Balkinization  

Tuesday, September 19, 2006

Specter sees the light on the great habeas swindle

JB

On this blog we've criticized Senator Specter's approach to the NSA wiretapping controversy repeatedly. But Senator Specter has now spoken out in a good and helpful way against the President's dreadful military commissions/torture-lite bill.

Specter has identifed a major problem with both the President's bill and the McCain-Graham-Warner bill: both bills eliminate the right of detainees to contest the legality and the conditions of their confinement through the ancient writ of habeas corpus.

It's important to understand that although Senators McCain, Graham and Warner are getting a lot of great press on their disagreements with President Bush, and are being widely championed as brave defenders of human rights, the bill they have authored in the Senate is not a good bill; it is merely less terrible than the one the President is pushing. The press has either been hoodwinked on this score or has been complicit in downplaying this aspect of their handiwork. I choose to believe that it is the former: hence this post.

In particular, the McCain-Graham-Warner bill, like the President's, would prevent anyone detained in Guantanamo Bay (or any other detention facility outside the U.S.) from challenging what has been done to them in court except as an appeal from the decision of a military commission.

That means that if the government decides never to try an individual before a commission, but just holds them in prison indefinitely, there is no way that they can ever get a hearing on whether they are being held illegally-- because they are not in fact a terrorist; or a hearing on whether they are being treated illegally-- because they have been abused or tortured or subjected to one of the Administration's "alternative sets of procedures"-- a.k.a. torture lite.

So if a person at Guantanamo Bay isn't in fact a terrorist and isn't a danger to the United States, but never is subjected to a military commission hearing, there is no way they can get out if the military wants to hold them. (There are a few exceptions to this statement, but even in those cases the scope of review is severely limited and may be of no real help). One expects that the military isn't going to make trials of people who aren't dangerous and aren't terrorists a major priority, because it wants to use the military commissions for those people whom it believes are the worst actors and for whom it has the most inculpatory evidence. Abolishing the right of habeas corpus has the perverse effective of stripping access to justice for those detainees who are most likely to be innocent and harmless, and therefore most deserving of access to the Great Writ of habeas corpus.

Similarly, if the Administration decides not to bring a particular detainee to trial before military commission but just use them as a source of information by repeatedly torturing them (or engaging in torture-lite-- remember, we don't torture!) there is no way for a person abused in this way to contest it and stop it, even if it violates the Geneva Conventions. That's because there's no verdict of a military commission to appeal, and there's no right to habeas. In addition, under both the Bush and the McCain-Graham-Warner provisions, there's no right for an individual to invoke the Geneva Conventions even if there was a judicial forum to contest the torture-lite, which, once again, there isn't.

So if the Administration abuses someone based on faulty evidence, and eventually figures out that they are harmless (compare the case of Maher Arar), the Administration has no incentive ever to bring that person before a military commission, because, of course, the person would likely be found innocent and in the process the fact of that person's mistreatment would come out. And because there would be no way for them to bring a writ of habeas corpus, they would rot in prison indefinitely.

This is a terrible solution for to how to deal with detainees. It punishes the innocent more than the guilty, and it deliberately looks the other way at possible prisoner abuse at Guantanamo and elsewere (and by now we have enough evidence to know that this is a serious problem.) It makes a mockery of America's promise to respect the Geneva Conventions, and it is deeply inconsistent with America's view of itself as committed to justice and the rule of law. Preventing people from challenging their abuse under American law and the Geneva Conventions undermines America's moral authority as much as the President's decision to amend the laws against torture themselves. And these jurisdictional provisions, I repeat, are in both the President's bill and the bill offered by Senators McCain, Graham, and Warner, who are currently being lionized by a press that thinks they are standing up for America's deepest values.

I've got news for you. If the McCain-Graham-Warner bill is passed in its present form, it will also undermine America's values. Because it will leave the innocent and the harmless, and those illegally abused but never brought to trial without a remedy.

It will perpetrate a mockery of justice.

Senator Specter has figured this out. And he should be commended for it.

The James Madison Hot Tub Was A Legitimate Research Expense

JB

Colin Samuels remarking on my Top Ten Reasons President Bush Wants to Limit the War Crimes Act and the Geneva Conventions: "Up Next: Top Ten Reasons Professor Balkin Should Expect a Tax Audit"

John Marshall as a Sockpuppet

Sandy Levinson

As a relative amateur with regard to blogging, I was intrigued to discover the term "sockpuppet" in Deborah Solomon's interview in the Sunday Times Magaine with Lee Siegel concerning his fall from grace at the New Republic for blogging under a false name and praising his own work and attacking his detractors. Devotees will of course also recall John Lott's exposure for having done something similar.

Consider then that John Marshall, under the names "Friend of the Constitution" and "Friend to the Union" published extensive essays in the Philadelphia Union and Alexandria Gazette vigorously defending his opinion in McCulloch v. Maryland against critiques published, also anonymously, by William Brockenborough and, more seriously, Spencer Roane. Perhaps most interesting is Marshall's (anonymous) comment that though it is true that the Chief Justice "is a federalist . . . who was a politician of some note before he was a judge," critics of McCulloch should take into account that the decision was joined by "all the judges--four of whom have no political sin upon their heads;--who in addition to being eminent lawyers, have the greater advantage of being sound republicans."

Gerald Gunther discovered Marshall's essays some years ago and published them in a book. I was reminded of them in a fine new book, M'Culloch v. Maryland: Securing a Nation, by Mark R. Killenbeck of the University of Arkansas Law School, published by the University of Kansas Press. Killenbeck devotes a full chapter to the post-decision exchanges between Marshall and his critics.

In any event, it is simply false to argue, as Siegel seems to, that anonymous (and highly self-serving) sockpuppetry is somehow "caused" by the development of the blogosphere, even if it certainly makes it easier. But my question is this: If we are censurious of Siegel and Lott and other contemporary sock-puppets, then what view should we have of Marshall or of Walt Whitman? As one web site notes, "The 1855 publication of Leaves of Grass was heralded by anonymous reviews printed in New York papers, which were clearly written by Whitman himself. They accurately described the break-through nature of his "transcendent and new" work."

God helps those who help themselves, it is often said. Is it mandatory that one always be transparent in such self-help, or is sockpuppetry, at the end of the day, acceptable? Or is it simply that we today have a different view of such self-help (ah, moral relativism again rears its ugly head) and find objectionable today conduct that was perfectly all right in Philadelphia and Alexandria in 1819 and New York in 1851?

Incidentally, I am told that "Enraptured by Levinson" will shortly post a blog describing my new book "Our Undemocratic Constitution" as a "must read for every American." If you can't believe me, surely you should believe "enraptured by Levinson" :)

A Few Dirty Details About Our Corrupt Political System

Brian Tamanaha

Congressmen Bob Ney and Randy Cunningham, and a number of former legislative staff members, have admitted to corruption in connection with lobbyists, and face jail time. Other criminal investigations are still in progress. Nonetheless, the New York Times reported last week that no serious lobbying reforms will be enacted by the current Congress, despite all the talk about reform following the Abramoff scandal (see also).

We shouldn’t be surprised. It will take more than a few indictments of the sloppiest offenders to prompt reform of what has become a system of structural corruption. Consider the following details about our current political system.

Public records indicate that almost $2 billion was spent on federal lobbying in 2003; $2.1 billion in 2004; and in excess of $2.3 billion in 2005; and the amount keeps rising. Leaving aside outright criminal bribery, this money-laden attention, lavished on legislators and their staffs, takes several forms: making direct campaign contributions, sponsoring campaign fundraising events, providing contributions to third-party supporters (political parties, political action committees, mutually favored institutes or organizations), supplying supportive work (drafting desired legislation, administrative regulations, and briefing papers), funding or securing funding for trips at home and abroad for "informational" purposes (golf resorts being a favorite destination, along with Hawaii, Paris and Italy), subsidizing travel on private jets, supplying free social dinners and entertainment (including high-profile sporting events), employing spouses and close relatives as lobbyists or consultants, and offering the prospect of well-compensated future employment.

The effort by legislators to utilize the resources offered by lobbyists to advance their own agenda was refined in the "K-Street Project" (named after the main location of lobbying firms), undertaken by Congressman Tom DeLay following the Republican takeover of the House in the 1994 elections. DeLay informed trade associations and lobbying firms that they must fire Democrats and hire Republicans if they wished to have access to influential lawmakers. "We’re just following the old adage," he said unrepentantly, "of punish your enemies and reward your friends." DeLay’s goal was to secure a permanent Republican majority in the House, as well as to enhance his own grip on power, goals which could best be accomplished by controlling the money spigot. As an indication of his effectiveness, in the early 1990s, money from lobbyists was about evenly distributed between Democrats and Republicans; by the mid-2000s, this money went two to one in favor of Republicans.

The intimate mixing between politicians and lobbyists is extraordinary. Lobbyists have served as treasurers for the campaign committees of 79 legislators and for 800 political action committees since 1998, raising campaign funds for Democrats as well as Republicans. In the run up to an election, many lobbyists temporarily set aside lobbying to become campaign consultants for incumbents. After the election, they return to lobby the very legislators they helped to victory. Lobbyists held all of the top positions at the 2004 Republican National Convention.

Money has always influenced politics, of course, but there are numerous signs that the political culture has changed for the worse in recent years. Twenty years ago, an uproar ensued when it became public that Senator Lloyd Bensten held a breakfast meeting for lobbyists who contributed funds to his campaign; today lobbyists sponsor fundraisers for various senators and representatives every day that Congress is in session. Representative Roy Blunt became acting majority leader upon DeLay’s resignation; Blunt’s wife is a lobbyist for Philip Morris, which contributes substantial sums to his campaign, and he has built a network of connections with lobbyists. John Boehner, who bested Blunt in the contest to permanently replace DeLay as majority leader, was openly skeptical of calls for refrom. For years, Boehner ran a weekly meeting with a dozen top business lobbyists (called his "K-Street Cabinet"). Fourteen former Boehner staffers work as lobbyists, and Boehner says he "regrets" an incident in 1996 when he “handed out checks from tobacco interests to members of Congress on the House floor.” "Yes, I am cozy with lobbyists," Boehner admitted, "but I have never done anything unethical." It is virtually a prerequisite for the majority leader position to have developed an extensive networks of lobbyists, given that fellow members tend to back the person likely to provide them with future campaign support.

The money connection does not end with departure from office. In 2004, almost 250 former members of Congress and former heads of administrative agencies worked as lobbyists. Lobbyists who advocate for the airline industry, to offer one example, include ten former members of Congress, two former Secretaries of the U.S. Department of Transportation, and three high-ranking officials in the Federal Aviation Administration. Representative Billy Tauzin, who chaired a committee with oversight over pharmaceuticals and was a member of the committee that drafted the Medicare drug legislation—which pharmaceuticals vigorously supported—left Congress soon after the passage of the bill to become President of PhRMA (the pharmaceutical industry’s trade association) at a reported annual salary of $2 million.

This system reeks, and everyone knows it. A public poll found that 77% of respondents believe that reports of lobbyists bribing members of Congress are not isolated incidents, but are “the way things work in Congress.” We collectively shrug our shoulders in resignation and continue to vote for our current Representative and Senator (incumbents who raise the most money in a race win reelection more than 90% of the time). Even Senators caught with unseemly connections with Abramoff may hold on to their office. So nothing changes.

Can anything be done about this systematic corruption?

Here’s a partial solution: impose a five year ban against any member of Congress and their staff, and any of their immediate relatives, from working in any capacity for a lobbying firm upon departure from office (with the ban for relatives also applying while in office). This period is long enough that, if they are thereafter hired by a lobbying firm, it will be owing more their expertise than to their personal relationships or perceived influence (which is fleeting).

The legislators would have to enact this ban, and they have already shot down a proposal to double the current one year ban (and they have not seriously considered imposing restrictions on relatives), which does not bode well for the prospects of a 5 year ban. No doubt legislators will argue that this unfairly restricts them, their families, and their staff, from making a living, and that it will discourage good people from running for office or working in staff positions. But this is a cynical argument. Plenty of talented people who are committed to public service would be willing to take these positions even if they cannot easily cash in later. It bears remembering that only in the past decade has it become routine for members of Congress to go on to lobbying positions.

This admittedly unlikely proposal might have a shot if a nationwide—blog driven?—campaign developed in the coming election to get every candidate to make a public pledge to support a 5 year ban. Candidates who refuse to support the ban will look like they are seeking public office mainly for their own economic gain. People won’t be fooled by their excuses.

We must do something to reform this corrupt system. Urge your local House and Senate candidates to: “Pledge to Enact the 5 year Ban.”

Monday, September 18, 2006

How the Presidency Regained Its Balance, Indeed

JB

Many people have critiqued this op-ed by John Yoo in Sunday's New York Times, and I won't repeat their arguments here. I'm particularly interested in Yoo's suggestion that the President is simply restoring a vision of power that was unwisely diminished in the past 30 years. Even putting aside the historical inaccuracies in Yoo's claims, the elephant in the room is why Congress reasserted its powers in the 1970's. The reason was disgust at Executive overreaching. The President broke the law and spied on the American people in the name of national security. He resigned in disgrace. His party was punished at the polls, and the opposition gained seats in Congress. They used their increased power to correct his excesses in ways that Yoo does not like.

What lesson can we draw from this episode? Is it that the President is finally obtaining the correct degree of power he should always have enjoyed but for a wicked and power-hungry legislature? Or is it rather that in the long run a system of checks and balances tends to punish aggrandizement with diminution, so that if one branch overreaches, the others will eventually respond?

I dispute Yoo's suggestion that the Presidency was in eclipse between 1974 and 2001. But even if he is in the slightest degree correct, it was the fault of Richard Nixon as much as any other person. Eager to expand Presidential power, he ended up provoking opposition that contracted it instead.

Now once again we have a President pushing the constitutional envelope, and, in Professor Yoo's words, "declar[ing] that the Constitution allows the president to sidestep laws that invade his executive authority," a President following "the founders['] inten[tions] that wrongheaded or obsolete legislation and judicial decisions would be checked by presidential action." (I think the latter claim is historically specious, but I shall let it pass).

Does Professor Yoo think that in the long run these aggressions will go unchecked, and that a pendulum pushed so hard will not eventually move back in the opposite direction? Does he seriously think that in a system like our own, the piper will never have to be paid? Of course, if the President's party remains popular forever, and controls all the branches of power forever, he will meet with little opposition. But our system, thankfully, makes that quite difficult. As soon as the President and his party falter, lose popular support, and control of all three branches, the defections, and then the investigations, will begin.

The President has justified his authority on the basis of crisis, or as Professor Yoo once put it, on the need for "creative solutions" to the threats we face. Yoo himself was the apologist for many of these "creative solutions" at the OLC, eager to tell his superiors that they could do whatever they wanted, regardless of statutes, decisions, or treaties that might appear to the contrary. But crisis cannot last forever, fear cannot be sustained indefinitely, and incompetence will eventually become manifest. And when this happens, the political forces once held in check will be unleashed, slowly at first, and then with increasing force. What was once justified as creativity now looks like rank illegality, what was once praised as resolution now looks like disconnection from the real world, and what once was cheered as boldness now looks like arrogance and hubris. When that happens, the other branches, seeing the opportunity, will assert themselves at the President's expense. Madison had a name for it; I believe he called it ambition countering ambition.

Given Professor Yoo's proud defense of presidential prerogatives, it would be ironic indeed if his handiwork ultimately proved so unpopular that it led to a political reaction that rejected the Administration's claims and created new legal and political restraints on the Presidency.

Ironic it would be, but it has happened before-- with Richard Nixon's presidency in the early 1970's-- the very moment that Yoo regards as the high water mark from which we have so precipitously fallen. Before Professor Yoo celebrates the glorious achievement of an unbridled Presidential authority, he might consider whether his eagerness to please the Administration's ceaseless demands for power will ultimately backfire, and whether in the long run he will prove the unwitting catalyst of a new diminution in the powers of the Presidency.

Dr. Oedipus, call your answering service

JB

As I read this story in the Washington post about how Bush, Sr.'s consigliere, James Baker, has quiely forming a working group to propose face-saving solutions to the Iraq mess, I thought how George W. Bush's Presidency has simply been a repetition of his life story. Overwhelmed by the shadow of his highly successful father whom he both loves and envies, he tries repeatedly to be his own man by finding something that he can succeed at. Each time he draws on his father's (and family) connections to get opportunities and plum jobs, and each time he fails miserably, until he must once again employ his father's connections to bail him out and clean up his mess. And because he has the connections, it's usually the third parties like his business associates, investors and stockholders, who wind up holding the bag.

Of course, each time he fails and has to be bailed out by his daddy only makes him angrier that he can't surpass his father, which leads him to try ever grander things, leading to ever more spectacular messes, and so on.

Now, just as he turns 60, he is failing just about as spectacularly as you can without throwing the world into thermonuclear war.

I really wish he had just become Commissioner of Baseball instead. I mean, I really love baseball, I really do, and I wouldn't want anything bad to happen to it. But I love America more.


Saturday, September 16, 2006

The Devil's Pitch: Sell Your Soul to Save Yourself

Brian Tamanaha

In a familiar movie scene, the Devil appears before the dying man with a compelling proposition: "I will save your life,...in exchange for your eternal soul."

Predictably, a weak character will take the deal. And the audience knows that, even though he has bought some extra time, he is lost forever.

The hero, who loves life just as dearly, feels the temptation, but ultimately says "no," knowing that death is preferable to losing one's soul. The audience applauds this decision, for living--and sometimes dying--with integrity is what defines a hero.

The Bush Administration's pitch is this: "I will do whatever it takes to save the American people,...even if that involves ignoring the law and torturing suspected terrorists."

This is a powerful pitch, for who does not feel anger at the idea that the lives of our fellow citizens is being threatened by our enemies. In exchange for our survival, however, we being asked to sacrifice the commitment to moral and legal ideals that define America.

But there is an additional twist here. By many accounts, it is a false dilemma, because we can save ourselves with methods that are consistent with our moral and legal ideals. It is like the trickster Devil who, knowing that the person's wounds are not fatal and that rescue is just around the corner, offers the proposition to a person who falsely believes that death is imminent. It was never necessary to make the deal.

We know what the hero would do. But that's in the movies. The choice now facing Congress and the American people is real.

Even OLC is Unwilling to Say That These Techniques Comply with Geneva

Marty Lederman

An important article from Katherine Shrader of the Associated Press, putting some more of the pieces together.

Shrader confirms that waterboarding, hypothermia and sleep deprivation are among the techniques in question; that even after the 2005 McCain Amendment, "the CIA believed it was operating lawfully" in using at least some such techniques; but that the Hamdan decision "demolished that legal foundation."

The key passage:

The high court's ruling in June, in a case involving Salim Ahmed Hamdan, essentially said that the Geneva Conventions on the rights of wartime prisoners [actually, that should only be Article 3 of those treaties] should apply to the suspected terrorists in CIA custody. That meant that for the first time since the interrogation program was born in 2002, the Justice Department could not give the CIA a written opinion on whether its techniques still were legal. Spy agencies rely on such opinions to justify activities that get little, if any, public scrutiny.
That is to say: This Administration has been willing to rest its terrorism policies on plenty of unorthodox legal interpretations -- such as that waterboarding is not "torture" -- but the preposterous notion that the CIA techniques in question comply with Common Article 3's prohibition on cruel treatment is simply a bridge too far, even for this OLC.

Yet, remarkably, that is precisely the implausible "interpretation" of CA3 that the proposed Administration bill is asking Congress to codify -- and to strip the courts from reviewing. Lindsey Graham calls them on this transparently cynical tactic: "What is being billed as clarifying our treaty obligations will be seen as withdrawing from the treaty obligations." In fact, that's putting it nicely: If the Administration bill becomes law, it will quite reasonably be viewed, the world over, as authorization to breach the Geneva Conventions by engaging in what is manifestly "cruel treatment" . . . and in some cases, to do what virtually anyone would consider, simply, "torture."

[UPDATE: John Negroponte confirms that the Hamdan decision ended U.S. torture -- at least until the Administration can convince Congress to reinstitute it:
CHRIS WALLACE: [The President] said, "If you don't clarify, this program will end." Does that mean that if you capture a high-value Al Qaeda target, CIA officers will not interrogate him?

NEGROPONTE: That person may be questioned, but using the kinds of aggressive techniques, the tough techniques that the president was referring to the other day may be problematic because of the uncertainty that has been introduced by the current situation. So all these patriotic, professional agents are looking for is the kind of clarity to ensure that they will not be violating the law when they carry out these interrogations.

WALLACE: But you're saying the full array of interrogation techniques that they've used in the past they might not use now?

NEGROPONTE: At this particular point in time, that issue is up in the air.

WALLACE: Since the Supreme Court said in June that these interrogations are now covered by the Geneva Conventions, have any CIA officers refused to carry out any interrogations?

* * * *

NEGROPONTE: I think the way I would answer you in regard to that question is there's been precious little activity of that kind for a number of months now and certainly since the Supreme Court decision.

WALLACE: That has curtailed the kind of questioning that they have done.

NEGROPONTE: There just simply hasn't been that kind of activity.]

How Texting can help prevent Pretexting

Ian Ayres

There is lots of reasonable outrage about HP's pretexting. The term "pretexting" is cute, but the practice of lying about who you are is also called using "false pretenses." And pretexters who use the telephone are almost certainly commiting wire fraud.

But how can we stop it from happening?

In this Marketplace Commentary, I argue that there's a simple way to make progress. Phone companies should send you an automatic notification whenever they give out any of your info.

Automated notices already happen in lots of other contexts. But they should become even more routine. Whenever someone checks your credit, you should find out about it.

The Top Ten Reasons President Bush Wants to Limit the War Crimes Act and the Geneva Conventions

JB

10. You see, I'm a war crimes President!
9. I'm hoping to try some "alternative sets of procedures" on Nancy Pelosi.
8. I need to keep Dick Cheney busy!
7. Americans are sick and tired of us outsourcing our torture jobs to other countries.
6. It'll come in real handy when we invade Iran.
5. Com'on, they use waterboards in Southern California, right?
4. A lot of prisoners at Guantanamo Bay are really into S & M.
3. Did you know they speak French in Geneva?
2. John McCain, Colin Powell and Former head of Joint Chiefs of Staff John Vessey are just not serious about protecting the American people.
1. Too many people think my Presidency is an "outrage upon personal dignity."

Getting with "The Program": Clarity Through Obfuscation

Marty Lederman

Then there are those days when the President of the United States and "senior administration officials" make a humble blogger's life easy, by confirming everything that up until now I could only glean from supposition and reading the runes of carefully phrased legalisms.

In his impassioned press conference yesterday, the President acknowledged that the Hamdan decision, by clarifying that Common Article 3 applies to the conflict with Al Qaeda, had rendered the CIA's "program" of "alternative" interrogation techniques unlawful, and that unless the Administration's bill is enacted, "the program" cannot lawfully continue:

This debate is occurring because of the Supreme Court's ruling that said that we must conduct ourselves under the Common Article 3 of the Geneva Convention. [T]he bottom line is . . . that this program won't go forward if there's vague standards applied like those in Common Article 3 of the Geneva Convention. . . . You can't ask a young professional on the front line of protecting this country to violate law. Now, I know they say they're not going to prosecute them. Think about that, you know. "Go ahead and violate it, we won't prosecute you." These people aren't going to do that.

And in a story today, Jeff Smith of the Washington Post quotes one "well-informed source" as saying that the techniques "include prolonged sleep deprivation and forced standing or other stress positions," and that the techniques "match the techniques used by the agency in the past," which I describe here.

Smith identifies "a notable exception: The CIA no longer seeks to use a notorious technique called 'waterboarding,' which is meant to simulate drowning." Note the phrasing: Merely that the CIA no longer "seeks to use" waterboarding. Not that waterboarding would be unlawful under the Administration bill. To the contrary, "[p]rivately, the administration has concluded that [enactment of the Bush proposal] would allow the CIA to keep using virtually all the interrogation methods it has employed for the past five years, the officials said." So perhaps, if Congress were to enact the Administration bill, even waterboarding would be back on the table, should the CIA once again "seek to use it."

The referennce in the President's remarks to the so-called "vague standards" of Common Article 3 was a recurrent theme in his statement. No fewer than 16 times, he asserted that his proposal would provide "clear" or "definite" interrogation standards, or would bring "clarity" to the law.

As readers of this blog know, this is, of course, a joke -- or as Jeff Smith puts it, an "irony" of the Administration's position. Smith is exactly right in this respect: "The administration says its intent is to define the explicit meaning of Common Article 3 so that CIA officers know exactly what they can do. But the senior official who addressed the legal issue yesterday said the standard the administration prefers is 'context-sensitive,' a phrase that suggests an endlessly shifting application of the rules."

The Administration bill would make the McCain Amendment, which incorporates the Due Process Clause's "shocks the conscience" test, the touchstone for legality. As I suspected (see the discussion of "Myth No. 6" here, and Point No. 2, here), the Administration has construed that test to allow the use of the CIA enhanced techniques -- persumably because their consciences just aren't that shockable. (Whatever happened to "shock and awe"?) Smith reports that an "unpublicized memo to the CIA from the Justice Department's Office of Legal Counsel" names "the precise interrogation methods the department believed to be sanctioned by [the McCain Amendment]." (Shouldn't that memo be made available to Congress, so that the legislature can see exactly what it's being asked to authorize?)

Not surprisingly, this comes as a surprise to Senator McCain himself: "A retired intelligence professional who said he has discussed the matter at length with colleagues said the predominant view at the agency is that McCain -- who made clear in congressional debate last year that he disapproved of what the CIA was doing -- was surprised to learn later that the [McCain Amendment] did not put a stop to it." Senator McCain perhaps underestimated the ingenuity of the Vice President and his attorneys. As the Vice President explained, what "shocks the conscience" is "in the eye of the beholder." And evidently, these guys "behold" hypothermia and waterboarding (at least on paper), and -- unlike Senator McCain, who has actually beheld such horrors -- they are not shocked.

In the hands of the Administration, then, the McCain Amendment would be "a 'flexible' standard,'" which would, according to officials, "allow interrogators to weigh how urgently they felt they needed to extract information against the harshness of their techniques, instead of following rigid guidelines."

In other words, the Administration's mantra that its bill would bring "clarity" is exactly backwards. Under the current law -- Common Article 3's categorical prohibition on "cruel treatment and torture" -- the CIA techniques are plainly unlawful: That's why the "program" has been stopped.

(The notion that this standard is too vague for government work comes just a bit too late in the day. That standard has been binding on the United States and virtually every other nation on earth for more than 50 years. The Congress overwhelmingly attached criminal sanctions for its violation in 1997. These felony sanctions can be applied to any government officials anywhere in the world; and yet, as far as I know, during consideration of the 1997 amendment, and for the past nine years, there was until now not so much as a peep from anyone in any of the three branches of government, or in the literature, that there were any vagueness concerns with the incorporation of Common Article 3 into the WCA. In addition, for more than 50 years the U.S. armed forces have been operating under the Uniform Code of Military Justice, which similarly makes it a crime for a member of the armed forces to make threats or to engage in "cruelty toward, or oppression or maltreatment of, any person subject to his orders.")

But under the legal standard the Administration bill would substitute for this age-old proscription, "rigid guidelines" would be replaced with a context-dependent "flexible" standard. Jeff Smith gently calls this an "irony." As he writes: "The official did not try to explain how embracing such an inherently flexible standard would actually create clarity, the watchword of the administration's public campaign for its version of the bill."

For many decades, the U.S. armed forces very comfortably and effectively worked under broadly stated prohibitions (see above) and under very carefully prescribed rules for interrogation designed to comply with such legal limits. It was only in 2002, when the President declared such rules "flexible" and "context-dependent," that all hell broke loose at GTMO and in Iraq and Afghanistan.

If the President sincerely wanted "clarity" and "definite standards" for the CIA as well, as he professes, that would be quite a simple thing to accomplish: Akin to what the Pentagon has recently done in the Army Field Manual, Congress could simply specify in the statute that waterboarding, hypothermia, sleep deprivation, stress positions, and threats are categorically forbidden. What are the odds the White House would accede to such "clarity"?

[UPDATE: I had not previously noticed this terrific column by Dahlia Lithwick, which covers some of the same ground, such as that "while it sounds like Bush seeks to offer interrogators legal clarity, what he really strives to offer them is legal immunity," and that the fact the proposed Bush standard "is indeterminate for both the prospective torturers and their victims" is "precisely how the president wants it." Lithwick:

I suspect that the Bush administration doesn't seek to clarify the definition of torture so much as to confound it. The whole objective of defining, refining, and then redefining the rules has become an end in itself. It keeps our attention trained where the president wants it: on the assertion that old bans on torture don't work and that this conflict is unlike any conflict contemplated under existing international law. All this murk and confusion has begun to be the object of the game and not a casualty of it.

I once suggested in the context of presidential signing statements that legal obfuscation is enormously attractive to President Bush. It means all but the most highly credentialed law professors and government lawyers are constantly confused; it means subsequent legal claims that interrogators "did not know that the practices were unlawful" have real credibility. And perhaps, most importantly to this White House, it obscures where things have gone awry up and down the chain of command. One possibility, then, is that all these eleventh-hour redefinitions of torture are presidential attempts to "afford brutality the cloak of law," in the words of Supreme Court Justice Felix Frankfurter. But increasingly, it seems clear that its real purpose is simply to brutalize the law.
]

Friday, September 15, 2006

Why The Specter Bill Won't Let Courts Decide the Legality of the NSA Program

David Barron

Senator Specter, as Chairman of the Judiciary Committee, recently voted against a bill sponsored by Senator Schumer that would have conferred statutory standing on persons who had a reasonable fear of having their calls monitored under the so-called Terrorist Surveillance Program. That bill was intended to ensure that the standing objections that the government is sure to raise -- and already has raised -- would not bar courts from addressing the merits of the serious Fourth Amendment and Separation of Powers issues raised by the government's decision to engage in warrantless wiretapping without complying with FISA. In casting the deciding vote in committee against that bill, Specter raised Article III concerns -- namely, whether Congress has the power to confer standing on the open class of persons named in the bill given that they could not prove they had themselves actually been surveilled. But it's odd that Specter seems to have such a cramped view of the Congress's power to give jurisdiction to the federal courts because his own bill gutting FISA creates a far more serious Article III problem.

Specter's bill is designed to ensure that the program as a whole will be reviewed by the FISA Court for compliance with the Fourth Amendment. It does so by providing that the program may be submitted, in toto and in secret, to the FISA court for review. Since the statute essentially gives statutory sanction to such a program, it would remove the separation of powers issues raised by the Administration's present disregard of FISA. But just because Congress says the President can do something, doesn't mean it's constitutional. So Specter claims to want to make sure that an Article III court -- here, the FISA Court -- concludes that such a program comports with the Fourth Amendment. But can an Article III court issue a judgment about whether a broad-based program is lawful in the manner that Specter wants?

Presumably, Specter thinks that the FISA court's review of the program as a whole is just like its review of a typical wiretapping application. Article III courts can grant warrants that identify a particular target probably because of the notion that such applications satisfy the Article III requirements of concreteness -- there's a specific case at issue -- and adversariness -- there is an identifiable target of either the search or the investigation. To be sure, there is no actual party contesting the application in such cases because the proceeding is ex parte. But there is no general Article III bar to ex parte proceedings. When we turn to Specter's scheme, however, things are very different. Specter's bill would authorize the Article III FISA Court to review the entire program of surveillance. By definition, then, there would be no identifiable targets at the time judicial approval is sought -- other than, presumably, any persons potentially covered by the terms of the Authorization of to Use Military Force. That means there would be neither concreteness nor adversariness. And so, what Specter's bill does is ask the FISA Court to do the classic thing that no Article III court can do: issue an advisory opinion.

So what's likely to happen if Specter's bill becomes law: the statute will have authorized the program on the expectation of FISA Court review of it for constitutional compliance. But the FISA Court, upon being handed over the program by the Administration, would likely rule that it has no Article III jurisdiction to pass on the legality of a general program of that kind. And thus the consequence of the Specter bill will be to have authorized a program that will never have been judicially sanctioned -- the very opposite of the outcome that Specter claims to be attempting achieve.

Any way out of this mess? Aside from junking the Specter bill altogether, which has its own appeal, Specter's bill should at least make its authorization provisions contingent on the FISA Court determining that it has the Article III jurisdiction to review the program's legality.

"Final" Version of the Warner-McCain-Graham bill on military commissions

JB

The so-called "final" version of the Warner-Graham bill, now dubbed the Warner-McCain-Graham bill on military commissions, can be found here. It is still a very bad bill, eliminating judicial review and habeas corpus, and limiting criminal enforcement of Geneva Common Article 3 under the War Crimes Act (apparently Geneva CA3 is still law, but only "grave violations" of Geneva are criminally enforceable). Additionally (p. 82), the new bill says that "no foreign source of law can be used in defining or interpreting" America's obligations under title 18 of the U.S. Code-- i.e., the U.S. criminal code, which would include, presumably, the War Crimes Act and the anti-torture statute.

But even this is not good enough for George W. Bush. Apparently the President has made noises that if he doesn't get provisions actually limiting the scope of Geneva Common 3-- also known as the right to "alternative sets of procedures" (the prisoner abuse that dare not speak its name)-- he will veto the bill. Let's see now, preventing stem cell research and protecting the right to torture-lite-- yes, I can certainly see why those are the two things sufficiently important in the world that George W. Bush would threaten a veto.

Marty's post suggests that the Administration has now conceded that waterboarding is now illegal under the McCain amendment. I am not so sure, although I would be delighted if it were so. The key problem, as Marty points out, is that the Administration has simply been unwilling to admit to what it has done and what it would like to keep on doing-- in the name of protecting freedom and human rights, of course.

At Last, the Issue is Publicly Joined . . . and When All the Smoke has Cleared, the Central Question is Quite Simple

Marty Lederman

And it is this: Should the CIA be legally authorized to breach the Geneva Conventions by engaging in the following forms of "cruel treatment" prohibited by "common" Article 3(1)(a) of those Conventions?:

-- "Cold Cell," or hypothermia, where a prisoner is left to stand naked in a cell kept near 50 degrees, during which he is doused with cold water.

-- "Long Time Standing," in which a prisoner is forced to stand, handcuffed and with his feet shackled to an eye bolt in the floor for more than 40 hours.

-- Other forms of "stress positions" and prolonged sleep deprivation, perhaps akin to "Long Time Standing."

-- Threats of violence and death of a detainee and/or his family.

(These are the CIA techniques that have been widely reported, including in this ABC News Report and in Ron Suskind's book. To the extent some of these techniques are not among those that the President is now euphemistically designating "alternative," or to the extent the Administration is attempting to preserve other techniques currently prohibited by Common Article 3, the burden is on the Administration to clarify the record. They have resolutely refused to disclaim any of these reported techniques, and so I think it's fair for Congress and the public to assume, absent contrary evidence, that these are among the techniques at issue in the current debate. If we're going to authorize conduct currently prohibited by the Geneva Conventions, we ought to know just what we're signing on for.

What about waterboarding? My sense is that the debate is no longer about waterboarding. I have heard scuttlebut from several sources that not even the lawyers in this Administration -- who apparently were able to conclude that waterboarding was not torture -- have been willing to say that waterboarding is legal under the McCain Amendment's prohibition on conduct that shocks the conscience. Therefore, I think (but am not certain) that waterboarding has not been a viable option since December 30, 2005 -- which explains, perhaps, why the Vice President was so insistent on creating a CIA exception to the McCain Amendment, i.e., because he thought that waterboarding could not continue without such an amendment (or a Commander-in-Chief override).)

A bunch of other questions that have been dominating the public debate really ought to fall to the side now.

The key question is no longer about the Pentagon, and Abu Ghraib, and the instructions to Geoffrey Miller that led to abuses in Iraq and Afghanistan, and the abuses of the "special operations" forces established by Rumsfeld and Cambone and Boykin, etc. The military has, at least for the time being, cleaned its house, and the prospects for abuse there have been greatly diminished, thanks in large part to the JAGs and to legislators such as Senators McCain and Graham.

Which is not to say that there does not remain a great deal of historical accounting to be done about what occurred in the military. But going forward, the operational question involves the CIA, not the Armed Forces -- which is fitting, because it was CIA interrogations that started this whole mess in the first place, that prompted the initial flurry of tendentious legal memoranda, and that have driven so many of the policies and legal assertions of this Administration.

Nor is it about Guantanamo.

Nor is it about the authority of interrogators to yell at detainees, or subject them to Eminem or the Red Hot Chili Peppers.

Nor -- contrary to the Administration and to many press accounts -- is it primarily about the meaning of Geneva's prohibition on "outrages against human dignity," and "humiliating and degrading treatment." The CIA isn't much interested in the outrageous and inane forms of humiliation -- underwear on the head, religious degradation, etc. -- that the military used at GTMO and in Iraq. Those things may be illegal, they might violate Common Article 3, but they are not what the Administration is tring so diligently to preserve. The Administration is, instead, seeking authority to use threats of violence, and the cruel physical techniques listed above, akin to classic forms of torture.

That is what this current legislative debate is about.

It's important to be clear about one thing: The question is not simply whether, in the abstract, it would be a good or acceptable idea for the United States to use such techniques in certain extreme circumstances on certain detainees. I happen to think that the moral, pragmatic, diplomatic and other costs of doing so greatly outweigh any speculative and uncertain benefits -- but that is obviously a question on which there is substantial public disagreement, much of it quite sincere and serious. Instead, the question must be placed in its historical and international context -- namely, whether Congress should grant the Executive branch a fairly unbounded discretion to use such techniques where such conduct would place the United States in breach of the Geneva Conventions. And that, of course, changes the calculus considerably. Does Congress really want to make the United States the first nation on earth to specifically provide domestic legal sanction for what would properly and universally be seen as a transparent breach of the minimum, baseline standards for civilized treatment of prisoners established by Common Article 3 -- thereby dealing a grievous blow to the prospect of international adherence to the Geneva Conventions in the future?

It would be one thing -- a momentous thing, no doubt -- for the United States to propose that Geneva itself be amended to permit certain extreme interrogation techniques in certain limited circumstances. In that case, the principal question would be whether torture and its close equivalents are ever acceptable, and whether they could and should be regulated under a legal regime that would somehow keep such techniques within "proper" bounds, if there are any. But as the issue now stands, the advisability and morality of such techniques, as such, and the practical questions of regulating such conduct, although obviously of great importance, are overshadowed by an even more solemn question: whether legalizing such techniques is worth an effective repudiation of Geneva by the most powerful state on the planet, with all that such a repudiation would entail for the future of Geneva and other international agreements.

(Yes, the Administration bill would nominally "interpret" the Geneva Conventions to permit the CIA techniques. But this is a pretense that not even the Administration itself believes. Most of these techniques are probably "torture," as that term is understood under Common Article 3 -- and would have universally been considered torture by virtually all of the Western world until Bush Administration lawyers got their hands on the dictionary. But even if for some reason these techniques fall short of torture, they surely are "cruel treatment" under Article 3(1)(a); indeed, if they are not, it's hard to imagine what would be. That's why the Administration has conceded that without its proposed legislation, Common Article 3 of Geneva prevents the continuation of the CIA's "alternative" techniques. And it's why the Administration bill would purport to prevent any judicial consideration of whether such techniques violate Geneva -- because such an argument manifestly would not withstand judicial review.)

And it is primarily for this reason -- and not necessarily because of any solicitude for the well-being of Al Qaeda detainees -- that Colin Powell and former U.S. Chairman of the Joint Chiefs of Staff John Vessey are so unequivocally opposed to the Administration's proposal. And it's also why 29 other retired military leaders and former CIA officials, including CIA Director Stansfield Turner and Generals John Shalikashvili and Joseph Hoar, have similarly urged Congress to reject the Administration's proposed breach of Geneva:

Common Article 3 of the Geneva Conventions provides the minimum standards for humane treatment and fair justice that apply to anyone captured in armed conflict. These standards were specifically designed to ensure that those who fall outside the other, more extensive, protections of the Conventions are treated in accordance with the values of civilized nations. The framers of the Conventions, including the American representatives, in particular wanted to ensure that Common Article 3 would apply in situations where a state party to the treaty, like the United States, fights an adversary that is not a party, including irregular forces like al Qaeda. The United States military has abided by the basic requirements of Common Article 3 in every conflict since the Conventions were adopted. In each case, we applied the Geneva Conventions -- including, at a minimum, Common Article 3 -- even to enemies that systematically violated the Conventions themselves.

We have abided by this standard in our own conduct for a simple reason: the same standard serves to protect American servicemen and women when they engage in conflicts covered by Common Article 3. Preserving the integrity of this standard has become increasingly important in recent years when our adversaries often are not nation-states. Congress acted in 1997 to further this goal by criminalizing violations of Common Article 3 in the War Crimes Act, enabling us to hold accountable those who abuse our captured personnel, no matter the nature of the armed conflict.

If any agency of the U.S. government is excused from compliance with these standards, or if we seek to redefine what Common Article 3 requires, we should not imagine that our enemies will take notice of the technical distinctions when they hold U.S. prisoners captive. If degradation, humiliation, physical and mental brutalization of prisoners is decriminalized or considered permissible under a restrictive interpretation of Common Article 3, we will forfeit all credible objections should such barbaric practices be inflicted upon American prisoners.

* * * *

Last week, the Department of Defense issued a Directive reaffirming that the military will uphold the requirements of Common Article 3 with respect to all prisoners in its custody. We welcome this new policy. Our servicemen and women have operated for too long with unclear and unlawful guidance on detainee treatment, and some have been left to take the blame when things went wrong. The guidance is now clear.

But that clarity will be short-lived if the approach taken by Administration’s bill prevails. In contrast to the Pentagon’s new rules on detainee treatment, the bill would limit our definition of Common Article 3's terms by introducing a flexible, sliding scale that might allow certain coercive interrogation techniques under some circumstances, while forbidding them under others. This would replace an absolute standard – Common Article 3 -- with a relative one. To do so will only create further confusion.

Moreover, were we to take this step, we would be viewed by the rest of the world as having formally renounced the clear strictures of the Geneva Conventions. Our enemies would be encouraged to interpret the Conventions in their own way as well, placing our troops in jeopardy in future conflicts. And American moral authority in the war would be further damaged.

This is not to say, of course, that the various other statutory proposals now being debated do not raise other serious questions. Of course they do, such as: whether FISA should be eviscerated, or much more carefully amended; whether Congress should, or constitutionally can, withdraw the right of aliens detained overseas to petition for habeas corpus; how the military commissions should be constituted; how "unlawful enemy combatants" should be defined for purposes of the authority to militarily detain such persons; whether "conspiracy" and "material support for terrorist groups" can and should be designated crimes triable outside the ordinary criminal process; etc.

These and other questions are incredibly important. But the big-ticket item -- indeed, the issue that has been driving many of those other debates, such as the rules for commissions -- is whether the CIA should be authorized to engage in "cruel treatment" in breach of our obligations under the Geneva Conventions.

Thursday, September 14, 2006

Article 48 and the U.S. Constitution

Sandy Levinson

This is intended to build on Jack's most recent posting. What is at stake, I think, is the creation of a de-facto "emergency powers" Executive. The Weimar constititution was much cricized because of Article 48, which allowed presidential invocation of emergency powers. Some attribute it to the downfall of the Weimar state (and, therefore, to the rise of Hitler). I think it is actually considerably more complex than that. A number of constitutions around the world have explicit emergency powers procedures, and Bruce Ackerman's most recent book, Before the Next
Attack, calls for the passage of "framework legislation" that would allow us to respond to what he believes will be a "next attack" without simply and utterly sliding into presidential (or presidential/military: one wonders how long the military will allow incompetent leaders like Bush to destroy their institution, especially if we're facing a "real" global war on terror instead of the manufactured-for-the-next-election variety). Perhaps if a "delcaration of emergency" were treated more like a "declaration of war," with attendant drama and public debate, we'd be better off than we are now, where we don't differentiate between "emergency powers" legislation and "ordinary legislation."

What is so dismaying about the present situation, in some ways, ways, beyond the incursions on basic liberties noted by Jack, is the "weimarization" of Congress (as I've written on numberous--perhaps too many--occasions, where the Republican Party, when all is said and done, views itself as the lackey of "their" President and the Democrats are scared of being portrayed--as by the House Majority Leader--as caring more about terrorists than about Americans. There is precious little "deliberation" and much posturing. Maybe Lindsay Graham and John McCain will have the courage to stick it out, but McCain has already been selling his soul in order to appeal to the hard-right Republican "base" (and to get the Bushies' blessing) and Graham is, to put it mildly, far from an ardent civil libertarian.

I am, not for the first time, put in mind of Justice Curtis' plaint against Lincoln's exertions of Executive power, including a constitutionally dubious Emancipation Proclamation: "Among all the causes of alarm which now distress the public mind, there are few more terrible than the tendency to lawlessness which is manifesting itself in so many directions. No stronger evidence of this could be afforded that the open declaration of a respectable and widely circulated journal, that 'nobody cares' whether a great public act of the President of the United Sttes is in conformity with or is subversive of the supreme law of the land...."

The great debate over the rule of law-- and civic courage

JB

In the next few weeks, if not days, there will be votes on two very important bills. One bill would legalize the President's NSA domestic surveillance program and insulate it from judicial review. The other would ratify the President's views on military commissions, restrict the ability of defendants to see the evidence used to convict them, limit the Geneva Conventions' protections against prisoner mistreatment and outrages to human dignity, and eliminate the use of habeas corpus and the ability of an independent judiciary to inquire into the legality of the detention and treatment (or mistreatment) of human beings held at Guantanamo Bay.

I can't remember a time when two pieces of legislation were on the verge of passage that would so radically alter Americans' sense of our country--and its principles-- for the worse.

What is at stake in these two bills is whether we want the President to be free from judicial oversight and accountability; whether we want to maintain a system of secret trials with secret evidence; whether we want to announce publicly that our forces are not bound by the minimum requirements of human decency found in Common Article III of the Geneva Conventions. In their own way, each of these three issues revolves around our fidelity to the rule of law, and the meaning of America as a land where the rule of law is respected.

Our President-- with his prevarications and euphemisms, like "alternative sets of procedures"-- has been unwilling to speak the truth about what he has done in the past and what he wishes to keep doing in the future. He wants to be free of Congressional and judicial oversight when he spies on people in the United States. He wants to hold, imprison, and detain people without letting them know the evidence used to condemn and convict them. He wants to let the CIA and other operatives continue to use abusive and inhumane interrogation methods. And he wants to make sure that those who have engaged in torture and inhumane treatment are never brought to justice or held responsible for their crimes-- including especially those who authorized these terrible practices.

In short, this President wants legislation that will confirm that he is a law unto himself.

What have we come to, as a nation, when our President demands these things and expect us to follow him meekly? He seeks to maximize his power by maximizing our fear. Will we let him?

If we Americans do nothing, and say nothing, the President will get what he wants from a supine Congress. If we do nothing, and say nothing, the meaning of our country-- and our commitments to freedom and the rule of law will be subtly and seriously debased.

The choice is ours. Despite our President's desire that we should be fearful above all things, the only thing we have to fear-- as a great man once said-- is fear itself. If we show some courage, reject his fearmongering, and protest his overreaching, we can still preserve the values we cherish. But if we do nothing, and succumb to the fear he seeks everywhere to spread-- indeed, infect us with-- we will let the current occupant of the White House change the meaning of America.

He says he only wants us to be safe. But what he wants is that we should be fearful and docile and let him do what he wants without opposition. Any objection, his vice President says, will only give aid to our enemies. Protest is misguided, counterarguments are inherently counterproductive. The message is repeated, in ever new forms. Be afraid. Be afraid. We know best. Don't ask what we are doing in your name. It's not your business. It's not your concern.

But it is our business. And it is our concern. And we must not be afraid.

If we are cowardly, we will lose the America we love, and get the America we deserve.


Wednesday, September 13, 2006

President Bush: A Man of Conviction and Principles, But...

Brian Tamanaha

Rich Lowry of the National Review reports on his fascinating interview with President Bush. Here are excerpts:

Basically right after “hello,” the next words out of [the President's] mouth are: “Let me just first tell you that I’ve never been more convinced that the decisions I made are the right decisions. I firmly believe — I’m oftentimes asked about, well, you’re stubborn and all this. If you believe in a strategy, in Washington, D.C. you’ve got to stick to that strategy, see. People want you to change. It’s tactics that shift, but the strategic vision has not, and will not, shift.”

Never been more convinced. It’s that kind of certainty that drives Bush’s critics batty. For Bush, it is essential to meaningful governance: “If you don’t have a set of principles to fall back on, you flounder, and it matters. It creates waves, and the waves rock the decision-making process. I’ve just got a set of principles I believe in. And I tell people out there when I speak to them, I say, one thing about my presidency is when I get home — and home is Texas — I’m going to look in the mirror and say, ‘The same set of principles that were etched in my heart when I told the people in 2000 what I believe are still there.’ That may be — tactics are different, you adjust, you make different decisions. But the principles are inviolate.”
….
Bush’s faith in the rightness of his strategy in the broader war is deep-seated — it is, indeed, a product of faith. “Freedom is universal,” Bush says. “And I recognize there’s a debate around the world about the kind of — whether that principle is real. I call it moral relativism, if people do not believe that certain people can be free. I mean, I just cannot subscribe to that. People — I know it upsets people when I ascribe that to my belief in an Almighty, and that I believe a gift from that Almighty is universal freedom. That’s what I believe.”

....
These are extraordinary statements by President Bush, the most striking of which is: "Let me just first tell you that I’ve never been more convinced that the decisions I made are the right decisions." A jarring assertion of confidence this is, given the ongoing political, social, economic, and humanitarian disaster in Iraq.

There are ample reasons to believe that President Bush is indeed a man of conviction and principles, but having these admirable qualities are not enough in a person or a President. Another character trait of equal importance is the capacity to recognize and acknowledge that one--that everyone--makes mistakes. Without this, conviction and principles become blind dogmatism.

What the principles are, and how they work out in practice, also matters, at least as much as being principled. President Bush is committed to human freedom, he says, yet at the same time his Administration has engaged in many acts that flout the rule of law (as documented repeatly in this blog--see sidebar--and elsewhere). The rule of law has arguably made a greater contribution to human freedom than any other human invention. Acts that diminish or threaten to deteriorate the rule of law, therefore, strike blows against human freedom.

President Bush is committed to universal freedom owing to his faith in an Almightly who has conferred this freedom on all human beings. An inseverable aspect of human freedom is respect for human dignity and the inviolability of the human spirit. Yet Bush is condoning the use of techniques--under the euphemism "alternative set of procedures"--against prisoners that fail to respect their dignity as humans and that aim to destroy their human spirit. A President who proudly avows his commitment to principle and belief in the Almighty has directed our country to engage a terrible flirtation with torture (call it whatever you want).

Addendum: With respect to President Bush's commitment to principle in connection with torture, watch this video (thanks to Michael Perry on Mirror of Justice) and judge for yourself. And here is a thoughtful, principled position on torture from a Christian viewpoint.

Will Congress Authorize Violations of the Geneva Conventions?

Marty Lederman

Sorry, I've been tied up with other matters and therefore don't have time to blog about the details of the draft Warner/McCain/Graham bill. Suffice it to say that, as a general matter, it is better than the Administration bill in several respects, but that it would still be very, very troubling. With respect to the Administration's detention and interrogation practices, it would largely undermine the salutary effects of the landmark Supreme Court decisions in Rasul and Hamdan, and might well provide effective legal cover for many of the CIA's "alternative" techniques--even though that might not be the intent of at least some of the sponsors of the legislation, and even though many of those techniques almost certainly would violate Common Article 3 of the Geneva Conventions. [UPDATE: A clarification: I'm not suggesting that the bill would be fairly construed to authorize those techniques. To the contrary, I think the better reading is that the McCain Amendment prohibits most or all of the CIA techniques, and that Common Article 3 is even more restrictive than the McCain Amendment. I am afraid, however, that the Administration's very resourceful lawyers will construe the McCain Amendment and Common Article 3 very narrowly -- or will secretly assert a Commander-in-Chief override -- and that sections 6 and 8 of this bill will effectively preclude meaningful judicial review of such interpretations, which will in turn only encourage further "creative" lawyering.]

Hilzoy's remarks over at Obsidian Wings basically capture the primary problems with the draft, the most important of which by far is that section 6 of the bill would reverse the Rasul decision by (apparently) eliminating the ability of any alien detained overseas to effectively challenge in court the fact or conditions of detention and interrogation (other than in very circumscribed appeals from the decisions of Civilian Status Review Commissions or military tribunals).

By all accounts, it is Senator Graham who is insisting upon inclusion of section 6 -- particularly the elimination of habeas rights. It is understandable that the Senator would wish to minimize the prospect of countless minor or frivolous habeas petitions from prisoners overseas. But there are ways to craft legislation that would discourage such meritless petitions -- or perhaps impose reasonable exhaustion requirements of a sort -- while still preserving adequate procedures for challenging those detentions, and interrogation techniques, that are of very dubious legality.

In a New York Times story over the weekend, Senator Graham is quoted as saying of the Vice President and other Administration hardliners: "They have a view of executive authority that basically smothers the other two branches." This is absolutely correct. But what experience has taught us over the past few years is that the only effective means of stopping the "smothering" of the other two branches is the prospect of judicial review. The Administration's entire edifice of detention and interrogation policy was dependent from the very start on the goal of ensuring that the courts would never be able to oversee such practices: That was, after all, the reason that they chose to detain the prisoners at Guantanamo (and at other foreign locations) rather than in the United States--because they (wrongly) assumed such offshores locations were beyond the purview of federal courts. If it were not for Rasul and Hamdan, the unlawful detentions and interrogation techniques would be continuing unabated to this very day.

Senator Graham's section 6 apparently would eliminate the prospect of effective judicial oversight -- which is the only way of ensuring that not only the military, but also the CIA, abides by the laws that Congress enacts and the treaties the Senate ratifies. If Senator Graham wishes to ensure that his own substantive reforms stick, it's imperative that he not eliminate the only effective means of enforcing those substantive standards. (Moreover, the elimination of habeas rights previously provided might also raise serious constitutional questions.)

One other important thing to note, which may be of particular interest to Senator McCain:

As I've explained, the Administration bill would purport to "construe" Common Article 3 of Geneva to prohibit only what the McCain Amendment prohibits (and to cut off any judicial review that might overturn that implausible interpretation of Common Article 3). The Warner/McCain/Graham draft thankfully does not go so far. (Indeed, by providing that violations of McCain are "grave" breaches of CA3, it clearly indicates that CA3 is broader than McCain.) But it would (in section 8) amend the War Crimes Act such that if an interrogation technique does not violate the McCain Amendment, it would not violate the War Crimes Act (even if it is "cruel treatment" under Common Article 3).

I have speculated that the Administration believes it can live with the McCain Amendment because it has construed that statute -- prohibiting cruel, inhuman and degrading treatment, primarily defined as conduct that "shocks the conscience" under Due Process doctrine -- not to foreclose many of the CIA's "alternative" techniques.

My speculation has now been confirmed by Pentagon General Counsel Jim Haynes. [UPDATE: And by the Attorney General, who told the editorial board of the Wall Street Journal that "the CIA would engage in no conduct that 'shocks the conscience.' He added that this concept was context-dependent, since the 'shock' threshold may be higher with the likes of KSM--who planned 9/11--than for ordinary detainees. At least we hope it is. In theory, this means there's still room to employ some of the aggressive techniques--such as stress positions, sleep deprivation, temperature extremes--that have been used successfully against al Qaeda bigwigs."]

Haynes has been nominated to be a federal judge, despite the fact that in 2002 he advised the Secretary of Defense that techniques such as waterboarding, stress positions for up to four hours, threats of death to the detainee and his family, hypothermia, forced nudity, the use of phobias (such as dogs) to induce stress, mild assault, and hooding, "may be legally available" for U.S. armed forces interrogators. Haynes actually went further than that, and specifically recommended that the Secretary approve the use of forced nudity, the use of phobias (such as dogs) to induce stress, mild assault, and hooding, even though some such techniques both violated the Uniform Code of Military Justice and would appear to be "cruel, inhuman and degrading treatment," which was at the time unlawful under Article 16 of the Convention Against Torture (and is now prohibited by the McCain Amendment).

Haynes has recently submitted written responses to questions from the Senate Judiciary Committee, which is considering his nomination. There are several striking things about those responses that I don't have time to address just now. But for now, the most important development is that Haynes repeatedly argues that the use of dogs to exploit phobias, the use of stress positions for up to four hours, and forced nudity (not to mention hooding and forced groomng) -- all of which he recommended be approved for use by the military -- are not "cruel, inhuman and degrading treatment," as that term is defined in CAT Article 16, and thus in the McCain Amendment. (And recall that Haynes also thought that threats, hypothermia and waterboarding "may be legally available," notwithstanding the prohibition on "cruel, inhuman and degrading treatment.")

If this is the Administration's interpretation of the McCain Amendment -- and there's no reason to think otherwise -- then any legislation effectively setting the McCain Amendment as [the only restriction that is, as a practical matter, enforceable], including by amendment to the War Crimes Act, will only invite the CIA (and perhaps even the military) to continue using such "alternative" interrogation techniques.

If this is not what Senator McCain intends -- and it appears from his public statements that it is not -- then he should do one of two things: Either (i) retain Common Article 3's basic ban on all "cruel treatment and torture" as a subset of crimes under the War Crimes Act; or (ii) amend the legislation to specify that the McCain Amendment itself categorically prohibits such "alternative" techniques. [UPDATE: As explained above, even if there are no such changes, he should also clarify that Common Article 3 is more restrictive than the McCain Amendment -- something that is, in any event, implicit in the current draft.]

Tuesday, September 12, 2006

September 11 and American Politics, Five Years Later

JB

Here in nearby Connecticut, as in New York City itself, many people remember that it was a beautiful morning, with a bright clear blue sky.

Then, suddenly, everything was different.

Tragedy. War. And a new political era.

What happened to the country in the past five years? And why has it happened?

Our enemies and our responses. As best we can tell, Al Qaeda attacked the United States as part of a long term strategy to force America and our allies from its positions in the Arabian peninsula. Since the 1990's America had increased its military presence in Saudi Arabia, where many of the 9/11 hijackers were from. Osama Bin Laden used the American presence both as propaganda and as an intermediate goal-- first get rid of Americans and their allies from the region, then displace the existing corrupt regimes with newer, purer, more fundamentalist ones.

In response the Bush Administration made an initial correct assessment. It recognized that it was essential to make a show of strength against Al Qaeda's sponsors in Afghanistan to deter any state from harboring or working with terrorist groups.

But after that initial correct assessment, very little of the Bush Administration's response to the 9/11 attacks was wise or particularly effective.

Iraq and its consequences. Very soon after the attacks, Administration officials tried to piggyback overthrowing Saddam Hussein's government in Iraq onto the nation's response to Al Qaeda, even though there was very little evidence to support a connection. (As the Senate Intelligence Committee confirmed the other day, there was no credible evidence). The Administration repeatedly and deliberately confused our need to respond to the 9/11 attacks with the danger posed by Iraq's weapons of mass destruction, weapons, which, it turned out, were not even there. In hindsight, this cynical bait-and-switch has harmed the country both in strategic, economic and political terms, as much as anything else in the past five years.

The Administration also conflated the urgent necessity to respond to the 9/11 attacks with a very ambitious plan of remaking the Middle East according to the norms of Western-style democracy, using western military force, led by America, to overthrow tyrannical regimes and establish new ones under the watchful guardianship of the American military. There were many problems with this idealistic plan but one was that insurgencies and terrorism tend to be stoked by the belief that the West is occupying Muslim countries and propping up governments that are to its liking. Thus, the neoconservative vision played right into the hands of the forces that hoped to coalesce a network of insurgency and terrorism around the world against the United States and our allies.

The Iraq adventure also strained and in some cases undermined American strategic goals and America's alliances with our long time partners in Western democracies. Some allies, like France and Germany, refused to participate, and anti-American sentiments grew in Europe and other parts of the democratic West. Other allies who joined the coalition, like Britain and Spain, now became targets for Al Qaeda suicide bombings, even though Iraq and Al Qaeda had nothing to do with each other previously. Now Al Qaeda could point to the fact that these countries had joined with the hated Americans to occupy Muslim countries. Above all, the Iraq adventure helped confirm in the minds of Muslims around the world that America was not to be pitied for the 9/11 attacks, but that it posed a far greater threat to world peace than Al Qaeda.

After a quick initial victory, the Iraq adventure proved to be a complete fiasco, and drained American forces and attention from dealing with Al Qaeda. It also had the effect of increasing the number of Muslim countries with a substantial western military presence, thus increasing the incentives for even more recruitment of terrorists and more suicide attacks. Mishandling of the Iraqi occupation has pushed the country into civil war, leaving American forces with the thankless task of keeping the country from imploding as long as possible. Of course, with American forces stuck in Iraq, America is not free to make credible threats to use military force in other parts of the world, that would back up our diplomacy. Normally diplomacy without a credible threat of force is far less effective than diplomacy with it.

The great beneficiaries of the Iraq adventure were America's adversaries: North Korea, Iran, and, ironically, Al Qaeda itself. Although we have debilitated Al Qaeda, we have not extinguished it, and its key rallying point-- America's military presence in Muslim lands-- is, if anything, more pervasive, more obvious and more generative of new terrorist recruits than before. What is most ironic is that, as the Administration correctly perceived, America needs a military presence in this part of the world, but that, as a result of our mistaken policies of the last five years, it will be increasingly difficult to manage it.

The 9/11 suicide attacks struck at the country's self-confidence and sense of security; but the debilitation we have suffered from our blunder in Iraq will have effects that are far more lasting to our national economy, our national morale, and our national strategic interests. 9/11 was a great tragedy for our country; but the Administration's unwise response to it has been even an greater one. There are only a few times in our history where we have administered so serious and lasting a self-inflicted wound to our own national interests. It is not an auspicious way to begin the twenty first century. And if America's status as a world power diminishes in the next two decades, the blame will rest squarely on our misadventure in Iraq. One of the greatest ironies of 9/11 is that, instead of addressing the real problem-- Al Qaeda and Osama Bin Laden-- the Administration looked elsewhere and snatched a defeat out of the jaws of victory. Even if we do prevail, it will take enormous sacrifices over a long period of time to make up for the Administration's colossal strategic blunders of the past five years.

National Security and the Rule of Law. The Administration's second significant response to 9/11 was reforming our national and domestic security arrangements. It easily pushed the Patriot Act through Congress. After initial resistance, it agreed first to the creation of a Department of Homeland Security, and, following the relevations of the 9/11 Commission, it agreed to reform of the nation's intelligence services.

Although some of the Patriot Act's reforms were necessary and should have been put in pace earlier, others were more of a wish list for law enforcement officials, and still others were unnecessary and involved overreaching that undermined cherished civil liberties. The Department of Homeland Security has still not been able to devote necessary resources to protecting America's ports. The reform of the intelligence services appears to have been more a means of settling scores with the CIA over Iraq than an effective method of rethinking our methods of gathering intelligence. Indeed, the Administration's zeal to attack the wrong enemy-- Saddam Hussein-- caused it both to deform the use and analysis of intelligence and to create a new set of intelligence institutions that told it exactly what it wanted to hear. It is one thing when other countries give us disinformation; it is quite another when you give it to yourself. And it is a recipe for disaster. Vice-President Cheney has argued that public opposition to the Iraq war has given aid to our enemies, which sounds chillingly like an attack on free public discussion during wartime. What has really given aid to our enemies is Cheney's continual bungling, his abuse of the intelligence process, and his single minded devotion to doing things his way. Much of the blame for America's situation post 9/11 is due to his arrogant incompetence.

One of the legacies of the Bush Administration's domestic response to 9/11 has been repeated and unnecessary fearmongering. Instead of telling the country not to panic, the Administration has encouraged it, and has engaged in the panic itself. Shortly after the 9/11 attacks, the Administration rounded up thousands of Muslim and Middle Eastern men using the pretext of material witness warrants and immigration violations. These roundups produced nothing of value, as far as we have been able to determine, and succeeded only in creating enormous human misery for scores of people innocent of terrorism.

Perhaps most important, using the 9/11 attacks as justification, the Administration began creating a secret set of laws that allowed the President to flout American laws and treaty obligations that prohibited torture, cruel inhuman and degrading treatment, and war crimes. The Administration created secret ghost prisons overseas manned by the CIA which engaged in practices like waterboarding that are tantamount to torture. It turned the Guantanamo Bay military facility into a micro-gulag designed to be outside the reach of American law. And it began a secret and illegal domestic surveillance program that spied on Americans' e-mail and phone communications. It is a sad and ironic commentary that only a decade after winning the Cold War in the name of freedom we began to copy the methods of our communist adversaries.

The Politics of 9/11. The Administration's third significant initiative in response to 9/11 was its political strategy. Following the Clinton impeachment and the contested 2000 election, the country was badly polarized, with each side deeply suspicious of the other. The President, who had failed to win even a plurality of the vote, gained power largely as a result of black disenfranchisement in Florida, policies which, in a consent decree, state officials later admitted had violated the federal voting rights act. The elimination of thousands of black votes made the Florida vote close enough to create the recount crisis that ultimately led to the Supreme Court decision in Bush v. Gore, which stopped the recounts and handed the presidency to George W. Bush.

Following the election, the President had two choices-- govern from the center or use the fact that he had a majority in both Houses of Congress (and a Republican majority on the Supreme Court) to push through a strongly conservative political agenda. Bush and his chief political adviser Karl Rove chose the latter strategy, pushing for two rounds of tax cuts which eliminated the preexisting budget surplus and primarily benefited the wealthiest Americans, who were, not coincidentally, key to his party's electoral fortunes.

By September 2001, this strategy had stalled. Senator Jeffords bolted the party, meaning that the Republicans no longer controlled both Houses. Opinion polls showed the President's popularity declining steadily.

The September 11th attacks offered the President new political life. As so often happens whenever a country is attacked, citizens rally around their leaders. The President's approval ratings shot up to stratospheric levels. The Administration now had a new choice in response to the tragedy: It could create a government of national unity which demanded sacrifice from all Americans, and it could seek to unify the country and heal divisions created by the events of the past few years. Or it could use the President's sudden popularity to exacerbate the divisions between right and left in hopes of creating a permanent majority for the Republican party.

The Administration chose the latter path. It demonized its critics, labeling them as unpatriotic and unconcerned with the terrorist threat. Not surprisingly, this caused the President's critics, who regarded themselves as every bit as patriotic as he was, to oppose him even more firmly. One of the most remarkable features of the five years since 9/11 is that the country is just as polarized-- perhaps even more so-- than it was before the crisis. The only thing that seems to have changed is that the agenda has shifted from domestic to national security issues. The poisonous atmosphere of politics is still very much with us.

The Administration, and in particular Rove's political strategy of division, must take the lion's share of the blame for this. The President, more than any other public official, has the opportunity to shape the country's political agendas. Had the President conducted himself differently, he could have moved the country in a much less polarized and much more politically serious direction. But he and Rove concluded that 9/11 presented the political opportunity of a lifetime-- an opportunity to cement Republican dominance for a generation. All they had to do was use the war on terror cynically to frighten the public and smear their opponents as unpatriotic and as giving aid and comfort to our enemies. This they did repeatedly and effectively over the course of the next four years.

Rove's political game plan worked perfectly in 2002 and 2004. The Republicans increased their Congressional representation (and retook the Senate) in the off-year 2002 elections (when historically they should have lost seats), and they won reelection to the Presidency in 2004, despite the serious problems growing daily in Iraq. Since that point, however, the strategy of divide and conquer has worked far less effectively. The President's attempt to privatize aspects of Social Security and its bungling of Katrina, and the Administration's Orwellian account of the war despite the face of the daily toll of violence in Iraq demonstrated to an increasing numbers of Americans that the Administration was both radical, disingenuous, and incompetent. What began as a brilliant method to discomfit their political opponents and forge a permanent Republican majority may now do exactly the opposite-- precipitate the beginning of the end of the conservative movement's unquestioned dominance in American politics. A toxic combination of corruption, illegality, and just plain stupidity has tarnished the Administration, so much so that important parts of the conservative movement-- which originally saw it as the movement's fulfillment in American politics-- are now abandoning it.

Immediately after 9/11, the Bush Administration had both the challenge and the opportunity of lifetime. There are many possible paths it could have taken; many possible ways it could have shaped the direction of American policy and American politics. It could have unified the country, healed the divisions of the past, and made America admired and emulated around the world. Instead it further divided and weakened America, and made it hated by people around the globe. It could have devoted resources inside the United States to strengthen the country and keep us free from fear. Instead it squandered the budget surplus on payoffs to its wealthy contributors, wasted enormous resources on an unnecessary war and repeatedly-- and cynically-- stoked up resentments and fears to keep itself and its party in power. Claiming to be committed to Republican values of law and order and constitutional government, it repeatedly broke the law and plunged the country into a constitutional crisis. Promising to be guided by values, faith, and ethics, it turned a blind eye to torture and abuse and authorized waterboarding and inhuman and degrading treatment. Committed to freedom and the rule of law around the world, it created a secret detention system that "disappeared people," seized American citizens and denied them their protections under the Bill of Rights, and created secret tribunals with secret laws, secret evidence, and secret prisons. What a shame that with so many choices available to it, this Administration chose the path of incompetence, demagoguery, deceit, authoritarianism, and corruption. To quote George W. Bush himself, speaking of the Administration that had preceded him: "so much promise, to no great purpose."


Monday, September 11, 2006

Third Draft of Warner-Graham Bill on Military Commissions

JB

The third version of the Warner-Graham bill is here. Sad to say, this bill is not getting better than the previous draft, and in some ways it is getting worse. It prevents judicial suits for damages for violations of the Geneva Conventions, eliminates habeas relief for aliens held outside the United States, thus effectively reversing the Rasul decision, and narrows the War Crimes Act, substituting language about "grave breaches" for the general prohibition on violating Common Article 3. The new version would remove some (but not all) of the CIA interrogation techniques from prosecution under the War Crimes Act; I am not sure whether the ban on cruel, inhuman and degrading treatment as defined would cover waterboarding-- I certainly hope it would, but you never know.

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