Balkinization  

Tuesday, January 23, 2007

Habeas Corpus and the Tyranny Gap

JB

Several people have asked about Chief Justice Marshall's statement in the 1807 case of Ex Parte Bollman that the right of habeas corpus depends on statute even though it should be interpreted according to the common law: "for the meaning of the term habeas corpus, resort may unquestionably be had to the common law; but the power to award the writ by any of the courts of the United States, must be given by written law." 8 U.S. 75, 94-95. Doesn't this prove that the Constitution secures no right to habeas corpus, and that habeas corpus is purely a creature of statute? If so, wasn't Attorney General Gonzales technically correct that there is no constitutional right to habeas?

The answer is no.

Let me first point out that in the current litigation over the Military Commissions Act of 2006 (MCA) the Bush Administration is not taking Gonzales' position. It is arguing that either the MCA withdraws rights that fall outside of the minimum constitutional requirements of habeas corpus or that the remedy the MCA offers is an adequate substitute for habeas. Let me repeat: even Gonzales's own Justice Department is not making as radical a claim as he apparently made before the Senate Judiciary Committee. The arguments in this case start with the assumption that there is a constitutional core of habeas that Congress may not rescind without falling afoul of the Constitution, even if federal habeas jurisdiction is provided by statute. The dispute in the MCA litigation is the scope of that constitutional core.

How do we know that there is such a constitutional core?

The drafters of the 1787 Constitution chose language that preserved the common law right of habeas corpus rather than specifically fashioning a new constitutional right. As a result, the 1787 Constitution left in place the common law right of habeas and restricted Congress's ability to suspend it. And, as we shall see, there are structural reasons why, when elements of sovereignty were transferred from the states to a new federal union, the principle of non-suspension meant that habeas corpus had to apply to a new series of situations.

To understand Chief Justice Marshall's remark in Ex Parte Bollman, we must remember that the 1787 Constitution does not, on its face, require that there be any federal courts except for the Supreme Court. Congress soon created such courts, and created jurisdictional statutes which, among other things, gave these courts the right to hear writs of habeas corpus.

However, if Congress had not created any lower federal courts, there would still be a common law right of habeas corpus available in state courts. Imagine that the governor of a state imprisoned a political opponent by declaring him an enemy of the state. This, of course, is the paradigm case for why the English common law created habeas-- to limit the King's ability to imprison people outside of the rule of law. In this case, the common law courts would be able to issue writs of habeas corpus to the governor.

Now imagine, after the ratification of the 1787 Constitution, that the President of the United States declares some one an enemy of the state and throws him in jail. Suppose further that there are no federal courts except the Supreme Court. Presumably either the Supreme Court would have the authority to issue a common law writ of habeas under its original jurisdiction (But cf. Marbury v. Madison) or, more likely, state courts could issue such a writ, with appellate review by the U.S. Supreme Court.

But could the state courts do this, you may wonder? How could they have jurisdiction to compel the President to do anything? Recall that people were very concerned that the new federal government would destroy the liberties of the citizenry. It is unthinkable that the ratifiers would have allowed the new President to be free from the writ of habeas corpus when even the King of England, George III, was limited by that writ.

Thus, if there had been no federal courts, the states would retain not only the right to restrain their own officials, but also the officials of the new federal government for violations of law, subject always to review by the Supreme Court of the United States.

As it turned out, Congress created federal courts almost immediately, and gave them the power, by statute, to issue writs of habeas corpus. In this sense Marshall's statement in Ex Parte Bollman is technically correct that the power of *federal* courts to issue writs comes from statute, and not directly from the Constitution. But it does not follow that the power of *state* courts to issue writs of habeas corpus comes only from statute. Moreover, it does not follow that Congress may limit the power of federal courts to issue writs of habeas corpus without running afoul of the Suspension Clause. Here's why:

First, the Supreme Court later held in Tarble's Case, 80 U.S. 397 (1872), that state courts do not generally have the power to issue writs of habeas corpus to federal officials acting under claim of or color of federal authority. Justice Field argued that otherwise, no federal decision or action could be final unless it received the consent of all the courts in all of the states. Given that in 1872, the country was still in the middle of Reconstruction, with federal officials despised in the newly conquered South, Field's reasoning made a lot of sense. If state courts in South Carolina and Georgia could repeatedly haul federal officials into court on writs of habeas, federal enforcement of law in the South would come to a standstill.

Some people think Tarble's case is wrongly decided-- an aberration caused by the features of the Reconstruction period. It also makes sense only if you assume that there had to be lower federal courts; but for the moment, let's assume that it is correct. If Tarble's Case is correct, it would mean that Congress was constitutionally *obligated* to vest habeas jurisdiction in the federal courts to the extent that common law state courts collectively enjoyed in 1789. Why? Because otherwise the Suspension Clause would be completely undermined. The President would be able to do what the King of England could not do: throw people in jail under claim of executive authority without any right of judicial redress. The President could easily become a tyrant-- precisely the thing that the framers and ratifiers of the 1787 Constitution feared. It is simply unthinkable that the people who ratified the 1787 Constitution would have agreed to a President who could do what even George III could not do.

So if Tarble's case is correct, then Congress has a constitutional obligation to create statutory jurisdiction for habeas in the federal courts.

Second, even if Tarble's case is incorrect and state courts can issue habeas orders to federal officials, there might be other reasons why the Constitution required Congress to create federal habeas jurisdiction. In Ex Parte Bollman itself, Marshall noted that

It may be worthy of remark, that this act was passed by the first congress of the United States, sitting under a constitution which had declared 'that the privilege of the writ of habeas corpus should not be suspended, unless when, in cases of rebellion or invasion, the public safety might require it.'

Acting under the immediate influence of this injunction, they must have felt, with peculiar force, the obligation of providing efficient means by which this great constitutional privilege should receive life and activity; for if the means be not in existence, the privilege itself would be lost, although no law for its suspension should be enacted. Under the impression of this obligation, they give, to all the courts, the power of awarding writs of habeas corpus.

Why would Congress feel an obligation to create federal habeas if state courts could issue writs of habeas corpus against federal officials?

Assume that Tarble's case is wrong and that state courts could issue these writs. The 1787 Constitution created a new federal government with new powers superimposed over the old state governments, and claimed some of their powers-- particularly in the areas of foreign affairs, maritime regulation, and the creation and maintenance of federal territories.

These new powers, and the creation of a new government to exercise them, created new classes of cases-- and new possibilities for executive abuse-- where habeas might be needed. For example, the President might have arrested a person in the federal territories (not controlled by any state) or on the high seas; or, as the English Kings sometimes did, dragged their political opponents outside the borders of the country to attempt to escape the jurisdiction of the English courts. Moreover, the Constitution authorized the creation of new federal crimes, including treason against the United States, which was the subject of Ex Parte Bollman itself.

For some or all of these new situations, Congress might want to vest jurisdiction to test the legality of federal actions solely in the federal courts. Moreover, now that these new situations and new powers existed, there was a real question whether state courts could issue writs to restrain these illegal exercises of executive power. For example, states might not have jurisdiction over what happened in the federal territories, including the District of Columbia. If the suspension clause merely preserved the historical scope of habeas jurisdiction *in each state*, then the President would be free to drag people into federal territories (including not only military bases but also the District of Columbia) and keep them in federal prison there forever without charges. Put a different way, the new federal government created the possibility of a "tyranny gap" (to use an expression of my friend Akhil Amar). Once again, the President would have greater powers than the King of England, George III.

To avoid this result, there was an easy and obvious structural argument: The Suspension Clause should be read to hold that preservation of the common law writ of habeas corpus must include the power of federal courts to issue the same sorts of writs against the federal government that states could have issued against their own governors and executive officials before 1789, or that English courts could have issued against the Crown. (If Congress did not choose to create federal courts, the principle would require that Congress vest this jurisdiction in some group of state courts, most likely with a right of appeal to the U.S. Supreme Court. But in 1789 Congress made its choice: it created a federal judiciary and gave it jurisdiction over habeas.)

Now we see why Chief Justice Marshall, even before Tarble's Case, thought that Congress felt an obligation to create federal habeas jurisdiction. Ex Parte Bollman was a prosecution for treason arising in a federal territory, the District of Columbia. It was one of these new cases created by the formation of a new central government superimposed over the states, a situation where state jurisdiction might not be available. As Marshall said,"for if the means be not in existence [to deal with such cases], the privilege itself would be lost, although no law for its suspension should be enacted."

Hence, the basic principle of the suspension clause is: if courts in a pre-ratification state government, or in the United Kingdom, had jurisdiction to bring writs of habeas corpus against their executive officials, either state courts or federal courts (if state courts lack jurisdiction) must have a structurally equivalent power. Congress has an obligation to create federal habeas jurisdiction sufficient to achieve this result. This principle outlines the constitutional core of habeas corpus. It is a matter of constitutional right, and it may not be abridged by Congress except under the conditions outlined in the Suspension Clause.

Call this principle the principle of structurally equivalent sovereignty, or, more to the point, the principle of structurally equivalent tyranny. This principle avoids the tyranny gap that would otherwise have been created by the formation of a new federal government. The principle would have made a great deal of sense at the time of the ratification of the Constitution. At the time of the Revolution, Great Britain was a major empire and maritime power, with colonies and military forces strewn around the known world. There was a great deal of mischief the King of England could do outside the territory of the British Isles, and courts were needed to keep him in line. The new American nation was becoming a lot like its British predecessor. It too, was developing into a maritime power, and it too, was amassing a sizeable quantity of new federal territory, some ceded from the states, others newly acquired. The Northwest Territory, created in 1787 before the 1789 ratification, was larger than any of the existing states. Indeed, after the Louisiana Purchase of 1803, the scope of federal territories was larger than all of the existing states put together. The idea that habeas corpus did not apply to this vast territory-- much less the nation's capitol-- would be unthinkable. The structural principle I've outlined here is the best way to make sense of what the suspension clause did-- and what it required-- for an emerging continental and naval power.

In addition to the constitutional core of habeas, Congress may create additional habeas jurisdiction. This is sometimes confusingly called "statutory habeas," to distinguish it from "constitutional" habeas. As we have seen all federal habeas jurisdiction is statutory, but some is required as part of the constitutional core.

Although Congress must pass statutes to give lower federal courts power to issue writs of habeas corpus, it does not follow, as Attorney General Gonzales seemed to suggest, that individuals have no rights of habeas corpus guaranteed by the Constitution. There is a core of habeas protection drawing on the common law that must exist somewhere in the legal system, and must be enforceable by some courts, whether federal or state. Congress may expand habeas jurisdiction beyond that constitutional core.

The issue at stake in the Guantanamo Bay litigation is whether the constitutional core of habeas applies to aliens who have been accused of being enemies of the state and confined in territory controlled by the United States. If only statutory habeas applies to the Guantanamo Bay detainees, Congress may withdraw habeas jurisdiction.

The Supreme Court has not squarely addressed this issue in Rasul v. Bush. Although the majority opinion suggested that such persons were protected by the common-law habeas right protected under the Constitution, its specific holding was only that-- in the legal context prior to the MCA-- they were at the very least entitled to statutory habeas rights.

If the MCA's alteration of habeas falls within the constitutional core of habeas, Congress and the President must either demonstrate that we are in a period of rebellion or invasion, or that it has offered an adequate substitute for habeas. Not surprisingly, the Bush Administration's major argument before the courts is that the Combatant Status Review Tribunals-- and the limited appeal from the CSRTs to the D.C. Circuit-- offer an adequate substitute for habeas.

I've given my reasons why I think the constitutional core of habeas applies to aliens within the United States and to the Guantanamo Bay detainees here. That is why I think there are serious problems of constitutionality raised by the MCA. We are in a position remarkably similar to that of the British Empire before the American Revolution; just as King George was limited by the British courts in how he could treat aliens in British territories held overseas, so too President George is limited in how he can treat aliens today.

Monday, January 22, 2007

The Political Future of Abortion Rights

JB

Today marks the 34th anniversary of the decision in Roe v. Wade.

For many years many people-- including even some supporters of abortion rights-- have assumed that Roe was a constitutionally illegitimate decision that had no basis in the Constitution's text or the principles of its framers. Recently I have argued that the conventional wisdom is incorrect, and that the right to abortion, if not the actual logic of Roe itself, is faithful to the original meaning of the Fourteenth Amendment and the principles that underlie it. You can read the full argument here.

The fact that the abortion right can be squared with the Constitution's original meaning does not tell us, however, whether the courts will retain it or overrule it. In this essay I want to consider that latter question: Will the constitutional right to abortion survive politically and legally in the long run?

As Mark Graber reminds us, constitutional controversies are usually settled when one side or the other gives up. As of now, it does not look as if one side or the other is going to give up on the constitutional right to abortion. That does not mean, however, that Roe or Casey will soon be overruled. It means rather than the abortion right will be continually reshaped in the next several decades.

For example, most people don't realize that Roe was already partially overruled in the case that purported to affirm it, the 1992 decision in Casey v. Planned Parenthood of Southeastern Pennsylvania. Casey jettisoned Roe's trimester system and adopted an "undue burden" test for regulations on abortion prior to viability.

The reason why Casey overruled Roe partially was fairly simple. The Republicans made five straight Supreme Court appointments after the Republican Party became the pro-life party in 1980. What is surprising is not that Roe was cut back, but that it survived at all. The most likely reason that Roe survived in limited form is that political factors prevented the appointment of enough strongly pro-life judges and because, after the failure of the Bork nomination, it became clear that it was not in the long-term political interests of the Republican Party to overrule Roe completely instead of chipping away at it gradually. Hence the Republican majority on the Supreme Court eventually produced a watered down version of the abortion right in Casey.

In fact, Casey gave stability to what was left of Roe v. Wade and moved constitutional doctrine (in practice) closer to the vector sum of political forces in the U.S. It allowed increased regulation of abortion-- particularly for the poor-- while preserving the effective right to abortion for affluent and middle class women.

This may not be the most just compromise from either a pro-life or a pro-choice standpoint-- in fact it may be morally obtuse for both sides, but that is true of many compromises. Evidence of Casey's success in moving the doctrine toward the political center is that most of abortion politics in the decade after Casey has nibbled around the edges of the key right-- it has concerned things like parental notification and partial-birth abortion, and largely symbolic gestures like the Unborn Victims of Violence Act, passed in 2004. Pro-life forces have been unable to succeed in wiping out the basic abortion right for affluent and middle class women. However, they have been quite successful in making it very difficult for poor women and women in rural areas to obtain abortions, and they have been able to effectively drive abortion providers out of a number of areas of the United States. But both of these results were foreseable if not inevitable consequences of the doctrinal structure created in Casey.

Nevertheless, the single most important factor in reducing the number of abortions in the United States has been increased use of and education about contraception, which some parts of the pro-life movement happily support. Other parts of the pro-life movement regard contraception (and education about contraception) as less desirable than promoting sexual abstinence programs, and still other parts of the pro-life movement actively oppose contraception as being, like abortion itself, immoral.

Given the relationship between Supreme Court jurisprudence and national political forces, it is very likely that the federal courts will not overturn Roe v. Wade any time soon, but they will continue to chip away at it. That is true even if the courts continue to be dominated by conservatives appointed by Republican Administrations. Generally speaking, the Supreme Court tends to stay roughly in sync with the vector sum of political forces in the country; since the Republicans have lost Congress recently, we can expect that it is somewhat less likely than before that Roe will be overturned; but this says nothing about marginal issues like the constitutionality of the 2003 Partial Birth Abortion act. If the Democrats regain the White House in 2008 and continue to control both Houses of Congress, it is very unlikely that Roe will be overturned in the near future.

One policy that might go some ways toward settling the political dispute over abortion would be the passage of a federal Freedom of Choice Act that statutorily codified basic features of Casey. Such an act, of course, would not pass until Democrats control both the Presidency and Congress; the last time this happened, in the Clinton Administration, inter-party squabbling prevented its passage.

There are no guarantees, of course, but Congressional ratification of Roe/Casey might bring a somewhat larger group of Americans to conclude that abortion was an established right and not a mere imposition by federal judges, that abortion rights were here to stay and that people should stop trying to get rid of them. No doubt many people would continue to have strong moral objections to abortion even if Congress passed a Freedom of Choice Act. But the question is not whether such a settlement would make abortion moral for abortion opponents (it would not). The question is whether the passage of a Freedom of Choice Act ratifying Roe/Casey would lead a sizeable number of abortion opponents to conclude that the best way to fight this particular form of immorality was not through seeking criminalization of abortion, but rather through other methods, like moral suasion, promoting adoption, pushing for social policies that eased the financial hardships of poor women who would otherwise choose abortion, and, for some abortion opponents, promoting contraception and family planning.

This possible scenario is not entirely fanciful. Many people who once sought to criminalize same-sex sodomy now view homosexuality as immoral but not an appropriate subject for state criminalization. It is possible that the same thing may someday happen to abortion.

Obviously, the opposite result may also occur: someday most Americans may come to believe that abortion is immoral and that it should be criminalized everywhere. Or Roe may be overturned and we will have abortion legal in some states but not in others. I think these two scenarios are a bit less likely, but I have been wrong before about so many things that neither would entirely surprise me. For the foreseeable, future, however, I think the country will probably stick with the Casey compromise, not because it is particularly good policy from the standpoint of either the pro-life or pro-choice side, but because it protects abortion rights for affluent and middle class women, who, not entirely coincidentally, are also the women who are most likely to vote.

Sunday, January 21, 2007

Good news, bad news, and some disinterested analysis

Sandy Levinson

1. The good news: There are now fewer than two years remaining in the Bush Presidency.

2. The bad news: There remain 730 days of the Bush Presidency.

Disinterested analysis:

In trying to figure out what the last two years of the Bush Administration will be like, espcially with regard to domestic policy issues, I have found myself wondering about what may a limit to the Darryl (no relation) Levinson thesis that I have strongly endorsed over the past year or so. That thesis, of course, is that the congressional members of the President's party roll over and play dead with regard to significant oversight or opposition even to what they believe is misguided policy. I continue to think that that is largely true as a firsti-cut explanation for the 108th and 109th Congresses that were totally controlled by the Republicans.

But things might be considerably more interesting in the 110 Congress, and not only because a bunch of Republicans clearly believe that too-close identification with "their" President might be fatal to their own chances for re-election. (And isn't it interesting that two of the three Republican senators who are running for presidency, Brownback and Hagel, have split with Bush on his conduct of the War?) Rather, I find myself wondering how much Bush really cares all that much about the health of the Republican Party, as against burnishing his own now-dreadful legacy.

A George Bush who might run for re-election might also have relatively little incentive to compromise with Democrats and instead draw firm lines in the domestic sand that could be useful in the coming campaign. But there's not going to be a coming campaign. He's out on Jan. 20, 2009 (oh happy day!), and presumably he wants to leave as something other than the most reviled president in our history. So how might he do that? One answer is by returning to his 'Texas governor" strategy, where he was indeed, relatively speaking, a uniter and not a divider, who in no very strong way pandered to the DeLay wing of the Texas Republican Party. (One of my own confessions is that I left my ballot blank in the 1998 gubernatorial election, since the Democratic candidate attacked Bush from the right (!) because he had commuted the death sentence of a mass murderer simply because the murderer clearly did not commit the particular murder for which he has been sentenced to death. According to Gary Mauro, it didn't matter, because he had confessed to other murders (for which he had not received the death sentence).) In fact, Bush did the right thing, and he hadn't done so much that was clearly wrong that I was willing to swallow hard and vote for Mauro. So I left my ballot blank. When Bush was handed the White House in elected in 2000, I assumed, both because of the "objective situation" and his demonstrated proclivities as Governor, that he would be a center-rightist. We know that didn't happen, in part because of being convinced by Rove and others that a "play to the base" strategy would be most successful. And so it was, for a while....

But playing to the base, when one isn't running for re-election, is a terrible strategy if one is trying actually to accomplish anything and burnish one's reputation, especially, obviously, if Congress is now controlled by the Democrats. So the long and short of my "disinterested analysis" is to ask exactly what incentive Bush has to continue to be Mr. Obdurate with regard to Democratic proposals? Why exactly shouldn't he sell out conservative congressional Republicans, who increasingly have nothing to give Bush beyond the ability to uphold his vetoes? But to leave the White House in 2009 as a combination of "Mr. Iraq disaster" and "Mr. Naysayer to progressive Democratic legislation" (much of which, incidentally, will have the support at least of "blue-state Republicans" panicked about the upcoming election) doesn't seem to all that attractive a possibility.

It is possible, of course, that Bush has deep convictions on domestic policy issues (such as stem cell research). It is also possible that he has deep convictions about sacrificing his own "historical interests" in being other than one of the five-worst presidents of all time (contending with Andrew Johnson, James Buchanan, Warren Harding, and James Madison). But, to put it mildly, Mr. Bush does not seem to be into self-sacrifice.

Bill Kristol made a great deal of political sense, alas, in 1993 when he advised Republicans in Congress to stiff-arm Clinton on medical care reform unless they wanted to hand the presidency to the Democrats for the foreseeable future. Democrats may have their own incentives not to compromise with Bush on the grounds that they want to lay the grounds for a 2008 campaign based on a "sweeping clean" of of the Bush legacy. But, as already suggested, aren't Bush's incentives, at least in the domestic arena, to compromise like mad? Is this why he has suddenly reversed course on FISA (much to the dismay of National Review)? Is this why he is even willing to countenance what is in fact a tax increase, though quite possibly a dumb one, to pay for medical insurance coverage of those who are now without?

Needless to say, I still believe he is the most incompetent President in our history and I continue to dislike the Constitution for not giving us the ability to evict him from the White House. But I don't rule out that he may surprise us in the next two years for the most self-interested (instead of Party-interested) of reasons. So, in summary, if I were a Republican, I would be very, very scared of what the next two years will bring, as distinct from the way that I am scared simply as an American.

Bush: I like the sanctity of human life as long as it doesn't get in the way of my political coalition

JB

Today, according to President George W. Bush, is National Sanctity of Human Life Day. The declaration, which comes a day before the 34th anniversary of the decision in Roe v. Wade, is a transparent ploy that seeks to appeal to his base of social and religious conservatives, as we can see in these paragraphs:
Among the most basic duties of Government is to defend the unalienable right to life, and my Administration is committed to protecting our society's most vulnerable members. We are vigorously promoting parental notification laws, adoption, abstinence education, crisis pregnancy programs, and the vital work of faith-based groups. Through the "Born-Alive Infants Protection Act of 2002," the "Partial-Birth Abortion Ban Act of 2003," and the "Unborn Victims of Violence Act of 2004," we are helping to make our country a more hopeful place.

One of our society's challenges today is to harness the power of science to ease human suffering without sanctioning practices that violate the dignity of human life. With the right policies, we can continue to achieve scientific progress while living up to our ethical and moral responsibilities.

National Sanctity of Human Life Day serves as a reminder that we must value human life in all forms, not just those considered healthy, wanted, or convenient. Together, we can work toward a day when the dignity and humanity of every person is respected.


This declaration would mean far more if the President were actually serious about "valu[ing] human life in all forms, not just those considered healthy, wanted, or convenient." After all, he did not use this occasion to apologize for his dreadful war in Iraq, which destroyed countless lives, and promises to destroy even more-- or to announce that he has rethought his absurd idea of a too-little-too-late "surge" in American troops that is likely to do nothing more than increase the number of dead and wounded. Indeed, far from respecting the dignity of human life, the surge is a policy that will sacrifice some unspecified number of casualities so that George W. Bush can save face and pass the problem of Iraq to his successor.

Nor did President Bush announce that he had suddenly become a convert to the belief that the death penality violates both human dignity and the sanctity of life and seek its gradual abolition.

Nor did he apologize for the forms of torture and prisoner abuse in secret CIA prisons and at Guantanamo Bay that violated human dignity.

Nor did he apologize for the Military Commissions Act's retroactive immunization of American officials who justified and carried out these outrages on human dignity.

Finally, and perhaps most importantly, the President did not use this opportunity to call directly for overturning Roe v. Wade. If he was really serious about protecting the sanctity of life as he sees it, he would do more than nibble about the edges with makeweights like the Born-Alive Infants Protection Act of 2002: he would state, clearly and forcefully, that Roe v. Wade is legalized murder and demand that it be overturned immediately. But he has not done so. Indeed, throughout his political career George W. Bush has always appealed to pro-life voters but has always stopped short of advocating the policy that they actually seek-- the overturning of Roe and the criminalization of abortion. The reason is that he knows the achievement of both of these would be a disaster for the electoral prospects of the Republican Party. Clearly some things are far more important than protecting the sanctity of human life. In fact, for this President, there appear to be a great many such things.

And so he has been content to issue proclamations like this one, which are full of sound and fury, signifying nothing.


Saturday, January 20, 2007

Free Speech on Campus and Thomasian Originalism

Mark Graber

This week I received a mailing asking me to sign a petition supporting Professor Stephen F. Smith’s candidacy for the Board of Trustees at Dartmouth College. Professor Smith, a former clerk for Justice Clarence Thomas, seems particularly concerned that Dartmouth has been violating the free speech and due process rights of conservative students. Not knowing the details, I cannot say whether he is right by my understanding of due process and free speech. I am a bit puzzled, however, by how Dartmouth could be said to be violating the due process and free speech rights of students as Justice Thomas seems to understand these matters.

Although, again, I do not know the details of present affairs, I rather doubt that the Dartmouth administration has done anything inconsistent with the free speech and due process rights of college students as they were understood in 1769, when Dartmouth was founded. Similarly, good reason exists for thinking that Dartmouth is not violating free speech and due process rights as they were understood in 1791, when the Bill of Rights was ratified. This is probably correct, even if we forget that, as a private institution, students have no free speech or due process rights against Dartmouth College. Insulting speech in 1791 was not liberty, but license and, as such, was rarely protected. Of course, the possibility exists that at some later date Dartmouth adopted a textual guarantee of due process and free speech (I don’t know). Still, given that Justice Thomas insists on interpreting the due process clause of the Fourteenth Amendment (ratified in 1868) as meaning what due process meant in 1791 when the due process clause of the Fifth Amendment was ratified (see, for example, his dissent in Kelo, the condemnation case), then those who follow in his footsteps would seem honor bound to interpret any unmodified reference to free speech and due process adopted by Dartmouth College in the nineteenth or twentieth centuries to mean what free speech and due process meant at Dartmouth during the eighteenth century. Matters become even more difficult when one recognizes that the Dartmouth administration may believe that there is a culture war going on and that, following Bush administration practices heartily endorsed by Justice Thomas, they may think that persons on the wrong side of the culture war do not have free speech or due process rights.

One suspects, of course, that Professor Smith means approximately what I mean by free speech and due process, that our differences are probably at the margins (for those interested, there is an old 1994ish Vanderbilt Law Review piece in which I suggest constitutional problems with proposed speech regulations on campus). Both of us, I suspect, believe that the due process rights of Dartmouth College students should reflect our best contemporary notions of fairness and that free speech rights on campus should be consistent with contemporary notions of intellectual exchange. When we speak of free speech and due process, we do not refer to particular practices in 1769 or 1791, but to broader values whose understandings have changed and improved over the years. Neither conservatives nor liberals, this suggests, are Thomasian originalists in everyday discourse. Thomasian originalism, Professor Smith's candidacy for the Board of Trustees seems to indicate, is a doctrine for measuring the rights of people conservatives do not like and has no bearing on the rights of conservative students.

Friday, January 19, 2007

Attorney General Gonzales: There is no right to habeas corpus in the United States

JB

In his Senate Judiciary Committee testimony yesterday, Attorney General Gonzales matter-of-factly suggested that there is no right to habeas guaranteed by the U.S. Constitution; the Constitution merely states that the right of habeas, whatever it is, cannot be suspended except in cases of rebellion or invasion.

Senator Specter was deeply skeptical of this answer, as well he should be.

Prohibitions against suspension are a guarantee of an underlying right, because they prevent certain legal relations between the state and individuals from being suspended except under very limited conditions; and that is what Gonzales' too-clever answer glossed over.

Gonzales might have been trying to suggest that statutory habeas was not covered by the Suspension Clause of Article I, section 9, but his remarks went much further, stating that "the Constitution doesn't say, 'Every individual in the United States or every citizen is hereby granted or assured the right to habeas.' It doesn't say that. It simply says the right of habeas corpus shall not be suspended . . ." Note that Gonzales did not limit himself to individuals within the United States-- he included citizens as well.

Perhaps Gonzales misspoke under the glare of a hostile judiciary committee hearing. But his remarks show a very worrisome approach toward the Great Writ, and it is not the first time we've seen it. It is the same approach we've already witnessed in the Administration's views about Jose Padilla, Yasser Hamdi, and other accused enemy combatants, as well as its views about detainees at Guantanamo Bay, Cuba. Under this approach, habeas corpus is *not* an individual right. It is merely a default rule that can be waived in the interests of national security according to the judgment of the President as Commander-in-Chief.

What is most troubling about this view-- that habeas is not a right but a default rule rather easily dispensed with-- is that it undermines the very purpose of the Great Writ, both in the United States, and in Great Britain, where it originated: The possibility that the King could dispense with the rule of law and throw individuals in prison because he regarded them an enemy of the state is the very reason why we have a writ of habeas corpus. Substitute "George W. Bush" for "King" and you are rapidly approaching the Administration's desired position.

It's important to note that the suspension clause is not only a limit on the President; it is also a limit on Congress. It prevents a Congress, docilely subservient to a demagogue, or charismatic politician, or even the leader of the majority party going into contested elections-- from using fear and paranoia to suspend the Great Writ for political gain. Instead, Congress may give the President the power withheld to Kings only if there is proof of rebellion or invasion, *and* the public safety requires it.

Congress may substitute a remedy equally adequate for habeas, but the burden must be on Congress and the President to demonstrate its adequacy to the satisfaction of an independent judiciary. If Congress could impose any procedure and state that it was equivalent, it would allow an easy end-run around the protections afforded by the suspension clause.

I had thought that these ideas were too obvious to note. Apparently they are not: ambitious politicians, eager to eliminate all obstacles to their power, seem always to forget them, or at least pretend to.

And so it has come to this-- we must remind Attorney General Gonzales that he is the nation's chief law enforcement officer, and that the basic rights underlying our legal system can not be so easily dismissed.

These are sad days for the American Constitution.

Thursday, January 18, 2007

The Bully Presidency

JB

I want to second Marty's excellent post on the Administration's apparent reversal on judicial review of the NSA domestic surveillance program and make only a few additional comments.

First, there is a remarkable similarity between the Administration's behavior in the Padilla case and its behavior here. Recall that the Administration held Padilla in a military prison for three years and insisted that he could not speak to anyone-- much less have the basic rights in the Bill of Rights-- because to do so would put our country at grave risk. Once the Administration realized that the Supreme Court would likely reject its theory of Presidential power, it backtracked and placed Padilla in the criminal justice system-- thus undermining all of its predictions and assertions. It moved Padilla out of a military prison and brought an entirely different set of charges against him, hoping to moot the challenge to what it had done to Padilla earlier and prevent an authoritative rejection of its implausible claims about the powers of the Presidency.

Similarly, in this case, the Administration insisted for months that the President did not need to follow the procedures in FISA, either because of the AUMF or because of inherent Presidential authority. Apparently, it has now retreated from that legally untenable position, hoping to moot, or at the very least disarm, federal litigation challenging the legality of the NSA program. Once again, the goal is to prevent a court from stating clearly that the President acted illegally and that his theories of executive power are self-serving hokum.

When we put these two stories together, a pattern emerges: the Administration repeatedly takes unreasonable positions about its powers. It insists that obedience to these views is necessary to the very survival of the Republic and that those who would dare to disagree are jeopardizing national security. It makes these aggressive claims repeatedly in every venue, hoping that others, cowed by its aggressive self-confidence and patriotic appeals, will be overawed and simply give in. It struts and boasts and threatens and exaggerates until its bluff is called, at which point its previous assertions simply become-- as they once put it in the Nixon Administration-- inoperative. Put another way, the Administration's stance on Presidential power has resembled nothing so much as an altogether familiar character, the neighborhood bully.

If that is so, the best policy for Congressional Democrats and those who oppose the President's high-handedness is not to give in to the Administration's exaggerated and aggressive views about its own power, but rather to repeatedly call the President to account whenever he overreaches. The only way to deal with a bully, it seems, is to stand up to him.

Second, the Administration's credibility is thoroughly compromised by this about-face, that is, if it had any credibility left to compromise. It has long suggested that the NSA program was incompatible with FISA because FISA itself was inadequate to the challenges presented by international terrorism. The NSA program could not be limited to particular targets based on reasonable grounds of individualized suspicion, as FISA requires. That was the chief reason why the Administration-- and defenders like Judge Richard Posner, to name only one-- insisted that FISA was outmoded. Now it turns out, apparently, not so much. By submitting the NSA program to the FISA courts,the Administration seems to be saying that its program is directed at particular targets of suspicion, and is therefore consistent with the FISA framework.

It is possible that the Administration is being deliberately obscure on this point, and that it is, in fact, engaged in broad spectrum data mining of the kind hinted at earlier. But for the moment, we must take it at its word-- at least, that is, until we find, once again, that it has not spoken the truth.

The NSA-- and indeed, the government in general-- is full of patriots who are trying to protect our country from new threats and continuing dangers. But they, and the intelligence community in general, are being very badly served by this Administration. This Administration's primary goal seems to be the accumulation of Presidential power for its own sake; it has used the intelligence services and their programs as a device to promote this end. If the President had been seriously interested in working with Congress-- instead of protecting ever possible assertion of executive power-- the federal government might easily have adjusted FISA to deal new needs for data collection and surveillance, especially in the days following the 9/11 attacks. Instead, the Administration used perceived deficiencies in FISA (some of which, it turns out, were not deficiencies at all) as an excuse to disregard the law, so that it could make claims of unbridled Presidential authority to ignore FISA. Those claims were unreasonable at the outset, and, more to the point, they were wholly unnecessary to achieving sound reform.

Someday, historians will look back on this Administration and regard it as the worst friend the Presidency ever had. It was so eager to amass power that it threw claims of power into disrepute. It stretched the truth and backtracked on its most vigorously asserted claims so often that few believed it any more when it talked about national security. It tried so hard to assert its legal authority that it squandered much of its moral authority. George W. Bush and his cronies did the Executive branch no favors; we can only hope that the next President actually does what Bush said he would do in 2000-- restore honor and dignity to the Presidency.

Wednesday, January 17, 2007

Terrorist Surveillance Program . . . Never Mind? Or New and Improved (and "Complex and Innovative")?

Marty Lederman

Hmmmmm . . . this is a twist. The President has "determined not to reauthorize the Terrorist Surveillance Program when the current authorization expires," and the Department of Justice will now submit its surveillance applications to the FISA Court for approval. Indeed, this volte-face apparently is the result of the fact that DOJ has convinced a FISA judge to issue "innovative and complex" orders in one precedential case already. So says a new letter from the AG to Senators Leahy and Specter.

According to the letter, the FISA court seems to have approved orders finding that at least part of the FISA statutory standard was [would be?] satisfied -- that "one of the communicants is a member or agent of Al Qaeda or an associated terrorist organization." (That's not quite the statutory standard, which requires that the target of the intercept be such an agent, and also that "each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.") It apparently took "considerable time and work" for DOJ to persuade the FISA judge to go along with whatever this newfangled sort of approval is. (According to Tony Snow, the FISA Court has promulgated "guidelines" and "rules" to govern this new form of approval.)

The ACLU case challenging the legality of the TSP is, at least for now, scheduled to be argued before the U.S. Court of Appeals for the Sixth Circuit in two weeks. And a decision in a related case is pending before Judge Lynch in the Southern District of New York. Does this development moot those cases? [UPDATE: DOJ has informed the court of appeals that it intends to file both classified and public papers soon "addressing the implications of this development on the litigation."]

Is the FISA court being asked to determine whether partilcular instances of surveillance satisfy FISA's substantive standards? (Presumably, but who knows?) To somehow do so on a category-wide basis, issuing generalized rather than case-specific orders? (That would be "innovative," that's for sure! Hard to see how the statute would allow it.)

[UPDATE from the NYTimes:
Justice Department officials said that the FISA court orders, which were not made public, were not a broad approval of the surveillance program as a whole, an idea that was proposed last year in Congressional debate over the program. They strongly suggested that the orders secured from the court were for individual targets, but they refused to provide details of the process used to identify targets — or how court approval had been expedited — because they said it remained classified. . . .

Justice Department officials would not describe whether the court had agreed to new procedures to streamline the process of issuing orders or accepted new standards to make it easier for the government to get approval to monitor suspect e-mail and phone communications. But the officials suggested that the effort to obtain the court’s approval for orders on Jan. 10 was not easy. “These aren’t some sort of advisory rulings,” one official said. “These are orders issued by the FISA court, not some cookie-cutter order. These orders are complex. It took a long time to work on this.”

The officials said the new approach was based on evolving legal interpretations of the foreign surveillance law by the Justice Department, changes in the foreign surveillance statute in recent years and precedents set by the FISA court in approving specific requests to conduct electronic monitoring.
The transcript of the background conference call with DOJ officials is here. The officials there claimed that the new procedures "will comply in all respects with the requirements of the FISA statute," and that the FISA court is making probable cause findings pursuant to statutory standards. One official did stress, however, that the orders "take advantage of . . . developments in the law before the FISA court." In other words, the FISA court apparently has been persuaded that in some respects the FISA statute is more forgiving than previously understood -- that it demands less proof or proof of a different kind than what the court once required. Orin Kerr provocatively surmises that perhaps what's going on here is a form of anticipatory warrant. It's unlikely that we'll know the details of this secret new internal law of FISA anytime soon.]

Why didn't this happen years ago? Might it have something to do with the prospect of a possible big government triple-loss on (i) state secrets privilege; (ii) FISA; and (iii) its article II arguments -- a development that DOJ would understandably be eager to avoid?

Curiouser and curiouser . . .

[UPDATE: Without knowing anything more about it, my sense is that this is probably a beneficial development, whatever its impetus might have been. I find it very difficult to imagine that the FISA court would roll over and approve an "innovative" legal theory if it were dubious -- especially not in this context, where DOJ has many incentives to get the FISA court on-board and where the congressional and public spotlight is shining so brightly. Without the New York Times, and Judge Taylor, and the 2006 election, this would never have happened. Sunshine is the best disinfectant, and all . . . . Even though the public might never find out exactly what's up here, presumably Congress and the FISA court are now acting as some not-insignificant checks. And if so -- if the extreme and unilateral positions of the Executive are a thing of the past here, the system has worked.

But that's only a tentative judgment, of course.]

[QUESTION FOR OLD-SCHOOL FISA INSIDERS/OLD-TIMERS: Would we have gotten to this point, say, five years ago, and avoided the whole constitutional crisis, if Mary Lawton were still alive?]

ANOTHER GOOD SIGN:

This press release from the new Chair of the House Intelligence Committee, Silvestre Reyes:

For the past year, since the disclosure of the President's warrantless surveillance program, I have urged the Administration to seek warrants from the Foreign Intelligence Surveillance Court before eavesdropping on the American people. Today, the Director of National Intelligence informed me that the Administration has heeded this advice and will now seek court authorization for all surveillance conducted under this program.

This decision is welcome news, if long overdue. It proves that this surveillance has always been possible under the Foreign Intelligence Surveillance Act (FISA) and that there was never a good reason to evade the law. I commend our former Ranking Member Jane Harman, who pressed the Administration for months to bring this program under supervision of the FISA Court.

This announcement does not end our Committee’s interest in this matter. Until our Committee has the opportunity to review the Court orders and conduct in-depth oversight over this program, I am withholding judgment on whether it is effective and whether it protects the rights of the American people.

The President still insists that he has the inherent authority to conduct surveillance of Americans without court warrants. I strongly disagree and believe that FISA remains the exclusive way to conduct electronic surveillance of Americans.

I also recognize that the effort to bring this program under FISA required a great deal of work by the Attorney General and his team, and I am hopeful that the decision to comply with FISA will demonstrate a renewed commitment to the Constitution and the rule of law.
YET ANOTHER . . . apoplexy over at the National Review:

What is the White House thinking? Is there no principle subject to negotiation? Is there no course subject to reversal? For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president's Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House's credibility. How can it cast away such a fundamental position of principle and law like this?

WWKD (What Would Kant Do?)

Scott Horton

Stanley Fish, writing in the New York Times on Sunday examines what Immanuel Kant would tell us about affirmative action programs at American universities. He gives us a great discussion of Kantian principles relating to morality and politics as they affect the subject, and it produces a lot of interesting insight. Fish does not propose any definitive call on the question, but he tends to put Kant on the side of the affirmative action critics. He writes:

I do not mean to suggest that because Kant (at least in my account of him) would agree with Justice Thomas, the case against affirmative action has been decisively made. I am just noting that the two actions Kant contrasts – legislating in response to perceived social needs and legislating with an eye always to first principles – have defined the affirmative action debate from its beginning and continue to do so.

I don't see any obvious flaws in Fish's analysis. But I am not so certain that Kant would come out where Fish obviously does (indeed, Kant seems to be wielded throughout the piece to support what appear to be Fish's views).

I don't know how Kant would judge the affirmative action question. No doubt he would think it important. The academy was extremely important to him. And as Kant died, its potential as a force for social transformation was increasingly obvious in the German-speaking world. The university was emerging as a vital forum for political thought, and thinkers like Kant were having an electrifying impact. The aspiring middle class (what came to be called the Bildungsbürgertum) was also seeing university study as a vehicle for social and political promotion. In Kant's political thought, this educated elite – what he called the "reading public" – was vital. The appeal he makes in writings like Towards a Perpetual Peace is directed to them. But it is significant to note that this is an elite. Fish suggests that Kant's attitude is molded by a fairly stark egalitarianism (he notes "the equality of each with all the others as a subject (Untertan)")(Theorie und Praxis II). But of course, Kant was decidedly no radical democrat, notwithstanding some flirtations with Jacobin thought at the outset of the French Revolution. Indeed, it is noteworthy that during the revolution, he wrote about "liberté" and "fraternité" with the decided avoidance of the term "égalité." He embraces the idea of representative democracy, and he aspires for the rise of a governing elite composed of the intellectual best rather than those born to wealth, title and privilege ("Wisdom will come to the courts out of the study halls," 15:1436). Indeed, we don't know what Kant would say about affirmative action in general, but we know very clearly what he thinks about one form of affirmative action: the admission of the "legacy" candidate based solely on his privileged family connections. This is inexcusable. (Rechtslehre).

It does seem to me that there are some important points that Fish neglects which would contribute to a more complete understanding.

First, Kant had vehement feelings about slavery and the slave trade, which were extraordinary for his times. He had a generally positive view of England, but this – and the English monarch's decision to use force of arms against the American colonies – soured him on Prime Minister Pitt ("perhaps he seeks to promote freedom and culture – perhaps – but the barbarous slave trade certainly stands higher on his agenda") and on England ("The English nation (gens), viewed as a people (populus), constitute the most valuable link in the entire chain of humanity. Yet as a state dealing with other states, is it not the most miserable, domineering and warlike of all states?" 15:1366).

Second, Kant had equally strong feelings about nations which were wrongly conquered and subjugated. He felt their people were entitled to compensation for the injury done to them. These views appear several times in his writings, most notably in the allusions to the partition of Poland found in Perpetual Peace, in writings about the English repression of the American uprising (15:1444, 1453) and in his discussion of British colonial policy towards the Indian princely states (15:1366). Among the wrongs he identifies are the seizure of property and the practice of impressing the peoples of the subjugated states into involuntary servitude or slavery. Kant makes clear that in a just world the people so abused would be entitled to compensation. He would certainly not view claims for reparations by slaves or their immediate offspring as whacky. On the other hand, it seems unlikely he would carry these claims forward over many generations, since that would tend to violate the concept of equality of subjects ab initio.

It seems to me that Fish is right in identifying the main concepts in Kantian thought that weigh against affirmative action. Even so, I think the passages I have cited show that Kant would personally be far more sympathetic to this idea than Fish allows.

Still, this is a useful exercise, and I hope Stanley Fish will give us more in the future.

P.S. Stanley: your wife is right.

Tuesday, January 16, 2007

An Audacious Claim About Our "Constitutional Culture"

Sandy Levinson

In today's Washington Post, David Rivkin and Lee Casey make the rather astonishing statement "that efforts by some congressional Democrats to chastise the president through a resolution of "no confidence" in his Iraq policy have no place in our constitutional culture." Readers of Balkinization are more than aware of my perhaps tiresome insistence that it is a severe defect in our constitutional system that there is no way of removing an incompetent (even if he/she is not a "criminal") president through a no-confidence vote. (Incidentally, there are 735 days remaining in George W. Bush's term, for those who are interested in the countdown.)

It would be impossible to take issue with Rivkin and Casey, described as Washington lawyers who worked in the Reagan and George HW Bush administrations, if they were saying simply that we are are indeed stuck with an incompetent in a way that we are not stuck, at least as a formal matter, with a criminal. (I would not, of course, expect them to agree with my assessment of George W. Bush, though these days one never knows what Republicans are saying to each other privately.) But their statement goes far beyond this truism about our system. They seem to be saying that Congress cannot even speak as a collective body and declare its loss of confidence in the leadership being shown by the Chief Executive/Commander in Chief.

I am not aware that there are limits on Congress's power to speak through passing resolutions that do not, after all, have the force of law. Indeed, I remember very vividly being in China in 1987 and trying to explain to justifiably confused Chinese scholars how it was that Congress could pass a resolution denouncing Chinese oppression in Tibet even as the official spokesman for the State Department explained that "the United States" viewed it as an internal matter of the People's Republic of China. I explained that it is simply a category mistake to view the US as having a unitary "government" in the way that Her Majesty has such a government. It may be the case that, when push comes to shove, the President is indeed "the Decider" (as to how to cast our vote in the UN, for instance), but this doesn't stop Congress from weighing in, for good or for ill, with its own views on matters of foreign policy. Thus I fail to see any serious argument against the propriety of Congress passing a resolution manifesting its loss of confidence in George W. Bush. To say that it has "no place in our constitutional culture" is just another power play by those who believe in an overweening Executive, and one might well believe that it is just such Executive supremacists who are trying to transform our constitutional culture moreso than members of Congress who are suggesting the relatively mild step of a resolution of no confidence.

Top State Department Lawyer Blogs About Guantanamo

Brian Tamanaha

The Legal Advisor to the State Department, John Bellinger, is guest blogging this week at Opinio Juris (the premier international law blog). Bellinger is articulating detailed legal justifications for the Bush Administration’s policies in connection with Guantanamo, torture, and related issues. To see some of the real world consequences of these policies, read this Washinton Post article about the many people still languishing in limbo at Guantanamo five years on.

Bellinger’s initial substantive post made this request of readers:
My purpose is not to persuade readers to agree with Administration policies. But I would ask readers to engage in serious legal analysis. If you question our approach, I would ask you to consider whether a different approach is actually legally required or simply preferable as a matter of policy.
This request seems reasonable enough, but it is a bit tricky. He sets it up so that opponents are placed in one of two categories: an alternative to the Bush Administration’s position must be “legally required,” or it is a policy preference (and therefore can be ignored). “Legally required” is an extremely high standard, one not easily met in domestic law, never mind in international law. But there are other standards, for example: legally persuasive (supported by compelling legal arguments), or legally authoritative (consistent with rulings by international tribunals), or consistent with the legal interpretation shared by most of the rest of the world. A major problem with the Bush Administration’s positions on some of the critical issues is that they run afoul of these other standards, standards which many international observers consider appropriate.

Bellinger, of course, does not hold the Bush Administration to the same high standard that he applies to opponents, or even to the lower alternative standards that I suggest. As long as the Administration's position is “arguable,” that appears to be good enough.

Consider, for example, Bellinger’s earlier observations about Article 75 of the Geneva Protocol, which the US has heretofore consistently maintained is binding under customary international law:
“Article 75 of Geneva Protocol I does set a generally minimum standard for people who do not benefit from other provisions of the Geneva Convention, and the U.S. has historically said that we think that is customary international law. We are looking at whether we think it is customary international law in this kind of a conflict. There is certainly a good argument that it is, always. But when it comes to customary international law, it is in things that you are customarily dealing with, and people have not had to customarily deal with armies of terrorists where the entire force of the army, not just a few people but the entire force of the army, is in fact intent not on fighting our armed forces, where sometimes guerrillas who have been contemplated by Geneva Protocol I…, but where the entire army of al-Qaeda is in fact intent on combating our civilians.

“So while you make a reasonable point, we have said that that’s customary international law in the past, we are looking at whether that’s appropriate, and we haven’t said that it isn’t, but we have not yet said that it is, because this really is in that regard -- dealing with people whose whole aim in life is to kill civilians -- is sort of a different situation.”


I guess Bellinger's explanation for why a provision we have previously (repeatedly) said is binding might not be binding on us in this situation is arguable (which is not to say that it is convincing), though it is telling that his words are hedged and twisted into a pretzel.

In another interview, Bellinger made the following statements about torture:
State Department legal adviser John Bellinger said the US welcomed the dialogue and would try to answer the committee's [the Committee Against Torture, in Geneva, May 2006] questions.

But he said incidents of abuse were "not systemic" and urged the panel "not to believe every allegation that you've heard".

"Allegations about US military or intelligence activities have become so hyperbolic as to be absurd," he said.

US Deputy Assistant Secretary of Defense Charles Stimson said 120 detainees had died in Iraq and Afghanistan, 29 of whom might have been abused.

He said suspected cases were investigated and "appropriate action taken”.
It’s not clear how to interpret Bellinger’s denials. Various reports have indicated that prisoners in US custody have been subjected to stress positions (many hours standing in restraints), held in cold conditions and doused with cold water, and subjected to waterboarding. Is Bellinger denying that any of this took place (and how does he know?)? Or is he saying that this treatment does not constitute “abuse” or “torture” (which the Bush Administration has suggested implausibly in the past)? [Stimson, by the way, made national news in the past few days by attempting to intimidate the corporate lawyers who defend Guantanamo prisoners, which says a lot about his believability. And how many of those deaths have resulted in prosecution?]

If we are indeed fighting a new kind of war—the so-called “Global War on Terror”—it is essential that the US obtains international support in this effort. Right now we suffer from a lack of credibility.

Bellinger’s willingness to appear on a blog to articulate and defend the Bush Administration’s position on these issues is admirable. No doubt he will have an audience of international lawyers and government officials. Let’s hope one of his primary objectives is to rebuild US credibility. For that to happen, his legal justifications must be more than arguable, they must be legally persuasive and factually credible.

Check out his posts.

World Historical Incompetents

JB

There is an amusing discussion over at Crooked Timber, based in turn on an article in Inside Higher Education by Scott McLemee, over whether George W. Bush should be considered a World Historical Individual in the Hegelian sense.

I think this discussion admirably shows the limitations of Hegel's theory of history as much as the limitations of George W. Bush.

I have a much more modest suggestion, or rather two suggestions. One concerns the effects of the lethal combination of great incompetence and great power; the other concerns the role of contingency in history (as opposed to Hegel's notion of the inevitable working out of the Idea in history).

The paradigm cases of Hegel's world historical individuals are people like Caesar, Napoleon, Alexander, or in our day, people like Mao or Stalin, who through force of will reshape history and then are destroyed by its forces. George Bush does not seem to fall into this camp. He seems, rather, to be among those many leaders who were simply over-matched by the situation they found themselves in, and squandered the great power they held at a moment in history to the long lasting detriment of their country and the interests they stood for. Bush is like the impetuous but ignorant monarch or tribal chieftain-- there are so many of them-- who attacks the wrong country at the wrong time, and whose empire is then weakened or, in some cases, destroyed. He is among history's losers, who drags his country down with him, and these losers are not world historical individuals. If the catastrophe they engender by their incompetence and bad judgment is really significant-- take the destruction of the world order produced by World War I as only one example-- then they are world historical losers. But no one should or would confuse the last monarchs of, say, Austria and Russia with world historical individuals.

Instead, I would call such leaders world historical incompetents-- people who, put in the wrong place at the wrong time, with skills unable to the task, manage to destroy a great deal that was once thought valuable or good, and thus, unwittingly, change the world in ways they had no intention of doing.

Whether George W. Bush is such a world historical incompetent, only time will tell. But right now it looks like he is doing everything he can to qualify.

My second point concerns contingency in history, a familiar theme. Just yesterday Al Gore announced that he was not going to run for President in 2008. I am sad to hear it, but I am even sadder that he was not permitted to enter the White House in 2000, even though he won more votes than George W. Bush, and in my opinion, won more votes in Florida as well. I have discussed these issues at great length elsewhere and won't repeat the reasons for my conclusions here.

In hindsight, however, it seems to me clear that the United States would very likely have been better off if Al Gore had taken office in 2000 rather than George W. Bush. He might have proved incompetent, but it is hard to believe that, given his experience in government and in foreign policy, he could have been much more incompetent than the stubborn and inexperienced George W. Bush. There is hardly any doubt, moreover, that he would not have attacked Iraq following the terrorist attacks on September 11th, if those attacks would have occurred on his watch. (Remember that both officials in the Clinton and Bush administrations could be charged with negligence here.) Moreover, if Gore had proved bad at the job, he might have served only one term, especially since, unlike Bush, he would have gotten little cooperation from Congress, which was of a different party and would have been doing everything it could to undermine him.

How did Bush become president in 2000? Part of it is due to superior skullduggery on behalf of the Republicans, and part of it is due to Gore's inability to win Tennessee, his home state, the limitations of his campaign, and his unwillingness to send Bill Clinton out to campaign for him until the very last moment. Part of it was due to Teresa La Pore's design of the butterfly ballot. In short, the catastrophe of the Bush Administration was caused by a host of contingencies that no one could have predicted, but which, in hindsight, put an ill-prepared, stubborn and ignorant man in the most powerful position in the world, and he, true to his nature, proceeded to screw things up royally.

Had George W. Bush stayed as governor of Texas, or commissioner of Baseball-- the job he really coveted, or even a gladhanding Texas businessman-- which he was for many years, he might have had much less chance to destroy anything so great. His incompetence would not have been so magnified, and the country would not have had to pay so great a price. But sometimes, by bad chance or dumb luck, the wrong person at the wrong time with the wrong set of skills is handed enormous power, that if, badly wielded, will change the world forever in ways no one desired. Then the world witnesses something that is as unfortunate as it is unnecessary: a World Historical Incompetent.

Monday, January 15, 2007

John Roberts and an "Institutionalist" Court

Sandy Levinson

I will celebrate Martin Luther King Day by taking the day off from Bush-bashing (not that he doesn't deserve it, of course). Instead, I will devote this posting to a remarkable interview, published under the title "Roberts's Rules," in the current Atlantic Monthly. Although written by Jeff Rosen, a friend whom I much admire, the article is best described as a relatively unfiltered channelling of Roberts's views. This may simply be a way of saying that I see no good reason to be so admiring of Roberts as Jeff seemingly is. Perhaps this is because I've never met the man and thus have not been subjected to what most people who have proclaim is a very charming personality. I find Roberts's views in many ways perplexing, for reasons I will spell out.

It is clear that Roberts, like Rosen, is a great admirer of John Marshall. What he most admires is Marshall's ability to suppress the expression of independent thinking, also known as concurrences or dissents. "If the Court in Marshall's era had issued decisions in important cases the way this Court has over the past thirty years [i.e., where there have been lots of concurrences and dissents], we would not have a Supreme Court today of the sort that we have. This suggests that what the Court's been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up. I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn't it's going to lose its credibilty and legitimacy as an institution."

As a sometime political scientist, I'd be curious to know on what Roberts is basing his theory of "credibility and legitimacy." Most studies seem to suggest that the public responds fairly directly to those very few Supreme Court decisions they know anything about on the basis of whether they agree with the result. The systematic unanimity of the Supreme Court following Brown seems to have had no affect, for example, on segregationist willingness to accept even the smidgen of desegregation (one cannot possibly call it "integration") in, say, Little Rock. But it's hard to escape the common-sense view that, overall, unanimous decisions are probably better than split ones from the perspective of the Court's appearing a "court of law" instead of "a court of men and women with quite different views on what the Constitution means.

Rosen writes, "In particular, Roberts declared, he would make it his priorty, as Marshall did, to discourage his colleagues from issuing separate opinions." Thus, said Roberts, "I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they're writing separately, about the effect on the Court as institution." Again, as a political scientist and student of Robert McCloskey, I am quite happy with the veiw that judges, as a descriptive matter, are concerned with protecting the institutional interest of the Court. But note well, this protection may come at the price of what can be described as the intellectual integrity of the given justices who are being discouraged to suppress their "Herculean view" (to use Dworkin's terminology) as to what the law "really" requires in favor of submitting to (the Chief Justice's?) view of what best serves the Court's institutional interest.

It's an interesting exercise to try to figure out how this institutionalist view accords with his "umpire view" that he so notably tried to sell to the Senate Judiciary Committee at his confirmation hearings. Umpires, presumably, are not supposed to be instrumentalists, concerned with the consequences of a given call for a given game, a pennant race, or even the overall "good of preserving the good repute of umpires," unless that is simply another way of saying that good repute means undeviating fidelity to honesty. But Roberts here is defending a quite instrumentalist conception of the judge that requires at least some deviation from unflinching devotion to "calling them as you see them, which also happens to be as you think they are." It begins by suggesting that it is perfectly proper for a judge, who after all has taken an oath of office to defend the Constitution--and not "the institutional interests of the Supreme Court"--to sign opinions that he/she doesn't agree with. It is obviously the case that many judges, including those we regard as "great," have done so; it is indeed required by the very idea of a court that has repudiated seriatim opinions, one of Marshall's most important achievements. But isn't there also something a bit dicey about the notion, at least for those who take "legal fidelity" with utmost seriousness? At the very least, wouldn't it have been desirable for Roberts, at the hearings, to complement his "umpire view" with his institutionalist view and address some possible tensions between them?

Rosen invites us to envision Roberts trying to encourage Scalia and Thomas to shut up, especially where they agree with the majority outcome but not its rationale. I would love to sit in on that ocnversation. But he would presumably be even more inclined to hope that they would shut up when they are in dissent (except, perhaps, when he would be joining them). But such submission would have deprived us, among other things, both of Scalia's genuinely eloquent dissent in Hamdi (which I agreed with) and Thomas's equally important dissent in the same case (that appalled me, but, as I have discovered when teaching it, sets out the underlying issues with tremendous clarity that has convinced a lot of students). Would the country really have been better off with such suppressions, in favor of the mush written by the O'Connor plurality in that case?

"Roberts praised," writes Rosen, "justices who were willing to put the good of the Court over their own ideological agendas." But is this the way that the justices themselves describe themselves? I.e., how many of them, beginning with Roberts, have been willing to testify under oath, or, for that matter, elsewhere, that they have "ideological agendas"? Political scientists may believe that they indeed do, but I dare say that most justices, quite probably sincerely, describe themselves as being motivated by a duty to be faithful to the Constitution. Antonin Scalia sees a different Constitution than does John Paul Stevens, but that simply says that the Constitution is capable of being interpreted in different ways, not that Scalia (or Stevens) has an "ideological agenda" that the other does not. Then Roberts is quoted as saying, "A justice is not like a law professor, who might say, 'This is my theory . . . and this is what I'm going to be faithful to and consistent with,' and in twenty years will look back and say, 'I had a consistent theory of the First Amendment as applied to a particular area.'" Instead, "it would be good to have a commitment on the part of the Court to acting as a Court rather than being more concerned about the consistency and coherency of an individual judicial record."

So on what basis would Roberts have judtges in conference cast theiry votes? It's apparently not in terms of a "theory." One gathers that Roberts is a fan of Emerson and is rather cavalier about consistency. Judges are not law professors, after all. I'm happy to accept the notion that justices are indeed not law professors, but, then, what exactly does constitute the difference between a Justice and a legislator if not some believed commitment to the Constitution? Do we have any real idea what Roberts believes the Constitution to be beyond preserving the institutional power of the Court?

He suggested at his confirmation that he's a fan of precedent and narrow decisionmaking. But how does this fit with the early predictions by such experienced court-watchers as Linda Greenhouse and Joan Biskupic following the oral argument in the Seattle and Louisville cases, that Roberts (and Alito, let's not forget him) are raring to overturn decades of precedent and adopt, for the first time, a hard-core "colorblind" notion of the Fourteenth Amendment, at least where race is concerned?

Incidentally, would a "restrained" and "minimalist" Court have taken those cases in the first place? There was, after all, no conflict in the circuits, and it apparnetly took no fewer than seven conference sessions before the Court granted cert. Does anyone seriously believe that it was the "moderate four" who were raring to hear those cases? Was Roberts such a weak new CJ that he couldn't persuade even one of his conservative colleagues to wait? Or did he in fact support the grant, and will he in fact write a 5-4 opinion that will turn American public education upside down and lead to far more racial segregation even than now exists? (And, of course, will he vote, also in -4 decisions, to get rid of racial preferences not only at elite law schools, but also, and far more seriously, at the various US military academies?)

Roberts also indicated that he is unhappy with charts, as in the New York Times, Atlantic, and Harvard Law Review, among others, indicating judicial pairings and blocs. 'It is such an egotistical analysis of the Court.... I think it's bad, long-term, if people identify the rule of law with how individual justices vote." Well, there's a good institutionalist response to this problem: Follow the practice of the European Court of Justice and simply forbid any concurrences and dissents at all. The Irish Supreme Court follows a similar practice, as does, I believe, the Greek Constitutionial Court. Or, somewhat more moderately, simply issue all majority opinions as per curia, in the name of the institutional Court, so that we no longer identify a particular opinion as written by Chief Justice Roberts or anybody else. We could even have "anonymous" concurrences and dissents. So, if my call for a new constitutional convention is ever heeded and if Chief Justice Roberts is called upon to offer suggestions, what's wrong with these? As a matter of fact, I think there's a lot wrong, but I'd be interested in knowing whether Roberts agrees.

Roberts has apparently been reading some business motivation books, for he talks about the importance of "team dynamic." "You do have to [help people] appreciate, from their own point of view, having the Court acquire more legitimacy, credibility; [show them] that they will benefit, from the shared commitment to unanimity, in a way that they wouldn't otherwise. You do need some fluidity in the middle, if you are going] to develop a commitment to a different way of deciding things." Since many readers, including myself, might find this a perplexing notion, Rosen provides his own gloss: "In other words, on a divided Court where neither camp can be confident that it will win in the most controversial cases, both sides have an incentive to work toward unanimity, to achieve a kind of bilateral disarmament."

As it happens, David Law and I have published an article, in the Richmond Law Review, explaining "Why Nuclear Disarmament May be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments ." The analysis certainly holds as well for "disarming" the two camps on the current SupremeCourt. The problem is twofold: Who is empowered to "negotiate" the treaty; and then how is compliance to be enforced, given the temptations to defect? But for starters, we should try to figure out what Roberts (or Rosen) can possibly mean by "work[ing] toward unanimity." Presumably, he's not suggesting--or is he?--that justices should agree not to vote to grant cert unless it appears (when, and how, since HW Perry suggests that almost no serious discussion goes on with regard to most cert grants?) that the outcome will be unanimous. So let's assume that cert has been granted and oral argument heard. At the time of the conference, it's obvious who wins and who loses. What incentive do the winners have to make substantial concessions to the losers, especially if the winners do indeed believe that "the Constitution" compels their result (whether it's a "color-blind Constitution" or giving genuine due process to detainees)? And when should the losers be "good sports" and sign opinions that they in fact believe to deviate from the proper understanding of the Constitution and reach results that are not supported by any sound constitutional analysis?

Apparently, Roberts is going to use his assignment power, as Chief Justice, to prefer those who are "committed to broad consensus" rather than law-professor type ideologues. So does this mean that Scalia and Thomas will get no important opinions to write in the coming term? Will Roberts, like Marshall, start hogging the show as a means of disciplining his colleagues?

George Bush has "only" 736 days remaining in office. John Roberts may have upwards of 11,000 days remaining, should he serve for 30 more years. As readers of my book know, I believe that life tenure is every bit as indefensible as is the locked-in fixed-term presidency. In the nature of the case, no Chief Justice can possibly threaten us the way an incompetent President can, but it's still no small matter that he might remain on the Court in 2037. In any event, do we really have any firm basis for believing what kind of Chief Justice John Roberts will turn out to be, and do we like what we've seen so far (including the Rosen interview)?

Statement of Law Deans Concerning Stimson Remarks

Guest Blogger

Harold Koh

January 15, 2007

Statement of Law Deans*

To the Editor:

We, the undersigned law deans, are appalled by the January 11, 2007 statement of Deputy Assistant Secretary of Defense Charles “Cully” Stimson, criticizing law firms for their pro bono representation of suspected terrorist detainees and encouraging corporate executives to force these law firms to choose between their pro bono and paying clients.

As law deans and professors, we find Secretary Stimson’s statement to be contrary to basic tenets of American law. We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation. Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists, and Nazi marchers. At this moment in time, when our courts have endorsed the right of the Guantanamo detainees to be heard in courts of law, it is critical that qualified lawyers provide effective representation to these individuals. By doing so, these lawyers protect not only the rights of the detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.

We urge the Administration promptly and unequivocally to repudiate Secretary Stimson’s remarks.

Sincerely,

William E. Adams, Jr.
Acting Dean, Shepard Broad Law Center
Nova Southeastern University

James J. Alfini
President and Dean
South Texas College of Law

Michelle J. Anderson
Dean and Professor of Law
CUNY School of Law

Katharine T. Bartlett
Dean, Duke University School of Law

Louis D. Bilionis
Dean, University of Cincinnati College of Law

Terence L. Blackburn
Dean and Professor of Law
Michigan State University College of Law

Jeffrey S. Brand
Dean, University of San Francisco School of Law

Brian Bromberger
Dean, School of Law
Loyola University at New Orleans

Don Burnett
Dean, University of Idaho College of Law

Robert Butkin
Dean and Professor of Law
The University of Tulsa College of Law

Evan H. Caminker
Dean, University of Michigan Law School

Jim Chen
Dean and Professor of Law
Louis D. Brandeis School of Law
University of Louisville

Neil H. Cogan
Vice President and Dean
Whittier Law School

Jay Conison
Dean, Valparaiso University School of Law

Kenneth B. Davis, Jr.
Dean, University of Wisconsin Law School

Stuart L. Deutsch
Dean and Professor of Law
Rutgers School of Law-Newark

Allen K. Easley
President & Dean
William Mitchell College of Law

Michael Fitts
Dean, University of Pennsylvania School of Law

Stephen J. Friedman
Dean and Professor of Law
Pace University School of Law

John Garvey
Dean, Boston College Law School

Arthur R. Gaudio
Dean and Professor of Law
Western New England College School of Law

Jon M. Garon
Dean, Hamline University School of Law

Peter Goplerud
Dean, Florida Coastal School of Law

Mark Gordon,
Dean, University of Detroit Mercy School of Law

Jack A. Guttenberg
Dean & Professor of Law
Capital University Law School

Lawrence K. Hellman
Dean and Professor of Law
Oklahoma City University School of Law

Patrick E. Hobbs
Dean, Seton Hall University School of Law

Gilbert A. Holmes
Dean and Professor of Law
University of Baltimore School of Law

John C. Jeffries, Jr.
Dean, University of Virginia School of Law

Carolyn Jones
Dean, University of Iowa College of Law

Elena Kagan
Dean, Harvard Law School

Harold Hongju Koh
Dean, Yale Law School

Larry Kramer
Richard E. Lang Professor and Dean
Stanford Law School

Frederick M. Lawrence
Dean and Robert Kramer Research Professor of Law
The George Washington University Law School

Paul LeBel
Dean & Professor of Law
University of North Dakota School of Law

David A. Logan
Dean and Professor of Law
Ralph R. Papitto School of Law
Roger Williams University

Lydia Pallas Loren
Interim Dean and Professor of Law
Lewis & Clark Law School

Philip J. McConnaughay
Penn State University
The Dickinson School of Law

Susanah M. Mead
Interim Dean and Professor of Law
Indiana University School of Law - Indianapolis

Cynthia Nance
Dean and Professor of Law
University of Arkansas School of Law--Fayetteville

Charles I. Nelson
Dean and Professor of Law
Faulkner University

Nell Jessup Newton
Dean, UC Hastings College of Law

Margie Paris
Dean, University of Oregon School of Law

Elizabeth Rindskopf Parker
Dean
University of the Pacific
McGeorge School of Law

David F. Partlett
Dean and Asa Griggs Candler Professor of Law
Emory University School of Law

Rex R. Perschbacher
Dean and Professor of Law
University of California at Davis School of Law

Peter Pitegoff
Dean, University of Maine School of Law

Lawrence Ponoroff
Dean and Mitchell Franklin
Professor of Private & Commercial Law
Tulane University Law School

Lawrence Raful
Dean and Professor of Legal Ethics
Touro College Jacob D. Fuchsberg Law Center

Douglas E. Ray
Dean and Professor of Law
The University of Toledo College of Law

Robert Reinstein
Dean, Temple University Beasley School of Law

Richard Revesz
Dean, New York University School of Law

Lauren Robel
Dean, Indiana University School of Law--Bloomington

Nancy H. Rogers,
Dean, The Ohio State University Moritz College of Law

Karen H. Rothenberg
Dean & Marjorie Cook Professor of Law
University of Maryland School of Law

Edward Rubin
Dean and Professor of Law
Vanderbilt University Law School

Lawrence G. Sager
Dean, School of Law. University of Texas at Austin

Mark Sargent
Dean, Villanova University School of Law

Brad Saxton
Dean and Professor of Law, Quinnipiac University School of Law

Michael Schill
Dean, UCLA School of Law

Geoffrey B. Shields
President and Dean and Professor of Law
Vermont Law School

Gary J. Simson
Dean, Case Western Reserve University School of Law

Rodney A. Smolla
Dean, University of Richmond School of Law

Aviam Soifer
Dean, William S. Richardson School of Law, University of Hawai'i

Rayman L. Solomon
Dean, Rutgers University School of Law - Camden

Kurt A. Strasser
Interim Dean, University of Connecticut School of Law

Leonard P. Strickman
Dean, Florida International University
College of Law

Symeon C. Symeonides
Dean, Willamette University College of Law

Emily A. Spieler
Dean, Northeastern University School of Law

Ellen Y. Suni
Dean and Marvin Lewis Rich Faculty Scholar and Professor of Law
University of Missouri-Kansas City (UMKC) School of Law

Kellye Y. Testy
Dean and Professor of Law
Seattle University School of Law

Patricia D. White
Dean and Professor of Law
Sandra Day O'Connor College of Law
Arizona State University

Steven L. Willborn
Dean & Schmoker Professor of Law
University of Nebraska College of Law

Frank H. Wu
Dean, Wayne State University Law School

David Yellen
Dean and Professor
Loyola University Chicago School of Law

___________________________________

* For a complete listing of signatories, see http://www.law.yale.edu/news/4055.htm. Law School affiliations are provided for identification purposes only.

UPDATE: As of January 17, over 151 persons have signed the letter.

Tales From The National Surveillance State: Domestic Surveillance by the Pentagon and the CIA

JB

The Mew York Times reports that the Pentagon and the CIA have been using "noncompulsory" versions of national security letters to obtain financial records on Americans and American companies. Unlike traditional search warrants, national security letters do not require examination by a neutral independent magistrate to determine whether the request is reasonable and/or supported by probable cause. Instead, the agency which issues the letter decides for itself whether the request is reasonable.

The practice of national security letters by the Pentagon and the CIA is not new but the amount and scope has greatly accelerated under the Bush Administration; former Defense Secretary Donald Rumsfeld sought to greatly expand the military's intelligence gathering powers following the 9/11 attacks and therefore pushed for aggressive readings of existing law to enable the military to investigate more and more domestic activities, even though both the military and the CIA are generally banned from domestic surveillance.

The temptation for the Pentagon and the CIA to push the envelope on domestic surveillance is entirely understandable, even if it is legally dubious and creates enormous dangers for civil liberties. The National Surveillance State arises because of the changing demands of and possibilities for governance in an age that features both increased possibilities of terrorism moving across national borders and more powerful methods of electronic surveillance. Although by law the CIA and the Pentagon are supposed to deal only with "outside" threats to the country, it is increasingly difficult to decide what is "inside" and what is "outside" the United States, and what is a question of domestic law enforcement and what is a question of military defense.

As I have explained previously, the National Surveillance State tends to produce a second, parallel track that routes around the traditional criminal justice system with its checks and balances that are designed to limit executive overreach and arbitrariness. In this parallel track of investigation, apprehension, detention, and punishment, the Bill of Rights does not apply. Indeed, precisely for this reason the temptation to use and to augment this parallel track becomes irresistible for government servants; their primary mission is to protect the country from harm, and predictably, they seek to eliminate any unnecessary impediments to fulfilling their mission.

Thus, over time, the military and the CIA, faced with an increasing urgency to deal with developing threats that cross national boundaries, will push the envelope on their existing powers, expanding what were previously marginal practices, using them more extensively, and making them far more common. As they expand the parallel track, they recreate the very dangers to personal freedom that led to the checks and balances characteristic of the primary track of traditional law enforcement.

Indeed, not only is there pressure to expand the parallel track, there is pressure to "reform" the traditional track-- with its multiple checks on executive overreaching-- to allow it to harness the information obtainable in the parallel track. Thus, at the same time the CIA and the Pentagon have been breaching the boundary between foreign and domestic surveillance, the Federal government-- through the Patriot Act and other changes in practice-- has beefed up the use of national security letters (which do not require prior judicial review) and expanded the scope of executive surveillance over persons in the United States (the NSA domestic surveillance program being one obvious example). Moreover, the government has argued that the fruits of this surveillance, like the fruits of any other legal surveillance, should be admissible in the ordinary criminal justice system.

We should not assume that a change of administrations will cure these tendencies; they are the result of larger forces and systemic pressures. Our task is to find new ways to guard against the guardians of our security in the electronic age.


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