Balkinization  

Tuesday, August 15, 2006

Brest, Levinson, Balkin, Amar and Siegel, 5th Edition

JB



The fifth edition of our casebook, Processes of Constitutional Decisionmaking, is now available. We've added a lot of new historical materials as well as recent cases. The 2006 Supplement is also available, which includes Hamdan v. Rumsfeld and coverage of the NSA controversy and presidential signing statements.

Several people have asked where they can find fuller versions of some of the cases that were in the 2005 Supplement, including Bush v. Gore and the several Rehnquist-era federalism decisions (Gonzales v. Raich, United States v. Morrison, Kimel, Garrett, and Hibbs). We've put all of these cases on our casebook website, www.conlaw.net. You can find these cases, and many others besides here. You are welcome to download these cases and distribute them to your students (or if you are a student, to download them for your con law class). In addition, if there are any other cases from the 2005 Supplement that you'd like to see included on conlaw.net, just send Sandy Levinson or me an e-mail and we will do our best to make sure they are included as well.


Monday, August 14, 2006

The CIA Cruelty Authorization Act of 2006

Marty Lederman

There have been several reports in recent days about drafts of the Bush Administration’s proposed amendments to the War Crimes Act. Now, Slate has published a version of those amendments that reportedly was "sent to Congress" last week. I'm informed that this proposal was, at most, shared with a few Republicans on the Hill, and that it is not the final version. Assuming, however, that this amendment is fairly close to what we will eventually see from the Administration, it is, indeed, a very big deal—but not quite for the reasons that have thus far been stressed in most accounts.

Currently, the federal War Crimes Act provides for criminal sanctions (up to life imprisonment, or even death in extreme cases) for all violations of Common Article 3 of the Geneva Conventions. Until the Supreme Court's decision in June in Hamdan v. Rumsfeld, this provision of the War Crimes Act was, for all practical purposes, inapposite to the conflict with Al Qaeda, because the President had determined that Common Article 3 categorically did not apply to that conflict. As we have explained several times in this space, however, the most important practical aspect of the Hamdan decision was the Court's holding that Common Article 3 does apply to the armed conflict with Al Qaeda.

Naturally, this created a big problem for the CIA, because several of the “enhanced” interrogation techniques that the Agency is reported to have been using are almost certainly prohibited by Common Article 3—and thus such techniques are now war crimes, punishable by severe sanctions.

Hence, the Administration's proposal to amend the War Crimes Act. The proposal (set out below) would limit the War Crimes Act to certain, identified subclasses of CA3 violations.

Most reports of the Administration's proposal have focused on one or more of three things:

1. Its defenders say that such an amendment is necessary to provide clarification to the Armed Services as to where the legal line is to be drawn in their treatment of detainees.

2. Several observers, including John Sifton in Slate, and others quoted in this Washington Post article, suggest that the Administration proposal is designed to immunize government officials for possible war crimes violations that occurred before the decision in Hamdan. [Clarification: John Sifton's fine, comprehensive essay is not only about backward-looking culpability; he also emphasizes, as I do, the immunizing of cruel treatment going forward.]

3. And most accounts of the proposal have focused on the fact that it would eliminate from the War Crimes Act all CA3 violations based upon "outrages upon personal dignity" and "humiliating and degrading treatment." Defenders of the Administration suggest that "mere" degrading treatment should not be treated as a severe "war crime," and that in any event that standard is too vague and variable (what's degrading to some might not be to others, etc.). Critics, by contrast, complain that eliminating "humiliating and degrading" treatment from the War Crimes Act will give a green light to the sorts of degradation and humiliation we saw at GTMO and at Abu Ghraib.

In my view, all three of these reactions misses the mark in important ways. The real importance of the amendment has little or nothing to do with the military, or with past conduct, and very little to do with "humiliating and degrading treatment." It is, instead, that this amendment is part of an effort to authorize the CIA to continue to use interrogation techniques that violate Common Article 3's prohibition on "cruel treatment and torture" -- including hypothermia, threats of violence to the detainee and his family, stress positions, "long-time standing," prolonged sleep deprivation, and possibly even waterboarding.

I'll explain briefly below why the initial responses are slightly off-the-mark in their emphases. But the important action -- the place everyone should be looking -- is in the first paragraph of the Administration's draft. That paragraph is entitled "Torture, inhuman treatment, or cruel treatment." This presumably is intended to give the impression that Paragraph (1) covers all violations of the latter half of subsection (1)(a) of Common Article 3, which flatly prohibits all "cruel treatment and torture." But paragraph (1) of the Administration draft does not come close to covering all of the cruel treatment and torture that Common Article 3 prohibits. That paragraph instead encompasses only conduct defined as "torture" under the federal torture statute, 18 USC 2340-2340A. Indeed, it incorporates directly the definition of torture from that federal statute.

The Administration has determined that the "enhanced" CIA techniques are not torture under the federal torture law. And, at least as to some of those techniques, they're probably right (although not as to others, such as waterboarding, which is intended to create severe physical suffering and thus is torture, contrary to what OLC apparently has concluded). Accordingly, those techniques -- again, that would be hypothermia, threats of violence to the detainee and his family, stress positions, "long-time standing," prolonged sleep deprivation, and possibly waterboarding -- would not be covered by the new War Crimes Act, even though they almost certainly are prohibited "cruel treatment" (or "torture") under Geneva Common Article 3.

Notice this: The Administration proposal identifies numerous specific categories of conduct that would violate the War Crimes Act. But it's no coincidence that none of those categories covers the CIA techniques -- not even threats. [UPDATE: Thanks to Jamie M. for pointing out that although paragraph 5 of the Administration proposal is entitled "Intentionally causing great suffering or serious injury," the text of that paragraph does not, in fact, prohibit "intentionally causing great suffering" -- again, because if it did, the CIA's techniques, many of which are specifically designed to cause great suffering (the better to elicit information), would be war crimes.]

Eliminating coverage of these techniques under the War Crimes Act would not be sufficient to authorize the CIA to continue using these techniques, because Common Article 3 itself would still prohibit them. That's why the Administration needs another couple of statutory amendments, too: One would adopt the "shock the conscience" standard of the McCain Amendment as the governing standard for all CIA interrogations (a tactic that I discuss here); and the other would cut off all judicial review of questions relating to the Geneva Conventions.

But make no mistake: The biggest part of the puzzle for the CIA is to eliminate the most serious deterrent to the use of these techniques -- possible war-crimes culpability.

Now, as to why the other reactions are not quite on-point:

1. The Proposal is Designed to Give Guidance to Military Personnel.

This is transparent nonsense. As I've previously written, the armed services are subject to standards far more restrictive than those found in Common Article 3 -- under the Uniform Code of Military Justice and the Army Field Manual (which they must apply, as a matter of statutory law). Moreover, they are trained to comply with the even higher standards of the protections for POWs in the Geneva Conventions. Why, then, would they need further legal clarification or modification of Common Article 3 or the War Crimes Act, which are much less restrictive than the standards that otherwise govern the armed forces? Answer: They don't. This amendment has nothing whatsoever to do with the military. It's about the CIA.

2. The Proposal is Designed to Provide Immunity for Past Misconduct.

I don't think so. To the extent officials violated the standards of Common Article 3 with respect to Al Qaeda prior to June 29, 2006 (the date of Hamdan), they could not be prosecuted for such violations of CA3 (as incorporated in the War Crimes Act), even without the Administration's amendment, because the President had determined that CA3 does not apply to the conflict with Al Qaeda, and due process would prevent any prosecutions for conduct undertaken in reasonable reliance on that presidential determination. (Regardless of what one thinks of the merits of the Common Article 3 question, the reliance would be deemed reasonable, since the legal conclusion was adopted by the President and affirmed by four Supreme Court Justices [Correction -- That should be three Justices: Justice Alito did not join that part of Justice Thomas's dissenting opinion.] And even if you disagree with me on that due process question, trust me: No Justice Department, not even in the most anti-Bush Administration imaginable, would ever prosecute someone for violation of a law that the President had determined was inapplicable.)

This is not to say that such persons could not be prosecuted under some other law -- say, for violation of the UCMJ, or the assault or torture statutes, or even other parts of the War Crimes Act. But the Administration's proposal (at least the version we've seen so far) would not affect those other statutes or provide immunity for past violations of them. It would only affect Common Article 3 violations of the War Crimes Act -- and prosecution for those violations would be impossible and inconceivable, anyway.

So, it's not really (or primarily) about "immunity" for past conduct; it is, instead, about immunity for future cruel treatment and torture.

3. The Proposal is Designed to Deal with "Humiliating and Degrading Treatment."

Well, perhaps in small part, it is. But that's really a sideshow. The Administration's preferred focus on humiliating and degrading treatment diverts attention from the real heart of the matter, which will be how they define "cruel treatment and torture," and, in particular, whether the CIA enhanced interrogation techniques are covered.

The Administration and its backers (e.g., Senators Cornyn, Thune, Roberts, etc.) are getting a lot of mileage out of the notion that what is "degrading" to some cultures might not be "degrading" to others, that "dignity" is a fluid and vague concept, and that, at the very least, these standards are inappropriate for imposition of criminal sanctions. Putting underwear on someone's head, or mocking the Koran, might be stupid, and odious, and even illegal -- but it seems odd if not perverse to most folks to call it a "war crime."

I happen to think it would be a mistake to exclude humiliating and degrading treatment from the WCA. But many will disagree with me. What's important is to realize that this dispute about how "degrading" treatment should be handled is not why the Administration is proposing an amendment to the WCA. Their public focus on subsection (1)(c) of CA3 -- the provision dealing with humiliating and degarding treatment -- is a feint to throw everyone off the scent. The real issue is the CIA. And that agency is not so interested in making use of the stupid and offensive techniques that were used on Al-Qahtani at GTMO -- religious degradation, underwear on the head, etc.

What they are interested in are the "enhanced" techniques that they've been authorized to use -- including hypothermia, threats of violence to the detainee's family, stress positions, "long-time standing," prolonged sleep deprivation, and possibly even waterboarding. With respect to these techniques, the issue isn't the ban on humiliation or degradation -- it's that they are "cruel treatment," perhaps even "torture," under subsection (1)(a) of Common Article 3.

I'm fairly confident that when we see the Administration's proposed amendment to the War Crimes Act, it will not cover these enhanced techniques. And therefore the proposal will, in effect, authorize these violations of CA3, which are much easier to understand as war crimes than "mere" humiliation and degradation. There might be debate, and confusion, about humiliation and degradation. But there ought to be a consensus in the Congress and the public that "cruel treatment," as such, and as understood under Common Article 3, is a war crime and should be treated as such.

So that's where the focus should be. Senators should be prepared to offer amendments to the Administration proposal that would specifically cover these techniques under the category of "cruel treatment and torture." If the Administration resists such an amendment, as it is likely to do, the burden will be on the Department of Justice to explain either why hypothermia and threats, etc., are not "cruel treatment" under Geneva Common Article 3, or, alternatively, why the United States Congress should authorize the CIA to engage in cruel treatment that violates our treaty obligations.

In sum, we should stop talking about humiliation and outrage, and start talking about cruelty (and torture) -- and about whether our national legislature should authorize the CIA to engage in such cruelty, notwithstanding the fact that it would violate the Geneva Conventions.

[UPDATE: In the comments below, Prof. Geoffrey Corn has some important thoughts about the ramifications -- including in the military -- of eliminating the prohibition on humiliating and degrading treatment. Prof. Corn's comments confirm why that would be a very significant mistake, even if I continue to think that the principal action is w/r/t "cruel treatment and torture."]

Here's the amendment proposed by the Bush Administration to the War Crimes Act:

Section 2441 of title 18, United States Code, is amended by replacing subsection (c)(3) with the following:

"which constitutes any of the following offenses, when committed in the context of and in association with an armed conflict not of an international character under common Article 3 of the international conventions signed at Geneva 12 August 1949:

1. Torture, inhuman treatment, or cruel treatment. -- Any person who commits, or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control shall be guilty of a violation of this subsection. "Severe mental pain or suffering" has the meaning provided in 18 USC 2340(2).

2. Performing biological experiments. -- Any person who subjects one or more persons to biological experiments without a legitimate medical purpose and in so doing seriously endangers the body or health or such person or persons shall be guilty of a violation of this subsection.

3. Intentionally killing any person taking no active part in the hostilities. -- Any person who intentionally kills, or attempts to kill, one or more persons who were taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.

4. Mutilating or maiming any person taking no active part in the hostilities. -- Any person who intentionally injures, or attempts to injure, one or more persons who were taking no active part [in hostilities], including those placed hors de combat by sickness, wounds, detention, or any other cause, by disfiguring the person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of his body, without any legitimate medical or dental purpose, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack.

5. Intentionally causing great suffering or serious injury. -- Any person who intentionally causes, or attempts to cause, serious bodily injury to one or more persons who were taking no active part in the hostilities, including those placed hors de combat by sickness, wounds, detention, or any other cause, or intentionally engages in conduct that places such a person at significant risk of serious bodily injury, shall be guilty of a violation of this subsection. The intent required for this offense precludes its applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. "Serious bodily injury" has the meaning provided in 18 USC 1365(h)(3).

6. Rape -- Any person who forcibly or with coercion or threat of force wrongfully invades, or attempts to invade, the body of a person by penetrating, however slightly, the anal or genital opening of the victim with any part of the body of the accused or with any foreign object shall be guilty of a violation of this subsection.

7. Sexual assault or abuse. -- Any person who forcibly or with coercion or threat of force engages in sexual contact with one or more persons, or causes one of more persons to engage in sexual contact shall be guilty of a violation of this subsection. For purpose of this offense, "sexual contact" has the meaning provided in 18 USC 2246(3).

8. Taking hostages. -- Any person who, having knowingly seized or detained one or more persons in violation of the laws of armed conflict, threatens to kill, injure, or continue to detain such person or persons with the intent of compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons, shall be guilty of a violation of this amendment."

"Collateral damage"

Sandy Levinson

"Joe" takes issue with a sentence from my previous post indicating that CIA operative "[Michael] Scheuer wanted to kill bin Laden regardless of the amount of 'collateral damage.'" Joe writes: "Ah, so we have gone down this route here at Balkanization, hmm? What is this 'collateral damage' we speak of? Oh, so sorry ... apparently various innocent civilians. Sort of like the kids when McVeigh blew up the federal building."

I'm not exactly sure what "this route" is. Unless one is a pacifist (and maybe Joe is), by definition one is willing to support the use of state violence as a means, at the very least, of self-defense (and, if one is a supporter of violent "humanitarian intervention," to defend the rights of others even if protecting them serves no particular US interests). All such violence carries with it the certain risk of "collaterial damage," which is, as Joe indicates, killing "various innocent civilians," including, most certainly "kids [like those] McVeigh blew up." Although many of us opposed the US attack on Iraq from the beginning, that is far less the case with regard to the attack on Afghanistan following September 11. Can there be any doubt that many innocent Afghanis have been killed as the result of perfectly legitimate US (and other allied) force?

Just to make myself clear, I was somewhat appalled by Scheuer's apparent casualness about collaberal damage (as sketched out in Lawrence Wright's The Looming Tower). From an ex ante perspective, we were almost certainly right not to try to assassinate bin Laden at the predicted cost of 300 innocent lives (or even the lives of the decidedly less innocent "Arab princes" visiting bin Laden in Afghanistan). But is this an issue on which reasonable non-pacifists cannot disagree? Is Scheuer a moral monster for believing, correctly as it turned out, that bin Laden posed a sufficiently high threat to many, many innocent people--Wright points out, for example, that 150 totally innocent Kenyans were blinded by glass from the bombing of our embassy in Nairobi--that it would be "worth" paying the undoubted moral costs of "collateral damage" by assassinating bin Laden and otherwise trying to cripple al Qaeda?

As indicated in my earlier post, one problem with pre-emptive attacks is precisely that one almost never can point to knock-down evidence of "success." Moreover, one can always argue, for example, that bin Laden isn't all that important, that Wright overestimates the role of contingency and "great men" (where "great" is not an honorific) in history. One advantage of structuralist explanations is that they indeed deter strategies of assassination and the like, because no individual, even Hitler, matters enough with regard to the tectonic forces of society. But is seems to me that the assassination of Itzak Rabin serves as some counter-evidence. It is probably naive to believe that Rabin would have brought peace to the Middle East, but I don't think it's naive to believe that his assassination made things considerably worse, which was precisely the aim of his assassin. Or just imagine if FDR instead of Mayor Cermak had been assassinated in 1932 and Cactus Jack Garner had been inaugurated as President in 1933.

I commend to everyone Elaine Scarry's classic book The Body in Pain. It is usually read, appropriately enough, as the definitive critique of torture. But it also includes a remarkable discussion of war per se and the extent to which all war is in effect and "injuring and killing contest" between opposing forces, and much of the injuring and killing, even if "unintended," at least from the perspectrive of "double effect" theory, is nonetheless accepted (and anyone who denies its certainty is indeed a fool, both intellectual and moral). Perhaps my mistake is using the term "collateral damage," which is indeed a euphemism for innocent people dying often terrible deaths (in addition to the terribleness of dying at all). Fair enough. But even if we call things by their rightful names, that doesn't lessen the problem for non-pacifists faced with figuring out when violence is acceptable in today's very scary world.

Random Searches on New York City Subways

Marty Lederman

Dan Solove has an interesting post over at Concurring Opinions on last week's Second Circuit decision upholding the constitutionality of random searches in the New York City subway system. There's a modestly interesting thread in the comments section there involving Dan, Orin Kerr and me, among others.

Dan's principal complaint about the decision is that the courts largely deferred to the government with respect to the question of how effective the search program is at detecting terrorist activity. As I suggest in the comments, however, it appears from the court's opinion that this program is not predicated on actually interdicting any terrorist acts. Its purpose, instead, is simply to convince Al Qaeda that there is a not-insignificant risk that concerted, multi-bomb plans of attack would be thwarted. And if that's the objective, then it really doesn't much matter how comprehensive or frequent the searches truly are -- all that matters is that there's some uncertainty about AQ's prospects for success, an uncertainty that, according to expert tesimony, serves as a useful deterrent to such planned attacks.

As I wrote in the comments there, under the government's deterrence theory that the court of appeals endorsed, data about the frequency or effectiveness of the searches are beside the point: It doesn't matter how many people are searched, or that the searches never turn up evidence of terrorist acts. Indeed, it probably doesn't matter, on their theory, whether there are any serious searches going on at all. Uncertainty is everything. And so, if the federal courts were actually to "find" that the searches are minimally intrusive and are thus ineffective -- that all but the most amateur terrorists would be able to easily circumvent the program -- such a finding would itself undermine the actual effectiveness, the deterrent value, of the program.

This is a difficult argument to counter. It doesn't have any particular stopping point, and would appear to justify all manner of police practices intended to disorient and deter Al Qaeda. So it is a real problem figuring out how to deal with it under Fourth Amendment doctrine.

More broadly, I think this is an example of a recurring theme in the conflict with Al Qaeda: the asserted need, above all else, that U.S. law and law-enforcement practices not be transparent, the better to create uncertainty about the conduct and limits of anti-terror efforts. One sees it, for instance, in the torture debate, where the whole point appears to be to obfuscate which interrogation techniques are lawfully permitted so that Al Qaeda detainees will not know what their captors are capable of doing. And in the Padilla detention case: By the government's own admission, the interrogation of Padilla would only be effective -- the relationship of "trust" and "dependence" with his interrogators could only be sustained -- if Padilla were convinced that all hope was lost, that no judicial processes were at work, that he had no prospect whatsoever of any legal process, let alone due process. If he were actually permitted to speak to an attorney -- who would tell him that there was an actual lawsuit pending on his behalf! -- the jig would be up. And also in the debate about electronic surveillance: The Administration claims that it could not actually amend FISA to permit the NSA program, because such transparency -- you know, the sort one gets when the laws are actually written into the statute books rather than in secret DOJ memos -- would tip off the terrorists to what our government is doing. Everyone, including the Congress, must actually think that FISA is still fully operative -- the better to lull everyone into speaking freely across the wires.

In sum, this appears to be of a piece with a concerted effort to establish a system of secret law and secret law-enforcement practices. The ordinary checks and balances of an open system in which the courts, Congress and the public understand what the law provides, and are able to evaluate what the government is doing? -- Well, that only helps the terrorists. Which is undoubtedly true. In a secret police state, where there's no assurance that the law sets any limits on the state, and where the legal limits are unknown -- no more than rumor -- wrongdoers surely are deterred by the uncertainty of it all. (Add obligatory Kafka citation.) Abiding by a rule of law -- of transparent, open, law -- does, indeed, give wrongdoers more information about the limits of the state. That's one of the costs of democracy.

Saturday, August 12, 2006

"Walls" between the FBI and CIA (and within the FBI)

Sandy Levinson

I strongly recommend to everyone the new book by Lawrence Wright, The Looming Tower, about the creation of al-Qaeda and the move toward September 11. More than anything I've read so far, it leaves the reader believing that September 11 could almost easily have been prevented had the FBI and CIA not been engaged in almost literally incredible turf wars with each other (putting to one side presidential lassitude in face of the August briefing about the potential imminence of an al-Qaeda attack). Among other things, the CIA simply refused to notify the FBI that known members of al-Qaeda had entered the country. But one of the issues raised in the book goes beyond turf wars and is certainly relevant to many of the readers of Balkinization. To wit, various "walls" were thought to be legally necessary, both with regard to CIA-FBI cooperation and, within the FBI itself, between the "intelligence" and "criminal" divisions. After all (among other things), evidence seized as part of "intelligence work" might not be admissible if there were no probable cause to engage in the search. Wright argues that these walls were basically self-created and based on misreadings of relevant law. I do not know enough to have anything resembling an informed view.

So let me pose some of the questions suggested by Wright's analysis: 1) How does "law" actually get created? I.e., much of what we call "law" is the creation of bureaucratic agencies that generate internal norms of operation. "Law in action," we well know, looks quite different from what a detached lawyer would view as "law on the books." Vanderbilt Dean Edward Rubin, in an important book Beyond Camelot, emphasizes the radical differences between "law" in the modern administrative state and models developed eariler. 2) Assuming, for the moment, that the various bureaucrats were accurate in their reading of the law, do we applaud the scrupulousness with which various persons insisted on staying within legal norms? (The most notorious instance, of course, is the refusal by the FBI to seek a warrant to "search" Moussauri's computer because of what was thought to be lack of probable cause. Do those of us who are civil libertarians applaud such a cautious reading or condemn it?)

A third question, incidentally, is the role of the Reno Justice Department, and Clinton Administration more broadly, in functionally encouraging these disastrous bureaucratic developments. It seems quite clear that both Louis Freeh and George Tenet, both of them Clinton appointees, were disasters as heads of their respective agencies, both of which had people in them--John O'Neal in the FBI and Michael Scheuer in the CIA--who were well aware of al-Qaeda and the threat it posed. It's easy enough for many of us to beat up on George Bush. But many of the basic mistakes took place during the Clinton Administration. Incidentally, one of the fascinating differences between O'Neal, who died on Sept. 11, and Scheuer,is that O'Neal was a "legalist" through and through, devoted to building criminal cases that would stand up in court, whereas Scheuer wanted to kill bin Laden regardless of the amount of "collateral damage" that might be generated in deaths of civilians or, in one instance, Arab princes gathered with bin Laden in Afghanistan. Had Scheuer prevailed, we might well have been spared Sept. 11 BUT, since we wouldn't in fact have had any real way of knowing that, we could easily have blamed him for other kinds of disastrous consequences attached to the "collateral damage." (Dare I suggest that some of the same questions are raised by what is going on right now in Lebanon?)

Jack and I have been touting the onrushing development of the "national surveillance state." Wright's book demonstrates the stunning failures of almost basic surveillance and challenges all of us, regardless of what we think are our "ordinary politics," to figure out how much surveillance we want and how government should be organized in order to maximize effective surveillance.

The Evil That Is PowerPoint (or, How We Lost the War)

Marty Lederman

Turns out there was a plan to prevail in the Iraq War, after all -- and, like all other great mysteries of life, it can be displayed in a single PowerPoint slide. As they say over at Arms & Influence, "the Iraq disaster did not happen because someone in the JTF-IV planning group or the Office of the Secretary of Defense (OSD) couldn't write a good PowerPoint presentation. The problem was that anyone used PowerPoint to plan a war."

Forget flag-burning: I'd be in favor of a constitutional amendment making Power Point presentations illegal. I realize this puts me in a distinct minority within the modern legal academy. But I've rarely, if ever, seen a PowerPoint presentation that added any value and that did not either infantilize its audience or grossly oversimplfy the issue, or both. I just don't get the obsession with PowerPoint -- after all, we weren't all that excited when our third-grade teachers pulled out the trusty ol' overhead projector, now were we? And how, exactly, is this any different, except that we're not nine years old anymore? (Exception that proves the rule: I must concede that Yochai Benkler's PowerPoint presentation last year at the Yale Constitution-in-2020 Conference was really engaging and fun -- informative, even. So there is hope.)

[UPDATE: Thanks to a commentor for reminding me that this isn't the first war in which PowerPoint has played so substantial a role.]

Friday, August 11, 2006

Stopping Terror Legally

JB

The foiled London airport bombing plot yesterday reminded us that surveillance and intelligence will be necessary to prevent future attacks on Americans. The choice is not whether we should or should not engage in such surveillance and intelligence. The choice is whether we will do so legally.

I don't know whether NSA domestic surveillance programs were important in providing needed intelligence to stop the bomber's plot. I will assume that they were. What lesson should we draw from that fact? The right lesson is that these programs are important and that some version of them will be part of our country's governance for the foreseeable future. The wrong lesson is that because they helped us they should continue to operate outside the law.

As we move toward a national surveillance state, government officials will convert what began as emergency strategies into long term forms of governance. Domestic surveillance in some form is here to stay. It is not a temporary or emergency measure. Because it is here to stay, it must be placed firmly and squarely under the rule of law. If we do not do so: if we say to ourselves-- "how wise our leaders were to break the law so that we could be safe"-- we will create a Frankenstein monster. Again, I repeat: The issue is not whether our government should engage in information collection and analysis to safeguard us against asymmetric warfare and terrorist plots. It should. It must. The issue is whether we will let the executive do so without legal accountability, without the checks and balances necessary to ensure that people who believe they are acting in the country's best interests do not abuse their authority because they are so certain that they alone know how to keep us safe , and refuse to listen to anyone else-- or even feel that they must be accountable to anyone else. It is not foolhardly to assume that if terrorist groups attacked us once they will attack us again. That, sadly, is the sort of world we live in today. But it is also not foolhardy to assume that if we let government officials act outside the law they will overreach, make mistakes, and abuse their power. That also, sadly, is the sort of world we live in.


Thursday, August 10, 2006

On Joe Lieberman

Mark Graber

Today's Washington Post has an editorial lamented the defeats of Joe Lieberman (D-Conn) and John Schwartz (R-Mich) in primary elections by more extreme members of their respective parties. The editorial then endorses Mr. Lieberman's decision to run as an independent on the ground that "centrism and bipartisanship [are] a needed salve for a divided country." Remarkably (well, not so remarkably, as noted below), the editorial does not also urge Mr. Schwartz to run an independent campaign for the same reason.

The difference choices Mr. Lieberman and Mr. Schwartz are making highlights an important difference between the two parties, one ignored by the Post and many of Mr. Lieberman's supporters. As Jacob Hacker and Paul Pierson document in their wonderful OFF-CENTER,Republican moderates at the end of the day follow their more extremist party leaders, defecting, for the most part, only when the leadership has enough votes to pass legislation. For the past twenty years, when faced with primary challenges, Republican moderates move right and, if they lose, support the more extremist nominee. Democrat moderates, by contrast, hold fast to principle. Until the very last days of the primary campaign, Lieberman showed little interest in dealing with left anger and, as indicated, would rather run as an independent, even when that is likely to strengthen Republican strength in other races. There are obvious senses in which this is praiseworthy. But one may legitimately wonder whether, given the behavior of his Republican counterparts, whether Mr. Lieberman's behavior promotes centrist or right-wing extremism.

The Washington Post celebrates Mr. Lieberman as a voice of moderation, but from a distance, he does not seem to have been a force for moderation. On issues as diverse as Iraq, the environment, and federal judicial selection, Mr. Lieberman was consistently unable to form a coalition of the center against the wings, largely because Republican moderates preferred to ally with Frist. Perhaps I am wrong on this, but while Mr. Lieberman on the campaign trial touted his moderate views, I saw little evidence of his touting any moderate successes. Nor do the Post writers who celebrate his centrist make any claim that Mr. Lieberman helped moderate Republican extremism. Rather, as a senator he did far more to assure Republicans that Democrats would not obstruct their extremist agenda than promote the bipartisan centrism fantasized by the Washington Post. He was never a vote for a filibuster and always could be counted on for a better quote demonizing the Democratic left than the Republican right.

As readers of the sacred Dred Scott book will learn, I think there is much to be said for constitutional structures that promote centrist politics. But bipartisanship requires senators of both parties to cooperate, not simply senators of one party to weaken their party's capacity to oppose the other. Those who want bipartisan centrism need to promote independent candidates from all parties and expose Republican moderates who too often cave to their extremist leadership. A good case can be made that in the present political environment, centrism is more likely to be promoted by a Democratic party that uses every parliamentary tool in the books to oppose Republican initiatives until they are moderated, then by Democrats who when pronouncing a plague on extremists in both parties, make no actual contribution to diffusing the extremist policies of the right.

Tuesday, August 08, 2006

Cultural Software: A Theory of Ideology released under a Creative Commons license

JB


Yale University Press has graciously agreed to release an online version of my 1998 book, Cultural Software: A Theory of Ideology, under a Noncommercial Sharealike Creative Commons license.

The book was the first to show how to use the theory of memes in social and political theory. It argues that we can explain ideology as an effect of cultural evolution; instead of viewing ideologies as overarching worldviews, it argues that we can break them down into component parts and mechanisms.

Yale University Press has released the book as an experiment to see if their backlist of scholarly titles will sell more if more people could sample them for free. If the experiment works, they may consider releasing more of their backlist under a similar arrangement.

Since my book is about the spread of memes, it seemed symbolically the right way to kick off the experiment.

I've put up pdf files of the chapters here. I'm working on ways to upload a wordprocessing version with smaller file sizes and an HTML version in the future. In the meantime, the pdf's are free to download.

If you like it, let other people know. Let the memes spread!

The ABA Report and Constitutional Change

Stephen Griffin

I can’t improve on the critiques of the ABA Report made by participants on this blog, so rather than issue my own critique (promised earlier), I’ll confine myself to a few comments.

1. The dog that didn’t bark in the ABA Report is the Tenure of Office Act, a staple of every discussion of presidential refusal to enforce an unconstitutional statute. This was the act violated by President Andrew Johnson for which he was impeached. The act was widely thought to be unconstitutional, both then and now. This considered judgment was ratified in the Meyers case.

Why doesn’t the Report discuss the Tenure of Office Act? As others have already observed, the Report is framed around signing statements per se, rather than presidential interpretation of the Constitution and the very difficult problem posed by acts that are “unconstitutional,” to use the scare quotes of the Report.

It would be difficult to deny that presidents should ordinarily be expected to execute the law. Indeed, this forms the true ground for Johnson’s impeachment – not his violation of the Tenure of Office Act, but his failure to enforce laws pertaining to reconstruction. The Tenure of Office Act was different because it struck directly at presidential power over removal of executive officials.

So to be more precise, one of the most difficult unsolved problems in American constitutionalism – perhaps a constitutional “abeyance” or silence – is what a president is supposed to do with an act (presumably passed over a veto) that directly encroaches on presidential power. It’s not to the credit of the Report that it suggests the question is easy. Or that it employs a text plus intent approach to interpretation that ignores the reality that most issues of presidential power must be confronted through a study of precedent and practice.

2. As Sandy has noted, the Report is written in a legalistic spirit. The most obvious absent factor relevant to our constitutional system (rather than the Framers’) are political parties. The Report ignores the possibility that the legislative and executive branches might be controlled by parties hostile to one another and that the congressional party might seek to encroach on presidential powers. This is essentially Cheney’s vision, even if it is a hangover from the days in which the Democrats controlled Congress. But by also ignoring the present situation of joint control of both branches by one party, the Report makes itself less relevant.

3. A more theoretical comment, not directly aimed at the Report, is that we should consider the nature of the constitutional change implied by Bush’s signing statements. As cited in the Report, the statements do not advance any systematic interpretation of the Constitution. They are conclusory, mechanical and so on. The supports an intuition I’ve always had, which is that some constitutional changes (or attempted change, as you like) shouldn’t be described as matters of interpretation, the rightful subject of the “Constitution outside the courts.” While they pertain to the Constitution, they are exercises of political power in the first instance. Politics, albeit politics of a special variety, can change the Constitution without offering an interpretation. At least, Bush is trying.

Monday, August 07, 2006

Militias both home and abroad

Sandy Levinson

If there is any proposition that almost all right-minded people are committed to, it is the illegitimacy of "private militias" in Iraq and Lebanon. The sole alternative to such militias appears to be a single centralized army controlled by the national government, thus adopting Max Weber's dictum that the (centralized) state apparatus must possess a "monopoly" over the legitimate means of violence.

There is undoubtedly much to be said with regard to the desirability of disarming such private militias as Hezbollah in Lebanon and the various militias in Iraq. From my own perspective, the world would be better off with the disappearance of Hezbollah, not to mention many of the Iraqi groups who are taking the country into what appears to be an already savage civil war. But a brief look at both American history and, indeed, the American present, demonstrates why much of the discussion about such militias approaches the fatuous.

The Second Amendment is widely agreed, even by those who oppose the "individual rights" view that would protect individual ownership of arms, to protect "state militias" as a complement, or even alternative to, the standing army that was, not without controversy, authorized by the original constitution. Such state militias were scarcely insignificant, either ideologically or even, on occasion, in practice. Thus, one contributing factor to Thomas Jefferson's election in 1800, over intense Federalist opposition, was the threat by the Democratic governors of Pennsylvania and Virginia to call out their state militias to march on the new Capitol in Washington if the Federalists did not recognize the legitimacy of the 1800 election and their displacement by the radical new sensibility represented by Jeffersonian and the Jeffersonians. It is, to put it mildly, ironic that a US Government that has assidulously courted the NRA and adopted a strong reading of the Second Amendment is so devoted to centralization of the means of violence elsewhere, since that is contrary to the American political tradition. George W. Bush keeps prating about the universal desire for "freedom," yet one constitutive aspect of that "freedom," his Administration argues with regard to the US, is the "right to keep and bear arms." Is this a right to be enjoyed only by Americans--if so, why?--and not by all freedom-loving peoples' everywhere? If others are to be expected to surrender their arms to a centralized state, then why shouldn't Americans be expected to do so as well?

Just to be clear, I do not necessarily mean to be praising this aspect of the American tradition. It directly contributed to the relative ease with which secession and resistance to the central government could be contemplated--and carried out in 1861. But this doesn't lessen the fact that any serious examination of our tradition must recognize that it rejects in very dramatic ways the Weberian dictum, at least if one defines "the state" as the central government.

Nor is the controversy entirely absent today. David Broder has an interesting article in yesterday's Washington Post setting out gubernatorial opposition, from Republicans and Democrats alike, to proposals "to expand the president's authority to take over National Guard troops in case of natural disaster or homeland security threats." Republican Governor Mike Huckabee of Arkansas, who is apparently contemplating a bid for the White House in 2008, said that such a shift of control "violates 200 years of American history" and is symptomatic of a larger federal effort to make states no more than "satellites of the national government." He was joined in his opposition by Iowa Gov. Tom Vilsack, who has also been mentioned as a potential Democratic candidate, who called the proposal "one step away from a complete takeover of the National Guard, the end of the Guard as a dual-function force that can respond to both state and national needs."

To be sure, contemporary state militias do not present the same kinds of threats to political stability as to militias in Lebanon and Iraq. But the central point is that no one should readily expect complete centralization of the means of violence in any polity where a significant body of the citizenry, especially if it is geographically distributed, simply does not have sufficient trust in the central government to disarm and/or accept complete subordination to the center.

I have earlier referred to "private militias." But one might also consider the "permurga," the functionally independent army of the Kurds in northern Iraq. Consider the following question: Would any serious person advise the Kurds to turn their arms over to a central Iraqi government dominated by Shi'ite (and Sunni) Arabs? I trust that the question answers itself. So why, precisely, should be answer be different for "private militias" representing significant groups who, with some justice, do not yet trust the Iraqi government to be adequately protective of its interests?

Again, to be absolutely clear: I would much prefer a world in which Hezbollah devoted itself only to doing good works for Lebanese citizens and where the Mahdi militia laid down its arms and acquiesced to the sovereignty of an Iraqi government that indeed fairly represented all of the groups within Iraqi society. But this is to engage in fantasy, alas. One might at least try to understand why control over the means of violence is perhaps the central political issue in any serious design of a constitution for a divided society. This is why the Second Amendment should be front and center in any consideration of the nature of our own original constitutional system, whatever it should mean today, and how our own history might lead us to a more complex and nuanced view of what we can plausibly demand and expect to receive from the deadly serious political groups in such countries as Lebanon and Iraq. (And, I note for the record, Israel has scarcely moved to disarm right-wing settlers in the West Bank.)



Sunday, August 06, 2006

Better a criminal than an overreaching incompetent?

Sandy Levinson

I begin by commending Laurence Tribe's typically incisive and bravura statement regarding the issues surrounding signing statements. I think he is exactly right in almost all respects. What strikes me about the debate, though, is precisely its "legalistic" nature. That is, opponents of President Bush seem to believe that they must, in effect, proclaim that he is acting unconstitutionally rather than, say, "merely" unwisely or even frighteningly, in his articulation of his powers under Article II. Concomitantly, supporters seem to believe they win the debate if they can demonstrate that Bush is in fact following a fairly well-established legal practice, going back at least to President Woodrow Wilson, of issuing such "signing statements." In some ways, I think this manifests part of the pathology that came to the fore at the time of Watergate and has been with us thereafter. To wit, we seem to believe that a president remains entitled to his office (and the public trust) so long as he/she isn't a "criminal," which for these purposes can be defined as someone who violates reasonbly clear constitutional duties. Unfortunately, this pathology derives from the Constitution itself.

I have in earlier posts noted some of the peculiar (and distorting) features of the debate over President Clinton's impeachment in this regard. We would, I believe, far better off if our Constitution allowed votes of "no confidence" in presidents whom we regard as overreaching incompetents, without having to demonstrate criminality. Unfortunately, to suggest such a possibility in the minds of most is to be just as defiant of constitutional norms as Bush's "signing statements" are thought to be. Almost everyone seems to agree that George Bush is precisely like a feudal lord (or pre-revolutionary official in France), who "owns" his office until Jan. 20, 2009, unless he commits an act of obvious "high" criminality or becomes sufficiently ill as to warrant replacement via the 25th Amendment (though the Amendment proved unavailing with regard to what was quite likely Ronald Reagan's known (to insiders) Alzheimer's disease in his second term). This is one of the realities behind Joseph Lieberman's ineptly-phrased statement that we had to be concerned about undercutting the president we were stuck with for three more years. Even Lieberman's bitterest enemies do not suggest that there is a way, under our current system, of bouncing Bush prior to 2009,other than the formalities of impeachment and proof of "high crimes and misdeameanors."

Thanks to our thoroughly defective Constitution, we are unable to have the kind of cogent discussion of George Bush's retention in office that would be best for the nation. If we had a procedure of "no confidence," the 2006 congressional elections could easily be run precisely on whether or not the public wanted to maintain him in office. Obviously, if the alternative were Dick Cheney, many people might answer "yes." This illustrates another constitutional pathology, the presence of a vice-president as heir-apprent who may in fact be every bit as bad as the incumbent. This was, incidentally, not the case with Clinton and Gore. Those who (defensibly) viewed Clinton as disgracing his office could have no legitimate objection to Gore's becoming President in his stead. Any process of no-confidence displacement would have to address this problem. My own solution, for what it is worth, is to allow the Congress either to call new elections or to allow the congressional caucus of the president's own party to pick his/her successor, in order to guard against an opposition-party motivated "coup" to seize the White House without having won an election.

It should be clear that the "signing statement" controversy raises fundamental questions about the nature of our political system. Some of these questions can be addressed through the skills of first-rate lawyers like Professor Tribe. But others, I fear, tend to fall through the cracks precisely because our Constitution seems to confine us to "legalistic" thrusts and counterthrusts and to delegitimize in advance a dialogue based on more "political" considerations. However important the former are, ultimately the latter are, I believe, even more important. In reviewing the late Abram Chayes's book on the Cuban Missile Crisis many years ago, I suggested that he was displaying a kind of "crackpot legalism" in his emphasis on the legality of Kennedy's blockade of Cuba while totally and completely ignoring the fact that Kennedy, according to Ted Sorenson, believed that he was running a 1/3 chance of nuclear war by challenging the Soviet Union. I imagined someone in a cave, following a nuclear exchange, proclaiming, "I'm so glad that JFK had a legal basis for doing his part to initiate World War III." (Thank God Kennedy was ultimately willing to compromise with Khrushchev by in effect offering to withdraw Jupiter missiles from Turkey, though, because of the upcoming elections, he lied to the American public with regard to whether any deal had been struck.) We have to develop a way of talking truly seriously about the central issues of our time, including the nature of our political system, without believing that it all reduces to standard-form "legal arguments."

Larry Tribe on the ABA Signing Statements Report

Guest Blogger

Laurence Tribe

1. Preface

My starting point -- and it is one I share with what I take to be the views of the ABA panel on signing statements -- is alarm at the unprecedented frequency with which the incumbent President has signed congressional enactments into law -- including enactments that seem to me entirely constitutional exercises of Congress's power to structure the executive branch; regulate that branch's military and civilian investigations, prosecutions, or detentions; or engage in one of Congress's other undoubted heads of lawmaking authority -- while brazenly signaling his position and that of his administration that giving those enactments their intended effect would cut impermissibly into his breathtakingly inflated conception of illimitable presidential power and prerogative.

Given the distress we should all feel at this proclamation of nearly monarchical executive authority, it's tempting to applaud the ABA panel's forthright attack on presidential assertions of such sweeping power through a practice that at first blush looks very much like an end run around the veto process -- a device that appears to defy the Constitution's deliberate omission of a line item veto, to avoid political accountability, and to deprive Congress of the constitutionally guaranteed opportunity to override a presidential veto by the requisite 2/3 majority in both houses whenever such supermajorities can be assembled. That temptation is reinforced by the panel's unusually distinguished composition, with a membership that includes some of my own most brilliant former students and talented colleagues and most accomplished friends, factors that add to the awkwardness and pain of challenging the panel's analysis and contesting its entire approach to the problem.

For those reasons, I would have been happy to keep my views to myself in light of the forceful and eloquent challenges to the panel's approach and its premises already to be found in print or on the internet by a distinguished former assistant attorney general in charge of the Office of Legal Counsel (OLC) Walter Dellinger, and by a group of former members of that Office.

However, in a Boston Globe article appearing this past Saturday, August 5th -- an article otherwise reflecting the always fine journalistic work of Charlie Savage, who was apparently the first to report the staggering number of laws this President has signed while in effect declared his intention to trash them -- those challenging the ABA panel's analysis are characterized as essentially executive branch loyalists. The Charlie Savage article notes that one opinion piece defending presidential signing statements was written by law professors who had worked either in OLC under former President George H.W. Bush or in the legal office of the current President's State Department, that another opinion piece critical of the ABA panel was written by Clinton administration OLC head Walter Dellinger, that yet another, appearing in blog postings on the conservative National Review's website, was also written by a refugee from OLC circa 2001-04, and that a long essay posted this past week on several prominent blogs was written by a group of former Clinton Justice Department officials. The Savage article noted that "the Clinton lawyers' objections" had not "swayed" ABA President Michael Greco, who is reportedly urging the ABA to approve the task force's recommendations.

The ordinarily very well-informed Charlie Savage understandably supposed, it seems, that the executive branch experience of the chorus of critics had colored their views. Voicing the frequently justified premise that where people stand and what they see is likely to reflect where they used to sit, panel member (and my esteemed colleague) Charles Ogletree was quoted as saying that he wasn't surprised that "people closely connected to executive branch careers would object to [the panel's] report," or that former Clintonites would want the panel "to harshly criticize Bush," which "was not [the panel's] goal."

Lest anyone suppose that only executive branch groupies, Clintonistas, or perhaps Bush loyalists would challenge the panel's analysis -- or that only Bush-bashers would identify the problem as entirely one traceable to President Bush's particular and particularly bloated conception of presidential prerogative under the Constitution -- I thought I'd best speak up, however awkward doing so would feel, in support of the challengers, in order to explain my own strong disagreement with the ABA panel's diagnosis of the disease as well as with its prescribed remedy. As someone who never worked in any administration's executive branch, had no role in the Clinton administration, and has supported the Bush administration in at least some (although of course by no means all) of its substantive legal positions (e.g., with respect to the tracing of international banking transactions and with respect to the constitutional authority to search a congressional office), I'm not one who can easily be dismissed on the basis that defenders of the ABA panel have sought to dismiss the panel's critics to date.

2. Analysis

With that preface to explain why I set aside my reluctance to enter the fray against the ABA panel's position, let me say why I'm persuaded that the ABA panel has missed the boat.

Most fundamentally, it seems to me an exercise in shooting at phantoms to focus on presidential signing statements themselves and to highlight the increasingly frequent practice of "using" such statements to "challenge laws" (to quote from Charlie Savage in Saturday's Boston Globe) as though anyone really imagines that the mere fact of a formally worded presidential reservation about a statute, contained in a signing statement rather than in a veto message, would have some operative legal effect in any way analogous to that of an item veto or would even be given weight by a court in later deciding what to make of the law in question. The analogy to the plainly unconstitutional line item veto, of the sort the Supreme Court struck down in Clinton v. New York, thus fails entirely.

What is new and distressing in the current situation isn't primarily the frequency with which President Bush, in the course of signing rather than vetoing congressional enactments, says something about his equivocal intentions, or even his defiant views, in connection with their future enforcement or non-enforcement. Rather, what is new and distressing is the bizarre, frighteningly self-serving, and constitutionally reckless character of those views -- and the suspicion that this President either intends actually to act on them with some regularity, often in a manner that won't be publicly visible at the time, or intends them as declarations of hegemony and contempt for the coordinate branches -- declarations that he hopes will gradually come to be accepted in the constitutional culture as descriptions of the legal and political landscape properly conceived and as precedents for later action either by his own or by future administrations.

Indeed, I can't see making anything significant turn on the distinction between a law the president "signs" (in the sense of not exercising his veto power) and a law that takes effect when supermajorities of the House and Senate override a veto, whether based on a president's constitutional objection or otherwise. Equally, I can't see making anything of significance turn on what the ABA task force seems to take as critical -- namely, the distinction between (a) a law signed by the very president who later decides that one of its provisions, or more likely one of its applications, is unconstitutional, and (b) a law signed long ago that a subsequent president decides his constitutional oath would prevent him from enforcing.

If instead the problem isn't a series of particular abuses taking the form of judicially remediable violations of the rights of individuals or groups by presidential disregard of duly enacted shields but is instead a set of abuses not subject to particularized correction at the behest of injured individuals -- either because no individuals are indeed injured in any conventional sense (as where the abuses take the form of pure inaction or inattention rather than naked aggression) or because the real difficulty isn't this or that particular abuse but what Charlie Savage has rightly described as a sea change in presidential practice the whole of which is more alarming than the sum of its parts -- then we have the situation of a chief executive who has assumed a posture of mocking the law rather than taking seriously his duty to enforce it. Especially in the case of a chief executive who is barred by the 22d amendment from seeking re-election, it would seem that the only proper remedy for presidential posturing of that sort, assuming it to be serious enough to demand a remedy, is impeachment and removal from office, not a set of judicial declarations that the president had better shape up and use his veto pen rather than chuckling under his breath while he insincerely signs legislation he has no intention of faithfully enforcing.

As for the remedy seemingly endorsed by the ABA panel, I can only regard it as a prescription that is neither safe nor effective as a cure to a misdiagnosed disease. The idea of legislatively endowing Congress with authority to take the President to court, and of empowering the Article III judiciary with authority to declare the presidential use of signing statements a circumvention of Article I's provision for the exercise and override of veto power or a violation of the separation of powers generally -- as section 5 of Senator Specter's new bill would purport to do -- seems to me a clear non-starter. Although Bruce Fein has been impressively insightful in many of his criticisms of the current administration's theories of executive power, I think he errs fundamentally in arguing, as does the ABA panel, that Congress as an institution is injured by a President's announcement, while signing a law, that he really has no intention of abiding by it or, in what arguably comes to the same thing once one has decoded a particular President's rhetoric, that he will abide by it only in accord with his idiosyncratic views of his powers vis-a-vis those of the other branches. That is mere insult, not genuine injury -- just as Congress might be insulted but could hardly be deemed "injured," in any sense of which a court could properly take notice, by a president's contemptuous remarks in a State of the Union Address. And when a lower federal court or the Supreme Court holds that the attempt by Congress to arm itself with the power to vindicate its honor is inconsistent with Article III, represents an exercise in posturing by the legislative branch, and is without effect in subjecting the signing statement practice to judicial oversight, the ironic and even tragic impact will be to give an abusive president one more occasion to strut about, claiming vindication for his practices and for the avoidance of political accountability that underlies them, even though the well-informed will recognize that no such claim is warranted. So the proposed corrective is overwhelmingly likely not to work. The upshot would then be not only a badly conceived and ultimately impotent solution to a badly diagnosed problem but an occasion for unjustified presidential preening.

If and when any president actually injures or imminently threatens to injure somebody in defiance of a law previously enacted to provide a shield against a particular sort of executive abuse, the constitutionally appropriate remedy is for the injured individual, or a class of individuals threatened with such injury, armed if necessary with congressional legislation conferring standing, to seek declaratory and/or injunctive and/or habeas relief and for the courts to grant such relief, assuming they find the shield to be constitutional and the presidential defiance to exceed executive authority, notwithstanding any signing statement that may have accompanied the president's decision not to veto the law when enacted.

Going beyond the ABA panel's misdiagnosis of the problem as though signing statements themselves were the culprits, and going beyond the panel's misconceived solution, a central premise of the panel's final report seems to be that there's something basically wrong with a president's decision not to enforce a law he deems unconstitutional in whole or in part. But that is an indefensibly broad premise, one that cannot in general be maintained. Nothing in the Constitution's text, design, or history shows that a president's only legitimate options are either to veto an entire bill or to sign it and then enforce it in its entirety regardless of his good faith views as to the constitutional infirmities either of some part of the bill or of some distinct set of its possible applications. Anybody predicting that chaos will ensue unless presidents take their oaths to uphold and defend the Constitution to mean automatically obeying whatever an Act of Congress that they have signed into law tells them to do unless and until the Supreme Court relieves them of that obligation would need to explain why the nation hasn't long since been plunged into chaos by the fact that presidents have never taken so wholly juricentric (or parliamentary) a view of the constitutional universe -- a view that certainly isn't implied by the power of judicial review as recognized in Marbury v. Madison.

In any event, the Supreme Court, and indeed the entire federal judiciary, can't possibly be relied upon to rule upon everything in advance. If a President conscientiously concludes that a law would be unconstitutional if enforced literally in a particular circumstance and takes his oath to abide by the Constitution as a mandate that he avoid, whenever possible, any interpretation that would offend the Constitution as he conscientiously construes it, I can't imagine saying that the President should put his oath or his copy of the document aside on the theory that the confrontation that might arise if he does what Congress seems to have had in mind might, in due course, give rise to an authoritative judicial ruling vindicating his constitutional views but that, until it does, the words Congress chose must trump those the President thinks he reads in the Constitution. And a President who, on signing a bill into law, makes clear in advance some of the circumstances in which he predicts such an obligation to obey the Constitution will trump the literal mandate of the resulting statute is not automatically indicating a scofflaw attitude but might simply be doing everybody a favor by not hiding the ball. The fact that the sea change inaugurated by President Bush goes far beyond such helpful signaling is a symptom not of some systemic problem with signing statements as an institution that cries out for legislative remedy, or even of an institutional difficulty with presidential power to follow the Constitution as the president understands it even without judicial guidance. Rather, it is a symptom of how this particular President is abusing his power and bragging of his intention to go on abusing it.

When the Supreme Court sustained the action of President Coolidge [correction: Wilson] in firing a postmaster in violation of the Tenure of Office Act that had been passed by Congress in the landmark case of Myers v. U.S. (1926), nobody on the Court proposed that the President should have felt bound by that Act (notwithstanding its intrusion into what many regarded as a genuine presidential prerogative and its delegation to the Senate of a role in the discharge of a federal official, in a self-aggrandizing exercise of power that we would today regard as a violation of Bowsher v. Synar) just because it had not yet been declared unconstitutional, or that something should turn on whether it was Coolidge or one of his predecessors who had signed the Act into law, or on whether it had become law over a presidential veto or by mere majority. If a president signs a law thinking it to be constitutional and later comes to have a clearer or better understanding of the Constitution's meaning on the point, can it be that he is estopped by his mistaken failure to wield his veto pen and must now proceed to ignore the Constitution as he has come to understand it? Surely that can't be the position; yet it seems to follow from the ABA task force's premises. If such hypotheticals seem inapposite to the nation's experience with the current president, we need to keep in mind that institutional remedies designed to fit pathological power-holders might themselves prove to be misfits in their overall impact on what should be an enduring system of checks and balances.

In his excellent New York Times op-ed piece on this issue last Monday, Walter Dellinger posited congressional legislation requiring a president to use physical force to seize a brain-dead patient and place her on artificial life support that she had made clear she would never have authorized and asked whether the ABA panel really believes the president would have to comply. It was a cleverly couched hypo in part because of the direction in which it chose to spin the Schiavo fiasco. But it would have been equally telling had it been spun the other way: Imagine an Act of Congress directing the President to cause those in the chain of executive command all the way down to the lowliest orderly in a federally run hospital to disconnect life support from any patient found by specified cost-benefit formulas to be burdening taxpayers more than the patient's expected quality of life, discounted over time, could justify. Would anybody defend the proposition that the President, including the one who in a moment of OMB-induced madness had permitted such an outrage to become law, ought to obey such a statutory directive in hopes that some court would intervene in time to save the poor victim from certain death?

One could multiply such hypothetical situations indefinitely, generating not only cases in which waiting for judicial intervention would be impractical but cases in which one would have to wait forever because the constitutionally dubious statute would issue a command -- e.g., that the President not remove a certain cabinet member for a stated time, or not exercise his veto or pardon or treaty-making power in stated circumstances, or not use his power of appointment in stated ways -- compliance with which would never yield a judicially congnizable complaint. Can it be that the Constitution contemplates executive disregard of the Constitution in such cases, either generally or by any president who fails to catch the problem by vetoing the bill when it first reaches his desk? I think not.

So I conclude that the ABA panel has painted with a hopelessly broad brush in its analysis of presidential decisions to defy statutory commands not (yet) found unconstitutional by the Supreme Court, has pointed to the wrong phenomenon in identifying signing statements announcing the intent to engage in such defiance as themselves the source of some constitutional difficulty, and has suggested a remedy for that phenomenon that, far from correcting any problem, would compound the current difficulty. The panel's good intentions, and its evident wish to preserve internal consensus by skirting at all costs any direct critique of the incumbent President, are no substitute for a coherent analysis of the real problems that confront us or for a solution that offers some actual relief from those problems.

I must emphasize that, in criticizing the panel's analysis and its conclusions, I do not at all mean to be disagreeing with the proposition that President Bush has abused the practice of using signing statements as signals of presidential intentions regarding both ambiguous statutes and statutes with embedded unconstitutional provisions or distinct unconstitutional applications. But the fact that the incumbent President has used signing statements in ways that expose a certain cynicism in signing rather than vetoing measures he has no intention of applying and enforcing as Congress manifestly intended, asserting that he regards Congress as having trespassed on his constitutional prerogatives, is objectionable not by virtue of the signing statements themselves but, rather, by virtue of this President's failure to face the political music by issuing a veto and subjecting that veto to the possibility of an override in Congress, and on occasion also by virtue of the inflated view of executive prerogative the President has announced in particular cases.

On the related matter of presidential signing statements that tout the "unitary executive" theory in particular, what seems crucial to recognize is that the concept of the "unitary executive," as it is being bandied about both by President Bush in his signing statements and by many of his critics, is much too protean to represent a useful organizing principle for assessing the undoubtedly dangerous and inflated views of unilateral presidential power that have characterized much of what the Bush administration has done -- with respect to Guantanamo, the treatment of detainees in the so-called "war on terror," the NSA's once-secret program of warrantless electronic surveillance in defiance of FISA and in purported reliance on the AUMF, and much else -- and that attacking the administration for its "unitary executive" mantra, as a recurring theme in many of the signing statements to which the ABA Task Force's final report objects, is more distracting than illuminating.

Far more useful would be deflating the concept itself, demonstrating its obfuscatory character, and insisting, in some more focused form than the Task Force final report does, that the Necessary and Proper Clause of Article I empowers Congress, not the President, both to structure and to regulate the overall conduct of officials within the executive branch -- an undertaking entailing an exercise of lawmaking authority that is not part of "the executive Power" vested by Article II in the President.

Finally, insofar as President Bush has exercised his powers to engage in surreptitious electronic surveillance without court-issued warrants in violation of the FISA, on the basis of an implausibly broad construction of his inherent Article II powers and a reading of the AUMF that was rightly repudiated in a slightly different context by the Supreme Court's recent Hamdan decision, the "fix" reportedly negotiated between The White House and Senator Arlen Specter, in which the legality of the NSA program of warrantless surveillance would be submitted for adjudication on the basis of a one-sided presentation to the FISA court by the Executive Branch -- which alone would be authorized to control the evidence to be considered, the forum for its consideration, whether the proceedings would be public or secret, and whether the result would be published or kept under wraps, and which alone would be authorized to appeal an adverse ruling to an Article III court including the Supreme Court -- is as transparently phony and futile as is the suggestion of a congressionally enacted vehicle to confer standing on someone to obtain a judicial ruling on the legality of this President's signing statements. Congress has ample authority to identify various groups as likely victims of the contested warrantless wiretapping practice and to authorize such groups to sue in federal court to obtain a derfinitive ruling, subject to Supreme Court review, of the constitutional and other legal questions presented. But despite the precedent of the FISA itself for the limited purpose of authorizing particular instances of electronic surveillance, I am doubtful that Congress has constitutional authority to remit these constitutional questions to definitive resolution by a secret, one-sided
pseudo-adjudication on the basis of a non-adversary presentation fully controlled by one side.

Whatever else one might say about the sound of one hand clapping, it is most assuredly not the sound one hears when a genuine court resolves a genuine case or controversy in the way that courts have functioned for centuries, whether with or without special safeguards to protect national security from the perils of leaky courtrooms.

What do the ABA Task Force attack on the phantom of the Bush signing statements, the legislative platform for challenging those statements judicially that the attack is inspiring, and the phony Bush-Specter deal for an asymmetrical whitewash of the contested program of NSA surveillance, have in common? All three -- the first two from genuine confusion and the third from something less benign -- would compound rather than correct the distortions in the separation of powers and the system of checks and balances that the Framers had the farsightedness to design.

Saturday, August 05, 2006

More on the ABA Signing-Statements Resolutions

Marty Lederman

Charlie Savage reports today on the skepticism that has greeted the ABA Task Force Report on signing statements from certain quarters (including by a group of former Clinton-era OLC lawyers of which I'm a part). According to Savage, "the ABA's 550-member House of Delegates will vote next week on endorsing a high-profile task force's conclusion that the Constitution gives presidents two choices: veto a bill, or sign it and enforce all of it. As the vote nears, several law professors who helped draft signing statements for President Clinton have emerged as critics of the task force's recommendations."

Savage further notes that "the ABA task force's findings have also come under attack by law professors with ties to Republican administrations," including by law professors Eric Posner of the University of Chicago and Curtis Bradley of Duke University. Although Posner and Bradley "agreed with the Clinton-era lawyers that presidents have a right to issue signing statements, . . . [t]hey also argued that Bush's signing statements are no different than Clinton's -- a claim that the Clinton-era lawyers, who say Bush has abused the mechanism, dispute." (Indeed, in our view the substantive distinctions between President Clinton's constitutional views and many of those of the current Administration is vast. As one of my co-authors has put it, to suggest that Presidents Clinton and Bush had similar views of executive power because their signing statements occasionally invoke the same constitutional provisions is akin to saying that because both Thurgood Marhsall and Clarence Thomas have relied upon the Equal Protection Clause to invalidate legislation, it's fair to asusme they share the same theory of constitutional equality.)

Friday, August 04, 2006

Privileged Victims

Mark Graber

Persons interested in the future direction of American constitutional politics might take a long look at a recent Pew Foundation survey on public opinion. Researchers found that core Republican voters can be divided into three groups, Enterprisers, Social Conservatives and Pro-Government Conservatives. Voters in two other groups, Upbeats and Disaffecteds, also vote overwhelming for Republican candidates. Enterprisers differ from every other group of voter in two respects. They are much better educated and far more affluent on average. Their high socio-economic status makes Enterprisers far more likely than Social Conservatives, Pro-Government Conservatives, or any other group of voter to secure federal judiciary appointments. Second, Enterprisers are far more committed to limited government and Bush administration policies during the war against terror than any other group of voters. Substantially higher percentages of Enterprises than Conservatives or Pro-Government Conservatives favor privatizing social security, drilling for oil in the Alaska Wilderness, reducing domestic spending, increasing military spending, torturing suspected terrorists, retaining the Patriot Act, maintaining recent tax cuts, eliminating minimum wages, banning affirmative action, and foregoing national health insurance. Enterprisers, however, are no more inclined that other core Republicans to support such socially conservative policies as banning abortion. Upbeats, the other group of affluent, highly educated, Republican voters, are far more likely than other Republicans to favor legal abortion and gay marriage. A judiciary composed of affluent, highly educated Republican elites, these findings indicate, will be far more conservative economically than the average Republican, more supportive of Bush administration foreign policies than the average Republican, but no more and perhaps even less supportive of social conservatism than the average Republican. Such a judiciary can be expected to take a narrower view than the national legislature of federal power under the commerce and spending clauses, but be no more tempted than any other governing institution to overrule Roe v. Wade or Lawrence v. Texas.

What this study suggests is that American politics, always dominated by elites, is increasingly being dominated by elites with no sense of social obligation. Unlike previous Republican country-club elites (see Kennedy, O'Connor, even Souter), core Republicans feel little or no empathy with persons of color, with the poor, with the environment, or with anyone or anything else. Figuring out what is motivating them is difficult, but may I suggest that what holds the new class together is a sense of victimization. Despite being better off than most Americans, they are personally victimized by terrorists, by crime, by affirmative action (virtually all enterprisers are white), by high taxes, by environmental regulations, by the poor, etc. Thus, rather than developing a sense that one's privileges should be shared with the less fortunate, the new elite regards themselves as the primary victims of American policy and seeks to restructure policy to end their victimhood. Not an optimistic future if these political trends continue.

Why Bother with Military Commissions?

Marty Lederman

In today's Washington Post, professors Jack Goldsmith and Eric Posner propose ditching the whole idea of military trials for Al Qaeda detainees. They note that the government has been very slow to charge many of the detainees -- only ten up to this point. And there's good reasons for that, as Goldsmith and Posner correctly note: First, trials are inappropriate, because the vast majority of the detainees have not committed anything that has traditionally been thought of as war crimes: The government "can prosecute these detainees only for the vague and problematic crime of conspiracy to commit a terrorist act based on membership in and training with al-Qaeda or the Taliban." Second, trials would be infeasible, because "witnesses are scattered around the globe, and much of the evidence is in a foreign language, or classified, or hearsay -- in many cases all of these things."

So what should be done instead? Goldsmith and Posner propose that the military simply continue to detain the prisoners until the end of hostilities with Al Qaeda (a day that we may never see), just as we have traditionally detained opposing warriors in battle until the end of the war. They note that traditionally "the purpose of wartime detention is not to punish but to prevent soldiers from returning to the battlefield." This is essentially the theme sounded by Justice O'Connor in her plurality opinion in Hamdi. And thus these are the key sentences in the editorial: "A legitimate wartime detainee is dangerous, like a violent mental patient subject to civil confinement, and that is reason enough to hold him. This has been the legal justification for terrorist detentions to date, and it will almost certainly be the basis for future detentions."

This reasoning would be fairly compelling except for one thing: Under the terms announced by Goldsmith & Posner, many (perhaps even most) of the detainees at GTMO and Bagram are not "legitimate," because they were never proven to have engaged in any hostile acts against the U.S. and its coalition, let alone to have come from any "battlefield." (See the studies of Corine Hegland and Mark Denbeaux.) As Goldsmith and Posner undoubtedly know, many of the detainees were captured and sent to one of those detention centers not in order to incapacitate them from battle, but in order to interrogate them for intelligence. The Administration's vague and capacious definition of "enemy combatant" in this conflict has extended far beyond the group of people who have committed or planned terrorist acts, or fought against us on a "battlefield": It includes persons vaguely suspected of being associated with Al Qaeda in some way, no matter how tenuously -- and we detain these people in the hopes that a small number of them, we know not which, might have valuable information for us, and not because of a fear that they will return to fight against us.

To their credit, Goldmsith and Posner (like O'Connor) recognize that the wartime-incapacitation detention model is under strain here, because this conflict may be indefinite, and not have an obvious end. Thus, they propose that "Congress should require a rigorous process for determining the status of enemy combatants," with "periodic review, perhaps yearly, to determine whether the detainee remains dangerous and thus warrants continued detention."

This is a good idea as far as it goes. But what about those hundreds of detainees who were never dangerous in the first instance?

[UPDATE: In the comments section, Scott Horton asks whether the entire conflict shouldn't simply be treated within the ordinary criminal process -- as the first bombing of the World Trade Center was (not to mention Tim McVeigh). (Correction: See Scott's clarification in the comments section -- he's simply referring to the need for some trial, perhaps military, of those actually responsible for terrorist attacks. I agree with this, and I think G&P do, too. The hard question is what to do with the hundreds of other detainees.) My response was basically this: Even if Scott is right that the major terrorist acts are crimes -- and surely he is -- G&P are also correct that Congress has overwhelmingly chosen to treat this also, or primarily, as a military conflict -- a concerted set of attacks on the U.S. as such. The vote was 518-1 on this question, and that's not going to change any time soon -- it's really a non-issue, as a practical matter.

What's most interesting about the G&P editorial is that it virtually concedes that most of the detainees have not committed crimes -- not even war crimes -- but are instead more closely analogous to traditional battlefield detainees. They're certainly right as to at least some of the GTMO and Bagram detainees -- those that fought in Afghanistan, for instance. But what about the others, those that are much more peripherally connected to AQ? And what about a group in the middle -- those who have not engaged in battle or terrorism, but who might have trained at AQ training camps? The editorial does not address this middle-ground question, but I think it will become increasingly important. Which reminds me of a question I've been meaning to ask: Historically, under the laws of war, can a belligerent state detain soldiers, such as reserves, who have trained to fight for the enemy but who have not engaged in battle and who have not been captured on the battlefield? I think this question is analogous to that raised in the case of many GTMO and Bagram detainees.] [UPDATE: Professor Dave Glazier has some very valuable answers to such questions, and comments on the broader problem, down in the Comments and at Intel Dump (see the comments there, too).]

Wednesday, August 02, 2006

The Constitution Outside the Courts: Apotheosis or Gotterdammerung?

Stephen Griffin

In the 1970s a few scholars, Sandy Levinson among them, started calling attention to how the Constitution was interpreted and enforced outside the federal judiciary. The current administration has, depending on one’s perspective, shown that this point of view is incredibly valuable or unbelievably dangerous. The recent dispute over signing statements and the report the ABA panel prepared in response is only the latest in a long string of examples courtesy of the administration that we ignore this point of view at our peril.

At one level, the collection of views that came to be called “the Constitution outside the courts” was purely descriptive. Scholars often need education in the obvious and Levinson et al. argued that the sometimes obsessive concern with what was going on in the U.S. Supreme Court caused scholars to ignore or downplay the importance of the constitutional interpretation going on in Congress and the executive branch. It is now conventional wisdom, represented most recently in Jeffrey Rosen’s article in The New Republic, that the Bush administration, largely through the efforts of Vice President Cheney, entered office with a fully formed philosophy of executive action, the “unitary executive.” While constitutional specialists paid some attention to how this doctrine became the official legal philosophy of the Republican party in the 1980s, most of the public sphere seems to have been largely unaware of this development and its likely consequences once President Bush II took the oath of office in January 2001.

At the descriptive level then, the Bush administration has been the apotheosis of the Constitution outside the courts, proof positive beyond the wildest dreams of the scholars who thought it up that everyone concerned with the Constitution ought to pay close attention to the sincerely held constitutional views of those who run what Alexander Bickel liked to call “the political branches.”

But there was also a normative side to the Constitution outside the courts, a growing conviction that the Court had gone too far in declaring itself the sole supreme interpreter in cases such as United States v. Nixon. Did Marbury really stand for this proposition, these scholars asked? If not, where and when did the Court assume its role as the dominant re-animator of the Constitution? These questions led in various directions, but the normative push against judicial supremacy, perhaps culminating in Dean Kramer’s book extolling “popular constitutionalism,” suggested the corollary that perhaps the constitutional views of the political branches were deserving of some respect . . . or even deference?

On the normative side, the Bush administration again might be playing a key role in the future of the Constitution outside the courts, but it is one bearing all the marks of a death struggle where the former gods are replaced by a new/old order – the rule of law? That is what is suggested by the arguments of the ABA Report, among other reactions to the obvious excesses of the administration. In this light, perhaps we can cast VP Cheney as Wotan (the blind eye representing hard-won wisdom replaced by a pacemaker), the god who tries to pull the strings, to find that only a free-born hero (that’s President Siegfried) can complete the quest and vanquish the dragon of fetters earlier placed on the presidency. I don’t believe I can complete this avant-garde scenario, however (where is Brunnhilde?). I’ll stop with the thought that John Yoo might be cast as Alberich, who starts the drama by renouncing the tender mercies of human feeling in a fruitless and destructive search for absolute power.

To be a little more transparent, the Bush administration has been so extreme in its quest for unfettered executive power that it has at least temporarily discredited the normative side of the Constitution outside the courts and the attack on judicial supremacy and caused lawyers and scholars everywhere to flee to the safety of Hamdan and the “rule of law.” Bush v. Gore, I hardly knew ye! But I’ll save for a later post some comments on the flight of the ABA Report back to the welcoming arms of what it calls “an independent and impartial Supreme Court.”

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