Monday, October 02, 2006

A Conservatism for the Age of Fundamentalism?

Scott Horton

Our major newsweeklies regularly feature religiously themed pieces exploiting pop phenomena. But this week's Time magazine offers something quite different. In "Why Not Seeing Is Believing," Andrew Sullivan presents us with an extended essay derived from his new book, The Conservative Soul: How We Lost It; How To Get It Back. Those who expected the usual screed along the lines of "this is not my conservatism" are in for a surprise, because the core of Sullivan's work is a struggle between religious conviction and an Oakeshottian conservatism of doubt. The path is rather long, but fascinating, and filled with vivid vignettes, of which the portrait of President Ahmadinejad and Sullivan's accounts of church-going experiences with his own grandmother are particularly powerful.

Sullivan argues that the rise of materialism and secularism around the world has unleashed a powerful countercurrent of religious thought. It is multifaceted to be sure, but Sullivan looks with particular care at the rise of fundamentalist thinking – among the Religious Right in the United States, the Wahhabis of Sunni Islam, the millenarian thinking of Shiia leaders like Iran's new president and or ultra-Orthodox Jewish groups in Israel. Relying on sources as diverse as his own first-hand experiences, the writings of William James and the Pew Charitable Trusts fundamentalism project, he discerns essential similarities of these fundamentalist movements. Sullivan's account is strengthened by the fact that it is presented by a believer – a person who readily accepts the redemptive power of religious experience, and who therefore rejects the satirical approach of many who write about fundamentalism today. Which is not to say that his attitude is uncritical. Indeed, Sullivan unleashes sharp attacks on groups he calls "Christianists" who present a partisan political agenda which is tarted up in religious guise. And he is far more devastating in his critique of Salafi Islamists, as well as the millenarian Shiia thinking of figures like Ahmadinejad, both of which embrace overt racism and terrorist tactics.

Sullivan offers a compelling case for the proposition that the dichotomy between secularism and fundamentalism is radically false. And he bases this case in principles of conservatism – citing Montaigne, Burke and Oakeshott in the process. The claim to full and absolute knowledge implicit in all forms of fundamentalism rests on arrogant assumptions about the capacity of man to know and to understand God. In a sense it forgets the essential role of humility in religious experience.

The essay ends with famous lines of Gotthold Ephraim Lessing, found in his Anti-Goetze – a retort against a famous fundamentalist pastor in Hamburg. Lessing, himself a preacher's son who devoted a lifetime to the reconciliation of faith and reason, wrote: "If God were to hold all Truth concealed in his right hand, and in his left hand only the steady and diligent drive for Truth, albeit with the proviso that I would always and forever err in the process, and to offer me the choice, I would with all humility take the left hand, and say, Father, I will take this--the pure Truth is for You alone."

Lessing was the librarian to the Duke of Brunswick and he lived at the other end of the great Hanoverian Empire from the provinces which would soon become the United States. But we know that, even as he was penning these lines, he followed the American Revolution with a passionate attachment. His thinking is very close to that of America's Founding Fathers. In the end, it seems to me, Sullivan is telling us to take heart in the values on which this country was founded and which have served it so well for over two centuries – values which command respect for religion even while insisting that it be disentangled from the state. This legacy leaves America well placed to deal with fundamentalism as Sullivan does – with respect for the good that religious faith can bring, while holding its excesses in check for the peace and happiness of all humanity.

Does Japan offer the better analogy?

Sandy Levinson

I note the following column published by Niall Ferguson in the Los Angeles Times. A professor of history at Harvard, he is, I'm quite confident, usually not thought of as on the left. So consider the following:

"Leave aside for now the question of habeas corpus; after all, prisoners of war have traditionally been denied this ancient protection. Much more sinister is Section 8 ("Implementation of Treaty Obligations"), under which "the president has the authority … to interpret the meaning and application of the Geneva Conventions and to promulgate … administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions."

"To see what this means, you need to know what the "grave breaches" are. According to Geneva Convention III, Article 130, they include "willful killing, torture or inhuman treatment, including biological experiments" and "willfully causing great suffering or serious injury to body or health."

"Insidiously, therefore, the Military Commissions Act empowers the president to authorize all lesser forms of physical and mental intimidation of prisoners. Suffering and injury are fine, in other words, as long as they aren't "great" or "serious." ....

"Official Japanese policy encouraged brutality toward prisoners of war by applying the Geneva Convention only mutatis mutandis (literally, "with those things having been changed which need to be changed"), which the Japanese translated as "with any necessary amendments."

"The amendments in question amounted to this: Enemy prisoners had so disgraced themselves by laying down their arms that their lives were forfeit. Indeed, some Allied prisoners were made to wear armbands bearing the inscription "One who has been captured in battle and is to be beheaded or castrated at the will of the emperor." Physical assaults were a daily occurrence in some Japanese POW camps. Executions without due process were frequent. Thousands of American prisoners died during the infamous Bataan Death March in 1942.

"Elsewhere, British POWs were used as slave labor, most famously on the Burma-Thailand railway line. Attempting to escape was treated by the Japanese as a capital offense, though the majority of prisoners who died were in fact victims of malnutrition and disease exacerbated by physical overwork and abuse. In all, 42% of Americans taken prisoner by the Japanese did not survive. Such were the consequences of "amending" the Geneva Convention.

"Red-state Republicans may still shrug their shoulders. After all, George W. Bush is no Tojo. Well, maybe not. But even if you don't see any resemblance between Bush's "administrative regulations" and Imperial Japan's "necessary amendments" of the Geneva Convention, consider this purely practical argument: As Winston Churchill insisted throughout the war, treating POWs well is wise, if only to increase the chances that your own men will be well treated if they too are captured. Even in World War II, there was in fact a high degree of reciprocity. The British treated Germans POWs well and were well treated by the Germans in return; the Germans treated Russian POWs abysmally and got their bloody deserts when the tables were turned."

Comparing the US and the European Responses to the Threat of Terrorism

Brian Tamanaha

By many accounts, Western Europe is the front line in the global war against Islamic terrorism (or a least a close second to the Middle East). Terrorrist bombings in the UK and Spain, unrest in France, a high-profile murder in the Netherlands, arrests in several countries that foiled planned attacks, and large immigrant Muslim populations with limited employment opportunites for youth--the circumstances in Europe are far more tenuous, complex, and frightening than they are in the United States. Yet the response of the US government has been far more extreme.

Last week I attended a conference in Brussels with professors, government advisors, and a few judges from across Europe and the Middle East (and elsewhere). One of the subjects covered was the legal response in Europe to the challenges posed by Islam. There was tension in the room, of course, and disagreement. But the dominant attitude was a seriousness of purpose in finding ways for people of such different cultural and religious views to live together.

Each night after the proceedings I would return to my room and scan the various European news programs, and I watched several debates in the Dutch Parliament and parts of the ruling Labor Party Conference in the UK. Notably, terrorism did not appear to be a big subject (dealing with immigration and jobs were major topics). And when it was discussed, the subject was treated in a matter-of-fact manner--that is, with no hysteria--as a problem for police officials. It was not discussed in terms of a "war on terror." As far as I could tell, there was no thought of restricting the legal rights of terrorist suspects, and absolutely no consideration of applying torture to these individuals (though we still don't know the full extent of European cooperation in the secret CIA prisons).

This was the same week in which the US Congress passed its historically bad terror bill (see multiple posts below).

Given that the threat of terrorist attacks in the US is manifestly lower than the threat of such attacks in Europe, how do we explain this disparity in response? Conservatives will likely argue that European governments enjoy the luxury of letting the US take the lead and do all the hard, dirty work. And they will add that the Europeans still don't appreciate the magnitude of the threat--Europeans will stop criticizing the US and engage in their own crack-down when they finally figure it out.

However, based upon what I heard at the Conference, and over drinks and meals, my sense is that they understand the depth and magnitude of the problems surrounding Islamic fundamentalist terrorism far better than we do. Their Muslim communities are permanent presences, and, through immigration and higher birth rates, are increasing as a proportion of the population. Turkey, moreover, is on the path toward EU membership. As a result of these and other factors--including a millennium long, sometimes bloody, but often peaceful, history of coexistence and interaction between European and Muslim countries--the Europeans understand that they must find a way to get through this difficult period in a manner that allows them to live together.

Europeans also understand that the terrorists are extremists, and represent a relatively small number of individuals. In addition to old-fashioned police work, the best way to find and monitor those dangerous individuals is through the cooperation of the broader Muslim community. Under these circumstances, European governments strive to avoid rhetoric and actions that might exacerbate tensions and further alienate the entire community.

Finally, Europeans seem truly committed to human rights and to the rule of law, which they show little inclination to sacrifice in the battle of the day.

The extremist legislation sought by President Bush and passed by Congress last week seems even more bizarre and unnecessary when one considers the far more measured courses of action pursued by European governments.

Sunday, October 01, 2006

On language proper to our situation

Sandy Levinson

I have been taken for gentle reproach by someone I like and admire enormously, Ken Anderson, for some of my use of recent language, particularly "banana republic" and "fuhrer-prinzip." I have no apology for the former, because I really do believe that the decadent legislative process in Washington, by both parties, is far more akin to the politics of a banana republic with one of the parties in thrall to a populist caudillo (lawfully elected) and the other without discernible spine even if one gives them credit for commitment to certain principles re the issues raised by the recent detainee bill. I do believe that it is unhelpful to offer the "fuhrer-prinzip" as particularly relevant to our current situation, for two quite different reasons: As someone who spent much of the 1960s arguing against the relevance of the "Munich analogy," one should be very careful about presenting historical analogies. Also, and obviously, it is spectacularly unlikely that anyone I'm trying to enter into genuine conversation with--including conservative readers whom I've asked repeatedly to assess the current quality of our legislative process--will be induced into that conversation by such language.

Still, this doesn't lessen the problem, taught us initially by Thucydides and more recently by George Orwell, about how one in fact describes "shooting the elephant." I do NOT believe we face a risk of 1984-style interrogation practices as a result of this bill. But I DO believe there is more than a whiff of 1984 in the ability of our President to pronounce, without the slightest bit of what would count as truthful evidence, about who is our enemy du jour and, concomitantly, our ally du jour, and for what reasons. Consider the following statement, titled " President Bush Welcomes President Nazarbayev of Kazakhstan to the White House." It includes the following:

PRESIDENT BUSH: Mr. President, thank you for coming. It's been my honor to welcome the President of Kazakhstan back to the Oval Office. He informed me that the first time he was here was when my dad was the President. And I welcome you back.

We've just had a very important and interesting discussion. We discussed our desire to defeat extremism and our mutual desire to support the forces of moderation throughout the world. I thanked the President for his contribution to helping a new democracy in Iraq survive and thrive and grow.

President George W. Bush and Kazakhstan President Nursultan Nazarbayev shake hands during their meeting Friday, Sept. 29, 2006 in the Oval Office at the White House. White House photo by Eric Draper I thank very much the President for his concerns about Afghanistan's democracy, and his willingness to help in Afghanistan. We talked about our mutual -- our bilateral relations, and our mutual desire to -- for Kazakhstan to join the WTO. We talked about our commitment to institutions that will enable liberty to flourish.

I have watched very carefully the development of this important country from one that was in the Soviet sphere to one that now is a free nation. And I appreciate your leadership, Mr. President.

I put to one side whether a "new democracy" is in fact growing in Iraq. Suffice it to say that almost no one outside the confines of the White House would make such an argument with confidence. But could anyone committed to, what shall we call it, "minimum standards of veracity," describe Kazakhstan as a "free nation" committed "to institutions that will enable liberty to flourish." To view the President as anything more than a liar--even if we can understand why, given the tenets of political Realism, he must lie in order to preserve our alliance with a country that we need in what is defined as our struggle against terrorism--is generous. So what ARE the rules of etiquette these days? Must we pretend that anything coming from the White House is automatically, for that reason, worth the kind of polite referene that civil discourse does indeed entail? I'm disinclined to think so.

I do not believe that all political conservatives have contempt for the English language. Ken Anderson most certainly does not. But I see no reason to accord a similarly generous response to those running our country today.

Finally, I continue to wonder if Balkinization's conservative readership wouldn't feel better off if we had an English-style ability to vote no-confidence in a party leader/president and replace him with someone the president's own party had confidence in. Can it possibly be the case that such readers wake up in the morning and rejoice that George W. Bush remains president for one more day?

Sunday Morning Thoughts on Moderation

Mark Graber

The Constitution of the United States was designed to facilitate intelligent policy that enjoyed broad social support. This is the central theme of Stephen Elkin’s magnificent RECONSTRUCTING THE COMMERCIAL REPUBLIC: CONSTITUTIONAL DESIGN AFTER MADISON (a must read for anyone interested in American constitutionalism) and the Dred Scott book to the right (a must read for anyone interested in helping me pay for two, soon to be three, daughters at private colleges). If comments on this blog may appear to be a bit shrill recently, the reason, I suspect, is that vital prerequisites of a constitutional politics of moderation are being undermined by both the Bush administration and the Democratic opposition. That politics does not require that individuals and interest groups refrain from partisan activity. Rather, the Constitution of the United States sought to create a political process that would privilege the selection of intelligent leaders who could force their supporters to moderate their demands as the price of gaining office and making policy in a heterogeneous polity. Alas, neither the Bush Administration nor the Democratic opposition are behaving in the ways necessary to produce either intelligent policy or policy that enjoys substantial social support.

The past six years have witnessed a progressive narrowing of support for Bush administration policies. Consider how many moderate conservatives have left or been forced out of the administration, most notably Colin Powell, John Dilulio, and Jack Goldsmith. Or consider that the Bush administration no longer trusts the federal judiciary, staffed largely by Republican judicial appointees, to sustain its policies on detaining and interrogating persons captured during the war against terrorism. One suspects that no more than one-third of persons with some expertise on these issues and who voted for George Bush in 2000 have any enthusiasm for the recent Military Commission Act. Rather than seek broad-based support for its policies the Bush Administration has too often governed by putting together coalitions of relative extremists, Iraq hawks, evangelicals, and big businesses, and cut deals whereby each supports the extreme policy of the other in return for support for their own extremist demands. One should also read Pierson and Hacker, OFF-CENTER, for the tactics that have enabled this administration to govern without any substantial attempt to enjoy broad social toleration for its policies.

The past twenty-five years have witnessed a progressive narrowing of Democratic capacity to serve as an effective opposition party. Part of the problem stems from the Democratic financial base. Requiring substantial financial donations to remain competitive with the party of the rich, the party of the other rich too often emphasizes social issues of interest to affluent liberals at the expense of economic issues of interest to the lower-middle class. The result is that on social issues, neither the Bush Administration nor the leadership of the Democratic party makes a sufficient effort to support policies that might enjoy broad social support (i.e., legal but fairly heavily regulated abortion), and Democratic opposition to Bush Administration economic policies too often takes the form of "they are going too far," rather than advance any progressive alternative that might attract lower-middle class voters (as I have noted before, when was the last time a Democratic senator declared that a Republican judicial nominee should be opposed because he or she was too hostile to unions). The other part of the problem is that the Democrats have increasingly engaged in classic minority party politics. Rather than offer any alternative to Bush Administration policies, Democrats simply declare that they would run things better and highlight administration scandals. Such strategies are often good for the short run. The problem is that such campaigns do not build broad support for any policy or require Republicans to broaden social support for their policies. George Allen and James Webb, in Virginia, are busy explaining what they were doing and said 20 years ago. Perhaps Webb will win. I hope he does. But winning an election because one’s rival made bigoted statements in college does not create a mandate for any present policy. Indeed, no one really knows what a Democratic party in control of all three branches of government would do with respect to the war on terrorism in 2008.

My fellow blogger, Sandy Levinson, believes that constitutional reform is the solution to this problem. I am more suspicious. My sense of the universe is that all constitutional institutions are vulnerable to both the politics of extremism and the politics of bare office-seeking. But the problems are real and unless a constitutional politics of intelligent moderation is restored, we are likely to continue down a spiraling path of a dumb and dumber politics that enjoys less and less support. And given the increasing human capacity to engage in genocide through military might, terror and environmental degradation, the thought of a dumb and dumber politics justifies the shrill tone on this and other blogs.

Saturday, September 30, 2006

If Democrats Had Spine (or were Thinking like Republicans)

Stephen Griffin

The passage of the Military Commissions Act is far from the end of the debate over how we should handle suspected terrorists. The debate now is just as much over how the Act will be perceived as it is a legal struggle. Democrats should be thinking about how to frame the debate and I have a few suggestions. In what follows, keep in mind I'm trying to think like a Republican (Karl Rove or Frank Luntz perhaps, although I can't tell whether they were involved with the Act).

First, (and this is a minor point) Democrats need to stop parsing the Act as if they were lawyers. Many Democrats in the Senate, of course, are lawyers, but this does not help make a case against the Act. Rather, it results in framing the issue is primarily a legal one and thus for the courts. This legal approach immediately disables Democrats from scoring broader and more effective political points. Stop thinking legally.

Second, the Act must be renamed and the debate thus reframed. "Military Commissions Act" is far too anodyne. The Act must always be referred to as the "Military Dictatorship Act of 2006." Further, never refer to the Act as having to do with "detainees" or Guantanamo. The Act should be said to threaten "citizens" and "valuable residents who are your neighbors and friends."

Third, the person identified as the dictator or, perhaps, chief of the new police state is Secretary of Defense Rumsfeld. Rumsfeld is far more unpopular and questionable than President Bush. Do you want to put Don Rumseld in charge of who is imprisoned without trial? That should be the way the issue is framed.

If Democrats had spine, they would stop playing defense and start playing offense. Offense in today's political world means immediately proceeding to the worst case scenario. Stop talking about violations of habeas corpus and moral principles. Start talking about suspension of the Constitution and how we just delegated all power to the Secretary of Defense.

The Military Commissions Act of 2006

Marty Lederman

There were several differences between the versions passed by the House on Wednesday and the Senate on Thursday. But the House on Friday afternoon voted 250-170 to approve the Senate version (S.3930).

This is the enrolled bill
, which has been cleared for transmission to the White House.

Friday, September 29, 2006

Does the Military Commissions Act apply to citizens?


Many people have been asking about whether the new MCA applies to citizens. The answer seems pretty straightforward.

(1) Yes, a few parts of the MCA do apply to citizens; and

(2) the MCA is probably unconstitutional in many of its applications to citizens; and

(3) some constitutional applications of the MCA to citizens are deeply troubling.

A U.S. citizen may be an unlawful enemy combatant under section 948a.

Section 948a(1) defines an unlawful enemy combatant as

"(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces; or

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Section 948b states that "[t]his chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants." So the MCA's procedures apply only to aliens; not to citizens. Nevertheless, Congress has declared that persons falling into the definition in 948a are unlawful enemy combatants whether they are aliens or citizens.

Why does this matter, if the military commission procedures in the MCA don't apply to citizens? The answer is that the government might seek to detain citizens as unlawful enemy combatants using the new definition in section 948a.

Hamdi v. Rumsfeld states that the President had authority to detain enemy combatants according to the laws of war based on a fairly narrow definition of the term "enemy combatant":

for purposes of this case, the "enemy combatant" that [the government] is seeking to detain is an individual who, it alleges, was " 'part of or supporting forces hostile to the United States or coalition partners' " in Afghanistan and who " 'engaged in an armed conflict against the United States' " there. Brief for Respondents 3. We therefore answer only the narrow question before us: whether the detention of citizens falling within that definition is authorized.

The MCA greatly expands the definition of enemy combatants, because it greatly expands the definition of "unlawful enemy combatants." If the government may detain any enemy combatants, a fortiori it may detain unlawful ones. The new definition is fuzzy: it includes citizens who "materially support" hostilities against the U.S. or whom the DoD says are unlawful enemy combatants.

Hamdi, however, states that citizens have the right under the Due Process Clause to contest their designation as enemy combatants. Because section 948a(1)(ii) purports to make determinations of enemy combatant status conclusive, it is unconstitutional to that extent. Moreover, some applications of "material support" in section 948(1)(i) would violate the Due Process Clause or the First Amendment.

But even putting those cases to one side, the new definition is still troubling: there would be many cases where the new definition is not otherwise unconstitutional but sweeps up people who pose no serious threat to national security. For example, suppose a person knowingly lets an al Qaeda operative stay at their house overnight. That person may be in violation of federal law, but it's hardly clear that the government should have the right to detain such a person indefinitely in a military prison without Bill of Rights protections until the end of the War on Terror, whenever that is. The problem with 948a(1) is that it may place Congress's stamp of approval on a definition of "unlawful enemy combatant" that is far too broad and that allows the government to move a wide swath of citizens outside of the normal procedural protections of the criminal justice system and into a parallel system where the Bill of Rights does not apply.

One last point: Section 7(a) of the MCA strips habeas and federal court jurisdiction with respect to aliens. It does not strip jurisdiction with respect to citizens.

However, what if the DoD determines that a U.S. citizen is an alien in a Combatant Status Review Tribunal, claims that its determination is conclusive under section 948a(1)(ii) and ships the person off to Guantanamo? As I noted before, section 948a(1)(ii) is probably unconstitutional to the extent that it suggests that DoD determinations are conclusive. The citizen should still have the right to prove that he is a citizen in a habeas proceeding, and a court must determine that question in order to determine whether it has jurisdiction. To the extent that the MCA would prevent such a determination, it is unconstitutional.

What Hamdan Hath Wrought


The Military Commissions Act of 2006 (MCA), which the President will soon sign into law, was a response to the June decision in Hamdan v. Rumsfeld. Hamdan made three basic claims: (1) The President's military commissions proposal violated the Uniform Code of Military Justice (UCMJ) and was not authorized by the September 18, 2001 Authorization for the Use of Military Force or the Detainee Treatment Act of 2005; (2) Common Article 3 of the Geneva Conventions -- including its absolute prohibition on all "cruel treatment and torture" of detainees -- applies to the conflict with Al Qaeda, and is binding on the President and his subordinates; and (3) Congress had not suspended judicial review at least with respect to some cases pending at the time of the Detainee Treatment Act.

In response, the Bush Administration sought and obtained a bill that (1) gave explicit authorization for a new form of military commissions not based on the UCMJ; (2) limited the practical enforceability (but not the legal status) of the Geneva Conventions; and (3) attempted to obliterate all judicial review of what happens to alien detainees except for reviews of the verdicts of military commission trials (and very limited review of a few final detention decisions.). This meant that some detainees who are never brought to trial would have no practical method of challenging their detention or their possible mistreatment even if it was in violation of federal law, the Constitution, or the Geneva Conventions, while others would have only a very truncated and delayed opportunity for review of detention decisions.

Viewed from one perspective, Hamdan was nothing more than a democracy-forcing decision that required the Administration to prove that Congress supported what he was doing. The President pushed through a bill that did just that. Viewed from another perspective, the Military Commissions Bill was nothing less than a smackdown of the Supreme Court; the Congress withdrew habeas review for aliens (and all other forms of review except for the appeals of military commissions and Combatant Status Review Tribunals (CSRTs) mentioned above), limited the enforceability of Geneva, insulated previous and future practices from criminal sanction, and made the President the final interpretive word for non-grave breaches of Common Article 3.

It does indeed look like a smackdown, but there's more here than meets the eye. The gang here at Balkinization will no doubt have more to say about these issues in the days to come, but here are some initial thoughts:

First, the MCA puts the President in an interesting position: the U.S. is still bound by Geneva, but there is no way for individuals to enforce violations of Geneva (except that grave breaches of Common Article 3 can still be prosecuted under the War Crimes Statute). However, Geneva's status as the law of the land (under Article VI) was not altered by the MCA. The United States has not withdrawn from the Geneva Conventions, and this fact was quite important to selling the bill to the public. So if the President orders procedures that are inconsistent with Geneva, he is still acting contrary to law even though there may be no way for an individual to enforce the law directly.

Second, the President remains bound by the prohibitions against cruel, inhuman and degrading treatment found in the McCain Amendment, and the substantive tests of the Fifth, Fourteenth and Eighth Amendments, whether the conduct occurs in the United States our outside of it. Indeed, the MCA reaffirms these substantive standards and makes them applicable throughout the world. If the President violates these standards, or directs others to do so, he violates the law. That means if the President interprets these standards narrowly and tendentiously to permit certain interrogation practices, he also violates the law. There is just no judicial remedy for the violation.

Let me repeat what I have just said: The MCA continues to recognize that certain conduct is illegal, but attempts to eliminate all judicial remedies for such violations. That means that if the President violates the MCA, he still fails to take care that the laws be faithfully executed, which is his constitutional duty under Article 2, section 3 of the Constitution. (And in case you are wondering, he might well be guilty of a high crime and misdemeanor, but don't hold your breath.) The President wanted it this way: He wanted to be able to say that he was following the law, but, just in case he wasn't, he didn't want to be held to account for it in any court proceeding. But the fact that the courts can't offer a remedy doesn't mean, I repeat, that the President has no duty to obey the law. And although he now has virtually conclusive authority to interpret non-grave breaches of Geneva, he does not have virtually conclusive authority to interpret either the Bill of Rights or the McCain Amendment.

Third, although the MCA attempts to eliminate judicial review, and in particular the writ of habeas corpus, it is by no means certain that it has succeeded. The suspension of habeas may be unconstitutional. Any such suspension must be consistent with the Suspension Clause of Article I, section 9. I won't get into all the details now, but the Supreme Court's decision in Rasul v. Bush, and, perhaps most ironically, Justice Thomas' dissent in Hamdi v. Rumsfeld, suggest a few reasons why the habeas stripping provisions of the MCA might not be fully constitutional. (I will leave this tantalizing point as an exercise for you to figure out. I'll get back to it later on). In addition, it is by no means clear that the MCA can successfully eliminate rights that detainees have under the Fifth Amendment's Due Process Clause.

But, you may wonder, how can detainees sitting in Guantanamo Bay have judicially enforceable rights under the Fifth Amendment? And what is the possible source of jurisdiction if Congress has stripped away all the standard avenues of relief?

All these questions will be answered in the fullness of time. I leave you only with this thought: Although it may seem that the Supreme Court doesn't have the last word on these questions, the Congress and the Executive Branch don't either.

Thursday, September 28, 2006

The Senate Vote

Marty Lederman

65-34 (Snowe not voting). All Republicans but one (Chafee) voted in favor. Democrats voting in favor included Carper, Johnson, Landrieu, Lautenberg, Lieberman, Menendez, Nelson (Fla.), Nelson (Neb.), Pryor, Rockefeller, Salazar and Stabenow.

The Party of Torture

Mark Graber

In light of the recent Democratic performance on the terror bill, might there be good reason for thinking that a future Republican president might be more inclined to protect human rights than a future Democrat. Consider the following logic. A future Republican president considering the appropriate level of human rights is unlikely to be influenced by the Democratic opposition. We know the Democrats will not put up much of a fight if they think the chosen policy does not protect basic rights sufficiently and the Republican is unlikely to have a rights policy Democrats think is insufficiently rights protective. Nor is it likely that any Republican will be too out of step with the Republican majority, even if they support a stronger rights policy than the present incumbent. And it does seem reasonable to think that McCain, maybe even Frist, would be slightly less barbaric than Bush. But think of the dilemmas of future Democratic presidents. If they adopt a stronger rights policy than the present incumbent, they will face sharp GOP attacks. And the fundamental political imperative of Democrats on the war on terrorism has almost always been to neutralize the Republicans so that the election will be decided on other issues (or Republican incompetence, which is not a policy choice). Far better for electoral purposes, the Clintons and Dick Morrises of this world know, to maintain and probably exceed President Bush's policies. No doubt this is a bit exaggerated, but should there be any doubt in anyone's mind that a president from the present Democratic Party will err radically on the side of superduper caution before supporting any greater rights for suspected terrorists, that a Republican would probably be more likely to support what their conscience thinks right, however misguided that conscience might be.

One should emphasize that, contrary to some rumors, Democrats have some backbone. Just show a Democrat thinking of running for the presidency a public opinion poll on support for bans on partial birth abortions and you will see backbone like you have never seen in American politics. They would never sacrifice a really fundamental human right merely to gain votes. But politics is politics and, judging from the action of recent Democratic aspirants for the presidency, we all know what they believe is the more fundamental right. If I switch parties now, maybe I can vote in the Republican primary.

And what did the Democrats get for selling out?


The New York Times reports:
The [military detention] bill’s ultimate passage was assured on Wednesday when Democrats agreed to forgo a filibuster in return for consideration of the [Specter] amendment [on habeas, which lost by a 48-51 vote]. Any changes in the Senate bill, however, would have made it impossible for Republican leaders to meet their goal of sending the bill to the White House before adjourning on Friday to hit the campaign trail.

Underscoring the political stakes involved, White House spokesman Tony Snow said today that President Bush will emphasize Democratic opposition to the bill in campaign appearances.

“He’ll be citing some of the comments that members of the Democratic leadership have made in recent days about what they think is necessary for winning the war on terror,” Mr. Snow told reporters en route to a fundraiser in Alabama, according to a transcript provided by the White House.

So let me get this straight: The Democrats give up the chance at filibustering one of the worst bills in recent memory because they were afraid that the President would paint them as soft on terrorism.

After the bill passes, the President plans to paint them as soft on terrorism.

What a spineless, worthless lot the Democrats in the Senate are. They deserve every lost Senate and House seat that comes from this.

Civilized is as civilized does

David Luban

One of the less conspicuous grotesqueries in the new Military Commissions bill is section 948b(f), which states: "A military commission established under this chapter is a regularly constituted court, affording all the necessary ‘judicial guarantees which are recognized as indispensable by civilized peoples’ for purposes of Common Article 3 of the Geneva Conventions." Well, that settles it! Of course, nothing prevents Congress from deciding detainees’ fate by a coin-flip and attaching the same declaration to it. The declaration is really nothing more than decoration.

Methinks Congress protests too much. If the military commissions really provide all the guarantees recognized as indispensable by civilized peoples, it would not be necessary to say so. Civilized is as civilized does – and perhaps this section, declaring that commissions are "civilized" in which coerced testimony will be admissible if the court thinks it is probative, says as much about Congress’s standards of civilization as it does about the military commissions.

"Tyranny": "Our Generation’s Version of the Alien and Sedition Acts"

Marty Lederman

I don't recall ever having seen a more strongly worded New York Times editorial (see below). "The Democratic leadership in the Senate seems to have misplaced its spine." "Americans of the future won’t remember the pragmatic arguments for caving in to the administration. They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts."

[UPDATE: Over at Obsidian Wings, Katherine rightly complains that the Times' headline, "Rushing off a cliff," is "completely unfair":

"Congress isn't driving the bus over a cliff--that's what the administration asked for, but thanks to the bold rebellion of Senators McCain, Warner and Graham, [Congress] refused. Instead they simply removed the guard rail, fired the traffic cops, gave the keys to a drunk driver, and closed their eyes."

She's right, of course. The most striking thing about the bill--perhaps more than all of its substantive provisions--is that in case after case (e.g., defining "unlawful enemy combatants"; deciding whether commissions must abide by statutory standards; defining less-than-"grave" breaches of Common Article 3; deciding what process detainees will receive in lieu of habeas; etc.) it would (i) delegate virtually unbridled discretion to the Executive; and (ii) then attempt to foreclose any meaningful judicial review of the President's decisions (no matter how far those decisions might stray from remaining legal limits, such as treaty obligations), and purport to eliminate any precedential effect of other legal authorities that might cabin the Executive's discretion (e.g., international interpretations of Geneva; prior court decisions concerning the courts-martial system).

In other words, the principal theme and effect of this legislation is to systematically abdicate and destroy existing legislative and judicial checks and balances. [Stephen Colbert: "Governing is a lot easier when your checks and balances come from people who don't want to check or balance you."]

As if this Administration, if granted absolute discretion and left unchecked, could be trusted to make wise -- and legal -- choices. For more, see Andrew Sullivan's plea.]

(The House passed the bill today by a 253-168 vote. The Democratic vote was 161-34 against. Seven Republicans (Bartlett, Gilchrest, Jones (NC), LaTourette, Leach, Moran (KS), Paul) out of 226 voted against. Senate debate and vote scheduled for tomorrow (Thursday).)

Rushing Off a Cliff

Here’s what happens when this irresponsible Congress railroads a profoundly important bill to serve the mindless politics of a midterm election: The Bush administration uses Republicans’ fear of losing their majority to push through ghastly ideas about antiterrorism that will make American troops less safe and do lasting damage to our 217-year-old nation of laws — while actually doing nothing to protect the nation from terrorists. Democrats betray their principles to avoid last-minute attack ads. Our democracy is the big loser.

Republicans say Congress must act right now to create procedures for charging and trying terrorists — because the men accused of plotting the 9/11 attacks are available for trial. That’s pure propaganda. Those men could have been tried and convicted long ago, but President Bush chose not to. He held them in illegal detention, had them questioned in ways that will make real trials very hard, and invented a transparently illegal system of kangaroo courts to convict them.

It was only after the Supreme Court issued the inevitable ruling striking down Mr. Bush’s shadow penal system that he adopted his tone of urgency. It serves a cynical goal: Republican strategists think they can win this fall, not by passing a good law but by forcing Democrats to vote against a bad one so they could be made to look soft on terrorism.

Last week, the White House and three Republican senators announced a terrible deal on this legislation that gave Mr. Bush most of what he wanted, including a blanket waiver for crimes Americans may have committed in the service of his antiterrorism policies. Then Vice President Dick Cheney and his willing lawmakers rewrote the rest of the measure so that it would give Mr. Bush the power to jail pretty much anyone he wants for as long as he wants without charging them, to unilaterally reinterpret the Geneva Conventions, to authorize what normal people consider torture, and to deny justice to hundreds of men captured in error.

These are some of the bill’s biggest flaws:

Enemy Combatants: A dangerously broad definition of “illegal enemy combatant” in the bill could subject legal residents of the United States, as well as foreign citizens living in their own countries, to summary arrest and indefinite detention with no hope of appeal. The president could give the power to apply this label to anyone he wanted.

The Geneva Conventions: The bill would repudiate a half-century of international precedent by allowing Mr. Bush to decide on his own what abusive interrogation methods he considered permissible. And his decision could stay secret — there’s no requirement that this list be published.

Habeas Corpus: Detainees in U.S. military prisons would lose the basic right to challenge their imprisonment. These cases do not clog the courts, nor coddle terrorists. They simply give wrongly imprisoned people a chance to prove their innocence.

Judicial Review: The courts would have no power to review any aspect of this new system, except verdicts by military tribunals. The bill would limit appeals and bar legal actions based on the Geneva Conventions, directly or indirectly. All Mr. Bush would have to do to lock anyone up forever is to declare him an illegal combatant and not have a trial.

Coerced Evidence: Coerced evidence would be permissible if a judge considered it reliable — already a contradiction in terms — and relevant. Coercion is defined in a way that exempts anything done before the passage of the 2005 Detainee Treatment Act, and anything else Mr. Bush chooses.

Secret Evidence: American standards of justice prohibit evidence and testimony that is kept secret from the defendant, whether the accused is a corporate executive or a mass murderer. But the bill as redrafted by Mr. Cheney seems to weaken protections against such evidence.

Offenses: The definition of torture is unacceptably narrow, a virtual reprise of the deeply cynical memos the administration produced after 9/11. Rape and sexual assault are defined in a retrograde way that covers only forced or coerced activity, and not other forms of nonconsensual sex. The bill would effectively eliminate the idea of rape as torture.

•There is not enough time to fix these bills, especially since the few Republicans who call themselves moderates have been whipped into line, and the Democratic leadership in the Senate seems to have misplaced its spine. If there was ever a moment for a filibuster, this was it.

We don’t blame the Democrats for being frightened. The Republicans have made it clear that they’ll use any opportunity to brand anyone who votes against this bill as a terrorist enabler. But Americans of the future won’t remember the pragmatic arguments for caving in to the administration.

They’ll know that in 2006, Congress passed a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts.

Wednesday, September 27, 2006

Thucydides on Democratic Imperialism

Guest Blogger

Alan Gilbert

I agree with the content of Mark Graber's earlier post on Thucydides but not on the attribution. Kant is the author of the notion that democratic citizens are slow to go to war and do so only for good cause (in his essay on Perpetual Peace). His contrast is with monarchical subjects, sacrificed in the "pleasure party" of war by kings who never fought. Are the latter not Bush and Cheney and Rumsfeld? And even our professional military is utterly at odds with the administration's practice of torture. Inverting the cliche about the Constitution, the civilian tyrants are blocked mainly by the military, the last refuge of decency and democracy.

In Pericles' funeral oration, he praises Athens for the eccentricity (we would say individuality) of its citizens who still rally to the public good. But he also praises Athenian empire and says that it is the splendor of Athens which makes the more timid, defeated subjects of its empire accept its rule. He was an imperialist, not a leader who avoided imperialism. There is no element in Thucydides's account of Athenians being slow to fight. Quite the contrary, as the Corinthian ambassador says (an ally of Sparta), they are restless, ever seeking new conquests, even "above their reason" (a phrase that will haunt Athens in its decadence, at the conclusion of the History).

The striking parallel with Thucydides is in the decline in public debate in Athens and its ever more crazed imperial adventures, wiping out peoples (its murder of the men at Melos and enslavement of the women and children) and war against a large democracy - Syracuse - of which it was ignorant. That aggression ended in the slaughter of the Athenians in the Syracusan quarries. "And this" Thucydides says, "is the greatest event in history so far seen. Few of many returned home. And thus ended the episode at Syracuse." At the beginning of the book, Thucydides praises the
Athens-led defeat of the Persian Empire (a just war) as the "greatest event so far seen." Here is the remarkable irony of Thucydides in the construction of the History.

W. Robert Connor in his 1984 Thucydides talks about how the Jonathan Schell's reporting during the Vietnam War brought home to him the full meaning of Thucydides (I comment on this in Must Global Politics Constrain Democracy? ch. 4). American democratic imperialism or aggression led in Vietnam to a debacle. But the situation of public corruption today - the arrogance and lying of Tyrant Bush and the inability of Democrats, with the exception of John Murtha, representing the military, to mount any principled response - has led to the debacle in Iraq; the horrifying and
counterproductive Israeli devastation of Lebanon, and the even crazier prospect of Bush bombing Iran (in October or soon after the election). Thucycides writes of the effect on producing tyranny at home of aggressions abroad (what I call the anti-democratic feedback of imperial adventures in a democracy). There is, sadly, every reason to think that this - the centerpiece in the tragedy of Athenian democracy - is being repeated by America today.

Imagine Giving Donald Rumsfeld Unbounded Discretion to Detain You Indefinitely

Marty Lederman

Yesterday I explained that the definition of "unlawful enemy combatant" (UEC) in the latest draft of the detainee bill was so ridiculously broad and open-ended that it could not possibly be intended to establish the authority of the Executive to militarily detain all persons so defined.

But it appears I underestimated the gall and recklessness of the Administration and Congress, because there seems to be a fairly widespread understanding that the definition would do just that. Even Human Rights First seems to agree that "unlawful enemy combatants" would be subject to indefinite detention.

Most of the attention in the press has focused on subsection (i) of the definition, which would designate as an UEC any "person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)." And that subsection is, indeed, broad, and fairly indeterminate, depending on how "materially supported hostilities" is interpreted (something that the Administration apparently could do without much or any judicial review).

But the really breathtaking subsection is subsection (ii), which would provide that UEC is defined to include any person "who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Read literally, this means that if the Pentagon says you're an unlawful enemy combatant -- using whatever criteria they wish -- then as far as Congress, and U.S. law, is concerned, you are one, whether or not you have had any connection to "hostilities" at all.

This definition is not limited to Al Qaeda and the Taliban. It's not limited to aliens -- it covers U.S. citizens as well. It's not limited to persons captured or detained overseas. And it is not even limited to the armed conflict against Al Qaeda and the Taliban, authorized by Congress on September 18, 2001. Indeed, on the face of it, it's not even limited to a time of war or armed conflict; it could apply in peacetime.

Therefore if, as everyone is assuming, this definition does establish who may be detained by the military outside the civilian justice system, it would quite literally give the Secretary of Defense the statutory authority to detain just about anyone he wants, indefinitely. And if that's the case, then the habeas-stripping provision would really be the least of it, because even with all the due process and habeas protections in the world, it would be almost impossible to challenge the grounds on which someone is detained if the Executive itself can establish what the permissible grounds for detention are. [NOTE: I should clarify that what I wrote yesterday remains true: The bill itself does not state, in so many words, that all "unlawful enemy combatants" may be detained until the end of hostiltiies. Indeed, it doesn't offer much of a reason at all for defining "unlawful enemy combatant." Thus, the bill could -- and perhaps should -- be construed not to establish any detention authority. But many in Washington this week fear that the Administration will read the new definition to implicitly establish a new detention authority. If -- but only if -- the bill did so, it would be an indefensible delegation to the Executive on a vital question of suppressing individual liberty. That's the (conditional) thrust of this post.]

In theory, there would be some limits on this detention power, but they would come from outside the statute itself. Three possibilities come immediately to mind.

First, presumably a detention would have to comply with the laws of war. There's a basic presumption of statutory construction that Congress does not intend for the U.S. to violate customary international law (the Charming Betsy canon); and that presumption would be especially stong here, seeing as how the principal purpose of the bill as a whole is to make provisions for punishing violations of the laws of war. As the Court suggested in Hamdan, it would not make much sense to assume that Congress intends to authorize violations of the laws of war via the very statute that establishes the terms on which we will punish others for violating those laws. (Moreover, there's actually a serious question whether Congress has the constitutional power to pass a statute that violates the laws of war. The idea that a statute can supersede the laws of war might now be commonplace, but it's actually a fairly recent notion. For most of U.S. history it was assumed by all three branches of the federal government that the laws of war delimited the constitutional war powers of Congress and the Executive -- and the Supreme Court has never said otherwise. In any event, even if that argument would fall on deaf ears in the modern Court, it provides yet another very strong reason why this new bill should not be construed to authorize detention (or any other conduct) in violation of the laws of war.)

Second, the Constitution would set some limits on who could be detained, at least with respect to U.S. citizens and persons aliens detained domestically (and possibly even with respect to aliens detained overseas, depending on whether the Court holds that they have Fifth Amendment protections -- a very important and unresolved pending question).

Finally, one might argue that the definition in this bill cannot operate of its own force, but instead must be read in pari materia with a distinct, separate authorization to use military force, such as those Congress enacted authorizing the use of necessary and proper force against Al Qaeda and the Taliban, and in Iraq -- so that the only UECs who may be detained are those fairly encompassed by the AUMF in force at a particular time (in this case, only persons sufficiently associated with the groups and nations responsible for the 9/11 attacks).

The problem with all three of these potential limiting principles, however, is that they would be applied in the first instance by the Bush Administration (which has demonstrated an eagerness to (mis)read such limits exceedingly narrowly), and this bill would significantly restrict the ability of detainees -- especially aliens -- to seek effective review of such decisions.

* * * *

Choosing the most indefensible provision in this bill is a tall order -- there are many worthy candidates. But a provision that would grant DoD virtually unlimited discretion to detain "unlawful enemy combatants," as defined by Donald Rumsfeld himself, would be an awfully formidable candidate for that dubious honor.

Spineless Democrats Deserve to Lose


From the New York Times:
Democrats, who have found themselves on the losing end of the national security debate the past two national elections, said the changes to the [Bush Administration's executive detention and military commissions] bill had not yet reached a level that would cause them to try to block it altogether.

"We want to do this," said Senator Harry Reid of Nevada, the Democratic leader. "And we want to do it in compliance with the direction from the Supreme Court. We want to do it in compliance with the Constitution."

I'm afraid it's already too late for that, Senator Reid.

I am puzzled by and ashamed of the Democrats' moral cowardice on this bill. The latest version of the bill blesses detainee abuse and looks the other way on forms of detainee torture; it immunizes terrible acts; it abridges the writ of habeas corpus-- in the last, most egregious draft, it strips the writ for alleged enemy combatants whether proved to be so or not, whether citizens or not, and whether found in the U.S. or overseas.

This bill is simply outrageous. I doubt whether many Democratic Senators or staffs have read the bill or understand what is in it. Instead, they seem to be scrambling over themselves to vote for it out of a fear that the American public will think them weak and soft on terror.

The reason why the Democrats have not been doing very well on these issues, however, is that the public does not believe that they stand for anything other than echoing what the Republicans have been doing with a bit less conviction. If the Republicans are now the Party of Torture, the Democrats are now the Party of "Torture? Yeah, I guess so." Not exactly the moral high ground from which to seek office.

The Democrats may think that if they let this pass, they are guaranteed to pick up more seats in the House and Senate. But they will actually win less seats this way. For they will have proved to the American people that they are spineless and opportunistic-- that, when faced with a genuine choice and a genuine challenge, they can keep neither our country nor our values safe.

The current bill, if passed, will give the Executive far more dictatorial powers to detain, prosecute, judge and punish than it ever enjoyed before. Over the last 48 hours, it has been modified in a hundred different ways to increase executive power at the expense of judicial review, due process, and oversight. And what is more, the bill's most outrageous provisions on torture, definition of enemy combatants, secret procedures, and habeas stripping, are completely unnecessary to keep Americans safe. Rather, they are the work of an Executive branch that has proven itself as untrustworthy as it is greedy: always pushing the legal and constitutional envelope, always seeking more power and less accountability.

If the Democrats do not stand up to the President on this bill, if they refuse to filibuster it or even threaten to filibuster it, they do not deserve to win any additional seats in the House or in the Senate. They will have delivered a grievous blow to our system of checks and balances, stained America's reputation around the world, and allowed an obscenity to disfigure the American system of law and justice. Far worse than a misguided zealot is the moral coward who says nothing and allows that zealotry to do real harm.

Tuesday, September 26, 2006

Union Dues and Don'ts

Mark Graber

When I was a teenager, I sold soda and sometimes peanuts at the Nassau coliseum for (then) Long Island Nets and New York Islander games. A certain percentage of our earnings went to the vendors union. We had no choice in the matter. The benefit, we were told, is that they had to use us when we showed up for work, even if we only sold water. Since we worked solely on commission, this was not much of a benefit (though we did get to see games, sort of). I also had the sense that protesting was not advisable.

When teaching Karl Klare's essay on unionism at the University of Texas, I asked my students about their personal experiences with unions. While some had no stories, and a few had positive accounts, most of the students, even the liberal students, had had negative interactions with unions. Kid after kid told of having to contribute earnings to a union on summer jobs with little expectation of any benefits in return. Rarely did union officers even try to explain the logic of the system to them, that their money was going to some higher cause. Rather than appear as the bodyguard defending the relatively defenseless against corporate bullies, the union acted the part of the bully from my perspective as a vendor and from the perspective of too many students. In theory, the class liberals defended unions, but few did so on the basis of positive personal experience.

I thought about those experiences when reading today that the Supreme Court will decide whether states may forbid unions from spending on political causes certain union fees paid by workers who would rather not join the union. As a legal matter, I am inclined to think that the state can require unions (and corporations) to have segregated funds, given that the state law also mandates that workers who would rather not join the union must nevertheless pay agency fees to the union. I have not, however, studied the issue that closely (there is a potential pyrrhic victory here, namely a pro-union decision could have implications for the relationship between money and speech that I do not favor). As a personal matter, I wonder whether the right to spend these fees on political causes is worth the bother. If my experiences and the experiences of too many young people I teach are typical, and many of the young people I teach come from working class backgrounds, unions might benefit more from trying to make more friends than fighting for the constitutional right to spend other people's money on political causes.

Further tales from a banana republic

Sandy Levinson

I strongly recommend a column in today's Boston Globe by Peter Canellos. It is tellingly titled "Congress heads into torture debate blind." It concludes as follows:

Congressional leaders have made only token gestures of demanding briefings by the administration. And the Globe reported over the summer that only about a dozen members of Congress had availed themselves of the opportunity to read the national intelligence bill, which outlines the Bush administration's policies in the war on terrorism.

Many members told the Globe that they didn't read the bill because they would then be barred from discussing it, making any debate impossible.

But watchdog groups have suggested that no debate -- or a debate behind closed doors, with security rules in place -- might well be preferable to a debate that offers only a false appearance of congressional oversight.

Having no debate indicates -- correctly -- that the administration is on its own in deciding which interrogation techniques are lawful. Having a debate conveys the impression that the constitutional system of checks and balances is in operation. But with most members left in the dark, so is the constitutional system.

Again, I ask the right-wing readers of Balkinization: Is this the way they envision governance in a respectable republic? Why aren't conservatives outraged at the degradation of what we used to believe was a system of representative democracy and the slide into a form of caesarism? I heard former Sen. John Danforth last night explain that he is a loyal Republican because he believes in "limited government." But he chooses to aim his fire at the Christian Right rather to say anything at all about the embrace of unlimited government in the name of an endless "war on terror." At the end of the day, he is just another Republican loyalist. I hope against hope that Sen. Specter will at long last genuinely stand firm against the Bush juggernaut, but it remains to be seen.

Hate to Rain on the Torture Parade . . .

Marty Lederman

The Wall Street Journal and National Review, among others, are downright giddy with delight at the prospect that, because of the new "compromise" legislation, the CIA will be able to resume its so-called "alternative" interrogation techniques. On this view, no longer need the Journal editors "fear" that techniques such as stress positions, sleep deprivation, and temperature extremes "are a thing of the past."

Sorry, but not so fast.

For reasons I've explained, there are plenty of things horribly wrong with the draft legislation, and the most recent version revealed last night is even worse. Most importantly, the amended War Crimes Act will no longer criminalize all cases of "cruel treatment" prohibited by Common Article 3. (Indeed, as my colleague John Mikhail explains in an important post on the Georgetown Law Faculty site, the new War Crimes Act would even fail to criminalize all cases of torture that Common Article 3 prohibits.) And I fear that the Bush Administration will construe the constrained definitions in the War Crimes Act, together with the vast deference afforded the President to define "non-grave" breaches of Common Article 3, to authorize a resumption of the "alternative" techniques (indeed, numerous spokespersons, including the head of the CIA, have already suggested as much); and, what's worse, the bill will unconscionably attempt to insulate such Executive "interpretations" from any effective judicial and legislative review.

The Journal relishes the prospect that the White House will do just that:
It's a fair bet that waterboarding--or simulated drowning, the most controversial of the CIA's reported interrogation techniques--will not be allowed under the new White House rules. But sleep deprivation and temperature variations, to name two other methods, will likely pass muster. This is not about "torture" or even "abuse," as some Administration critics dishonestly charge, but about being able to make life uncomfortable for al Qaeda prisoners who have been trained to resist milder forms of interrogation.

The National Review, for its part, states expressly what is implied in the Journal editorial -- namely, that the President would be justified in doing so, because the compromise legislation would authorize the use of such techniques:
[T]he compromise legislation will define compliance with domestic-law obligations in such a way that the interrogation program can continue (with the apparent exception of water-boarding, a controversial but highly effective technique). It will also define U.S. compliance with international-law obligations under CA3, but only in terms of what would constitute "grave breaches" of it. Significantly, the definition of "grave breaches" is the same for the purposes of both domestic and international law. This is just as the president wanted: It means that if an interrogation is in compliance with domestic law, it is also in compliance with international law — thereby forestalling prosecutions in foreign and international tribunals.
There are several basic mistakes in this part of the NRO editorial.

For one thing, Common Article 3 establishes domestic, not merely "international law," obligations. As Justice Kennedy explained in Hamdan, it "is part of a treaty the United States has ratified and thus accepted as binding law." Indeed, Common Article 3 is part of the "supreme Law of the Land," per Article VI of the Constitution, and a President who takes his constitutional obligations seriously is bound to faithfully execute it-- not only as a matter of "international" law, but as a matter of U.S. law.

Nor would compliance with domestic law, such as this statute, foreclose prosecution in foreign and international tribunals for violation of the laws of war and the Geneva Conventions.

Most importantly, however, it is simply not the case that the bill would authorize the CIA "program" to continue, no matter how often the Administration might say otherwise.

To begin with, such techniques might, at least in some cases, constitute "cruel treatment" and "torture" even under the constrained definitions of those terms in the bill. I've already explained why I think those definitions are inadequate, but Senator McCain suggested on Sunday that on his reading of the language (apparently w/r/t "serious mental pain or suffering," in particular), some variants of the techniques would remain war crimes. Further legislative history might flesh out this possibility.

But even if the techniques are no longer deemed "war crimes," the amended War Crimes Act would not describe the sum total of "cruel treatment and torture" that Common Article 3 proscribes. Therefore the CIA techniques (some of them at least) would remain violations of CA3, even if they are not criminally enforceable.

Moreover, section 8(c) of the bill would actually re-enact the December 2005 McCain Amendment, which incorporates the due process "shocks the conscience" test. Senator McCain reportedly has expressed the view that that standard would prohibit at least some of the "alternative" techniques -- and he's almost surely correct, notwithstanding that the Administration has apparently (and secretly) concluded to the contrary.

The bill does not purport to supersede or override U.S. obligations under Common Article 3 -- everyone involved in the negotiations agrees on that much. And CA3 does prohibit the techniques. So, for that matter, does the "shocks the conscience" test of the McCain Amendment, fairly applied.

Thus, the conduct would remain unlawful, even if it is not covered by the War Crimes Act.

Of course, there's a very good chance that the lawyers in this Administration will conclude otherwise, by hook or by crook, because those in charge seem to have a very unorthodox view of what it means for the President to faithfully execute the law (see my discussion here). And the compromise bill unfortunately will provide them with the confidence to do so without significant fear that their implausible interpretations will ever be subject to review.

But then again, it might be years before there are further high-level detainees for whom the CIA techniques will be proposed. By that time, perhaps there will be different officials and lawyers making decisions in the Executive branch -- including those who are willing to construe the Geneva Conventions (and the McCain Amendment) faithfully. Or perhaps not. Only time will tell whether the U.S. will ever use Cold Cell, Long-Time Standing, and other forms of "cruel treatment" and torture, in violation of our treaty obligations.

So the folks over at the Wall Street Journal and the National Review might be advised not to pop their champagne corks just yet -- we might not know for awhile whether the Executive branch will authorize the CIA to breach the Geneva Conventions.

It Gets Worse

Marty Lederman

I'm told that this is the latest version of the commissions/Geneva/War-Crimes bill. According to the Washington Post, there is indication Senators McCain, Warner and Graham have acceded to it.

Apparently there are over 100 changes, many of them "technical." I haven't read it through it carefully yet, but I am informed that it would authorize and encourage even greater departures in the commissions procedures from court-martial practice, including further restrictions on a defendant's right to examine all of the evidence against him. Also, this version reportedly would make it more difficult to challenge any decision by the Secretary of Defense to depart from the statutory procedures for commissions.

Perhaps most alarmingly, the new version contains a much broader definition of "unlawful enemy combatant." The "compromise" bill from last week defined "unlawful enemy combatant" as "an individual engaged in hostilities against the United States who is not a law enemy combatant." The new bill would expand the definition to cover:

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or (ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.

Thus, if a person purposefully and materially supports hostilities, he will be an unlawful combatant, even if he never engages in any hostilities himself. [NOTE: At least one of the Administration's supporters believes that the mere filing of a habeas petition is a form of "aggression against the United States." Presumably that is not the intent of the drafters, or else all those attorneys now representing military detainees would become "unlawful enemy combatants"!]

The second subsection is, perhaps, even more alarming: It appears to suggest that even if a detainee has not engaged in hostilities or supported hostilities, he will be deemed an unlawful combatant if the Department of Defense has said so! Note that this definition is not limited to aliens abroad. It applies to persons in the United States, and to citizens and aliens alike.

Some observers understandably fear that the the purpose or effect of this provision might be to give the Executive a statutory authority to militarily detain the category of persons deemed "unlawful enemy combatants." But the definition is so broad, and standardless, that it suggests it should not be read as such a detention authorization. (The bill does not expressly indicate that all persons defined here as "unlawful enemy combatants" may be militarily detained.) Otherwise, DoD's determination of status based on whatever standard it wished to apply would be determinative of the Executive's authority to detain. Even for these drafters, that sort of extreme carte blanche to the President to detain whoever he sees fit, without any statutory limit at all, seems highly unlikely.

* * * *

The "Thou shalt not invoke one's Geneva rights in court" provision has been moved from section 7 to section 5. The War Crimes Act amendments are now in section 6. And the habeas suspension is in the new section 7.

It is worth noting one thing about the breadth of the habeas-stripping provision, both in the new draft and in last week's version, that has thus far received inadequate attention in the public debate. That provision would eliminate the right to petition for habeas for all alleged alien enemy combatants, whether or not the detainee has been determined to be an "unlawful" combatant -- indeed, even if the detainee is deemed a lawful combatant (e.g., a POW) -- and no matter where they are detained, including in the United States.

The provision therefore would appear to overrule not only the recent Rasul decision, which recognized habeas rights for detainees at Guantanamo, but also the holdings in the World War II cases of Quirin and Yamashita, which dealt with alien detainees in the U.S. and in an occupied insular possession, respectively. In each case, the Court rejected the President's assertion that he could deny the detainee the right to challenge the legality of military-commission proceedings(and detention) by writ of habeas corpus. See Quirin, 317 U.S. 1, 25 (1942) ("neither the [President's] Proclamation nor the fact that they are enemy aliens forecloses consideration by the courts of petitioners' contentions that the Constitution and laws of the United States constitutionally enacted forbid their trial by military commission"); Yamashita, 327 U.S. 1, 8-9 (1946) ("The courts may inquire whether the detention complained of is within the authority of those detaining the petitioner. . . . [Congress] has not foreclosed their right to contend that the Constitution or laws of the United States withhold authority to proceed with the trial. It has not withdrawn, and the Executive branch of the government could not, unless there was suspension of the writ, withdraw from the courts the duty and power to make such inquiry into the authority of the commission as may be made by habeas corpus.").

If section 7 of the new draft legislation had been in place in 1942 and 1946, and if such a withdrawal of habeas rights were constitutional -- which remains an unresolved question -- the Court would never have been able to address the merits of the questions presented in Quirin and Yamashita. Thus, this habeas-stripping provision would be a much more dramatic repudiation of traditional, longstanding habeas rights than has been commonly acknowledged.

Monday, September 25, 2006

. . . And From the Roman Republic

Stephen Griffin

Mark Graber uses Greek democracy to critique the Iraq war. Let's add to that the relevant example of the Roman republic, which limited military dictatorship in time of invasion (and thus the excuse of military necessity) to one year. The example set by the Roman republic (familiar to the framers of our Constitution, of course) is particularly relevant to the 9/11 Authorization to Use Military Force (AUMF) and the apparent authority it provides to prosecute an endless "war on terror." Unlike Mark, I do not consider the absence of a formal declaration of war to be significant. However, there is a great question (not faced by the otherwise analytically sharp Harvard Law Review article by Goldsmith and Bradley on the AUMF) as to whether our constitutional system is compatible with a war without end. Surely the Roman republicans would have thought not.

More Advice from Classical Greece

Mark Graber

Democracies, many classical Greeks believed, were slow to fight, but more effective when they fought (ancient memory suggests this assertion is somewhere in Thucydides, but I could not find the exact citation). The idea was that a democracy required a broader consent than an oligarchy before going to war, that the people who actually did the fighting and dying in a democracy had to approve for battle to be waged. Obtaining such consent was not as easy as talking five knights into taking their peasants across the seas. Lots of people had to be convinced that war was in the national interest. On the other hand, once proponents of war in a democracy persuade the population, democracies are thought able to bring far more resources to bear in combat than other regimes. People who support a war, classical Greeks believed, are more likely to make the necessary sacrifices than people who don't. Common sense.

Whatever else may be said for American policy in Iraq, that policy fails to meet classical Greek standards and is suffering for that failure. To begin with, the Bush/Yoo doctrine seems aimed at minimizing the consent necessary to begin and maintain military operations. From the refusal to seek a declaration of war to the idea that policy towards detainees will be subject to presidential interpretation and non-justiciable, the Bush administration has sought to narrow the relevant consenters to the bare minimum that might be regarded as constitutionally mandated. Even if one thinks there is a scrap of constitutionality in Bush doctrine, one should note that, when faced with a constitutional choice, this administration always prefers the route of least consent.

As important, and related, by refusing to secure broad consent for the war in Iraq, the Bush administration has been forced to minimize the resources necessary to win the war on terrorism. The result has been that inadequate troops were on hand to secure the peace, the costs and the time necessary to rebuild Iraq have consistently been grossly underestimated, and no effort has been made to ask most American citizens for the resources necessary to rebuild Iraq. Bush cannot ask for the substantial tax increase probably necessary for rebuilding the Iraqi infra-structure because he has not sought the broad based support for his policies that might induce the sacrifices necessary to execute that policy properly.

The result, classical Greeks would recognize, is a disaster. On the one hand, the Bush Administration's misadventures in the Middle East have ravaged a nation, making that nation ideal soil for terrorist networks. On the other, because most Americans have either opposed or been uninvolved in that effort, they are with some justification unwilling to provide the resources necessary to undo the damage done. No wonder many leading Republicans hope the Democrats do better than I expect this election! The real challenge for Democrats and everyone else is to find a policy that enjoys the support necessary to gain the necessary resources, and such support is not likely to be gained by ritually citing Alexander Hamilton on the unitary executive.

Thucydides weighs in

Sandy Levinson

A reader of Balkinization was kind enough to send me the following quotation from Thucydides:

"To fit in with the change of events, words, too, had to change their usual meanings. What used to be described as a thoughtless act of aggression was now regarded as the courage one would expect to find in a party member; to think of the future and wait was merely another way of saying one was a coward; any idea of moderation was just an attempt to disguise one's unmanly character; ability to understand a question from all sides meant that one was totally unfitted for action. Fanatical enthusiasm was the mark of a real man, and to plot against an enemy behind his back was perfectly legitimate self-defence . . . and indeed most people are more ready to call villainy cleverness than simple-mindedness honesty. They are proud of the first quality and ashamed of the second." Thucydides, The Peloponnesian War III, 82, trans. Rex Warner, The Penguin Classics, pp. 209-210.

Interestingly enough, one of the sources I found as I was looking for an exact citation was, which posts a lecture by Pierre Vidal-Naquet. "Who are the Assassins of Memory?" Vodal-Naquet, who died only a few weeks ago, I believe, was a notable historian of the Holocaust and, necessarily, how so much of the issue is linked with the integrity of language.

Contemplating a convention

Sandy Levinson

A reader of my previous post wrote, with regard to the "(And How We the People Can Correct It)" part of my new book, "I'm new to Balkinization, but wouldn't a new constitutional convention be a total disaster for the country?"

This, of course, is a thoroughly reasonable question. Indeed, it is the most common response by friends when I lay out my argument. Few actually defend the present constitutional order--the number of actual fans of the electoral college diminishes daily--but most seem to think that my proposed cure--a new constitutional convention--would be far worse than the disease. I suspect I'll be posting further musings on this issue, but let me suggest for now the following: If, as I think is the case, most people who define themselves as "progressive," "liberal," or "left" are scared to death of a new convention because of a belief that it would result in "a total disaster for the country," what does this say about "our" faith in some form of what for lack of a better term might be called "robust democracy"? There are, as I acknowledge in the book, good reasons to be fearful of populist movements, but, as I also argue, if the left has basically given up on the proposition that we can persuade our fellow citizens of the merits of our positions--or if we simply believe, with some reason, that the political system has become so corrupt and subject to purchase by those with money or celebrity--then there is nothing to hope for beyond a naive faith in the courts. One of the things that has been impressive about a number of right-wing organizations over the past 30 years is their faith in democracy and old-fashioned organization. It is the right that is willing to talk about constitutional amendments--which, to be sure, are dreadful in their specifics--while the left too often attacks the idea of constitutional amendment itself rather than articulates why the specific ones under discussion are awful but why others might contribute to the fulfillment of the aspirations of the Preamble.

One of the awful failings of the Constitution is precisely that it does not spell out how an Article V convention would actually operate. We would have to make it up as we went along. But we should at least recognize that the Constitution itself recognizes the possibility of its own imperfection and explicitly provides that a new convention is thinkable. So let's think about it and how one might actually be organized. Otherwise, I am afraid that the very idea of significant change will continue to appear simply utopian because the US Constitution makes it so impossibly difficult.

"Our Undemocratic Constitution"

Sandy Levinson

I take it that anyone who's been reading Balkinization for the past several months knows that I have a new book, "Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It"). It sets out a variety of arguments, some of them already familiar to Balkinization regulars, about the deficiencies of our Constitution and calls for a new constitutional convention to correct them. I am relieved to say that not all of the arguments have been rehearsed on Balkinization, so there IS some new stuff in the book, e.g., an attack on policy-based presidential vetoes and a discussion of the "second-class citizenship clauses of the Constitution." In any event, you can find the cover of the book just to the right, with hyperlinks to Barnes and Noble and Amazon. This turns out to be an interesting test of economic theory, inasmuch as B&N is offering the book at a price at least 20% lower than Amazon. (And for "members" of B&N, it goes down another 10%, to just over $20.00. And if you order another book, say Mark Graber's wonderful book on Dred Scott, you get free shipping!)

Needless to say, I will welcome any disputation (and even agreement!) by Balkinization participants. For better or worse, I have persuaded myself of the validity of my own arguments. That is, I do believe that the Constitution is dangerously dysfunctional for our politics today and that serious discussion of this premise is impeded by the ridiculous degree of veneration that we give the Constitution.

One other point, incidentally: I waste no time in the book attacking the Framers. I am willing to stipulate that they were all honorable men--we can table for this moment the question of slaveholding and collaboration with slaveholders--who did the best they could to shape a new nation in perilous times. Everything might have made perfect sense in 1787-88. But the Constitution badly needed some "sunset provisions." My complaint is that we don't listen to the Framers' own entreaties to be guided by "experience" rather than mindlessly stick to tradition and "custom." Whatever the Framers were, they were not Burkeans. They were armed revolutionaries who overthrew a reasonably good, but defective, polity because it was found inadequate to the American reality. And they then in effect overthrew a second polity--that established by the Articles of Confederation--for similar reasons, even if they didn't have to take up arms to do it. I don't advocate the taking up of arms, but I do suggest we emulate their questioning spirit and willingness to convene for a discussion of what kind of political system is most fit for our contemporary life.

Sunday, September 24, 2006

Why Iraq is Worse than Vietnam

Sandy Levinson

"Henry," responding to my previous posting, writes that "there are no senators like Al Gore Sr. or Fulbright now, but the gutless Democrats are called "liberals." (For those of you too young to remember, Gore and Fulbright opposed the war in Vietnam in terms that no Democratic senator dares do today with respect to Iraq.)"

I'm not filled with admiration for contemporary Democrats, but don't we have to concede that Iraq is altogether more difficult than Vietnam? I was adamantly opposed to the Vietnam War; for better or worse, I had no compunctions about advocating an American defeat. Like many people of the time, including Gore and Fulbright, I thought we had no business being in Vietnam, that justice might well be on the side of the North Vietnamese (a view I would be more hesitant to affirm these days), and, in any event, that the costs of unilateral withdrawal would be relatively modest, save for the reputations of those who got us into the war in the first place.

I was opposed to the American invasion, but does that opposition really generate a given position for the future. I know of now serious person who is "rooting" for the insurgency in a way that many of us (again I feel a need to add "for better or worse") were either rooting for the Viet Cong or, at the least, were genuinely indifferent about a Viet Cong-North Vietnamese victory. The people leading the insurgency are, I have little doubt, truly terrible and promise nothing but further misery for the people of Iraq should they prevail. The Shi'ites most likely to come to power are little better than the Taliban, as Frank Rich argues in today's Times. The Sunnis who are willing to kill and maim innocent men, women, and children can hardly be viewed in heroic terms.

This does not mean we have to "stay the course." I am increasingly persuaded that Rep. Murtha is right after all and that withdrawal is the best of several terrible options. But there is a reason that no one in either party has genuinely been able to develop a coherent policy. The only thing one can be confident of is that the present Administration is led by a group of dishonest mountebanks unable to admit the magnitude of their incompetence. Justified rage does not, alas, constitute a policy that we can really rally around. I'm old enough to have taken place in marches in New York and Washington calling for unilateral withdrawal from Vietnam. Some of the marchers, wisely or not, flew the Viet Cong flag. Even if I were willing to march in behalf of unilateral withdrawal from Iraq, I would be appalled beyond belief to accept as a legitimate fellow marcher anyone waving the flag of any of the insurgent groups, including, for that matter, Iran (even if I certainly oppose the Administration's threats of military force against that country).

Just as there are some who yearn for the relative simplicity of the Cold War, one might even yearn, in a perverse way, for the clarity of the Vietnam War. So the problem with current Democratic leaders cannot be reduced to lack of guts. Even were there no crass domestic political considerations, it would still be difficult to figure out exactly what the US should do now.

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