Balkinization  

Saturday, September 16, 2006

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

Brian Tamanaha

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

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

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

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

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

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

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

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

Marty Lederman

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

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

The key passage:

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

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

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

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

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

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

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

* * * *

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

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

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

How Texting can help prevent Pretexting

Ian Ayres

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

But how can we stop it from happening?

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

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

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

JB

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

Getting with "The Program": Clarity Through Obfuscation

Marty Lederman

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Friday, September 15, 2006

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

David Barron

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

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

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

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

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

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

JB

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

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

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

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

Marty Lederman

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

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

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

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

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

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

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

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

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

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

Nor is it about Guantanamo.

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

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

That is what this current legislative debate is about.

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

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

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

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

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

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

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

* * * *

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

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

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

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

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

Thursday, September 14, 2006

Article 48 and the U.S. Constitution

Sandy Levinson

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

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

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

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

JB

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

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

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

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

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

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

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

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

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

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

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


Wednesday, September 13, 2006

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

Brian Tamanaha

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

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

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

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

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

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

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

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

Will Congress Authorize Violations of the Geneva Conventions?

Marty Lederman

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, September 12, 2006

September 11 and American Politics, Five Years Later

JB

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

Then, suddenly, everything was different.

Tragedy. War. And a new political era.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


Monday, September 11, 2006

Third Draft of Warner-Graham Bill on Military Commissions

JB

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

On Stalin's (Torturous) "Alternative Set of Procedures"

Brian Tamanaha

Robert Conquest, a leading historian on the Soviet Union, a vociferous anti-communist, and a favorite of conservatives, wrote the following in his recent book, The Dragons of Expectation (labeled "a frontal assault on the pieties of the left"):

A central characteristic, seldom actually omitted from nonjudgmental accounts of Stalinism, was indeed torture. It was applied on a huge scale to produce a totally false picture of terrorism, sabotage, and espionage.

Even the ostensibly nonphysical methods used in 1936 are described by victims as both mentally and physically devastating. One man arrested briefly told me that the comparatively mild-sounding stoika, when a prisoner was kept standing against a wall for days, was hardly bearable. Torture is, one might say, a worse crime against humanity than killing.

A central theme in Conquest's book (and in his earlier books) is to point out the shockingly immoral behavior of the Soviet leadership, which was unparalleled in the West--a difference that leftist intellectuals infatuated with communism lost sight of, he claims. In the above passage, Conquest presents Stalin's willingness to inflict torture as a prime example of this difference.

Given his moral condemnation of torture, Conquest no doubt was relieved to hear President Bush utter these strong words in his speech last week:

I want to be absolutely clear with our people, and the world: The United States does not torture. It's against our laws, and it's against our values. I have not authorized it--and I will not authorize it. Last year, my administration worked with Senator John McCain, and I signed into law the Detaineee Treatment Act, which established the legal standards for detaineess wherever they are held. I support this act.


Skeptics point out that the Bush Administration fought the bill, and inserted a signing statement which appeared to detract (at least potentially) from the bill. Skeptics also note that in the same speech Bush insisted on the necessity to utilize what he called a lawful "alternative set of procedures," which he failed to detail, but which skeptics surmise includes actions that many people would consider "torture."

Let's take President Bush at his word. His above assertions clear up any ambiguity that might have been raised by the signing statement: Bush supports the Act and his administration will live up to its requirements. Any government officials who violate the terms of the Act will do so without his authorization, contrary to his explicit desire.

Here's a simple way to determine whether any of the "alternative set of procedures" constitute "torture:" check if any of the techniques on the list--whether physical or mental--were also utlized under Stalinism. By this standard, the hours-on-end standing position, and other similar stress positions, constitute torture and must not be done. To help provide information or to resolve close calls, Bush can consult Conquest (who he awarded the Presidential Medal of Freedom last year). Conquest, no soft liberal, knows torture when he sees it.

As Bush's statement indicates, and as Conquest insists, a repudiation of torture is one of the factors that hitherto has distinguished our government from immoral regimes.

Sunday, September 10, 2006

A looming crisis in the legitimacy of the US political order

Sandy Levinson

Already articles are appearing suggesting that widely predicted Democratic gains in the forthcoming elections may be vanishing, not least because of the success of the Bush Administration in terrifying the public about the ever-present "global war on terror" and demonizing the Democratic opposition only slightly less, if at all, than "Islamofascists" who are said to be the equal in evil to Hitler and Stalin. So imagine the following possibility: The Republicans retain control of the House by, say, 3-5 seats, all the results of egregiously partisan gerrymanders in Texas and Pennsylvania. And the Senate remains Republican by, say, a single vote, even though Santorum loses in Pennsylvania and Dewine loses in Ohio.

That result would produce the following phenomenon: We would be governed by a President who enjoys notably less than the support of the majority, as measured in every public opinion poll for months. Indeed, a majority of the country believes that he is untrustworthy. The House would be Republican only because of rank manipulation by which, in Sam Issacharoff's and Alex Alienikoff's great analysis, representatives pick their voters rather than the other way around, with the minority in gerrymandered districts serving the function of "filler people" whose only role is to count toward the "equal population" mantra of Reynolds v. Sims, though not otherwise to have any real possibility of casting a meaningful ballot. And the Senate would remain Republican only because of the absurd and indefensible malapportionment that gives Wyoming and California the same number of votes even though California has approximately 70 times the population. Indeed, even as we speak, the 55 Republican senators were elected with approximately 3,000,000 fewer votes than the 44 Democrats over the last three election cycles. And the 44 Democrats represent states with a total population larger than the states represented by the 55 Republicans (including splitting the population in states currently represented by one Democrat and one Republican). If Santorum and Dewine lose, this disproportion in favor of the Democrats will, of course, be all the greater.

The Republicans would no doubt claim a popular "mandate" for their polices, both foreign and domestic, should they retain control of Congress in the circumstances described. It is up to Democrats (and democrats) to undercut any such claims. At lest some Democrats (and democrats) should try to educate the public in the reality that the United States Constitution (through the Senate and the practical operation of the electoral college much of the time), plus the reality of partisan gerrymandering (which, of course, has also been engaged in by Democrats when they had the chance), severely limits the sense in which the United States can be said to be democratic. This is true, alas, even when elections are free and all the votes are counted--something that may no longer be taken for granted if some of the more ominous concerns about electronic voting turn out to be true.

Much of the time, the "democracy deficit" within the United States may not be too consequential. It is very difficult to make that argument at present. In any case, if Democrats win a majority of the votes cast for the Senate, and if they lose the House only because of the perversions of Republican gerrymandering, they should claim and act in every sense possible as the "majority party" they will be and point out, at every turn, that any claim by the contrary by the minority Republican Party is simply and utterly false. If, of course, the Republicans actually get more votes in Senate elections and carry the House without relying on gerrymandered districts, then they will indeed be able to claim whatever legitimacy is attached to majority rule. The main point is that no one should confuse the outcomes of the House and Senate races, as such, with national democracy even if, perchance, each of the local elections meets democratic criteria.

Online Legal Scholarship: Thoughts Provoked by Jack's Essay

David Luban

Jack Balkin has posted a link to his recent essay (in the Yale Law Journal Pocket Part) on online legal scholarship. This post follows up on Jack's essay.

He writes: "The wrong question to focus on is whether hiring committees should count blogging as legal scholarship. The right question is how we should re-imagine our vocation as professors of law in light of new online media." Agreed. In the meantime, though, the question persists whether hiring committees count (not: should count) blogging as legal scholarship. That raises an urgent question for legal academic candidates at both the hiring and promotion level: where do I put my energy, given that I have only a finite amount of time to do legal thinking and writing? How do I budget that time? True, the blogging/law-review writing game is not zero-sum, because ideas developed through blogging can turn into articles, and fragments of arguments that eventually will go into articles can be vetted in the blogosphere. That said, the time-budgeting question is a real one. It’s a question of overwhelming importance to any law candidate attracted to the blogosphere, and to any hiring committee trying to use the previous writing of a candidate as a predictor of future scholarly promise.

To see the implication of this concern, let me turn to a question Jack's piece raises. Jack argues that the blogosphere and SSRN route around law review editors. What, in that case, is the remaining function of law review editors? They have always served the twin functions of gatekeepers (picking the articles to be published) and accuracy-guarantors – or, less politely, footnote-fixers. To a limited extent, their gatekeeper function makes them agenda setters – limited, because they have influence only over their own journal and only for one year. If Jack is right, their role as gatekeepers and agenda setters will shrink dramatically.

Now, to some in the legal academy, this is good news. These are the people who have always bridled at the idea that law students rather than peer reviewers should decide what counts as meritorious scholarship. I have never taken this problem seriously. Comparing the quality of articles in the top student-edited law reviews with the quality of articles in the top peer-reviewed philosophy journals (my own scholarly point of reference), I have never been able to detect superiority in the peer-reviewed philosophy journals. By and large, I think that law review editors – at least at the top law reviews, where the editors have an embarrassment of riches to choose from – have been pretty good gatekeepers.

But, if Jack is right that that role will shrink dramatically, law review editors will eventually be reduced to footnote-fixers; and, if the most urgent and timely doctrinal and normative issues get addressed through the blogosphere, law reviews will become repositories primarily of more theoretical articles that are a step removed from the pulse of legal events. Because law reviews inevitably impose a lengthy gap between article acceptance and publication, they will become best suited to articles that are not time-sensitive. I don’t think ambitious law students will find any of this an appealing prospect for what being a law review editor entails. Some law reviews will respond by becoming more like blogs – witness the Yale Law Journal Pocket Part. Others, becoming less attractive to ambitious law students, will staff themselves with less ambitious law students, and the result may be a downward spiral in quality, importance, and attractiveness of the law reviews, both to authors and to editors.

At that point, perhaps only a few years down the road, the question whether hiring committees should count blogging as legal scholarship might transmute into the question whether hiring committees should count law review articles as legal scholarship. If the best students and many scholars perceive the action shifting to cyberspace, law reviews will become less important repositories of at least one variety of scholarly ambition. Law reviews will concentrate on interdisciplinary, fancy-theoretical scholarship relatively disconnected from the flow of real-time political and legal events.

As Jack suggests, this may force to the forefront a question of identity for law professors: do we fancy ourselves public intellectuals, commentator-advisors to the political and policy worlds whose work has tangible impact; or do we fancy ourselves students of legal phenomena analyzing at a distance? Are we out of the cave or in the cave? Plato in his academy or Plato in Syracuse trying to advise King Dionysius?

I personally think that the role of Plato in his academy needs no apologies (and not only because Plato the policy advisor was a colossal flop). If it weren’t for Plato, nobody would remember Dionysius. Judge Edwards to the contrary, no scholar ever need be ashamed about writing articles that only other scholars find worthwhile. But I also think my view is in the distinct minority. The legal academy would by far rather advise the tyrant of Syracuse, especially if doing so generates a little glory as public intellectuals. Even without the glory, we would prefer that our work has practical effect; anyway, there are few Platos in the legal academy (as my colleague Robin West says, there are no geniuses in law), and most law professors may be right to think we make better kibbitzers than theoreticians.

If so, the heightened relevance of cyberspace really will entail the lesser relevance of law reviews – not only to the bench and bar, and not only to the public, but eventually to the career ambitions of legal academics. One long term effect may well be that the legal academy loses its infatuation with abstract or interdisciplinary work, together with its century-long ambition to attain intellectual parity with the sciences and liberal arts in the rest of the university. The legal academy may turn back to a more technical orientation toward law, leavened with the blogger’s ambition to influence public discourse. As Socrates says at the end of Plato's Apology (Jowett translation): "Which is better, God only knows." (Apologies to Plato.)

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