Sunday, October 08, 2006

When Lawyers Are War Criminals

Scott Horton

To the memory of Helmuth James von Moltke

"In France, innumerable summary executions occur, even as I sit here writing. Each day certainly more than a thousand people are killed, and thousands of German men experience murder as a matter of routine. And yet all of that is child's play compared to what's going on in Poland and Russia. Can I learn about this and just sit at the table in my heated apartment and drink tea? Don't I establish my complicity simply by doing nothing? What will I say in the future, when someone asks me: and what did you do during this time?"

- Helmuth von Moltke, in a letter to his wife, Oct. 19, 1941

Talking about the Nuremberg Tribunals inevitably seems to involve "bad Germans," so I want to talk about a man who deserves to be remembered in the course of this meeting. He was more than merely a "good German;" indeed, he was a man whose powerful moral example serves as a model for all of us today, a man who represents the ethical pinnacle of our profession. And the strange thing is that he was a staff lawyer at the German defense ministry during the Second World War. His name was Helmuth von Moltke. His tenacious advocacy of the Geneva and Hague Conventions in the face of withering criticism and suspicion from the Nazi hierarchy saved the lives of thousands of civilians and prisoners, particularly on the Eastern Front and in the Balkans. It also led inextricably to his execution at the hands of the Nazis in 1945.

Disgusted by an atmosphere in which law was constantly subverted to political expedience, Moltke envisioned harsh prosecutions of politicians and lawyers who engaged in such antics as an essential purgative. In a draft dated June 14, 1943, Moltke envisioned a special international criminal tribunal to be convened at the conclusion of the Second World War for the purpose of bringing to justice those who violated the laws of war. Lest there be any doubt, it was principally the men he worked with every day in the Wehrmacht whose punishment he foresaw. In view of mounting evidence of a crime of genocide, and out of concern that international customary law failed yet to provide a medium for its punishment, he advocated an expansive posture for prosecution. "Any person who violates the essential principles of divine or natural law, of international law, or of international customary law in such a fashion that makes clear that he contemptuously disregards the binding nature of such law shall be punished," he wrote in a plan for a post-war tribunal in 1943.

This conference has turned on a great deal of discussion of Robert Jackson and his visionary role in the Nuremberg process, but it is truly remarkable that so much of Jackson's vision was commited to paper two years earlier, and its author was not only a German, but the scion of his nation's most prominent military family.

I come to the example of Moltke for another reason, namely that he very properly puts the emphasis not on the simple soldiers who invariably operate the weaponry of war, but on those who make the policies that drive their conduct. And in that process, his stern gaze falls first on the lawyers. In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said "the basic building blocks of civilization"? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?

These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system.

For this issue, one Nuremberg case forms the key precedent: United States v. Altstoetter, also called the Reich Justice Ministry case. That case stands for some simple propositions. One of them is that lawyers who dispense bad advice about law of armed conflict, and whose advice predictably leads to the death or mistreatment of prisoners, are war criminals, chargeable with potentially capital offenses. Another is that cute lawyerly evasions and gimmicks, so commonly indulged in other areas of the law, will not be tolerated on fundamental questions of law of armed conflict relating to the protection of civilians and detainees. In other words, lawyers are not permitted to get it wrong.

United States v. Altstoetter: Lawyers As War Criminals
Concerned about the level of resistance faced by German troops in the occupied territories, Hitler instructed Field Marshall Keitel to issue a special decree authorizing extraordinary measures pursuant to which political suspects would simply "disappear" to special detention facilities and might face summary court proceedings. The death penalty appears as the punishment most frequently contemplated. The decree, issued on the same day the Japanese attacked Pearl Harbor (December 7, 1941) and as the German drive on Moscow stalled and the Soviet counteroffensive had begun, is known as the "Night and Fog Decree" (Nacht- und Nebelerlass), a reference to the covert action it authorized. Contemporaneous documents make clear that it was motivated by the high level of casualties German soldiers were sustaining behind the front in occupied territory. Pacification of this territory was given a high priority.

A team of Justice Department lawyers worked with Keitel and his team at the German General Staff (OKW) on the drafting of the decree and further steps for its implementation. This included a series of highly particularized rules setting out how such detainees were to be treated by police, justice officials and others. The rules specified how such individuals would be permitted to make wills, issue final letters of farewell, what would be done with children born to detainees and how their death could be recorded in the registry. Other lawyers prepared parallel orders creating special secret courts and detention facilities for those interned under the Nacht- und Nebelerlass. These courts were crafted under domestic German law and thus constituted a projection of German law into the occupied territories.

These arrangements flouted the protections of the Hague Convention, specifically the right of "family honor, lives of persons" and the right "to be judged under their own laws." To the extent applied against uniformed service personnel, they also violated the Geneva Convention on Prisoners of War of 1929. However, the Justice Department lawyers advanced the view that the Hague and Geneva Conventions were inapplicable because their adversaries did not subscribe to these documents. This decree was applied brutally, and with particular force in France. A total of at least 7,000 persons were detained; a large number of them perished.

The Justice Department lawyers justified these acts as steps available to an occupying power in order to protect its troops against terrorist acts or insurgency. Further, the occupied territories could be divided, roughly, into three categories: (i) areas directly incorporated into the German State (for instance, Austria, Alsace-Lorraine, the Eupen-Malmédy region of Belgium, Danzig and portions of Poland); (ii) areas under German occupation and direct administration (such as Bohemia and Moravia); and (iii) areas under puppet régimes (such as Hungary and Slovakia). As for the first, they asserted the right to treat persons found within those territories under German law. As to the second, they claimed the right as occupier to promulgate new rules and orders, and to derive them from Germany. As to the third, they relied on the acquiescence of régimes like Vichy France and Hungary. Their positions on these points were at least colorable from a legal perspective.

The Justice Department lawyers were indicted and charged with crimes against humanity and war crimes arising out of the issuance and implementation of the Nacht- und Nebelerlass. The United States charged that as lawyers, "not farmers or factory workers," they must have recognized that their technical justifications for avoiding the application of the Hague and Geneva Conventions were unavailing, because these conventions were "recognized by all civilized nations, and were regarded as being declaratory of the laws and customs of war." That is to say, they were customary international law. Further, the United States charged, this decree "would probably cause the death of human beings," grounding a charge of homicidal intent.

After trial, the two principal Justice Department lawyers, one a deputy chief of the criminal division, were convicted and sentenced to ten years' imprisonment, less time served. This judgment clearly established the concept of liability of the authors of bureaucratic policies that breach basic rules of the Hague and Geneva Conventions for the consequences that predictably flow therefrom. Moreover, it establishes a particularly perilous standard of liability for government attorneys who adopt a dismissive attitude towards international humanitarian law.

The Present Crisis
Between the fall of 2001 and early 2004, US Government lawyers engaged many of the same issues and took decisions very close to those taken by von Ammann and his colleagues in the German Justice Department. In particular, the Nacht- und Nebelerlass has a close cousin in the United States extraordinary rendition project on a policy plain, though we should quickly note two essential distinctions: the total throughput in human terms has been dozens, not thousands of persons, and it has not involved death sentences, though not a few persons (to be exact: 98) have died in incarceration under circumstances suggesting that torture was involved, if they were not indeed tortured to death. These lawyers adopted a mantra, namely, to quote Alberto Gonzales, that the Geneva Conventions were "quaint" and "obsolete," and did not apply to a "new kind of warfare." In so doing, they thoughtlessly moved in the same paths traversed by lawyers in Berlin sixty years earlier. Indeed, at the General Staff trial, the world public learned for the first time of the valiant struggle of Moltke when one of his memoranda was put into evidence. It pleaded in forceful terms for respect of the Geneva Convention rights of enemy soldiers, civilians and irregular combatants on the East Front, mustering a series of arguments that bear remarkable similarity to a memorandum sent by Colin Powell to President Bush sixty years later. And in the margins, in the unmistakeable pencil scrawl of Field Marshall Keitel, were found the thoughts that these rules were "quaint" and "obsolete," they reflected the "outmoded notions of chivalric warfare." This was cited as an aggravating factor justifying a sentence of death against Keitel.

The Bush Administration apparently assumed that the court system would toe the political line they had drawn. It was clearly taken by surprise when the Supreme Court, in Hamdan, knocked the legal props out from under the Administration's detainee policy, validating the positions taken by the senior legal officers of the nation's uniformed military services and the State Department, which had opposed the Administration on this grounds. The Hamdan decision presents a straight-forward interpretation of the Geneva Conventions, finding that Common Article 3 was applicable to detainees in the War on Terror who did not qualify for prisoner of war protections. This position is also identical to the view embraced by the organized bar in the United States in 2003, in a series of reports that warned the Administration that its legal reasoning was both radical and isolated. But the most striking aspect of the Court's opinion was its forceful and repeated references to the War Crimes Act of 1996. There is little doubt that the Court was concerned that the Administration's policies were not just inconsistent with Geneva, but in fact potentially criminal under American law.

The Administration's response was to propose the Military Commissions Act of 2006, the thrust of which was to attempt to amend the War Crimes Act into oblivion and to make the amendment retroactive. When it became clear that the Administration could not muster a majority for this legislation in the Senate, the Administration entered into a compromise with Senators McCain, Warner and Graham, who had specifically flagged and objected to this effort.

I want to ask today: What has this legislation done to the legacy of Nuremberg? Has it granted impunity to persons who committed war crimes? Is that impunity effective, and might it have unintended consequences?

At Nuremberg, Justice Jackson promised that this process would not be "victor's justice." He said "We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well." Powerful words. A moral compact. Did the Bush Administration seek to repudiate Jackson's commitment? This can be answered quite clearly: yes. But did they succeed? That is less clear. But before getting to that point, I want to deconstruct some myths that the Administration has generated to obscure their entire process.

The Camouflage
In announcing the Military Commissions Act, President Bush insisted that he needed the legislation to lay to rest the concerns of 400-500 professional interrogators. These loyal citizens were, he said, concerned that the Supreme Court in Hamdan had called into question the legality of what he called "the Program," a set of "alternative interrogation procedures" which were developed and implemented by his Administrations. This was perhaps the most fact-free speech Bush has ever delivered. But it contained three fundamental misrepresentations.

First, he suggested that the interrogators faced the prospect of prosecution under the War Crimes Act. In fact, as a matter of long-established policy, US service personnel are prosecuted under the Uniform Code of Military Justice and not the War Crimes Act. The CIA personnel and private contractors involved in this process likewise faced no prosecution risk under the WCA because of a memorandum of agreement between the Department of Justice, Department of Defense and CIA done by Michael Chertoff when he headed the Criminal Division. Chertoff undertook that as long as a set of scheduled techniques were used, which are described on an appended memorandum he prepared with Alice Fisher, no prosecutions would be undertaken for death, dismemberment or assaults. Consequently, only one group feared prosecution under the War Crimes Act, and that is the policy makers: John Yoo, Jay Bybee, Alberto Gonzales, David Addington, Jim Haynes and a host of others. This measure was pushed at their initiative, and for their benefit. This is the first dark secret of this measure.

Second, Bush revealed that there was a new "Program," of "extraordinary procedures" that he, personally, had been advised of and had approved. The Program, he complained, had been stopped as a result of the decision in Hamdan. This is part of a general political strategy of spotlighting judges and accusing them of politics when they are bravely enforcing the law. But the facts here are different: the Program was always against the law, and the US Army's own interrogation manuals stated just that. As the current issue of Time reports, and I have corroborated from my own sources, the use of these techniques was suspended when even the President's own lawyers, and I am talking about political appointees in the DOJ as well as the interim general counsel of the CIA, concluded that it was unlawful. They were propelled to this conclusion not by Hamdan, but a half year earlier, by the passage of the McCain Amendment, which banned cruel, inhuman and degrading treatment as well as torture. Placing the blame on the Court was the second lie.

Third - and this is the darkest lie of all because it impunes the integrity of American service personnel – Bush stated that the reach for highly coercive new techniques came at the insistence of the interrogators themselves. But in fact, we now know from an array of leaked documents that these techniques were rammed down their throats, often over courageous opposition, both within the CIA and the uniformed services. When the career professionals refused, DOJ lawyers were enlisted, led by figures like Alberto Gonzales and John Yoo, to override their objections by issuing formal opinions backing orders from the White House to use abusive techniques. Consequently, when we allocate moral and legal culpability for the deaths, torment and scarred lives that this process has produced, it is the torture memo writers who surely deserve the biggest blame. It was their professional duty to say "no," but instead when asked whether they would give a green light to war crimes, they responded by doing their master's unthinking bidding.

The Military Commissions Act seeks to accomplish its objective of granting impunity through three tools. First, it redefines "war crimes" into a series of specifically chargeable offenses, of which two, "torture" and "cruel treatment" are most important for these purposes. Second, it makes the restatement of these crimes retroactive to September 11, 2001. Consequently, a series of criminal offenses under the War Crimes Act will disappear retroactively when the Act goes into force. Third, it strips courts of jurisdiction over habeas corpus petitions and forbids litigants to cite the Geneva Conventions and related international and foreign law in those courts, in an effort to blind the courts to the law which the Constitution obligates them to enforce.

The initial draft makes clear that the White House sought impunity for crimes arising as a result of the use of three techniques that the Bush Administration (and, from the remarkable wording of one of Bush's press conferences, Bush himself) authorized and which constitute grave breaches under Common Article 3: waterboarding, long-time standing (or as it was called by its NKVD inventors, in Russian: stoika) and hypothermia or cold cell. The use of these techniques is a criminal act. The purported authorization of these techniques is a criminal act. The larger effort to employ them constitutes a joint criminal enterprise.

The Act does not alter the fact that these practices are outlawed by Common Article 3. However, by creating a series of specifically chargeable crimes that weave and bob through the historical offenses, the drafters apparently seek to make it more difficult to prosecute these offenses in US courts.

At the core, we have this question: are waterboarding, hypothermia and long-time standing "cruel treatment" as the crime is identified in the Act? And on this point, the legislation's sponsors – Senators Warner, McCain and Graham, say "yes," while the White House says "no." A fair reading would say that the Act creates ambiguity where none previously existed. However, a close comparison of the White House's original proposal with the compromise version that resulted clearly undermines the White House's claims, for the changes seem clearly keyed to forbidding the questioned tactics.

So where do we go from here? Unfortunately its track record up to this point suggests that the Administration will exploit any ambiguity to work its will. Consequently, the burden will shortly fall on Administration lawyers, who will be challenged to pick their path: will it be that of Moltke and Jackson, or will they adhere to the twisted course of Addington, Yoo and Gonzales? That's a stark choice, and one that entails absolute moral clarity.

If the consequence of the Act is to immunize those who authorized these techniques from prosecution, is that lawful? The US position, articulated most recently in connection with Yugoslavia's efforts to immunize its military leaders, was that any such act would only provide evidence of a broader conspiracy to commit war crimes. Consequently, the grant of immunity is ineffective in the contemplation of the international community; moreover, those involved in purporting to grant immunity may thereby be roped into a charged joint criminal enterprise.

Clearly there will be no prosecutions in the US, certainly not under Attorney General Alberto Gonzales, who would figure near the top of anyone's list of criminal conspirators and whose name has already appeared in a criminal indictment relating to Abu Ghraib. But what about universal jurisdiction processes? Spain, France, Belgium, Germany, Switzerland and Italy all have universal jurisdiction statutes. Germany has already entertained a complaint against Rumsfeld, Tenet and others over detainee abuse questions. That complaint was dismissed without prejudice by the German Federal Prosecutor. In his opinion, the Federal Prosecutor stated that the first predicate of the statute had not been met since there was no showing that a prosecution for the crimes shown in the home nation of the defendants would not occur. Considering the political and military position of the United States, the invocation of a universal jurisdiction statute against sitting officers of the government has to be viewed as more than an uphill task. But I think passage of the Act has just made it a whole lot easier.

The legacy of Nuremberg and the solemn undertaking that Justice Jackson gave for the United States at the opening session, are under assault by the Bush Administration, which has embraced a radical world view that rests on a cult of power and a disdain for law. And fundamentally, this Administration has a notorious allergy against accountability in any form. But this conference is evidence that the spirit of Nuremberg has not been extinguished in the United States. And indeed, the flickering candle that was lit at Nuremberg has developed into principles which form the heart of the international legal order. We bear witness to those principles with this conference.

Remarks delivered at the ASIL Centennial Conference on The Nuremberg War Crimes Trial, Bowling Green, OH, Oct. 7, 2006

Getting Back on my Hobbyhorse: Re David Broder's critique of Congress

Sandy Levinson

David Broder has a column in today's Washington Post devoted to attacking Congress for its shameful record this session. It begins with the words "The disgrace of Congress..." and concludes as follows, after detailing multiple failures of Congress, including the breakdown on immigration reform:

"But House and Senate leaders never ordered the negotiations that might have led to agreement on a final bill, so in the end, little was accomplished.

That was the hallmark of this Congress. We have to do better."

I obviously agree with the description of Congress as a "disgrace" and the imploring hope that we not only "have to do better," but can in fact do better. But I continue to want to climb back on my hobbyhorse and suggest that the reasons for the inability of Congress to get anything done (save passage of the disgraceful Military Commission Bill) has as much to do with our constitutional structures as the personal failings of Dr. Bill Frist, Speaker of the House Hastert, and other luminaries. The commitment of the US to what might be termed "strong bicameralism," putting to one side the disgraceful overrepresentation small states in the Senate, means by definition that each house has an absolute veto over the other. The only way to break such impasses is not through some kind of plausibly democratic process--e.g., Congress meeting in joint session, engaging in great debates, and voting up or down on deadlocked bills, with each Representative and Senator having one vote--but, rather, by an ever-more undemocratic turning over of legislation to conference committees whose decisions are then rubberstamped by senators and representatives who often will not have read the final bills in question.

And who, incidentally, gets to engage in the "negotiations" of which Broder speaks, at least in the modern Congress? It is most definitely NOT Republicans and Democrats alike. Instead, as we have seen so many times, it is between House and Senate Republicans, with Democrats entirely cut out of the process. And, once the conference committees agree, there is no practical likelihood of anything resembling deliberative consideration of their handiwork, however much it varies from what either the House or the Senate actually voted for. If this is "democracy," then I'd like to know what "government by oligarchy" would look like.

"We are a republic, not a democracy." As a matter of fact, because of our 18th century structure, we are neither. We have a political system that is rightly mistrusted (and for many despised) by well over half of our fellow citizens, if one looks at approval ratings for our basic institutions. As much as I hope for a Democratic sweep next month, it is foolish to believe that the approval rate for Congress will be much higher than the present 22% two years from now, because no rational person can believe that a Democratic Congress would, even if had the programs in mind, actually be able to get them through the House and Senate (as Republicans would return to the filibuster), not to mention the ability of George W. Bush to exercise his veto power to preclude any significant attacks on the Bush legacy of misgovernment. As I heard on the radio only this morning, it is altogether rational that more people vote for American Idol than for the Congress, because they know that their vote makes stunningly little difference with regard to the prospects of bringing about desirable political change. But, as many of my critics point out, that is just what James Madison and his friends desired. I'm not comforted.

When Will the Military Commissions Act Become Law?

Marty Lederman

Not, it appears, for at least another week. The bill, S.3930, was "cleared" for the White House ten days ago, but has not yet actually been presented to the President, and so the ten-day clock has not yet begun to run. Odds are that the White House has asked the Congress to hold off, so that the Administration can schedule the signing statement for a date of its choosing.

According to White House Deputy Press Secretary Dana Perino, the bill will not be signed this coming week, but "probably" will be signed next week, "I think on [Tuesday,] the 17th."

Friday, October 06, 2006

"A Republic, Not a Democracy"

Sandy Levinson

There has been, for better and possibly for worse, a vigorous response to my article in last week's New Republic attacking the presidential veto as anti-democratic. (It is, as will be obvious to Balkinization regulars, adopted from my book (cover photo and click-on available on the right :) ) addressing a number of what I regard as the undemocratic features of the Constitution. A few readers seemed to take my argument seriously, whether or not they agreed with me; several, however, seemed to agree that the article (and presumably the author as well) were simply "asinine" inasmuch as it (and I) unaccountably failed--out of stupidity or mendaciousness-- to recognize that "we are a republic, not a democracy, and should keep it that way."

Older readers of will recognize the quoted language as that of Robert Welch and the John Birch Society in the early 1960s, as they vehemently opposed poltical liberals who supported the Civil Rights Movement in the name of furthering the development of American democracy. At one level, of course, Welch (and my contemporary critics) are absolutely correct: The founders were in fact commited to some version of a "Republican Form of Government" (to quote the Constitution's own language), not what we would today recognize as a modern democracy. The 18th century version of the RFG was, among other things, both racialist and patriarchal: Only white men--and, indeed, propertied white men to book, and, in addition, for many only Protestant propertied white men--were invited into the republican experiment. Everyone else was pretty much an onlooker. This is, to be sure, a bit of an exaggeration. Women actually voted in New Jersey (until 1807), and many white working men participated in the voting for the ratification conventions. That being said, it is true that it is anachronistic to describe those who wrote the Constitution as committed to modern notions of democracy. Most glaringly, for most of them there was nothing inconsistent about chattel slavery and republican government. Indeed, the slaves provided the opportunities for leisure on the part of the white ruling class (at least in the South), who could therefore devote their energies to political rule. One need not even engage in "founder-bashing" in order simply to recognize that, as inhabitants of the past, they indeed lived in a far different world than we do now.

So I am obviously left to wonder what the response of my more critical interlocutors--who seem unable to say anything much beyond the point that we were never intended to be a "democracy"--would have been to earlier proposals to a) abolish slavery (the 13th Amendment); b) forbid race, gender, and ability to pay the poll tax as criteria for allocating the suffrage (the 15th, 19th, and 24th Amendment; or c) elect Senators by popular vote rather than continue to have them apponted by state legislatures (17th amendment). All of these practices were thought at the time to be the end of what might be called "republicanism" (and, therefore, civilization) as we knew it. (I will confess that I basically lost my temper at a conference at the Cardozo Law School in the spring of 2001, relatively soon after Bush v. Gore, when a political scientist defended the Electoral College on the basis, at least as I saw it, that it represented the wisdom of the Founders. I recalled my old teacher Louis Hartz, brilliantly lecturing on Edmund Burke in his European political theory course, ultimately concluding that Burke's theory reduced to the embrace of an almost wilfull "mindlessness." That is, to be sure, too facile--and Hartz was less simplisitic than I may be suggesting--but any normative theory of American politics based on the premise that the Founders necessarily got it right is, I believe, deeply mindless. Quoting Madison or Tocqueville about how contemporary instituitions operate in 2006 has little more merit than reading sheep's entrails.)

I do not preclude the possibility that my particular suggestions for eliminating the presidential (policy) veto, the electoral college, the equal-vote allocation of power in the Senate, etc., are not only debatable, but even out-and-out bad. Fellow Balkinization contributor Mark Graber has certainly done his best, not always successfully, to rein in some of my more Jeffersonian impulses. That being said, I am absolutely confident that it simply doesn't help to be reminded that "we are a republic, and not a democracy, and should keep it that way" unless one has a quite robust theory of precisely how it is that the anti-democratic (meaning anti-majoritarian) features of our Constitution serve important public values beyond simply making it difficult for the majority in fact to rule. And if one believes that it is not important, in the United States, that, all things considered, majorities should rule--indeed, if one believes that it is highly desirable that one should place a plethora of barriers (often labeled with the basically mindless, because unanalyzed, term "checks and balances") in the way of majority rule that go well beyond simply protecting the rights of vulnerable minorities--then perhaps this calls into some doubt whether we should really be describing ourselves as a "democracy" at all.

I can only wonder if what I am tempted to call "Constitution worshippers" would prefer that the United States were both encouraging "republican" government abroad and actively discouraging those benighted souls who might actually embrace 20th and 21st century notions of democracy. That would allow us to continue to ignore the extent to which many of these latter notions have yet to achieve full success in the United States itself, so locked are we into a distinctly undemocratic 18th-century conception of government.

A closing thought (and perhaps the topic of a future posting): We like to think that we are a "liberal democracy." Well, it turns out that a lot of us think it's just fine if we're not very democratic (and, indeed, that it's potentially "silly" or even dangerous to suggest that we might become more democratic in our basic institutional structures). And the authoritarian impulses that are behind the Military Detention Act, with its permanent suspension of habeas corpus and creation of potentially vast numbers of people--though it would be bad enough if there were only a few of them--who have no rights to lodge legal protest against indefinite detention without the slightest semblance of serious due process of law--call into question the "liberal" side as well. So what IS the right label for the United States these days?

Buying the Court

Brian Tamanaha

The New York Times recently reported on the scandalous degree to which Ohio Supreme Court judges have issued rulings that favor parties who gave them campaign contributions.

An examination of the Ohio Supreme Court by The New York Times found that its justices routinely sat on cases after receiving campaign contributions from the parties involved or from groups that filed supporting briefs. On average, they voted in favor of contributors 70 percent of the time. Justice O'Donnell voted for his contributors 91 percent of the time, the highest rate of any justice on the court.

In the 12 years that were studied, the justices almost never disqualified themselves from hearing their contributors' cases. In the 215 cases with the most direct potential conflicts of interest, justices recused themselves just 9 times.

Although the article focuses on Ohio, this is a national pattern, with millions of dollars now flowing into state judicial elections around the country. A statistical study of the Alabama Supreme Court by Andrew Ware also found a "striking" correlation between campaign contributions and the judges' votes.

The biggest players in this are business interests, although the plaintiffs' bar are also major contributors. In recent years, many of the contributions come from outside the state. The U.S. Chamber of Commerce, for example, participated in 16 state Supreme Court and Attorney General contests in the 2004 election. The Chamber's Chief Legal Officer, Stanton Anderson, bragged after the election that the Chamber "won every race in which we were involved." The Chamber has invested--that is the correct word--$50 million in state judicial elections since 1998.

The high correlation between contributions to judges and favorable decisions does not necessarily suggest corruption of the judges. Rather, contributors supply money to judicial candidates whose personal ideologies match their interests. As the article put it: "...contributors are not trying to buy votes in particular cases. But they are trying to buy seats on the court." Not just trying, I should add, but succeeding.

The corruption of politicians by money from lobbyists is well known--and there "corruption" does fit--but this phenomenom has thus far escaped much attention. It is more insidious, because people are less aware of it, and because it compromises the integrity of law by sending the message--once again!--that the personal beliefs of the judge matter more than what the law says.

If you have enough money and are savvy about how you distribute it, today you can buy the legislation you desire, and you can seat the judges who will interpret that legislation and other laws.

A concerted effort to seize control of the law in these ways and wield it to further specific interests is a part of a broader phenomenon of "legal instrumentalism" that now pervades our legal culture. I explore this in a new book, Law as a Means to an End: Threat to the Rule of Law.

The Lincoln Trope

Mark Graber

Many American political and constitutional arguments have something close to the following structure. 1) The following political action/constitutional understanding is wise, benevolent, and prudent. 2) Abraham Lincoln must have favored that political action/constitutional understanding because Abraham Lincoln was a wise, benevolent, and prudent leader. 3) We ought to adopt that policy because Abraham Lincoln favored that policy. I take it that premise 1) does all the work in this argument and that 2) and 3) are just window dressing, accoutrements of American political rhetoric. Just as I teach my constitutional law students to cite BROWN in support of their arguments whenever possible and insist that their rivals are repeating whatever Taney did in DRED SCOTT, so strategic political actors in the United States will always invoke Abraham Lincoln in support of such claims as the president must have sole authority to control the war against terrorism, President Bush was wrong to invade Iraq, and the designated hitter rule is ruining baseball. Sometimes the social science/amateur historian in me says "big deal." As long as what we are really fighting about is premise 1) who really cares about ritual invocations of 2) and 3). Sometimes, I think we need better education. A good deal of Part III in the Dred Scott book details how, taking Abraham Lincoln too seriously as the politician who best articulated American constitutional aspirations, we fail to understand the antebellum constitutional order and our political regime in general. But let me play with a different problem, inspired by FEMA and Marty's post below.

Lincoln's administration had corruption and cronyism problems. In particular, the Secretary of War from 1861 to 1862, Simon Cameron, was both incompetent and on the take. Cameron's performance was hardly surprising. He was known as incompetent and corrupt. Lincoln appointed him as part of a bargain to obtain Pennsylvania votes in the 1860 Republican convention. Of course, because we all know Lincoln was a wise, benevolent, prudent, and honest leader, we never learn about or let slip from our consciousness the Cameron deal and all the other shenanigans that enabled Lincoln to wrest the nomination from William Seward at the 1860 convention (or insist that Lincoln knew nothing of them, but being "honest Abe" felt obligated to adhere to corrupt bargains made by others). Those who cannot avoid knowing about the 1860 Republican convention conclude that because Lincoln was a wise, benevolent, prudent, and honest leader, there is a wise, benevolent, prudent and honest justification of his behavior. Lincoln recognized that only he could defeat the Democrats in the 1860 election and so had to defeat the more radical Seward to prevent slavery from expanding. Personal ambition played little role in his decision to strike a corrupt bargain with Cameron. All morally decent, prudent politicians would do so. Or so the behavior of Lincoln and his supporters during the 1860 Republican convention is excused.

What reason exists for thinking this analysis sound? Given the popular fallout from the Lecompton fiasco, corruption in the Buchanan administration, and an economic recession in Pennsylvania, might a reasonable case be made that any prominent Republican would have won the 1860 election. Granted Lincoln was more moderate than Seward, but Seward was better known. Are we that confident that Lincoln was the stronger candidate to excuse his deal with Cameron. I suspect outside of, say 15 historians in the United States, no one who excuses Lincoln's behavior during the 1860 nomination convention really has a clue as to how Seward would have done, that the only reason they excuse Lincoln is their faith that Lincoln would never engage in such corrupt bargaining merely for personal ambition.

Recognizing that Lincoln probably did strike bargains merely for personal ambition might prove more instructive than excusing away all his suspicious acts. Seward and his political machine were never in danger of winning "Mr. Clean awards." Perhaps the lesson of 1860 is that all politicians, Lincoln, Seward, Bush, Clinton, whomever, make deals to gain office. That Lincoln made a number of deals demonstrates that we should not condemn politicians for making deals. Politics is the art of the possible even when practiced by politicians with good causes. Moreover, personal ambition in a politician is part of the job description. There is much truth to that. Still, not all deals are created equal. Just as we might criticize politicians for being unwilling to deal, we need standards for determining when a corrupt bargain has been made. The danger of the Lincoln myth is that the legitimacy of the Cameron bargain becomes axiomatic, so that any future bargain no worse than Cameron (or any future crony appointment no worse than Joshua Speed) is legitimate. Neither Abraham Lincoln nor George Bush should be judged by that standard. A great many persons died in the first years of the Civil War because of Cameron's corruption and incompetence. We will be in a better position to evaluate corruption and cronyism in the Bush Administration by recognizing that the Cameron deal was wrong and should not have been made.

Thursday, October 05, 2006

Shameless: The President's Constitutional Authority to Appoint Political Hacks to Run FEMA

Marty Lederman

Yesterday, the President signed H.R. 5441, the annual Department of Homeland Security Appropriations Act. In his signing statement, the President noted constitutional objections to more than 37 different provisions of the bill. (Thirty-seven provisions are specified -- but several of those are listed merely as examples ("such as") of still other unenumerated "provisions" of the Act. There's no way of knowing how many provisions the President intends to implement (or not implement) contrary to congressional will.)

Many of those objections are perfectly proper, such as with respect to those provisions that would require congressional committee approval before the Executive could execute them, thereby violating the principles of INS v. Chadha. Others are subject to reasonable dispute.

Some of the objections, however, are just ridiculous. Section 513 of the bill, for instance, transfers the authority to conduct security background investigations of potential employees in certain agencies from the Office of Personnel Management to the Department of Homeland Security, until such time as the President has selected a single agency to conduct security clearance investigations. In the President's view, this temporary transfer of security investigation authority from one agency to another implicates the President's "exclusive constitutional authority, as head of the unitary executive branch and as Commander in Chief"! (Recall that Article I designates the President the Commander in Chief Clause of the Army and the Navy.)

But that's not the most alarming objection.

Remember Katrina?

Remember Michael Brown, the FEMA Administrator who did such a bang-up job dealing with the crisis?

Well, in this bill Congress took a very modest step to try to prevent that sort of incompetence in cases of future disasters: Section 611 of the Act imposes the following qualifications for the Administrator of FEMA:
The Administrator shall be appointed from among individuals who have—

(A) a demonstrated ability in and knowledge of emergency management and homeland security; and

(B) not less than 5 years of executive leadership and management experience in the public or private sector.

According to the President, this provision apparently transgresses the Appointments Clause because it "purports to limit" -- purports to limit! -- "the qualifications of the pool of persons from whom the President may select the appointee in a manner that rules out a large portion of those persons best qualified by experience and knowledge to fill the office." Accordingly, "[t]he executive branch shall construe [the qualification] in a manner consistent with the Appointments Clause of the Constitution."

This is simply mind-boggling. Qualifications for presidential appointees are ubiquitous in federal law, and have been since the dawn of the Republic. In the Judiciary Act of 1789, in fact, the very first Congress required that the Attorney General be a "meet person, learned in the law," 1 Stat. 93 -- a qualification not unlike that for the FEMA Administrator in the new law. In Myers v. U.S., Justice Brandeis spent almost ten pages of the U.S. Reports enumerating scores of such qualifications from 1789 to 1926 alone -- including many cases in which Congress "has limited the power of nomination . . . by prescribing specific professional attainments, or occupational experience." 272 U.S. at 265-274. Even the majority in Myers -- a very strongly pro-President opinion -- conceded that Congress may impose "reasonable and relevant qualifications and rules of eligibility of appointees." 272 U.S. at 129. Such qualifications are constitutional as long as they "do not so limit selection and so trench upon executive choice as to be in effect legislative designation" of a particular appointee." 272 U.S. at 128.

The test was probably best articulated by Attorney General Akerman in an 1871 opinion: Statutory qualifications for federal officers appointed by the President are ok as long as they "leav[e] scope for the judgment and will of the [President]. . . . . Congress may not dictate qualifications "unattainable by a sufficient number to afford ample room for choice." Civil Service Commission, 13 Op. Att'y Gen. 516, 520-21, 525 (1871).

Obviously, section 613 easily satisfies this test. It merely requires that the Administrator of FEMA have "a demonstrated ability in and knowledge of emergency management and homeland security" and "not less than 5 years of executive leadership and management experience in the public or private sector." To be sure, this qualification would prevent the appointment of someone whose only "relevant" experience was being friends with Joseph Allbaugh and overseeing horse trial judges and stewards for the Arabian Horse Association until being ""forced out . . . after withstanding numerous lawsuits against his enforcement of rules for judges and stewards."

But it certainly could be construed to leave the President with the authority to appoint just about anyone who has the actual capacity to run FEMA.

I suppose it's possible the President could have taken the view that all statutory qualifications for presidential appointees are unconstitutional. That would have been wrong, and belied by unbroken history. But it would at least have made logical sense.

Instead, the signing statement has the temerity to state that the qualifications in the bill "rule[] out a large portion of those persons best qualified by experience and knowledge to fill the office"!

That's right -- in the views of this President, requiring a demonstrated ability in and knowledge of emergency management and homeland security and at least five years of executive leadership and management experience "rules out a large portion of those persons best qualified by experience and knowledge to fill the office" of FEMA Administrator -- and thus the President apparently will not feel bound to satisfy those qualifications.

Of course, this makes no sense at all . . . unless, in the Administration's view, what a FEMA Administrator really needs to "fill the office" is not experience and knowledge of disaster relief and management skills, but instead "experience [in] and knowledge" of how to be blindly loyal to the Republican Party.


[NOTE: The language in the signing statement -- "rules out a large portion of those persons best qualified by experience and knowledge to fill the office" -- is taken verbatim from an OLC Opinion in the Clinton Administration which concluded that a statute preventing the President from appointing as United States Trade Representative anyone "who has directly represented, aided, or advised a foreign entity in any trade negotiation, or trade dispute, with the United States," is unconstitutional. The conclusion of that opinion was, in my view, wrong -- the Trade Rep qualification still left the President "ample room for choice" of an appointee -- but obviously, that statute would have ruled out many of the best-qualified persons for Trade Representative (including Charlene Barshevsky), and so its empirical claim was reasonable, even if its constitutional conclusion was mistaken. In the FEMA case, by contrast, the statutory qualification likely does not rule out any of the persons best qualified to fill the office -- it rules out only those people, such as Michael Brown, who are patently unqualified to perform the important functions of that office.]

Slavery and humanitarian intervention

Sandy Levinson

[Note: The following has been edited to correct a couple of typos and word omissions, beginning with correcting my misspelling of Alan Gilbert's first name, for which I apologize.]

I hope that Alan Gilbert will forgive me for addressing one aspect of his thoughtful response to my prior posting in this brand new posting. But it involves the issue of humanitarian intervention. I agree that the Bush Administration has never actually used the phrase, but the political logic of at least one of their arguments--when they focus on Saddam Hussein's vicious regime and, in effect, ask those of us who opposed the war if we'd be happier if he were still in power torturing his political opponents--certainly has affinities with logic of humanitarian intervention.

But I'm more interested in exploring the defense of the Civil War (or the suppression of Southern secession) as a legitimate exercise of humanitarian intervention. It is very interesting that Alan compares slavery with "genocide," for the following reason: When, at a conference in Germany three years ago, I raised the humanitarian intervention issue with regard to both Iraq and the American South, I was told by a world-famous human-rights specialist that such arguments didn't apply in Iraq because Saddam Hussein was no longer threatening Kurds with genocide (unlike 1988 or so, when this person said he supported armed intervention in Iraq). That is, he argued, only threats of genocide would support armed intervention (as against, presumably, "mere" sanctions and the like). So what about the South? There I was told that slavery, however concededly awful, didn't justify armed intervention either, because it wasn't genocidal. I make no comment about his responses per se. But they underscore some of the dilemmas created by the modern international human rights movement inasmuch as it has adopted (and encouraged) notions of armed "humanitarian intervention" but also, and properly, wants to limit their completely opportunistic use by given political regimes.

This could be an occasion for seguing into a question about what is the proper response of the US in Darfur. Everytime I read Nicholas Kristoff's columns (some of which have complimented Bush for his awareness of the problem there), I feel we should send troops in ASAP. Then I read David Rieff, and believe that it would ultimately compound the present disaster that is US foreign policy. How ought we think about such issues? Do we first have to be convinced that genocide is occurring, since nothing less would suffice to justify intervention? (Kristoff, of course, argues that that test is easily passed.) Do we have to be convinced that such intervention would in fact be efficacious in some calculable cost-benefit sense?

Abraham Lincoln as Myth and Symbol

Sandy Levinson

Bill Moyers has published an eloquent denunciation of the current political scene in a piece called "Lincoln Weeps," and another law professor has asked "Where is Today's Lincoln" with reference to Lincoln's willingness, at the cost of his nascent political career, to challenge the legitimacy of the Mexican War in 1847. This is all fine and good, but we should be extremely wary about embracing Abraham Lincoln as the potential cure for the most truly fundamental debate we are having today, which concerns the very shape of the American constitutional system. The central danger to American constitutionalism does not come from pedophiles or people who are on the take from corporate interests, objectionable as both are; it comes from dedicated patriots--think John Yoo and David Addington, for starters--who have a radically different conception from many of the rest of us as to how to respond to genuine problems posed by genuinely evil people.

So we should be prepared to address the possibility that "today's Lincoln" is in the White House, i.e., a president determined to use every conceivable power at his disposal, including extravagant interpretations of the "Commander-in-Chief" power, to impose his vision of politics and justice on the nation and world. I have long believed (and written) that Lincoln is the most important single figure in the entire tapestry of American constitutionalism, and he presents an endlessly complcated, often contradctory, set of images. I have described him also as the most "Nietzschean" figure in our history, using his powers to "trasnvalue" the basic meaning of the American experiment (see, e.g., the Gettysburg Address and Garry Wills's book on same). In any event, one should not embrace Lincoln as a role model without being prepared for people like Michael Stokes Paulsen, who uses Lincoln as the main source for his depiction of what he terms "The Constitution of Necessity," 79 Notre Dame L. Rev. 1257 (2006). One can, of course, defend Lincoln on the grounds of his substantive commitment (eventually) to anti-slavery, but, then, George W. Bush constantly invokes the values of "liberty" and "freedom" as the justification for the war on terror that certainly does involve some people who are every bit as evil as any of the slaveholders could have been thought to be. And it was Lincoln who basically initiated, as Commander-in-Chief what we today have come to call "total war," including the devastation wreaked by Sherman's march through Georgia.

Indeed, why shouldn't we be hoping that judges today will display the courage that the despised Roger Brooke Taney manifested in Ex parte Merryman, which, of course, involved Lincoln's unilateral suspension of habeas corpus? Or is it thinkable that we might even find a model for our present time in the even more despised James Buchanan, who believed that secession was unconstitutional but also believed that the national government was without power to prevent it by the exercise of armed force. Thus he wrote in his final message to Congress, "The fact is that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish."

This ultimately raises the question, of course, of whether the conflagration of 1861-1865, caused as much by Lincoln as by the secessionists, was "justified." The initial justification, of course, was maintaining the Union. I confess to having serious doubts about the legitimacy of Union preservation per se, though Michael Lind, in What Lincoln Believed (2005), makes the best case for the proposition that in the immediate years after the brutal suppression of liberal movements in Europe, maintenance of the American Republic really was perceived as "the last best hope" of the republican experiment world wide. The other justification for the war is what we would today call "humanitarian intervention," i.e., the desirability of eradicating the brutal and immoral regime of chattel slavery. I'm more drawn to that justification for the War, but it should be obvious that proponents of the Iraq War could and did make similar arguments with regard to the equal desriability of eradicating the brutal and immoral regime of Saddam Hussein. To condemn the invasion of Iraq as incompetent, as Tom Friedman is now willing to do at every opportunity, is altogether different from condemning that use of American power in the first place, which he supported and continues to find reasonable.

In any event, it should be obvious that worshippers at the shrine of the Lincoln Memorial may come up with radically different messages from the legacy of their Holy Figure.

This Administration can't be broken, even with waterboarding


The Washington Post notes that "[k]ey senators say Congress has outlawed one of the most notorious detainee interrogation techniques -- "waterboarding," in which a prisoner feels near drowning. But the White House will not go that far, saying it would be wrong to tell terrorists which practices they might face."

You might wonder why, if the Administration is willing to state that it doesn't torture and doesn't engage in cruel, inhuman and degrading treatment (as per the McCain Amendment and the MCA) and abides by Geneva Common Article 3 (also still law after the MCA) it won't simply come out and say it won't waterboard.

The Article continues:

Inside the CIA, waterboarding is cited as the technique that got Khalid Sheik Mohammed, the prime plotter of the Sept. 11, 2001, terrorist attacks, to begin to talk and provide information -- though "not all of it reliable," a former senior intelligence official said.

Waterboarding is variously characterized as a powerful tool and a symbol of excess in the nation's fight against terrorists. But just what is waterboarding, and where does it fit in the arsenal of coercive interrogation techniques?

On Jan. 21, 1968, The Washington Post published a front-page photograph of a U.S. soldier supervising the questioning of a captured North Vietnamese soldier who is being held down as water was poured on his face while his nose and mouth were covered by a cloth. The picture, taken four days earlier near Da Nang, had a caption that said the technique induced "a flooding sense of suffocation and drowning, meant to make him talk."

The article said the practice was "fairly common" in part because "those who practice it say it combines the advantages of being unpleasant enough to make people talk while still not causing permanent injury."

The picture reportedly led to an Army investigation.

Twenty-one years earlier, in 1947, the United States charged a Japanese officer, Yukio Asano, with war crimes for carrying out another form of waterboarding on a U.S. civilian. The subject was strapped on a stretcher that was tilted so that his feet were in the air and head near the floor, and small amounts of water were poured over his face, leaving him gasping for air until he agreed to talk.

"Asano was sentenced to 15 years of hard labor," Sen. Edward M. Kennedy (D-Mass.) told his colleagues last Thursday during the debate on military commissions legislation. "We punished people with 15 years of hard labor when waterboarding was used against Americans in World War II," he said.

A CIA interrogation training manual declassified 12 years ago, "KUBARK Counterintelligence Interrogation -- July 1963," outlined a procedure similar to waterboarding. Subjects were suspended in tanks of water wearing blackout masks that allowed for breathing. Within hours, the subjects felt tension and so-called environmental anxiety. "Providing relief for growing discomfort, the questioner assumes a benevolent role," the manual states.

The KUBARK manual was the product of more than a decade of research and testing, refining lessons learned from the Korean War, where U.S. airmen were subjected to a new type of "touchless torture" until they confessed to a bogus plan to use biological weapons against the North Koreans.

Used to train new interrogators, the handbook presented "basic information about coercive techniques available for use in the interrogation situation." When it comes to torture, however, the handbook advised that "the threat to inflict pain . . . can trigger fears more damaging than the immediate sensation of pain."

In the post-Vietnam period, the Navy SEALs and some Army Special Forces used a form of waterboarding with trainees to prepare them to resist interrogation if captured. The waterboarding proved so successful in breaking their will, says one former Navy captain familiar with the practice, "they stopped using it because it hurt morale."

After the Sept. 11, 2001, terror attacks, the interrogation world changed. Low-level Taliban and Arab fighters captured in Afghanistan provided little information, the former intelligence official said. When higher-level al-Qaeda operatives were captured, CIA interrogators sought authority to use more coercive methods.

These were cleared not only at the White House but also by the Justice Department and briefed to senior congressional officials, according to a statement released last month by the Office of the Director of National Intelligence. Waterboarding was one of the approved techniques.

When questions began to be raised last year about the handling of high-level detainees and Congress passed legislation barring torture, the handful of CIA interrogators and senior officials who authorized their actions became concerned that they might lose government support.

Passage last month of military commissions legislation provided retroactive legal protection to those who carried out waterboarding and other coercive interrogation techniques.

So let's see: when waterboarding was used on our own troops, it was considered a war crime. The MCA retroactively protects CIA officials who used it. And senators who supported the MCA now state that the new law forbids it. But the Administration still won't say that it won't engage in the practice. It still won't state publicly that it won't violate the law.

Nothing, it seems, can make it talk-- about waterboarding.

Constitutional Interpretation Conference at Vanderbilt


I'm off to Nashville, Tennessee for a conference on constitutional fidelity sponsored by Vanderbilt Law School and the American Constitution Society. The goal of the conference is to consider how progressives should do constitutional interpretation. I'll be there to offer my theory of text and principle on a panel with Kim Roosevelt from Penn Law School and Michael Greve of the AEI. The conference features an all-star cast, including our own Marty Lederman, who will be talking about how history matters in interpretive debates about Presidential power.

Wednesday, October 04, 2006

Guantanamo Bay Teach In at Seton Hall


On Wednesday, October 5th, Seton Hall will be sponsoring a “teach-in” on the Guantanamo Bay detentions. Several other law schools are broadcasting the proceedings. (Thanks to

And for an alternative approach to the issues, here is Professor John Yoo's interview on NPR.

Interdisciplinary (Legal) Scholarship

Mark Tushnet

In reaction to Mark's post, here's what I find striking when I consume scholarship from fields other than law, particularly political science and history. Roughly speaking, what I find valuable in work by political scientists (when I find the work valuable) is that the very first thing they think about is power. In contrast, when I learn from works by legal scholars, it's because the very first thing they think about is law. And, again roughly speaking, what I find valuable in work by historians is their sensitivity to and presentation of complexity. In contrast, legal academics seem to me interested, in the first instance, in reducing complexity even they reintroduce it as the analysis proceeds. (The reason for the impulse to reduce complexity, I think, is the the more complex the analysis, the harder it is to describe the analysis a "legal" rather than (purely) political or (purely) moral.)

And, from my perspective, work by scholars in other disciplines is decreasingly valuable as their attempt to "do law" increases. To put it more than a bit snidely, the very best case-crunching by political scientists might possibly break into the top-twenty list of case-crunching by legal scholars. I suspect that the situation is the same in the other disciplines -- work by legal academics is decreasingly valuable as their attempt to "do" the other discipline increases. This is one way to take Brian Leiter's criticisms of legal philosophy done legal academics. And yet, sometimes I have a sense that that and like criticisms are misplaced -- to use a philosopher's term, commit a category mistake -- because the legal academics aren't really trying to "do" the other discipline, but to do law in a somewhat untraditional way. And, finally, that observation probably ought to make more more charitable than I am to what appear to me to be efforts to "do law' by scholars from other disciplines.

On Interdisciplinary Scholarship

Mark Graber

The most fundamental principle of interdisciplinary legal scholarship is that persons ought to know the scholarly literature on the subjects they write about. Before Ronald Dworkin declares that judicial supremacy has been settled since 1803 or Harold Spaeth writes about the history of the Supreme Court in the 19th century, they ought to crack open works on that subject written after 1960. If one is going to write on the original meaning of the 14th Amendment, one should read Judith Baer as well as Akhil Amar and Michael Kent Curtis. If one is going to claim that a legislature composed primarily of women would legalize abortion, one should read the relevant public opinion data. And, of course, if one is going to do a statistical study, one should do the study properly.

The great danger with claims of interdisciplinary ignorance and the great divide between political science and law is that disciplines are presented as far more homogeneous than they actual are. We sometimes hear, for example, that empirical legal studies consists of applying social science methods to legal problems. But whose social science methods are we talking about? Susan Burgess is a social scientist, as is Jeff Segal, but I rather think trying to figure out why the two of them are different from, say, Catharine McKinnon and David Currie, may not be the most interesting intellectual exercise. The truth is that disciplines are as internally divided as they are divided from other disciplines. One does not learn political science methodology, one learns the methods some political scientists use when solving certain kinds of problems. Indeed, with respect to political science and law, the new divide may be between those law professors and social scientists more sympathetic to behavioral approaches and those more interested in what has become known as historical institutionalism. The bright side is that because people on different sides of the fence are in different disciplines, there is likely to be more cross-fertilization than was previously the case. The down side is that to the extent people in one discipline get self-interested messages that all scholarship in a particular discipline is X they may not become aware of or take seriously good scholarship in that discipline relevant to their concerns that is Y. Put differently, interdisciplinary scholarship has the potential to narrow as well as broaden horizons.

The bottom line ought to be that, increasingly, persons located in different parts of the universe have come to realize either that they are thinking about similar problems or that, at least, that they have interesting things to say to each other. When we wander into a different building, however, we always wander into particular offices. I do not learn "law in all its majesty" from Jack Balkin, any more than he has learned what there is to know about political science from conversations with me. All we can do is borrow particular tools from the other. What those tools are will depend on our interests and our projects. The last thing we need is for interdisciplinary scholarship to become a discipline with rules we can use to exclude others (which is not to say that the academy might be better structured to promote interdisciplinary legal projects).

The Harvard Law and Policy Review


The American Constitution Society (ACS) now has an affiliated journal, the Harvard Law and Policy Review. Several people have pointed out that the name sounds a bit like the Federalist Society's affiliated journal at Harvard called the Harvard Journal of Law & Public Policy. But my guess is that "Harvard Law and Policy Review" sounds like a riff on the "Harvard Law Review," whose affiliations remain obscure.

Suspending Habeas Corpus at Guantánamo and Beyond

Guest Blogger

Jonathan Hafetz

One of the most significant aspects of the Military Commissions Act of 2006 (“MCA”) is its repeal of habeas corpus jurisdiction. Section 7 of the MCA eliminates habeas for an “alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Does this provision violate the Constitution’s Suspension Clause?

Challenges to the MCA’s habeas repeal will be addressed in the Guantánamo detainee litigation, where two lead cases are pending before the D.C. Circuit, Al Odah v. United States and Boumediene v. Bush. In Al Odah (captioned in the district court as In re Guantanamo Detainee Litigation), Judge Joyce Hens Green invalidated the Combatant Status Review Tribunal (“CSRT”), established to determine whether Guantánamo detainees were enemy combatants. Judge Green found that the Guantánamo detainees were protected by the Fifth Amendment’s Due Process Clause and that the CSRT violated due process by denying them access to counsel, preventing them from seeing the government’s evidence, and permitting evidence gained by torture. In Boumediene, by contrast, Judge Leon concluded that Guantánamo detainees had no cognizable rights, notwithstanding the Supreme Court’s ruling in Rasul v. Bush, 542 U.S. 466 (2004), that the detainees could challenge their confinement by habeas corpus.

As a threshold matter, precedent supports the conclusion that Guantánamo detainees have a constitutional right to habeas. In Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807), Chief Justice Marshall suggested that even though judges must have a statutory basis to issue the writ, the Suspension Clause obligates Congress to establish habeas jurisdiction, as Congress did in the Judiciary Act of 1789. The Court revisited Marshall’s statement in INS v. St. Cyr, 533 U.S. 289 (2001), suggesting that statutory habeas jurisdiction is constitutionally compelled by the Suspension Clause.

But even so, do aliens detained at Guantánamo fall within the Suspension Clause’s protections? Rasul suggests they do and informs the constitutional analysis in several ways.

First, Rasul drew upon history, explaining that the common law writ remained available to individuals in territory under the control of the English crown. Viewed in that light, Guantánamo is an easy case given more than a century of exclusive U.S. jurisdiction and control. Rasul’s historical analysis is of constitutional salience because, as St. Cyr instructs, the Suspension Clause at least protects the common law writ as it existed in 1789. And, in 1789, the writ would have run to an enclave like Guantánamo.

Second, Rasul distinguished Johnson v. Eisentrager, 339 U.S. 763 (1950), in two ways. For purposes of the habeas statute, the Court concluded that under Braden v. 30th Judicial Circuit of Ky., 410 U.S. 484 (1973), a habeas petitioner does not need to be within the district court’s territorial jurisdiction (as he did at the time Eisentrager was decided). Hence, the Guantánamo detainees could invoke a district court’s jurisdiction under the plain terms of the habeas statute. The Court, however, also distinguished Eisentrager because, among other things, the petitioners there were conceded enemy aliens who had been tried and convicted by a military tribunal, not held indefinitely without trial. For this reason Eisentrager, as Steven Vladeck and others have pointed out, may be read as a decision on the merits. And, on the merits, Eisentrager is a very different case.

Finally, appellate review of a CSRT finding under last year’s Detainee Treatment Act (“DTA”) does not alleviate Suspension Clause concerns because it fails to provide a constitutionally adequate substitute for habeas under Swain v. Pressley, 430 U.S. 372 (1977). As St. Cyr makes clear, the DTA’s scope of review must encompass legal and constitutional claims, including the lawfulness of the administration’s designation of a prisoner as an “unlawful enemy combatant” and whether the CSRT violates due process. Yet, the statute, as written, arguably precludes that review, asking only whether “the use” of CSRT procedures is unlawful. But even if the DTA permitted that review, it would still fall short of the Suspension Clause’s requirement by foreclosing any meaningful examination of the factual basis for a prisoner’s detention.

As I previously argued for amici in the D.C. Circuit, habeas review traditionally guaranteed a searching inquiry into factual allegations in cases of executive detention without trial (as opposed to the narrower review in post-conviction cases, where the prisoner was afforded due process at trial). These common law protections were later codified in the federal habeas statute, 28 U.S.C. § 2241 et seq., a point noted by both Justice O’Connor in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), and Judge Muskasey in Padilla ex rel. Newman v. Bush, 233 F. Supp. 2d 534 (S.D.N.Y. 2002), who saw the statute as providing a skeletal outline of due process independent from the Fifth Amendment. Indeed, it was when the administration recognized that the D.C. Circuit might actually force it defend its detentions in district court on habeas (including by entertaining allegations that evidence was obtained under duress), that it engineered passage of the DTA. Call it legislation as cover-up. In short, DTA review by the D.C. Circuit of a CSRT finding would not provide what common law habeas provided, but instead sanction indefinite detention without an opportunity to submit evidence or rebut the government’s allegations before a neutral decisionmaker. The CSRT’s basic inadequacy, coupled with the DTA’s narrow scope of review, does not satisfy the constitutional core of habeas.

A habeas case filed on the eve of the MCA’s passage challenging detentions at Bagram Air Base in Afghanistan will also raise issues important Suspension Clause issues. To be sure, Bagram does not possess the same century-long exclusive U.S. jurisdiction and control that makes Guantánamo unique. On the other hand, there is no alternative review scheme for detentions at Bagram since the DTA’s review mechanism applies only to detainees at Guantánamo. Thus, Bagram will force courts to confront the legal black hole they faced at Guantanamo before Rasul. It will also highlight the perverse incentives created by a jurisprudence that provides for review of detentions at Guantánamo but denies it at other off-shore prisons, allowing the administration to transfer prisoners to avoid the reach of the writ, exactly what habeas traditionally sought to prevent.

Tuesday, October 03, 2006

Has Congress unconstitutionally suspended the writ of habeas corpus?


I promised earlier that I would return to the question whether the Military Commissions Act's (MCA) habeas stripping provisions are unconstitutional. Here is the beginning of an answer to this rather difficult question.

Article I, section 9 of the U.S. Constitution states that "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it."

If the MCA's habeas stripping provisions are unconstitutional, it might be because it violates this clause. That would be because we are not currently in invasion or rebellion, or the public safety does not require it.

The argument that we are not in rebellion or invasion would be that the invasion occurred on September 11, 2001, and the Suspension Clause is designed for emergencies. The emergency has passed, and we are now embarked on a more or less permanent War on Terror. Whatever function the Suspension Clause serves, it is not designed for cases of permanent or indefinite suspension.

In addition to rebellion or invasion, the Suspension Clause also states that the public safety must require suspension. Public safety does not require suspension because the aliens at Guantanamo Bay have been in federal custody for many months, and in some cases for years. They do not offer a present danger to the United States. Allowing people to file habeas petitions in federal court does not endanger the public safety. The public safety test is designed for situations where courts and ordinary legal processes are not available and it is necessary to detain dangerous people immediately until order can be restored. There has been no loss of order in the United States or at Guantanamo Bay that would justify indefinite suspension of the writ.

But these arguments don't settle the matter.

The government might object that the Suspension Clause does not define "habeas corpus." The scope of the writ has been altered by legislation over the years. The government might argue that it is doing nothing more than eliminating non-mandatory statutory grants that are not part of the constitutionally required core.

Generally speaking the scope of constitutional habeas is based on historical practices at the time of the founding, supplemented by appropriate analogical extensions for new situations.

Historically, habeas was available for aliens as well as subjects in Great Britain. This was clearly the case within the boundaries of Great Britain; it also was available in British colonies as well.

How does this history apply to detainees at Guantanamo Bay? Justice Stevens' opinion in Rasul v. Bush found that the Guantanamo detainees had statutory rights of habeas and left open the constitutional scope of habeas. Justice Kennedy's concurrence insisted that "Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities." Equally important, Kennedy also pointed out that testing the legality of executive detention (as opposed to testing decisions of a court or tribunal) was a core function of habeas corpus:

The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, and without benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify "a limited opening of our courts" to show that they were "of friendly personal disposition" and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations. It allows friends and foes alike to remain in detention. It suggests a weaker case of military necessity and much greater alignment with the traditional function of habeas corpus. Perhaps, where detainees are taken from a zone of hostilities, detention without proceedings or trial would be justified by military necessity for a matter of weeks; but as the period of detention stretches from months to years, the case for continued detention to meet military exigencies becomes weaker.

Thus the constitutional scope of habeas (protected by the suspension clause) might apply to Guantanamo Bay because the executive seeks to hold detainees indefinitely without trial in a place far from hostilities where the United States has long held exclusive control and plans to do so for the foreseeable future. [UPDATE: Note that Kennedy's point is that habeas for aliens is necessary to tell who is an enemy alien and who is not. As Marty points out, the MCA appears to give the President virtually complete discretion to determine that someone it has seized is an alien enemy combatant because the President says so. Moreover, if the government refuses to hold hearings on whether an alien it has imprisoned is an enemy combatant, the withdrawal of habeas means that there is no practical way to force it to do so.]

Although it is not directly on point, it is worth noting that the Habeas Corpus Act of 1679, styled "An act for the better securing the liberty of the subject, and for prevention of imprisonments beyond the seas," was passed to counter the King's habit of taking people overseas and holding them there in order to prevent the exercise of habeas corpus.

Even if one accepts all this, the Administration might still object that the question whether Congress has complied with the suspension clause is non-justiciable: It is a political question and is left to the complete discretion of Congress. Justice Thomas' dissent in Hamdi noted that the Suspension Clause's requirements might not apply to the present situation, and therefore it might be unconstitutional for Congress to suspend the writ; however, he stated that, even so, courts could not review Congress's decision.

I think that Justice Thomas overstates the case. The purpose of the Clause is to permit *temporary* suspensions to protect public safety. Even if courts give Congress great deference, which they undoubtedly should, it does not follow that no review of any sort is permissible.

The text of Article I, section 9, does not, at least on its face, commit this question exclusively to Congress. Article I, section 9 does not expand Congress's powers, it places limits on them. Nor do the other prohibitions in Article I, section 9 appear to be nonjusticiable. Certainly the courts have regularly passed on whether Congress has passed an ex post facto law.

If Congress's decision to suspend the writ were in all aspects unreviewable, Congress could suspend the writ forever, by declaring that the United States was in a permanent state of emergency. More importantly, it could suspend the writ for only a small class of persons who were politically powerless and politically unpopular.

The latter case is far more important than the former. The electoral process might be sufficient to police and respond to a general suspension of the writ that embraced all citizens. But the electoral process might be much less of a safeguard where Congress suspends the writ selectively for only a small class of citizens. And where Congress suspends the writ for those who have no political rights and are viewed with great suspicion-- aliens-- there is the least chance that the political process will remedy abuses of the Suspension Clause.

I've given some reasons why the MCA violates the Suspension Clause. However, there are still other issues to resolve. The government might object that, under Swain v. Pressley, Congress does not suspend the writ where it provides a remedy that is adequate and effective to test the legality of a person's detention. I don't think that the remedies available under the MCA and the Detainee Treatment Act are either adequate or effective for a significant class of persons or for some important claims that detainees might want to offer. But the issues are quite complex, and I leave a fuller discussion for another day.

In addition, even if aliens enjoy the right of habeas corpus, this does not settle whether their detention comports with the Due Process Clause. The process that the government has offered them might be all the process they are due. (This is what Justice Thomas argued in his dissent in Hamdi with respect to United States citizens; I assume he would make the same argument with respect to non-citizens). Again, I think that this claim is far too quick: At least for some alien detainees at Guantanamo Bay the process the government has offered doesn't comport with the minimum requirements of Due Process, but this claim, too, requires a far more detailed treatment than I can offer here.

I close with this thought: The MCA is important not only because of how it affects the current Guantanamo Bay detainees, but also how it affects every alien in the future, including people living in the United States. There are many non-citizens living in this country who are our friends, neighbors, and members of our community. They are people who you see every day on the streets, people you regularly do business with, people who may cook your food or care for your children. The Military Commissions Act allows the government to seize these people off the streets and detain them because they are non-citizens, and, by accusing them of being unlawful enemy combatants, throw them into a parallel system where neither habeas corpus nor the Bill of Rights apply. It takes even resident aliens who have lived in the country for years out of the criminal justice system and into the world of military prisons and CIA interrogations. The MCA allows the government to make mistakes-- very grievous mistakes-- in detention and interrogation that will severely harm these people and that it may never have to account for. A system of laws that can do this-- even if its primary victims are not citizens-- is inconsistent with the principles of a democratic republic.

The Fault is in Our Constitution

Sandy Levinson

As I've been pondering over this weekend about the (in)appropriateness (as distinguished simply from the impolitic aspects) of using the fuhrerhprinzip analogy to understand our own present political situation, it occurred to me that I'm in the embarrassing position of not understanding my own book well enough. That is, as everyone knows by now, I've recently published Our Undemocratic Constitution, which includes a vigorous critique of various aspects of Article II (as well as the Article I assignment of a presidential veto power, the subject of an article in this week's New Republic). But it seems to me that the Constitution, so bad in so many respects, also helps to explain why we end up with a distinctively American version of presidentialism that requires no recourse to the baleful influence of Leo Strauss and his connection with Weimar.

The argument focuses on two aspects of the Constitution, both of which made perfectly good sense at the time, both of which are dysfunctional inn 2006. The first is that the president, of course, is head of state, the recipient of all sorts of emotions attached to the flag and other symbols of the nation. Hail to the Chief is not something we would play for what Ross Perot would usefully call our most important employee. It is something more suitable for a monarch, and that is what the Constitution in effect creates. On top of this is the consequence of the rigidly fixed term of office. As the saying goes, whoever is president is, subject to death or impeachment, neither of them likely or desirable, "the only president we have" until the next inauguration day. Basic cognitive dissonance theory would predict that anyone stuck in such a relationship would overlook deficiencies and try desperately to reassure oneself that things will turn out all right. But, of course, it isn't quite so simple, because one has to factor in something that is NOT part of the original Constitution and, indeed, was by-and-large feared by its designers, the reality of a party system. Democrats have no incentive to glorify George Bush, nor did Republicans have any similar incentives with regard to Bill Clinton. But, of course, the political party of whom the president is the (unreplaceable) leader has every incentive, psychological as well as political, to be loyal once the alternative is viewed as the prospect of losing power to the dreaded opposition. (My favorite version of Lord Acton's dictum is the variation coined by John P. Roche: "Power corrupts, and the prospect of losing power corrupts absolutely.")

The fuhrerprinzip, at least with regard to Hitler, was presumably based on charismatic authority. Moreover, it was designed in effect to overthrow the existing political order, given that the Chancellor was not head of state. That honor remained, as I understand Weimar, with the President, who was supposed to be in some sense "above politics." (Obviously, I stand ready to be corrected on my understanding of German politics.) I presume that no one would ascribe Republican loyalty to George W. Bush as resting on his charisma. Nor is it part of an attempt to overthrow the basics of the American political order inasmuch as presidentialism of one kind of another has been a constant of American politics from quite near the beginning. Before, though, there might have been certain pressures against presidentialism going "too far," not least becasue political parties were more "loose-tent" coalitions (especially among the Democrats) and less united. For better and worse, we now have much more ideologically united parties, at least as measured by the willingness of any particular member of Congress to stray too far from the party leadership. So what explains the dismaying abdication of independent judgment by House and Senate Republicans is all too easily predicted by the hard-wired features of our own constitutional structure. And, of course, one can explain the Democrats who voted for the bill largely on David Mayhew's argument that the desire to be re-elected takes precedence over almost any other value. From this perspective, probably the most disgusting vote was that of Frank Lauchtenberg, who is not up for re-election and who is sufficiently old that he should be thinking of "legacy." But perhaps he saw giving away his vote (and his conscience?) as a way of helping his highly vulnerable colleage, Sen. Menendez, who had more Mayhewian reasons for crossing the aisle.

If, as I have been arguing repeatedly, our system allowed Republicans to dump their party leader/president, I am confident that George W. Bush would join Margaret Thatcher (and, shortly, Tony Blair) on the dustbin of history even as another Republican (John McCain?) would take the helm. But that is not our system, with all sorts of psychological and political consequences. (I have, incidentally, no good answer for the "head of state" problem. I don't support reverting to a monarchy, nor can I easily imagine electing two "presidents," one as head of government, the other as ceremonial head of state. But surely we could stop playing "Hail to the Chief" and otherwise treating the president as quasi-royalty.)

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.

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