Monday, October 16, 2006

Scalia Issues a Threat? A Prediction? A Promise?

Brian Tamanaha

As is his wont, Justice Scalia issued several provocative comments this past weekend, reported by CNN:

Justice Antonin Scalia on Sunday defended some of his Supreme Court opinions, arguing that nothing in the Constitution supports abortion rights and the use of race in school admissions.

Scalia, a leading conservative voice on the high court, sparred in a one-hour televised debate with American Civil Liberties Union president Nadine Strossen. He said unelected judges have no place deciding politically charged questions when the Constitution is silent on those issues.

Arguing that liberal judges in the past improperly established new political rights such as abortion, Scalia warned, "Someday, you're going to get a very conservative Supreme Court and regret that approach."

"On controversial issues on stuff like homosexual rights, abortion, we debate with each other and persuade each other and vote on it either through representatives or a constitutional amendment," the Reagan appointee said.

"Whether it's good or bad is not my job. My job is simply to say if those things you find desirable are contained in the Constitution," he said.

Scalia's comments come as the Supreme Court this term will hear closely divided issues involving partial-birth abortion and school integration. They are expected to test the conservative impact of the court's two newest members, Chief Justice John Roberts and Samuel Alito.

Scalia, 70, has consistently voted to limit the use of race in school admissions and has called for the 1973 Roe v. Wade decision establishing a woman's right to abortion to be overruled. But his influence was often limited by moderate Sandra Day O'Connor, who cast deciding votes on those issues against him.

With O'Connor now retired and Alito succeeding her, Scalia -- whom President Bush passed up for chief justice -- will have new opportunities to sway his new colleagues and centrist Anthony Kennedy closer to his viewpoints.

During Sunday's debate, Scalia outlined his judicial philosophy of interpreting the Constitution according to its text, as understood at the time it was adopted. He reiterated that race has no place in school admissions, a viewpoint that put him on the losing side in 2003.

"The Constitution very clearly forbids discrimination on the basis of race," Scalia said in response to a question by moderator Pete Williams of NBC. "It doesn't seem to me to allow Michigan to say we think it's good to discriminate on the basis of race when you want to make sure everyone is exposed to different backgrounds. We cannot use race as the test of diversity."

This familiar fare from Scalia. What is perhaps different is the sense he exudes that he is no longer howling in a losing cause, but that, with the departure of Justice O'Connor and the additions of Justices Roberts and Alito, the balance may have finally shifted in his favor.

The following statement, in particular, smacks of a threat: "Someday, you're going to get a very conservative Supreme Court and regret that approach [of liberal justices using their power to implement liberal views]."

If Scalia, Roberts, and Alito remain true to their professed assertions about the proper judicial role, they will not engage in what Scalia accuses liberal justices of having done just because there is now a conservative majority. Tit for tat is not a theory of constitutional interpretation.

Now we will see whether conservative justices live up to their claims of judicial restraint and their promises to interpret the law without injecting their personal ideologies. It's hard to be optimistic.

Carl Schmitt and the Military Commissions Act of 2006

Scott Horton

"Sovereign is he who determines the exception.
"The exception is more interesting than the norm. The norm proves nothing, the exception proves everything; it confirms not only the rule, rather the rule's existence is dependent upon the exception. Through the exception the power of real life breaks the crust of a mechanism stultified by repetition."

- Carl Schmitt, Politische Theologie (1922)

In a few hours, George W. Bush will sign into law the Military Commission Act of 2006 (MCA), a piece of legislation which breaks with American legal tradition in some ominous ways. Most disturbing from the perspective of the legal profession are its termination of the writ of habeas corpus with respect to the claims of detainees and its sweeping grant to the Executive of rights to label persons enemy combatants and thereby leave them without legal rights which can be vindicated in courts. But the broader significance of this legislation is surely political. Its entire thrust is a massive channeling of power from the legislature and the courts to the Executive, a channeling which occurs just after the Supreme Court called the Executive on its trashing of both United States and international law governing armed conflict and on the eve of elections which pollsters suggest will produce a Congress which better reflects public attitudes - at this point, very sharply critical of the Executive.

In 1999, William Scheuerman wrote that "[t]he ghost of Carl Schmitt haunts political and legal debates... in the contemporary United States." (Carl Schmitt: The End of Law, p. 1). He made an interesting case for Schmitt's influence, acknowledging that it is "subterranean," and identifying in Joseph Schumpeter, Friedrich August von Hayek and Hans Morgenthau important intermediaries for Schmittian concepts received in the United States. But since September 11, 2001, the case has grown ever stronger and more direct. The MCA, for instance, is filled with echos of Weimar. It bears an uncanny similarity to the Ermächtigungsgesetz (Enabling Law) of March 23, 1933. Both seize upon terrorist threats and deeds as an emergency circumstance justifying a delegation of powers to the Executive, though the transfer of powers in the Enabling Law is vast in scope - dwarfing that of the MCA. On the other hand, the Enabling Law was also seen as a temporary measure, and thus incorporated a sunset provision (art. 7, providing for expiration of the act on April 1, 1937) which the MCA does not have. But both pieces of legislation have at their core the Schmittian notion of a state of exception, and in each case the exception appears to be exploited to drive a more generic change.

It is characteristic of Schmitt that he sees sovereignty not in terms of a monopoly of state power, indeed the right to use violence (the twin aspects of Gewalt) like Hegel or Max Weber, but rather in control over decisions. His understanding is fundamentally hierarchical and sharply distrustful of Anglo-American notions of checks and balances. On this point more than any other rests Schmitt's central thesis that much of modern political theory is essentially secularized theology. So for Schmitt the key for modifying the liberal-democratic Weimar Constitution rests in the state of exception, and indeed, the state of exception is ultimately no exception at all.

But the methodology that Schmitt foresees for implementation of the change is more elaborate. On this point his key writing surely is Staat, Bewegung, Volk - die Dreigliederung der politischen Einheit (1933) which can be read as a manual for the implementation of the National Socialist restructuring (Gleichschaltung) in the legal sector. His remarks about the role of the judiciary are telling. In the liberal democratic tradition, the role of the judge as the autonomous "bouche qui prononce les paroles de la loi" (Montesquieu) is axiomatic. However, Schmitt sees stilling the independent role of the judges as the key for conforming the legal process - judges as the "faithful implementers of the sovereign's will" must recognize the ultimate primacy of the Executive, and they must recognize that their autonomy is substantially curtailed from the Weimar period. Schmitt goes on to embrace the slogan of Roland Freisler, later the most infamous judge of the Volksgerichtshof, that Germany needed to "reform the judges, not its law." In the period following the passage of the Enabling Law, the process of Gleichschaltung within the legal profession was pursued on a number of simultaneous planes. At its apex surely was the ideological component which Schmitt himself provided. A bureaucratic component aimed to weed out judges and lawyers who were out of step with the new regime. And in the dark shadows, political functionaries such as the Sturmabteilung, pursued their thuggery, driving leading figures in the profession into retirement or emigration. This process was ultimately successful, producing a judiciary which was a disciplinary tool of the Executive, not an autonomous expositor of the law. As Otto Kirchheimer wrote in his authoritative study, The Legal Order of National Socialism (1941):

The Nazi judge... [was] accountable for the contents of his decision. Where the relentless pressure of the party through channels like the Schwarze Korps should prove of no avail... new organizational statutes provide ample facilities for discharging or transferring a recalcitrant judge. The judiciary is entitled to have and express opinions of its own only in those cases where it does not act as a kind of common executive organ to the combined ruling classes.

This result is difficult to distinguish from the model that Schmitt prescribed.

The events of the Weimar endphase find a fainter, but nevertheless distinct echo in the United States in recent years. It is remarkable that one of the first public statements to be made by an administration official in the wake of passage of the MCA was a "warning" issued by Attorney General Alberto Gonzales to sitting federal judges. "A proper sense of judicial humility requires judges to keep in mind the institutional limitations of the judiciary and the duties expressly assigned by the Constitution to the more politically accountable branches," Gonzales stated to a gathering of judges. The inescapable message being sent was to warn judges from taking any step to interfere with Bush's policies addressing detainees in the war on terror, policies largely crafted under the supervision of Gonzales. But the provocative nature of Gonzales' remarks becomes apparent when we consider that these are the very policies which the Supreme Court determined to be unlawful in its opinion in Hamdan.

These threats, repeatedly disseminated in "polite" form by Gonzales and others, were underscored through far cruder political discourse. The Family Research Council lead by James Dobson organized a series of events called "Justice Sunday" at which the federal judiciary was attacked and its total obeisance to the rule of the Bush Administration was demanded. These events attracted a broad array of senior Republican officials, including Majority Leader Frist, and the Administration's support to the functions was manifest. In the words of former Republican House Leader Dick Armey, the principal organizers of these events were "a band of thugs" and "nasty bullies." As Armey stated with reference to the Terri Schiavo affair, which also entailed broad attacks on the judiciary and was linked with the Justice Sunday events, "That was pure, blatant pandering to James Dobson. That’s all it was. It was silly, stupid, and irresponsible. Nobody serious about the Constitution would do that. But the question was will this energize our Christian conservative base for the next election.” But in addition to the electoral agenda, another aim was completely clear: the intimidation of judges.

The reordering of the legal branch takes other forms. As is regularly discussed in this space, the process of selecting federal judges is increasingly subject to ideological litmus tests, which these days seem to doom the chances of a mainstream Republican to achieve appointment to the bench (other than as a courtesy appointment in a Democratic administration). As the Boston Globe has reported, the Department of Justice itself has witnessed an increasing process of politicization of hiring, affecting the Civil Rights Division, the Office of Legal Counsel, Office of Legal Policy, and other politically sensitive sections. Under the Bush Administration, even the Criminal Division has developed into a political flash point through its tight connections with the torture issue - much of which has not - yet - been aired in the press. There seems little doubt that the appointment of Alice Fisher to head this division occurred as a result of her close personal connection with torture and torture impunity issues, for instance.

Obviously, the political ideologies that are in play are broadly different. We should recall that apart from his Nazi flirtation, Schmitt's thinking is authoritarian but not necessarily fascist. Indeed, Schmitt urged President von Hindenburg to ban both the Nazi and Communist Parties, and discovery of this fact led to Schmitt's sudden purge from a position of confidence in the Nazi administration. Schmitt's own political thought is strongly Catholic in its orientation and can easily be related to a series of continental European throne-and-altar conservatives in a line running from Joseph de Maistre and Jean Domat. But it is not so much Schmitt's political philosophy that seems relevant to current developments in the United States as his critique of liberal constitutionalism, and better still, the set of tools he has crafted for the purpose of dismantling liberal democratic institutions. It is hard to escape the notion that this toolbox has been studied very carefully by current actors on the American political stage. But it is also difficult to validate this suspicion with objective evidence.

If the elections on November 7 proceed as the polls now suggest, the stage will be set for events quite different from the years following the Enabling Law. It appears likely that a more assertive, opposition-oriented Congress will try to draw back on the transfer of power to the Executive. This new Congress will very likely use the committee hearing process to probe the dark secrets of the first six years of the Bush Administration in a way we have not seen up to this point. Further it is clear that the MCA will be challenged as an unconstitutional termination of habeas corpus, a proposition which Hamdan suggests may get very favorable reception in the courts. Moreover, the Republican claim that the assumption of an imperial Executive authority is legitimized by the ballot box would then also be less plausible. All of this suggests that unlike 1933, the future assertions of rule by exception will be steadily more tenuous. But this analysis also underscores the tremendous importance of the November 7 elections. In a very real sense, this election will determine not merely the identity of various representatives to Congress, but the constitutional structure of the American Government going forward. In that respect, it is unlike any other election in my lifetime.

Hamdan's Lawyer Denied Promotion: "Quite a Coincidence"

Brian Tamanaha

MSNBC reported on Saturday that Lt. Cmdr. Charles Swift, the lawyer for Salim Ahmed Hamdan, was notified two weeks after the Supreme Court ruled in favor of his client that he would not be promoted to commander. His supervisor said Swift "has obviously done an exceptional job" and noted that the denial of his promotion soon after the Supreme Court ruling was "quite a coincidence." Pursuant to the military's "up or out" system, Swift will retire next March or April.

Although Swift did not explicitly attribute the denial of his promotion to retaliation for his vigorous and successful representation of his client, he did say that he would have defended Hamdan "even if he had known it would cut short his Navy career."

The message sent to others in Swift's situation is unambiguous: don't cross the government.

This is how we treat military lawyers who do their duty to their clients and to their country.

There are many casualties and heroes in the ongoing war. Lt. Commander Swift is one of them. He deserves our gratitude for sacrificing his military career to fight for our collective ideals.

Saturday, October 14, 2006

An American Sentenced to Death in Iraq

Scott Horton

"Logic may indeed be unshakeable, but it cannot withstand a man who is determined to live. Where was the judge he had never seen? Where was the High Court he had never reached? He raised his hands and spread out all his fingers. But the hands of one of the men closed round his throat, just as the other drove the knife deep into his heart and turned it twice."

- Franz Kafka, Der Process, chapter 10 (1925)

Today the Associated Press reports the case of an American citizen, Mohammed Munaf, seized by US Forces in Iraq in 2005. Munaf was hauled before the Central Criminal Court of Iraq, and sentenced to death following a proceeding that appears to have been extracted from a novel by Franz Kafka. By far the most distressing aspect of the entire affair is the role played in it by US Forces. "[T]wo U.S. military officials - including a soldier claiming to represent the Romanian Embassy - demanded that Munaf be found 'guilty and should be executed,' the papers say."

Yesterday afternoon I spoke with one of Munaf's American lawyers, and in the evening I discussed the case with one of the Iraqi lawyers who handled it. The judge, he said, had at a prior hearing informed defense counsel that he had reviewed the entire file and had reached a decision to dismiss the charges. "There is no material evidence against your client," he was quoted as stating. When two US officers appeared at the trial date with the prisoner, they reacted with anger when told of the Court's decision – and made clear it was "unacceptable." One of these US officers purported to speak on behalf of the Romanian Embassy, which, he said "demanded the death penalty." (The Government of Romania has since stated both that it had no authorized representative at the hearing and that it did not demand the death penalty). They then insisted upon and got an ex parte meeting with the judge - from which the defendant and his lawyers were excluded. Afterwards an ashen-faced judge emerged, returned to his court and proceeded to sentence the American to death. No evidence was taken; no trial was conducted. The sentence was entered on the basis of a demand by the two American officers that their fellow countryman be put to death.

Further details of this amazing development are found in papers filed by the Brennan Center in an emergency application to the United States District Court for the District of Columbia.

On Tuesday, the President intends to sign the Military Commissions Act of 2006, which purports to terminate the writ of habeas corpus for US detainees overseas. In so doing, he may well be confirming a death sentence for Mohammed Manaf. This case is shocking because it deals with an American citizen who is being stripped of his rights under a foreign legal process, including the right to a trial, at the insistence of US Forces. It provides strong grounds to question what US Forces are doing in the Central Criminal Court of Iraq. As a practitioner in that court, I can only say that none of the facts detailed in the Brennan Center's papers or described by the defendant's attorney strike me as surprising. They are consistent with things I observed with my own eyes in Baghdad in the spring of this year.

Friday, October 13, 2006

Be very very afraid, and then vote!


This Wall Street Journal article summarizes findings on increased fear in the population and voting behavior:
A growing number of studies offer clues as to how terrorism and other deadly events affect people's voting decisions. The latest research shows that because such violent political acts are brutal reminders of death, they make conservatives, but not liberals, more hostile toward those perceived as different, and more supportive of extreme military policies, according to a study in April in Personality and Social Psychology Bulletin.

For 20 years, researchers have been exploring how people manage the fear engendered by intimations of mortality. Reminded of the inevitability of their own death (which happens to a lesser degree by merely walking past a funeral parlor), people try to quench or at least manage the resulting "existential terror" in several ways. They become more certain of their worldview or faith. They conform more closely to the norms of their society. They show greater reverence for symbols of their society, such as flags and crucifixes.

All of these make people feel more secure and, crucially, a part of something larger -- something that will outlive them.

Building up your own worldview requires disparaging (even unconsciously) that of others. If beliefs that contradict yours have any worth, then by definition they call into question the absolute validity of your own. The result is stronger feelings of hostility toward those with different values and beliefs.

This "worldview defense," says psychology researcher Sheldon Solomon of Skidmore College, "reduces the terror that reminders of your own death bring." These results have been replicated in some 300 lab experiments, including in cultures with very different ideas about an afterlife.

Which brings us back to the effect on voters of a terrorist attack and its brutal reminders of mortality. Although some voters would feel betrayed by incumbents who failed to protect them, researchers say, these days that trend would more likely be swamped by a surge toward candidates perceived as hawks on national security.

"We feel that unconscious thoughts about death do influence people's voting decisions, especially for folks who are not strongly committed to a candidate," says Prof. Solomon, expressing a consensus of those who have studied terrorism and voting behavior.

Note that the same mechanism may make committed liberals more determined to preserve civil liberties and egalitarian policies, because those are their most basic beliefs. Thus, terror and fear may not cause a uniform shift of beliefs toward militarism and xenophobia but rather increased polarization, with a minority holding on to strongly liberal views.

This account meshes with much of post 9-11 politics and it vindicates the logic of the Bush/Rove political strategy of polarization. As I argued in this op-ed written shortly after the 2004 election, the 2004 campaign was successfully waged on issues of fear. Note that if the research cited above is correct, making people with traditional values afraid may also make them more hostile to homosexuality and other forms of cultural permissiveness, because they will cling to their worldviews ever more fervently. Hence the one two punch of the War on Terror and gay marriage was a potent combination in the 2004 campaign for a key set of voters, the so-called "values voters."

It is an interesting fact that the September 11th attacks changed the key issues of American politics but did not remedy the country's polarization. If anything, political polarization become even more enhanced, and the most extreme conservative commentators have felt free in the current political climate to accuse liberals of destroying the country, endangering it, and even being traitors.

But all things must pass. The United States went through other periods of terror during the Red Scare and the McCarthy Era. It is worth noting that during the Cold War, when Americans were afraid of something much worse than suicide bombings-- thermonuclear annihilation-- the country eventually became much freer, with greater equality and greater respect for civil liberties. Although politicians can maintain political support through fear, they can't do so forever.

That does not mean, however, that they won't continue to try.

Thursday, October 12, 2006

Our Ailing Legal Culture

Brian Tamanaha

Our contemporary legal culture is ailing. Nasty ideological battles over federal judicial appointments have become the norm. Millions of dollars flow into state judicial elections in an effort to seat desired judges, who in turn render decisions that benefit their contributors. Members of Congress and their staffs accept money and favors (and promises of future employment) from lobbyists—reportedly over $2 billion a year—with the expectation of the givers that favorable legislation will result. Cause litigation firms on the left and the right engage in rancorous legal fights around the nation on a range of subjects, seeking to further their agendas, from teaching creationism, to overturning SEC regulations, to fighting affirmative action, to promoting (or opposing) gay marriage. The highest ranking lawyers in the federal government manipulate legal analysis to provide legal cover for torture. Prominent corporate lawyers are under indictment or investigation for constructing illegal tax shelters or for kickbacks in securities litigation, and have been implicated in various corporate frauds or other dubious activities.

These various situations, and many others, have a common link: everyone involved sees and treats law as an instrument to advance their ends. Law as a Means to an End traces the emergence and spread of the instrumental view of law in the United States over the past two centuries.

Law has not always been understood in consummately instrumental terms--that is, purely as a means to an end. Up through the nineteenth century, the law was portrayed by the legal elite to have a built in content and integrity, comprised of natural principles, or of immanent community norms, or of the logical and inherent requirements of objective legal concepts. Law was not thought to be an empty vessel that could be declared at will or filled in with any content whatsoever.

Beginning with Bentham and von Jhering, and taken further by Holmes, Pound, and the Legal Realists, reformers challenged this centuries-old view, arguing that law is an instrument to serve the social good.

In the course of the twentieth century, this view took hold, but with a twist. The instrumental view of law swept the legal culture, while people lost faith in the notion of the social good—either no longer believing that there is a common social good, or that we can ever agree upon what it is.

A pervasively held instrumental view of law in a context of sharp group-based disagreement leads to a Hobbesean struggle of all-against-all within the legal order and over the legal apparatus itself. In one arena after another, individuals and groups attempt to seize control of the law and use it as an instrument to advance their own or their groups’ agendas or interests—wielding the law as a coercive weapon against others.

One final note: readers of this post may object that law has always been seen and utilized instrumentally, regardless of claims to the contrary by the legal elite or by lawyers, and that there have always been battles to control the power of the law and wield it against others. This reaction is correct, as I also show in the book. But it is a mistake to conclude from this that the shift to a pervasively instrumental view of law within the legal culture has had no real consequences. A major shift in prevailing ideas inevitably has implications for action, many of them unanticipated.

A bit more detail on the book, for anyone interested, can be found at this PrawfsBlawg post.

Harvard Law School's Curriculum Reform Bucks a Trend


One interesting feature of Harvard Law School's first-year curriculum reform initiative is that, while it purports to make legal education more closely match the needs of first year law students, it moves against longer term trends in legal education that made the curriculum conform to the needs and interests of law professors.

As legal scholarship became increasingly specialized and interdisciplinary, it consumed an increasing amount of time and attention of law professors, particularly the most ambitious professors seeking to make a name for themselves for their scholarship.

As a result, many law professors found that teaching traditional subjects that were not the primary focus of their scholarship became a burden. Because research and writing increasingly became the demarcators of status in the profession, this created ever greater pressures for the law school curriculum to match more closely what law professors were writing and studying in their research. Hence the proliferation of seminars on the one hand, and specialized upper level courses on the other.

This meant, among other things, that there were incentives for the most ambitious professors to spend less time teaching first year subjects, and, when they taught them, to spend very little time working on them or preparing for them. This tended to complicate hiring practices. For each first year required course, a law school had to make sure that there were a number of faculty who could teach it in any given year, given leaves and desires to shirk responsibility. And the larger the student body in the law school, the more slots the school had to reserve for first year teachers.

In other parts of the university, introductory courses are often taught by untenured professors, lecturers, or adjuncts. Most of these would not get tenure or even be considered for tenure, so there was always a fresh supply of new people to teach the courses that senior scholars didn't want to teach. But in law schools, most assistant professors still get tenure, and senior scholars must continually be recruited to teach the first year courses. Some people, like myself, enjoy teaching first year courses, but many others don't, regarding it as a nuisance that detracts from their scholarly responsibilities.

One way that Yale Law School solved the problem was to reduce the number of required first year courses-- there are now only four-- put them all in the first semester, and make Constitutional Law a required first year course. The result was that Yale could hire as many people who teach Con Law as it wanted, because they could take turns teaching first years.

And this brings me to Harvard's new initiative. Harvard already has to devote a very large number of professors' teaching assignments to the first year, precisely because the student body is so large. By adding a new set of required first year courses to the traditional ones, the school must find additional professors to teach these courses as well. If the new courses lie in senior professors' research interests, there is no problem. Thus, one of the new courses is International law, a field that increasingly attracts new talent. But if the new courses don't correspond to many professors' primary research interests, they create staffing problems. Many senior professors would rather teach something that is closely related to their research. Thus, the school has to get a large number of professors-- including senior professors-- to construct and learn how to teach new courses that don't closely correspond to what they write about.

This can work, but it takes considerable and sustained effort. You will have to (1) persuade senior faculty to divert time and resources away from their research interests and keep them involved and interested in the new courses, (2) hire new faculty who are devoted to working on the new courses, (3) substitute adjuncts or visiting faculty, or (4) use untenured faculty with little or no expectation of tenure.

Adding International Law to the first year curriculum is the most promising reform Harvard has instituted and the one most likely to succeed in the long run. The new course on Problems and Methods will be the most difficult to keep going on a sustained basis, because it does not seem to match any particular professor's research interests. The course on the regulatory state will fall somewhere in the middle, unless it morphs into a standard course on legislation or administrative law; in that case it would be fairly easy to get a stable of professors who research in these areas and who can teach the course on a regular basis.

At the same time, for every course added to the first year, I would consider subtracting one. The more required courses a school offers, the more difficult it is to staff those courses, and the greater the restrictions the curriculum places on recruitment and hiring of faculty doing cutting edge scholarship.

In any case, we should assume that the law school will learn from experience and adjust accordingly. This is a bold experiment by Harvard Law School. Let's hope it turns out well.

Three Senators Respond to the President's Assertion of an Appointments Clause Prerogative

Marty Lederman

I noted last week that the President has asserted a constitutional authority to ignore (i.e., to misconstrue) a new statute that would require that the appointed administrator of FEMA have a demonstrated ability in and knowledge of emergency management and homeland security and not less than five years of executive leadership and management experience in the public or private sector.

Today, Senators Collins, Landrieu and Lieberman sent this letter to the President to complain about this and other constututional objections in the most recent signing statement.

According to Charlie Savage, the White House response to the Senators is, in effect: "I might pick a nominee who meets your preferred professional qualifications . . . but you can't make me."

Wednesday, October 11, 2006

A Modest Proposal

Mark Graber

I am wondering whether present practices concerning the war on terrorism might be more acceptable with one small modification. Given the enormous social benefits we are told justify torture and detaining people without judicial hearings, the probability is quite high, assuming that we do indeed reap those benefits, that this utilitarian calculus would still justify Bush Administration and Republican policies even if twice the number of persons were tortured or detained without judicial hearings. Surely, for example, in the ticking time bomb hypothetical it would not matter if we had to torture two persons (each of whom knew half the vital information).

For this reason, I propose we create a lottery as follows. Every American has one chance of being chosen. All Representatives and immediate family members have five chances of being chosen. The President and immediate family members have ten chances of being chosen. The lottery is conducted every time we engage in "rough interrogation" or detail a person without a judicial hearing. The "winner" of the lottery is treated exactly how we treat the suspected terrorist. After all, what patriotic American would not be willing to be waterboarded (assuming that is a word) for the cause. Such a lottery, one presumes, would guarantee as near as practically possible that "rough interrogation" and detention was last recourse options.

More than half a century ago, Justice Jackson observed that "nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected." Maybe this explains why while Americans are very upset that a few thousand American soldiers have been killed in Iraq, we not care all that much how many Iraqi children and civilians are killed in this dubious effort to make us feel safer. Perhaps the above suggestion might prove useful in this endeavor.

Misplaced Priorities?

Marty Lederman

In a comment to my post below about the terrible devastation in Iraq, my colleague Mike Seidman quite rightly questions why the bloggers on this site have been so focused on other, less momentous questions. Mike writes:
Marty and Scott are right about this, but it's not just the media that have things out of proportion. Consider the tremendous amount of ink spilled by bloggers on this and other sites (well, actually "ink" is not quite the right word) on the issue of torture and detainee mistreatment. Yes, Bush administration policies on these matters are disgraceful, but perhaps several dozen people have been "coercively interrogated," while over half a million have been killed in a completely senseless war. Of course, the existence of a monstrous crime does not excuse lesser crimes, and the destruction produced by the overall war does not justify individual acts of brutality. Still, one has to ask why so much attention has been paid to relatively small matters when much larger evils are right before our eyes. Worse, the focus on torture coupled with silence about the overall slaughter in Iraq implicitly sends a very disturbing message: that things would be just fine if only the war were "sanitized" by, e.g., obeying the Geneva Conventions. Well, they would not be just fine, and we need to say so.
Mike has, quite rightly, been pressing me and others on this point for well over a year now. Indeed, he has asked the same question of himself, since he has written very carefully and powerfully in the past two years on the question of torture.

We're collectively verging on 400 posts now about torture, Article II, electronic surveillance and the like, but we have spent far less time blogging, or complaining, about the enormous death tolls in Iraq, which are surely a far greater tragedy than all of the detention and interrogation abuses combined. Why is that?

I don't have time right now to offer a full, or satisfying, response. I'd be curious to hear from my fellow bloggers on the question. A modest beginning of an answer would be this: I don't have very much of value to add to the public discussion on the wisdom or morality of the Iraq war, or on questions of what we should do now that we're there; but I hope that I've been able to add something of value to the "torture debates," by virtue of my understanding of Executive lawyering and my study of the statutory and international-law issues on detention, interrogation, Geneva, etc. This doesn't make the torture question nearly as important as the question of whether we should have gone to war in Iraq (and the question of what we should do now that we've decimated the country). But I hope that it explains, in part, why I've limited my blogging to some topics rather than others.

Still, that doesn't quite explain why the torture question has captured our attention in a way that greater atrocities have not. For historical and contextual reasons, the notion that torture has become official U.S. policy -- after the U.S. had taken the lead for more than 200 years in the effort to eradicate and universally condemn at least this one discrete barbaric practice -- has had a powerful pull on many of us, despite the fact that in terms of sheer terror and devastation and tragedy, torture is barely a blip compared to what the U.S. and its allies and enemies have unleashed in Iraq.

Is Mike right? Are we too obsessed with process norms, and with compliance with long-established laws of war? Have we unduly fetishized Geneva? (Does international law generally paper over the horrors of war by pretending to bring it within manageable legal structures?) Does our "focus on torture coupled with silence about the overall slaughter in Iraq implicitly send a very disturbing message that things would be just fine if only the war were 'sanitized'"?


Marty Lederman

The following two stories get page 12 play in today's Washington Post; page 16 in the New York Times. I wonder whether they got any play at all in the nation's smaller newspapers, or on the evening news.

1. Study Claims Iraq's 'Excess' Death Toll Has Reached 655,000 ("A team of American and Iraqi epidemiologists estimates that 655,000 more people have died in Iraq since coalition forces arrived in March 2003 than would have died if the invasion had not occurred.") (NYTimes version here.)

2. 110 Bodies Found in Baghdad in 24 Hours ("Iraqi police found 50 bodies dumped across Baghdad on Tuesday, apparent victims of sectarian death squads, and a bombing at a bakery in the capital killed 10 people in the biggest single attack of the day. The discovery of the bodies, many tortured and all shot, brought to at least 110 the number found in Baghdad in the past two days, an Interior Ministry official said."). (NYTimes version here.)

Please note: This is not meant to suggest whether, when and how we should withdraw from Iraq -- surely there's a substantial risk these numbers would be even worse (and buried even farther back in our newspapers) if we did. It might even be argued that despite these horrific tragedies, the Iraq war was worth it in the long run (although I'm very skeptical that history will so judge). And I certainly do not mean to be suggesting any particular assignments of culpability for these deaths to the various actors in the war (although note that the Johns Hopkins study indicates that approximately 180,000 of the deaths may have been caused by coalition forces or airstrikes). On all of these questions, the readers of this blog will have their own views, to which there is little I can helpfully add.

It is merely to suggest that, for better or worse, our decisions and our conduct have resulted in suffering of an almost incalculable scale, but that we rarely even take note of it, let alone give it the attention it deserves. Imagine if hundreds of thousands of U.S. civilians had died in this war . . . . or is that almost literally unimaginable?

Tuesday, October 10, 2006

Fiasco at the New York Times

Sandy Levinson

During a speech delivered after receiving the Radcliffe Medal for 2006, in June of this year, Linda Greenhouse delivered a moving speech , titled "Bridge Over Troubled Waters," that was built around the fact that she had found herself uncharacteristically weeping at a reunion concern of Simon and Garfunkel. Why?

"It was a puzzling and disconcerting experience, and I worked hard in the ensuing days to figure it out. Finally, it came to me. Thinking back to my college days in those troubled and tumultuous late 1960’s, there were many things that divided my generation. For the men in particular, of course, it was what stance to take toward the draft—acquiescence, artful avoidance, or active resistance. For many of us, it was over how actively we should commit ourselves to the great causes of civil rights and the antiwar movement. (The women’s movement was barely on the horizon at that point.) I remember that in the spring of 1968, the editors of the Harvard Crimson almost came to blows over whether the paper should support Eugene McCarthy or Robert Kennedy for the Democratic presidential nomination.

Yet despite all these controversies, we were absolutely united in one conviction: the belief that in future decades, if the world lasted that long, when our turn came to run the country, we wouldn’t make the same mistakes. Our generation would do a better job. I cried that night in the Simon and Garfunkel concert out of the realization that my faith had been misplaced. We were not doing a better job. We had not learned from the old mistakes. Our generation had not proved to be the solution. We were the problem.

And of course my little crying jag occurred before we knew the worst of it, before it was clear the extent to which our government had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism. To say that these last years have been dispiriting is an understatement. I hope that today’s undergraduates are taking the same vow that we did then, and I hope for all our sakes that they get closer to fulfilling it than we did."

The speech addressed as well the many ways that things are indeed better since the 1960s, including the new opportunities available to women. Linda (who is a friend of mine) spoke of arguing with her mother that things are not so bad as she (her mother) thinks they are:

"I suppose that if I had to boil down my side of the argument with my mother to one thought, it would be that in my lifetime, I have seen. . . fences . . . lowered, with a corresponding increase in the opportunities to make and maintain connections across barriers that not so long ago were nearly impermeable. As I look toward the next chapter in my life, I feel a growing sense of obligation to reach across the absurd literal fence that some of our policy makers want to build on the Mexican border and to do what I can to help those whose only offense is to want to improve their lives."

The speech formed the basis of last Sunday's "public editor" column in the Times, headlined "Hazarding Personal Opinions in PUblic Can Be Hazardous for Journalists," taking Linda to task for these comments. He wrote as follows:

"The Times’s ethical guideline states that news staffers appearing on radio or television “should avoid expressing views that go beyond what they would be allowed to say in the paper.” It is obvious, I think, that the guideline also applies to other venues. And Bill Keller, the executive editor, made clear in an e-mail message to me that the standard applies to all Times journalists “when they speak in public.”

"It seems clear to me that Ms. Greenhouse stepped across that line during her speech. Times news articles are not supposed to contain opinion. A news article containing the phrase “the hijacking of public policy by religious fundamentalism” would get into the paper only as a direct quote from a source. The same would go for any news article reference to “the ridiculous actual barrier” on the Mexican border."

He noted that "Ms. Greenhouse told me she considers her remarks at Harvard to be “statements of fact” — not opinion — that would be allowed to appear in a Times news article."

There are many things that could be said. One is that this controversy links with other recent postings about how we should be speaking these days with regard to describing what is happening in our country. My own view is that the Greenhouse comments easily fall within "statements of fact." But even if there's a modicum of opinion in the word "absurd,"--though even there I think it meets the "fact" criterion if by "absurd" one simply means a policy that cannot possibly succeed in its professed objectives and, therefore, must be understood in other terms, such as, say, "relentless pandering to an increasing xenophobia that has also become part of contemporary American life"-- it strikes me as ridiculous that the Times--or at least the public editor--would believe that she has crossed some line that made her deserving of the rebuke in the column.

My tagline "Fiasco at the New York Times" is intended to have a double meaning. I think the column, and the failure of Bill Keller to tell the public editor that he's way out of line in his views--is a fiasco. But I also mean to allude to the book "Fiasco," written by one of the star reporters at the Washington Post. And one might also think of Bob Woodward's "State of Denial." I'm curious if the public editor would view the titles of both of these important books as violating the Times's guidelines because surely the White House is unhappy with the use of "fiasco" to describe its Iraq policy and its implementation and "State of Denial" to capture the disconnect with reality endemic in the Bush White House. Is it really the case that anyone not officially labeled a "columnist" must be completely neutered and left unable to offer, in a public speech, such obvious "statements of fact" as that "our government had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantanamo Bay, Abu Ghraib, Haditha, and other places around the world." Will the Times next start demanding that its reporters cease opining that a Holocaust occurred in Europe during the 1940s because, after all, there are those who deny it? (I presume this last sentence is hyperbolic, of course.)

Linda Greenhouse is not only a personal friend, but also, and far more importantly, a national treasure in her capacity as the Times Supreme Court reporter. I know of literally no one who is more knowledgeable about the contemporary Court, its personalities, and the complexities of the issues that come before it. She reads all of the briefs and does a remarkable job of educating not only the public, but many, many law professors about the often arcane matters that come before the Court. I know that her articles are literally the first things I turn to (besides Marty Lederman's analyses) when cases come down. Within the areas that I profess to know something about, I have never found her less than reliable. If anything, I have occasionally thought she erred on the side of caution in her portrayal of an opinion, since I tend sometimes to get hot under the color. I don't think, for example, that she would feel comfortable describing Clarence Thomas as having written a "Schmittian opinion" in Hamdi, though I believe that is a simple statement of fact. (I wish I felt light-hearted about this to add a :) at this point, but I see nothing amusing in Thomas's embrace of presidential authoritarianism (another statement of fact).)

I have no doubt that the Times feels itself under relentless attack from what is in fact a vast right-wing conspiracy that is intent on enforcing its own version of political correctness, which, of course, includes a duty always to speak courteously of everyone in power and refrain from any suggestions that they are traducing a variety of traditional American values. And I admire the Times for much of its recent reportage on Iraq and what Jack and I have taken to calling the National Surveillance State. But it is an awful testament to the fear and trembling that must be running through the Times that its editors seem unwilling to speak up and defend the propriety of the June speech. If they are willing in effect to accept the humiliation of one of their Pulitzer-prize winning stars, one can only wonder about the "chilling effect" on more junior reporters when asked to offer their candid opinions about what they see around them.

Curricular revision at Harvard Law School

Mark Tushnet

Jack asked me to blog about the new Harvard curriculum, and I’m happy to do so. My perspective is that of a new member of the Harvard faculty, and therefore someone unfamiliar with what alternatives were considered, modified, rejected, and so on, and that of someone who has participated in and observed curricular revision at other law schools.

I’ll discuss each of the three main components of the revision (and not say anything about the reduction of credits for “old” courses to make room for the new ones, or about the proposed coordination of the legal research and writing program with substantive courses): the course on “Problems and Theories,” the one on legislation, administration, and regulation (which I’ll call the Regulatory State course, for reasons that will appear), and the ones on international and comparative law.

The first observation, which many have made, is that none of the components is particularly innovative, in the sense that many law schools have added something like one of them to their curricula. If there’s anything distinctive about the Harvard revision, is that it does all three, and for the entire first year class rather than for one section (as at Georgetown), or as electives (as is true of the Regulatory State course in various incarnations). One can anticipate some transitional problems arising from the mandatory nature of the new courses.

The “Problems and Theories” course is, at present, the least well defined. I was reminded of a Sesame Street book I read to my children many years ago, titled something like “Grover Goes to the Museum.” Grover goes through one room, of blue things, another of tall things, and so on, until he reaches the last door, which opens on to the “Everything in the Whole Wide World” room. The “Problems and Theories” course is like that room – for now. The idea of using a problem approach in the first year is a good one, and widely viewed as such, and so is the idea of having some sort of course that serves as an overview of legal theory. I think it will take some careful planning to get this course into a shape that will be pedagogically effective – planning that ought to occur through released time for more than a handful of instructors before the course kicks in, and through regular reflection and revision in its first years. My guess would be that the course is not likely to be pedagogically successful for the first couple of years, a sort of shakedown period, and that after that it could work reasonably well.

The proposal for international and comparative law is pretty straight-forward, requiring students to take one of three courses with a focus on non-U.S. law. Again, the idea of exposing students to such material is now widespread, and the only interesting issue is whether the method should be, as the jargon goes, through the pervasive method, in which the material is introduced in every course, or through semi-specialized courses. Harvard’s chosen the latter, as, I believe, have most institutions who have dealt with the question – largely, I think, at most institutions for reasons associated with staffing and course coverage (instructors may not be comfortable with incorporating the non-U.S. materials in their courses, and may not know what to give up in terms of coverage to do so).

I have a particular interest in the Regulatory State course, having developed and taught such a course for a decade or so, and having just published (literally – the book reached the warehouse last week) a coursebook for use in the course (the description is available here ). As the website address indicates, one question about the course is the extent to which it is conceptualized as an introduction to administrative law or, alternatively, as the book’s title indicates, to the Regulatory and Administrative State. My sense is that the initial offerings at Harvard are going to incline toward the former, about which I’m skeptical. It’s one thing to teach administrative to second- and third-year students, another to first-year students who elect to take it in their second semester, and yet another to teach it as a required course to first semester students. The pedagogic challenges of teaching administrative law generally are well-known, and even if successfully overcome in an upper division or elective first-year course, may be more difficult in a mandatory first semester one, where the students will not have acquired some of the skills of close reading that those who teach in the second semester and after take for granted. My judgment has been that, pedagogically, it makes sense to incorporate more on the regulatory state than is typical in a basic administrative law course, and I’d guess that over the first years of implementing the Harvard curriculum there will be movement in that direction, even if not quite as far as Lisa Heinzerling and I have gone in our coursebook.

I doubt that anyone thinks that this curricular revision is equivalent to the adoption of the case method by Christopher Langdell, and one might see its limitations as a missed opportunity (sometimes I think that). But, achieving substantial curricular revision is a difficult task in any reasonably well-functioning law school, and the Harvard revision is promising enough to deserve some attention.

Torture and the Ticking Time Bomb

Stephen Griffin

I am amazed that scenarios such as the “ticking time bomb” (TTB) continue to be influential in the public debate over torture and interrogation. Kim Scheppele, who posts here, has a fine article tearing this scenario apart in “Hypothetical Torture in the ‘War on Terrorism’” to be published soon in the Journal of National Security Law & Policy. What disturbs me is the moral shallowness of this particular scenario. Defined in a common sense way, torture involves deliberate cruelty and, as such, should be absolutely prohibited.

I haven’t followed the blogosphere debate in detail, and I certainly hope I am not repeating anyone’s arguments in what follows. I noticed that Judge Richard Posner’s recently published book, Not a Suicide Pact (Oxford Press, 2006), relies on the TTB. If nothing else, Posner is well read, and thus if he uses the TTB without qualification it is likely there is not yet a set of well-known objections.

Posner begins his discussion of torture (in a chapter on “Rights Against Brutal Interrogation”) by employing a consequentialist calculus: “The value of the information sought depends in part on the menace to social welfare that has motivated the interrogation. If it is dire enough and the value of the information great enough, only a die-hard civil libertarian will deny the propriety of using a high degree of coercion to elicit the information. It might be the whereabouts of a kidnapping victim, the location of a ticking time bomb, the site of a biological weapon about to be deployed, the identity of key terrorist leaders, or the details of terrorist plots.” Posner’s subject is constitutional rights, not morality. But it is not only the “civil libertarian” who is interested in assuring humane treatment but everyone concerned with doing right and upholding basic moral values.

Posner then asserts that torture is often effective (more effective than other justifiable forms of interrogation), without any detailed review of the evidence (for an example of a detailed review, see Kim’s article). Posner thinks the ground of objection to torture is “revulsion” alone. He makes the useful comment that we should not confuse torture as a routine practice of dictators “with torture as an exceptional method of counterterrorist interrogation.” But he thinks public opinion is against torture: “Public efforts at justifying torture are doomed in the present climate of opinion. . .” Posner comments: “In the era of weapons of mass destruction, torture may sometimes be the only means of averting the death of thousands, even millions, of Americans. In such a situation it would be the moral and political duty of the president to authorize torture. It seems odd that people who accept this point nevertheless denounce torture with such ferocity.”

Posner thus relies explicitly on the TTB and similar scenarios. In understanding what is wrong with the TTB, we would do well to remind ourselves that it is a fantasy, and a fairly insidious one at that, judged by its ubiquity. The TTB is not a historical episode that we can examine in all its complexity and, as far as I know, nothing like it has ever happened (I am assuming that the TTB scenario involves a terrorist attack intended to kill at least thousands of people and is thus not about an “ordinary crime”). Instead, it is a hypothetical designed to score moral and policy points. That it has apparently scored so many is a disturbing testament to the lack of moral imagination in current public debate. For one is allowed, I believe, to counter fantastic hypotheticals with other hypotheticals.

In a democracy, I do not think we should ask our fellow citizens to sacrifice themselves or their principles for the public good unless we are, at least in principle, prepared to do the same. We may not be capable of serving in the military, but we should understand what that means before we ask our fellow citizens to fight for us. One of the signal characteristics of the TTB is that it treats the interrogators and their agency, their principles, as a black box. Who they are is unknown. But we should not assume “democracy for us, dictatorship for the interrogators.” The interrogators are our fellow citizens, part of our democracy, and it would be wrong to ask them to do something we were not prepared to do ourselves. Thus the democratic implication of the TTB is that we must steel ourselves to do something that is very unpleasant, but necessary.

So let us imagine ourselves in the interrogation room with the suspect. Evidence collected from his apartment certainly seems to indicate that he has knowledge of a looming terrorist attack, but he is begging for mercy. Too bad, isn’t it? All we have done is deprive him of sleep and clothing. And it is a bit cold. Unfortunately, he may be scared and cold, but he hasn’t given us one scrap of useful information. And we’re under some time pressure. Your superior has an idea. For better cover, the suspect was living with his family, a wife and young daughter. We’re detaining them in another room. The evidence seems to show the suspect cares for them. Perhaps if we brought them into the room? Your superior warns you to steel yourself for what comes next. Perhaps the suspect will respond to mere threats that they might be put to death in front of him. If threats are not enough, however, we must be prepared to do the worst. Of course, in some cultures there are acts regarded as worse than death. Your superior looks at you. Do you understand what he is talking about? Of course you do. You are experienced in the ways of the TTB, of doing what is necessary to elicit information under the terrible pressure of a deadline.

I really hope I don’t have to elaborate further this fantastic scenario of moral corruption. Our popular culture is full of faux scenarios of torture and cruelty. Just check out your local video rental store. What’s amazing about the TTB is that it is taken to be “real,” a serious matter for public debate. But it’s no more real than my scenario, a Tom Clancy novel of military adventure or a superhero comic.

The TTB counts on eliciting a certain sort of response. Of course, “the president would have to authorize torture” to prevent millions from dying. But surely it puts a slightly different spin on the situation to imagine that you are the one responsible for making sure the interrogation is effective. And you will have to live with the consequences if you turn out to be wrong. What wouldn’t you do to prevent millions from dying? Well, I wouldn’t engage in torture, child abuse, murder, rape and a whole long list of morally corrupt acts. And I’m willing to bet you wouldn’t either. Scenarios like the TTB are well designed to cloud our reason and judgment. For that reason, we should avoid them and concentrate on the ways in which we can realistically prevent terrorist attacks.

I almost forgot. After you finish following orders and torturing the suspect, it turns out he really didn’t know anything. That’s the way almost all of these scenarios end, isn’t it?

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?

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