Introducing Myself

Frank Pasquale

I'm a big fan of Balkinization and it's an honor to be here. My academic work focuses on technology policy and health law. I've been trying to broker a conversation between "the learned and the conversible" for the past few years as a blogger at Concurring Opinions and Madisonian.

Having done hundreds of posts at those and other blogs, I appreciate new communicative opportunities on the internet. However, it's also important that we think critically about new power centers in a networked public sphere. I'll focus on issues they raise over the next few weeks.
Posted 6:23 PM by Frank Pasquale [link]

What Types of Judicial Nominees Can We Expect from Obama?

David Stras

If history is any indicator, we can expect President Barack Obama to announce his first slate of judicial appointments no later than June of this year, and probably sooner. Indeed, President George W. Bush announced his first group of eleven circuit court appointees on May 9, 2001, just before he reached the fourth month of his first term in office. The annual speculation over Supreme Court appointments has already begun in earnest, but there has been little discussion about what type of district and circuit court nominees we can expect from President Obama. Perhaps Obama's early cabinet appointees provide some window into his thinking on the subject, but existing research suggests that his first slate of nominees will likely tell us how much political capital he is willing to expend on judicial nominees.

Of course, President Obama is facing unprecedented challenges, both domestically and abroad. One possibility is that these policy challenges will prove so overwhelming that senators, interest groups, and the American people will pay little attention to his judicial nominees, leaving him largely unconstrained in his choices. Given the intense (and increased) participation by organized interest groups in judicial appointments over the last two decades, I find that possibility unlikely. (For a good source on the increasing role of organized interest groups in federal judicial appointments, I recommend Nancy Scherer's book, Scoring Points: Politicians, Political Activists, and the Lower Court Appointments Process.) Far more realistically, Obama will be required to expend so much political capital dealing with domestic and foreign policy challenges that he may make a conscious decision to moderate his judicial nominees for fear of a backlash from Congressional Republicans and organized interest groups. Both possibilities have their drawbacks and advantages.

Academic research, meanwhile, would suggest that Obama is relatively unconstrained in his selection of judicial nominees, though admittedly the current political environment perhaps makes such research less applicable as I explain above. Unsurprisingly, the single greatest constraint on strategic selection of judicial nominees is a Senate controlled by the opposite party. Of course, Obama has at least 58 Democrat votes in the Senate, and possibly 59 if Al Franken is seated. Empirical research suggests that divided government not only reduces the confirmation rate for judicial nominees, but it lengthens the amount of time to confirmation for those nominees that are ultimately successful. So empirically speaking, we can expect a high success rate and quick confirmations for Obama's judicial nominees if we do not take into account the current domestic and foreign policy challenges. The preferences of the 60th Senator, or the filibuster pivot, have also been shown to be important, but if Al Franken is seated, it seems unlikely that a filibuster could be maintained without at least a Democratic Senator or two joining in the effort. Moreover, low approval ratings and the approach of end of a President's term in office have historically been impediments to the confirmation of judicial nominees, but Obama currently has very high approval ratings and has just began his first term in office. Although there are several other factors for Obama to consider, such as the criticality of a nomination to a particular court (i.e., does it swing the ideological balance of a Court, it is an opposite-party replacement, etc.?), the literature suggests that Obama should be successful if he picks highly-qualified nominees to fill vacancies in the lower federal courts. (Fellow Balkinization blogger Lee Epstein has written about the strategy of picking highly-qualified nominees, particularly for the Supreme Court.) Of course, the home-state senators for a judicial vacancy are vital given the blue-slip process, but without knowing which vacancies Obama will seek to fill in that initial slate, it is very difficult to assess that variable here.

All of this is to say that, though I obviously have no inside knowledge of who Obama will select, it will be very interesting to see whether Obama makes ideologically-motivated selections in his first slate of judicial nominees or whether he moderates his choices in order to save capital for his preferred policy initiatives, some of which are already in peril if the current economic crisis persists throughout his presidency. It seems like a difficult choice, but my best bet is that Obama will try to choose a middle ground so as to not anger his own liberal base or mobilize conservative interest groups, perhaps interspersing some ideologically moderate nominees with liberal ones. But like others, I am anxiously awaiting that first slate of judicial nominees to get an initial glimpse of whether Obama will make the federal judiciary one of his top priorities.

Posted 5:45 PM by David Stras [link]

Executive Privilege When You are No Longer the Executive

JB

Michael Isikoff reports that days before President Bush left office he sent a letter to Karl Rove telling him that after Bush left office Rove was under no circumstances to testify before Congress or provide documents to Congress. Isikoff reports that a similar letter was also sent to Harriet Miers.

President Bush's view is that beyond ordinary executive privilege, Rove and other aides have an absolute immunity from testifying.

The fact that Bush sent these letters while he was still president makes no difference. He is no longer president. The claim of absolute immunity he is making (as opposed to executive privilege, which is not absolute) would be controversial even if offered by a sitting president, but it is even more so when offered by a former president.

As I noted previously, it is likely that everything turns on whether the new administration consents to the testimony; a former president's privilege is not absolute but must necessarily be limited by the needs of the present administration, which, the courts presume, will take into consideration the needs of former and future presidents. Even if the Obama administration consents to testimony, Rove and Miers likely won't take yes for an answer. They will try to litigate their position in the courts, meaning that Rove and Miers will not testify until the process runs its course. President Bush and his aides are playing for time.

Posted 8:58 AM by JB [link]

Yoo Unrepentant (and Deflecting Responsibility)

Brian Tamanaha

In the Wall Street Journal today, John Yoo chastises President Obama for his orders to close Gitmo and halt illegal interrogation techniques. Yoo calls Obama "naïve" for insisting in his inaugural address that we must not and need not sacrifice our ideals for security.

The prominent conservative Charles Fried, it bears noting, articulated the same “naïve” position a week before the inauguration:

Some argue that torture is justified if our survival is threatened, but even apart from the elasticity of this justification, it is flawed because it depends on an equivocation. Our physical survival is not what is of overriding moral importance (people give up their lives all the time for some higher value) but our survival as decent human beings acting for a decent society. And we cannot authorize indecency without jeopardizing our survival as a decent society.

Fried condemned high level Bush Administration officials “who allowed Americans to engage in torture and cruel, inhumane and degrading treatment of those in our custody.” He made these comments, by the way, in the course of defending these officials against calls for their prosecution.

Undeterred, Yoo still defiantly insists that torture in the service of national security is fine:

What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)

Rather than detail the flaws in Yoo’s position, exposed many times on this blog, I will instead focus on the words italicized above, for they subtly but clearly point responsibility away from Yoo.

As he no doubt knows, the Senate Committee Report that investigated our illegal treatment of prisoners places responsibility for events squarely on legal advice prepared by Yoo (and Bybee) that “distorted the meaning and intent of anti-torture laws.”

Indeed, stalwart defenders of the Bush Administration, including the Wall Street Journal’s editorial board, repeatedly point to the legal opinions: “Bush Administration lawyers approved the legality of certain interrogation techniques after studying U.S. law and its applicability to the Geneva Conventions.”

“In any event,” the editors continue, “the legal standard for any possible prosecution into torture allegations would include mens rea -- whether, say, a CIA interrogator understood, i.e., possessed the "guilty mind," that his actions constituted a crime.” As these arguments suggest, the Journal’s position is that CIA interrogators cannot be prosecuted because they relied in good faith upon the legal opinions (assuming that one can rely in “good faith” on legal opinions which say that waterboarding is not “toture”).

Even Alberto Gonzales (self-servingly) distances himself from the pivotal torture memos, as the WSJ reported: “Mr. Gonzales said his role as White House counsel at the time was one among several administration lawyers who debated the opinions, but that in the end it was the Justice Department's call. John Yoo, the then-Justice official who had been assigned to draft the memos, had strong feelings and no one could have pressured him to write the memos a certain way, Mr. Gonzales said.”

Thus critics as well as defenders of the Bush Administration agree that Yoo’s (and Bybee’s) legal opinions played the pivotal role in providing legal authority for the “coercive” interrogations.

In the above paragraph Yoo appears to make a crucially different claim: “On the advice of his intelligence advisors, the president could have authorized coercive interrogation methods…” [Note: Yoo's "president could have" phrasing ambiguously shifts between Bush and Obama, but the specific reference to the authorization of waterboarding clearly refers to Bush, suggesting that this is Yoo's characterization of what transpired.]

Every other account of events indicates that intelligence advisors sought approval to apply coercive techniques, and Yoo’s (and Bybee’s) legal memos provided the legal cover they desired.



Posted 10:57 AM by Brian Tamanaha [link] (206) comments

Some additional notes on comments and social software

JB

Our new policy on comments follows from some basic features of social software already known to many. I thought I would take this opportunity to suggest the lessons that people have gleaned from over a decades' experience in running online discussions sections, and how these lessons apply to this blog.

1. If you want to have an electronic discussion group that is both interesting and civil, you need to moderate it, especially at the beginning. You must regularly participate in comments threads and regularly sanction people for misbehavior. It is better to do this early before problems have a chance to grow.

Conversely, if you do not have the time to moderate comments threads, the chances increase that over time, the quality and civility of comments will suffer. Put another way, if you treat your comments sections like an untended garden, do not be surprised if weeds eventually grow. If you don't care about the weeds, eventually the weeds will take over the garden. This means that, first of all, the proprietor of a blog must make a decision about how much time he or she wishes to devote to tending their particular comment garden. If they don't have the time, they should strongly consider not having a garden at all.

2. The subject matter of the posts to which comments are attached also matters. If the posts in a blog are controversial or are on controversial subjects (like, say, the war on terror, abortion, and the Supreme Court), this greatly increases the chances that the comments will be uncivil and will attract trolls. If your blog prominently features posts with strong political content, even if expressed civilly, you need to moderate the comments section. Here at Balkinization we pride ourselves on trying to offer a scholarly focus, but there is no doubt that we regularly discuss controversial subjects and many of the posters have strong political views. Moreover, we have regularly (and often fiercely) criticized the Bush Administration and discussed some of the most controversial questions in contemporary constitutional law.

3. It takes two to troll. A comments section can usually get away with one person who acts uncivilly every now and then, because other people can ignore that person, and, over time, the members of the group can learn how to police misbehavior, but once you have two or more such people, they tend to egg each other on and draw other people into their disputes.

Often problems are blamed on individual persons who are called "trolls," but in fact there is more than one way to create troll-like behavior; generally such behavior results from the interaction of different parties. If A is perfectly civil and polite, but says outrageous things in the eyes of other commenters, they may start attacking A, and piling on, leading to flaming and uncivil behavior. By himself, perhaps, A is not a troll, but the conjunction of A with B,C, and D produces predictable incivility. Similarly, A and B can egg each other on, signalling to others that it is permissible to engage in this sort of behavior. I do not mean to suggest that this means nobody is to blame in these interactions; rather my point is that more than one person is often to blame. And of course, there are always a few people who apparently just enjoy disruption.

4. Moderation takes time; it requires participating in comments sections, directing traffic, and on occasion, shutting people up by banning them or deleting their postings. Whether you call this editing, mediating, facilitating, or censorship depends on your perspective. Whatever you call it, if you are willing to invest some time and effort doing these things, you can, over time, develop a healthy and vibrant comments section. There are plenty of examples. Conversely, if you are like me and you don't like doing any of these things, or don't have the time, you are best advised to turn off the comments section or say only non-controversial things in your posts (see No. 2 above).

5. Code matters. Some blogging software platforms make administration and moderation easier than others. Blogger, which we have used here since the blog's inception, is not an especially feature rich platform. And it has other quirks: for example, currently it requires that everyone who moderates comments must have full administrator privileges. Given the wide variety of people who post on this blog, and their relative degrees of inexperience with technical issues, I am loath to make everyone an administrator.

Obviously, one solution is to move the blog to a different platform. But this also takes research, time and effort. If I were committed to the time and effort of moderating comments, I might also be committed to the search for a much better blogging platform. Perhaps some day I will do this, but currently, I have more pressing issues and would rather focus on writing posts than on moderating comments.

6. All of this has led me to conclude that given my lack of interest in either (1) moving to less controversial subjects and treatments or (2) investing in moderating comments and moving to a platform more suitable for these purposes, it is better just to shut comments off as a default rule. At some point, if my time frees up, I may make the necessary investments. In the meantime, however, you may consider this episode a teachable moment in basic features of social software in action.

7. Finally, even as I close down comments for most posts (recall that some authors will still retain them), I would like to thank the well-behaved members of the commenting community who have been civil and have had interesting and insightful things to say. I regret that I lack the time and attention necessary to keep the comments section open for your participation, but hope that you will be able to find another platform suitable for your views.

Posted 10:05 AM by JB [link]

New comments policy at Balkinization

JB

Since last week I have implemented a new policy on the blog. The default rule is that comments are turned off. Each author will decide individually whether to turn the comments on for his or her postings.

For the first year and a half of this blog, there were no comments, and the blog operated quite successfully. I added comments in the middle of 2004. (Comments you find earlier than that are probably comment spam that was added later on.) Many blogs have developed successful communities of commenters, with many very interesting and substantive contributions and discussions. Unfortunately, this has not happened here.

Generally speaking, there are two things you want from a comments section: quality of comments, and civility. If you cannot have one, at least you want the other. Recently, with some exceptions, it has become obvious that neither is occurring in our comments sections here. Instead, the comments sections are populated by regular trolls and many threads have turned into little more than name-calling. There is very rarely any serious analysis; mostly there is point scoring and vitriol. Many regular readers have written to say that they find the comments section a distraction and think the blog would be far better without it.

About a year or so ago, after considerable frustration with the quality and the incivility of the comments, I turned off the comments section for a bit to calm things down and to see whether, after a time out, a culture of civility would reassert itself. It did so only briefly; then the trolls reappeared, the name calling began again, and things went downhill once more.

For the time being, therefore, I have decided to switch the default to no comments and not to have comments on my own posts except in special situations. Those members of the blog who wish to have comments are free to do so; Ian Ayres, for example, has enabled comments on some of his recent posts. I may experiment with moderated posts in the future, but moderating takes considerable time and effort, more time than I have at the present.

UPDATE: The post immediately after this one explains why closing comments when moderation is difficult or costly makes sense given well-known features of social software.



Posted 12:17 AM by JB [link]

The Missing OLC Memos

JB

ProPublica has published a list of OLC Memos relating to the Bush Administration's war on terror, including both published memos and those which are secret but whose essential contents they have been able to discern from other publicly available information.

The topics of some of these still secret memos are, to put it mildly, eye-opening, including memos about American interrogators' immunity from prosecution under the War Crimes Act, the President's authority to detain U.S. citizens, the President's authority to engage in extraordinary rendition, the legality of various NSA intelligence gathering activities (which include domestic as well as foreign surveillance), the analysis of specific interrogation practices and the approval of specific CIA interrogation techniques. These memos provided the legal justifications that the Administration relied on to engage in torture and domestic surveillance.

As I argued in my New York Times Op-ed a few weeks back, one of the first things the Obama Administration must do is make these OLC memos public, to the extent that doing so will not seriously damage national security. At the very least it should release redacted versions of these memos or summaries.

Secret laws corrode the foundations of democratic government. One of the reasons why the Bush Administration was able to do so much mischief to our constitutional system and to violate human rights without accountability is that its lawyers used a system of secret opinions to legitimate whatever the Administrations sought to do. These are practices that must be reformed immediately by the new Administration.

Posted 5:24 PM by JB [link]

Mike D’Antoni and the Difference Between a Concealed Handgun and LoJack

Ian Ayres

Crosspost from Freakonomics:

John Donohue and I have weighed in again on the concealed-handgun debate. (You can read previous writings on this subject here, here, and here.) This time we have responded to an empirical article by Carlisle Moody and Thomas Marvell, who claim they are “confident” that “the evidence, such as it is, seems to support the hypothesis that the shall-issue law is generally beneficial with respect to its overall long-run effect on crime.”

We point out in our response that the M&M article might have been more credible if

1) The authors had interpreted the sign of the coefficients correctly:

They state that “14 states experienced cumulative benefits while 10 states experienced cumulative costs.” Unfortunately, they have the numbers backwards: 14 of the 24 states are shown in Moody and Marvell’s Table 10 to have cumulative costs; that is, according to their own estimates, RTC laws lead to higher crime costs for the majority of states!

2) The authors had not found an implausibly high crime reduction in Florida:

Specifically, Moody and Marvell’s analysis indicates that the overall impact of RTC laws on crime through 2000 has been to lower crime by $28 billion nationally. But the same table reveals that Florida’s RTC laws alone experienced a crime cost reduction through 2000 of almost $31 billion. In other words, across the 24 states that they analyze, they attribute a benefit of almost $31 billion to the Florida RTC law and estimate an overall harmful effect of about $3 billion of RTC laws across the other 23 jurisdictions. So much for “generally beneficial.”

Now let us pause to reflect on this finding for a moment. If you had an intervention that had a net harmful effect in 23 out of 24 jurisdictions, while at the same time you estimated a massive benefit from the same intervention in only one state, would you assert that the intervention was “generally beneficial”?

3) The authors had coded the underlying data correctly (see p. 51 of our response).

As for now, the best empirical evidence still does not support the “more guns, less crime hypothesis.”

I’m often asked to reconcile this conclusion with the results of my LoJack article. You see, in an article with Steve Levitt, we showed that LoJack seemed to have a large deterrence effect on auto theft. Thieves (especially pros relative to joy riders) are less likely to take cars in a city like Boston, where a sizable fraction of the cars have LoJack. Unobservable precautions, like LoJack and silent alarms, can deter crime generally because potential criminals don’t know at the point of committing the crime whether their particular victim is protected or not. In contrast, a precaution like the Club, which is observable to the potential thief, probably just shifts crime to other victims.

But if our LoJack paper is correct, why wouldn’t we expect to see a similar crime-reducing effect from concealed handguns? Concealed weapons can also be a type of unobservable precaution that can deter potential criminals from committing crimes. Why doesn’t my concealed-handgun empiricism find similar reductions in crime when state laws make it easier to carry concealed handguns?

A powerful answer to this question comes from none other than the New York Knicks basketball coach Mike D’Antoni. As reported in last week’s New York Times:

Mike D’Antoni was thrilled to see Nate Robinson break out of his shooting slump Wednesday, but not so pleased with his behavior. Robinson — who was on the bench at the time — celebrated a second-quarter David Lee dunk by skipping down the baseline and bumping the Suns’ Amare Stoudemire, who had fouled Lee on the play. Robinson was assessed a technical foul, his sixth of the season. “To be honest with you, that’s why you don’t have concealed weapons, because I’d have shot him at that point,” D’Antoni said wryly. “I do like his feistiness, but he just needs to channel it in the right way. And he knows that.”

D’Antoni knows that the problem with a concealed weapon is that it can easily change from a defensive “unobservable precaution” to an offensive weapon to commit crimes. People are not as likely to get angry and rip a LoJack out of their car to beat someone with it.

Posted 10:36 AM by Ian Ayres [link] (35) comments

Does Karl Rove have to testify before Congress?

JB

Congressman John Conyers' recent subpoena to Karl Rove raises the interesting (and unsettled) question whether former Presidents can successfully invoke executive privilege to prevent their former aides from testifying before Congress or in civil or criminal proceedings. Put differently, does executive privilege remain with a president even after he leaves office, and can he use it to insulate inquiries into his conduct or those of his aides?

In Nixon v. Administrator of General Services, the Supreme Court held that former Presidents still have some remaining rights of executive privilege. Nevertheless, this privilege is not as great as that of a sitting President, and, moreover, it is also affected by the needs and views of the sitting President. (In Nixon v. GSA, the court rejected Nixon's claim to protect his papers in part because neither Presidents Ford nor Carter objected).

Thus, if the sitting President does not support the claim of executive privilege, the claim is greatly reduced in strength, because, as the Supreme Court noted, "it must be presumed that the incumbent President is vitally concerned with and in the best position to assess the present and future needs of the Executive Branch, and to support invocation of the privilege accordingly." The Court's reasoning is that the incumbent President recognizes that someday his aides may be called to testify after he leaves office.

How does this apply to the current controversy? Much will depend on whether President Obama supports Karl Rove's invocation of the privilege. If Obama does not, then Rove will certainly go to court to invoke the privilege anyway, but it is more likely than not that Rove will ultimately lose on the merits. True, this case involves a Congressional committee rather than a criminal proceeding, as occurred in U.S. v. Nixon case, or, as in Nixon v. GSA, a request for archives. Even so, given the fact that the privilege would be substantially weaker if Obama does not support it, Rove would probably not prevail.

Nevertheless, Rove would have incentives to litigate the issue as long as possible, and that process could take years. When the President's own aides are called to testify, the issue is usually resolved fairly quickly through negotiation. In this case, however, Rove and Bush have no incentives to negotiate. They are out of office and there is little that Congress can offer them without Obama's assent. They will try to delay as long as possible and hope that the courts will ultimately support them.

On the other hand if Obama supports the invocation of the privilege, then Rove is in a much stronger position, and Congress will have to negotiate with Obama to strike a deal for Rove's testimony. If Obama refuses to budge, then Rove is protected, more or less to the same extent that he would have been protected under Bush. (Or perhaps a little less because he is a former aide to a former president. The degree of that protection, it should be noted, has not yet been determined by the courts. Rove might still lose, but his case is stronger when the incumbent President supports the invocation of the privilege). On the other hand, if Obama and Congress reach a deal, Rove will still object and he will still go to court. But, as before, he will probably lose in the long run.

Why might President Obama support the invocation of the privilege for Bush's aides? One reason is that he doesn't want his own aides to be investigated after he leaves office. Although he has no control over what future presidents will do, his decision might set a precedent that future presidents will follow. A second reason is that he may believe that Bush's aides will reveal things that might be embarrassing to current executive branch employees.

Whatever his decision, the ball is now in Obama's court. And whatever he decides, Rove will still go to court to defend the privilege, whether Obama supports it or not. As a result, we can expect that Rove will not have to testify for some time, perhaps not for years.

Posted 9:17 AM by JB [link]

Shove

Ian Ayres

Crosspost from Freakonomics:

Last November, I had the chance to go to Dubai for the first time to participate in the World Economic Forum Summit on the Global Agenda.

Peter Ubel

One of the most interesting people I met there was Peter Ubel, a practicing physician who is also trained in the ways of behavioral economics and psychology (here’s Peter’s Huffington Post write-up of his Dubai experience).

Peter has just published the book Free-Market Madness, in which he combines both of his areas of expertise. The book’s focus is a critique of unfettered markets. He says:

Think of this attack as one designed neither to defeat free markets nor to force capitalism to surrender, but rather to prevent markets from gaining more territory than they deserve. (p. xiv)

His argument is not that markets are immoral or produce negative externalities. Instead he argues that people often (but not always) make bad or irrational choices. His book is an exploration of “what happens when the invisible hand meets the unconscious brain.” (p. xv)

The marketplace is crowded now with books riffing on the cognitive bias literature (many are monosyllabic — e.g., Nudge and Sway). What’s distinctive about Free-Market Madness is Ubel’s willingness to advocate slightly more aggressive government interventions — or gentle shoves to improve the quality of people’s lives. Instead of merely relying on Nudge-like changes of defaults and informational solutions, he’s open at times to old-fashion command and control regulation.

Peter tells the hilarious story of trying to sell his book to an editor who, after asking to know the bottom-line, take-home message of the book finally asked: “Are you aiming for a nuanced argument?” Peter goes on to write:

“Yes,” I replied, and explained that I planned to write a book that would be both nuanced and captured in a marketable sound bite. I believe I lost him at the word yes. (p. 191)

I find this hilarious because I had virtually the same “Is it nuanced?” discussion with a book editor a few years ago. Potential trade authors beware: Nuance doesn’t sell. But that’s just what Peter has tried to do.

He takes head-on the difficulty of distinguishing acceptable risky behavior (such as sky diving or driving a car) from harder-to-accept risky behavior (such as eating or drinking or smoking to excess). He often resolves the difficulty not with theory but with vivid observations:

I have cared for many patients who, when trying to quit drinking alcohol, have experienced what are known as withdrawal seizures. … I held the hands of a 40-year-old man recently — his belly swollen like he was pregnant with triplets, his skin the color of a faded dandelion — while he cried about his inability to stop drinking beer. In fact, we recently had a patient in our hospital who was so addicted to alcohol that he swallowed three dispensers’ worth of Purell hand sanitizer and collapsed in his hospital room with a blood-alcohol level three times the legal limit. And to return to cigarette smoking, I witnessed dozens of patients, their voice boxes removed because of throat cancer, who, despite having a chance of avoiding a cancer recurrence, still insisted on smoking through their tracheotomies. I cannot equate people who continue smoking with people who can’t get out of L.A. (p. 135 to 136)

There is an undeniable power to these examples — but part of me still wants to deny them. They are all ex-post examples where the state of the world turns bad, and these examples don’t give much weight to the pleasure that smoking and drinking gave to these and other people earlier.

Peter knows there are real concerns with a “nanny state” that restricts citizens’ freedom — as parents legitimately restrict the freedom of an infant, confident that they know better what is in the child’s best interest. He wants to use the lessons of behavioral economics and psychology to provide principles for greater and lesser deference to individual decisions. But I would have been happier with a richer list of specific applications to assure me just what is at stake with this more aggressive assault on contractual freedom.

Posted 12:38 PM by Ian Ayres [link] (6) comments

Taylor’s A Secular Age, reviewed

Andrew Koppelman

Religious faith today is one option among others. Many people—call them secularists—live without any transcendent source of value. Some, but not all, are militant atheists. A millennium ago, this would have been unimaginable. Everyone believed in God and oriented their lives in reference to that belief.

Charles Taylor’s A Secular Age offers an invaluable map of how the modern religious-secular divide came into being. He concludes that modern Western secularism has its roots in Christian theology and that secularism and Christianity reveal a common ancestry in their shared commitment to human rights.

Taylor’s book is well worth your attention, but it is 874 pages long. So you might find it easier to just read my review of it, recently published in Dissent, and available for a limited time here.



Posted 5:18 PM by Andrew Koppelman [link]

Steve Calabresi on the Oath Controversy

Guest Blogger

Steve Calabresi

Jack Balkin and Mike Paulsen do not in my opinion get the presidential oath controversy exactly right, just as Barack Obama and Chief Justice Roberts did not initially get the presidential oath exactly right. As I read it, the plain words of the 20th Amendment provided that President Bush's term ended at noon on January 20th and the term of his "successor" then began. It seems to me as plain as day that at noon on January 20th President-elect Barack Obama was Bush's "successor" as that word is used in the 20th Amendment rather than say Speaker of the House Nancy Pelosi. I thus think that President Obama became President by operation of the 20th Amendment at noon even before the first oath-taking was botched. I do think President Obama's first obligation as president was that he "shall" i.e. "must" take the correctly worded oath before entering on the execution of his office. The President failed to live up to that obligation until he retook the oath correctly the next day. He thus technically failed to live up to one of his core obligations as President (through no fault of his own) and could in theory, technically, be impeached for that dereliction of duty. It goes without saying that it would be a gross abuse of the House of Representative's prosecutorial discretion to impeach Obama in this context. Indeed, any Representative who so voted ought not to be re-elected for that reason alone. But, I do not think that the failure to take the oath, properly, meant that Obama was not legally President as of noon on January 20th. After all President Clinton failed to obey federal laws against perjury and obstruction of justice. He thus failed to perform his core constitutional duty that he take care that the laws be faithfully executed. President Clinton’s failure to follow the law when he was the chief law enforcement officer of the government was a gross dereliction of duty, but it did not mean that he was not legally the President at the time. So notwithstanding Jack’s mirth, there is a clear implication of the text here: Barack Obama became the 44th President of the United States at noon on January 20th for a term of exactly four years.

Jack suggests that the presence of a comma in the 20th Amendment separating the clause discussing the ending of the President and Vice President’s terms from the ending of Senator’s and Representative’s terms means that the final clause of the 20th Amendment which provides that “the terms of their successors shall then begin” applies only to Senators and Representatives. I disagree. There is a semicolon separating the phrase “and the terms of their successors shall then begin” from the parts of the sentence that describe when the terms of the President, the Vice President, Senators, and Representatives end. The semicolon means that that the phrase “and the terms of their successors shall then begin” applies to all parts of the sentence that appear before the semicolon. The term of President Bush’s successor (Barack Obama) thus began at noon on January 20th before he and Chief Justice Roberts botched the oath the first time.

Contrary to the claims of some, the precise words of the Presidential Oath Clause do not say that the President’s term does not begin until he takes the oath of office. The oath is thus not our Constitution’s analog to the crowning of a King. The Oath Clause simply mandates that the President must take the oath before entering on the execution of his office. Failure to do that, like failure to perform any high duty of the presidential office, is potentially an impeachable offense within the prosecutorial discretion of the House of Representatives.

I also disagree with Mike Paulsen that reciting the words of the presidential oath with “faithfully” in the wrong place is unimportant. Text and two centuries of practice suggest that Mike is wrong. I think the violation is cured by Obama’s retaking the oath the right way a second time around, and I see nothing in the text that bars retaking the oath as often as the President would like. President Obama was right to retake the oath both because this cured a minor technical failure to live up to his presidential duties and because doing so was costless and puts the entire matter at rest. But, he would still have been the President even had he not retaken the oath. The addition of the words including the President’s name (in this case “Barack Hussein Obama”) and “so help me God” are permissible both because they do not take away any of the words the Constitution mandates and because two centuries of practice starting with George Washington himself have established that the addition of these words is permissible.




Posted 6:38 PM by Guest Blogger [link]

Harmless Constitutional Error?

Michael Stokes Paulsen

Touche! I greatly enjoyed Jack Balkin's skewering of strict textualism and formalism ("Why Barack Obama Still Isn't President"), even though I am an apostle of these methods. Alas, I was hoping Jack was serious. But sadly (for the house conservative), I must concede that Barack Obama lawfully holds, and properly could "enter on the execution of" the Office of President of the United States.

Reeling, knocked to the ground by Jack's devestating demolition of originalist textualism, struggling to pick myself up, and depressed generally, I am driven by desperation to suggest some saving constructions for originalist methodology.

Is it possible, for example, for a departure from the Constitution to be a real, actual departure from the Constitution (understood according to its original public linguistic meaning) but yet be of no constitutional consequence? Is there a (legitimate) doctrine of "harmless constitutional error"?

A great parody comes just close enough to the real thing to cause discomfort. Jack's parody is great, for that reason. The trick is to start with your (hypothetical or real) opponent's actual position, embrace it, and then carry it off to logical absurdity. (In fact, I'm not sure I jumped off Jack's train until he got to the "unitary" executive meaning that do-overs were not permitted.)

Here's the part of Jack's modest proposal that actually seems right: The Roberts-Obama muff had the (purported) President of the United States reciting the oath in a manner not fully consistent with the language of the Constitution. One might even say that the oath actually recited "violated" the Constitution(!). In like fashion, I would fully agree (with Jack?) that the insertion of a name, "so help me God," or "hey nonny nonny and a hot cha cha" is a departure from the language of the presidential oath prescribed by the Constitution. Each example is, in a sense, literally "un-constitutional."

Perhaps, for additions, rather than deletions, a better term would be extra-constitutional, so long as what is added does not subtract or detract from what remains. George Washington's traditional addition "so help me God" does not so much "violate" the Oath Clause (we will save for another day whether it violates the Establishment Clause) as add something of his own -- a little presidential speech, as it were, no different in principle from the giving of an Inaugural Address (which also goes beyond the Constitution's requirements). So too, "hey nonny nonny and a hot cha cha" adds something -- akin to Inaugural balls and parties. If it subtracts anything, it subtracts dignity and gravitas. It does not subtract from the oath.

The accidental rearrangement of "faithfully" strikes me as a deviation from the Constitution that does not subtract or detract from the oath.

But for the sake of argument let's call the deviation "unconstitutional." What is the legal effect of this constitutional violation? Can a violation of the Constitution ever be "harmless," in the sense that it does not matter to anything? I, too, along with a fearful nation, was greatly relieved that the oath was, later, faithfully executed. But even a pig-headed formalist (like me) thinks that some "violations" of the Constitution simply are not material. They do not affect constitutional powers or privileges in any way.

This is different from saying that (material) violations of the Constitution may be waived. And it is different from saying that (material) violations of the Constitution may be validated by contrary historical practice or judicial precedent. It is also much different from saying that (material) violations of the Constitution vanish just because they may be non-justiciable for some reason. It is of course different from saying that certain provisions of the Constitution are themselves immaterial. And it is different from saying that the meaning of the Constitution may be amended by practice. ("So help me God" is not part of the Presidential Oath Clause, and has no valid constitutional legal status.) I would take none of these positions, so help me God!

It is saying, only, that some departures from the Constitution are so immaterial as to have no constitutional consequence. There is such a thing as harmless constitutional error.

Now, what if the President (-designate), whether or not abetted by the Chief Justice, substituted the word "probably" for the word "faithfully" or otherwise materially mitigated the obligation of the oath? The answer is that this too would be "unconstitutional," but unlike the Obama Oath Flub, this would be a constitutional violation that mattered. (This does not answer the question of what the remedy or consequence would be for such a constitutional violation.)

In like fashion, it matters whether Hillary Clinton's appointment as Secretary of State violates the Emoluments Clause of Article I, Section 6 (as I have argued it does, in a post for the Volokh Conspiracy, and long ago argued similarly with respect to Lloyd Bentsen, in a post for the Stanford Law Review) -- though the consequence or remedy for Hillary's unconstitutional appointment is now unclear and troubling. The violation of the Constitution's language (if violation it be) is a material one.

So too if it really were the case that Barack Obama is not a "natural born Citizen" within the meaning of Article II, section 1, cl. 5, that would be a material violation of the Constitution. It would matter -- though what to do about it would be unclear and troubling. We wouldn't say that the violation is immaterial, and that Arno could become the next president, because this provision of the Constitution does not matter.

Am I wrong that mistaking where "faithfully" goes in the oath is in a different category? Does my suggestion of the possibility of harmless constitutional error contain the seeds of destruction of everything I believe about constitutional interpretation? Is it simply ad hoc interpretive bias smuggled in the backdoor? Or is there really something to this "straining out a gnat and swallowing a camel" stuff?




Posted 11:56 AM by Michael Stokes Paulsen [link]

Obama Executive Order Establishing Lawful Standards of Interrogation and Detention

JB

On a more serious note, the four Executive Orders signed by President Obama today are very good news. In a series of four posts I reprint them and briefly describe their contents.

In the first executive order (reproduced below) President Obama gets rid of every secret Bush Office of Legal Counsel opinion authorizing torture and cruel treatment and requires full compliance with Geneva Common Article 3. Moreover, as I read this executive order the Army Field Manual governs all interrogations (including CIA interrogations). Just as important, any new parts of the Army Field Manual must also comply with Common Article 3, meaning that no new techniques involving torture or cruel and inhumane treatment can be placed in a secret appendix to the Army Field Manual. Many people have been worried about this possibility, but unless President Obama issues a new executive order altering the present one, Common Article 3's ban on torture and cruel treatment still applies.

The order also requires closure of CIA detention facilities, including its secret "black sites" and requires access to and identification of detainees to the Red Cross. Read in conjunction with the third executive order closing the Guantanamo Bay detention facility, the government will now have to decide what to do with these prisoners-- whether to release them, try them in the criminal process, try them by traditional courts martial, or create a new set of procedures to try them (that is because, according to the third executive order reprinted below, the Administration is not going to use the military tribunals created by the Military Commissions Act of 2006).

Finally, the order creates a new task force on interrogation and transfer procedures to ensure that the United States does not engage in extraordinary rendition of detainees to countries where they will be tortured or abused. The task force will also review the existing interrogation and detention techniques in the army field manual to see which ones work and which do not.

All in all, it's a pretty thorough repudiation of the last eight years.


THE WHITE HOUSE

Office of the Press Secretary



For Immediate Release January 22, 2009



EXECUTIVE ORDER

- - - - - - -

ENSURING LAWFUL INTERROGATIONS


By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence?gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:

Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order. Upon request, the Attorney General shall provide guidance about which directives, orders, and regulations are inconsistent with this order.

Sec. 2. Definitions. As used in this order:

(a) "Army Field Manual 2-22.3" means FM 2-22.3, Human Intelligence Collector Operations, issued by the Department of the Army on September 6, 2006.

(b) "Army Field Manual 34-52" means FM 34-52, Intelligence Interrogation, issued by the Department of the Army on May 8, 1987.

(c) "Common Article 3" means Article 3 of each of the Geneva Conventions.

(d) "Convention Against Torture" means the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, 1465 U.N.T.S. 85, S. Treaty Doc. No. 100?20 (1988).

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(e) "Geneva Conventions" means:

(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114);

(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (6 UST 3217);

(iii) the Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949 (6 UST 3516).

(f) "Treated humanely," "violence to life and person," "murder of all kinds," "mutilation," "cruel treatment," "torture," "outrages upon personal dignity," and "humiliating and degrading treatment" refer to, and have the same meaning as, those same terms in Common Article 3.

(g) The terms "detention facilities" and "detention facility" in section 4(a) of this order do not refer to facilities used only to hold people on a short-term, transitory basis.

Sec. 3. Standards and Practices for Interrogation of Individuals in the Custody or Control of the United States in Armed Conflicts.

(a) Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340-2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.

(b) Interrogation Techniques and Interrogation-Related Treatment. Effective immediately, an individual in the custody or under the effective control of an officer, employee, or other agent of the United States Government, or detained within a facility owned, operated, or controlled by a department or agency of the United States, in any armed conflict, shall not be subjected to any interrogation technique or approach, or any treatment related to interrogation, that is not authorized by and listed in Army Field Manual 2-22.3 (Manual). Interrogation techniques, approaches, and treatments described in the Manual shall be implemented strictly in accord with the principles, processes, conditions, and limitations the Manual prescribes. Where processes required by the Manual, such as a requirement

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of approval by specified Department of Defense officials, are inapposite to a department or an agency other than the Department of Defense, such a department or agency shall use processes that are substantially equivalent to the processes the Manual prescribes for the Department of Defense. Nothing in this section shall preclude the Federal Bureau of Investigation, or other Federal law enforcement agencies, from continuing to use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises.

(c) Interpretations of Common Article 3 and the Army Field Manual. From this day forward, unless the Attorney General with appropriate consultation provides further guidance, officers, employees, and other agents of the United States Government may, in conducting interrogations, act in reliance upon Army Field Manual 2-22.3, but may not, in conducting interrogations, rely upon any interpretation of the law governing interrogation -- including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2?22.3, and its predecessor document, Army Field Manual 34-52 -- issued by the Department of Justice between September 11, 2001, and January 20, 2009.

Sec. 4. Prohibition of Certain Detention Facilities, and Red Cross Access to Detained Individuals.

(a) CIA Detention. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future.

(b) International Committee of the Red Cross Access to Detained Individuals. All departments and agencies of the Federal Government shall provide the International Committee of the Red Cross with notification of, and timely access to, any individual detained in any armed conflict in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States Government, consistent with Department of Defense regulations and policies.

Sec. 5. Special Interagency Task Force on Interrogation and Transfer Policies.

(a) Establishment of Special Interagency Task Force. There shall be established a Special Task Force on Interrogation and Transfer Policies (Special Task Force) to review interrogation and transfer policies.

(b) Membership. The Special Task Force shall consist of the following members, or their designees:

(i) the Attorney General, who shall serve as Chair;

(ii) the Director of National Intelligence, who shall serve as Co-Vice-Chair;

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(iii) the Secretary of Defense, who shall serve as Co-Vice-Chair;

(iv) the Secretary of State;

(v) the Secretary of Homeland Security;

(vi) the Director of the Central Intelligence Agency;

(vii) the Chairman of the Joint Chiefs of Staff; and

(viii) other officers or full-time or permanent part-time employees of the United States, as determined by the Chair, with the concurrence of the head of the department or agency concerned.

(c) Staff. The Chair may designate officers and employees within the Department of Justice to serve as staff to support the Special Task Force. At the request of the Chair, officers and employees from other departments or agencies may serve on the Special Task Force with the concurrence of the head of the department or agency that employ such individuals. Such staff must be officers or full-time or permanent part-time employees of the United States. The Chair shall designate an officer or employee of the Department of Justice to serve as the Executive Secretary of the Special Task Force.

(d) Operation. The Chair shall convene meetings of the Special Task Force, determine its agenda, and direct its work. The Chair may establish and direct subgroups of the Special Task Force, consisting exclusively of members of the Special Task Force, to deal with particular subjects.

(e) Mission. The mission of the Special Task Force shall be:
(i) to study and evaluate whether the interrogation practices and techniques in Army Field Manual 2-22.3, when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies; and

(ii) to study and evaluate the practices of transferring individuals to other nations in order to ensure that such practices comply with the domestic laws, international obligations, and policies of the United States and do not result in the transfer of individuals to other nations to face torture or otherwise for the purpose, or with the effect, of undermining or circumventing the commitments or obligations of the United States to ensure the humane treatment of individuals in its custody or control.

(f) Administration. The Special Task Force shall be established for administrative purposes within the Department of Justice and the Department of Justice shall, to
the extent permitted by law and subject to the availability of appropriations, provide administrative support and funding for the Special Task Force.

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(g) Recommendations. The Special Task Force shall provide a report to the President, through the Assistant to the President for National Security Affairs and the Counsel to the President, on the matters set forth in subsection (d) within 180 days of the date of this order, unless the Chair determines that an extension is necessary.

(h) Termination. The Chair shall terminate the Special Task Force upon the completion of its duties.

Sec. 6. Construction with Other Laws. Nothing in this order shall be construed to affect the obligations of officers, employees, and other agents of the United States Government to comply with all pertinent laws and treaties of the United States governing detention and interrogation, including but not limited to: the Fifth and Eighth Amendments to the United States Constitution; the Federal torture statute, 18 U.S.C. 2340-2340A; the War Crimes Act, 18 U.S.C. 2441; the Federal assault statute, 18 U.S.C. 113; the Federal maiming statute, 18 U.S.C. 114; the Federal "stalking" statute, 18 U.S.C. 2261A; articles 93, 124, 128, and 134 of the Uniform Code of Military Justice, 10 U.S.C. 893, 924, 928, and 934; section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd; section 6(c) of the Military Commissions Act of 2006, Public Law 109?366; the Geneva Conventions; and the Convention Against Torture. Nothing in this order shall be construed to diminish any rights that any individual may have under these or other laws and treaties. This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity against the United States, its departments, agencies, or other entities, its officers or employees, or any other person.



BARACK OBAMA




THE WHITE HOUSE,
January 22, 2009.



# # #


Posted 7:55 PM by JB [link]

Second Obama Executive Order Setting Up Interagency Task Force on Detention and Trial Practices

JB

This second Obama executive order creates a special interagency task force on detention and trial of persons held in connection with armed conflicts and counterterrorism operations (i.e. "war on terror" detentions).


THE WHITE HOUSE

Office of the Press Secretary



For Immediate Release January 22, 2009


EXECUTIVE ORDER

- - - - - - -

REVIEW OF DETENTION POLICY OPTIONS


By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to develop policies for the detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations that are consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

Section 1. Special Interagency Task Force on Detainee Disposition.

(a) Establishment of Special Interagency Task Force. There shall be established a Special Task Force on Detainee Disposition (Special Task Force) to identify lawful options for the disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations.

(b) Membership. The Special Task Force shall consist of the following members, or their designees:

(i) the Attorney General, who shall serve as Co-Chair;

(ii) the Secretary of Defense, who shall serve as Co-Chair;

(iii) the Secretary of State;

(iv) the Secretary of Homeland Security;

(v) the Director of National Intelligence;

(vi) the Director of the Central Intelligence Agency;

(vii) the Chairman of the Joint Chiefs of Staff; and

(viii) other officers or full-time or permanent part-time employees of the United States, as determined by either of the Co﷓Chairs, with the concurrence of the head of the department or agency concerned.

(c) Staff. Either Co-Chair may designate officers and employees within their respective departments to serve as staff to support the Special Task Force. At the request of the Co-Chairs, officers and employees from other departments or agencies may serve on the Special Task Force with the concurrence of the heads of the departments or agencies that employ such individuals. Such staff

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must be officers or full-time or permanent part-time employees of the United States. The Co-Chairs shall jointly select an officer or employee of the Department of Justice or Department of Defense to serve as the Executive Secretary of the Special Task Force.

(d) Operation. The Co-Chairs shall convene meetings of the Special Task Force, determine its agenda, and direct its work. The Co-Chairs may establish and direct subgroups of the Special Task Force, consisting exclusively of members of the Special Task Force, to deal with particular subjects.

(e) Mission. The mission of the Special Task Force shall be to conduct a comprehensive review of the lawful options available to the Federal Government with respect to the apprehension, detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations, and to identify such options as are consistent with the national security and foreign policy interests of the United States and the interests of justice.

(f) Administration. The Special Task Force shall be established for administrative purposes within the Department of Justice, and the Department of Justice shall, to the extent permitted by law and subject to the availability of appropriations, provide administrative support and funding for the Special Task Force.

(g) Report. The Special Task Force shall provide a report to the President, through the Assistant to the President for National Security Affairs and the Counsel to the President, on the matters set forth in subsection (d) within 180 days of the date of this order unless the Co-Chairs determine that an extension is necessary, and shall provide periodic preliminary reports during those 180 days.

(h) Termination. The Co-Chairs shall terminate the Special Task Force upon the completion of its duties.

Sec. 2. General Provisions.

(a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(b) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.


BARACK OBAMA



THE WHITE HOUSE,
January 22, 2009.


# # #



Posted 7:54 PM by JB [link]

Third Obama Executive Order Closes Guantanamo Bay, Stops Military Commissions

JB

This third Obama Executive Order requires that the detention facility at Guantanamo Bay be closed within a year and requires determinations as to the best way to deal with its remaining detainees. It reiterates that Common Article 3 provides a baseline for treatment of all detainees and orders the Secretary of Defense to cease all actions and prosecutions in the existing military tribunals created by the Military Commissions Act of 2006. It is another important repudiation, both real and symbolic, of the basic practices of the past eight years.

THE WHITE HOUSE

Office of the Press Secretary



For Immediate Release January 22, 2009


EXECUTIVE ORDER

- - - - - - -

REVIEW AND DISPOSITION OF INDIVIDUALS DETAINED AT THE GUANTÁNAMO BAY NAVAL BASE AND CLOSURE OF DETENTION FACILITIES


By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

Section 1. Definitions. As used in this order:

(a) "Common Article 3" means Article 3 of each of the Geneva Conventions.

(b) "Geneva Conventions" means:

(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114);

(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (6 UST 3217);

(iii) the Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and

(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949 (6 UST 3516).

(c) "Individuals currently detained at Guantánamo" and "individuals covered by this order" mean individuals currently detained by the Department of Defense in facilities at the Guantánamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.

Sec. 2. Findings.

(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantánamo. The Federal Government has moved more than 500 such detainees from Guantánamo, either by returning them to their home country

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or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantánamo are eligible for such transfer or release.

(b) Some individuals currently detained at Guantánamo have been there for more than 6 years, and most have been detained for at least 4 years. In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantánamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facilities without promptly determining the appropriate disposition of the individuals detained would not adequately serve those interests. To the extent practicable, the prompt and appropriate disposition of the individuals detained at Guantánamo should precede the closure of the detention facilities at Guantánamo.

(c) The individuals currently detained at Guantánamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.

(d) It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantánamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantánamo require a comprehensive interagency review.

(e) New diplomatic efforts may result in an appropriate disposition of a substantial number of individuals currently detained at Guantánamo.

(f) Some individuals currently detained at Guantánamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted.

(g) It is in the interests of the United States that the executive branch conduct a prompt and thorough review of the circumstances of the individuals currently detained at Guantánamo who have been charged with offenses before military commissions pursuant to the Military Commissions Act of 2006, Public Law 109-366, as well as of the military commission process more generally.

Sec. 3. Closure of Detention Facilities at Guantánamo. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities,

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they shall be returned to their home country, released, transferred to a third country, or transferred to another
United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States.

Sec. 4. Immediate Review of All Guantánamo Detentions.

(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantánamo (Review) shall commence immediately.
(b) Review Participants. The Review shall be conducted with the full cooperation and participation of the following officials:

(1) the Attorney General, who shall coordinate the Review;

(2) the Secretary of Defense;

(3) the Secretary of State;

(4) the Secretary of Homeland Security;

(5) the Director of National Intelligence;

(6) the Chairman of the Joint Chiefs of Staff; and

(7) other officers or full-time or permanent part﷓time employees of the United States, including employees with intelligence, counterterrorism, military, and legal expertise, as determined by the Attorney General, with the concurrence of the head of the department or agency concerned.

(c) Operation of Review. The duties of the Review participants shall include the following:

(1) Consolidation of Detainee Information. The Attorney General shall, to the extent reasonably practicable, and in coordination with the other Review participants, assemble all information in the possession of the Federal Government that pertains to any individual currently detained at Guantánamo
and that is relevant to determining the proper disposition of any such individual. All executive branch departments and agencies shall promptly comply with any request of the Attorney General to provide information in their possession or control pertaining to any such individual. The Attorney General may seek further information relevant to the Review from any source.

(2) Determination of Transfer. The Review shall determine, on a rolling basis and as promptly as possible with respect to the individuals currently detained at Guantánamo, whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests

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of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release. The Secretary of Defense, the Secretary of State, and, as appropriate, other Review participants shall work to effect promptly the release or transfer of all individuals for whom release or transfer is possible.

(3) Determination of Prosecution. In accordance with United States law, the cases of individuals detained at Guantánamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations.

(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantánamo whose disposition is not achieved under paragraphs (2) or (3) of this subsection, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions.

(5) Consideration of Issues Relating to Transfer to the United States. The Review shall identify and consider legal, logistical, and security issues relating to the potential transfer of individuals currently detained at Guantánamo to facilities within the United States, and the Review participants shall work with the Congress on any legislation that may be appropriate.

Sec. 5. Diplomatic Efforts. The Secretary of State shall expeditiously pursue and direct such negotiations and diplomatic efforts with foreign governments as are necessary and appropriate to implement this order.

Sec. 6. Humane Standards of Confinement. No individual currently detained at Guantánamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the Geneva Conventions. The Secretary of Defense shall immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with this directive. Such review shall be completed within 30 days and any necessary corrections shall be implemented immediately thereafter.

Sec. 7. Military Commissions. The Secretary of Defense shall immediately take steps sufficient to ensure that during the pendency of the Review described in section 4 of this order, no charges are sworn, or referred to a military

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commission under the Military Commissions Act of 2006 and the Rules for Military Commissions, and that all proceedings of such military commissions to which charges have been referred but in which no judgment has been rendered, and all proceedings pending in the United States Court of Military Commission Review, are halted.

Sec. 8. General Provisions.

(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.

(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.




BARACK OBAMA





THE WHITE HOUSE,
January 22, 2009.


# # #


Posted 7:53 PM by JB [link]

Fourth Obama Executive Order Reviews Treatment of Al-Marri

JB

This fourth Obama executive order accompanies the third, which closes the Guantanamo Bay detention facility and requires review of the persons held there. It requires review of the detention and treatment of Ali Saleh Kahlah al-Marri, the only person designated as an enemy combatant still currently held in a military prison within the United States.


THE WHITE HOUSE

Office of the Press Secretary



For Immediate Release January 22, 2009



January 22, 2009




MEMORANDUM FOR THE ATTORNEY GENERAL
THE SECRETARY OF DEFENSE
THE SECRETARY OF STATE
THE SECRETARY OF HOMELAND SECURITY
THE DIRECTOR OF NATIONAL INTELLIGENCE

SUBJECT: Review of the Detention of Ali Saleh Kahlah
al-Marri


I have today signed an Executive Order entitled Review and Disposition of Individuals Detained at the Guantánamo Bay Naval Base and Closure of Detention Facilities ("Review and Disposition Order"), which mandates a review, coordinated by the Attorney General, of the status of all individuals that the Department of Defense is currently detaining at the Guantánamo Bay Naval Base, in order to effect their prompt and appropriate disposition.

For more than 5 years, the Department of Defense has detained Ali Saleh Kahlah al-Marri as an enemy combatant in facilities within the United States. Al-Marri is the only individual the Department of Defense is currently holding as an enemy combatant within the United States.

Because he is not held at Guantánamo Bay, al-Marri is not covered by the review mandated in the Review and Disposition Order. Yet it is equally in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal basis for al-Marri's continued detention, and identify and thoroughly evaluate alternative dispositions.

Accordingly, I direct that a review of al-Marri's status ("Review") commence immediately. The Review shall be conducted with the full cooperation and participation of:

(1) the Attorney General, who shall coordinate the Review;

(2) the Secretary of Defense;

(3) the Secretary of State;

(4) the Secretary of Homeland Security;

(5) the Director of National Intelligence;

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(6) the Chairman of the Joint Chiefs of Staff; and

(7) other officers or full-time or permanent part-time employees of the United States, including employees with intelligence, counterterrorism, military, and legal expertise, as determined by the Attorney General with the concurrence of the head of the department or agency concerned.

The Review shall expeditiously determine the disposition options with respect to al-Marri and shall pursue such disposition as is appropriate, based upon the principles set forth in the Review and Disposition Order, including, in particular, sections 4(c) and 5 thereof.

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities or entities, its officers or employees, or any other person.



BARACK OBAMA



# # #



Posted 7:52 PM by JB [link]

Why Did Public School’s Broadcast Obama’s Speech?

Ian Ayres

Yesterday on the Freakonomics blog, I asked readers "Did Your Kids’ School Broadcast Obama’s Speech?"

It seems that many, many public schools across the nation broadcast the speech. So here are some legal questions for Balkinization readers:

1. Did some of the public schools decide to broadcast Obama's speech in part because of his race?
2. If yes, would this race-contingent government decision, as a formal matter, trigger strict scrutiny under the Equal Protection clause?
and
3. If triggered, would the broadcasting decision survive both prongs of the strict scrutiny analysis?

I think the answer is "yes" to all three questions.



Question 1: As a factual matter, it is probable that some schools which had not broadcast past inauguration speeches, choose to broadcast this speech because Obama is the first African-American president. Some probably choose to broadcast it for other reasons: the national crisis, his extraordinary gifts as a speaker, etc. But some administrators candidly spoke that they wanted their students to see this historic event of the first black person taking the oath of office.

Question 2: I'm pretty sure that as a formal matter, any race-continingent government decision, as a formal matter, triggers strict scrutiny. One might argue that a government classification (first-time black presidents) is so specialized somehow avoids Equal Protection analysis. But I'm on record suggesting that another one-off government decision tailored to a specific individual that happened at the other end of the mall should have triggered strict scrutiny. On Easter Sunday, 1939 Marian Anderson was invited by the National Park Service to sing at the Lincoln Memorial in part because of her race. As I wrote in the LA Times:


On Easter morning, 59 years ago, Marian Anderson walked to a microphone at the Lincoln Memorial and began to sing "My Country, 'Tis of Thee." Anderson was contralto with a voice that conductor Arturo Toscanini said "came once in hundred years." But a few months earlier, the Daughters of the American revolution had refused to rent the only large concert hall in Washington to Anderson because she was black. First Lady Eleanor Roosevelt was so outraged at the DAR's action that she not only resigned from the organization, but also prompted the National Park Service to invite Anderson to sing.
More than 75,000 came to hear Anderson that day. Millions listened on radio. Beyond the concert's artistic and emotional impact, the event came to be seen as the first strategic victory of the modern civil-rights movement. Decades later, when Martin Luther King Jr. chose to speak at the Lincoln Memorial, the memory of the crowds at Anderson's concert must have served as a guide. Giving Anderson access to the memorial seemed an appropriate way to make up for the DAR's hateful discrimination.
But, strikingly, a majority of federal appellate judges have interpreted the constitution in a way that would make Anderson's invitation unlawful. Put simply, there is now a dominant view that the government can use racial preferences to remedy only the government's own discrimination. Thus, for example, the Third Circuit Court recently held that, "under the Constitution public employer's remedial affirmative-action initiatives are valid only if crafted to remedy its own past or present discrimination."
Even the Clinton administration, which seeks to "mend, not end" affirmative action, has accepted the premise that racial preferences can only be used to remedy government discrimination. A recent Justice Department guideline states:"Affirmative action in federal procurement is not a means to make up for opportunities minority-owned firms may have lost in the private sector."
But the whole purpose of Anderson's invitation was to make up for the opportunities she lost in the private sector. The federal government at that time did not normally open the Lincoln Memorial for public concerts. The invitation to Anderson was a race-conscious preference, a form of affirmative action, to remedy the DAR's private discrimination.



Question 3. I think the Anderson invitation was constitutional as a narrowly tailored response to private discrimination. The choice of public schools to broadcast Obama's speech (when they do not broadcast other inaugural speeches) helps to illuminate the contours of the strict scrutiny test. What exactly is the "compelling government interest" (and why is broadcasting the speech in public schools "narrowly tailored" to further that interest)? One possibility is that the choice to broadcast the speech is justified as part of a remedy to our nation's long history of discrimination. Letting public school students see the historic event is a way of documenting our remedial progress. This is a case where the revolution will be televized.

Posted 2:54 PM by Ian Ayres [link]

Why Barack Obama Still Isn't President

JB

I know what you are saying: Didn't Barack Obama and John Roberts repeat the oath of office before the cameras on Wednesday?

They did. But it makes absolutely no difference. Barack Obama is still not President and may not execute the powers of that office.

To begin with, it is completely clear that Obama did not recite the oath prescribed in the Constitution at his inauguration on Tuesday. Article II, section 7 provides:

7. Before he enter on the execution of his office, he shall take the following oath or affirmation:

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

At Roberts' suggestion, Obama placed the word "faithfully" after the word "States." This should make no difference, you may say. But no, the text of the oath is prescribed in the Constitution and it may not be varied in any way in order to be legally effective. Anyone who says differently does not understand what it means to have a written constitution.

Do you mean to suggest, for example, that Obama could add the words "hey nonny nonny and a hot cha cha" in the middle of the oath and it would be equally effective? Can he add the words "only if I feel like it" at the end of the oath? Surely you jest! And if your position is that he can make any changes he wants as long as they do not materially alter the oath, who is to decide whether the changes are material or not? That is why we have a written constitution, a Constitution that makes clear that he shall say just these words, and no others.

Obama's attempt at a re-do makes no difference. The well-known doctrine of the Unitary Executive suggests that the President-elect gets one shot at taking the oath correctly. If he flubs it, that's it! He can't execute the powers of his office. After all, Unitary means "one." Clearly if the President could take the oath repeatedly, he wouldn't be very Unitary, now would he?

Suppose, however, that one rejects this utterly compelling argument based on the sacred and indisputable doctrine of the Unitary Executive. Obama's do-over still fails. That is because Obama callously deleted words from the oath and added words that are not in the Constitutional text. Surely if he may not move the word "faithfully" around in the text he may also not add or delete words either.

In this case, Obama added the words "Barack Hussein Obama" after the word "I" and "So help me God" at the end of the oath. Furthermore, he deleted the words "(or affirm)."

The mind boggles at this display of utter lawlessness. How could Obama and Chief Justice Roberts engage in such blatant editing of the sacred constitutional text? Can't they just read the words of the Constitution without editorializing? It is precisely this hubris on the part of judges and politicians that leads to the dreaded disease of "living constitutionalism," in which government officials add words to the constitutional text that aren't there and delete words that they find inconvenient. It is simply outrageous that both Roberts and Obama feel that they must flaunt their living constitutionalism before our very eyes in their faux Presidential oath of office!

But you may object, no president since George Washington himself has read the constitutional text verbatim since the founding of the Republic. They have all inserted their names into the text in a raw display of egotism, and then added the words "So help me God." In addition, all the Presidents have deleted the words "or affirm" with two exceptions, when a President-elect deleted the words "swear" and "or." If the addition and deletion of words in the oath makes the oath ineffective, you may argue, no President has ever legitimately executed his office.

To which I say, so what? Are we a government of laws or a government of men? Do we have a written constitution that is the supreme law of the land or do we simply have a set of suggestions that can be cavalierly discarded whenever they would offend the sensibilities of a President-elect? The Constitution's text is clear. It is up to us to follow it with blind and mindless obedience. If a President-elect cannot read a simple text faithfully without editorializing, he doesn't deserve to be the President. And if no President has been able to resist thinking he knows better, then none of them have lawfully acted as our nation's Chief Executive.

But, you may object, didn't Barack Obama became President anyway on noon of Inauguration day, because of the 20th amendment? Of course not. The text of the 20th amendment is perfectly clear on this point:

1. The terms of the President and the Vice-President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

It is obvious to any schoolchild that the phrase "the terms of their successors" refers to the terms of Senators and Representatives, and not to the terms of the President and Vice-President. That is because an all important comma separates the two clauses. Moreover, the Twentieth Amendment did not explicitly repeal the Oath Clause of Article III, and it is clear from this clause that the President cannot begin to execute the powers of his office until he takes the oath.

I am sure that many people wish that the President could edit the oath of office however he likes, for example, adding his own name and the words "so help me God." But these people do not understand what it means to have a government founded on a written constitution. Perhaps the failure of Barack Obama to become President, and the crisis that ensues, will serve as a lesson to them to hew more closely to the genius of our founding fathers.



* * * * *

UPDATE: I had thought it would be obvious to everyone that the above blog post is a parody, whose arguments are not to be taken seriously. Surely the silly argument about the Unitary Executive which makes a pun on the word "unitary" should have been a tip off. Indeed, as the blog post proceeds, the rhetoric gets ever more ridiculous. But since some people seem not to have gotten the joke, and have actually been engaging with the arguments, believing that I meant them seriously, let me state for the record that the above blog post was a parody, and let me also state my views (seriously):

First, the above parody *is* correct to the extent that the constitutional text for the Oath has never been literally recited as it appears in the Constitution, from George Washington forward. Each president has inserted his own name into the text and chosen to say either "swear" or "affirm," leaving out the other alternative. No one doubts that this is permissible. Each president, to my knowledge, has also added the words "So help me God." Whether this violates the Establishment Clause (I doubt it) it should not violate the requirement of taking the oath. The goal of the Oath clause is admonitory and if the President wants to add "And boy, I really take this oath seriously" or the like after the oath, I don't see why this extra editorializing is impermissible. Since there is a long (and to my knowledge) unbroken precedent of implementing the requirement of the oath in this way, we should not insist on a precise verbatim recitation where there has been no material alteration in the substance of the oath. Hence when President Obama took the oath the first time, it was sufficient for purposes of the Oath clause. (Mis)led by Chief Justice Roberts, he simply moved one word to a different location without changing the meaning of the oath. President Obama then took the oath a second time out of an "abundance of caution." At this point, no one should doubt that the constitutional requirement has been complied with. (For those of you who are wondering, the doctrine of the "Unitary" executive does not mean that you only get one shot at the oath. That's a joke.)

Second, the purpose of the oath is admonitory. It is a public undertaking to uphold the Constitution. It is not a condition precedent to becoming president. The 20th Amendment states when the terms of the President, Vice-President, Congressmen and Senators begin. The "argument" offered in the parody to the contrary, is just that, a parody of an argument. The semi-colon between the two clause makes clear that "their successors" refers to all four positions, including that of the President.

Third, one might argue that the President may not engage in executive functions until he (properly) takes the oath; but any such requirement in the Oath clause has probably been modified by the twentieth amendment which states when the President's term (and hence his executive power) begins. Suppose you try to harmonize the two by arguing that Obama is President as of noon but lacks executive authority until he (properly) takes the oath, and suppose further that in the interim he signs an executive order or makes a nomination. Even if we granted that this is a technical violation of the Oath clause, there is probably no judicial remedy. Moreover, since the President can cure the problem by taking the oath and simply reissuing the executive order or nomination, there is little reason to think that the error is a serious one.

In case you are wondering, this addendum is not a parody. Nor is the last sentence saying it is not a parody a parody. And so on, and so on, and so on. . . .


Posted 10:19 AM by JB [link] (209) comments