Balkinization  

Friday, September 08, 2006

Fall Reading II: The Supreme Court & American Constitutional Development

Mark Graber

Readers tired of constititutional history that does little more than search for quotes that can be employed (out of context usually) when defending or opposing ROE V. WADE should quickly purchase a copy of Kahn and Kersch, eds., THE SUPREME COURT AND CONSTITUTIONAL DEVELOPMENT. This anthology has numerous virtues. Kahn and Kersch have brought together many of the leading constitutional thinkers in political science (and for those desperately needing a law professor fix, there is an essay by Mark Tushnet). Unlike many collections, which too often include essays contributors would be embarrassed to put in their promotion file, virtually every contributor to THE SUPREME COURT brings their A-game. Most important, the essays reflect what is best about what has become know as the "historical institutionalist" school in political science. Orthodoxies on the left and right are challenged by scholars on both the left and right. Rather than write history designed to privilege a presentist end, the essays try to explain how the developmental paths responsible for contemporary American constitutional politics, paths that were foreclosed by past choices, and exercises in historical forgetfullness that ought to be remembered.

Several of the essays in the collection develop a "regime politics" approach to judicial review. Howard Gillman and Mark Tushnet point out that, rather than thwart the will of majorities, judicial review is often a means by which members of majority coalitions realize such diverse aims as enforcing national norms in localities, getting hot button items off the political agenda, and entrenching regime norms for the future. Ken Kersch's essay notes how, rather than understand some regimes as more committed to civil liberties than others, we will better understand the New Deal regime as committed to a different set of civil liberties than the previous regime, that part of the way a regime governs is by creating a history in which its notion of right is identified with right per se, and rival notions of rights and reconceptualized as oppression. Progressive era conservations had a rich notion of rights, not all of which can be understood as simply protecting the interests of the wealthy. New Dealers triumphed, not simply by winning elections, but by redefining rights as consistent with the New Deal view of the world.

Many essays in the volume recover a forgotten past, not because that past represents a desirable alternative, but because our reasons for forgetting cast light on the nature of contemporary constitutional politics. Consider Pamela Brandwein's analysis of state neglect that brings in notions of natural law and nineteenth century concerns with state power when explaining why both the Rehnquist Court and Rehnquist Court dissenters misread the CIVIL RIGHTS CASES of 1883. Julie Novkov's analysis of the central role miscengenation played in the construction of southern constitutional politics after the Civil War reminds us of how families were thought central to constitutionalism before the New Deal. Both essays highlight histories Americans lost, in part because we no longer wish to remember them and in part because later political regimes had a vested interest in forgetfulness. Neither essay will provide the knockdown argument for any constitutional policy today. Nevertheless, these and the other fine essays in the volume suggest that American constitutional politics is far more interesting and contains many more developmental paths than one would realize from just reading the Supreme Court reports and the law reviews.

The Growing Effort of Conservative Christian Groups to Vet Judges At Every Level

Brian Tamanaha

The efforts of conservative Christian groups to seat federal judges who share their relgious/moral views have been widely reported in the press. At a private conference in March 2005, attended by Senate Majority Leader Bill Frist and then House Majority Leader Tom DeLay, evangelical leaders discussed a plan to "work with congressional Republicans to achieve a judiciary that sides with them on abortion, same sex marraige, and other elements of their agenda." Tony Perkins, head of Family Research Council, stated "For years activist courts, aided by liberal interest groups like the A.C.L.U., have been quietly working under the veil of the judicial bench, like thieves in the night, to rob us of our Christian heritage and our religious freedoms."

It is less well known that the same effort is taking place nation-wide at the state level, where the majority of judges face some form of election. An increasingly common tactic of conservative Christian groups, described in this report, is to send all judges (at every level) a questionnaire, the results of which are then posted or mailed to selected voters.

A typical version of this is the Florida Family Policy Council's 2006 Statewide Judicial Candidate Questionnaire. Among other loaded questions (like, favorite Supreme Court Justice?), are the following:

8. Do you agree with the following statement? "The Florida Constitution recognizes a right to same-sex marraige."

9. Do you agree with the [Florida Supreme Court's ruling invalidating a Florida law that required parental consent before a minor child can undergo an abortion]?

10. Do you agree with the [Florida Supreme Court's ruling upholding a statute prohibiting assisted suicide]?

11. Do you agree with [a federal district court ruling upholding a Florida law prohibiting homosexual adoption]?

12. Do you agree with [a Florida Supreme Court decision invalidating Florida's educational voucher program]?

Three Florida Supreme Court Justices declined to answer the questionnaire on the grounds that they are prohibited from expressing an opinion that could be interpreted as a prejudgment on an issue they might later be confronted with. The Florida Family Policy Council then sued to have those sections of the state judicial code declared unconstitutional.

When critics of this vetting practice argue that judges' personal or political views should not be considered in elections, the routine response is this (offered by the attorney for FFPC):

James Bopp Jr., a Terre Haute, Ind., lawyer who vets questionnaires for a number of interest groups, says he expects judges to be impartial and rule solely according to the law. But, he says, judicial candidates should be permitted to express their views on various issues.

Wink. Wink.

Of course the only point of such questionnaires is to identify and seat judges with a particular set of views in the hope (and expectation) that they will interpret the law in a manner consistent those views. The "we expect judges to rule solely according to the law" response is charade, although the very fact that they feel the need to recite it is a telling indication of their awareness that there is something wrong in what they are doing. After all, if it is wrong when the left and liberal judges do it, then it is still wrong when the right and conservative judges do it.

As these groups know, judicial elections are easier to swing than regular political positions because fewer voters register votes on judges on the ballots, out of indifference or a lack of knowledge about the judge. A "get out the vote effort" by a committed group can therefore be disproportionately effective.

What's at stake here is bigger than the liberal/conservative political divide: it is whether judges will be seen and treated in purely political terms, and whether, consequently, they will become purely political actors, operating under the guise of ruling solely according to the law.

The good news is that the overwhelming majority of judges failed to respond to the Florida survey, or responded but declined to answer the above questions. This poor response rate indicates that the judges, at least, recognize that questionnaires of this sort pose a threat to the integrity of the task they have sworn to uphold. Perhaps the Florida Family Policy Council, and other groups engaged in similar efforts (left and right), will reflect upon the message sent by the mass refusal of the judges to answer, and come to the decision that this is not the right way to further their agenda.

It is more likely, however, that this tactic will continue. The best hope is that judges as a group will continue to JUST SAY NO!

Yale Pocket Part Symposium on Online Legal Scholarship

JB

Yale Law Journal's Pocket Part has published an online symposium on how online legal media will change legal scholarship. The contributors currently include Ann Althouse, Christopher Bracey, Paul Caron, Stephen Vladeck, and Eugene Volokh, and the symposium will eventually add essays from Rosa Brooks and Brian Leiter. The essays are all quite interesting and I recommend them to you.

My own contribution is called Online Legal Scholarship: The Medium and the The Message. It talks about how online media change the subject matter, audience, style, tempo, and expectations of legal scholars, and how they may also change our assessments of scholarly vocation and scholarly merit.

The Yale Law Journal editors, perhaps too optimistically, noted that my essay begins with an account of how this blog "helped scuttle Senator Arlen Specter’s recent bill on domestic spying." In fact, Marty's and my work on Balkinization did no such thing. The Specter bill is still alive and well, and the Administration is still pushing for it. What we did was to expose some of its more egregious features, help the mass media understand the legal problems with the bill, and help get the message out both to specialized policy audiences and to a wider public. That is only one of the many services that academic blogging can perform.

Draft of Warner-Graham Bill on Military Commissions

JB

Senators Warner and Graham are working on a new draft of a bill regulating military commissions for unlawful combatants which differs in important respects from the Administration's proposal. A few highlights:

1. Like the Administration's draft, this draft allows commission trials for permanent resident aliens, but not citizens, and it has a fairly broad definition of unlawful alien combatant, which includes anyone "affiliated with" Al Qaeda or the Taliban or "associated forces."

2. One of its most important features is that the draft uses the existing court-martial system as the baseline, and then carves out exceptions (pp. 8-9 and pp 20-24), while preserving specific minimum protections (pp. 21-22).

This draft bans the use of evidence obtained through torture or cruel, inhuman and degrading treatment but in cases of coercion falling short of the same judges may allow the evidence if it is sufficiently probative and if the interests of justice would require it. (p. 19).

3. The bill prevents challenges to the legality of the commissions by any court except in the course of review of a final judgment of a military commission, including challenges through habeas. (p. 55) Language on p. 74 suggests that the Detainee Treatment Act will also be modified but the precise language has not yet been worked out.

4. The Supreme Court may only take appeals from the U.S. Court of Appeals for the Armed Forces (instead of the D.C. Circuit, as per the Detainee Treatment Act). The Supreme Court may not grant cert on cases where the lower court has not granted an appeal first. Appeal by right is only available for cases where the sentence is more than ten years; otherwise it is discretionary.(pp.50-55)

5. The bill offers definitions of torture and cruel or inhuman treatment that apply to "any person subject to this chapter." (pp. 63-64). These provisions seem to apply only to unlawful enemy combatants who could be tried by military commissions under this title. Thus it does not seem to address several of Marty's concerns about torture and cruel and inhuman treatment by our own forces.

6. The bill establishes conspiracy as an offense, which is important because of the Supreme Court's decision in Hamdan. But it doesn't make entirely clear whether the offense has always existed, so that it might be applied retroactively to conduct before the Hamdan decision. The definition of "spying" is also quite broad.

7. The bill extends the Detainee Treatment Act's protection from prosecution of U.S. officials for unlawful interrogation methods. They may defend themselves on the grounds that they reasonably and in good faith believed that they were acting legally. The extension is now made retroactive to September 11th, 2001. (p. 71).

8. Perhaps most important, the draft has not yet settled on final language on two very important questions: how to amend the Detainee Treatment Act's provisions relating to habeas (but see p. 55), and what to do about the war crimes act. (p. 74).

The draft has not adopted some of the most controversial features of the Administration's proposal, and it begins with the existing military commissions system as a baseline. However, as just noted, the draft suggests that new language will soon be added, most importantly on the war crimes issue. That new language might bring back some highly objectionable features of the Administration's proposal. We will have to wait and see whether the bill gets better or gets worse, and whether the mere existence of this bill means that the Administration will have to compromise.

(CIA) Business as Usual?: Would the Administration Bill Effectively "Overrule" Hamdan?

Marty Lederman

Jack's scenario below -- in which Al Qaeda operatives seeking intelligence information from U.S. prisoners subject those detainees to mild physical assault, sleep deprivation, "long time standing," hypothermia and waterboarding -- points out a certain irony at the heart of the Administration's draft bill -- namely, that although it codifies numerous crimes in violations of the laws of war, it would appear to legalize one set of war crimes that are currently unlawful.

Two centerpieces of that bill are (i) a very detailed list of 27 categories of offenses (mostly violations of the laws of war) that could be tried by the Administration's proposed military commissions; and (ii) another detailed list of nine categories of "war crimes" that could be tried in our civilian criminal courts under a revised War Crimes Act. These two lists catalogue virtually every war-related crime imaginable -- from attacking civilians, pillaging, denying quarter, using posion, using human shields, trechery, and "conspiracy," to biological experiments, rape and hostage-taking.

There is a conspicuous omission, however: It appears that most or all of the CIA's "alternative" interrogation techniques, such as those Jack lists, are not covered on either list.

Under current law, such techniques could almost certainly be prosecuted either as violations of the laws of war, by a court martial or by a properly constituted military commission, or as "war crimes" in a civilian criminal court, under the War Crimes Act, because they violate the prohibition on "cruel treatment" in Common Article 3 of the Geneva Conventions. But under the Administration's draft bill, such conduct apparently could no longer be prosecuted under either of these two legal systems for handling war-related crimes. Therefore, if Al Qaeda today subjected our personnel to the horrors that Jack hypothesizes, we could prosecute such conduct; yet it appears that such cruel treatment would be outside the law under the Administration's proposed legislation. (Possible caveat: Such conduct might be prosecutable as "spying" under paragraph 26 of the list of military-commission offenses, not because of the techniques used, but because that provision would make criminal any attempts to collect intelligence against the U.S. "by clandestine means.")

What explains this odd proposed liberalization of a single category of war crimes?

Common Article 3, Hamdan and the CIA.

As this story in the New York Times today explains, the infamous OLC "torture memo" in August 2002 gave a green light to the CIA to engage in what another DOJ memo (not yet disclosed) apparently identified as 20 "alternative" interrogation techniques. That August 1, 2002 OLC memo, however, dealt only with the federal torture statute, which is hardly the most restrictive legal constraint with respect to such matters. Even if that memo had been correct about the definition of torture and possible legal justifications for torture (it wasn't), so what? After all, there were numerous other legal constraints on interrogation conduct that are even more restrictive than the torture statute. But Administration lawyers had also carefully provided justifications -- some valid, others less so -- for concluding that the CIA was not bound by any of those other legal restrictions, either, when interrogating suspected Al Qaeda operatives overseas. (Click on the previous link for some of the details.)

As I tried to explain in some detail 15 months ago, the most important legal move of all -- the one that made all the others possible -- was the President's determination in February 2002 that Common Article 3 of the Geneva Conventions -- which categorically prohibits all "cruel treatment," as well as torture and other conduct, with respect to persons in our custody in certain armed conflicts -- did not apply to the conflict with Al Qaeda.

Enter Hamdan. Within minutes after the Court's decision on June 29th, it was evident that the most important news was not the specific holding that the President's military commissions violated federal statutes (important as that was), but instead the momentous holding that Common Article 3 applies to the conflict with Al Qaeda as a matter of treaty interpretation.

As Dafna Linzer and Glenn Kessler explain in the Washington Post today, this holding came as a bombshell to the CIA and the Administration, in that it "in effect declar[ed] the CIA's program illegal." Hamdan "forced our hand," Dan Bartlett is quoted as acknowledging. Apparently the White House "had made no contingency plans for [such] a loss and was stunned by the decision."
Stunned . . . but not yet quite ready to concede defeat. After all, what difference does a Supreme Court decision make when you have the power to cut off all judicial review?

Section 6(a) of the Administration's draft legislation would declare that compliance with the McCain Amendment would "satisfy" the U.S.'s obligations under Common Article 3. Perhaps such a legal conclusion might be reasonable if the Administration were construing the McCain Amendment the way Senator McCain intended it. But apparently they are not, instead reading the vague "shocks the conscience" standard of the due process clause (which the McCain Amendment incorporates) to permit at least some of the "alternative" CIA techniques. (For how they might reach such a conclusion, see the discussion of "Myth No. 6," here.)

The Supreme Court, however, would not be bound by the statutory declaration that such techniques comply with Common Article 3. The Court could -- and probably would -- reasonably conclude that, for example, hypothermia and stress positions are, in fact, "cruel treatment." This prospect obviously is a problem for the Administration. And so, in section 6(b), the legislation would purport to prohibit all courts from ever considering any questions relating to the interpretation or enforcement of the Geneva Conventions.

That still would not do the trick, because there's also the War Crimes Act, which criminalizes all violations of Common Article 3, and it's surely conceivable that a future Attorney General might conclude that techniques such as hypothermia and Long Time Standing are, indeed, "cruel treatment" and thus war crimes. Therefore, in section 7 of the bill, the Administration would carefully exclude most or all of the CIA's alternative techniques from the scope of the War Crimes Act.

Thus, as Adam Liptak reports in today's New York Times, and as a "senior intelligence official" confirms, "the new legislation, if enacted, would make it clear that the techniques used by the C.I.A. on senior Qaeda members who had been held abroad in secret sites would not be prohibited and that interrogators who engaged in those practices both in the past and in the future would not face prosecution."

(Some of Liptak's sources suggest that the object of the legislation "seems to be trying to surgically remove from our compliance with Geneva the section of Common Article 3 that deals with humiliating and degrading treatment." As I've tried to explain, that's not quite right -- or it's not the important part of the puzzle, anyway. The central point is not that the CIA techniques in question may be "humiliating and degrading" -- they might be sometimes, but not always, depending on how that clause is interpreted -- but instead that the techniques in question constitute "cruel treatment" under Common Article 3.)

As John Yoo states in the Liptak story, the net effect of the new legislation in the interrogation context is to allow the CIA to "operate with a freer hand" than the Defense Department "in that space between the Army Field Manual and the McCain amendment." (The bill would also allow the military itself to do the same -- but that would presumably require a controversial amendment of the Field Manual.)

In other words, the Administration would create a two-track system, almost literally a case of "good cop; bad cop." As Julian Barnes's excellent story in the L.A. Times puts it:
The Army, morally and culturally averse to using unorthodox interrogation methods, will get out of the business of using tough tactics against detainees under the compromise. The new Army field manual authorizes only 19 interrogation techniques and bans the most controversial tactics that critics said amounted to torture — hooding prisoners, conducting mock executions, and strapping detainees to boards and using water to simulate drowning. But the CIA will reserve the right to use the tougher tactics. Bush said such methods had been effective in getting some of the 14 top Al Qaeda suspects held by the agency to talk. Administration officials said the CIA tactics would be legal and fall well short of torture and abuse. But the president and others have pointedly refused to say what those tougher methods might be.
Why such a division of labor? "Each of us has our task to do," Stephen A. Cambone, the undersecretary of Defense for Intelligence, said in an interview Thursday.

Well, that's one way of looking at it.

As Professor Yoo notes, this would, in effect, be a "rejection of what the Court did in Hamdan." According to Linzer and Kessler, this part of the Administration's strategy is a "reward" to Vice President Cheney, who would otherwise have "essentially lost out on a program [the CIA black sites program] he had fought to preserve."

The final line in that story, however, inserts a note of ambiguity. "'It's true the program could continue, but it will never occur in the same manner that it operated before,' said one influential official."

Perhaps, as Dana Priest's story yesterday suggested, this means that not all of the CIA techniques would be made lawful by the proposed bill. Perhaps even the Administration concedes that some of those techniques "shock the conscience," and thus would violate the McCain Amendment. It's impossible to tell from the current draft language. (Perhaps the ambiguity resides in the bill's new war crimes category caleld "Cruel or Inhuman Treatment." For the most part, that crime is defined only to prohibit torture as it is (narrowly) defined under federal law. But it also includes an odd reference to "severe physical abuse" (page 80, line 23) as an example of what constitutes severe physical pain. I have no idea what that new phrase is supposed to mean, whether it makes this category broader than the "torture" described in subparagraph (1), and/or whether it would best be read to incorporate some of the "alternative" CIA techniques.)

Not even Congress itself knows what this bill would, and would not, authorize. Barnes reports that "[o]n Capitol Hill, lawmakers and aides have expressed frustration that they have not been told what the CIA techniques were and whether the agency would adhere to the ban on torture. 'We don't know what the methods are; that is where the difficulty lies,' said a congressional aide."

The Administration claims a need to provide clarity in the War Crimes Act; but their proposal would if anything, make it much more ambiguous . . . which might, after all, be the whole point of the exercise, because in ambiguity lies the seeds of loopholes to be exploited by creative lawyers.

Thursday, September 07, 2006

An Alternative Set of Procedures

JB

It was terrible news. Several of our American soldiers were apprehended by terrorists and interrogated for hours on end. Al Qaeda operatives slapped them repeatedly in the face and the stomach to cause pain, then they shook them violently over and over again to disorient them. Then, after softening them up, they deprived the Americans of sleep and forced them to stand for over 40 hours at a time. Reports indicated that Al Qaeda regarded this technique as particularly effective in breaking down the Americans' will. Then, for those who had not already cracked, Al Qaeda stripped the Americans naked, put them in cold rooms kept at around 50 degrees and repeatedly doused them with cold water.

A few American soldiers wouldn't crack even under this treatment. For them Al Qaeda had a special technique: They strapped the Americans to a horizontal board with their heads tilted downward slightly. Then they covered the American soldiers' faces with cellophane and continuously poured water over them to make the Americans think they were drowning. This technique caused an unbearable gag reflex. The Al Qaeda interrogators were particularly impressed with how this quickly reduced even the bravest Americans into abject submission.

As soon as the White House found out about the interrogations, they were outraged at the abuse and mistreatement of American soldiers. They immediately protested in all the diplomatic and military channels they could think of. Eventually they got a response: These techniques were not torture. Al Qaeda insisted that it does not believe in torture and does not practice torture. That was just American propaganda. Rather, these techniques were an "alternative set of procedures" that were "designed to be safe," complied with the Geneva Conventions, and were far less painful than the American infidels deserved. Moreover, these techniques had been thoroughly vetted at the highest levels of Al Qaeda and by a number of highly trained legal scholars to ensure that they complied with international law and with basic standards of human decency. They were absolutely necessary if Al Qaeda was to get the intelligence it needed to win against the American imperialists.

The White House had no comment.

Does Torture Save Lives?

Marty Lederman

Don't ask me. I'm hardly an expert. But if we're going to authorize cruel treatment in violation of our treaty obligations, then at the very least the case for its effectiveness -- for its necessity -- would have to be established fairly conclusively in public debate (although I'd argue that such a showing is far from sufficient to justify such a momentous and horrific step).

That's the task the Preisdent set for himself in his speech yesterday -- to convince the public that without torture (oops, I mean "alternative techniques"), we can't obtain valuable information necessary to prevent future attacks. As I mentioned below, one inconvenient little problem is that the experts over at the Pentagon had just gotten through vociferously denying what the President was trying so hard to establish: "No good intelligence is going to come from abusive practices," Kimmons said. "I think history tells us that. I think the empirical evidence of the past five years, hard years, tells us that." More from Mark Benjamin on this Pentagon/White House Jekyll and Hyde routine here.

As for the President's examples: Ron Suskind calls into question some of them, including the Abu Zubayda narrative. And Spencer Ackerman goes further than that: "The idea that Abu Zubaydah's interrogation tipped off the U.S. to the existence of Ramzi bin Al Shibh is just an outright lie."

A few words about Copyright and Memes-- and Free Online Books

JB

The Chronicle of Higher Education has an article by David Glenn about my book, Cultural Software, and Yale University Press's decision to offer it for free online under a creative commons license. (Perhaps ironically, the entire article is available only to subscribers of the Chronicle of Higher Education, but here is a selection:)
The idea, says the author, is that a small portion of the readers who sample Cultural Software online will decide to buy a printed copy of the book, producing a net increase in revenue for the press. . . .

"If this experiment succeeds," Mr. Balkin says, "it may change the way that university presses make money off their backlists. ... What we are doing with Cultural Software may be a new and inexpensive way to create interest in the 'long tail' of scholarly works that sell only a few copies a year and would otherwise be a drag on profits."

The director of the press, John E. Donatich, says Mr. Balkin's experiment is one of several new explorations of electronic publishing there. Yale is among the six presses participating in the Caravan Project, a new program financed by the John D. and Catherine T. MacArthur Foundation that will allow publishers to release books simultaneously in print-on-demand cloth, paperback, digital, and audio formats. (The first Caravan titles are scheduled to appear in early 2007.)
. . .

"The real question," Mr. Balkin says, "is what the vocation of academic publishing is. Academic publishers saw themselves as trying to spread knowledge-- high-quality knowledge--— as far and wide as they could ... not just as a service that they provide to the universities that they're associated with. Well, now they can promote that vocation even better than they could before. And they may even be able to make money off of it, which would be all to the good."


If you read the full article, you will see that Glenn is entirely too nice to me in describing what my book did. As most people know, Richard Dawkins coined the term "meme" and advanced the hypothesis that Darwinian forces of selection acted on culture as well as genes. Many other scholars, including Daniel Dennett, further developed the idea. Cultural Software showed how we could use memetic models to explain what social theorists had called "ideology," and how a memetic approach to culture offered a better account of ideology than traditional Marxist models and their successors, as well as showing how memetics intersected with questions of justice.

Giving away free online copies of Cultural Software is an apt way of symbolizing both how memes spread and the relationship between copyright and memetics. The goal of copyright, as our Constitution explains, is "[t]o promote the progress of science and useful arts." The original 18th century meaning of "progress" included the notion of "diffusion," so one purpose of copyright is to promote the spread of ideas. That is, in hindsight, a very memetic notion. We create intellectual property for instrumental reasons-- to foster and promote the spread of ideas from mind to mind.

Intellectual property laws that prohibit copying give incentives for people to create and to market their expressions widely. On the other hand, they quite literally discourage copying and inhibit the spread of expressions, and hence, at the margins, they can inhibit the spread of ideas. The question is ultimately one of balance.

Distributing free online copies of Cultural Software has two effects, a substitution effect-- people download the chapters instead of buying the book-- and a publicity effect-- every download is an advertisement for the book. The question is whether the publicity effect dominates the substitution effect. Our experiment is betting that this is the case. More free advertising and viral distribution of samples will ultimately produce more sales than it will lose from the substitution effect. And, in the meantime, we will make the book's argument available to a host of students and researchers who could benefit from it. That, in turn, will creative further incentives for authors like me to create even more works.

It's important to understand that this is *not* a claim that we should abandon copyright. It is an argument about how to use copyright to serve larger goals. After all, the Creative Commons license under which we are distributing online copies for free is based on copyright. The lesson, rather, is that we must always keep in mind copyright's memetic purposes-- the spread of knowledge and information-- and use intellectual property to serve those ends. Yale University Press is to be commended for its farsightedness and its understanding of how important it is for university presses to play a key role in the diffusion of scholarly ideas.


Wednesday, September 06, 2006

The CIA's "Alternative Set of Procedures": Calling Things by Their Right Names

Marty Lederman

There was some very good news today -- namely, that in its revised Army Field Manual, and accompanying Directive 2310.01E, the Department of Defense appears to have committed, at least for the time being, to prohibiting the use of unlawful and abusive techniques, and to compliance with Common Article 3 of the Geneva Conventions. The new Army Field Manual goes even further, providing numerous examples of techniques -- many of which Donald Rumsfeld and Jim Haynes had previously (and eroneously) approved as "legally available" -- that will will now be off limits for all detainess in DoD custody, including: forcing a detainee to be naked or perform sexual acts; using beatings and other forms of causing pain, including electric shocks; placing hoods over prisoners’ heads or tape on their eyes; mock executions; withholding food, water or medical care; using dogs against detainees; and waterboarding.

Josh White has a thorough round-up here. According to Deputy Assistant Secretary of defense Charles Stimson, this new Pentagon policy "unambiguously articulates the values and traditions of our nation, values that John Adams called 'the policy of humanity,' which has been the cornerstone of the American ethos of warfare."

As I explain below, however, that's only half the story, because the draft Administration bill would (i) retroactively legalize all the unlawful acts that were approved and performed from 2001 to the present day (see section 9, page 86); (ii) would cut off all judicial review of U.S. compliance with the Geneva Conventions (section 6(b), page 79); and, most importantly, (iii) would authorize the CIA -- and, for that matter, other agencies, including DoD itself -- to engage in what the President today euphemistically referred to as the CIA's "alternative set of [interrogation] procedures." Those proceudres include many techniques that today's Army Field Manual would purport to prohibit for the military. According to numerous previous reports, quoting Administration officials, such techniques have included hypothermia, threats of violence to the detainee and his family, prolonged sleep deprivation, "stress positions," and waterboarding.

The Administration draft bill would effectively authorize these techniques by conspicuously excluding them from the list of techniques that would constitute war crimes violations of Common Article 3 (section 7, pages 79-84), and also by purporting to provide -- unconvincingly -- that compliance with the McCain Amendment's "shocks the conscience" standard will satisfy the U.S.'s obligations under Common Article 3 (section 6(a), pages 78-79), even though (as I've previously explained) the Administration apparently has construed the McCain Amendment, which has governed the CIA since late December 2005, to permit the "alternative" CIA techniques.

But the draft bill would not actually identify these techniques. Such obfuscation would allow the Administration (and Congress) to nominally continue the pretense of U.S. compliance with our treaty obligations, while at the same time immunizing conduct that would appear by any reasonable account to violate the Geneva Conventions' prohibition on all "cruel treatment and torture."

On this score, Dana Priest has a very intriguing article in tomorrow's Washington Post. Priest reports that in addition to the techniques listed above (e.g., waterboarding), the CIA "alternative" techniques may also have included "extreme isolation, slapping, . . . reduced food intake, and light and sound bombardment." Whether Common Article 3 prohibits some of these techniques might be a bit more uncertain (depending, of course, on the details of how they are implemented). The most important part of Priest's article is this passage:
In the past year, the CIA has studied more closely the effectiveness of harsh interrogation techniques that it and other agencies have used and concluded that some of those were worth discarding. CIA officials have eliminated some of those techniques and, within the past two months, have begun to consult for the first time with the full Senate and House intelligence committees about creating a new list of techniques. . . . The administration will ask the intelligence committees to give it guidance to draw up a separate, shorter list of harsh techniques it might still employee under certain circumstances. The point, said one senior official, "is to make the program more durable" and not "subject to the pendulum swings" of Congress or the president.
This is potentially good news. Perhaps the techniques the Administration wishes to authorize for the CIA will not include those that are plainly illegal under Geneva. Or perhaps those techniques will include what Common Article 3 calls "cruel treatment and torture." There's no way to tell for sure based solely on the cryptic words of the Administration draft bill.

But the possibility that the congressional intelligence committees would identify the specific list of approved techniques -- presumably in the form of some proposed legislation -- would be a very positive development. That way, we could actually have a public debate about whether Congress is authorizing cruel treatment, and whether we are thus de facto breaching the Geneva Conventions. If, as the President insists, certain techniques are necessary to use in this war -- even though we have never found the need to use them in previous conflicts, and even though the Pentagon just today that "nothing good will come from" such techniques -- then at the very least we should have the decency to acknowledge what we are doing, and to stop hiding behind transparently ridiculous claims that we treat all detainees "humanely," that we do not "torture," and that all of the (undisclosed) CIA techniques are Geneva-compliant.

In his speech today, the President once again insisted that we "cannot describe the specific methods used -- I think you understand why -- if I did, it would help the terrorists learn how to resist questioning." In other words, if the detainees know what our legal limits are, they will know precisely which techniques they must resist in order to avoid revealing valuable information.

But this argument is no longer tenable (if it ever was), because we are now obviously very willing to disclose all sorts of limits beyond which we cannot go. The Administration's own bill today lists 27 specific forms of conduct that we ourselves will consider "war crimes" triable by military commission (pages 65-76). The Administration's draft amendment to the War Crimes Act (pages 79-84) contains nine categories of meticulously described conduct that could be punished as war crimes in the civilian criminal justice system. And, as noted above, the Army Field Manual released today goes into great and specific detail about what the military can, and cannot do, to its detainees. After all of these highly specific provisions are in the public record specifying what can and cannot be done within the law, it's no longer very persuasive to assert that the CIA's techniques cannot likewise be codified. It's no secret that the CIA has used waterboarding, hypothermia and threats to detainees' families. Knowing that such techniques are legal would not make it any easier for detainees to resist them.

So please, if we're going to take such a momentous step -- breaching our Geneva obligations or coming awfully close to that line -- let us do so openly and candidly, with a full public record of which legislators approve the use of waterboarding, threats, stress positions, et al., and which oppose them.

Here's the Administration's Cruel Treatment and Torture Authorization Act

Marty Lederman

This is the bill the Administration has sent up to Congress. Make no mistake, the most important action has little to do with military commissions (although that stuff is certainly significant, too). Instead, focus ought to be on sections 5 through 7 (pages 77-84), which are, as I predicted here, collectively an attempt to authorize the CIA to engage in the sorts of "enhanced" interrogation techniques -- e.g., hypothermia, threats of violence to the detainee and his family, prolonged sleep deprivation, "stress positions" and waterboarding -- to which the President alluded in his speech today, and to immunize such conduct from any judicial review. (The President's speech is much more candid than the face of the Administration bill. The President bascially concedes that the Hamdan decision stopped the CIA techniques in their tracks -- and that the object of the Administration bill is to authorize them anew.)

Although section 6 in effect says that the U.S. will "comply" with Common Article 3 of Geneva even if such techniques are used, that's wrong. These techniques are -- at least in many cases -- "cruel treatment and torture" prohibited by Common Article 3. Thus, this bill would in effect authorize the United States to breach its treaty obligations. Perhaps that's something we should do -- perhaps not.* But if so, we shouldn't pretend that we're not engaged in such cruelty and torture, and we shouldn't engage in the fiction that we are in compliance with the Geneva Conventions. The decision to authorize such horrifying techniques, and to thereby be the first nation to adopt breach of Geneva as official state policy, is a solemn one, and it should be treated with the seriousness that it deserves -- without euphemism or obfuscation.

*The thrust of the President's speech is that such techniques -- let's call them "torture light," since the President is so insistent that we never "torture" -- are absolutely necessary to preventing terrorist attacks. Apparently the Pentagon hasn't gotten the memo. At a briefing this morning, Army Deputy Chief of Staff for Intelligence John Kimmons forcefully argued that:
I am absolutely convinced [that] no good intelligence is going to come from abusive practices. I think history tells us that. I think the empirical evidence of the last five years, hard years, tell us that. . . . Moreover, any piece of intelligence which is obtained under duress, through the use of abusive techniques, would be of questionable credibility, and additionally it would do more harm than good when it inevitably became known that abusive practices were used. And we can't afford to go there.

Some of our most significant successes on the battlefield have been -- in fact, I would say all of them, almost categorically all of them, have accrued from expert interrogators using mixtures of authorized humane interrogation practices in clever ways, that you would hope Americans would use them, to push the envelope within the bookends of legal, moral and ethical, now as further refined by this field manual.

We don't need abusive practices in there. Nothing good will come from them.

Tuesday, September 05, 2006

Greatest title of all time

Sandy Levinson

The Sept. 1, 2006 issue of Science (p. 1214) includes among its articles what has to be one of the greatest titles of all time:

PLUTO:
Underworld Character Kicked Out of Planetary Family





Unfortunately, one can't simply download the article, but it is very much worth reading with regard to the disputed criteria for counting something as a "planet." As Mark Graber earlier suggested, it is illuminating to confront the fact that there is, at least among scientists, no undisputed "fact of the matter" as to the criteria.

Fall Reading I: Our Undemocratic Constitution

Mark Graber

Readers of Balkinization (and numerous academic listservs) will no doubt be familiar with Professor Sandy Levinson's frequent phillipics against the Constitution of the United States. Fortunately, Sandy has recently converted these polemics into a fascinating book, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT). Sandy can take full responsibility for convincing readers that they must crusade for a new constitutional convention. As his acknowledgements indicate, I plan to sit out that movement. Nevertheless, a great many reasons exist for reading this fascinating and very readable manuscript beyond the Millian claim that reading attacks on established truths can promote vital reminders of the foundations of those truths.

The persons responsible for the Constitution of 1787 (and, less clearly I would argue, the persons responsible for the Constitution of 1868) were far more concerned with the structure of government than enumerated powers or enumerated rights. The single most important sentence in THE FEDERALIST PAPERS declares, "all observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, not to the nature or extent of its powers." This concern with institutional design helps explain why the framers were very specific when establishing the rules for staffing the federal government and the rules for making laws, but fairly vague when specifying the powers of the federal government and individual rights. The framing idea was simple. If the rules for staffing the government and making laws privileged the selection of persons with particular virtues (intelligence, a good sense of public opinion, an understand of rights, a desire to compromise) and made sure they remained virtuous in office, enumerated powers and enumerated rights were unnecessary. If governing officials lacked the appropriate virtues, enumerated powers and enumerated rights were unlikely to provide much restraint. The specificity of these rules has an important implication. We cannot interpret around them. As Sandy points out, any competent law professor can explain why the constitution incorporates either the Democratic or Republican vision of civil rights. No competent constitutional interpreter has explained why the constitution really sanctions a parliamentary system. And significantly, the extent to which the constitution protects abortion, limits presidential war-powers, guarantees state autonomy, etc., is more likely to be influenced by whether the structure of government is biased towards persons with the appropriate values than by the precise constitutional text. If the structure of the Senate favors the West, and western state majorities are more likely to be libertarian than eastern state majorities, then the constitution is likely to interpreted as more libertarian than the fictional median voter might prefer.

OUR UNDEMOCRATIC GOVERNMENT demonstrates that the Constitution is no longer functioning as the framers expected or generating outcomes consistent with more contemporary principles. Rather than privilege consensus outcomes as originally intended, the electoral college and practice of elected all national officials in local elections more often that not promotes extremism. Worse, the combination of electoral college, Senate, and gerrymandering have permitted the United States to be governed by a fairly extreme coalition that does not even have majoritarian support. It is a fair constitutional response to some of Sandy's claims that the constitution was not designed to be democratic. Nevertheless, the constitutional was clearly not designed to privilege the elite enterprisers and moralists that now control the Republican Party.

These observations are of enormous value, even if we decide not to abandon the constitution because the costs of constitutional change are likely to outweigh the benefits. Consider the advantage of learning your car has poor brakes. One thing you might do is buy a new car or not drive. That, however, may prove impossible. An alternative is to avoid hills and be extra, extra careful when driving down hills. My preference is the latter. Americans need to work with the institutions we have and learn how to overcome their fralties (Steven Elkin has a very, very good book on this that might be the subject of a future post). Perhaps OUR UNDEMOCRATIC CONSTITUTION will inspire Easterners to fight harder when Westerners seek to use their Senatorial advantages to gain undeserved highway and anti-terrorist funds. Perhaps the work will make Americans more aware of the consequences of electing officials not particularly curious about the world they are governing. At any rate, Americans are likely to need a major culture change of some sort if our political institutions are to yield decent outcomes in the future and OUR UNDEMOCRATIC CONSTITUTION is a much needed wake-up call.

Sunday, September 03, 2006

David Broder and the (Daryl) Levinson thesis

Sandy Levinson

I note a column in today's Washington Post by David Broder, entitled, fittingly enough "Fixing a Broken Congress." He discusses the new book by Norman Ornstein and Thomas Mann detailing all of the things that are wrong with the present Congress, which, I have earlier argued, are all too well anticipated in some of Carl Schmitt's attacks during the 1920's on the Weimar parliament. In any event, Broder concludes his column as follows: "But a new election means new faces -- and possibly a new spirit on Capitol Hill. Mann and Ornstein have a number of specific changes to suggest in congressional rules and procedures -- and in lobbying regulations. But their main point is simple. We need an infusion of men and women committed to Congress as an institution -- to engaging with each other seriously enough to search out and find areas of agreement and to join hands with each other to insist on the rights and prerogatives of the nation's legislature, not make it simply an echo chamber of presidential politics.
That ought to be the criterion by which candidates are judged in this election season."

At one level it is hard to disagree with Broder. At another level, though, it seems an almost truly pathetic hope. As Daryl Levinson has argued, drawing on much contemporary political science material--I have just returned from the 2006 convention of the American Political Science Association--there is no real incentive for modern members of Congress to be "committed to Congress as an institution" (whatever, exactly, that would mean). As David Mayhew argued many years ago, the primary interest of members of Congress is being re-elected, which, of course, has all sorts of implications in terms of campaign finance. We are all familiar with the indecent amount of time that members of Congress have to spend raising funds. But there is also the ever-more-important phenomenon, partly as a result of some of the so-called "reforms," that it is also important to stay in the good graces of the national party, which has signifiant monies of its own to dispense. Although Tip O'Neill famously said that "all politics are local," congressional campaigns are increasingly nationalized. Moreover, O'Neill was basically defending a system whereby re-election was procured by bringing home the pork, whether or not any particular piece of pork could plausibly be said to serve any "public interest" even if it did, of course, line the pockets of a Representative's constituents. (Recall the "bridge to nowhere.") An "earmark system" of congressional politics means that any given Representative must remain in the good graces of party leaders, and the maximum party leader, of course, is the President.

Broder is evoking the classic Madisonian vision of legislators who are basically virtuous and "above politics." That has not described Amerirican politics for over 200 years. If Congress is broken, which seems a fair diagnosis, quite literally reactionary appeals to a nostalgic form of politics are scarcely going to be adequate. (My old colleague David Kettler wrote a brilliant essay many years ago criticizing the "republican revival" among political theorists by pointing out that it depended on a whole host of assumptions that no longer obtained in modern life.) I don't know what the solution for our broken and sometimes decadent Congress might be. ut surely we must think in more creative institutional terms rather than hope for what would in effect be a conversion experience on the part of those who would lead us.

Needless to say, I couldn't agree with him more that we need more members of Congress willing to put the brakes on an ever more authoritarian and removed-from-reality Executive Branch led by a stunningly incompetent ignoramus. But that is just to say that we need more Democrats in Congress, for all of the obvious criticisms that can be directed at the Democratic Pary. Lincoln Chafee might be a fine, upstanding person, but so long as he would vote to leave the Senate in Republican hands, he is a menace to the Republic who should be thrown out of office. It really is as simple as that. Could Broder possibly believe that it would be better to have a Senate that included the virtuous and in some ways admirable Chafee if it came at the price of the Senate's remaining in Republican hands (and therefore completely unwilling to engage in any significant oversight of their Republican masters in the Executive)? This election is not about the individual virtue of the candidates; it is about which party will be authorized to organize the House and the Senate, with all of the prerogatives attached to that organization, including all-important subpoena powers for investigations. I wish one could believe otherwise, but, as Walter Cronkhite used to say, "that's the way it is...."

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