The Truth About Our Institutions

JB

[This essay, written in response to Judge Richard Posner's defense of limiting civil liberies in wartime, originally appeared in The Responsive Community, October 2002.]

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Judge Posner sees the question of civil liberties as a simple balancing of a "public-safety interest" and a "liberty interest" ["The Truth about Our Liberties," Summer 2002]. He insists that it is "common sense" that we should surrender rights given the situation we now face. But he neglects the crucial question of incentives, a strange omission for a scholar who has spent much of his distinguished career reminding us of their importance.

The issue before us today is not simply whether civil liberties should be curtailed, but whether executive officials should be given increased power without increased accountability. Institutions, and in particular government institutions, have inherent incentives to try to increase their authority while decreasing their accountability. It is no accident that the present administration has simultaneously sought greater enforcement powers, promoted secrecy vigorously even in areas unrelated to national defense, and attempted to make as much law as possible without congressional consultation. And it is no accident that the same administration has attempted to justify its secrecy, its consolidation of power, and its unilateralism by manipulating a climate of free-floating fear.

Power without accountability leads to arrogance and corruption, and these lead to errors of judgment. Government officials are agents of the people, and like all those who wield power on behalf of others, they have natural incentives to abuse their authority if there are not sufficient checks and monitoring devices. We have seen this in the recent corporate scandals, where lack of managerial accountability led inevitably to fraud, self-dealing, and mismanagement. An administration composed largely of businessmen is unlikely to be any more impervious to the law of bad incentives.

When government officials act in secret, when they arrest individuals without disclosing their identities or hold them indefinitely and deny their right to an attorney or to judicial review, they make it easier to cover up their mistakes. And when government officials are utterly convinced of their rectitude and view others as mere hindrances to the pursuit of the nation's interests, they are more likely to succumb to the perils of groupthink, self-delusion, and hubris. This administration has been particularly emphatic about its sense of moral certainty and about the dubious patriotism of those who dare criticize it. That should be a warning sign to anyone.

Moreover, the notion that "we" must surrender our civil liberties to preserve our safety glosses over the fact that the burden of deprivation is not evenly distributed. Judge Posner will not be rounded up secretly and held without access to counsel. The brunt of the nation's fears will be borne by others. Governments tend to overreach against those who have least power to object–hence the blanket closing of immigration hearings, the secret roundup of aliens, and the indefinite detention of Muslims. Institutional incentives lead governments to hassle not the most dangerous but those most accessible to hassling and those the public cares least about.

Civil liberties and democratic accountability might seem rather inefficient means of governance, but they have considerable advantages. Forcing government officials to explain and justify their actions to Congress and to an impartial judiciary keeps them grounded and honest. To be sure, civil liberties do not exist merely to secure democratic accountability; that is why increased accountability does not always justify increased power. The government should not be allowed to round up Muslim citizens for indefinite detention even if Congress and the voters approved it. But weakening individual rights eliminates a crucial source of restraint on executive power, and unrestrained power usually leads to arrogance and bad judgment. Thus we shouldn't assume that maintaining civil rights and democratic accountability necessarily decreases our safety. To the contrary, it may secure better decision making and greater security in the long run. Suppression leads to fear, fear leads to hatred, and hatred leads to violence and instability. Unwise attacks on other countries may provoke countermeasures that harm our own citizenry. A government untethered from the checks and balances that individual rights and democracy provide may make serious errors of judgment that lead to more deaths and more human suffering, both for our own people and for people in other lands.

Emergencies create dangers, but they also create possibilities for amassing power. When the perils we face are, in Judge Posner's words, "diffuse" and "shadowy," those in power will ask for as much as they can get, including prerogatives they sought long before the emergency appeared. Yet it is precisely when the threat is most uncertain and diffuse that the balance between liberty and security that Judge Posner celebrates becomes hardest to fathom and the problems of overreaction and opportunism become greatest. For pragmatic reasons, then, it is best to require the strongest showing before the mechanisms of accountability are dismantled and the executive is given free rein to arrest, incarcerate, and spy upon the people at will.

It might be objected that the balance should be struck differently in times of emergency, as we face now. But we have no idea when this state of danger will end, or when the war on terrorism will be concluded. The Cold War spanned nearly half a century; what we do now under the name of temporary necessity is very likely to become business as usual. Other nations have not had much success with the declaration of emergency powers. By removing the safeguards of accountability they have often spiraled into greater and greater acts of arbitrariness and tyranny.

Judge Posner insists that we should not be concerned that officials will "exaggerate dangers to the nation's security," because "the lesson of history" points in the opposite direction. "It is because officials have repeatedly and disastrously underestimated these dangers," Posner asserts, "that our history is as violent as it is." He offers as examples Southern secession, Pearl Harbor, Soviet espionage during the Cold War, urban rioting in the 1960s, the Tet Offensive, and the Iranian revolution, as well as September 11. But Judge Posner does not seriously contend that these episodes arose because of too much protection for civil liberties. There is no evidence that Southern secession was caused by an excess of civil liberties–Southern states held human beings in slavery, ruthlessly enforced the rights of slaveowners, and regularly censored the speech of those who disagreed with their policies. The urban riots of the 1960s were not caused by ten years of civil rights progress, but by three hundred years of racial oppression. Our lack of preparedness for Pearl Harbor resulted from failures of diplomatic and military intelligence overseas, not too many writs of habeas corpus or an overindulgent constabulary. No one thinks that Miranda v. Arizona caused the Tet Offensive or the Iranian revolution. The problem of domestic espionage during the Cold War began well before the great civil liberties innovations of the Warren Court, so it can hardly be blamed on civil libertarians.

Posner's argument overlooks the fact that government officials might systematically overestimate the dangers that come from accountability and civil liberties–because accountability and civil liberties interfere with their power–while systematically underestimating dangers to the nation that arise from other sources and causes. Indeed, this seems to be the real lesson of our history. We should not blame civil liberties for our lack of preparedness, but we can blame officials for routinely using threats of emergency as an excuse to curtail domestic civil liberties. Because of the fear of blacks, Southern states wreaked havoc on the rights of Americans, black and white. Because of a racist suspicion of a Japanese fifth column, our country created its own set of concentration camps. Because of the fear of Communism, the lives and fortunes of many good people were destroyed in an orgy of hysteria. And all of this was done in the name of emergency, in the name of America, in the name of protecting our way of life.

Like Judge Posner, I consider myself a pragmatist, one who, in his words, regards law as "a human creation rather than a divine gift." I think his views insufficiently pragmatic, for he fails to recognize that our institutions will rot and decay without the checks and balances that keep us a free society. He worries about the mysticism of civil liberties. I worry about the mysticism of authority.
Posted 10:35 AM by JB [link] (4) comments

Murky's Law

Marty Lederman

A detailed article in today's Washington Post about the CIA's extraordinary renditions program in Europe quotes this justification from John Bellinger, State Department Legal Advisor: "I'd say that many European government officials and academics acknowledge now that there is a legal murkiness that applies to international terrorism."

Legal murkiness? Gosh, I wonder why that is?

It wouldn't happen to have anything to do, would it, with a program of state kidnapping on the streets of Europe, where the detainees are flown to Syria or Egypt or some other place that offers "assurances" that they will not be tortured?

Or with the official (apparently non-murky) position of the United States government that the prohibition on rendition in the Convention Against Torture does not apply to transfers from one foreign nation to another?

Or is the source of the legal murkiness, perhaps, that the United States has been quietly operating under the legal understanding, recently and finally articulated by Mr. Bellinger himself, that the Convention Against Torture simply doesn't apply at all to the conflict against Al Qaeda, which is instead governed by the laws of armed conflict? (Oh, and by the way, the laws of armed conflict just so happen not to provide any protections to Al Qaeda suspects at all, according to the Bush Administration pre-Hamdan. Fancy that! -- they fall into a strange, inexplicable gap between the Torture Convention and the Geneva Conventions. How murky. How convenient.)

Seeking the source of the murkiness, Mr. Bellinger? Look in the mirror.
Posted 8:59 AM by Marty Lederman [link] (17) comments

A Duty to Remember, and Speak

Scott Horton

"The most savage and numerous crimes planned and committed by the Nazis were those against the Jews. Those in Germany in 1933 numbered about 500,000. In the aggregate, they had made for themselves positions which excited envy, and had accumulated properties which excited the avarice of the Nazis. They were few enough to be helpless and numerous enough to be held up as a menace.

"Let there be no misunderstanding about the charge of persecuting Jews. What we charge against these defendants is not those arrogances and pretensions which frequently accompany the intermingling of different peoples and which are likely, despite the honest efforts of government, to produce regrettable crimes and convulsions. It is my purpose to show a plan and design, to which all Nazis were fanatically committed, to annihilate all Jewish people. These crimes were organized and promoted by the Party leadership, executed and protected by the Nazi officials, as we shall convince you by written orders of the Secret State Police itself.

"The persecution of the Jews was a continuous and deliberate policy. It was a policy directed against other nations as well as against the Jews themselves. Anti-Semitism was promoted to divide and embitter the democratic peoples and to soften their resistance to the Nazi aggression.

"Anti-Semitism also has been aptly credited with being a "spearhead of terror." The ghetto was the laboratory for testing repressive measures. Jewish property was the first to be expropriated, but the custom grew and included similar measures against anti-Nazi Germans, Poles, Czechs, Frenchmen, and Belgians. Extermination of the Jews enabled the Nazis to bring a practiced hand to similar measures against Poles, Serbs, and Greeks. The plight of the Jew was a constant threat to opposition or discontent among other elements of Europe's population—pacifists, conservatives, Communists, Catholics, Protestants, Socialists. It was in fact, a threat to every dissenting opinion and to every non-Nazi's life.

"The persecution policy against the Jews commenced with nonviolent measures, such as disfranchisement and discriminations against their religion, and the placing of impediments in the way of success in economic life. It moved rapidly to organized mass violence against them, physical isolation in ghettos, deportation, forced labor, mass starvation, and extermination. The Government, the Party formations indicted before you as criminal organizations, the Secret State Police, the Army, private and semi-public associations, and "spontaneous" mobs that were carefully inspired from official sources, were all agencies that were concerned in this persecution. Nor was it directed against individual Jews for personal bad citizenship or unpopularity. The avowed purpose was the destruction of the Jewish people as a whole, as an end in itself, as a measure of preparation for war, and as a discipline of conquered peoples.

"The conspiracy or common plan to exterminate the Jew was so methodically and thoroughly pursued, that despite the German defeat and Nazi prostration this Nazi aim largely has succeeded. Only remnants of the European Jewish population remain in Germany, in the countries which Germany occupied, and in those which were her satellites or collaborators. Of the 9,600,000 Jews who lived in Nazi-dominated Europe, 60 percent are authoritatively estimated to have perished. Five million seven hundred thousand Jews are missing from the countries in which they formerly lived, and over 4,500,000 cannot be accounted for by the normal death rate nor by immigration; nor are they included among displaced persons. History does not record a crime ever perpetrated against so many victims or one ever carried out with such calculated cruelty."

- Justice Robert H. Jackson, Statement for the Prosecution, Nov. 21, 1945 (hat-tip: John Barrett)

Last night was the first night of Hanukkah; and in another day Christians light the third candle of Advent. There are many things commemorated with the lighting of these candles, and to them we should all add a remembrance of the Holocaust and its victims. There is urgent reason for this – the Iranian president has assembled a group of Holocaust deniers in Tehran and for the first time, a state has given formal sanction to denial of the Holocaust. This is a grave offense against the memory of those who died. But more important is the threat it presents to our collective future. As Orwell taught us, those who would control our future start by controlling the past.

Certainly there are those who would dismiss this entire event as the kookiness of President Mahmoud Ahmadinejad. But his attitudes are pernicious and may have profound and lethal consequences for his own people, his region and the world beyond. As Ann Applebaum writes,

Mahmoud Ahmadinejad is deadly serious. Holocaust denial is his personal passion, not just a way of taunting Israel, and it's based in his personal interpretation of history. Earlier this year, in a distinctly eerie open letter to German Chancellor Angela Merkel, he lauded the great achievements of German culture and assaulted "the propaganda machinery after World War II that has been so colossal that [it] has caused some people to believe that they are the guilty party." Such views hearken back to the 1930s, when the then-Shah of Iran was an admirer of Hitler's notion of the "Aryan master race," to which Persians were meant to belong. Ahmadinejad himself counts as a mentor an early revolutionary who was heavily influenced by wartime Nazi propaganda. It shows.

The first step in a defense against repetition of the Holocaust is a simple one that everyone can take without sacrifice: it is to remember. The second step is no less difficult, and it is to be vocal in your remembrance, and to criticize the deniers. This is the time to do it.
Posted 8:45 AM by Scott Horton [link] (34) comments

Recordings of the Yale Federalist Society Panel on Blogs and the Law

JB

The Yale Federalist Society has now posted mp3 recordings of its December 5th, 2006 panel discussion on legal blogging.

The session features remarks by Glenn Reynolds of Instapundit, Howard Bashman of How Appealing and myself.

You can find the recordings here.

Posted 2:50 PM by JB [link] (0) comments

Using Our Fears to Justify a Power Grab

JB

[This essay was first published in the Los Angeles Times two months after the 9/11 attacks, on Thursday, November 29, 2001. It was written before many of the Administration's most controversial decisions were revealed to the public, including the NSA domestic surveillance program, the torture memos, the detention of American citizens as enemy combatants, the practice of extraordinary rendition to countries that torture, the secret CIA prisons, and the abuses at Guantanamo Bay. Nevertheless, its analysis of what was about to happen, and of the incentives facing government officials seems entirely relevant five years later.]

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Moments of crisis do not merely create emergencies. They also create temptations.

Many see the central issue before us as how to balance civil liberties and national interests. This is wrong. The danger we face today is not that government officials will make hasty decisions out of fear or that they will strike the wrong balance between liberty and security. It is that they will use a national crisis as an opportunity to make themselves more powerful and less accountable for what they do--not because they are corrupt and venal but because they are so utterly convinced of their uprightness.

In times of fear, authoritarian impulses are less constrained and people feel less able to complain about them. After all, no one wants to be thought unpatriotic when the country is in such grave danger. And when there is no check on government officials certain of their own rectitude, the temptation for them to act unilaterally and arbitrarily becomes irresistible. Such is the problem we face today, with a president and an attorney general who have dedicated themselves to stamping out all evildoers both outside the country and within it.

An increasingly authoritarian tone is pervading the Bush administration. We have seen it in the so-called USA Patriot legislation hastily pushed through Congress. We have seen it in the presidential order authorizing military tribunals without traditional due process protections and without a right of appeal to anyone but the president himself. We have seen it in new federal policies that permit eavesdropping of confidential communications between attorneys and their clients. And we have seen it in new regulations that allow the attorney general to imprison noncitizens indefinitely, even if an immigration judge has ruled that there is no evidence to justify holding them against their will.

Little by little, the basic elements of procedural fairness that keep democratic governments from acting arbitrarily are being chipped away. No apology is offered for these actions. Those who seize power always feel perfectly entitled to it. Instead, they blame their critics for failing to recognize the seriousness of the situation or for being soft on terrorism, as in the past other critics were blamed for being soft on communism.

The authoritarian impulse is justified, as it always is, through paranoia. The more fearful Americans are, the more they are willing to give their officials a free hand. It is no accident that the same attorney general who has withheld information about who is being detained and why has also repeatedly warned in ominous tones that more terrorist attacks are just around the corner. Secrecy lends credibility to paranoia, which in turn justifies increased secrecy and increased power.

Officials who want greater authority always prefer to work in secret so that they cannot easily be called to account. And when complaints are raised, lack of available information makes it all the more difficult to prove that violations have occurred.

Thus, it is entirely predictable that the current administration has made a fetish of secrecy, for secrecy increases power, not only overseas but in our own country.

Authoritarianism never attacks the institutions of freedom at their strongest point; it always attacks them at their weakest. Even before Sept. 11, the country's immigration laws were often arbitrary and highhanded. Therefore it is no surprise that the administration's latest grabs for executive authority have targeted noncitizens, who have no right to representation and no natural constituency to defend them. The present conflict may not be a war on Islam. But it is increasingly turning out to be a war on noncitizens.

The members of this administration do not want to be dictators. They simply do not want anyone getting in their way. They do not want to be autocrats. They simply do not want to be second-guessed when they know that they are right. They do not want to be antidemocratic. They simply want to be able to act unilaterally in the interests of righteousness. If we would merely allow them to go about their business in secret, and with as much authority as they feel they need, they will take care of things for us.

In times like these, it is a tempting offer, but we should refuse it. For what profit has a country if it shall control the whole world and lose its democratic soul?
Posted 1:50 PM by JB [link] (9) comments

Who's Next?

JB

[This essay, on the beginnings of the Jose Padilla case, originally appeared in the Hartford Courant on June 20, 2002. Over the next several days I will be republishing some op-eds and pieces I wrote in the first year after 9/11 on civil liberties issues.

It is worth remembering the extreme claims of power that led to Padilla's original imprisonment. Before the Hamdi decision, the Bush Administration took the view that it could seize anyone, anywhere-- including U.S. citizens-- that it claimed was associated with terrorism and hold that person indefinitely without any rights. Furthermore, it claimed that the President's designation that a person was an enemy of the state was unreviewable by the courts, or at the very least should be upheld if there was *any* evidence supporting it, including, for example, a self-serving affidavit from an executive branch official.

Five years later, Padilla is still in prison without ever having been convicted of any crime, and, if reports are to believed, has become unhinged from the treatment he received at the hands of his own government.

It has often been said that it can't happen here. But it already has happened. And it is still happening.

Five years after 9/11, we should remember the road we have traveled.]

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by Jack M. Balkin


NEW HAVEN -- Jose Padilla, an American citizen, is now being held in a military prison in South Carolina. He can't speak to counsel. He has no rights that the Bush administration wishes to respect. Padilla's case is further evidence that there is something deeply troubling about this government's attitude toward the Constitution and the rule of law.

For months, critics have worried about the administration's proposal to employ military tribunals. But the greater danger to civil liberties has always been lurking alongside. It is not secret trial but indefinite detention: the danger that the attorney general or some other government functionary will pick some face out of the crowd and hold that person indefinitely without legal remedy.

The administration justifies its action on the ground that Padilla, who has converted to Islam and now calls himself Abdullah al Muhajir, is an unlawful combatant: someone who is secretly fighting against our country without wearing a uniform or announcing his belligerent status. If news reports are to be believed, Padilla is no choirboy. But in our system of justice, even violent criminals are accorded basic rights against the federal government: the right to have accusations against them placed before a grand jury, the right to the advice and assistance of counsel, the right to a speedy and public trial by a jury of their peers and, above all, the right to judicial review of the legality of their arrest, detention and trial. By accusing Jose Padilla of conspiring with the al Qaeda terrorist network, the administration has attempted to short-circuit all of these guarantees.

There is no doubt that identified enemy soldiers may be arrested and detained by the military, although even then they are subject to the protections afforded by international law to prisoners of war. The question to be decided, however, is whether Jose Padilla is an enemy soldier. One should not be able to strip away his constitutional rights merely by throwing him in the brig. If the attorney general can simply announce that a citizen is an enemy of the state and use that accusation to hold him indefinitely, our Constitution is not worth the paper it is written on.

Repeatedly, this administration has taken whatever steps it can to avoid accountability, either to Congress or to the courts. It justifies its actions not by giving us freedom from fear but by spreading fear. It raises the specter of grave dangers to our national security, from which it will save us if only we submit ourselves willingly to its greater wisdom.

We have a right to be worried about future attacks. But we also have the right to be worried about the slow and steady evisceration of legal procedures designed to prevent governments from arbitrary detention and arrest.

At first, one could argue that the Bush administration was interested only in seeking rough justice overseas. Then one could comfort oneself with the notion that only aliens overstaying their visas would be targeted. But now it appears that even American citizens may be rounded up on suspicion and placed in military prisons indefinitely at the pleasure of the president.

There is only one word to describe this, and it is not democracy. It is authoritarianism.
Posted 9:19 AM by JB [link] (18) comments

U.S. Government: You can't believe Padilla when he says we tortured him because he's crazy from all the things we did to him

JB

The New York Times reports that the government supports the defendant's motion for a competency hearing to determine whether Jose Padilla is fit to stand trial. Normally, the prosecution tends to oppose such hearings, because they allow the defendant to escape punishment. But in Orwellian world of the Padilla case, the government doesn't really mind. After all, if Padilla were found competent, one might also have to believe his allegations of torture at the hands of the U.S. government:

The government itself cited the affidavit of a psychiatrist for the defense, Dr. Angela Hegarty, who said that Mr. Padilla did not understand the nature and consequences of the proceedings against him and that he suffered "impairment in reasoning" as a result of post-traumatic stress disorder "complicated by the effects of prolonged isolation."

Mr. Padilla’s lawyers said he opposed this request that his competency be evaluated. Dr. Hegarty, one of two mental health professionals who examined him, said Mr. Padilla was "fearful of being thought of as crazy." She described him as "hypervigilant," his eyes darting about, his face twitching into grimaces, his "startle response" on constant high alert.

. . . .

Now the issue of determining Mr. Padilla’s competency could freeze many matters. For instance, his lawyers have asked Judge Marcia G. Cooke of Federal District Court to dismiss the charges because of "pre-indictment delay" — Mr. Padilla was apprehended in May 2002 and indicted in November 2005 — because of failure to provide a speedy trial and because of "outrageous government conduct."

Judge Cooke set a hearing date for Monday to address these motions. But the government said yesterday that it would be pointless to discuss accusations of government misconduct based on Mr. Padilla’s word if his competence was in question. The government vehemently denies that Mr. Padilla was mistreated in military custody.

Posted 1:56 PM by JB [link] (8) comments

More on militias

Sandy Levinson

The Associated Press is reporting on a visit made by a group of Senators, including John McCain (who calls for more troops in Iraq) and Joseph Lieberman. The AP says that "the delegation had met with Prime Minister Nouri al-Maliki, a Shiite, and urged him to break his ties with anti-U.S. cleric Muqtada al-Sadr and disarm his Mahdi Army militia."

No doubt that would be lovely. But just imagine that George Washington had been told, upon taking office, that the first thing he neededto do was disarm state militias, which, after all, could potentially threaten the Weberian "monopoly on the legitimate use of violence" by the national government. Even Washington could not conceivably have done so. And, of course, two governors threatned to call out their militias and march them on Washington if the Federalists denied Thomas Jefferson his rightful victory in the aftermath of the 1800 election.

It is simply foolish to call for "disarmament" in such circumstances, not least, as I've suggested earlier, because no rational adviser to any of the Iraqi groups would advise their clients to lay down their arms and trust the emerging Iraqi central government. But there is also something bizarre about avid supporters of the Second Amendment, as most Republicans and an increasing number of Democrats claim to be, blithely calling for "disarmament" elsewhere.

In any event, that presumptively sophisticated politicians believe that a call that Maliki now engage in an all-out civil war with the Sadrists constitutes a tenable policy only underscores the desperate straits we are in with regard to our "leadership."
Posted 11:54 AM by Sandy Levinson [link] (21) comments

A First Amendment Right to Hold Classified Documents?

Marty Lederman

With respect to the neo-Pentagon-Papers case that Jack discusses below, Bobby Chesney has helpfully posted links to the relevant legal documents.

But the classified document in question is not among those linked. Indeed, the ACLU thus far has been reluctant even to publicly reveal the subject matter of that document, other than by the possibly telling fact that the ACLU has catalogued its legal papers in the "torture" subdirectory of its word-processing files.

In its motion to quash the subpoena (which is well worth reading -- especially paragraph 5 on page 6, in which the ACLU urges (dares) the government to show the document to the court), the ACLU represents that it has not released or even internally disseminated the document in the seven-plus weeks that it has possessed it.

If the ACLU is disclaiming any intention to "speak" (i.e., to share or publish the document), what is the basis of its First Amendment defense?

There are at least two possibilities:

First, the ACLU states that it "reserves the right" to distribute the document in the future.

Second, the case is a good reminder that the First Amendment protects not only the dissemination of expression or information, but also the receipt of such expression or information. See, e.g., Lamont v. Postmaster; Kleindienst v. Mandel. To be sure, the receipt of speech is protected principally in order to facilitate education and learning, which in turn will presumably enrich future public debate. But a party seeking to defend its First Amendment right to receive or retain expression or information ordinarily need not demonstrate that it ever intends to use the materials in any speech of its own.
Posted 9:59 AM by Marty Lederman [link] (29) comments

Bye Bye, First Amendment, Hello Prior Restraints

JB

First the Bush Administration tried to use the material witness statute-- designed to keep important witnesses from fleeing-- as a method of preventive detention. Now they are trying to use the grand jury's subpoena power-- used to gather evidence for possible prosecutions-- to get around the First Amendment's prohibition on prior restraints. In effect, the government is trying to do an end run around the famous Pentagon Papers case.

The Justice Department has issued a subpoena for all copies of a memo held by the ACLU. By asking for "any and all" copies, it is trying to prevent the ACLU from publishing or disseminating the information. If the ACLU makes a copy, it is automatically covered by the subpoena.

The judge in the case should quash the subpoena, or at the very least modify it to allow the ACLU to keep copies of the materials requested. If the government's purpose is genuinely investigative, it cannot object to the ACLU retaining copies. But if its purpose is not investigative, but an attempt to suppress speech, it may not abuse the subpoena power for this purpose.

The government is free to try asking a court for an injunction against the ACLU which would be a prior restraint against publication. The reason the government does not dare try that is the Pentagon Papers Case. And if it wants to prosecute the ACLU for publishing the piece under the Espionage Act, it can also try. But if the ACLU obtained the material legally (which appears to be the case, because the document appeared in an unsolicited e-mail), the government should also not be able to succeed, because of the First Amendment protects the publication of truthful materials obtained legally except in the most extreme circumstances, which are not present in this case.

Instead, the government is being sneaky. It is trying to use the subpoena power as a tool of censorship. Note that the subpoena can be issued on the government's own motion, placing the burden on the affected party to convince a judge to quash it. And the affected party may not ignore the subpoena without facing possible sanctions by a judge. This is the very essence of a prior restraint.

If the judge allows this misuse of the government's subpoena power, then the Pentagon Papers case will be irrelevant, because the government could simply have issued a subpoena to Daniel Ellsberg, the New York Times and the Washington Post.

Repeatedly we've been assured that the government will never again engage in the sort of civil liberties abuses it once engaged in. But it is not true. When the government is run by people who don't really respect civil liberties, they will always find new ways to fight old battles, and ever more creative ways to undermine people's liberties. This case is a sobering example of an Administration that seeks to twist the law to punish and censor its critics-- an Administration that, when it comes to civil liberties, is simply out of control.

Posted 8:09 AM by JB [link] (3) comments

Roughing It

Mark Graber

Life is apparently rougher on federal judges than we thought. According to today's Washington Post, Justice Scalia recently declared,"If you become a federal judge in the Southern District of New York (Manhattan), you can't raise a family on what the salary is." In his view, the federal judiciary will increasingly fail to attract the best qualified lawyers if judges' pay doesn't improve. Federal judges earned salaries of $165,200 in 2006. Scalia said lawyers can easily earn significantly more by staying in the private sector.

Granted, real estate prices in the more desirable parts of New York City are insane. Still, if as is normally the case, judges buy houses worth two-and-a-half or three times their annual salary, judges with non-working spouses could afford the house I grew up in on Long Island (maybe a little more or less, depending on recent price fluctuations). With a working spouse or savings from private practice, a good deal more. Of course, as did my father and a great many of my neighbors, the judge without a working spouse would have to take the train into work on a daily basis and send their children to Mepham High School (average quality for a Long Island high school). Still, a great many persons on Long Island work in the city and raise families on $165,000 a year. Many do so on much less.

What one cannot do easily on $165,000 in New York is fence oneself off from average citizens by living in a gated community, sending one's children to private schools, and shopping at top of the line stores. At $165,000 a year on Long Island, you shop at the A&P, vacation at one of the lesser resorts in the Catskills, and, very special occasions aside, eat at TGIFriday's or get take out Chinese. I suspect a great many framers, particularly from New England, would not have minded such arrangments, arrangements that require governing officials to come into contact with average citizens on a regular basis. Many framers took substantial pay cuts to go into public service (which was considered an honor) and, southern slaveholders aside, most did not want to be ruled by a governing class that cut themselves off from the travails of middling America.

Of course, if we do a narrow legalistic reading of the constitution, Congress has the legal authority to raise judicial salaries to any amount. A judicial pay raise that enabled justices to avoid living where most Americans live, eating where most Americans eat, and sending their children to the schools most Ameican children attend, however, seems inconsistent with more fundamental norms underlying the constitutional regime (though perhaps not those of the slaveholding framers). Another indication of how Justice Scalia's values are either deeply at odds with the principles underlying our regime or reflect what was worst in some framers.
Posted 8:05 AM by Mark Graber [link] (27) comments

A View from New Orleans

Stephen Griffin

You may have heard that William Jefferson, the U.S. House member who represents New Orleans and parts of neighboring Jefferson Parish, won re-election over Karen Carter, a state senator. People outside the state are puzzled, as they were last summer when New Orleans mayor Ray Nagin was reelected. People inside the state are not. The factors that explained Nagin’s victory also help explain Jefferson’s. Jefferson won, despite being under a federal investigation for bribery, because you can’t beat a vulnerable incumbent with a candidate who refuses to take strong positions on issues and who tries to straddle the deep racial divide in New Orleans. In other words, you can’t beat someone with no one. Both Nagin and Jefferson benefited from the belief of African-Americans that the federal government has betrayed them. Then again, versions of this belief are pretty widespread in New Orleans no matter what your race or ethnicity. Here’s one view from New Orleans that is pretty typical of regional sentiment. This was a recent editorial in our local paper, The Times-Picayune, by Bob Marshall, one of the paper’s editors. I don’t agree with every point, but I think it’s useful for people outside the region to understand the attitudes inside.

“[R]ecent travels had already shown me that most Americans are woefully ignorant of the ugly facts on the ground here in The Big Uneasy. My concern now is that as my fellow New Orleanians hit the road during the busy holiday travel season they may be stunned into silence – if not apoplexy – by the questions and statements of the misinformed masses. So here’s a package of talking points.

Isn’t flooding what you should expect when living in a hurricane zone? The flooding inside the city limits was not a natural disaster, but a man-made disaster. The hurricane protection system built by the U.S. Army Corps of Engineers was poorly designed, constructed and maintained by that agency, a part of our national government. The system was never built as high as we were told, and it failed due to faulty engineering. Katrina’s storm tides didn’t come close to reaching the tops of the walls, and never would have. This is not my opinion. This was the judgment of the corps after its year-long $10 million in-house investigation. The corps said ‘our fault’ – yet Congress has not responded to that confession.

Didn’t Congress agree to pay for the damage? Only a small portion of it. The corps’ failures resulted in the destruction of 200,000 home and businesses at values estimated to surpass $100 billion, yet Congress has appropriated only about $10 billion to rebuild homes.

Well, is it our fault they didn’t have any insurance – or enough insurance? That’s like saying a man killed by robbers was at fault for not wearing a bullet-proof vest. You’re blaming the victims. Insurance is for natural disasters, acts of God and self-inflicted damage such as fires. This is not a no-fault case. The corps – part of the U.S. government – has already accepted it was at fault. Fairness means the nation should pay for completely rebuilding those homes. Insurance shouldn’t be a consideration. That’s what the nation has always done in the past.

When? [Examples cited include the savings and loan disaster and 9/11.]

What about federal flood insurance? We subsidize that to the tune of billions. Why should we do that in a hurricane zone? You’re right. The nation shouldn’t subsidize environmentally stupid development. But if we’re going to start that policy, we must inaugurate it simultaneously coast-to-coast. So when we yank flood insurance from south Louisiana, we also will stop it for Miami, Tampa, St. Petersburg, Jacksonville, Washington, D.C., and New York City, not to mention Houston, Gulfport and the rest of the Gulf. And while we’re at it, we will stop paying for earthquakes in San Francisco, Los Angeles, Salt Lake City, Seattle and Alaska.

What about this Road Home Program? I see people getting money to rebuild. I’ve seen your politicians thank Congress. They have been groveling for crumbs – and that has hurt us more than helped us. Here’s an example that is typical. I have a friend who owned a $200,000 home in Lakeview [one of the most flooded areas]. He had $14,000 left on his mortgage, and only $40,000 of flood insurance because it had never flooded. He might end up with $100,000 from Road Home. So he pays off his old mortgage and spends another $15,000 having his home torn down. But the builder says it will cost $325,000 to rebuild the same size house. So, at 55, he will have a $250,000, 30-year mortgage. He may never be able to retire. He’s left in this situation after the richest nation in the world admitted it destroyed his home – but refuses to pay for the damage. And he’s lucky. There are many retired people who can’t get the $300,000 mortgage to rebuild their homes destroyed by an agency of the government. They’ll spend their remaining days in small FEMA trailers.

Why isn’t anyone telling us this? They have. But you haven’t cared enough to pressure Congress to do the right thing. That’s why I call this one of the most shameful episodes in American history.”

Posted 10:34 PM by Stephen Griffin [link] (7) comments

More on our zany constitution

Sandy Levinson

A late breaking development:

WASHINGTON (AP) -- Democratic Sen. Tim Johnson of South Dakota suffered a possible stroke Wednesday and was taken to a hospital, his office said.

If he should be unable to continue to serve, it could halt the scheduled Democratic takeover of the Senate. Democrats won a 51-49 majority in the November election. South Dakota's governor, who would appoint any temporary replacement, is a Republican.

"Senator Tim Johnson was taken to George Washington University Hospital this afternoon suffering from a possible stroke," read a statement from his Senate office. "At this stage, he is undergoing a comprehensive evaluation by the stroke team."

Johnson had become disoriented during a call with reporters, stuttering in response to a question. He appeared to recover, asking if there were any additional questions and then signing off.

If the two-term senator, 59, is unable to serve when the 110th Congress convenes Jan. 4, South Dakota Gov. Mike Rounds would appoint a replacement.

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Two comments: First, there is no provision for a "temporary replacement." The text refers to "vacancies" in the Senate, and that has been interpreted, I'm quite confident, as death. To be disabled is not to create a "vacancy," save metaphorically. I discuss in my book the dysfunctionality of the Constitution with regard to a catastrophic attack that results in many disabled senators and members of the House. Dead senators are no problem. The Seventeenth Amendment allows immediate replacement by guberrnatorial appointment. Disabled senators are a distinct problem, espeically when combined with quorum rules that require a majority of members in order to do business. The American Enterprise Institute and the Brookings Institution have collaborated on a project designed to address the issue and have proposed a constitutional amendment, co-sponsored by Texas Republican John Cornyn and Wisconsin Democrat Russ Feingold (among others). (I testified in favor of the amendment and praised Sen. Cornyn for his leadership on this issue.) Republican James Sensenbrenner refused to hold hearings at the House Judiciary Committee because he believes that every representative should be elected and therefore opposes the proposal that would allow governors to name replacements after catastrophic attack. In any event, so long as Johnson is alive, he remains the Senator from South Dakota and the Democrats will have a 50-49 majority of those present and voting in early January. This means that under no circumstances, whatever the seriousness of his condition, should he be viewed as "resigning" his seat, given the political realities of the situation. Recall that Woodrow Wilson hung on to the presidency when he was patently inequipped to continue serving as President (a defect that arguably was cured by the 25th Amendment, though the failure of the Reaganites to invoke it after it became clear to insiders that he had Alzheimer's is not encouraging).

One problem with both the 17th Amendment and the 25th Amendment, incidentally, is that neither takes account of the reality of political party. One might believe we were back in 1787, with the Framer's disregard (and, of course, disdain) for that reality. It would be absolutely dreadful, for example, if an incapicated president (assuming no vice president) were succeeded by a Speaker of the House of the other party--a good reason for repealing the present Succession in Office Act--just as it is at least questionable whether a governor should be able to change the control of the Senate by naming a successor from a different political party than the elected senator.



2. So the second comment is asking whether it is "fair" that a Democratic Senator be replaced by a Republican simply because the Governor is a Republican? I ask this as a genuine, and not contentious, question. When Strom Thurmond appeared to be on the brink of death, there were proposals that the Democratic governor of South Carolina be forced to name a Republican successor. I suppose one can say that the death of a senator is a random process and that the risks of a change of party are borne equally. But here is a perfect illustration of the power of a small state to turn the results of the national election topsy-turvy because of what may be the unwise provisions of the 17th Amendment with regard to filling "vacancies." I assume that Sen. Johnson's Republican successor, if it comes to that, could serve only until the next election, in 2008. Query: Could Congress mandate an election "no later than 60 days after the death of a senator"?

You will be glad to know that I don't think that a constitutional convention is necessary to cure these potential problems. But do those of you who seem adamantly against the possibility of any constitutional amendment, at least at this time, defend the disconnect between the 17th and 25th Amendments, on the one hand, with the reality of political party, on the other?

Posted 4:41 PM by Sandy Levinson [link] (18) comments

Dialectic of Enlightenment

JB

Yesterday the Iranian government held an official conference for Holocaust deniers and skeptics, with 67 foreign researchers from 30 countries invited to take part. Featured speakers included David Duke, the American white supremacist, who, at least in Iran, is considered an authority on the subject.

Growing up in Kansas City in the 1960's there were random acts of anti-Semitism, and occasional gauche misunderstandings. But I grew up with the optimistic view that all this was gradually receding. The lesson of World War II, I believed, was that Anti-Semitism was a thing of the past, particularly in the West, but eventually throughout the world. Enlightenment and tolerance, I believed, were the wave of the future.

My views were naive, and altogether too sanguine. Anti-Semitism, like many other virulent strains, is never fully extinguished; it merely goes into dormancy, ready to be awakened once again when events permit it. Half a century of politics in the Middle East have made anti-Semitism fashionable again. Like a virus, it has successfully mutated, adapting itself to new environments and the post World War II discourse of human rights. Anti-Semitism today can easily meld itself with or disguise itself as criticism of the State of Israel; in this way it has found a respectable base of operations from which to spread.

Precisely because legitimate criticism of Israel, even when mistaken, is not anti-Semitic, it is sometimes difficult to tell when rhetoric disguises prejudice; but sometimes there are clear cases, when anti-Semitism reveals itself clearly in all of its ugliness. Iran's state-sponsored conference on Holocaust denial is not even a close case. The putative discourse of the conference is that of historical accuracy, freedom of thought, and anti-Zionism, but it is not too difficult to see the ancient disease rearing its ugly head again.

We had long since passed the time, I had thought, when a modern nation could hold such an event without shame. But those times are back again. Once again, there are powerful countries, and many people around the world, who despise the Jews with a deep and unreasoning hatred, and seek scientific justifications and academic respectability for their hate.

American Jewry is fortunate that we live in a country of remarkable tolerance. Jews in Iran, and in many other countries around the world, are not so fortunate. Indeed, Iran's boldness is possible because in many parts of the world deep distrust and even hatred of Jews is entirely acceptable. The ancient prejudice has made a starting comeback. Right now we in the United States are largely insulated from the effects of what has become a worldwide flood of anti-Semitism. It is not clear how long we will be so lucky.
Posted 10:31 PM by JB [link] (17) comments

George W. Bush and Harry Truman

Sandy Levinson

I have, as faithful readers know, been commenting on the remarkable loss of confidence by most Americans in the Bush presidency and been arguing that it would be desirable if we had a procedure to terminate his presidency through a vote of no confidence. I won't rehearse those arguments. Rather, I think it is interesting--and may even cut a bit against my argument--to compare Bush's figures with those of Harry Truman, who was also a notably unpopular war-time president (far moreso than was the case with LBJ, incidentally). The following are Truman's approval ratings from the initiation of the Korean War up to the last month of his term, January 1953: The first number is "approval," the second "disapproval," the last "no opinon:


12/11-16/52 Gallup 32 56 11
10/9-14/52 Gallup 32 55 13
10/3-10/52 Gallup 33 55 13
7/13-18/52 Gallup 29 59 13
6/15-20/52 Gallup 32 58 10
5/30-6/4/52 Gallup 31 59 10
5/11-16/52 Gallup 27 59 13
4/13-18/52 Gallup 28 59 13
2/9-14/52 Gallup 22 65 13
1/20-25/52 Gallup 25 62 13
1/6-11/52 Gallup 23 67 9
11/11-16/51 Gallup 23 61 16
10/14-19/51 Gallup 29 55 16
9/21-26/51 Gallup 32 54 14
8/3-8/51 Gallup 31 57 12
7/8-13/51 Gallup 29 54 17
6/16-21/51 Gallup 25 59 16
5/19-24/51 Gallup 24 63 12
4/16-21/51 Gallup 24 54 20
3/26-31/51 Gallup 28 57 15
3/4-9/51 Gallup 27 59 14
2/4-9/51 Gallup 26 60 14
1/1-5/51 Gallup 36 49 15
12/3-8/50 Gallup 33 53 13
10/20-25/50 Gallup 41 46 14
10/8-13/50 Gallup 43 36 21
10/1-6/50 Gallup 35 50 15
9/17-22/50 Gallup 35 47 18
8/20-25/50 Gallup 43 32 25
7/30-8/4/50 Gallup 39 45 16
7/9-14/50 Gallup 46 40 15
6/4-9/50 Gallup 37 47 16

These are quite remarkable numbers. The first things one notices is that at no time did Truman have majority approval. Presumably he got a bit of a bounce for responding to the North Korean invasion of South Korea in June, but by the end of the month he's back to below 40%. He spends his last year in office with less than 1/3 approval. George W. Bush, on the contrary, still seems to maintain an approval rate of around 36%, according to today's Washington Post poll, in part because he continues to get remarkable support from Republicans. (On the other hand, three times the number of people strongly disapprove of him as strongly approve.)

So what's the moral of these numbers? 1) We really can afford having a notably unpopular president/commander-in-chief during a time of war. (And, of course, the Korean War was far more costly in terms of US casualties than the Iraq War.) 2) We would have been better off replacing Truman with another Democrat, but whom? Surely not Alben Barkley, who was in the great tradition of VPs one could not possibly imagine as presidents.
Posted 4:14 PM by Sandy Levinson [link] (9) comments

Here We Go Again

Mark Graber

Has anyone noticed that what seems to unite the first politicians to declare their candidacy for the presidency is a total lack of experience in foreign policy. Indeed, such inexperience seems almost to be a qualification for the contemporary presidency which, since 1976 has been occupied for all but four years by a person with no foreign policy experience. From Jimmy Carter on, winning slogans seem to be "Vote for Me: Because I have Never Made a Foreign Policy Decision I Cannot Be Blamed For Our Present Mess." Perhaps our constitution is broken not because we have too many qualifications for the presidency, but too few. Perhaps Sandy's constitutional convention will approve an Article II requiring the president to have at least ten years experience on matters relating to foreign policy and be able to at least pass a standard graduate qualifying examining in a foreign language, but I rather doubt it. As a second best, the new constitution ought to require them to name their foreign policy team in advance. I doubt that one as well. But it might not be a bad idea for those of us in the Blogosphere and media to worry more about whether our next batch of leaders will have any more clue than we do about Iraq than about whether their particular proposals make sense.
Posted 5:53 PM by Mark Graber [link] (19) comments

How Congress Might Send a "Message" to the President About Iraq

Marty Lederman

According to reports of a Friday White House meeting, Democratic congressional leaders quite understandably are frustrated with the President "over what they perceived as his reluctance to embrace major recommendations from the bipartisan Iraq Study Group." In this respect, the Democrats certainly are reflecting the consensus view of the U.S. public, 71 percent of which is said to be dissatisfied with Bush's handing of Iraq, and 60 percent of which favors a six-month deadline for withdrawal. (AP-Ipsos poll numbers.) (The President, on the other hand, is reported to be comforted by strong opposition to the ISG from his right-wing base, which appears to be under some otherworldly spell, or hubris, that prevents them from seeing that everything they've proposed over the past five years has led to catastrophe.)

"Democrats stressed to Bush in separate meetings the dire need for the administration to revamp its Iraq policy, . . . [b]ut some Democrats came away unconvinced that major changes were coming. 'I just didn't feel there today, the president in his ords or his demeanor, that he is going to do anything right away to change things drastically,' Senate Majority Leader-elect Harry Reid, D-Nev., said following the Oval Office meeting. 'He is tepid in what he talks about doing. Someone has to get the message to this man that there have to be significant changes.'"

Someone? How about Congress "getting him the message," Senator Reid, by actually requiring him to act? I fully realize that deciding which course of action we should take in Iraq, and when, are extremely difficult questions. It may be that coming to a consensus on particular statutory langauge would be very difficult under the circumstances. And there may not be a consensus, even among congressional Democrats, about many particulars of the ISG Report. But to the extent the Democrats can agree amongst themselves on at least some of the ISG recommendations, and/or on other proposals, they ought to put those directives in a bill, and have both Houses of Congress pass it.

It speaks volumes about our modern political system that, as far as I am aware, in the hundreds or thousands of articles and blogposts about the current dilemma in Iraq -- the vast majority of which complain about the President's inertia and stubbornness -- no one has so much has suggested the most obvious solution, the one actually contemplated under the Constitution: Congress can pass a law telling the President what to do (or what he may not do). Congress, after all, authorized the war in Iraq. The legislature can likewise now cabin or modify or condition that authorization. [UPDATE: I had failed to notice this: "Speaker-elect Nancy Pelosi said this week that Democrats would impose new standards and conditions in Iraq spending bills." So perhaps the idea is not so unthinkable after all.]

Would the President complain that such a law is unconstitutional? Of course he would -- although in most if not all respects, he'd be mistaken.

Would he veto it? Almost certainly.

Would Congress be able to override such a veto? Presumably not -- but if things get even more dire, public support dwindles even further, and other Republicans follow the lead of Senator Gordon Smith, who knows?

But even if the President were to veto the bill and there were insufficient votes to override, at least the issue would be joined, and the public could more fully understand where the Democratic and Republican parties respectively stand on the most important issue of our time.

And that wouldn't be a bad thing -- certain not for the public, and probably not for the Democratic Party, either.
Posted 3:48 PM by Marty Lederman [link] (24) comments