Acquitted "Terrorists" and the Court of Public Opinion

Guest Blogger

Liza Goitein

What will happen to Guantánamo detainees who are tried and acquitted?

This question has now arisen in two consecutive Senate committee hearings on the fate of the detainees. Three weeks ago, when Senator Martinez (R-Fla) posed this question to Defense Department General Counsel Jeh Johnson, Johnson responded that the U.S. could invoke the 2001 Authorization for Use of Military Force to continue to hold detainees after they were acquitted. I wrote about this Alice-in-Wonderland concept of justice here.

A somewhat different solution was posited in Tuesday’s hearing of the Judiciary Committee’s Terrorism and Homeland Security Subcommittee. When the minority witness, Michael Edney, raised the specter of acquitted detainees being released on U.S. soil, other witnesses (who were not from the administration) responded that the Attorney General could invoke immigration law to detain these individuals, indefinitely if need be, pending deportation. The Supreme Court hasn’t signed off on that approach, but the witnesses’ testimony gave Subcommittee Chairman Senator Cardin (D-MD) enough assurance to declare that “terrorists are not going to be released into the United States.” His statement echoed the sentiments of most of his fellow members of Congress, who evidently believe this is the view of their constituents.

Unfortunately, no one addressed this question: what makes an acquitted detainee a “terrorist”?

We don’t generally refer to people who have been acquitted of criminal charges as “criminals.” To be sure, people who commit crimes sometimes escape conviction. But our default presumption is that an acquitted person is exactly what the jurors pronounced him or her to be: “not guilty.” That presumption should be even stronger here. Most Americans are exceedingly unlikely to give the benefit of the doubt to people accused of ties to Al Qaeda. If twelve people unanimously conclude that there is insufficient evidence to convict an accused Al Qaeda supporter of even the most tangential and vaguely worded terrorism offense (such as “material support” for terrorism), what basis is there to consider the person a terrorist?

No one outside the government and a small number of lawyers has seen the actual evidence against the detainees. There is, then, only one possible reason why so many people assume that even detainees who win acquittals are likely to be terrorists nonetheless: the government says so.

Never mind that a shocking number of the detainees were sold to allied forces by rival tribesmen or peasants desperate to escape their own grinding poverty. Never mind that some detainees’ “confessions” were obtained by torture at the hands of foreign governments and even the U.S. Never mind that courts have overturned the government’s designation of “enemy combatant” in 26 out of the 31 habeas cases heard thus far. And never mind that “intelligence”—that shadowy information on which the government relies in so many of these cases—is often cobbled together from sources of unknown reliability and has proven wrong on many a historical occasion. None of these facts can override the assumption that if the government says that someone is a terrorist and detains him for several years on that basis, he must be a terrorist—regardless of what the courts ultimately hold.

This assumption is disturbing on at least two levels. The main problem with the previous administration’s detention policy was that the executive branch’s label of “enemy combatant” served as accusation, trial, and sentence all in one. In the court of public opinion, that’s apparently still the case. It’s certainly a good sign that the Obama administration, members of Congress, the media, and the public are calling for congressional and judicial oversight for executive detention decisions. But if these same people are convinced that the executive branch’s assessment is conclusive factually (if not legally), how strong can their commitment to reform really be? In particular, what is their incentive to insist on legal procedures that rigorously test the government’s assertions? It’s no surprise, under these circumstances, that the revised military commission system passed by the Senate and supported by the administration still lacks core protections for defendants.

The second problem follows from the first. When the government has already convicted someone in the court of public opinion, it affects that person’s ability to receive a fair trial in an actual court, regardless of the sufficiency of the court’s legal procedures. Accordingly, in ordinary criminal proceedings, ethics rules prohibit prosecutors from making public statements (beyond the mere fact of the indictment) that would prejudice the potential jury pool against the accused. In this case, the government has not only repeatedly referred to the Guantánamo detainees as “terrorists,” it has reinforced this assessment by imprisoning them for years on end. Under those circumstances, it becomes much harder to find people who are willing to conclude what must surely be true: that some of the detainees are innocent of the charges levied against them.

Mr. Edney thus need not lose sleep over the specter of acquitted detainees roaming the streets of the U.S. Instead, he should give some thought to whether detainees who are innocent will be able to obtain the acquittals to which they are entitled, given that our leaders have so effectively branded them as “terrorists.” Now that’s a problem that deserves a hearing.


Posted 4:20 PM by Guest Blogger [link]

Military Commissions Moving Ahead

Deborah Pearlstein

Cross-posted at Opinio Juris

While most of Congress was focusing on health care, the Senate quietly succeeded late last week in passing its version of the defense authorization bill (S. 1390) containing a package of amendments to the Military Commissions Act of 2006. It doesn’t look like the version of the bill as passed is available yet, but figure it looks a lot like the version introduced by Senator Levin reported out of the Senate Armed Services Committee earlier this month (more on its contents below). Meantime, as the Senate and House are holding hearings this week to figure out what to make of it all before the bill heads to conference committee, the most interesting tidbit so far has come from Assistant Attorney General David Kris, who testified before the Senate yesterday that after having reviewed more than half of the cases of detainees currently held at Guantanamo Bay, the Administration had yet to identify any detainee who fell into the “fifth category” identified by President Obama: i.e. someone who could not be prosecuted in any forum but who should continue to be held under some ongoing detention authority. Could well be the Gitmo task force decided to review the easier cases first, but an interesting datum for those keeping track nonetheless.

Back to the substance of yesterday’s Senate Judiciary Committee hearing: military commissions. (Full disclosure, I was a witness at the hearing as well.) The Senate and the Administration appear to be inching closer to agreeing on procedural protections to govern at the commissions – rules that do some good things, including barring the use of evidence obtained by torture or cruel treatment. The Administration is also pushing to bar the inclusion of any statement obtained involuntarily (essentially the same constitutional rule that applies in Article III court), and to broaden the scope of Article III review on appeal of any commission trial.

The major points of contention at yesterday’s hearing focused on the proposed protocol put forward by the Administration’s Detention Policy Task Force for determining whether criminal prosecution of Guantanamo detainees should proceed in an Article III court or in military commission. The Administration’s protocol says there will be a “presumption” that cases will be brought in Article III courts “where feasible.” It also identifies a set of factors that will govern its choice between two available forums, including the nature and gravity of the offenses, matters of efficiency, and problems of evidence.

The Administration deserves some credit I suppose for having the “presumption” going the right direction. A non-binding resolution passed by the Senate last week would have a presumption in favor of trial by military commission for the Gitmo detainees (you can thank Senators Lieberman and Graham). Nonetheless, I think the protocol’s current multi-factor approach can’t be quite right – either as a matter of policy or of law.

The policy advantage of Article III courts seems to me evident: all of the tactical advantage of securing the long-term, legitimate detention of an actual terrorist, none of the strategic burden of doing it in a legally suspect (or at least reputationally tainted) forum. In all events, as Republicans and Democrats alike seemed to recognize yesterday, there is a huge legitimacy problem with seeming to forum shop on the basis of evidentiary burden. We can’t prove it in an Article III court, so we’ll try to get a conviction under easier rules just isn’t going to – and shouldn’t – fly. If that’s not what the Administration has in mind, the protocol needs some clarification.

Explaining why this forum selection approach is a legal problem is a somewhat more complicated undertaking. Here’s my current take on the law. The Administration’s “presumption” in favor of Article III trials is compelled by the Constitution. In cases like Toth v. Quarles, the Court made clear that the use of military trials for non-servicemembers is strictly limited: “There are dangers lurking in military trials which were sought to be avoided by the Bill of Rights and Article III of our Constitution. …. Determining the scope of the constitutional power of Congress to authorize trial by [military court over non-servicemembers] presents another instance calling for limitation to ‘the least possible power adequate to the end proposed.’” Consistent with that “least possible power” understanding, to the extent the Court has recognized that Congress’ power to punish “Offenses against the Law of Nations” extends to the creation of military commissions for non-servicemembers (and Quirin is hardly what one would call pristine precedent), the Court has approved that authority only insofar as Congress’ military commissions legislation of the time was read to be consistent with the common law and international law of war that applied. That’s why, for example, Justice Stevens’ opinion in Hamdan was at pains to emphasize that the absence of “conspiracy” as a charging offense under the law of war was a jurisdictional problem for the last commissions.

As Justice Stevens also pointed out, the justification at common law for military commissions was one of necessity. Military commissions were permissible as jurisdictional gap-fillers, where no other court was available (in cases of martial law, occupation, or in the midst of battlefield exigency). Seven years and thousands of miles removed from any actual battlefield exigency, there can be no argument that the military commissions at Guantanamo are serving any of these purposes. To the extent they may be justified in this context at all, it is as the only forum in which it is possible to charge violations of the law of war – either because there is no relevant charging offense under federal criminal law, or because federal criminal law did not at the time extend to cover extraterritorial offenses. I suppose other justifications might be possible, and I'd welcome hearing them. But in the meantime, I doubt the we-can’t-win-under-the-evidentiary-standards-in-Article-III-court rationale is one of them.
Posted 5:00 PM by Deborah Pearlstein [link]

Have Wives' Rights to Abortion Undermined Marriage?

JB

In the abstract to William Van Alstyne's latest piece on marriage and abortion rights, he tantalizes the reader saying that he will discuss the "irony" of recent attempts to ground the abortion right in equality for women. (Here I should note that Van Alstyne was inspired by reading my 2007 article Abortion and Original Meaning, which he found "more paradoxical than persuasive.")

What is the irony? Van Alstyne points out that under today's Supreme Court doctrines, husbands can't stop their wives from having abortions when they are the biological father. In this respect, they are no different from unmarried fathers. Marriage today gives married men no special or additional rights to stop their wives from having abortions. Alstyne sees this lack of additional powers to husbands as showing a lack of respect for the special importance of marriage. Or as Van Alstyne puts it, "marriage has been so far marginalized by the Supreme Court to the point that it now holds the view that one who has concieved a child in marriage with his wife has no more standing to claim an interest in the well being of the child thus conceived than the most casual male acquaintance with whom she may have had an equally casual one night stand affair (namely, virtually none at all.)."

So why does this show the irony in grounding abortion rights in equality, you might ask? Well, Van Alstyne argues that in various cases the Supreme Court has held that men and women have equal rights in marriage. He cites as examples the 1970s sex equality cases like Frontiero v. Richardson and Califano v. Goldfarb-- cases in which the Supreme Court held that disparities in spousal benefits between husbands and wives violated constitutional guarantees of equality (in this case, the equal protection component of the Due Process Clause of the Fifth Amendment). A related example is Orr v. Orr, which held that alimony only for wives and not for husbands violates equal protection. Van Alstyne seems to be saying: how can abortion be an equality right if sex equality requires equality within marriage?

Similarly, Van Alstyne argues, suppose the state gives husbands and wives the right to block an abortion, (which, in effect, gives the husband a right to block an abortion, since the wife already has the right not to have an abortion under Roe v. Wade.). Van Alstyne argues that all this statute does is treat husbands and wives equally in marriage. So how can the woman claim that this statute would violate equal protection of the laws? In Van Alstyne's view, she is in exactly the same position as her husband. Is the equality argument that she is in a worse position than an unmarried woman? But she is married, Van Alstyne explains, so it's a different situation.

Indeed, Van Alstyne argues, if there is an equal protection claim, it belongs to the husband, for "that claim would more compellingly belong to the bereft father whose 'rights' in the well-being of his child conceived in marriage are zero as against those of the mother who may either carry it to term or 'terminate' the gestating child for whatever reason is satisfactory to herself irrespective of her husband's feelings and irrespective of any representations or promises she made when they married and conceived the child by mutual choice."

So the "irony" is that the equality argument for abortion gives married women more rights with respect to abortions than married men have. And,Van Alstyne asks, how can an equality argument give women more rights than men in marriage?

The answer to this question is that the equal protection clause does not merely protect formal equality between the sexes. It protects substantive equality as well. That is, the equal protection clause has an antisubordination component. It also reaches laws that have the purpose or effect of creating or maintaining socially subordinate groups, whether they are racial minorities or women. The idea that the fourteenth amendment is designed to dismantle caste and social subordination goes all the way back to the framing of the Fourteenth Amendment; it also appears in Brown v. Board of Education.

The antisubordination theory has the disadvantage of being messy and difficult to measure and apply. But it has the advantage of being far more connected to social realities. The basic idea is this: Although it normally takes a man and a woman to make a baby, the woman carries the baby, and bears the risks and hardships that accompany even a normal pregnancy. Moreover, even after birth, sex roles place much heavier expectations on her to engage in child care. Those expectations impose obligations on most women that they do not impose on most men. This is especially true for women who are not affluent and cannot afford full time child care. The right to decide whether to have an abortion rests with women, and not with men, because women, and not men, need that right to enjoy equal citizenship with men.

Van Alstyne's considers a hypothetical statute that gives husbands and wives the ability to block an abortion if the blocking party is willing to provide "appropriate support" for the child. He argues that the statute treats the sexes equally and also promotes marriage because it gives married couples (actually married men) rights that single persons do not have. It is true that the statute appears to treat husbands and wives formally equally, but in practice, it gives men considerable power in their relationship with their wives.

In reality, we know that in most marriages women will be far more likely to feel the obligation to sacrifice their lives and prospects to the daily tasks of child care than men will. Saying that husbands have a veto on abortions if they are willing to provide financial support to the wife essentially says that husbands can block abortions if they are willing to pay for their wives to sacrifice significant portions of their lives to devote to child care. The husbands' careers and their freedom are comparatively unaffected; they pay the money and their wives do the actual labor. This is not sex equality and it is not an equal bargain.

Being willing to pay for child care is not the same thing as actually giving it oneself. The latter is a significant sacrifice of lost opportunities and lost freedom. Many people are happy to make that sacrifice, but that is because they chose to make it; they would feel quite differently if the choice were thrust upon them by the state or if the state gave another party the right to thrust it upon them.

The statute that Van Alstyne imagines would be far closer to sex equality if it defined "appropriate support" not in monetary terms but in terms of forgone career opportunities, forgone freedoms, and imposed commitments to the time-consuming manual labor of housework and child care. Thus the statute would be closer to equality if it said that husbands could veto an abortion if they agreed to be the primary caretaker of the child and agreed to give up their career prospects to stay at home with the child and raise it with little or no assistance from the wife, and if the state actually enforced this obligation, so that the husband could not simply make the promise and then not carry through with it. This law would be more equal, although it would not impose the burdens and health risks of even normal pregnancies on men. Most men in America would not take this bargain, and they would feel the requirement of forced labor by the state as a serious imposition on their lives. That husbands would be willing to impose that requirement on their wives if they could does not prove that the state is treating men and women equally.

Van Alstyne's argument trades on the unspoken assumption that marriage, and particularly marriage with children is not only a relationship of formal equality between the sexes but also a relationship of genuine equality. It is not. It is a relationship in which one of the parties must take on the risks of pregnancy and childbirth. After childbirth, marriage is a relationship embedded in a set of social expectations which assume that women either are or should be the primary caretakers of children, and in an economy that advantages people who are either not the primary caretakers of children or can afford to hire other people to do a significant proportion of the work of childcare.

What does genuine equality require in this world? It requires women to have the ability to choose the number and timing of their children. It also requires that the state attempt to the extent possible, to facilitate women's ability to raise families and compete in the world of work. The rights to contraception and abortion cannot by themselves guarantee these rights of equality but with out them, equality is not possible.

If the state allows husbands to control their wives' reproductive lifes, women cannot enjoy practical equality, even if, in Van Alstyne's view, the statute appears formally equal. The 1970s sex equality decisions he cites were not "equality in marriage" decisions; they were sex equality decisions which sought to promote sex equality by prohibiting states from imposing gender stereotypes through distribution of spousal benefits. Those decisions did not hold, however, that formal equality in spousal benefits is all that sex equality requires or that it trumps equality between men and women.

A central idea in the equality argument for abortion is that men, including husbands, do not have the right to control the reproductive lives of women, including their wives, and that equality between men and women requires that women have the right to choose the number and timing of their children. This is an argument both from liberty and from equality. It is an argument from liberty because it prevents men from controlling women's sexuality and what women do with their bodies. It is an argument from equality because women's equal citizenship requires control over their reproductive lives. Liberty often promotes equality, and conversely, equality often promotes liberty. The framers of the Fourteenth Amendment understood this general point about the relationship between liberty and equality when they sought to protect privileges and immunities of citizens of the United States. By securing basic liberties to all citizens, they helped secure their equal citizenship. This relationship is true to this day: guaranteeing gays liberty in Lawrence v. Texas greatly increased their practical equality too.

We can better see how giving women liberty promotes their practical equality by considering a few variations on Van Alstyne's statute: First, imagine that the statute said that either party had the choice to require the other not to use contraception if he or she was willing to support any child that was produced as a result. This statute is formally equal. Is it constitutional? I don't believe so. Here formal equality between the spouses effectively gives men a right to control women's reproductive lives. Such a statute would violate both men and women's liberty. But it would clearly violate women's practical equality. It is no accident that women's liberation and demands for women's equality followed quickly upon the sexual revolution. That is because the access to contraception is a prerequisite to practical equality for women, although it does not by itself guarantee equality. I hope (although I admit I do not know for sure) that Van Alstyne would agree that if the state gave husbands and wives the power to stop each other from using contraception, it would violate women's equality, not just their liberty.

Van Alstyne might respond: But I'm only interested in cases where the parties have engaged in voluntary sexual intercourse and a pregnancy resulted. In these cases, why doesn't sex equality demand that men and women have an equal right to decide whether the woman has the child? There is a great deal one could say about the notion of voluntariness in this context, but let me put it aside. For now, consider the following statute, which is also formally equal between men and women. Suppose the statute said that either party in the marriage may require termination of a pregnancy if the party is unwilling to support it. This is the mirror image of Van Alstyne's statute: Under this law, the husband can demand an abortion if the wife seeks to bring the fetus to term and he is unwilling to support it.

After all, the husband is half of the marriage and contributes half of the genetic material. So why doesn't sex equality demand this? Indeed, since the husband contributes half the genetic material, why doesn't his equal right to sexual autonomy-- his right to choose to have or not have children-- also demand it?

Most courts would agree that this statute is unconstitutional under Roe. I assume that Van Alstyne would as well. Giving a husband the right to force his wife to have an abortion against her will allows the husband to control her body against her will. But-- and here is the point-- so does giving him a right to prevent her from having an abortion. If we give him a formal equality of veto in either direction, then we in fact deny her liberty. When we deny her liberty, we also deny her practical equality.

Here I assume that Van Alstyne would not support the constitutionality of the statute that lets either party terminate the pregnancy regardless of the other's wishes. He wants to protect the right of one person in the marriage to have a child regardless of the other's wishes. But if so, then equality in marriage and respect for marriage does not adequately describe this position. In fact, Van Alstyne is interested in vindicating the choice of any party to the marriage as long as that choice leads to the birth of a child. This is not a pro-marriage position; it is a pro-childbirth position.

Indeed, it is more than a pro-childbirth position. It is a position that identifies protecting marriage with protecting a husband's right to compel his wife to have a child against her will.

I do not think these two ideas (marriage and the right of fathers to compel childbirth) are connected in the way that Van Alstyne assumes they are. There are many different conceptions of marriage and its purposes in history, and some of them are perfectly compatable with women's practical control over their reproductive lives. I certainly agree that protecting a traditional conception of marriage meant protecting the husband's right to control his wife's sexuality, and this is threatened by the abortion decision. But I am not sure that respect for marriage per se requires that husbands enjoy the right to veto a wife's choice to terminate a pregnancy.

In Casey v. Planned Parenthood of Southeastern Pennsylvania, the Supreme Court upheld all of Pennsylvania's restrictions on abortion except the spousal notification provision (which is not even a spousal veto of the kind that Van Alstyne discusses). The reason is quite illuminating: Justice O'Connor argued that Pennsylvania had confused father's rights with the common law conception of marriage, in which the woman was presumed to be economically and socially dependent on the husband, was expected to devote herself to the traditional roles of childcare, and therefore rely on him for economic support. Justice O'Connor wrote:

In keeping with our rejection of the common law understanding of a woman's role within the family, the Court held in [Planned Parenthood of Central Mo. v.] Danforth that the Constitution does not permit a State to require a married woman to obtain her husband's consent before undergoing an abortion. The principles that guided the Court in Danforth should be our guides today. For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife's decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this law - those who most reasonably fear the consequences of notifying their husbands that they are pregnant - are in the gravest danger.

The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband's interest in the potential life of the child outweighs a wife's liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband's interest in the fetus' safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband's interest in his wife's reproductive organs. And if a husband's interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify - a requirement of the husband's consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.

That is to say, the Court argued in Casey that respect for marriage is not the same thing as protection of husband's practical ability to control wives' sexuality. I think that Van Alstyne's discussion of the Court's treatment of abortion rights and marriage tends too easily to conflate different conceptions of marriage and assumes that the Supreme Court's decisions have undermined all of them in the same way. Some forms of marriage are not threatened by these decisions, while others no doubt are, but I would suggest that the forms that are most threatened are the ones that treat women least like equal citizens in a democracy. For the same reason, I think that the equality argument makes perfect sense, and leads to no contradictions (or even ironies) if you see it as grounded on an antisubordination rationale. Indeed, this language in Casey seems to be as much about women's equality as about their liberty.

There is another theme in Van Alstyne's article that I think is particularly worth addressing: He argues that the Supreme Court's decisions since Eisenstadt v. Baird (which held that single persons have the right to use contraceptives) have tended to treat marriage as increasingly less important in guaranteeing rights. As noted before, I think this runs together many different conceptions of marriage. In any case, Van Alstyne explains his point this way: "As the idea of the centrality of marriage appears to be on the wane, so too, may the idea of one's family and of one's responsibilities to the family, become diminished as well. The two are not, after all, entirely easy to distinguish as one tries to think these matters through. . . . [P]erhaps it is altogether pointless to presume to relate any of these things to developments in constitutional law, as I have sought to relate them here. Yet, admitting all of this, it is difficult to believe that they are wholly disconnected insofar as the Supreme Court itself has actively participated in this cultural debate, first by specifically treating these interests [in marriage] with solicitude and exceptional protection, but more recently with an attitude of quite a different and dismissive sort."

Van Alstyne seems to be arguing that the Supreme Court is partially responsible for the trivialization of marriage in American culture. I am dubious, since history and political science teach us that the Court follows, rather than leads most important social trends. This is especially so where the sexual revolution is concerned. Moreover, the primary example he offers-- regarding the marriage penalty in the U.S. tax code-- cannot be laid at the feet of the federal courts; it is the result of legislative fiat. The real source of these changes in marriage and social attitudes toward marriage have not come from directives from courts; they came (initially) from the sexual revolution, which was made possible in part by cheap and easy access to contraception and in part by women's liberation from traditional occupations. The Supreme Court ratified these powerful social trends, it did not cause them. That is the best way to understand cases like Eisenstadt: they stated in terms of constitutional principles basic facts on the ground. By 1971 sex before marriage had become increasingly commonplace among middle class Americans and criminalizing access to contraception in such cases made little sense. I assume that Van Alstyne does not actually want to reverse either of these larger trends: he does not want to criminalize contraception (or make it harder to obtain) for unmarried people and he does not want to undo the liberation of women in American society. I think he is blaming decisions in the U.S. Reports for far more powerful causal tendencies that would not easily be cured if those decisions had been written or reasoned differently. Overruling Eisenstadt, Danforth, or for that matter, Casey, will not save American marriage. It will, however, harm women, especially the least affluent women.

In any case, Van Alstyne larger concern is not abortion: it is the strength of the institution of marriage and people's felt sense of responsibility in marriage. These are admirable sentiments. But it is hard to see how giving husbands a veto over their wives' ability to abort would strengthen marriages or instill in people a greater sense of marital responsibility. Rather, it would seem to have the opposite effect: it would seem to allow husbands the ability to use the power of veto to dominate and punish their wives. It would certainly conduce little to promoting marital harmony. I assume that Van Alstyne would agree with me that, ideally, marriage should be a relationship between social equals. If so, then giving husbands rights to control their wives' sexuality does not seem to me to be the best way to support that valuable institution.



Posted 3:15 PM by JB [link]

Politicized Prognostication at CBO

Frank Pasquale

Back in 2007, wise wonks were already warning that the Congressional Budget Office could torpedo health reform. The CBO dealt Clintoncare a heavy blow by saddling it with huge cost projections -- and failing to take into account the savings the program would realize for individual citizens and the private sector. Current CBO director Doug Elmendorf has been riding a wave of notoriety as an objective "referee" in an increasingly bitter reform battle. But as his office's one-sided estimates enervate reform, it's beginning to risk its reputation for impartiality. Consider the following observations about CBO's work:

Bruce Vladeck: "The CBO’s track record in predicting the effects of health legislation is abysmal. Over the last two decades, the CBO has routinely overestimated the costs of expanded government health care benefits and underestimated the savings from program changes designed to reduce expenditures. Most recently, it overestimated the five-year cost of Medicare Part D — the prescription drug benefit — by more than 35%. Even more dramatically, the CBO’s estimates of the Medicare savings from the Balanced Budget Act of 1997 underestimated the impact, on average, by a full 100%. That’s right: In the BBA’s first three years, Medicare spending fell fully twice as fast as the CBO had projected."

Timothy Stoltzfus Jost: "[A] moment's reflection would lead one to realize that the CBO's guess that [a reform proposal] would save [only] $2 billion is about as worthless as an estimate that a loaf of bread will cost $5.65 in 2019, or a gallon of gasoline $4.73. Indeed, the CBO admits as much, stating that it actually believed the proposal would save nothing, but "there is also a chance that substantial savings might be realized." . . .[T]he media needs to stop reporting CBO reports as though they reflect the real costs of reform."

Maggie Mahar: "When I read Elmendorf’s testimony suggesting that the [House] bill wouldn’t bend the trajectory of federal health spending, I couldn’t help but wonder: Did he understand how the proposals in the 1,018 page bill dove-tailed with the excellent recommendations that the Medicare Payment Advisory Commission (MedPac) has made in recent years? Has Elmendorf read the lengthy MedPac reports?"

When respected experts like Maggie Mahar are wondering if Elmendorf has understood key literature in the area, something's gone wrong at CBO. The media's uncritical acceptance of his figures can only last as long as it fails to report the true complexity and uncertainty involved in both substantive reform and the do-nothing option that CBO's handiwork is unintentionally advancing.

Read more »
Posted 10:25 PM by Frank Pasquale [link]

The Gang of Six's Love Affair With Concentrated Health Insurer Markets

Frank Pasquale

If there's one thing our elite press corps loves, it's centrism. They cling to a romantic ideal of bipartisanship--even when they're discussing necessarily ideological endeavors like health care reform. Thus it comes as no surprise when the NYT's Herzensohn & Pear can think of no more critical angle on the gang of six "centrist" Senators now at the center of the health reform debate than the fattening snacks that fuel their deliberations.

It turns out that a majority of the gang of six--Senators Baucus, Snowe, Conrad, and Grassley--hail from states with extraordinarily concentrated health insurance markets. As Catherine Arnst of Businessweek reports, "such market concentration has become a potent argument for supporters of a public insurer," which would especially benefit consumers in those states. So guess what the Gang of Six has immediately taken off the table in reform talks?:

Already, the group of six has tossed aside the idea of a government-run insurance plan that would compete with private insurers, which the president supports but Republicans said was a deal-breaker. Instead, they are proposing a network of private, nonprofit cooperatives.

They've also dismissed an "income surtax on high earners"--because, hey, once you've already voted to give away $250 billion to the very wealthy in estate tax cuts, how could you possibly ask mere millionaires to chip in for health care?

It's this kind of thinking that our press praises as "bipartisan"--just as it treats the transparently value-laden estimates of CBO Budget Director Doug Elmendorf as objective truth. Allergic to policy details, they entrench a regressive incrementalism likely to accelerate the decline of an already-broken health care marketplace.


Posted 10:00 AM by Frank Pasquale [link]

Arrest as Punishment

Alice Ristroph

Remember Gail Atwater? She was the soccer mom pulled over in 1997 in Lago Vista, Texas, and, after an ugly verbal exchange with the police officer, placed under arrest and taken to the police station. Gail Atwater was white. The offense for which she was arrested—a seatbelt violation—carries no jail time. Yet the Supreme Court held 5-4 in Atwater v. Lago Vista that police officers may, if they choose, make custodial arrests even for non-jailable offenses. The Court acknowledged that in this particular incident, “the physical incidents of arrest were merely gratuitous humiliations imposed by an officer who was (at best) exercising extremely poor judgment.” But such gratuitous humiliation was within the scope of a police officer’s discretion, the Court held. I don’t know if Sergeant James Crowley would have arrested Professor Henry Louis Gates even if Gates were white. As Atwater’s case makes clear, though, the offense of disrespecting an officer is not enforced solely against racial minorities.

This offense isn’t necessarily codified. Many jurisdictions—including Massachusetts—provide explicitly that a tirade against a police officer does not itself justify a conviction, fine, or jail sentence. (Adam Winkler reviews the Massachusetts law here.) But when police officers have the broad arrest powers protected by cases like Atwater, they have the ability to use an arrest itself as de facto punishment for disrespect. The Fourth Amendment requirement that an arrest be based on probable cause to believe that the arrestee committed some crime arguably limits this power—and arguably should have prevented Gates’s arrest. In practice, though, the broad scope of substantive criminal laws means that the probable cause requirement does very little to curtail the arrest power, and thus very little to curtail the power to punish via arrest.

Whether Gates actually was disrespectful to the officer is, of course, a matter of dispute. Some commentators have suggested that Crowley was more inclined to interpret Gates’s demands for his name and badge number as rude because they came from a black man. At the time Atwater was decided, civil libertarians worried that the broad arrest power vindicated in a case with a white female defendant would, in practice, be used disproportionately against black males. These racial implications of police discretion shouldn’t be overlooked. But it’s also worth considering a separate question: should police have the discretion to punish disrespect via arrest, even if they use that discretion against as many white soccer moms as black men?

Posted 6:03 PM by Alice Ristroph [link]

Swine Flu + Nightmare = Crazy Victims’ Rights Idea

Ian Ayres

Crosspost from Freakonomics:

I am writing this at 4:25 a.m. on Friday and I’m a bit woozy. On Wednesday afternoon, my body seriously crashed. On very short notice, my beloved spouse got me in to see to see a physician, who told me I definitely had a bad flu and the only one going around was the swine flu.

The good news is that I’ve been recovering just as quickly as I crashed. By Thursday morning, my 101.3 fever had broken, and while I still have a cough, the aches and chills are now largely gone. My body just feels extraordinarily tired. I tried going to sleep Thursday night without any cold medications.

Sometime in the wee hours of Friday morning, I started to have an extended nightmare of bad guys breaking into my house and putting me and my family at risk. The nightmare was on a repeated loop where, over and over, I would try to change the horrific outcome. Each time I would look for different tools around the house that I could use to fend off the attack.

(Besides my illness, the nightmare may have been partly induced by the recent novels of Lee Child and Geraldine Brooks that I have been reading.)

But I’m writing about this unhappy vignette because of what happened next. As I was having this repeated nightmare, I became semi-conscious so that I could direct not just my own actions in the dream but even aspects of the context. At some point, I switched from thinking about my family to thinking about a nightmarish home invasion that happened last year a few doors down from my house. My (possibly impaired) memory is that three men broke into the home, tied up a house sitter, and beat her up while she was restrained — breaking bones in her hand with a baseball bat. They caught the bad guys. But I started wondering what happened to them.

The key moment was when I started asking what rights that house sitter should have with regard to their sentence. If I were she, I would be incensed if they were only sentenced to a year or two in jail. I felt she might say to the judge, “If the punishment is just a year in jail, I should be able to break your hands and not risk a longer sentence.” But then a thought came to me that something like the cake cutting rule — you cut/I choose — might be applied to the perpetrators themselves. To my mind, legal rights are a kind of option, so the search for optimal victim rights is a search for optimal options. And the cake cutting rule is one kind of option mechanism. It induces the first person to divide the cake evenly, because the second person has the option of taking either side of the cake.

How could that idea be applied to the house sitter problem? One way would be to give the perpetrators the option of enhancing their own punishment. If a prosecutor or a sentencing judge offered them a sentence of two years, the perpetrators would be given the option of increasing their own sentence to as long as they wanted. The victim would then have the right to treat the augmented sentence merely as a price and would have the option of doing the same thing to the perpetrators as long as she was willing to accept the same punishment. Regardless of what the victim chose, the perpetrators would still have to serve the augmented sentence.

Normally, we think that criminal defendants would only want to minimize the size of their sentence. But this crazy idea makes them the beneficiary of a longer sentence because it is more likely to deter their own victimization. In the terms of game theory, it gives them a countervailing incentive to avoid bargaining for a sentence that under-deters. I’ve played around with vaguely similar option ideas as a way to resolve civil disputes (here and here), but only because of the ravages of the flu did the criminal application occur to me.

Let me be clear: I do not endorse this victim rights idea. I am starting to crash (it’s now 5:15), but I can see serious problems with it. I don’t want to live in a world that gives victims these options and, if such an option were given to me, I hope in cool reflection that I would not exercise it. This deranged inspiration falls into the category of what my beloved spouse calls “just shut up now” ideas.

But I do endorse the thought process that gave rise to it. Indeed, there is a certain continuity to what I was doing while asleep. When I was inside the nightmare I was looking for tools at hand to fend off the attackers, and when I came to, I, in a sense, kept doing the same thing. I just started looking for legal and economic tools to protect potential victims. On net, I wish I could have avoided both the swine flu and the nightmare, but asking “why not?” in the quiet moments before dawn is a kind of self-medication that calms the racing mind.

Posted 10:31 AM by Ian Ayres [link]

Battle cry of “family”

Andrew Koppelman

A common refrain among opponents of same-sex marriage is the importance of defending “the family.” They feel that the institution of the family, as they conceive it, will be undermined if same-sex marriages are recognized. This is a peculiar kind of argument, and it traps them in a paradox that has a remarkable historical precedent.

In the Civil War, the Southerners frequently declared that they were fighting for liberty and self-government. The title of James McPherson’s history of the Civil War, Battle Cry of Freedom, capitalizes on the fact that, as McPherson writes, “[b]oth sides . . . professed to be fighting for freedom.” Jefferson Davis declared in 1863 that the South was “forced to take up arms to vindicate the political rights, the freedom, equality, and State sovereignty which were the heritage purchased by the blood of our revolutionary sires.” But the freedom that Davis was fighting for depended, of course, on the enslavement of others. The southern commissioners to Britain reported home that “the public mind here is entirely opposed to the Government of the Confederate States of America on the question of slavery. . . . The sincerity and universality of this feeling embarrass the government in dealing with the question of our recognition.”


Opponents of same-sex marriage today face a similar embarrassment. They are eager to protect their distinctive conception of family. But that conception depends on marginalizing the families of others and denying them legal recognition. This inevitably produces atrocities in which dying hospital patients are kept separated from their partners and children. Yesterday’s New York Times Magazine contains yet another horror story, of moronic state officials mindlessly trying to sever ties between gay parents and children. As these stories become better known, the invocation of “family” as a reason to beat up on gay people will seem as weird as the invocation of “freedom” did as a defense of the Confederacy.


Posted 8:23 AM by Andrew Koppelman [link]

The Public Index Opens

JB

Over at The Laboratorium, James Grimmelmann announces The Public Index, a site devoted to discussing (and understanding) the complicated proposed Google Book Search settlement. Gimmelmann explains:

The groundbreaking proposed settlement in the Google Book Search case is so complex that controversy has outpaced conversation and questions have outnumbered answers. We aim to help close these gaps. The Public Index is a website featuring a collection of tools and resources for those wishing to learn about the settlement or to express opinions about it.

The centerpiece of the site is an interactive version of the proposed settlement. Users can search freely, browse by section, or read through it in a hierarchical view that retains the settlement’s indentation structure. Hyperlinks allow users to look up any defined term or cross-reference with a single click. A paragraph-by-paragraph commenting system allows them to annotate individual portions of the settlement with their own commentary. To encourage further discussion, the site also provides a full set of bulletin-board forums.

In addition, the Public Index offers a reading room of essential settlement-related documents:

* a complete, categorized set of filings from the lawsuit
* Google’s agreements with cooperating libraries
* scholarly and popular essays from all points of view
* a timeline with links to news about the lawsuits and settlement
* links to a wide range of commentary on blogs

The Public Index also includes an open-source version of the New York Law School amicus brief to the court. The site includes a draft of the brief in a user-editable wiki; Public Index users are invited to mark it up with their corrections, criticisms, and suggestions. Changes from the Public Index will be incorporated into the brief before it is filed in September. Visitors are also encouraged to use the wiki to collaborate on their own, alternative amicus briefs.

Posted 2:31 PM by JB [link]

The Secret Plan to Suspend the Fourth Amendment

JB

Today the New York Times reported that in 2002 the Bush Administration debated whether to use the military to arrest terror suspects in Buffalo. Administration officials argued for using the military because they believed that the government lacked probable cause to search and arrest under the Fourth Amendment. The arrest would also have violated the Posse Comitatus Act, which prohibits the military from being used as a domestic police force.

Two parts of the story are particularly worth noting: First, "Former officials said the 2002 debate arose partly from Justice Department concerns that there might not be enough evidence to arrest and successfully prosecute the suspects in Lackawanna. Mr. Cheney, the officials said, had argued that the administration would need a lower threshold of evidence to declare them enemy combatants and keep them in military custody."

Put differently, Cheney sought to go around the Constitution's protections for persons arrested in the United States. The whole point of the enemy combantant theory was to avoid having to abide by constitutional guarantees. It is worth dwelling on this point: This is not a debate about whether the army would have to read Miranda rights to suspects captured on the battlefield in Afghanistan. It was a plan to have the military arrest people in the United States in order to get around civil liberties guaranteed by the Constitution.

A second point in the New York Times' story, however, is equally important: Cheney's fears were unfounded. The ordinary criminal process, with its panoply of constitutional protections, was perfectly adequate to deal with these persons. "Mr. Bush ended up ordering the F.B.I. to make the arrests in Lackawanna, near Buffalo, where the agency had been monitoring a group of Yemeni Americans with suspected Qaeda ties. The five men arrested there in September 2002, and a sixth arrested nearly simultaneously in Bahrain, pleaded guilty to terrorism-related charges."

Cheney planned this suspension of the Constitution well in advance. In October of 2001, he had (who else?) John Yoo write a secret memo declaring that the Fourth Amendment did not apply to domestic military operations and that the Posse Comitatus Act would not apply to war on terror operations in the United States. Yoo's secret memo has since been declassified and released by the Obama Administration. It has also been disowned.

The New York Times article also mentions in passing the arrest of a U.S. citizen, Jose Padilla, who was arrested at Chicago's O'Hare airport and held in a military prison for three years with the Administration insisting that Padilla, as a designated enemy combatant, had no virtually no rights, including the right to be charged or to see an attorney. Glenn Greenwald correctly sees the connection between these debates in 2002 and what happened to Padilla: "The only thing distinguishing the Padilla case from what Cheney/Addington argued be done in the Lackawanna Six case was that the military wasn't used to make the initial apprehension of Padilla. But Padilla was then transferred to military custody and held on U.S. soil for years in a brig, incommunicado and tortured, with no charges of any kind (another U.S. citizen, Yaser Hamdi, was treated similarly until the Supreme Court ruled he was entitled to some sort of hearing, after which he was sent to Saudi Arabia)."

The central problem with the Cheney/Yoo/Addington theory was that it allowed the President to declare anyone in the United States an enemy combatant. Then, once the President made this declaration, the person would lose all their civil rights. The military could arrest and imprison the person without charges or any of the procedural protections of the Bill of Rights; it could torture them for information (under the theory that these techniques did not shock the conscience under the Eighth Amendment), and it could hold them indefinitely in a military prison. The problem with the Cheney/Yoo/Addington theory, in short, was that it embraced elements of military dictatorship within the United States.


Posted 11:24 AM by JB [link]

Why Does Rick Perry Think Health Care Reform is Unconstitutional?

JB

Texas Governor Rick Perry has stated that if Congress does not vote down President Obama's plans for health care reform, he will treat them as unconstitutional under the 10th Amendment.

Gov. Rick Perry, raising the specter of a showdown with the Obama administration, suggested Thursday that he would consider invoking states’ rights protections under the 10th Amendment to resist the president’s healthcare plan, which he said would be "disastrous" for Texas.

Interviewed by conservative talk show host Mark Davis of Dallas’ WBAP/820 AM, Perry said his first hope is that Congress will defeat the plan, which both Perry and Davis described as "Obama Care." But should it pass, Perry predicted that Texas and a "number" of states might resist the federal health mandate.

"I think you’ll hear states and governors standing up and saying 'no’ to this type of encroachment on the states with their healthcare," Perry said. "So my hope is that we never have to have that stand-up. But I’m certainly willing and ready for the fight if this administration continues to try to force their very expansive government philosophy down our collective throats."

Perry's assertion raises several interesting questions. The first is how, if at all, Texas would refuse to participate. I assume that Texas could not prevent Texas residents from purchasing a national public insurance option. It would not and could not prevent federal law enforcement officials from enforcing federal regulations of private insurers who operate within the state of Texas. Similarly, Texas state officials would not try to close down federal government office buildings in Texas where the health care program is being administered.

So what exactly is Perry threatening to do? There is one possibility that I could think of (there may be several others as well): Perhaps Perry is saying that if the plan expands Medicaid for poor people, he would stop participating in the Medicaid program. Currently all states participate in this federal/state cooperative program. Medicaid currently provides health insurance program for low-income parents (mostly mothers) and children, a long-term care program for the elderly, and funds for services to people with disabilities.

Since Medicaid is a cooperative venture, any state can back out any time it wants. All Perry has to do is take the political heat, which would presumably be pretty intense, given the fact that a large number of mothers, elderly persons and disabled persons in Texas make use of Medicaid programs.

Perhaps more interesting is Perry's theory of why expanded health care programs would be unconstitutional. I can think of two possibilities. Presumably the federal power to create such a program comes from the General Welfare Clause (Article I, section 8, clause 1), which gives the federal government the power to raise taxes and spend money for the general welfare. It's hard to see how the proposed health care program violates the Constitution under existing doctrine.

Perry might claim that no state can willingly consent to participate in federal programs of the type contemplated. But that argument would probably make many other state cooperative ventures unconstitutional, including Social Security and Medicare.

Second, Perry might argue that although the federal government can spend money on some social welfare programs, after a certain point, federal expenditures become so intrusive that they dominate the regulatory playing field, effectively preventing states from creating their own independent programs and therefore this violates the Tenth Amendment. This argument seems a bit of a stretch, but if we took it seriously, it would threaten the constitutionality of a lot of federal programs, including federal grants that Texas depends on and that Texas citizens desperately need. Perry has been more than happy to take federal money for any number of federal health care programs in the past. It is not clear whether he has had a change of heart about their constitutionality as well.

Note, finally, that Perry's argument is not necessarily that a court would hold the health plan unconstitutional. (It won't: There is little doubt that if Perry were to challenge the constitutionality of the health care plan in the federal courts, he would lose under current doctrine.). Rather, he is arguing that, as governor of Texas, he is an independent interpreter of the Constitution, and he is taking steps consistent with his interpretation of the Constitution that are otherwise permissible under the law. As long as Perry doesn't violate federal laws or interfere with federal employees, he is presumably free to make decisions based on his personal interpretation of the Constitution. His accountability for those decisions rests with the people of Texas. No doubt Perry thinks this sort of tough anti-federal government rhetoric will win him votes. But once it becomes clear what his threatened actions will cost the state and its people, I doubt the citizens of Texas will be as supportive as he thinks.

Posted 3:35 PM by JB [link]

Anticipating the Obama Administration's Civil Rights Agenda

Guest Blogger

Alexander Tsesis

President Barack Obama's July 16, 2009 speech to the NAACP struck the right chord in its call for community vibrancy, but it failed to clearly state the administration's civil rights agenda. Obama's inspirational speech no doubt set a tone for community pride and responsibility. As I read through it, however, I could not help but think that he missed an excellent opportunity to clearly present his administration's civil rights policy goals and voice support for proposed bills that are pending before Congress. To this end the President might have commented not only on the NAACP's history and current American social blights but also on whatever vision for reform he shares with the NAACP.


The one substantive proposal the President discussed in detail was health care reform, and here he hit on an issue of common interest. Most recently the NAACP has focused its energy on HIV/AIDS awareness given the relatively higher prevalence of the disease in black communities. Health care is acutely important to Latino communities as well. In 2002, a non-profit national health consumer advocacy organization, Families USA, reported that 46 percent of Latinos living in the United States were uninsured. The same organization's 2007-2008 study found that while half of the 86.7 million Americans who lacked health care coverage were whites, there was a markedly higher incidence of uninsured individuals in minority communities: 55.1% of Latinos, 40.3% of African Americans, 34% of other racial and ethnic minorities; and 25.8% of whites. Even before the President's
speech, the NAACP had been working for a patient's bill of rights and an end to disparities in health care. In touching on this issue, Obama likely gained additional support at the grass roots level for his health care plan.

Racial profiling is another issue that President Obama might have addressed in his NAACP speech rather than having it thrust upon him following the arrest of Henry Louis Gates, Jr., a leading African American scholar. It is clear from the Obama's comments in his July 22, 2009 news conference that he has thought deeply about the topic. He forthrightly stated we, as a nation, are well aware of the "long history in this country of African-Americans and Latinos being stopped by law enforcement disproportionately." The NAACP, along with many other civil rights organizations like the Southern Poverty Law Center, the Anti-Defamation League, and the Urban league, have put much effort into ending the abuses of racial profiling. Obama might have, for instance, mentioned the "End Racial Profiling Act," which Senator's Russ Feingold (WI) and Congressman John Conyers, Jr. (MI) sponsored in the 110th Congress. I am told by a congressional insider, who asked not to be named, that Senator Feingold plans to reintroduce the bill this year. Several related topics of concern that are on the NAACP's agenda, such as disparate racial prosecution and length of incarceration, also warranted at least passing comment from the President.

Along the same lines, the President may have mentioned hate crimes legislation, which the House (H. R. 1913) and the Senate (S. 909, amended by S. Amnd. 1511, which is not yet available online) have passed in different forms and now await reconciliation through a Conference Committee. I helped develop the Senate version, and plan to blog
at a later time about problems with the final result. The NAACP's centennial celebration would have been an appropriate forum for Obama to wade into this issue and to help reconcile differences between Senator Edward Kennedy's and Representative Conyer's versions.

I would have also been interested in President Obama's views about Representative Barbara Lee's bill, which the NAACP's legislative agenda supports, proposing to end the denial of food stamps to otherwise eligible ex-felony offenders. (H. R. 329). This issue ties into a subject that two bloggers on this site, Jack Balkin and Sandy Levinson, have written about: felon disenfranchisement laws. States laws that disenfranchise ex-felons currently disqualify about four million Americans, 1 in 50 American adults, preventing 13% of black males to vote. The Civil Participation and Rehabilitation Act, which was introduced in the 105th Congress and continues to have the NAACP's support, would have prohibited states from abridging any criminally convicted persons right to vote unless the individuals were serving felony sentences in a correctional institution at the time of the election. (H.
R. 329). That too would have been an important subject for the President to weigh in on.

The NAACP was founded on the equality principles in the Declaration of
Independence. In his speech, Obama referred to the NAACP's grounding in justice "to cash the promissory note of America that says to our children, all God's children, deserve a fair chance in the race of life." His words were reminiscent of King's "I Have a Dream" speech, invoking "the architects of our republic" who "wrote the magnificent words of the Constitution and the declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness." The vision is grand, but it lacks the critical detail of President Lyndon Johnson's Great Society programs. A civil rights agenda is an enormous undertaking costing much political capital, but it is one for which the President's leadership is essential. The NAACP along with other civil rights organizations can help flesh out the President's agenda, but it is the Executive Branch that can most forcefully articulate specific public goals.

Posted 12:14 PM by Guest Blogger [link]

The struggles of Obama’s detention policy task force

Guest Blogger

Liza Goitein

President Obama’s detention policy task force has said it needs more time to complete its work. Small wonder: when you start with the premise that certain detainees are “too dangerous to release” and then try to come up with legal procedures that will support that pre-determined outcome, you run into some sticky legal, practical, and political problems. (I’ve written about the administration’s “sentence first, verdict afterwards” approach here.)

The good news is that the Obama administration appears to be genuinely wrestling with the problems that follow from reverse-engineering systems of justice to guarantee continued detention. The prior administration didn’t bother with legal window dressing, let alone worry about the constitutional shortcomings of such an approach. The bad news is that the Obama administration still thinks it can overcome those problems if it gives detainees a carefully circumscribed menu of rights that falls somewhere between no rights at all (the Bush approach) and the rights they would get in any existing American system of justice.

The preliminary report of the task force, which focuses on the use of military commissions, doesn’t reveal any of this internal struggle. This is a public document, intended for public consumption. It doesn’t contain any real analysis or recommendations; those presumably appear in other, non-public documents. Instead, it sets forth the decisions already made by the President (and already made public) and justifies them. It’s an advocacy piece, pure and simple.

But the advocacy falls short on many fronts. The report justifies using commissions on the ground that “federal courts have not traditionally been used to try violations of the laws of war.” True; but the current conflict differs from previous ones in a way that’s acknowledged in another section of the report: “In the current conflict . . . the unlawful activities of our adversaries can in many cases be fairly characterized both as violations of the law of war and as terrorism offenses under our federal criminal code.” Federal courts, of course, have traditionally (and successfully) been used to try terrorism offenses. In any event, if the administration insists on invoking the “law of war” framework and using a military tribunal in some cases, why not use courts-martial—the regularly constituted military courts established to try U.S. soldiers and prisoners of war?

The report notes that “[m]ilitary commissions have been used by the United States to try those who have violated the law of war for two centuries.” Again, true. But the report fails to note the inglorious history of these commissions, as Gene Fidell has so persuasively laid out. It also fails to note that the commissions have been invoked only where existing courts lacked jurisdiction over the offenses, and that the procedures used in these commissions have traditionally mirrored those of courts-martial (neither circumstance applies here). The Supreme Court found those facts significant the last time it considered the legality of military commissions—it will presumably find them significant in the inevitable next go-around.

The report lays out the commission procedures that the administration endorses. There’s no question that they improve on the procedures used in the last iteration of the commissions. I, for one, celebrated the sight of administration officials in a recent Senate hearing acknowledging that the Due Process Clause applies in military commission proceedings and asking Congress to add more protections for defendants. Still, the procedures advocated by the administration deviate in important ways from those used in courts-martial and Article III courts. Among other differences, the administration wants to be able to present hearsay evidence, and to restrict defendants’ access to classified information, in ways that wouldn’t be allowed in regular courts.

These are not small matters. In the debate over how to deal with detainees, the rules governing hearsay and defendants’ access to evidence have too often been characterized as procedural handicaps designed to give guilty defendants a better shot at beating the rap. In fact, the point of these rules is to ensure accuracy and guard against the conviction of innocent persons. Chipping away at them increases the likelihood of obtaining convictions, to be sure, but those convictions are much more likely to be erroneous.

What’s the administration’s justification for deviating from these rules? The report includes the usual argument about “the realities of the battlefield.” These words seem to start and end the debate for most lawmakers, but the argument doesn’t hold up to scrutiny. First, a vanishingly small number of current detainees were apprehended in an actual battle with U.S. military forces; most were turned over to the U.S. after capture by other entities or picked up in their homes or other locations. Second, the Uniform Code of Military Justice, in accordance with the Third Geneva Convention, requires the U.S. to try prisoners of war using the same courts and procedures used to try our own soldiers (which are the same procedures used in Article III courts). If those procedures are sufficient to try regular prisoners of war—who are far more likely to be captured on an actual “battlefield”—they are sufficient to try the current detainees.

The report also cites “the unique circumstances of . . . intelligence operations” and the need to “protect[] intelligence sources and methods.” There’s nothing unique about this consideration. Intelligence information has been implicated in scores of espionage and international terrorism cases that have been tried in regular federal courts. The information has been handled under the Classified Information Procedures Act, which allows the government to sanitize classified evidence in various ways before showing it to defendants. Of course, if the government doesn’t want to disclose even a sanitized version of the evidence, it may have to pursue lesser charges or drop the prosecution altogether. That’s not a pleasant choice, but the alternative—allowing the government to lock people up based on evidence they don’t get to see—is worse, because it results in the conviction of innocent people.

At bottom, the procedures used in regular courts are perfectly adequate to try detainees in the conflict against Al Qaeda and the Taliban, with one exception: sometimes, defendants in regular courts get acquitted. And as much as the Obama administration may want to adhere to our values, “innocent until proven guilty” may not be a value it feels it can afford when dealing with suspected terrorists. Under the administration’s current thinking, it will first determine which detainees will continue to be locked up, and will then obtain the requisite sentence from a court. Its goal now is to find a way to guarantee those sentences, and to do so in a manner that doesn’t force the government to make the difficult choices that justice occasionally requires.

The Obama administration can do better than that. We know the task force is struggling; let’s hope that its better angels prevail, and that we see a very different report six months from now.


Posted 2:07 PM by Guest Blogger [link]

1 out of 5 Prisoners in California Is Serving A Life Sentence

Bernard E. Harcourt

Frank Pasquale’s post yesterday, Neoliberal Penality in Action, seems particularly timely in light of today’s newly-released report by The Sentencing Project, No Exit: The Expanding Use of Life Sentences in America. We are all sadly familiar with our high rate of incarceration in this country: with more than 2.3 million people behind bars, we now incarcerate 1 out of every 100 adults in the United States. But few are familiar with the length of our prison sentences. The new report is staggering in this regard: in 2009, 1 out of 11 state and federal prisoners are serving sentences of life imprisonment. That represented 9.5 percent of the total prison population. And of those lifers, 41,095 or twenty-nine percent are not eligible for parole—they have no possibility of parole release. In five states—Alabama, California, Massachusetts, Nevada, and New York—the rate is even higher, with one in six state prisoners serving a sentence of life imprisonment. In fact, in California, 34,164 persons or 20% of all prisoners are serving a life sentence, and of those, 10.8 percent are life sentences without parole. (No wonder the state is going bankrupt).

This really does raise questions whether our dominant form of market rationality facilitates prison growth and lengthy sentences. In Neoliberal Penality, I argue that there is indeed a link and that, surprisingly, it traces back to the early liberal writings of some of the first economists. (Incidentally, Stanley Fish’s swipe aside, we all know what neoliberalism is: it’s the default judgment that the government tends to be inefficient when it comes to intervening in economic or commercial exchange).

The notion of natural order that emerged early in economics—and eventually morphed into today’s concept of market efficiency—went hand in hand with the idea that the government’s only legitimate responsibility was to punish the deviants and disorderly. Back in the 18th century, the early French economists in fact saw no role for positive law except to punish those who did not obey the natural order. To be sure, the vocabulary has changed today and we speak about “market efficiency” rather than “natural order” and about punishing “market bypassing” rather than “les déréglés,” but the idea is the same: the government tends to be inefficient when it comes to economic regulation and therefore should only intervene with a free hand in the traditional space of the criminal sanction.

That logic facilitates the growth of the penal sphere by making it easier to resist government intervention in the marketplace but to embrace criminalizing any and all street deviations. It facilitates passing new criminal statutes and wielding the penal sanction more liberally—because that is where administration is necessary, that is where the state can legitimately act, that is the proper sphere of policing. The idea of market efficiency creates centrifugal force that pushes the state out to the borderlands of the penal sphere.

This is not to suggest, by any means, that neoliberal thinkers like or want mass incarceration, that they desire any of these lengthy sentences, or that they wish to see the carceral sphere expanded. Milton Friedman notoriously opposed the War on Drugs, militated strenuously in favor of legalizing illicit drugs, and decried “the horrendous growth in the prison population.” Richard Epstein and Richard Posner more cautiously oppose the excesses of the War on Drugs and endorse, under certain circumstances, decriminalization of certain illicit drugs. Posner views illicit drug sales through the prism of efficient market transactions and argues that the criminalization of illicit drugs is hard for an economist to understand.

Instead, my point is that, from a perspective internal to liberal thought, the logic of neoliberalism facilitates punishment practices by encouraging the belief that the more legitimate space for government intervention is in the penal sphere. There are, of course, more immediate political and social practices that have caused mass incarceration—including the War on Drugs, racial discrimination and profiling, law-and-order politics in the 1970s, a Southern backlash to the Civil Rights movement, the collapse of the rehabilitative model, and sentencing enhancements, to name but a few. These all contributed more proximately to the growing number of prison inmates. But neoliberal penality facilitated these practices by weakening the resistance to governmental initiatives in the penal domain because that is where the state may legitimately govern. The logic of neoliberalism reduces the friction and the resistance to criminalizing and punishing because that is where the government may legitimately interfere—there and there alone. The new report from The Sentencing Project, sadly, seems consistent with this argument.


Posted 7:27 PM by Bernard E. Harcourt [link]

Should Antoine Walker Be Arrested for Bouncing Checks? (Should You?)

Ian Ayres

Crosspost from Freakonomics:

I’m troubled by news reports that Antoine Walker was arrested for writing $1,000,000 in bad checks. The ex N.B.A. star — Employee Number 8 — was forced to do a perp walk as he apparently was led out of Harrah’s Tahoe in handcuffs. The criminal complaint alleges that from July 27 to January 19, he wrote 10 separate $100,000 checks with insufficient funds to Caesars Palace, Planet Hollywood, and Red Rock Resort.

Writing a check that you never intend to pay is a crime — and appropriately so. But it is crucial that prosecutions be limited to circumstances where there is proof beyond reasonable doubt that the writer at the time of writing never intended to pay. In the beautiful legal language of the New York Bad Check law: “[t]he prosecution must be able to plead and prove an intent by a defendant to utter a worthless check at the time it is uttered, not by the mere happenstance of subsequent insufficient funds.”

When you write a check, you utter — that is represent — that there are sufficient funds in the account and that you intend to have your bank pay the written amount.

It’s difficult but not impossible for the prosecution to present evidence of this bad intent. If a defendant writes checks on a bank account she knows has been closed, or if she writes checks far beyond her means of ever repaying, there can be a strong inference that she never intended to pay.

But Nevada has followed the worrisome trend of presuming an intent to defraud merely from the fact of insufficient funds. Amazingly, the Nevada Bad Check law declares:

The maker of a bad check is presumed to have intent to defraud if the check is drawn on an account which does not exist, if he failed to pay the holder of the bad check the full amount due plus any handling charges within five days after receiving notice that the check is dishonored, or if the notice of refusal of payment sent to the maker by registered or certified mail at an address printed or written on the check is returned because of non delivery. (NRS 205.132.)

Under this provision, if you bounce a check and don’t make it good within five days, you are presumed to have intended to defraud the payee and can be subject to criminal punishment. This presumption is unconscionably broad. If you mistakenly thought that you had enough money in your account and then find that you do not, you can go to jail. I’ve bounced checks by mistake in the past, and this presumption scares the bejabbers out of me.

To add insult to injury, Walker, besides paying off the original debt, “now owes the District Attorney’s office $82,550 in fees for taking on the criminal prosecution, which the three casinos requested.” There is an irony here. The defrauding presumption relieves the prosecutor of any real difficulty in making a case, but nonetheless the prosecutor claims a bounty that quickly turns prosecution into a profit center.

I should disclose that I’m somewhat obsessed with the law of misrepresented intention. Greg Klass and I in fact wrote an entire book about it, called Insincere Promises, which includes a chapter on the crime of false promise and the over-broad bad check presumptions. The book’s cover photograph of crossed fingers behind the back symbolically captures what should be the crucial element of the prosecution’s case — the moment the defendant promises something that he or she intends not to do.

The prosecution of bad checks when the payee is a casino is particularly troubling. Six of the checks were made out to Caesars Palace. Was Caesars really defrauded when the 4th or 5th came back showing insufficient funds? In a world with debit cards, is it really necessary to accept checks?

It would be one thing to go after Walker for writing bad checks to a grocery store or a dry cleaner. But do we really need to use the state to help collect casinos’ bad debts?

We might do better to prohibit casinos from accepting checks as payments — or at least prohibiting them from trying to collect on them if they show insufficient funds. If casinos couldn’t collect on bounced checks, I imagine that casinos would stop accepting as many checks as a method of payment. But this might be a good thing. Taking the gambling profession out of the business of lending money to gamblers might mitigate some of the tragedy of problem gambling.

Posted 9:06 PM by Ian Ayres [link]

Neoliberal Penality in Action

Frank Pasquale

I recently listened to a chilling podcast on a book about methamphetamine use in a small town of 6,000 in Iowa. Timothy Egan's editorial describes the economic backdrop for rural meth abuse:

Journalist Nick Reding . . . spent nearly four years charting meth’s course in Oelwein, Iowa . . . There, the people who grow our food are agribusiness oligarchs, and the people who run our factories have cut their workers’ wages by two-thirds, dissolved the unions and shipped in illegals to work for a paycheck that would barely pay for dog food.

Meth is a symptom of this collapse, not a cause. . . . Reding says it is “the only example of a widely consumed illegal narcotic that might be called vocational, as opposed to recreational.” . . . [I]t’s a preferred stimulant for people working two jobs in low-wage purgatory.

Many have called for cognition-enhancing drugs to increase productivity in high status professions. We hear less about drug use to make low-wage, low-autonomy work bearable. But it's surely something we'll see more market demand for, as movies like Sleep Dealer suggest. According to Reding, the pharma industry also pushed hard against DEA proposals that would have made it harder to make meth.



Correlating the failure of US industrial policy with the need for increased policing due to meth abuse also helps vindicate Bernard Harcourt's theory of "neoliberal penality," as expressed by a blogger here:

The idea behind neoliberal penality is that as the norm against government intervention in the economy has increased, governmental energies have been channeled instead to an ever-increasing carceral sphere. Neoliberalism argues that the market is naturally ordered, and that government intrusion constitutes a distortion that generally should be avoided. By contrast, the penal arena is seen as an appropriate venue for government to flex its muscles. Consequently, the social forces which might press against increased penality are weakened, as crime and punishment are precisely the areas in which government is seen as having the greatest claim to authoritative legitimacy.

When work disappears, many of the natural impediments to addictions go with it. We should not be surprised if failure to invest in jobs programs leads to ever more spending on prisons, surveillance, and rehab. Thankfully, books like Reding's are helping us "connect the dots among America’s agribusinesses, drug companies and global trade and problems like unhealthy diets, the destruction of small farms and farming communities."

X-Posted: Concurring Opinions.

Posted 3:31 PM by Frank Pasquale [link]

Delayed Detention Report and the Big "Ifs"

Deborah Pearlstein

Cross-posted at Opinio Juris

Among the many stories out today about the Administration’s decision to postpone the final reports of its task forces on detention and interrogation policy, Isikoff’s in Newsweek and Gerstein’s in Politico seem to shed most light on current thinking. (I say that with the immediate caution that all of these reports about current thinking should be taken with a large grain of salt; media reports of the same background briefing by “senior administration officials” yesterday offer impressively varied accounts of what the thrust of the briefing actually was.)

UPDATE: The task force's interim report is here. A related protocol on how cases to be prosecuted will be handled is here. Thanks SCOTUSblog.

So what’s going on? Recall that President Obama issued a related set of executive orders on these issues just after taking office: one ordering the closure of Guantanamo in January 2010, another creating a task force to review all the cases of Guantanamo detainees to determine what should happen to them (prosecution, release, some other option), and two others creating separate additional task forces to figure out what to do about detention policy and interrogation policy more broadly. The detention and interrogation policy task forces had been due to issue their findings today. Last night, the administration announced it was extending the detention review by 6 months, and the interrogation review by 2 months.

Is the delay of itself cause for concern? I tend to think not much. The original executive orders contemplated that the task forces could seek extensions if they needed more time. The issues on the detention side especially are dauntingly complex. One might imagine that detention policy writ large should be informed at least in part by as detailed an account as possible of who turns out to be at Gitmo just now; and the separate task force reviewing the Gitmo cases is only about half finished, according to the administration. It would of course be better if the Gitmo case reviews and dispositions moved faster; the dozens of detainees now cleared for release have been waiting far too long already, and Congress’ current refusal to allow any into the United States has only made matters worse. (Indeed, the administration will need Congress’ help in lifting this restriction, and I’m guessing they think now’s not a good time to ask members for a non-health-care-related favor.) But as long as progress toward the closure of Gitmo continues – and there are various indications that it is (including the relatively rapid progress on the Hill so far of legislation to reform the Military Commissions Act) – it cannot be said that there is any change in the bottom line announced when Obama took office. The January 2010 closing deadline has always been a tough one to meet. But nothing that happened in the past 24 hours has made it any tougher.

So what’s of interest in the news reports? Among other things, two modestly encouraging signs. First is the suggestion by “officials” at the briefer who Gerstein has: “signal[ing] their intention to try to separate [the Guantanamo] issue from the broader issue of whether the U.S. should have a preventive detention law that would govern war-on-terror prisoners currently held in Afghanistan as well as those who may be picked up in the future.” I’ve written at length about why I think it critical to address these separate problems separately, but it amounts to not letting hard cases make bad law. We’ve tortured some of the Gitmo detainees, we denied them first-order Geneva Convention protections, we detained them for years without giving them any indication they have any rights (or hope of release), we lost evidence – the list of reasons why we have few options for some at Gitmo is long, and it is the result of actions by the previous administration. For this administration, the best one can hope is to not prolong the problem, and limit the extent to which any particular case at Gitmo can be used as precedent for detention law and policy going forward. It remains to be seen whether the “signalers” who embrace this approach will prevail over the “officials” Isikoff finds who seem to hold a different view. (As he reports: “[T]he task force has not been able to reach a consensus on key issues—among them whether indefinite detention will only apply to detainees currently at Guantánamo or whether new prisoners captured in counterterrorism operations around the world can be similarly held without trial.”)

Second are hints about where the administration would seek to find legal authority for any ongoing detentions. Both articles report that the administration is now contemplating relying for any continued detention authority on the existing 2001 Authorization for the Use of Military Force – the decision it in effect was forced to make much earlier in litigating the Gitmo habeas cases now pending in federal court, and a decision that would require no new legislation from a Congress whose track record on Gitmo-related legislation is far from stellar. It has been established since the Supreme Court’s 2004 decision in Hamdi that the AUMF contains at least some implicit detention authority for the conflict in Afghanistan. The AUMF is hardly a model of clarity, but for reasons I’ve previously discussed, this may well be the least worst of the set of only-bad options remaining for how to end the nightmare at Guantanamo Bay. If there are any detainees at Gitmo who cannot be lawfully prosecuted or should not be transferred or released – and that’s a sizeable “if” given the administration’s own review of the Gitmo detainees is not yet complete – and if any of them has been engaged in the ongoing armed conflict in and around Afghanistan, then there is a passable argument under the AUMF and international law that would permit their continued detention for a limited duration (subject, of course, to a host of procedural protections including the constitutional right to habeas corpus). If this is where the administration is headed – as opposed to seeking some broad new “preventive” detention authority from Congress as some have discussed – then I’m prepared to wait a few extra months to get there.



Posted 1:04 PM by Deborah Pearlstein [link]