an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
There is a remarkable article in today's National Journal about the "delegation" by Alberto Gonzales of basic appointment authority to Monica Goodling and Kyle Sampson. This was accomplished in a secret memo. Apparently the first version was declared unconstitutional by OLC because it gave final authority to them; it was then revised to require approval by the AG (but, interestingly, by no one else in the DOJ), and one can be confident that the ever-soporific AG would sign anything put in front of him. Goodling and Sampson had become the de facto "deciders" at DOJ.
As the article points out, what is truly shocking is the delegation to manifestly inexperienced and ideologically driven people like Goodling and Sampson. Callow defenses of the necessity to delegate or the fact that people serve in the DOJ at the President's pleasure will not overcome the fact that this is the kind of behavior one associates with fourth-rate authoritarian governments with no scintilla of respect for what used to be called "the rule of law."
What the article omits is the extent to which religious affiliation--or at least graduation from reilgiously-affiliated law schools--has increasingly become a prerequisite for employment in the modern DOJ. This needs to be a focus on inquiry when Ms. Goodling, Regent Law School '99, comes before the committee. She was a central participant in the "culture war" that was being waged from within the DOJ. (And, no, it was not simply a matter of becoming justifiably less "elitist" and looking for the best-and-brightest from non-elite law schools.)
In any event, at long last the painful reality of the current DOJ is coming into public view. As Marty has earlier written, to focus on Gonzales's personal unfitness to serve as AG is to miss the main story. The DOJ needs to be put in receivership. Posted
by Sandy Levinson [link]
Off-topic but will you comment on this write up at Scotus blog? Monday, April 30, 2007 Commentary: Do detainees retain any rights?
Posted by Lyle Denniston at 02:06 PM
A simple conclusion of law now confronts lawyers for some 385 foreign nationals still being held captive by the U.S. military at Guantanamo Bay, Cuba: A foreigner "without property or presence in this country has no constitutional rights, under the due process clause or otherwise." That is the way the D.C. Circuit Court summed up in a ruling on Feb. 20 in two packets of detainees cases -- a ruling that the Supreme Court has now twice refused to review (once on April 2, again on Monday). Until a point arrives at which the Supreme Court might become ready to review that conclusion, it is binding and it will shape ongoing contests in lower courts in coming months, even though those contests focus mainly on questions of federal statutory not constitutional law.
Having no constitutional rights, of course, is not the same as having no rights at all. Congress has recently passed two laws -- the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006 -- that control the legal destiny of the Guantanamo detainees, and each of them provides at least some measure of judicial review of detainees' claims. But the absence of any enforceable rights under the Constitution is likely to have an influence at least on the atmospherics of the continuing legal contests, reminding judges that they are operating mainly in a realm of presidential and congressional discretion.
The Supreme Court's actual and potential role as the ultimate constitutional arbiter of the "war on terrorism" has been in the background as it put itself into the midst of the controversy over detainees' legal rights in 2004, and as it remained involved since then. But on Monday, the Court made it clear, in denying review of the latest detainees' appeal without comment, that it is putting itself and its constitutional authority on the sidelines, at least for the time being. Right now, it appears that the only thing that would draw the Court back into the fray anytime soon would be a split in the Circuit Courts; the Fourth Circuit Court in Richmond, Va., is weighing a case involving some of the same issues the D.C. Circuit Court decided and the Supreme Court refused to review this month. What the Fourth Circuit will do is, of course, unknown, but it could act soon.
The Bush Administration, from the beginning of the federal courts' engagement with the detainees, has held steadily to the argument that the detainees have no constitutional rights and thus have only so much protection as Congress was willing to provide to them. That core argument has never been upheld explicitly by the Supreme Court, but it has now prevailed in the D.C. Circuit Court -- the appeals court that, from here on, will play the central role among lower courts in defining the law as it applies to detainees. Although the Supreme Court has twice overruled that Court on detainee matters (in 2004 and 2006), it has now signaled to that Court that it may proceed as the judge of detainee rights.
It is possible to read the Justices' simple order on Monday as sending no signals whatsoever, at least not intentionally. Whether detainees or their lawyers can take any heart from that, however, is far from clear.
Here are the facts about what the Court did Monday: It had before it a quite unusual joint appeal -- one a direct appeal from a U.S. District Court dismissing Salim Ahmed Hamdan's habeas challenge to his coming war crimes tribunal before a "military commission," the other an appeal by Omar Ahmed Khadr from the same Circuit Court ruling that the Justices opted to bypass on April 2. They were different from the detainee cases denied review early in the month, because those detainees (or at least most of them) faced only continuing imprisonment at Guantanamo, while Hamdan and Khadr are facing war crimes trials with severe punishment -- perhaps death -- awaiting conviction.
It is conceivable that the Court (except for three Justices who wanted to hear the appeal) concluded that this simply was not the right procedural way to bring up the legal plight of those facing war crimes trials. Hamdan, the Court might have concluded, will have another chance to pursue a regular appeal to the D.C. Circuit to try to reinstate his challenge to the "military commissions" system, and Khadr could take a part in that, at least as an amicus, so their claims had not been scuttled.
But that might be of little reassurance to Hamdan and Khadr, because with the Supreme Court's denial of review of their appeal, the Pentagon confronts no present barrier to going forward with their war crimes trials.
Moreover, Hamdan and Khadr, like other detainees, will be pursuing what remains of their legal claims before a Circuit Court that has already declared that they have no constitutional rights, and that they are limited to whatever judicial review they can claim under Congress' 2005 and 2006 laws on detainee challenges. And, it will be that Court that will decide, in the first instance, just what Congress has granted in the way of judicial review. The detainees' lawyers have been of the view, since both the 2005 and 2006 laws were passed, that neither provides them with legal safeguards either as to their status as "enemy combatants" subject to continuing confinement, or as to the processes that will unfold in war crimes trials. There is no assurance that the Circuit Court will weigh the legality of either of those processes under the Constitution, or under any other federal law but the Detainee Treatment Act and the Military Commissions Act. Those two laws embody significant congressional deference to the military to govern its own proceeedings.
In addition, Hamdan and Khadr, as war crimes defendants, may have to go through trials and be convicted before they would be allowed to pursue any appeal before the Circuit Court.
It is these considerations, in combination, that may suggest that the legal status of the detainees overall is currently at its lowest ebb since just before the Supreme Court stepped in in 2004. It is apparent that platoons of creative lawyers, trying what seems to be almost every conceivable form of legal challenge in representing detainees, have arrived -- at least temporarily -- on the losing end.
I'm not sure that there is a more compelling example to support the proposition that the Constitution should be amended to permit impeachment on the basis of maladministration in addition to high crimes and misdemeanors, as the professor has so cogently proposed.
I have no particular qualifications to comment on Lyle Denniston's illuminating comment. (I defer to Marty Lederman on such issues.) I will note that Jack and I, in our recent article on Dred Scott, note the particular horror any anyone's being deemed to "have no rights that [the state] is bound to respect," and the cases discussed seem to capture this note. In theory, of course, it may be that MCA will be interpreted to provide some rights, but, just as obviously, it will be years from now, and until then the wretches at Guantanamo, some of whom may be "the worst of the worst," others of whom may well be the victims of monumental bad luck, will continue to be at the absolute mercy of their captors. But I'd trust anything that Marty chooses to say far more than any of my own musings on these issues.