Is Pornography "Speech"?

Andrew Koppelman

Is pornography within the coverage of the First Amendment? A familiar argument claims that it is not. This argument reasons that (1) the free speech principle protects the communication of ideas (the major premise); (2) pornography communicates no ideas (the minor premise); (3) therefore pornography is not protected by the free speech principle. This argument has been endorsed several times by the Supreme Court.

The most elegant statement of the argument is that offered by Prof. Frederick Schauer of Harvard. Schauer writes that "a refusal to treat hard core pornography as speech in the technical sense at issue is grounded in the belief that the prototypical pornographic item shares more of the characteristics of sexual activity than of communication." Such an item is a sexual surrogate, like a plastic or vibrating sex aid. It takes pictorial form only because that is another way of helping individuals achieve sexual gratification. "The mere fact that in pornography the stimulating experience is initiated by visual rather than tactile means is irrelevant if every other aspect of the experience is the same." It is true that some serious literature can also produce sexual arousal, but that literature has other elements that entitle it to protection. The reason why such protection is not appropriately extended to hard core pornography "is not that it has a physical effect, but that it has nothing else."

I have just posted a paper critiquing Schauer’s argument, as well as a considerably more complex version of the argument by John Finnis. Schauer’s argument is unpersuasive, for three reasons. (I should state here that Schauer is a friend and that he has been graciousness incarnate in helping me to develop an argument with which he fundamentally disagrees.)

First, it is uncertain whether there is any actual pornography that fits Schauer’s description. Most does not. Any physical response elicited by pornography depends on the viewer’s mental processes. Human sexuality, it appears, is always mediated by thought.

The viewer of pornography is aiming precisely at causing himself to have certain thoughts. But then, any regulation of pornography directly implicates the right to control one’s own thoughts. This is not true of, say, a law that prohibits prostitution: such a law does not prevent people from thinking about having sex with prostitutes, or from telling one another that this is what they are thinking. Control of the body is not the same, for free speech purposes, as control of the mind. In order for Schauer’s argument to work, he would have to offer some reason for distinguishing sexual thoughts from other thoughts.

The second difficulty is related. It is precisely the ideational element that is the basis of any state concern that is articulated today. The state is only indirectly attempting to prevent a physical effect from occurring. What it is directly aiming at is a thought elicited in the viewer: as the Supreme Court put it in 1973, “a sensitive, key relationship of human existence, central to family life, community welfare, and the development of human personality, can be debased and distorted by crass commercial exploitation of sex.” The physical effect once mattered to regulators much more than it does now. The antipornography crusaders of the nineteenth century thought that if sexual material came into the possession of teenage boys, it would induce them to masturbate, and this in turn would lead to lassitude, weakness, crime, insanity, and early death. Even then, though, much of the suppression was frankly viewpoint-based, targeting as “obscene” writings that were not at all sexually explicit, but which advocated sexual liberation or birth control.

Third and finally, to the extent that Schauer’s free speech theory rests on distrust of the state, the nonprotection of noncognitive speech is inconsistent with his skepticism about the abuse of state power.

Freedom of the mind should be understood to forbid the government from extending protection only to those uses of the mind that it regards as sufficiently dignified. Freedom of thought should include the freedom to be playful, and to toy even with dangerous thoughts. Playing with thoughts is precisely what the arts do.

The effort to separate pornography from the arts is the rock on which the argument I stated at the beginning has always come to wreck. Thought is contained in every work of art – that’s why the arts are protected by free speech -- but the point applies equally to every fantasy constructed by human beings, sexual or otherwise. Freedom of the mind means the right to imagine other worlds, and to tell one another what we have imagined.

I have not addressed the question of the state’s interest in suppressing pornography, because that is not what the argument I have been answering purports to address. Perhaps the freedom to publish pornography is so damaging that the presumption against thought control is here overcome. (I address that question in a Columbia Law Review article, “Does Obscenity Cause Moral Harm?,” available here.) But we should not pretend that, when we suppress pornography we are not infringing values that lie at the heart of free speech.
Posted 2:46 PM by Andrew Koppelman [link] (13) comments

Understanding the Iraq Redeployment Bills

Marty Lederman

Fred Kaplan over in Slate has just about everything you need to know about the House and Senate redeployment provisions.

Kaplan also links to this story in the Hill, which sets out what might happen to the Defense Department -- and when the money truly would start running out -- as a result of the President's promised veto of the bill.
Posted 11:45 PM by Marty Lederman [link] (19) comments

Accountability and the Renegade Executive

Scott Horton

Normally, I begin my remarks by saying "Ladies and Gentlemen." But here I'm not sure that's quite the right salutation. On my way down from New York to Charlotte to Memphis to Oxford, Mississippi today, passing over the freshly verdant Appalachians and then down the valley of the Tennessee River to the Mississippi Delta, I read the first chapters of William Faulkner's novel, Sanctuary - it takes placed in a bucolic college town named Jefferson - a town which is remarkably like this one. And there towards the end of Chapter III, I ran across this scrap:

"The Virginia gentleman… told us at supper that night about how they had taught him to drink like a gentleman. Put a beetle in alcohol, and you have a scarab; put a Mississippian in alcohol, and you have a gentleman -"

So, as it's still too early in the evening to speak of "gentlemen" here in Mississippi, I'll just say "friends."

America today is in the grips of a scandal surrounding the machinery of justice, but it is a scandal being played out on more fronts than the mass media seems to realize. Indeed, in the end it turns on the concept of justice, not simply the bureaucracy that supposedly administers it.

Eight US attorneys were dismissed by Alberto Gonzales on prodding from Karl Rove. We now know the fateful decision was taken on December 7 (an ironic day, as FDR said, "a day that will live in infamy"). As Gonzales and his deputies Paul J. McNulty and William Moschella trotted out various and contradictory after-the-fact rationalizations for this decision, it has become increasingly clear that the dismissals were politically inspired. Indeed, in the testimony that he has submitted to the Senate Judiciary Committee within the last two hours, Gonzales' chief of staff acknowledges as much.

The prosecutors selected for discharge come from "battleground states" which will be key to the 2008 presidential election: New Mexico, Nevada, Arizona, Michigan, Washington and Arkansas. This is no coincidence. Shortly after the 2006 Congressional election, Karl Rove, licking his wounds over a serious defeat, indicated in a speech to Republican lawyers that the public perception of scandal surrounding GOP law-makers was key to that loss. Rove promised he would do something about it. Within a few days, a move to cashier these prosecutors was underway. It is tied to a plan to use their offices to go after Democrats, whether a basis existed or not, and to pursue a voter suppression program focused on prospective Democrats. In other words, it's pure politics. Not high politics in the sense that Aristotle uses the term. But the crude gutter politics of the partisan hack. This sort of politics is not the exclusive province of one party. But over the last years, one party has exercised a monopoly on political power, and this appears to have led to a particularly virulent strain of political hackery.

Standing alone, this incident would be cause for grave concern. But it's just one aspect of a far broader crisis in which our country is enmeshed. The crisis has its start in the decision to introduce torture and cruel, inhuman and degrading treatment - in contravention of 230 years of US military tradition, stretching back to George Washington's order after the battle of Trenton. Gonzales had a key role in this process as well, backed up by Cheney's chief-of-staff, David Addington and the now ever-present John Yoo. They tell us that they did this to insure that the president, as commander-in-chief, would have all the tools at his disposal that he might need to fight a war against terror. But if we strip the varnish off that, there are unmistakably unsavory elements underneath: one is a recognition that torture is a crime, and the second is a desire to enlist it into the president's arsenal notwithstanding what the law says.

A former president of the Argentine bar, with whom I spoke two years ago, told me that his experience with torture in Argentina's "Dirty War" under a military dictatorship had been very clear. The dictator wanted torture as a talisman. It would show that the military rulers were above the law - subject to none of the restraints that marked the rule-of-law state. No one was under the illusion that torture techniques would actually get any useful intelligence. On the other hand, it would instill fear, and that was useful. He spoke to me with some conviction: the legal profession must oppose the introduction of torture, he said. In the end you will learn this is not about interrogation practices, it is about dictatorship, about tyranny. The experience of Argentina and Chile backs him up. Is the experience of America different? America is not governed by a military junta, of course. Nor can the brutality of technique and number of victims of the "Dirty War" yet be compared with the dark underside of the war on terror. But it is striking that most of the abusive techniques used by the Argentine junta were adopted and introduced in what President Bush has called the "program." This includes waterboarding, which the Argentinians called el submarino, the cold cell (or hypothermia), long-time standing and sleep deprivation in excess of two days. Nevertheless, this is a question we all should ponder.

The Argentine lawyer's remarks reminded me immediately of what Gonzales wrote in a memorandum on January 25, 2002 - he speculated that the newly fashioned plans for the war on terror might lead future prosecutors to consider war crimes charges. Gonzales suggested that if Bush declared that the Geneva Conventions did not apply, it would be more difficult for a prosecutor to go after the authors of these new policies.

It's chilling to consider that this was written by a man destined to serve as the nation's chief law enforcement officer. But it explains, perhaps, why Bush gave Gonzales the nick name "Fredo" - the name of the younger, loyal, but mentally less adept son of the Godfather crime family, the Corleones.

It started with torture but it moved swiftly beyond this. For instance, to a decision to introduce a system of torture-by-proxy through extraordinary rendition. Gonzales also gave this program, which has its origins back in an anti-drug kingpin program launched by Clinton, the green light. And now more than thirty American public servants - CIA officers and military for the most part - stand under indictment in Italy and Germany with counts of assault, kidnapping and other felonies; these are all dedicated public servants performing an official program. The blame for what happened doesn't rest with them, or at least not entirely. It rests with the people who formed the policies that they implemented. Our reputation around the world is a tatters. And nations who want to cooperate with us in a war against terror, and whose support the United States badly needs, repeatedly find they can't do so. If they do, they will be collaborating with a nation that tortures, and they aren't prepared to sacrifice their values the way the Bush administration has sacrificed ours.

Recently a friend of mine who works with the Afghan Government shared with me some intelligence the Afghans had gathered from a young man apprehended in connection with an attack using an improvised explosive device. The man had fled as a refugee to Pakistan. There he was seized by the Pakistani Inter Service Intelligence (a close collaborator of the CIA) and told that unless he participated in a planned bombing attack on NATO forces in the Afghan south, the Pakistanis would turn him over to the Americans, he would be taken to Guantánamo and tortured there for years on end. He agreed to participate. Interestingly he was not the only young Afghan to be captured with an account like this. Is the account true? The Afghans are convinced it is, and US intelligence apparently has credited it as well. So there you have it: come full circle. The image of Gitmo used to recruit people to perform acts of terror against us.

Gonzales also gave the go-ahead for surveillance that violated FISA, a federal criminal statute. Indeed, Newsweek gave us a fascinating insider's account of how all this went down at Justice. Then Attorney General John Ashcroft was out in the hospital for a gallbladder operation. James Comey, his deputy, said "no," he couldn't possibly authorize this. Neither, apparently, would Jack Goldsmith, the man responsible for the Attorney General's legal opinions. Gonzales had to find alternative means to get this through. And in short order Ashcroft, Comey and Goldsmith were gone from Justice and Gonzales arrived with a new team of enablers. Gonzales gave evasive or false testimony about much of this during the confirmation process, which earned him a distinction that is, as far as I know, unprecedented for a US attorney general. He enjoys such a reputation for "truthiness" (as Stephen Colbert calls it, namely something which has the outward appearance of truth, but is, in fact, a lie) that he is not permitted to speak before the Judiciary Committee without being formally sworn in. And this last weekend, three senior Judiciary Committee Republicans - Specter, Graham and Hagel, were openly discussing Gonzales' truthiness problems on talk shows.

Where once our nation had the debate of Jeffersons, Madisons, Websters and Clays, now we have the Beltway punditry - the Fred Hiatts, Chris Matthews and Norah O'Donnells - a vacuous chattering class which is the Muzak of our political discourse. They tell us that all of these scandals - the cashiering of US attorneys, the surveillance, the introduction of torture and torture-by-proxy - this is all just politics. Don't get yourself worked up. In fact, pay no attention. Time to move on.

Don't believe them. This is about the country we live in and the country we will pass to posterity. It's about fidelity to the values on which this country was founded. It is about the rule of law and accountability. Our Founding Fathers had faith in mankind, but also a very real sense of man's corruptibility. "If men were angels," James Madison wrote in Federalist No. 51, then we should have no need of government. But men are no angels, and politicians may in fact be closer to what Kant called a race of devils. The genius of the tripartite system of checks and balances that Madison and the other Founding Fathers created was its use of the quest for power latent in so many of us (and especially in politicians) as a brake against itself.

But in the last six years this brake has been dismantled and removed. There has been a fundamental shift in the power structure - a sweeping reallocation of power from the Congress and Courts to the Executive. Much of this has occurred secretly, behind closed doors, as a sort of constitutional coup d'état.

It's telling that the current scandal began with a secret change in the Patriot Act. Unbeknownst to those who should have run the process, including Senator Specter, then the chair of the Judiciary Committee, a provision was slipped in at the last minute giving the Attorney General a direct power of appointment of US Attorneys, skirting the advice and consent of the Senate. This provision was smuggled into the bill by a young legislative assistant who was promptly appointed, at 34 years of age, as the US Attorney in Utah. He was a friend of Kyle P. Sampson, Gonzales' chief of staff and the man who stage-managed the removal of the eight US attorneys. Sampson, who is going to become a household name in the next few days, has a nickname, "Little Rove," both for his similarity to and friendship with Karl Rove. But the point here is that the Senate should have exercised a brake by looking into the entire process, and through legislative legerdemain that was stopped.

Bismarck famously said that with legislation, like with sausage, it was perhaps best not to know what went into it. But that reflects the Bismarckian democracy, which in the end, wasn't much democracy at all. As for our process, we have Madison's admonitions not to legislate in secret, a charge that Congress has rarely lived up to, but has miserably breached these last few years.

This week at colleges and law schools around the country, there is a special focus on what is underway at Guantánamo, or Gitmo as my Navy friends call it. Newspapers today are reporting on the first hearings held in the military commissions process. Last weekend, the New York Times informed us that in his first weeks in office Bob Gates, the man who replaced Donald Rumsfeld as secretary of defense in December, put together a comprehensive plan to shut down the Gitmo detention centers and move the entire operation to the United States. This initiative was immediately supported by Condoleezza Rice. Gates and Rice argued that the name "Guantánamo" was now held in such disrepute around the world that no one would ever associate what transpired there with any notion of justice. Gates, it seems, thought that when Bush said he wanted to shut down Gitmo, he really meant it. But he quickly learned that it's dangerous to assume Bush means what he says, especially when he's talking about Gitmo and the war on terror. Alberto Gonzales and Dick Cheney stepped in very quickly to quash the Gates plan. Gonzales said that bringing the detainees to the US could have unpleasant legal consequences for the administration.

Indeed it would. It would greatly up the chances that the detainees would be able to challenge their treatment in a federal court, before real judges, who would apply real law - starting with the US Constitution and continuing on to the Geneva Conventions. And it would open the prospect that the American people would learn, perhaps in some detail, exactly what was done to those detainees. Rumsfeld called them the "worst of the worst" but we know thanks to a Seton Hall study that roughly 80% of them were picked up by Afghan and Pakistani bounty hunters, and, in the assessment of both FBI and CIA teams that initially screened them, had no business being there. Gates and Rice were correct when they offered that no one would associate these proceedings with justice. That's because they bear no resemblance to justice, as it has traditionally been dispensed in US courts. Nor do they bear much resemblance to the high and honorable standards that have been established under the Uniform Code of Military Justice and the Manual on Courts-Martial. These proceedings are loaded from the outset. Defendants are not permitted counsel of their choosing, and defense counsel have been subjected to a torrent of abuse and mistreatment. Evidentiary rules are weighted in favor of the admission of coerced testimony, including torture-induced testimony, secret evidence, and evidence which cannot be confronted or properly crossexamined. A fair-minded judge might still get to a just result, but the rules the Pentagon dictated, and the shameful provisions the Congress wrote, will make it perilously difficult to get there.

Dwight David Eisenhower, the last of our nation's great warrior presidents, said "Though force can protect in emergency, only justice, fairness, consideration and co-operation can finally lead men to the dawn of eternal peace." He reflected the received wisdom of the nation that won World War II and then turned with swift justice to the work of the Nuremberg and Tokyo Tribunals. Through this process, America demonstrated it had a powerful thirst for justice. It vindicated America's cause in the war. It exorcised the demon of fascism which had laid hold of the heart of Europe. And it produced a new world in which the vanquished foes, Germany, Italy and Japan, emerged as America's allies for the coming generations. Eisenhower's faith in the power of justice, pursued swiftly and with a firm sense of fairness, was borne out. Wielded effectively, justice is indeed among the most potent tools in our arsenal.

And this provides reason for us to ask: Why is this administration afraid of justice the way our fathers and their fathers understood it? Why do we wait five and a half years after 9/11 to witness the first sessions of the military commissions? And why do we then witness a confused tumult which embarrasses us in the eyes of the entire world, just as Gates suggested it would?

In the end the turn against traditions and values has been about the aggrandizement of power in the executive. It has been about arrogant avoidance of accountability. And it has been about that principle that lies most at the heart of the development of the Anglo-American legal tradition, namely that no man is above the law, not even the king or the man who would be king. As with so many things of recent times, it resonates of England in the seventeenth century, and reminds us of the famous words uttered by Thomas Fuller: "Be ye ever so high, still the law is above thee." But the mantra of the current administration is to frustrate all efforts to hold it to account, to grant itself immunity for its crimes, to strip courts of jurisdiction, including even the great writ. On each of these points, the conduct of the Bush presidency mirrors that of Charles I, the monarch whose conduct provoked Fuller's statement.

Americans have inherited a great legacy, one that embraces the worth and dignity of all human beings, the promise of equal justice for all before the law, a principle of limited, carefully divided and counter-posed governmental powers, with full accountability to a people in whom sovereignty rests. The answer to our current problems lies in our past, and in fidelity to the best that America has brought forth. But it requires citizens to be alert and to see what passes before them. And it requires us to take our heritage seriously.


Remarks delivered at the University of Mississippi School of Law, Oxford, MS, Mar. 28, 2007
Posted 1:22 AM by Scott Horton [link] (47) comments

What Does Kyle Sampson Say?

Marty Lederman

Kyle Sampson’s prepared tesimony for tomorrow’s Senate Judiciary Committee hearing can be found here. (Thanks for the link, Howard.)

No real bombshells. Sampson does concede that there are a few "improper" reasons for dismissing U.S. Attorneys, which would include "an effort to interfere with or influence the investigation or prosecution of a particular case for political or partisan advantage."

He asserts that no such considerations played a role in these cases. OK, so why were these eight U.S. Attorneys asked to resign? Sampson is somewhat oblique, and does not provide specific reasons in his prepared testimony. One general consideration that he does mention as a legitimate ground for dismissal is intriguing, however—where a U.S. Attorney demonstrates "resistan[ce] to the President's or the Attorney General's constitutional authority." What does Sampson mean by this—and in what way, if any, did these U.S. Attorneys "resist" the President's and/or AG's "constitutional authority"? Tune in tomorrow.
Posted 9:27 PM by Marty Lederman [link] (22) comments

A [Guilty] Plea for Freedom?

Guest Blogger

David Glazier, Associate Professor of Law, Loyola Law School Los Angeles

Australian David Hicks' guilty plea to providing material support to terrorism at Guantanamo Monday should ultimately prove to be a brilliant defense maneuver. The Administration will seek to portray it as a victory for the military commissions, but in the longer run it should produce even greater pressures, both at home and abroad, to terminate these tribunals entirely. Although the confused proceedings lasted only a few hours, that was enough to establish that changes mandated by the Military Commission Act of 2006 (MCA) are insufficient to produce the "full and fair" trials promised by the President when launching this process a half-decade ago.

First, and most importantly, the crime Hicks pleaded to, providing material support to terrorism, is a felony triable in regular federal courts, but not a law of war violation military commissions can lawfully try. The inclusion of this offense in the MCA could allow future commissions exercising hybrid jurisdiction over law of war and statutory offenses to try acts committed after that law was enacted. But retroactive jurisdiction is only permissible over acts clearly violating international law at the time they were committed. Jurisdiction over Hicks, whose conduct dates back to 2001, would be unlawfully ex post facto. The Government bears the burden of proving that this offense violates the law of war, for which I have found no precedent in five years of academic research into military justice and the law of war. If the commission lacks jurisdiction over the charge, any court reviewing the decision per se, or Hicks' subsequent incarceration, should be obligated to set the conviction aside or order his release from custody.

The brilliance of Hicks' plea is that rather than spending months of additional Guantanamo incarceration contesting this point before a tribunal biased against him (more on this below), he can quickly pursue his claim in U.S. and Australian civilian courts more committed to the rule of law. The MCA gives Hicks an appeal of right (following convening authority review) first to the Court of Military Commission Review, and then to the Court of Appeals for the D.C. Circuit. Should he lose before these bodies, he can petition for a writ of certiorari from the U.S. Supreme Court. Although the MCA purports to foreclose habeas review, the Supreme Court has long entertained such collateral challenges to military commissions, from the Civil War case ex parte Milligan through last summer's Hamdan decision. So it is far from certain that the MCA's jurisdiction stripping will be upheld, potentially creating additional prospects for federal collateral review in addition to the direct appeals. There is clear precedent for the federal courts to overturn a military conviction for lack of jurisdiction even following a guilty plea. Army Judge Advocate General Enoch Crowder, author of the statutory language construed by the Supreme Court to authorize military commissions in the Quirin and Yamashita decisions, found this out in losing McClaughry v. Deming, (186 U.S. 49), before both the Eighth Circuit and the high Court.

Should Hicks fail to prevail in U.S. courts, he can try again at home since the U.S. has agreed that he can serve any sentence imposed in Australia. Once transferred, Hicks can challenge his detention in Australian courts which should order his release via a writ of habeas corpus on the basis that the military commission lacked jurisdiction. It is unlikely that the Australian government could politically afford to return him to U.S. control even if it could do so legally, and charges under Australian law, after all Hicks has been through, would also seem unlikely. So the logical outcome for Hicks is that he should be set free soon after returning to Australia, via a legal process based on shared English common law traditions. This will undoubtedly cause the United States further international embarrassment. While vindication in our own Article III would establish an important precedent for other commission defendants, Hicks might waive some or all possible U.S. appeals to hasten his own return to Australia and ultimate freedom.

While the failure of the only charge against him to constitute a law of war violation is the most compelling basis for overturning the commission's jurisdiction, there are a number of other issues with the current commission process, both from legal and fairness perspectives, that emerged during the abbreviated proceedings.

Hicks' charges were approved by the new military commission convening authority, Susan Crawford. The commissions exercise military authority under the law of war and previous trials (more than 10,000 individuals) have been convened by officials in the chain of command. But Crawford is a civilian. She even signing signed Hicks' charge sheet as "the Honorable . . . . ," based on her status as a senior judge of the Court of Appeals for the Armed Forces (CAAF). Having been confirmed by the Senate only for that judgeship, by law a civilian role, she logically lacks necessary military authority to convene a military tribunal unless she severs all ties to the court, is appointed to military rank equivalent to courts-martial convening authorities by the President, and is confirmed by the Senate. The MCA gives the Secretary of Defense latitude in appointing a convening authority, but that language should be interpreted consistent with the customary law of war under the Charming Betsey canon.

The military judge presiding over Hicks' arraignment previously served in the flawed process overturned by the Hamdan decision and has already demonstrated a willingness to apply rules unfairly biased against the defendants. The prosecutor, Colonel Morris Davis, has breached MCA §949b.'s prohibition against attempting to coerce or influence the exercise of professional judgment by defense counsel by suggesting that Hicks' military defense counsel, Major Dan Mori, should be prosecuted for attempting to arouse Australian public support for his client.

Another logical indicator of bias against the defense was the judge's expulsion of two civilian counsels for Hicks from the courtroom yesterday. The MCA retains (unfairly) restrictive criteria for counsel qualification with which these individuals may not have fully complied. One was a government civilian - the MCA authorizes civilian prosecutors but facially seems to limit government defense counsel to uniformed officers, and the other apparently refused to agree in advance to be bound by rules that had not been made yet! Nevertheless, one cannot just fly into Guantanamo on a whim; their presence required fairly high-level DOD approval. And since the hearing was open to the press and representatives of non-governmental organizations, there was no reason other than anti-defense bias to eject them from the proceeding even if the judge felt he had grounds to deny them seats at the defense table.

Because the MCA, based largely on Uniform Code of Military Justice (UCMJ) court-martial procedure, adopts the latter's language with respect to guilty pleas, the judge must determine that Hicks admits to every required element of the charge before finding him guilty. If that happens, the full trial panel (a military trial does not have a "jury" - that term implies constitutional standards of impartial selection not applied to courts-martial or military commissions) will be brought to Guantanamo to determine his sentence. Based on WWII era precedents, once those unfortunate line officers sentence Hicks, they have probably committed the customary war crime of denial of a fair trial along with the convening authority, judge, and military prosecutor. If Hicks does not freely admit to all required elements of the offense, the judge must enter a not-guilty plea and the case could still be tried. Military law does not allow an "Alford plea:" pleading guilty to avoid perceived trial consequences without a full admission. This could be an issue because Hicks' plea seems motivated primarily by the logical desire to get out of Guantanamo via the quickest route - post-conviction transfer to Australian custody.

There is good reason for concern that Hicks' case is going to further damage perceptions of U.S. adherence to the rule of law although it does not implicate some of the more egregious aspects of post-MCA commission procedure. Those factors include the likelihood judges will admit coerced testimony and potential that sufficient details about classified sources will be concealed from the defense that they are unable to properly challenge its admissibility or credibility.

Although the MCA did improve the commission process, Hicks' treatment suggests that the government is still not credibly committed to the faithful application of the rule of law in Guantanamo proceedings. Any effort to portray Hicks plea as vindication of the tribunal process is thus both shortsighted and erroneous. At the end of the day, Hicks' plea may even hasten their demise.
Posted 6:38 AM by Guest Blogger [link] (27) comments

What Would the Iraq Redeployment Bills Actually Do, Anyway?

Marty Lederman

One salutary effect of the blogosphere is that it has prompted the mainstream media to more frequently link to primary documents -- e.g., leaked memos, government reports, etc. -- that are the subject of their breaking stories. It was not too long ago that the public lacked ready access to the very subject matter of many important news stories -- not without difficult and time-consuming library retrieval, anyway.

One oddity, however, is that it remains rare for newspapers and other outlets to link to, or even quote from, important legislation being considered in Congress, even when it's the grist for front-page stories. The recent legislative debates concerning proposals to hasten withdrawal from Iraq are a prime example. I've yet to see a single newspaper article online that actually links to or quotes from the provisions that have been the subject of such heated debate in Washington over the past few weeks. It's odd to expect the public to be able to meaningfully understand and debate these important initiatives without knowing what they say.

It will only be a matter of time before such linking becomes commonplace in leading mainstream newspapers online.

Meanwhile, here's the relevant language about Iraq withdrawal in the current House and Senate bills, best I can tell. (If this isn't the right language, please let me know.):

The House Bill (Section 1904 of H.R. 1591):

SEC. 1904. (a) The President shall make and transmit to Congress the following determinations, along with reports in classified and unclassified form detailing the basis for each determination, on or before July 1, 2007:

(1) whether the Government of Iraq has given United States Armed Forces and Iraqi Security Forces the authority to pursue all extremists, including Sunni insurgents and Shiite militias, and is making substantial progress in delivering necessary Iraqi Security Forces for Baghdad and protecting such Forces from political interference; intensifying efforts to build balanced security forces throughout Iraq that provide even-handed security for all Iraqis; ensuring that Iraq's political authorities are not undermining or making false accusations against members of the Iraqi Security Forces; eliminating militia control of local security; establishing a strong militia disarmament program; ensuring fair and just enforcement of laws; establishing political, media, economic, and service committees in support of the Baghdad Security Plan; and eradicating safe havens;

(2) whether the Government of Iraq is making substantial progress in meeting its commitment to pursue reconciliation initiatives, including enactment of a hydro-carbon law; adoption of legislation necessary for the conduct of provincial and local elections; reform of current laws governing the de-Baathification process; amendment of the Constitution of Iraq; and allocation of Iraqi revenues for reconstruction projects; and

(3) whether the Government of Iraq and United States Armed Forces are making substantial progress in reducing the level of sectarian violence in Iraq.

(b) On or before October 1, 2007, the President--

(1) shall certify to the Congress that the Government of Iraq has enacted a broadly accepted hydro-carbon law that equitably shares oil revenues among all Iraqis; adopted legislation necessary for the conduct of provincial and local elections, taken steps to implement such legislation, and set a schedule to conduct provincial and local elections; reformed current laws governing the de-Baathification process to allow for more equitable treatment of individuals affected by such laws; amended the Constitution of Iraq consistent with the principles contained in article 137 of such constitution; and allocated and begun expenditure of $10 billion in Iraqi revenues for reconstruction projects, including delivery of essential services, on an equitable basis; or

(2) shall report to the Congress that he is unable to make such certification.

(c) If in the transmissions to Congress required by subsection (a) the President determines that any of the conditions specified in such subsection have not been met, or if the President is unable to make the certification specified in subsection (b) by the required date, the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq and complete such redeployment within 180 days.

(d) If the President makes the certification specified in subsection (b), the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq not later than March 1, 2008, and complete such redeployment within 180 days.

(e) Notwithstanding any other provision of law, funds appropriated or otherwise made available in this or any other Act are immediately available for obligation and expenditure to plan and execute a safe and orderly redeployment of the Armed Forces from Iraq, as specified in subsections (c) and (d).

(f) After the conclusion of the 180-day period for redeployment specified in subsections (c) and (d), the Secretary of Defense may not deploy or maintain members of the Armed Forces in Iraq for any purpose other than the following:

(1) Protecting American diplomatic facilities and American citizens, including members of the U.S. Armed Forces.

(2) Serving in roles consistent with customary diplomatic positions.

(3) Engaging in targeted special actions limited in duration and scope to killing or capturing members of al-Qaeda and other terrorist organizations with global reach.

(4) Training members of the Iraqi Security Forces.

(g) Notwithstanding any other provision of law, 50 percent of the funds appropriated by title I of this Act for assistance to Iraq under each of the headings ``IRAQ SECURITY FORCES FUND'', ``ECONOMIC SUPPORT FUND'', and ``INTERNATIONAL NARCOTICS CONTROL AND LAW ENFORCEMENT'' shall be withheld from obligation until the President has made a certification to Congress regarding the matters specified in subsection (b)(1).

(h) The requirement to withhold funds from obligation pursuant to subsection (g) shall not apply with respect to funds made available under the heading ``ECONOMIC SUPPORT FUND'' for continued support for the Community Action Program and Community Stabilization Program in Iraq administered by the United States Agency for International Development or for programs and activities to promote democracy in Iraq.

Thus, under the House bill, if the President fails to certify on specified dates that certain Iraqi benchmarks have not been met, redeployment of the Armed Forces from Iraq must begin, and must be completed in 180 days. More importantly, even if the President makes the requisite "benchmark" findings, redeployment must commence by March 1, 2008 and be complete by August 28, 2008.

The Senate Bill (Sections 1315(a)-(b) of the Byrd Amendment to H.R. 1591):

SEC. 1315. REVISION OF UNITED STATES POLICY ON IRAQ.
(a) Findings.--Congress makes the following findings:

(1) Congress and the American people will continue to support and protect the members of the United States Armed Forces who are serving or have served bravely and honorably in Iraq.

(2) The circumstances referred to in the Authorization for Use of Military Force Against Iraq Resolution of 2002 (Public Law 107-243) have changed substantially.

(3) United States troops should not be policing a civil war, and the current conflict in Iraq requires principally a political solution.

(4) United States policy on Iraq must change to emphasize the need for a political solution by Iraqi leaders in order to maximize the chances of success and to more effectively fight the war on terror.

(b) Prompt Commencement of Phased Redeployment of United States Forces From Iraq.--

(1) TRANSITION OF MISSION.--The President shall promptly transition the mission of United States forces in Iraq to the limited purposes set forth in paragraph (2).

(2) COMMENCEMENT OF PHASED REDEPLOYMENT FROM IRAQ.--The President shall commence the phased redeployment of United States forces from Iraq not later than 120 days after the date of the enactment of this Act, with the goal of redeploying, by March 31, 2008, all United States combat forces from Iraq except for a limited number that are essential for the following purposes:

(A) Protecting United States and coalition personnel and infrastructure.

(B) Training and equipping Iraqi forces.

(C) Conducting targeted counter-terrorism operations.

(3) COMPREHENSIVE STRATEGY.--Paragraph (2) shall be implemented as part of a comprehensive diplomatic, political, and economic strategy that includes sustained engagement with Iraq's neighbors and the international community for the purpose of working collectively to bring stability to Iraq.

(4) REPORTS REQUIRED.--Not later than 60 days after the date of the enactment of this Act, and every 90 days thereafter, the President shall submit to Congress a report on the progress made in transitioning the mission of the United States forces in Iraq and implementing the phased redeployment of United States forces from Iraq as required under this subsection, as well as a classified campaign plan for Iraq, including strategic and operational benchmarks and projected redeployment dates of United States forces from Iraq.

The Senate provision therefore is a bit more of a "soft" requirement than that found in the House bill: The President would be required to "promptly transition the mission of United States forces in Iraq" to the specified "purposes"; and he would also be required to "commence the phased redeployment of United States forces from Iraq" within four months of the statute's enactment; but the redeployment of all combat forces by March 31, 2008 (with specified exceptions) would only be a required "goal" of executive action, not a firm mandate for execution.

The House passed its bill last Friday; the Senate will vote on its bill this week. They would then have to be reconciled in conference, and approved again by both houses. The President has threatened to veto the bill if it contains either of the two redeployment provisions.
Posted 3:51 AM by Marty Lederman [link] (53) comments

More on a desire not to testify

Sandy Levinson

This just in from the New York Times:

Goodling, on voluntary leave from the Justice Department, was one of several aides closely involved in planning the firings. She was called to testify as part of a Senate inquiry, and her refusal appeared to surprise Justice officials who hours earlier said department aides would fully cooperate with the investigation.

''I have decided to follow my lawyer's advice and respectfully invoke my constitutional right,'' Goodling said in a statement to the Senate Judiciary Committee.

Her attorney, John Dowd, said the Senate inquiry amounts to a perjury trap for his client. ''One need look no further than the recent circumstances and proceedings involving Lewis Libby,'' Dowd said.

So my questions are these: a) Does the fact that Ms. Goodling is on "voluntary leave" mean that she is still being paid by the taxpayers? I would assume the answer is no, unless she is taking advantage of unused personal leave time. b) Is her job being performed by someone else, and, if so, what responsibilities has that other person had to ignore in order to perform Ms. Goodling's. c) What is the precise nature of the ostensible "constitutional right" that she is invoking on the advice of counsel? Can we now explain to the IRS that we are not sending in our tax return this year because, given Al Capone and other examples, we just don't trust the IRS to play fair with people it views as public enemies (and, in the age of the Bush-Cheney Administration, that could be a very broad category indeed)? If not, why not? Or is there some special principal--call it the "non-oversight one"--that applies especially to Congress? And, by the way, does it apply only to officials of the Executive Branch, or can any private citizen invoke the "I really don't like you people and therefore I'm taking the 5th" defense? It would, of course, be entirely different if she were forthrightly willing to say "I'm not sure that everything I did was really legal and therefore I'm going to be prudent and refuse to talk about any of it," which is certainly an inference one can draw from most persons' invocation of the Fifth Amendment.

Scooter Libby was convicted of lying to relevant authorities with regard to material facts. To put it mildly, the federal prosecutor found impressive witnesses, from within the Administration, who offered evidence that allowed what by all accounts was a conscientious jury to conclude, beyond reasonable doubt, that he in fact did lie. So isn't Ms. Gooding simply engaging in slander against the special prosecutor? (And, incidentally, I'm wondering if the Republicans who are now so adamant in their defense of Scooter are equally concerned about other police "sting operations" that, to the naive, look like, but are never accepted by courts as, entrapment.)

Also, for the record, I have long--i.e., well before this current episode--been fairly critical of the scope of the right against self-incrimination. I'm quite adamant about preventing police misconduct, and a prophylactic rule against self-incrimination might be effective in limiting that, but that rationale doesn't apply, e.g., to testimony before Congress or, indeed, being called to the witness stand in open court. Other undeniably just political systems do without a strong right against self-incrimination of the US variety. Though I don't put it in the same category as other features of our defective Constitution, I'm really not sure why anyone should celebrate the present interpretation of the 5th Amendment (whether or not it would in fact protect Ms. Gooding).

Posted 3:26 PM by Sandy Levinson [link] (38) comments

"The Seach for Objectivity in Constitutional Law"

Brian Tamanaha

This is an era of avowed sophistication in the Supreme Court. To talk, as Justice Roberts did, of simply [calling balls and strikes like an umpire], now seems almost like dredging up an antiquity. Justices may always have been sufficiently sophisticated to know that the judicial process is not that simple, that in the constitutional field the process is primarily political, not judicial; but it is only recently that they have admitted as much and have begun to discuss publicly their methods of deciding cases.

One can hardly blame the current bench for indulging in this sort of self-analysis, so obviously designed to minimize the significance of ‘personal predilections.”…

Thus, the Supreme Court goes galloping off in search of objectivity. This approach is admittedly a far cry from the deceptiveness, self-induced or not, of the mechanistic approach. But will it produce anything more satisfactory either to the justices themselves or to the public?

So began George Braden’s 1948 essay in the Yale Law Journal, “The Search for Objectivity in Constitutional Law” [although I have injected a paraphrase of the current Justice Roberts to replace Braden’s paraphrase of the earlier Justice Roberts: “laying a statute alongside an article of the Constitution to see if the former squares with the latter”].

Braden proceeded to articulate and take apart the three main theories of objectivity in constitutional interpretation circulating at the time: Stone’s “reason” based approach that focuses on the protection of “discrete and insular minorities”; Frankfurter’s “consensus of the community” approach; and Black’s “specific words” and “original purpose” approach.

In response to Stone, Braden pointed out that choices must be made as to which minorities qualify for protection, and how much protection they will get. “Chief Justice Stone’s philosophy is so abstract that it contains virtually nothing to show how it works in individual cases.”

In response to Frankfurter, Braden had a long list of questions: “What is the consensus? Is it qualitative or quantitative? Is it nationwide or broken into statewide segments?....What is it a consensus of? Abstract notions of fair play and justice?....And how does a justice, who knows what he is looking for, find it? By a Gallup Poll? By editorials in leading papers?....”

In response to Black, Braden articulated the “many technical difficulties”, including issues about the accuracy of historical accounts, how to deal with social change or with application to situations not originally anticipated, and more.

Braden concluded his exploration:

Here is a great quantity of sound and fury signifying what? Two present members of the Court produce theories of constitutional interpretation of government limitations designed to control themselves and their brethren. Each theory collapses, on analysis, into little more than a front for policy making….

There is no objectivity in constitutional law because there are no absolutes. Every constitutional question involves a weighing of competing values. Some of these values are held by virtually everyone, others by fewer people. Supreme Court justices likewise hold values. The more widely held are the values in society, the more likely the Supreme Court will hold them; the more controversial the values, the more likely the Supreme Court is to divide over them….

Hence the justice who wants to tell the world how he decides cases must….say: “This is what I believe is important in our civilization and I shall do all I can to preserve it.” And forthwith set forth his creed. If this is too shocking to society or if the many [structural and sociological] limitations on the Court’s power are not in themselves believed to be sufficient to restrain the imposition of “idiosyncratic” values, then society must take away the Court’s power. There is no middle ground.

Braden’s essay was written before the Warren Court, before Brown and Roe and Bakke, before Bush v. Gore. The quest for objectivity and judicial restraint in Constitutional interpretation has gained urgency in the six decades since he wrote the essay. Thousands of pages of law review articles and books have been dedicated to the subject. Beneath the avalanche of words, however, the basic alternatives have not changed much (although the pragmatic/purposive approach has taken a seat at the table to supplement the social consensus approach).

We must answer Braden’s starting question about the production of a satisfactory theory of objectivity with a resounding: “No.”

Are we fated to remain stuck in place on this issue?
Posted 1:14 PM by Brian Tamanaha [link] (18) comments

Appoint A Special Prosecutor. Now.

JB

Neal Katyal's proposal to appoint a special prosecutor in the U.S. Attorney scandal not only makes considerable sense; it also helps resolve any dispute over executive privilege, as I've discussed here and here.
Posted 7:49 AM by JB [link] (39) comments

Why Would An Inferior Court Judge Ever Cite Dred Scott?

JB

Brad DeLong thinks I've made a mistake in logic:

the fact that somebody cites Dred Scott for Argument X is a powerful sign that they couldn't find another court making Argument X to cite instead. And the fact that a certain type of argument appears rarely except in Dred Scott is a powerful sign that it is a bad argument.

Um, no. The D.C. Circuit cited Dred Scott because it believed that there were only two Supreme Court cases relevant to the question of whether the Second Amendment protects an individual or a collective right. The first was United States v. Miller, decided in 1939. The second is Dred Scott v. Sanford, decided in 1857. This paucity is not unusual, nor, as Brad seems to think, is it a sign that the arguments contained in either of these decisions are bad arguments.

The Supreme Court writes opinions in very few cases, sometimes (as in the 2004 Term) less than 100 a year. There are some legal questions it has never taken up; there are others for which there are only one or two decisions even close to being on point. (There are still others for which the only discussion appears in concurring or dissenting opinions, and so on).

Given the scarcity of Supreme Court precedents, lower courts naturally cite anything even remotely relevant. In this case, the D.C. Circuit believed that Miller had not conclusively chosen the collective rights theory over the individual rights theory. (I don't agree, but the issue, like so many other things in law, is debatable). It then asked whether there was any other Supreme Court precedent. The only other Supreme Court precedent was Dred Scott, which the D.C. Circuit believed pointed to the individual rights theory.

Similarly, when the Supreme Court decided the Insular Cases in 1901, both sides cited to Dred Scott as authority. Was it because both sides were bad lawyers? No. It was because Dred Scott was one of the few cases that had construed Congress's authority to regulate federal territories.

Contrary to Brad's assumption, we cannot infer from the fact that there are only one or two Supreme Court precedents on a question the conclusion that the arguments contained within them are bad arguments. That is a non sequitur. It confuses the frequency of positions held in a sufficiently large population of expert opinions with the frequency of positions stated in Supreme Court opinions. A view may be rarely stated among experts because it is a stupid view. (Of course, that is not always true, if the view is a highly technical scientific claim that only a few people have the capacity to evaluate). However, a view may be rarely stated in the corpus of Supreme Court opinions because the Supreme Court has heard few cases directly on point and/or we are facing a case of first impression. That is what the D.C. Circuit thought was involved in Parker. Hence it looked around for whatever Supreme Court opinions it could cite and cited all of them.

But why did the D.C. Circuit feel compelled to cite Dred Scott given that there is other evidence that antebellum legal scholars believed that the Second Amendment protects an individual rather than a collective right? Simple. Most of those sources are not court decisions. And the D.C. Circuit is an inferior court that looks first and foremost to the decisions of higher courts for guidance. The court above it is the U.S. Supreme Court, so this is the first place the D.C. Circuit would be expected to look for authority. Generally speaking, competent judges will cite everything by higher courts that they can get their hands on that is remotely related to the issue at hand. If Silberman hadn't cited Dred Scott, even to dismiss it, somebody could accuse him of missing one of only two Supreme Court decisions remotely on point.

I think Brad may also be conflating two different notions of what makes something an authority for an argument. An economist might look to any learned authorities he could to assess the credibility of a contested position, and if few authorities make the claim, that is evidence that the claim is implausible. From this perspective what makes an authority an authority is that it is likely to be correct and that the authority's views are well reasoned. But what makes the statements of a legal actor authoritative with respect to a lower court is that the actor occupies a particular place in the hierarchy of legal sources. For example, the Supreme Court's decisions are normally considered more authoritative than the decisions of lower federal courts and state courts. But if that is so, it is not because the Supreme Court makes smarter arguments. Rather, lower courts are required to look to the decisions and reasoning of superior courts because of the doctrines of stare decisis in a hierarchical court system. That is certainly no way to do science. But it is how you do law in a court system like we have in the United States.

Brad thinks that my failure to infer the probabilities as he does is a "trained incapacity" on the part of lawyers. Needless to say, I don't agree. Rather, it shows that we bring different presumptions to assessing what counts as a good or bad legal argument based on our professional training. In this case, I think I can give a more sympathetic (and appropriate) account of what Judge Silberman did even though I disagree with some aspects of Silberman's opinion.
Posted 6:18 AM by JB [link] (16) comments

Taney as Imperialist (and Racist)

Mark Graber

Jacksonians before the Civil War justified expansion by asserting the virtues an extended white republic. White persons who moved into the territories were fully protected by the Bill of Rights, in this view, partly because the whole point of expansion was to increase the land available for free white settlement and partly because Jacksonians had other doctrinal means for fencing out non-whites. Put differently, Taney's claim that the constitution follows the flag in Dred Scott was connected to American expansionism as well as American racism and American slavery, but American expansionism was closely connected to American racism and slavery. Putting African-Americans aside, Taney and others had few qualms about the number of native-Americans killed to expand the scope of white liberty. Whig anti-expansionism was often as racist. Expansion was bad, many argued, because expansion increased the number of nonwhites in the United States (and Whigs were not quite [emphasis on "not quite"] as comfortable as Jacksonians with the doctrinal moves necessary to fence persons of color out of citizenship rights).

While Taney’s thought was not all of on piece (whose thought is), his premises were not utterly disconnected. Taney was not simply a racist pro-slavery advocate, he was a Jacksonian racist pro-slavery advocate. How he understood race and slavery was in part structured byJacksonian commitments (Austin Allen's new book is very good on this). Taney was not simply a Jacksonian, but a Jacksonian pro-slavery advocate. His commitments to Jacksonian expansion were in part structured by his racism and proslavery attitudes. Perhaps as lawyers we are allowed to isolate one aspect of his thought from others. When we do so for legal reasons, however, we should realize that the voice is really ours and not that of Roger Taney or any other Jacksonians racist pro-slavery advocate

SIDE POINT. I will be speaking at the Harvard conference Sandy discusses in his post. My theme is going to be, regardless of whether you think Dred Scott was rightly or wrongly decided on the merits, the more important point is how much slavery the antebellum constitution protected. To this end, I think I am going to focus on just how much slavery and racism the celebrated dissents in those cases would protect. With some luck, the conference will not turn into a contest over who can denounce slavery the most.
Posted 8:51 PM by Mark Graber [link] (8) comments

Untangling the Executive Privilege Question

Marty Lederman

A good place to start would be this clear and balanced treatment from Walter Dellinger and Chris Schroeder today in Slate. For what it's worth, I agree with them on virtually all the particulars.

Disclosure: I worked for both Walter and Chris at OLC.
Posted 8:07 PM by Marty Lederman [link] (13) comments

Should The Civil Rights Cases be cited? And can Roger Taney get an honest hearing from Justice Breyer?

Sandy Levinson

A vigorous discussion has been provoked by Jack's post below regarding the "citability" of Dred Scott. One of the respondents says that the case is so tainted by slavery that it should never be cited. (We offer the analogy in our article of Nazi medical "research" conducted on those incarcerated in concentration camps.) I actually disagree and therefore approve of the DC Circuit's cite of Dred Scott, since it really is the best proof for the proposition tht by 1857 it was assumed that a "privilege or immunity" of US citizenship (to use a slightly anachronistic term) was the ability to keep and bear arms in a context that has nothing discernible to do with service in a militia. (I'd even cite Nazi research if, in fact, it provides usable information about how to treat sick people and save lives. I recognize that reasonable persons might differ with me on this.)

But my real question, for those who are so fastidious, is whether they are going to be equally censurious of the current majority of the US Supreme Court that continues to cite--see, e.g., Morrison--cases like the Civil Rights Cases and Harris v. US, which can be understood only against the background of the disgraceful Compromise of 1877 that accepted the reimposition of white hegemony in the South and the neutralization of any of the anti-Klan legislation designed to stifle an incredibly important "insurgency" in American political history. As a matter of fact, I think it is disgusting that these cases are given any credence. But it also demonstrates why it is almost beside the point to focus one's ire on the truly Janus-faced Dred Scott. There are more relevant targets to be found in the pages of the current US Reports.

******************************

A rather gratuitous aside. There is an upcoming "trial" of the Dred Scott case at the Harvard Law School, featuring such outstanding lawyers as Akhil Reed Amar and Erwin Chermerinsky and a court that will include Justice Breyer and Judge Harry Edwards. So my question is this: Is it conceivable that either Justice Breyer or Judge Edwards would ever be willing to say, "You know, after fuller consideration of the arguments provided by capable counsel and by Prof. Graber's marvelous new book, I've decided that William Lloyd Garrison was really right: the Constitution was a "covenant with death and agreement with Hell," and Taney was therefore correct in his interpretation of such a pact with the devil"? This is meant as a rhetorical question, since I think it is unimaginable that either of these worthy judges would be willing to give any credence at all to such a position. For me, at least, this raises the question of why they are willing to participate in such a ritual event, other than to engage in reassurance that the Constitution is now, and always was, terrific and that decisions like Dred Scott can be explained only as "judges on a rampage" instead of an honest effort by capable judges to be faithful to the Constitution they were called on to interpret. (After all, one is stuck with the Constitution one has, not the Constitution one would like to have.)
Posted 7:05 PM by Sandy Levinson [link] (6) comments

Can you spell "grant of immunity"?

Sandy Levinson

The New York Times has just posted the following:

Justice Official Won’t Testify on Prosecutor Firings
By DAVID STOUT and JIM RUTENBERG

WASHINGTON, March 26 — A lawyer for a Justice Department official involved in the controversial firings of eight United States attorneys said today that his client would not testify on Capitol Hill because she is convinced she would not be treated fairly.

The official, Monica Goodling, the Justice Department’s liaison to the White House, is invoking her Fifth Amendment right against self-incrimination and so will decline to answer “any and all questions regarding the firings,” her lawyer, John M. Dowd, said....

“The potential for legal jeopardy for Ms. Goodling from even her most truthful and accurate testimony under these circumstances is very real,” Mr. Dowd said. “One need look no further than the recent circumstances and proceedings involving Lewis Libby.”


This seems the perfect opportunity for the Committee to award Ms. Goodling immunity from prosecution. Indeed, there seems to be no serious argument against such an immunity bath in her case, since there is almost no possibility that she could in fact be held liable for anything she did if her office was indeed simply to serve as a "liaison" to the White House from DOJ. If immunity was good enough for the first Monica, it should be good enough for the second. "Bring her on." Not, of course, that one should behave in any manner at all like the crazed Republican partisans of the Clinton era, all of whom no doubt have been criticized and repudiated by the modern Republican party and its notional leader in the White House (though I confess I can't the provide the hyperlink to any enunciations of that repudication).

As of today, I believe, there are 666 days remaining in the Bush tenure of office. Needless to say, I don't see anything special in this number, but I suspect that George Bush might. Perhaps he believes that Patrick Leahy is Satan incarnate.
Posted 6:54 PM by Sandy Levinson [link] (29) comments

Is Dred Scott uncitable?

JB

This essay by Gregory J. Wallance in the National Law Journal criticizes the D.C. Circuit's opinion in Parker v. District of Columbia for citing Dred Scott v. Sanford. Wallance writes that "there is no aspect of Taney's opinion that deserves respect, let alone a citation by a court regarded in importance as second only to the Supreme Court."

This seems hyperbolic to me. The fact that a certain type of argument appears in Dred Scott doesn't make it a bad argument. Nevertheless, because Dred Scott is the key example of a case that everyone thinks is wrongly decided, people can't resist tarring other opinions they don't like by comparing them to Dred Scott.

So pro-life people attack Roe v. Wade on the grounds that Taney makes a substantive due process argument, and therefore all substantive due process arguments must be evil. (In fact, Taney makes a different kind of argument than the one that appears in Roe. It's a vested rights argument, of the type well known at the founding, but badly managed in Taney's hands.). Living constitutionalists attack Taney on the grounds that he makes an originalist argument for the proposition that blacks can't be citizens. (In fact, Taney's originalist argument is an example of what I've called "bad originalism." It misuses history to achieve a conclusion that Taney likes. I'm sure you will be shocked to discover that this sort of thing still goes on to this day.) Because Dred Scott is so often used as a knock down argument to attack people's views, one might well reach the absurd conclusion that every part of the opinion must be wicked. And where, as in the Parker case, the court even dares to cite Dred Scott, well, aren't they just asking for trouble?

No indeed. Here's a little selection from Sandy Levinson's and my recent article on Dred Scott that addresses this very question. And if you want to know more about the good, the bad and the ugly in Dred Scott, feel free to read the entire article (as well as fellow blogger Mark Graber's excellent new book on the subject).

* * * * *

As Exhibit A in the constitutional anti-canon, it is easy enough to find objectionable features in Dred Scott. But a remarkable characteristic of even the worst legal arguments is that they are often Janus-faced—they contain ideas that, in other contexts, are entirely reasonable and even admirable. Dred Scott is no exception.

Dred Scott contains two key ideas that we might find valuable today. The first is its commitment to the idea of equality, however warped. The second is its hostility to colonialism and imperialism.

Today we think of Dred Scott as the very symbol of inequality, because it treated blacks as an inferior order of humanity. But Taney (and Catron) thought they were upholding equal rights—between Southerners and Northerners. Dred Scott held that the Missouri Compromise banning slavery in the northern territories was unconstitutional because the federal government could not subordinate the interests of Southern white slaveholding citizens to those of their Northern compatriots. Whatever else one might say about the Missouri Compromise, it generated a structural inequality at its core: Northerners could bring all of their property into the federal territories to settle them, but Southerners could not. Indeed, they might forfeit most of their wealth if they tried to enter north of the Compromise line. Of course, one might object that slaveholders could sell their slaves and use the proceeds to invest in new businesses north of the Compromise line. But slavery, of course, represented a culture as well as a form of wealth; the inability to maintain one’s status as a slaveholder and the obligation to hire free labor or, perhaps, choose an entirely new line of work meant, to many, the destruction of a valued way of life. Justice Catron, among others, argued that the Missouri Compromise unfairly discriminated against Southerners. He anticipated Justice Brennan’s argument in Shapiro v. Thompson over a century later, arguing, in effect, that the Compromise penalized the constitutional right of Southerners to travel into and settle the territories on equal terms. Indeed, Dred Scott may be the first “unconstitutional conditions” case—for Catron is arguing that the federal government could not put Southerners to the choice of purchasing cheap federal land or holding their slaves. The Compromise, Catron, argued, was not only coercive; it was discriminatory: “[T]he act of 1820, known as the Missouri compromise, violates the most leading feature of the Constitution—a feature on which the Union depends, and which secures to the respective States and their citizens an entire EQUALITY of rights, privileges, and immunities.”

George Fredrickson many years ago applied the term “herrenvolk democracy” to describe the nineteenth-century United States, and Don Fehrenbacher titled his last work The Slaveholder’s Republic. Dred Scott forces us to confront the extent to which these labels accurately characterize the America in which it was decided. The “slaveholder’s republic” offered a kind of “equality” to all whites (or at least all white male citizens). The Dred Scott majority argued that Congress held the federal territories in trust for all U.S. citizens, slaveowners and non-slaveowners alike; and that all citizens should have an equal opportunity to settle them. The Missouri Compromise barred slaveowners from bringing their slaves with them north of 36°30' latitude, imposing what we today would call a “disparate impact” on Southerners. Thus, Dred Scott not only makes an egalitarian argument for slaveholders rights, it also makes what we would today call an “antisubordination” argument. For Catron, the issue was not whether the Compromise was formally equal between Northerners and Southerners (some of whom did not in fact own slaves), but the practical effects and advantages that the law had in creating or perpetuating advantages for one group over another. As noted earlier, slaveholders could renounce their slaves or leave them behind if they wanted to settle in northern territories, but this would mean giving up not only their livelihood, but also their way of life. Consider, for example, a “compromise,” designed to overcome traditional religious conflict, that allowed Protestants to settle anywhere in the United States, but limited Catholics or Jews only to the territories of the upper Midwest.

Today, of course, antisubordination arguments are most likely to be offered by minority groups criticizing the cumulative effect of formally neutral laws that disadvantage them. It is interesting—and ironic—to note that Southern slaveholders made similar claims that they, too, were a disadvantaged and put upon minority in the United States, and they demanded constitutional remedies to prevent this unfair treatment. In its own way, then, Dred Scott exemplifies a Court that did indeed take (certain) rights seriously—the rights of slaveholders and the right to equal treatment by the federal government when it dispensed valuable goods like the ability to settle in new federal lands. Today we may be outraged by Catron’s use of equality arguments to defend the rights of slaveholders. But his argument was by no means frivolous in 1857. Indeed, it followed from the widely held assumption that slavery was a legitimate form of property, at least as legitimate as other forms, and, moreover, specially protected by the Constitution. If slavery was legal and legtimate, then slaveholders too were entitled to what we would now call the “equal protection of the laws.”

A second valuable aspect of Dred Scott is little noticed today but was quite important at the turn of the twentieth century. As America became an imperial power following the Spanish-American War, extending its sovereignty to new territories in the Phillipines, Puerto Rico, and elsewhere, the question arose whether the Constitution was equally enforceable in these new possessions. In the parlance of the day, this was the question of whether the Constitution followed the flag. The key Supreme Court decision of the time, though sadly neglected today, was Downes v. Bidwell, one of the Insular Cases of 1901, where Dred Scott is extensively cited—without shame—by both sides.

From the perspective of 1901, Dred Scott was not a case about racial equality or even citizenship, but rather about Congress’s plenary power to regulate the territories free of effective constitutional limits. Taney’s opinion in Dred Scott makes a sustained argument against such powers. Drawing on the memory of America’s struggle with Great Britain, Taney insisted that America was different from Europe. Unlike the Europeans, America would not and could not hold colonies that would never become part of the Union. All federal territories were acquired with the expectation that they would someday be states, and therefore the Constitution—and constitutional rights of person and property—applied to all of them. That is why Taney insisted that the federal government could not destroy vested rights of slaveholders when they brought their slaves to the territories.

Thus, Taney’s opinion in Dred Scott held that when the United States government acquires new territory—no matter where in the world—it must protect the rights of at least U.S. citizens who live there. The government’s power to regulate territories was limited by the Bill of Rights and other constitutional guarantees. Although he did not use the term, we could regard Taney as an “anti-colonialist,” a central term in turn-of-the-twentieth-century discourse. It was the great dissenter in Plessy v. Ferguson and the Civil Rights Cases, John Marshall Harlan, who drew on this aspect of Taney’s opinion, just as the pro-imperialist majority made every effort to describe Taney’s views as referring only to slavery—and, therefore, of total irrelevance to the vigorously expansionist United States.

To avoid the force of Taney’s logic, the Supreme Court in the Insular Cases created a new distinction between incorporated territories where the Constitution applied fully and unincorporated territories—like the Philippines and Puerto Rico—where only limited or watered down versions of constitutional rights applied. This distinction—and its rejection of Dred Scott—is still important today. As the United States became a world power, it occupied military bases around the world, including Guantanamo Bay, Cuba, where, as we noted previously, the government has argued that foreign detainees have no constitutional rights that the United States must respect. In a stunning example of ideological drift, Taney’s arguments that slaveholders retained basic rights when they traveled to territories held by the United States take on a very different meaning in today’s world, in which the United States stores detainees in prisons around the world, hoping to keep them well beyond the reach of American courts—and American constitutional rights. Although Taney’s specific argument sought only to protect the rights of citizens in territory controlled by the federal government, his larger principle-- that the Constitution should follow the flag-- has far greater reach.

Citing Dred Scott as positive authority for anything these days may give people pause, somewhat like citing Nazi medical experiments on Jewish prisoners for the useful information they might contain. The proper response to unmitigated evil, one might argue, is to refuse it even the most minimal affirmative recognition. Perhaps this is correct with regard to Nazi experiments. But is it a fit response to the legal arguments in Dred Scott? Or, on the contrary, should we recognize that elements of Dred Scott can make valuable contributions to our constitutional discourse even today?
Posted 2:02 PM by JB [link] (11) comments

Who's "the Decider"?

Marty Lederman

The Attorney General is now in hot(ter) water because he assured the public two weeks ago that he had very little to do with choosing U.S. Attorneys to be dismissed, and now it turns out that just prior to the dismissals, he convened meetings devoted to that very subject.

It is, of course, troubling if the Attorney General was trying to hide the truth from Congress. But the alternative would be worse. The truth is probably somewhere in between -- or a few blocks down Pennsylvania Avenue, anyway.

As I explained last week, the White House is trying to make the case that the President had nothing to do with these dismissals -- that, in Tony Snow's words, "This is a decision that was made at the U.S. Department of Justice," and "The President has no recollection of this ever being raised with him."

This is, of course, nonsense. As the President himself stated, "the Justice Department made recommendations, which the White House accepted, that eight of the 93 would no longer serve." By law, the decision was the President's, and he (appropriately) exercised it, undoubtedly with the advice of his close advisers (which is the best-case scenario for what he meant when he said "the White House accepted").

The reason the White House wants to deny presidential involvement is to support its argument that congressional investigation into internal White House communications is simply irrelevant to the question of whether any laws or constitutional obligations were violated. (As I've noted previously, the most important limitation in the White House Counsel's offer is not that Rove, et al., would be testifying without oath, but that they would not answer any questions, nor provide any documents, concerning internal White House activities and communications.)

And so the White House endeavors to place the blame squarely on the sholders of the Attorney General. But it turns out he could not have done anything improper, either, because he delegated everything about the decision to others, too -- or so he said on March 13th: "So far as I knew, my chief of staff was involved in the process of determining who were the weak performers. . . . That is in essence what I knew about the process; was not involved in seeing any memos, was not involved in any discussions about what was going on. . . . Many decisions are delegated. . . . I never saw documents. We never had a discussion about where things stood. What I knew was that there was ongoing effort that was led by Mr. Sampson, vetted through the Department of Justice, to ascertain where we could make improvements in U.S. attorney performances around the country."

As we now know, this is unlikely to be entirely accurate. But if it were accurate, it would mean that the Attorney General delegated this very serious, unusual and sensitive function -- deciding to recommend that the President remove several U.S. Attorneys -- to an aide in his mid-30's who had virtually no experience or knowledge of institutional norms, and even less practical or political judgment, and that the Attorney General himself forwarded such recommendations on to the President without even bothering to check the evidence with respect to whether these U.S. Attorneys had done such a bad job in office as to justify the solemn step of firing them in midstream, i.e., without even knowing whether the removals would be justified or wise.

If this were the true story, it would demonstrate atrocious judgment on the part of the Attorney General, and would be much more troubling than the fact that he dissembled a bit in a press conference about the level of his own involvement.

We now know that it is not entirely true -- that Judge Gonzales convened at least one meeting shortly before the dismissals in which he was told of the plan. Presumably (at least one hopes), at that meeting he was given at least some indication about why these faithful public servants were being ignominiously dropped.

But I suspect there is at least some truth to his original claims of being mostly out of the loop. To be sure, Judge Gonzales probably did not inquire deeply into the details of the justifications for the removals. But it's also likely that he did not simply take Kyle Sampson's word for it -- something that would be virtually inexplicable.

The reason the Attorney General could be so hands-off about the entire mess was that the real decisionmakers -- the President's close aides, such as Karl Rove and Harriet Miers -- had already made their choices on who would be fired, and had "signed off" on DOJ's so-called "recommendations." The e-mail traffic I've seen shows that Sampson was taking his marching orders from Miers, her Deputy William Kelley, and Rove, who appear to have been orchestrating the affair from the outset. In a November 15 memo, for instance, Sampson urged Miers to reach out to Rove's office as a "pre-execution necessity I would recommend." The weeks went by, with Sampson waiting for the "green light" from the White House Counsel's office. On December 4, Kelley wrote to Sampson: "We're a go for the U.S. attorney plan. WHU leg (office of legislative affairs), political (office), and communications have signed off and acknowledged that we have to be committed to following through once the pressure comes."

Gonzales knew all of this, of course -- that this was a White House initiative that had been vetted carefully not only by his own Chief of Staff, but also by various components in the White House, who would recommend to the President that the removals be made. I should add that there is nothing wrong with this, and it's what one would expect, in any Administration, with respect to such an important exercise of the President's removal power. Indeed, the notion that this project would go forward in DOJ without White House leadership and guidance is virtually inconceivable.

What does this mean? Well, for one thing, it means that the current focus on the Attorney General is something of a distraction, at least insofar as Congress's objective is to determine whether anything unlawful or unconstitutional was involved in the U.S. Attorney dismissals. The real action was in the White House, and one cannot determine whether the removals were made for improper reasons unless one knows what Rove and Miers advised the President, and why they did so. But that's precisely the subject matter that Fred Fielding would put off-limits in his offer to allow questioning of those officials. [There's a great deal of chatter online, and from the likes of Charles Krauthammer, suggesting that these removals could not have been impermissible because the U.S. Attorneys serve at the President's pleasure. I have explained here why I think this is wrong -- why it is at least possible that certain criminal laws were violated or that the President and others acted in derogation of his constitutional obligation to faithfully execute the law. See also Josh Marshall's latest. I'm not saying that the removals were or were not unlawful or unconstitutonal -- merely that it's possible, and that the evidence adduced so far (and the absence of any coherent story about permissible reasons for the removals), leaves the question open.]

I should caution, in closing, that even if Congress were to receive full access to evidence from within the White House, Congress might not ever learn of what Rove and Miers actually said, or why they acted. They and their aides are very unlikely, in response to questioning, to expressly acknowledge that the U.S. Attorneys were fired for improper reasons (if that is in fact what happened); and it is entirely possible that there is no e-mail or other memorialized evidence explaining forthrightly why the decisions were made. (And if there are such smoking-gun documents, it is highly unlikely that the White House will ever disclose them, short of an order from the Supreme Court, which is itself a very uncertain prospect and would take at least a year.)
Posted 9:24 AM by Marty Lederman [link] (32) comments

Doing Our Pre-Laws (No) Favors

Mark Graber

The highlight of this morning’s effort to evaluate approximately 40 applications to the University of Maryland School of Law was the number of students who had over a B average at a well respected university who were in the bottom third of their graduating class. In some cases, based on exceptionally skimpy materials, I concluded that they were the beneficiaries of grade inflation, that they had received A’s for average work and B’s for below average work. In other cases, on the basis of equally skimpy materials, I concluded that they were victims of grade inflation, that because everyone at the university in question was receiving only A’s and B’s, the numbers did not do justice to their intellectual abilities and achievements. More often than not, given that other evidence was skimpy, I used class rank as a proxy and did not recommend the student for admission. Better safe than sorry, I suppose.

If my evaluative standards are typical (I have no idea and would love if other members of law school admissions committees posted comments), undergraduate professors are not doing their students any favors when a third to a half of their students in upper level courses are given A’s (my goal is between 20-25%, probably still too high but the lowest I can justify given rampant grade inflation elsewhere). The main consequence of this practice is that persons evaluating their students have great difficulties distinguishing the best from the somewhat above average.

Undergraduate professors do their students major favors when they actually have a conversation with their best students about their law school ambitions, advise them on their personal statements, and write letters that are specifically geared to the law schools to which those students have applied. In particular, please do not write cliches promising that your students have the ability to succeed in some random law school. More often than not, the raw numbers demonstrate that. Virtually all applicants to tier one and tier two law schools can do the work at some law school in the United States. I need to know why the student whose file I am reading will shine at the University of Maryland School of Law (assume in this endeavor that while, as the case with any loyal professor, I think my home institution somewhat underranked, I recognize that a student not likely to be the editor of the Yale Law Journal may nevertheless be very successful elsewhere). Moreover, if there is a weakness in the student’s file, nothing is better than a good letter from a professor explaining away that weakness. Alas, this morning’s evidence suggests that while professors curry favor with undergraduates through grade inflation (you need about a 3.7 at most places to have a shot of being in the top third of the graduating class), most write perfunctory letters, if they write at all. Of the approximately 40 files I read this morning, only a quarter had even one letter from a professor who struck me as really knowing the student and making best efforts to sell that student to the best law school the numbers might warrant.

UPDATE: Kevin Heller's point in the Comments Section is a good one. You cannot target a letter to every school to which a student has applied, but most letters I receive could do a lot better job indicating approximately where a student would be appropriately placed.
Posted 2:59 PM by Mark Graber [link] (21) comments

Why the Administration is Legally "Constrained" from Moving the GTMO Detainees to the Mainland

Marty Lederman

The President has stated that he desires to shut down the detention center at Guanatanmo. The Secretary of State agrees. And the New York Times now reports that new Defense Secretary Gates, endeavoring to put the President's desires into action, has proposed that the GTMO detainees be transferred to a facility here in the continental United States. Gates "repeatedly argued that the detention facility at Guantánamo Bay, Cuba, had become so tainted abroad that legal proceedings at Guantánamo would be viewed as illegitimate, according to senior administration officials. He told President Bush and others that it should be shut down as quickly as possible."

The Secretary of Defense actually thinks that retaining the detainees at GTMO rather than on the mainland "hamper[s] the broader war effort" -- and there's indication the President and Secretary Rice agree -- and yet the Administration will not move them.

Why?

That's what one reporter asked Tony Snow yesterday:

Q Why is it that the President's stated desire to close Guantanamo Bay cannot be turned into some kind of plan of action?

MR. SNOW: Because there are legal constraints. . . . [T]he President made clear back in September that he would love to be able to shut it down, but unfortunately the circumstances do not presently permit."

And what might those "legal constraints" be?

According to the Times, "[s]ome administration lawyers are deeply reluctant to move terrorism suspects to American soil because it could increase their constitutional and statutory rights."

In particular, if the GTMO detainees facility were transferred to a U.S. mainland site, they would unarguably be protected by constitutional due process and the right to petition for habeas corpus. And we wouldn't want that, would we? Better that we should continue to "hamper the broader war effort."

[Note: Just to be clear -- I think the Supreme Court, if it reaches the questions, will likely hold that the detainees have due process and habeas rights even at GTMO. Therefore, it's likely that the only "cost" to the Administration of moving the detainees to the continental U.S. would be to foreclose the Department of Justice from arguing to the contrary.]
Posted 8:10 AM by Marty Lederman [link] (22) comments