1933

Dear Mr. Löwith,

On your behalf I have in the meantime made the necessary overture to Groethuysen, who is in London. Besides this I had occasion to speak with Van Sickle, the head of the Rockefeller Foundation, and informed him about you, your situation, your work and your interests. He made a note of your name, so I am sure he will remember it when he comes across it in Fehling’s letter.(1)

As concerns me, I will receive the second year. Berlin recommended me, and that was decisive.(2) I will also spend my second year in Paris, and I will attempt in this time to undertake something that will make my further work possible. Clearly I have major “competition”: the entire German-Jewish intellectual proletariat is assembled here. It’s terrible - I’d rather just run back to Germany.

But here’s the catch. Of course I can’t opt for just any other country - one doesn’t choose a homeland and, above all, a mother tongue, and in any event I will never be able to write other than in German, even if I must write in another language. On the other hand, I see no acceptable possibility of living under the swastika, i.e., under a symbol that says nothing more to me than: you and your ilk, you are physei(3) subhumans and therefore justly pariahs. There is in this case just one solution. We must repeat: we, “men of science,” - as our predecessors in the Arab Middle Ages called themselves - non habemus locum manentem, sed quaerimus…(4) And, what concerns this matter: the fact that the new right-wing Germany does not tolerate us says nothing against the principles of the right. To the contrary: only from the principles of the right, that is from fascist, authoritarian and imperial principles, is it possible with seemliness, that is, without resort to the ludicrous and despicable appeal to the droits imprescriptibles de l’homme(5) to protest against the shabby abomination.(6) I am reading Caesar’s Commentaries with deep understanding, and I think of Virgil’s Tu regere imperio… parcere subjectis et debellare superbos.(7) There is no reason to crawl to the cross, neither to the cross of liberalism, as long as somewhere in the world there is a glimmer of the spark of the Roman thought. And even then: rather than any cross, I’ll take the ghetto.

I do not therefore fear the fate of the émigré - at most secundum carnem:(8) the hunger or similar deprivations. - In a sense our sort are always “emigrants”; and what concerns the rest, the fear of bitterness, which is certainly very great, and in this sense I think of Klein(9), who in every sense has always been an emigrant, living proof for the fact that it is not unconquerable.

Dixi, et animam meam salvavi.(10)

Live well! My heartiest greetings to you and your wife

Leo Strauss

My wife sends her thanks for your greetings, and reciprocates heartily.

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Published Source: Leo Strauss, Gesammelte Schriften, Bd. 3: Hobbes’ politische Wissenschaft und zugehörige Schriften, Briefe (Heinrich Meier, ed.), Metzler Verlag 2001, pp. 624-25.

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Notes:

(1) In 1934, Karl Löwith, another Heideggerian, received a grant from the Rockefeller Foundation enabling him to leave Germany for studies in Italy; he subsequently traveled to Japan, and then to the United States, where he taught at the Hartford Theological Seminary and the New School in New York. He returned to Germany in 1952 with an appointment as professor of philosophy at the University of Heidelberg.

(2) Strauss had received notification that the Rockefeller Foundation was giving him a second year’s scholarship for post-graduate work in Paris.

(3) Greek in original, “by nature.” The following term, rendered here as “subhumans” is the Nietzschean expression Untermenschen.

(4) Latin, “We don’t have a lasting place, but seek…” The key phrase locum manentum appears repeatedly in the Vulgate Bible. Strauss’ sense would appear to be a conflation of Maimonides and Nietzsche – something like this: deterritorialized, uprooted, men of science cannot in good conscience identify with any exclusive group; that is for lesser men. On the other hand, identifying with diaspora Judaism may be a useful bridge.

(5) French, “inalienable rights of man” - quoted from the Declaration of the Rights of Man and of the Citizen, Aug. 26, 1789.

(6) In the original: “das meskine Unwesen,” the word “meskine” may be a Germanization of the French “mesquin” or Italian “meschino,” meaning “mean” or “shabby.”

(7) “Romans, be this thy care - these thine arts -/… to spare the humbled and/ to wear down the proud!” Virgil, Aeneid, lib. 6, line 851. In this quotation, Strauss characteristically elides the most famous portion of this passage, which relates to the obligation to “uphold the law of peace.” The passage is often quoted by Carl Schmitt.

(8) Latin, “with respect to the body.”

(9) Jacob Klein, another Heideggerian and friend of Strauss, with Strauss an advocate of the esoteric/exoteric approach to the study of classical texts, Klein emigrated and taught at St John’s College.

(10) Latin, “I have spoken and saved my soul.” A phrase associated with confessions, especially before the Holy Inquisition, though used ironically by Karl Marx and other political writers.

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I want to thank Alan Gilbert, Stephen Holmes and Fritz Stern for their many kind thoughts, suggestions and comments on the text. Any errors, however, are strictly the author’s.

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