Balkinization  

Wednesday, October 17, 2007

Questions for Mukasey

Marty Lederman

In today's New York Times, our own Jack Balkin, along with Jack Goldsmith, Jenny Martinez and Charles Fried, have some questions that the Senate should ask Judge Mukasey at his confirmation hearing this week. The Times also solicited me to provide questions, but space constraints, alas, relegated me to the cutting room floor -- an understandable decision, as you'll see, because my questions not surprisingly overlapped considerably with Jack's, Jack's and Jenny's. Anyhow, the Times (and Jack) graciously encouraged me to post my questions on Balkinization. Here they are, for what it's worth:

1. The President has a constitutional obligation to faithfully execute the law. What does "faithful" execution consist of? In particular, when it comes to questions of war and national security, is the Office of Legal Counsel’s proper role to provide the best interpretation of the law, or instead to articulate any non-frivolous legal argument in support of the President’s policy objectives?

2. If an enemy of the United States captured non-uniformed U.S. personnel, such as intelligence officers, and interrogated them using some combination of severe stress positions, hypothermia, threats, and prolonged sleep and sensory deprivation, would you conclude that the U.S. persons had been subjected to torture or to "cruel treatment" prohibited by Common Article 3 of the Geneva Conventions, or would you say that the enemy had acted lawfully? [This question is obviously inspired by questions that Senator Durbin asked AG Gonzales. His answer?: "[I]t would depend on circumstances, quite frankly."]

3. Does the President have the constitutional authority to engage in significant military hostilities against Iran without congressional authorization?

4. If Congress enacts legislation providing legal immunity for telecommunications corporations that assisted the government in legally dubious surveillance activities, would you agree, in turn, (i) to provide Congress with the legal rationales underlying those activities, including the representations that were made to the corporations (after all, is there any justification for withholding from Congress information that is known to corporate officials and technicians?); and (ii) to support legislation that would facilitate judicial review of the government’s surveillance activities, including provisions that would confirm individuals’ right to sue and that would significantly narrow the so-called "state secrets" privilege (but where actual technological secrets of the National Security Agency would be revealed only to judges, and not to the public)?

Also, my friend and former OLC colleague Dawn Johnsen is testifying today on similar issues before the Senate Judiciary Committee. I'll post her testimony as soon as it's available. [UPDATE: Dawn testified today. Here is her prepared statement.]

Also, for those of you who may have missed the links in the comments to Brian's post, below, here are some sites with links to additional interviews, analyses, etc., associated with last night's Frontline broadcast:

"Synopsis"


"Themes"


"Links"

Comments:

1. The President has a constitutional obligation to faithfully execute the law. What does "faithful" execution consist of?

Senator, before taking office, every President gives the following oath:

"I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States."

The duty to faithfully execute the law means that the President must carry out his or her duties under the Constitution while observing the limits imposed by the Constitution on all branches of government.

In particular, when it comes to questions of war and national security, is the Office of Legal Counsel’s proper role to provide the best interpretation of the law, or instead to articulate any non-frivolous legal argument in support of the President’s policy objectives?

Senator, it is important to remember that the OLC only provides legal counsel to the President and does not decide the legal position of the Executive branch. That decision belongs to the President.

The OLC's proper role is to provide legal advice to the President so he or she can decide what limits the Constitution sets on the President's performance of his or her constitutional duties. As a legal advisor, the OLC has a duty to provide the President with all reasonable legal arguments which apply to an issue so the President can make the decision on how to proceed. If the President asks for the OLC's opinion concerning which legal position has the most merit, then the OLC can provide that advice as well. However, the final decision as to which legal position to adopt is the President's to make.

2. If an enemy of the United States captured non-uniformed U.S. personnel, such as intelligence officers, and interrogated them using some combination of severe stress positions, hypothermia, threats, and prolonged sleep and sensory deprivation, would you conclude that the U.S. persons had been subjected to torture or to "cruel treatment" prohibited by Common Article 3 of the Geneva Conventions, or would you say that the enemy had acted lawfully? [This question is obviously inspired by questions that Senator Durbin asked AG Gonzales. His answer?: "[I]t would depend on circumstances, quite frankly."]

Senator, I would have to agree with my predecessor that the answer must depend on the circumstances.

Frankly, the law is often very vague in this area and does not provide civilian and military decision makers with clear guidance as to what is and is not permitted.

If the Senate approves my nomination, I look forward to working with Congress on these issues to provide greater guidance to our decision makers.

3. Does the President have the constitutional authority to engage in significant military hostilities against Iran without congressional authorization?

Once again, the answer to this question depends on the circumstances.

For example, if a foreign country or terrorist group is currently attacking the citizens of the United States, then the President has a constitutional duty to immediately and fully defend our citizens even if Congress has not yet had the opportunity to debate and enact authority to use military force.

Under other circumstances, the answer may be different.

Given the present strained state of affairs between the United States and certain other countries, I would prefer not to comment further concerning scenarios involving specific countries.

4. If Congress enacts legislation providing legal immunity for telecommunications corporations that assisted the government in legally dubious surveillance activities, would you agree, in turn, (i) to provide Congress with the legal rationales underlying those activities, including the representations that were made to the corporations (after all, is there any justification for withholding from Congress information that is known to corporate officials and technicians?), and (ii) to support legislation that would facilitate judicial review of the government’s surveillance activities, including provisions that would confirm individuals’ right to sue and that would significantly narrow the so-called "state secrets" privilege (but where actual technological secrets of the National Security Agency would be revealed only to judges, and not to the public)?

These are decisions for the President to make in consultation with Congress. I would not presume to speak for the President in these matters.
 

This comment has been removed by the author.
 

I can't wait to see what questions are posed and what answers are given. I find the ability to suggest questions ahead of time a fantastic opportunity for participating in the process as an informed citizen, and even thinking about the answers one might provide to those questions could help the process.

So, I thought it was nifty that Mr. DePalma would start the conversation by answering as he would if he were in Mr. Mukasey's shoes. We all should be thinking about what the proper answers would be ahead of time, rather than just the answers that we disagree with.

Still, I hope that I'll be forgiven for pointing out an oddity in the logic of one of Mr. DePalma's answers--one that I think we could very well see replicated in the near future.

Question 3 poses Iran as a specific circumstance in which the constitutionality of a hypothetical action can be considered. The answer points to the impossibility of having a straight answer ("depends on the circumstances"), then proceeds to outline a situation (perhaps relevant, perhaps not) in which such action would be justifiable under a constitutional duty to protect America that is more important than other constitutional requirements. Any input on the actual circumstances (Iran) is refused on the basis that such answers would further strain relations.

The end result is that a simple answer ("Yes") is obscured by claiming that circumstances are all important even while refusing to directly answer a question that poses specific circumstances.

In addition to posing questions that the committee should ask, therefore, it might not be a poor idea to consider good follow-ups to the answers one expects our candidate to provide. One could push the candidate to expand the first answer in interesting ways ("does the implicit duty to defend Americans permit the suspension of the rest of the Constitution or only the portion that explicitly grants Congress the plenary power to declare war?" or "Should the decision that 'hostilities exist'--different only by degree from declaring a state of war--be in the hands of the President or Congress?") IANAL, so I'm certain better questions could be asked.

When I ask people about their opinions while testing their knowledge, it usually comes out in a different form, something like...

Suppose the President engages in significant hostilities against Iran without seeking congressional authorization. Is the action constitutional? If so, why? If not, why not? Provide textual and historical support for your position. (20 points)

;)
 

"Bart" DePalma:

Senator, it is important to remember that the OLC only provides legal counsel to the President and does not decide the legal position of the Executive branch. That decision belongs to the President.

<*BZZZZZT!*> Wrong! No ducky for you.

From here:

"The Assistant Attorney General in charge of the Office of Legal Counsel assists the Attorney General in his function as legal advisor to the President and all the executive branch agencies. The Office drafts legal opinions of the Attorney General and also provides its own written opinions and oral advice in response to requests from the Counsel to the President, the various agencies of the executive branch, and offices within the Department. Such requests typically deal with legal issues of particular complexity and importance or about which two or more agencies are in disagreement. The Office also is responsible for providing legal advice to the executive branch on all constitutional questions and reviewing pending legislation for constitutionality.

"All Executive orders and proclamations proposed to be issued by the President are reviewed by the Office of Legal Counsel for form and legality, as are various other matters that require the President's formal approval.

"In addition to serving as, in effect, outside counsel for the other agencies of the executive branch, the Office of Legal Counsel also functions as general counsel for the Department itself. It reviews all proposed orders of the Attorney General and all regulations requiring the Attorney General's approval. It also performs a variety of special assignments referred by the Attorney General or the Deputy Attorney General.

"The Office of Legal Counsel is not authorized to give legal advice to private persons."

The President's Counsel is an entirely different position (amongst other things, see bolded stuff above that refers to "requests from the Counsel to the President").

Sucks to be so wrong, so often, doesn't it, "Bart"? You need to heed the advice attributed to Samuel L. Clemens WRT mouths and fools.

Cheers,
 

"Bart" DePalma:

[Question]: In particular, when it comes to questions of war and national security, is the Office of Legal Counsel’s proper role to provide the best interpretation of the law, or instead to articulate any non-frivolous legal argument in support of the President’s policy objectives?

As a legal advisor, the OLC has a duty to provide the President with all reasonable legal arguments which apply to an issue so the President can make the decision on how to proceed.


"Objection, Your Honour: Non-responsive to the question."

Cheers,
 

[Question]: 2. If an enemy of the United States captured non-uniformed U.S. personnel, such as intelligence officers, and interrogated them using some combination of severe stress positions, hypothermia, threats, and prolonged sleep and sensory deprivation, would you conclude that the U.S. persons had been subjected to torture or to "cruel treatment" prohibited by Common Article 3 of the Geneva Conventions, or would you say that the enemy had acted lawfully? [This question is obviously inspired by questions that Senator Durbin asked AG Gonzales. His answer?: "[I]t would depend on circumstances, quite frankly."]

["Bart"]: Senator, I would have to agree with my predecessor that the answer must depend on the circumstances.


IC. Please describe the circumstances under which this treatment would be legal and which conditions under which it would not be legal.

Cheers,
 

[Question]: 3. Does the President have the constitutional authority to engage in significant military hostilities against Iran without congressional authorization?

Once again, the answer to this question depends on the circumstances.

For example, if a foreign country or terrorist group is currently attacking the citizens of the United States, then the President has a constitutional duty to immediately and fully defend our citizens even if Congress has not yet had the opportunity to debate and enact authority to use military force.


Follow-on: Are you saying the president is constrained to follow certain specific actions? If so, where does this constraint lie? What textual authority do you have for this claim?

Cheers,
 

arne:

There is a fundamental difference between legal advice (which may be accepted or rejected) and the final legal position of the Executive (which is decided by the President). The OLC most certainly does not decide the legal position of the Executive. They are simply lawyers giving advice.

"Objection, Your Honour: Non-responsive to the question."

Isn't that the goal in confirmation hearings? The Senator makes a speech formed as a question and the nominee uses many words to say nothing.

IC. Please describe the circumstances under which this treatment would be legal and which conditions under which it would not be legal.

Senator, it is impossible to predict all the various real word circumstances which may arise in the future. I can only assure the Senate that Justice will work closely with them to resolve these situations as they arise.

BD: For example, if a foreign country or terrorist group is currently attacking the citizens of the United States, then the President has a constitutional duty to immediately and fully defend our citizens even if Congress has not yet had the opportunity to debate and enact authority to use military force.

Follow-on: Are you saying the president is constrained to follow certain specific actions? If so, where does this constraint lie? What textual authority do you have for this claim?


The President's CiC power carries with it a concurrent duty to defend the nation. I am sure we can all agree that, if our nation is attacked, the President should take immediate action to defend the nation and our citizens.
 

"Bart" DePalma:

There is a fundamental difference between legal advice (which may be accepted or rejected) and the final legal position of the Executive (which is decided by the President). The OLC most certainly does not decide the legal position of the Executive. They are simply lawyers giving advice.

And the preznit is "just one of the adversarial parties advocating a position."

But I stand by my characterisation of the OLC as they themselves describe their job above. You think it inaccurate? Go bitch to them then. Tell them they're wrong and that they're just "preznit's consigliere".

[Arne]: "Objection, Your Honour: Non-responsive to the question."

Isn't that the goal in confirmation hearings? The Senator makes a speech formed as a question and the nominee uses many words to say nothing.


No. And I'm a bit puzzled that you think that a "good" thing. See Prof. Eisgruber's posts here, for instance.

"IC. Please describe the circumstances under which this treatment would be legal and which conditions under which it would not be legal."

Senator, it is impossible to predict all the various real word circumstances which may arise in the future. I can only assure the Senate that Justice will work closely with them to resolve these situations as they arise.


"If you can't predict the way a law will apply, perhaps you should seek different employment."

["Bart"]: For example, if a foreign country or terrorist group is currently attacking the citizens of the United States, then the President has a constitutional duty to immediately and fully defend our citizens even if Congress has not yet had the opportunity to debate and enact authority to use military force.

"Follow-on: Are you saying the president is constrained to follow certain specific actions? If so, where does this constraint lie? What textual authority do you have for this claim?"

The President's CiC power carries with it a concurrent duty to defend the nation. I am sure we can all agree that, if our nation is attacked, the President should take immediate action to defend the nation and our citizens.


"No options? No discretion? Why not just turn on the WOPR? Can't be stoopider than the Deciderator-In-Chief we've got...."

I'd note just for the record that this position of yours, "Bart", is entirely at variance with your other claims of almost unfettered and limitless discretion afforded to the "unitary executive"....

Cheers,
 

Arne Langsetmo said...

"Bart" DePalma: There is a fundamental difference between legal advice (which may be accepted or rejected) and the final legal position of the Executive (which is decided by the President). The OLC most certainly does not decide the legal position of the Executive. They are simply lawyers giving advice.

And the preznit is "just one of the adversarial parties advocating a position."


That is correct. In a separation of powers battle with another co-equal branch, the President is "just one of the adversarial parties advocating a position."

But I stand by my characterisation of the OLC as they themselves describe their job above. You think it inaccurate?

Not at all. The OLC does not claim that it has the power to determine the President's legal position in any matter.

[Arne]: "Objection, Your Honour: Non-responsive to the question."

BD: Isn't that the goal in confirmation hearings? The Senator makes a speech formed as a question and the nominee uses many words to say nothing.

No. And I'm a bit puzzled that you think that a "good" thing. See Prof. Eisgruber's posts here, for instance.


The purpose of a confirmation hearing for an officer of the Executive is to determine the qualifications of the nominee, not to debate executive policy. Executive policy decisions belong solely to the President. Therefore, policy questions seeking to create a wedge between the President and his subordinates in order to politically embarrass the President are beyond the scope of a confirmation hearing and frankly do not deserve a substantive answer.

With court nominees, this problem does not exist because the judge him or herself if the decision maker. However, then you have to deal with the issue of judicial neutrality where the judge is not supposed to decide an an issue until it is brought before him or her.

BD: The President's CiC power carries with it a concurrent duty to defend the nation. I am sure we can all agree that, if our nation is attacked, the President should take immediate action to defend the nation and our citizens.

"No options? No discretion?


None. A President who does not immediately defend the country and its citizens from an attack should be impeached.
 

"Bart" DePalma:

["Bart"]: There is a fundamental difference between legal advice (which may be accepted or rejected) and the final legal position of the Executive (which is decided by the President). The OLC most certainly does not decide the legal position of the Executive. They are simply lawyers giving advice.

[Arne]: And the preznit is "just one of the adversarial parties advocating a position."

That is correct. In a separation of powers battle with another co-equal branch, the President is "just one of the adversarial parties advocating a position."


Nope. Congress is the one empowered to enact laws. The preznit is not. Laws are presumtively (and pretty much empirically) valid, and one ignores them at one's own peril. Just to be clear, "Bart": Do you really advocate people treating laws as just "good suggestions" until such time as the courts have specifically validated them? That's hardly a good rule for the 'social compact'....

Not to mention, one is perfectly free to challenge laws before disregarding them (although one might wish to flout them for emphatic or political purposes). I'd note that classic Gandhian civil disobedience acknowledges the validity of laws; what is challenged is the justness of such, and the disobedience seeks to have the laws changed by the powers that had made them. What you seem to suggest is the "sovereign citizen" route: Just don't pay your taxes, 'cause in your world, the gummint has no authority.....

[Arne]: But I stand by my characterisation of the OLC as they themselves describe their job above. You think it inaccurate?

Not at all. The OLC does not claim that it has the power to determine the President's legal position in any matter.


Just to refresh your memory, "Bart". here's what you said:

"Senator, it is important to remember that the OLC only provides legal counsel to the President ...."

Refuted. See my excerpt.

... and does not decide the legal position of the Executive branch. That decision belongs to the President.

Your support for this claim!?!?! __________________. Thanks is advance.

Not to mention, my excerpt shows that the OLC itself does (and says it does) far more than "provide[] legal counsel to the President" (which, I should point out, is more the role of the Preznit's Counsel).

FWIW, I'd note that the preznit may not argue cases before the Supreme Court (Clinton could have done so, I suppose, but not Dubya, which is perhaps a Very Good Thing, unless having that doofus up there might make him a laughingstock and do irreparable harm to any case he tried to argue).

["Bart"]: Isn't that the goal in confirmation hearings? The Senator makes a speech formed as a question and the nominee uses many words to say nothing.

[Arne]: No. And I'm a bit puzzled that you think that a "good" thing. See Prof. Eisgruber's posts here, for instance.

The purpose of a confirmation hearing for an officer of the Executive is to determine the qualifications of the nominee, not to debate executive policy.


And how does refusing to asnwer substantive and pertinent questions on legal issues further this process?!?!?

["Bart": BD: The President's CiC power carries with it a concurrent duty to defend the nation. I am sure we can all agree that, if our nation is attacked, the President should take immediate action to defend the nation and our citizens.

"No options? No discretion?

None. A President who does not immediately defend the country and its citizens from an attack should be impeached.


OK. The rest of my question (which you ignored):

[Arne]: "Why not just turn on the WOPR? Can't be stoopider than the Deciderator-In-Chief we've got....

"I'd note just for the record that this position of yours, "Bart", is entirely at variance with your other claims of almost unfettered and limitless discretion afforded to the "unitary executive"...."

Care to address that?

Cheers,
 

Professor Lederman:

Nice censorship of the comments section discussing Judge Mukasey's response the to the questions asking him to apply the torture law to waterboarding and such.

Let us see how long this comment section lasts...
 

arne:

At the risk of being censored again, I will be glad to continue our discussion...

[Arne]: Congress is the one empowered to enact laws. The preznit is not. Laws are presumtively (and pretty much empirically) valid, and one ignores them at one's own peril. Just to be clear, "Bart": Do you really advocate people treating laws as just "good suggestions" until such time as the courts have specifically validated them? That's hardly a good rule for the 'social compact'....

Not to mention, one is perfectly free to challenge laws before disregarding them (although one might wish to flout them for emphatic or political purposes).


As you correctly pointed out, you violate statutes, especially criminal statutes, at your own risk. However, the only way to get a court to rule on the legality of a statute is to violate it and create a case or controversy. If everyone followed illegal statutes, then there would never be a court test.

BD: The President's CiC power carries with it a concurrent duty to defend the nation. I am sure we can all agree that, if our nation is attacked, the President should take immediate action to defend the nation and our citizens.

arne: "No options? No discretion?

BD: None. A President who does not immediately defend the country and its citizens from an attack should be impeached.

arne: OK. The rest of my question (which you ignored):

"Why not just turn on the WOPR? Can't be stoopider than the Deciderator-In-Chief we've got....


What is the WOPR?

The President's CiC power carries with it a concurrent duty to defend the nation. I am sure we can all agree that, if our nation is attacked, the President should take immediate action to defend the nation and our citizens.

arne: I'd note just for the record that this position of yours, "Bart", is entirely at variance with your other claims of almost unfettered and limitless discretion afforded to the "unitary executive"....

Care to address that?


What is there to address? Once again, you mischaracterize my position.

I have been arguing that the President's Article II Executive and CiC powers are plenary to the extent they fall outside the enumerated Article I powers of Congress.

I further explained that powers impose reciprocal duties. For example, the purpose of the military is to provide security for the nation and its citizens. Thus, the CiC power imposes a duty on the President to command the military to provide security for the nation and its citizens.

What I did not say is that the President has the discretion to ignore his constitutional duties. Rather, the President as CiC has discretion to decide how best to carry out those duties.
 

"Bart" DePalma:

However, the only way to get a court to rule on the legality of a statute is to violate it and create a case or controversy.

This is false. It is certainly a sure bet to demonstrate the requisite standing if you have already been charged with a crime, but there is no bar to saying, "Hey, Your Honour, I really want to do "X", and I would in the normal course of my affairs do "X", but I am afraid of prosecution if I do so, despite the fact I think that banning "X" is unconstitutional. Therefore, I seek a ruling striking down the ban on "X"...."

I'm just a bit surprised that you don't know this -- particularly since I've explained it to you more than once in the past....

And don't give me any of this "advisory opinion" crapola. All you have to do is establish the basic facts above, and you have standing to challenge. That's a fact. No court will insist that you commit the act beforehand at the risk of prosecution and conviction under an adverse ruling, just to get the question answered.

Cheers,
 

"Bart" DePalma:

[Arne]: "No options? No discretion?

["Bart"]: None. A President who does not immediately defend the country and its citizens from an attack should be impeached.

[Arne]: OK. The rest of my question (which you ignored):

"Why not just turn on the WOPR? Can't be stoopider than the Deciderator-In-Chief we've got....

What is the WOPR?


Google is your friend.

["Bart"]: The President's CiC power carries with it a concurrent duty to defend the nation. I am sure we can all agree that, if our nation is attacked, the President should take immediate action to defend the nation and our citizens.

[Arne]: I'd note just for the record that this position of yours, "Bart", is entirely at variance with your other claims of almost unfettered and limitless discretion afforded to the "unitary executive"....

[Arne]: Care to address that?

What is there to address? Once again, you mischaracterize my position.

I have been arguing that the President's Article II Executive and CiC powers are plenary to the extent they fall outside the enumerated Article I powers of Congress.


Yes. But now you apparently say he has no discretion.

I further explained that powers impose reciprocal duties. For example, the purpose of the military is to provide security for the nation and its citizens. Thus, the CiC power imposes a duty on the President to command the military to provide security for the nation and its citizens.

But you said that he must (to fulfill his "duties") "take immediate action to defend the nation and our citizens."

Leaving aside the impeachable nature of reading "My Pet Goat", has he no discretion?

What I did not say is that the President has the discretion to ignore his constitutional duties.

Nor did I suggest you said that, despite your lack of reading comprehension and media knoweldge.

... Rather, the President as CiC has discretion to decide how best to carry out those duties.

Such as to not "take immediate action to defend the nation and our citizens"? "My Pet Goat"....

Look, not my responsibility to try and make sense of your muddled thinking, "Bart". I was just pointing out some of the perplexities of such.....

Cheers,
 

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