Balkinization
an unanticipated consequence of
Jack M. Balkin
E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mdudziak at law.usc.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone jason.mazzone at brooklaw.edu
Linda McClain lmcclain at bu.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
This past Monday, a group of law professors and public interest organizations (listed below) filed briefs in Comcast v. FCC in the DC Circuit court—a case with potentially enormous implications for the future of the open Internet. The briefs are available here and here.
For those unfamiliar with the case, here’s a very brief summary: In 2007, Comcast got caught interfering with applications on the Internet (specifically, it blocked its users’ uploads using peer-to-peer applications like BitTorrent). After initially denying any blocking—and then after several months of consumer complaints, terrible press coverage, and an FCC investigation with several public hearings—Comcast finally came clean and promised to stop.
In 2008, the FCC concluded that Comcast’s actions were illegal, violating federal policy set out in the Communications Act, and ordered the company to demonstrate that it had (as promised) discontinued these practices. Comcast then sued in the DC Circuit, arguing that the FCC’s Order was both procedurally defective and beyond the FCC’s jurisdictional authority.
The stakes of this litigation are high. If the DC Circuit vacates the FCC’s Order, the court will give every network provider in the nation the green light to adopt and expand Comcast’s discriminatory practices—a development that would undermine the basic level playing field that we expect on the Internet.
The decision could also undermine the FCC’s recent proposal to adopt rules governing and ensuring network neutrality. Indeed, if Comcast is right that the FCC wrongly claimed jurisdiction over network discrimination, then the FCC would have to return to Congress—where a Senate filibuster would loom large over any attempt to pass new legislation.
The two briefs filed yesterday, then, address different aspects of the overall argument supporting the FCC’s position.
The first—the Amici Brief submitted by Professors Jack Balkin, Jim Chen, Larry Lessig, Barbara van Schewick, and Tim Wu—illustrated the harmful policy consequences of reversing the FCC’s Order. In short, Amici explained why you should care about what Comcast did.
One of Amici’s primary arguments was that Comcast’s actions would cause real economic harm by raising the costs of innovating on the Internet.* In doing so, Comcast’s actions would transform the open Internet into a more “closed” network, closer in spirit to today’s cable network where uses are completely controlled and pre-approved by the network provider.
For background, the reason that innovation is easy and inexpensive on the Internet is because everyone on the Internet has traditionally followed shared, non-secret practices and protocols. The creators of Twitter, for instance, didn’t have to call network providers like Comcast for permission to introduce their application. They simply conformed their application to transparent, standard protocols—and then trusted that their new application would work on the network. This ease of innovation allows an extremely diverse set of people (from college students to Fortune 500 companies) to experiment, which paves the way for new markets and economic growth.
Actions like secret blocking would undermine these basic foundations for innovation by raising costs in numerous ways—and we list only a few examples here. In the brave new world of blocking, application innovators would be forced to waste time and resources tailoring their application to multiple networks, and to multiple providers’ idiosyncratic blocking practices. Blocking would also make it harder for new developers to obtain start-up funding, as testimony in the FCC’s record demonstrated. And it would likely trigger a wasteful arms race, as users and application developers focus their efforts on evading network filters.
Comcast’s discriminatory practices—if more widely adopted—would also distort competition among new applications and content. Traditionally, user-driven market forces have determined the success of failure of new applications. Comcast’s practices, however, foreshadow a troubling trend in which network providers start picking the “winners and losers” on the Internet based on their own individual motives.
Unfortunately, market competition is insufficient to address these problems because network providers have incentives to discriminate against certain applications, and because the Internet access market is extremely uncompetitive.
In short, the stakes of reversing the Order are high—indeed, a reversal could undermine, at a fundamental level, the features of the Internet that have made it so valuable.
The second brief was filed by public interest groups Free Press, Consumers Union, Consumer Federation of America, Public Knowledge, and was joined by technology start-up Vuze, Inc. and a group of for-profits and non-profits in favor of network neutrality called the Open Internet Coalition (which includes companies such as Google and Skype, among others). Media Access Project acted as counsel to some of the groups.
This brief focused on the (admittedly less sexy) issues at the core of the appeal—whether the FCC had the jurisdiction to act against Comcast and whether the FCC followed appropriate procedures.
For jurisdiction, the brief emphasized that, under Chevron, the FCC receives deference for interpreting the Communications Act, including interpreting the scope of its jurisdiction under that Act. This deference provides some certainty to industry and consumers. The FCC, for instance, has spent the last several years claiming to have jurisdiction over network neutrality issues. If those conclusions are entitled to no judicial deference when challenged, industry and consumers will be subject to increased uncertainty over the legal regime and who will enforce it.
Regarding procedure, Comcast essentially argues that that the FCC improperly enforced an administrative policy statement as though it were a rule. Agencies, however, have the discretion to choose to make policy through either rules or adjudications—here, it chose adjudication.
In acting through adjudication, agencies usually try to give notice to parties through a policy statement. That is exactly what the FCC did here and it’s pretty basic administrative law. The FCC, in fact, gave Comcast far more than enough process. In these respects, the brief complemented the FCC brief (pdf), filed two weeks earlier, which soundly refuted many of Comcast’s arguments.
For those interested in the fuller versions of these arguments, we’d encourage you to check out the briefs, which provide a lot more detail.
*The innovation arguments relied extensively on Professor van Schewick’s work and forthcoming book. The other scholars have also written on innovation and the Internet, notably in Lessig’s book The Future of Ideas.
John Blevins is an Assistant Professor of Law at South Texas College of Law in Houston, and also writes at Obsidian Wings, where this is cross-posted. He was Counsel to Amici. Marvin Ammori is the an Assistant Professor of Law at the University of Nebraska-Lincoln where he teaches cyberlaw and telecommunications law. He was Free Press’s first lawyer and the architect of the consumer case brought against Comcast at the FCC, now on appeal.
The homeless population has increased during this extended economic recession, but the concern for their plight remains inadequate given their level of destitution. Currently there are few vocational training programs designed to help the homeless get off and stay off the streets. What's more, no federal grants directly fund adult job and skills training programs.
Foreclosures and increased unemployment have exacerbated an already grave problem. In the United States, on any given night roughly 3 million people are homeless; although, their exact number is difficult to get at because it varies daily. Throughout the country the demand for homeless services has increased during the recession. In the Richmond, Virginia area, the number of homeless has increased by 7.2 percent in the past year, and emergency shelters are encountering a 26 percent increase there. The homeless population in Dane County, Wisconsin increased by about 17 percent in 2007. The Supervisor for Marin County, California reports that the need for homeless services has grown by 26 percent in 2008. The Palm Beach County Florida homeless population over the last year rose by about 20 percent. A one night homeless study in South King County, Washington, conducted on January 30, 2009, showed a dramatic increase of 68 percent from the year before.
Among the people living in homelessness, 67.5% are single male and about 8.5% single female. Among those homeless people who are members of a household with children 65% are female and 35% male. Ethnically, 42% of the homeless are about black, 39% white, 13% Latino, 4% Native American, and 2% Asian. Roughly a quarter of the women who are homeless escaped from domestic violence.
These human tragedies continue to receive inadequate federal agency attention. Talk about helping the homeless usually centers on sheltering the population. That indeed is the immediate need, but it does not adequately get at the underlying problem. Many discussions of homelessness, including those on the Department of Health and Human Services's website, ignore how providing educational experiences for the homeless can positively affect their lives. The Department of Health and Human Services grant assistance programs emphasize the need for mental illness and addiction services.
This focus overlooks the critical need of education and training for the population. Moreover, it perpetuates the image of the homeless as being primarily a population with psychological disorders or drug problems. Mental illness and addiction disproportionately impacts that population, but there is a much larger segment of those who are chronically homeless because of the inadequacy of the minimum wage, high housing costs, family conflicts, and the inadequacy or lack of support networks.
As I have argued elsewhere, vocational training programs are essential for teaching marketable skills that will not only take people off the streets, but also keep them off of them. Currently, the U.S. Department of Housing and Urban Development does not even gather information about homeless educational levels through its Homeless Management Information System, which compiles congressionally mandated data collected at local shelter providers that receive federal funding.
The most recent collection of comprehensive educational data at the national level appears to be Martha Burt's study, Homelessness: Programs and the People They Serve, which twelve federal agencies funded under the auspices of the Interagency Council on the Homeless. While the information she and her team gathered is incredibly helpful, it is now over a decade old. These figures will obviously not reflect the previous two year increase in homelessness among children and families. However, it is probably still indicative of the chronically homeless population. In 1996, fifty-three percent of homeless people with families and thirty-seven percent of single homeless clients had not completed high school. In comparison, twenty-five percent of United States adults had less than a high school education. Approximately twenty-one percent of homeless clients completed high school or passed a high school equivalency examination (i.e. General Education Diploma or G.E.D.) and another twenty-seven percent obtained some education above high school level. Thirty percent of the adult population in the United States completed no more than high school or received a G.E.D., and about forty-five percent more attained some education beyond high school.
Homeless people's job opportunities and potential to permanently get off the streets would be significantly improved by a well designed vocational training program. While the program should be funded by HUD or the Department of Labor, local and state organizations can administer it through programs designed for the particular needs of the communities they serve. Vocational courses should aid homeless persons who (1) are unemployed or temporarily employed but not receiving enough pay to meet rental needs; (2) need training or retraining to learn marketable skills; and (3) meet program qualifications, which should include level of education and period of homelessness. To be most effective the programs should provide childcare during educational hours, room and board, books, and clothing. The programs can run for a set period of time, and each person who completes the course should be given job placement assistance.
The federal government's mandate to fund these programs is twofold. The most obvious source of authorization for funding homeless programs is the Spending Clause of the United States Constitution. However, the neutrality of the spending provision makes an alternative more attractive for this civil rights initiative. In her chapter to The Constitution in 2020, Robin West establishes an explanation in which the Equal Protection Clause is relevant to the protection of economics rights. Her central point is that the Fourteenth Amendment allows Congress to take positive steps for protecting the equal protection of socially beneficial law, not only equal protection from discriminatory law.
Extrapolating her approach to my vocational training proposal would imply that the right to have basic subsistence is connected to life and liberty. The federal government has an obligation under social contract theory to provide persons in economic destitution the educational tools to escape poverty. Even the most restrictive meaning of equality should include some basic subsistence level that is adequate for earning a salary sufficient enough to rent a room or apartment. Allowing presently homeless persons to use their skills and talent will increase American productivity and democratic participation, thereby augmenting the general welfare of society by helping its most needy members. A federally funded vocational training program for the homeless will protect basic rights and add to their ability to be productive members of society.
While the Obama Administration Decides What to Do About Afghanistan...
Brian Tamanaha
Let's remember what happened to the Soviet Army, which left Afghanistan in abject defeat after a decade of brutal fighting. Michael Scheuer, the former head of the CIA's Bin Laden Unit, recounts (in Imperial Hubris: Why the West is Losing the War on Terror (2004)) this exchange between a senior Russian official and CIA officials in the period leading up to our intial attack on the Taliban:
"With regret," the Russian said, "I have to say that you are going to get the hell kicked out of you." One of the Americans responded in words that will someday be found in a U.S. military study of its failed Afghan war. "We're going to kill them," the U.S. official asserted. "We're going to put their heads on sticks. We're going to rock their world."
President Bush time and again oozed this same "bring it on," tough guy mentality, badly underestimating our opposition and grossly overestimating our capacity.
Scheuer quotes this passage from a Soviet General Staff study that examined their failure in the war:
When the highest political leaders of the USSR sent its forces into war, they did not consider historic, religious, and national peculiarities of Afghanistan. After the entry these peculiarities proved the most important factors as they foreordained the long and very difficult nature of the armed conflict. Now it is completely clear that it was an impetuous decision to send Soviet forces into this land. It is now clear that the Afghans, whose history involves many centuries of warfare with various warring groups, could not see these armed strangers as anything but armed invaders. And since these strangers were not Muslims, a religious element was added to the national enmity. Both of these factors were enough to trigger a large mass resistance among the people, which various warriors throughout history have been unable to overcome and which the Soviet forces met when they arrived in Afghanistan.
According to news reports, our military commanders (or at least some of them) and Republicans in Congress are pressing for a substantial increase in the number of troops in Afghanistan. Let us hope, for the sake of our troops and the Afghan people, this proposal is not the product of the macho thinking that has informed our recent military misadventures.
History tells us that this war will not be "won" in any conventional sense of the term. As Scheuer puts it, "Unless U.S.-led forces are massively increased and are prepared to kill liberally and remain in Afghanistan permanently, the current Afghan regime cannot survive." We don't have the stomach for that, and the resistance knows it. No matter how benevolently we might see ourselves, we are seen as invaders hostile to Islam and the resistance will not rest until we leave. Posted
1:43 PM
by Brian Tamanaha [link]
(200) comments
Tuesday, October 06, 2009
The Sterilization of Public Protest
Brian Tamanaha
In the period leading up to the Iraq War I walked in two anti-war protests, one in D.C. and the second in New York, both attended by over a hundred thousand protesters. It was the least I could do, and the most I was willing to do, to express my opposition to what I thought was a senseless war. (We know how that worked out.)
I had never before participated in any public protest; nothing moved me to do so until then. I thought it would be exciting, invigorating, a genuine democratic moment—people speaking out to government. It didn’t turn out like that, however, at least not for me.
These events felt pathetic, impotent, slightly ridiculous. What got me down wasn’t the notable presence of hippies from the sixties (wearing the same clothes, now retro hip), people hawking anti-war goods, conspiracy kooks, and the counter-protesters waving American flags against the anti-war folks (“America—Love it or Leave it!”). That was all interesting.
What got me down was that the protests felt like empty rituals, theatre acted out for ourselves. Worse that that, perversely, it felt almost as if we protesters were complicit in legitimating the coming war itself, precisely because our actions made absolutely no difference (as everyone knew at the time). These events allowed the United States to exhibit its benevolence, to demonstrate that this is an open society where the people can express their opposition to the government (never mind that no one in power is listening).
Most public protests nowadays resemble nothing so much as parades—entertaining spectacles for the participants and onlookers. Licensing requirements, location restrictions, police escorts, temporary barriers (the standard accoutrements of public protest), controls imposed in the name of national security and public order, have drained the “protest” out of protests (although current events in Pittsburgh are perhaps pushing beyond this).
A terrific study of the sterilization of public protest is Timothy Zick’s recent book, Speech Out of Doors, reviewed here. It is a sobering account of what it's like to be treated like sheep (without recognizing it?).
The October Term 2009: The Supreme Court and Juveniles
Bernard E. Harcourt
The Supreme Court opens its term today and on its docket is a truly disturbing case of a 13-year-old boy who was sentenced to life imprisonment without parole—that’s right, without parole—in the state of Florida for a non-homicide offense. I’ve stated my opinion in the Los Angeles Times this morning, so I won’t rehash it all here. But … The constitutional issue is relatively simple, I should think. One of the young boys (now a man) before the Court is the only person in the entire United States who was sentenced to life imprisonment without parole for a non-homicide offense committed when he was only 13 years old. That was more than 15 years ago, and the young man, who is severely mentally disabled and now suffers from a serious medical condition that requires that he use a wheelchair, is still serving LWOP. The fact that no other state in this country and no other country in the world sentences 13-year-old children to life imprisonment without parole should tell us something about the right outcome in this case.
The policy issue strikes me as even simpler. A sentence of life imprisonment without parole can only have the worst possible effect on the kind of treatment and education that the young offender is going to receive in prison. And it is surely going to have irremediable consequences on the mental and psychological outlook of the condemned youth. We, as a society, must be able to come up with a better way to address the problems of a 13-year-older—especially someone who has not committed a homicide and is suffering from severe mental disabilities—than by sentencing him or her to life imprisonment without the possibility of parole.
Principles for the Homestretch in Health Reform Legislation
Frank Pasquale
House and Senate leaders will soon have to reconcile several different versions of health reform bills. The bills are complex, but some simple principles should guide the process of integrating them into a final product. For any particular proposal, we need to ask: Does it . . .
1) Increase productive competition in health care? Everyone talks about "increasing competition" among insurers and providers, but there are many ways to compete. Hospitals and doctors can game the reimbursement system. Insurers may not directly discriminate against the sick, but can find other ways to keep high-risk patients out of their plans, as even the most market-oriented health policy experts realize:
[T]o avoid patients with costly, complicated medical conditions, health plans could include in their networks relatively few doctors who specialize in treating those conditions, said Mark V. Pauly, professor of health-care management at the University of Pennsylvania's Wharton School.
Both the Netherlands and Switzerland have already experienced problems in this area, even though the Netherlands has implemented risk-adjustment methods (which attempt to deter such "cherrypicking" and "lemondropping") far more serious than anything proposed in current bills in the US. As Karen Pollitz has repeatedly argued, we're going to need a much greater investment in insurance regulation to make any reform bill work.
2) Make it easier for uninsured or underinsured individuals to buy coverage? Many of the proposals for allocating and awarding subsidies for coverage sound exceedingly complex. We're hearing about serious limitations on access to exchanges, subexchanges, burdensome "free rider" provisions, etc. Any particular provision may sound good in the abstract, but taken as a whole they could become an obstacle course that makes obtaining insurance coverage a miserable and exasperating experience for those supposedly aided by reform. During the second Bush administration, hundreds of thousands of children eligible for subsidized health insurance were not enrolled because states failed to make enrollment convenient enough for time- and cash-strapped parents. As Liebman and Zeckhauser remind us, "we must design systems for mere mortals, not the people who inhabit the models of traditional economists." What seems easy to one of DC's privileged elite can be very hard for an overworked mom or minimum wage-earning service worker.
I believe that the main reason a solid 2/3 to 3/4 of the country supports a public option is because it is a straightforward, transparent way to provide a backstop of health insurance for everyone. If Congress both rejects a public option and makes subsidies for private insurance as complex as the tax code, health reform risks becoming a model case of government failure. Last week's negative votes on Rockefeller's strong and Schumer's weak public options could easily become a "you broke it, you bought it" moment for centrist Democrats and Republicans on the Senate Finance Committee.
3) Fairly distribute the burdens of reforming the health care system? This is the tax and finance question, and it promises to generate some epic battles on Capitol Hill. However the Senate Finance proposal ultimately evolves, it will be in tension with a House of Representatives that sees progressive taxation as a foundation for financing reform. The Baucus proposal to tax "high end"/Cadillac/"gold-plated" health plans may seem progressive, but it promises to gradually engulf even normal plans. While David Leonhardt offers some good economic arguments for such a tax, policymakers should be guided by Leonhardt's observations on the propriety of taxing those at the very top of the income scale, who have disproportionately benefited from economic trends and tax cuts of the past decade.
4) Provide incentives for long-term cost-saving and preventive medicine? Comparative effectiveness research is a crucial tool for focusing pharmaceutical research on drugs that save lives. We have a shortage of primary care doctors vis a vis specialists. Reimbursement systems are too easy to game. Insurance markets are concentrated and need more competition and transparency. Any bill that ignores these problems (or fails to empower HHS or another agency to address them) can't lead to truly sustainable universal coverage.
The health reform fight has been bruising, disappointing, and frustrating for many who care about health policy. Many unwise assumptions are already baked into leading bills. In the Senate, ostensibly Democratic lawmakers are promoting what are essentially Republican ideas and granting enormous subsidies to industries that may well betray them at the next electoral cycle. Nevertheless, there remain many opportunities for improving the final product at the beginning of the end of the legislative process.
I feel as though I should start by apologizing from my mini-blogging hiatus. Nothing like prepping a new course to distract one from the trials of law outside the classroom.
Thanks to my Opinio Juris colleagues Julian Ku and Ken Anderson, as well as Ben Wittes, among others, there’s ample reason for re-engaging. As Julian and Ken have noted with approval, Wittes wrote in the Post this week to attack the Obama Administration’s apparent decision not to seek new “preventive” detention legislation as it goes about the necessary business of closing Guantanamo. The essence of Wittes’ critique is the thesis he’s pursued in more than one book over the past few years: If we’re going to be in the business of counterterrorism detention (as surely we should be), far better to have the contours of those rules (who may be detained, and pursuant to what set of procedures) set forth in clear legislation, rather than settled piecemeal by the courts. Not to do so at this stage, according to Ben, amounts a presidential endorsement of the views of Dick Cheney.
Here’s why I continue to think that Ben is wrong, that the President is right, and that the actual Dick Cheney approach just suffered another blow.
(1) Ben wants new legislation for two reasons. The first reason is because he thinks the United States needs new detention authority to be successful in combating terrorism beyond that already afforded by the existing criminal justice system and the existing laws of war. As far as I can tell, the Administration hasn’t actually come to closure on a decision about this question with respect to its long-term counterterrorism planning. In part because there is some disagreement on the question within the bureaucracy, in part because it is not necessary to resolve this longer term question in order to address the nearer term goal of closing Guantanamo (more on that next), my impression is the Administration has elected to continue discussing the matter, or at least leave off decision for another day. Whatever the reason, it’s clearly good news. For reasons former federal prosecutors and many others have explained in deep detail (start here), the criminal justice system is an incredibly powerful tool for dealing with a broad swath of cases (far broader than preventive detention advocates generally credit), and flexible enough to accommodate the special procedural demands of terrorism trials. At the same time, the United States may still detain individuals outside this system, provided it is within the limits of the established international law of armed conflict (a body of law the Supreme Court recognized had been implicated in Afghanistan back in 2004). We may disagree about how broad the category of individuals covered by this latter law, but there is no doubt it provides further scope for authorized detention. The case most often made for why such authorities are not enough (such that new legislation is required) are based on examples drawn from Guantanamo Bay and other Bush Administration misadventures. That remains the habit today, and I suspect will as long as Guantanamo remains. These cases, as I’ve often noted, are generally bad examples from which to draw broad policy conclusions because potential outcomes at this point are grossly limited by decisions the past administration made (to torture, to not advise detainees of any rights, etc.) that, had the approach been different, would have left available existing lawful options that are now foreclosed. Particularly given the strategic security costs most security experts recognize are associated with any broad new detention authority in counterterrorism, the case has simply not been made that more detention authority will yield any benefits worth the cost.
(2) The second reason Ben wants new legislation is because he doesn’t think there is enough clear law on the books to ensure the fair disposition of the remaining detainee cases at Guantanamo Bay. Were we still in 2002, and despite Congress’ embarrassing recent displays of demagoguery on the issue of where Gitmo detainees may be held pending trial, I might well agree with him. The statute on which U.S. detention authority to detain those at Gitmo has now rested for 8 years (the AUMF) doesn’t mention the word “detention,” much less who may be detained, and makes no clear provision for the procedural conditions under which such detention may be carried out. It is not, however, 2002. Today, that bare statute as applied to the Gitmo detainees has been elaborated under law in multiple ways. First, since the Supreme Court’s Boumediene decision in 2008, it has been clear that all those held at Guantanamo Bay have a constitutional right to seek a writ of habeas corpus to review their detention. Ben may think the particular procedures of habeas hearings (rules of evidence, etc.) aren’t well enough settled to leave to the courts to flesh out. But the courts have been in the business of shaping procedural rules and exceptions under the Federal Rules of Civil Procedure and the like for some time now. In any case, the courts have already decided some 38 habeas petitions from Gitmo detainees without congressional guidance. Procedural instruction might have been helpful. But it is hard not to view the window on useful legislative contributions to this particular set of details, at least for the Gitmo cases, as passed. Second, since the Supreme Court’s Hamdi decision in 2004, the AUMF must be read to authorize at a minimum the detention of “an individual who … was part of or supporting forces hostile to the United States or coalition partners in Afghanistan and who engaged in an armed conflict against the United States there.” To the extent there remains disagreement about the scope of the definition beyond that (disagreements the trial courts in the habeas cases have now already resolved), there is also – Third, the guidance from the Supreme Court, embraced by the Administration, that the interpretation AUMF is to be informed by the international law of armed conflict, a longstanding body of law that brings with it its own set of modestly detailed, but still clarifying rules. In the face of all this, there is now a reasonable case to be made that whatever due process deficits existed with respect to the Guantanamo detainees in the AUMF standing alone have been substantially cured by subsequent developments (all of which were forced upon the last administration despite Dick Cheney’s best efforts). Ben may not like the path the country took to arriving at the rules as they now stand. Neither do I. But rules there are nonetheless.
(3) Which brings us to the most troubling of Ben’s suggestions – that somehow in employing this authority President Obama is channeling Dick Cheney (or perhaps more specifically David Addington and John Yoo). So let’s just recall what their position on Gitmo detention actually was. First, the Bush Administration argued that the President could detain anyone as a matter of inherent authority under Article II of the Constitution. The Obama Administration rejected that position from the outset, and has relied squarely for its detention authority on congressional delegation. What’s the difference? Among other things (including even modest respect for the formal separation of powers), the acknowledgement that there are limits under law to the President’s power to detain. Second, the Bush Administration argued that the independent courts had no authority – none – to review the legality of the detentions at Guantanamo Bay. The Supreme Court – not once but effectively three times – rejected that view. One must credit the conservative-controlled Court and not the Obama Administration for that change. But there is no sense in which the review process available now at Guantanamo is related to the views of Dick Cheney. Third, the Bush Administration rejected the notion that international law, including the Geneva Conventions, could constrain its authority in any way. It invoked the Conventions when it thought them useful to enlarge executive authority. It otherwise elected to apply them only when it thought “consistent” with military “necessity.” Cheney did not believe in international law as law. At least so far, the Obama Administration does.
(4) So what is the same between the Cheney view and the Obama view on Gitmo detention? It is at most the modest notion that the President may detain some set of individuals who are actively engaged in armed conflict against the United States. Exactly which set will no doubt be litigated more at some point later in the Guantanamo cases, depending on which if any detainees remain. So will exactly what “armed conflict” we’re talking about (Afghanistan or something more). (So, it must be emphasized, would those questions be litigated at length should Congress ever pass any new legislation on the questions, no matter how clear it tries to be.) But the basic idea – that there can be such a thing as, for example, a lawful prisoner-of-war – is one no one seriously disputes. That commonality doesn’t make the President, or human rights groups for that matter, the legal (or moral) equivalent of Dick Cheney. It makes them students of the law.
Why Chicago lost the Olympics: Chickens coming home to roost?
Sandy Levinson
I note the following from the Times' early posting on the IOC's first-round rejection of Chicago for the 2016 Olympics:
In the official question-and-answer session following the Chicago presentation, Syed Shahid Ali, an I.O.C. member from Pakistan, asked the toughest question. He wondered how smooth it would be for foreigners to enter the United States for the Games because doing so can sometimes, he said, be “a rather harrowing experience.” ...
“One of the legacies I want to see is a reminder that America at its best is open to the world,” [President Obama responded,] before adding that the White House and State Department would make sure that all visitors would feel welcome.
No doubt the President was sincere, but it's been quite a while since America has been "at its best," thanks to the Bush Administration. Why would anyone believe that the United States will indeed "make sure that all visitors would feel welcome," given our track record over the past eight years with regard to burdens placed on anyone who seeks a visa, the possibility of inquisitions (and being turned back) even upon arrival, vulnerability to "terrorist lists" that have a proven degree of unreliability, etc.? This is really a stunning rebuke of the United States, given the willingness of both Obamas to put themselves on the line. He's going to have to generate far more "change everyone can believe in" before the US will be chosen as a venue for an event like the Olympics (and properly so). And how confident can we be that he will be willing to take on the Glenn Becks, Rush Limbaughs, and other Republican demagogues (many of them in the House and the Senate) to reduce the burdens placed on foreign visitors?
Changing the Courts and Democratic Constitutionalism
JB
Today marks the beginning of our Constitution in 2020 Conference here at Yale Law School, where a group of legal scholars and activists will talk about the Constitution's future.
On the subject of how to change constitutional law and practice, my review of James MacGregor Burns' Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court now is up at the American Prospect. The nice folks over at the American Prospect added the title "What to do about the Court?" and the subtitle, "Not much." That's very amusing, but it's not my view.
There are lots of things for people to do if they think that courts are not responsive to their views about the Constitution. People should fight for the appointment of judges that they believe will interpret the Constitution correctly, and they should push for their views in politics and in civil society. People should protest bad decisions and argue repeatedly for their constitutional vision. And they should devote time and resources to litigation campaigns that are coordinated with efforts in legislatures in administrative agencies, and in political and social life generally. If people work for good judges and persuade their fellow Americans about what the Constitution means, the courts will eventually come around. That is not doing nothing. That is democratic constitutionalism.
History teaches us that the people who influence courts in the long run are those who work hard in politics, in social movements, and in civil society generally. If people had done "not much" in response to court decisions they did not like, we would never have had the civil rights revolution or the women's movement.
Burns argues instead that if the President doesn't get what he wants from the Supreme Court he should just stop obeying judicial decisions and refuse to acknowledge the power of courts to engage in judicial review. As I point out in the review, this is not a strategy that any President in his right mind would adopt, because Presidents need courts to further and legitimate their agendas. The power to legitimate is the flip side of the power to strike things down. President Frankin Roosevelt, for example, wanted courts to work for him to legitimate New Deal programs-- that was the whole point of the court packing plan-- and after justices started retiring in 1937, FDR replaced them with New Dealers. Then, not surprisingly, he stopped complaining so much about the courts.
Perhaps the greatest irony in Burns' book is that he advocates that Presidents deliberately disobey courts that try to rein them in only a year after the end of the Bush Administration. One shudders at what Dick Cheney would have done with Burns' advice. Indeed, we are particularly fortunate that despite taking aggressive and often unreasonable positions about the Constitution, the Bush Administration obeyed court decisions that pushed back at its worst policies; otherwise it could have done even more harm to the rule of law and to constitutional government.
My coauthor (and spouse) Jennifer Brown just finished serving as foreperson on a civil jury in Connecticut state court on a two-week trial.
Maddeningly, she was scrupulous in declining to tell me anything about the proceedings until the verdict was in and the judge gave the go-ahead (think twice before you marry someone who teaches legal ethics). The second week of the trial imposed uncompensated costs on the family (especially on Jennifer, who had to cancel a trip to deliver a paper).
Nonetheless, even now she remains skeptical of my suggestion for a way that she could have promoted efficiency and settlement.
I’ve suggested that she could have sent the judge a note at the beginning of the trial offering to give the parties $1,000 if they should settle before the end of the first week. The note would also make clear that failure to settle would not impact the way she would eventually decide the case.
Should a juror be dismissed (or disciplined!) for making such an offer?
I hope not. The offered bribe promotes efficiency because it helps the litigants internalize what would otherwise be external costs. The other jurors who have uncompensated costs should be happy. Other litigants who want their day in court should be happy as court personnel are freed to handle other, waiting matters.
Moreover, the contribution should be welcomed by the very litigants in the dispute at hand who have an extra $1,000 to play with if they can come to terms. There is little reason to think that it would undermine the integrity of the trial. For one thing, the bribing juror would make clear (and be sincere) that she would remain impartial; for another, the bribing juror wouldn’t know who to blame for a failure to settle. (Well, this isn’t exactly true. If the plaintiff asked for $3,000 at trial and Jennifer offered $1,000, she could be fairly confident that the defendant was offering to pay less than $2,000. She might penalize the defendant if she thought that was an unreasonably low offer.)
A bigger concern is that in the long run, creating a precedent of juror contributions might lead to distortions in decisions to file suit and to impanel jurors. We could imagine sham litigation where plaintiffs and defendants went to trial with hopes of shaking down the jurors — a kind of de facto extortion. Or litigants might prefer to strike poorer jurors from the panel in hopes of keeping the richest jurors as potential contributors.
The extortion concern might explain a lot of our reluctance to offer bribes. But there are circumstances where a one-off bribe can work wonders. When my kids were little, I remember bribing a college student on an Amtrak train to move to another open seat so that my family could sit together.
In fact, I wonder why Shaq and a few other NBA players haven’t offered to make modest contributions to help resolve the current referee dispute. Shaq has publicly supported the refs in their negotiation with the league. He worries that replacement refs will increase his probability of injury. He comes by his concern naturally since he was injured during the last ref lockout in 1995 (“O’Neal needed surgery for a broken thumb after being fouled by Matt Geiger in a preseason game.”) In some ways, Shaq may just be trying to curry favor. After all, sooner or later the unionized refs will be back officiating NBA games, and they may (consciously or unconsciously) favor the players who had their back during these negotiations. But whatever the mixture of self-interest and altruism, Shaq might go further by offering, say, $100,000 if the dispute is resolved before the regular season.
It’s hard to know for sure, but some public reports suggest that the two sides may be less than a million dollars apart. This would be a paltry sum for a few concerned players to kick in — and Shaq is unlikely to be around to contribute to future labor disputes.
One of the big reasons that offering a bribe can be valuable is that I’ve found that the offer can be effective even if you don’t ever pay. Just your willingness to make a real offer credibly signals your value (because it might be accepted).
For example, a couple of years ago I had to fly into Chicago at the last minute for a wedding that was going to take place on a cruise ship in the middle of Lake Michigan. My flight was late and I had very little time to take a cab from O’Hare Airport to the boat dock. But when I got to the cab stand at the airport, there were 30 or 40 people waiting for a cab. I walked to the front and offered any one of the first five people something like $100 if they would let me take their place in line and help me make my wedding boat. My thought was if I paid for a single person’s place (and that person moved to the back of the line), I wouldn’t be holding anyone else up in the line.
Two or three guys at the front of the line — as well as the O’Hare employee managing the line — started asking me about the wedding (Was I in the wedding party? How did I know the groom?) to get a better sense of my bona fides. In the end, they offered to let me cut to the front without paying. This was not my preferred option because this self-appointed group was imposing costs on a bunch of other people in the back of the line who really didn’t have an opportunity to see or hear what was going on. I would have preferred to pay a Benjamin. But sadly, with the blessing of the O’Hare line manager, I was whisked on to the next waiting cab without paying for the privilege.
“It has always been easier, it always will be easier, to think of someone as a noncitizen than to decide he is a nonperson.” – Alexander Bickel
“We asked for workers and people came.” –Max Frisch
“Under no circumstances can an American citizen be tried in a military commission.” –Senator Lindsay Graham
There is something humiliating about having to argue that your client is a person. And yet, for those of us who represent noncitizens, we are forced to argue personhood all the time. This is true of lawyers representing prisoners at Guantánamo, where dehumanization was both a means and an end, but it is also true in the representation of immigrants in the United States, where the definitional exclusion from citizenship forces us into the realm of personhood. In both instances, even as we argue personhood, we do so in citizenship’s shadow. This is because instead of being independent sources of rights, citizenship and personhood are tethered. As we look toward 2020, we need to consider what citizenship will mean then. I want to suggest that neither constitutional citizenship, as Bruce Ackerman argues for in his chapter and elsewhere, nor personhood, advocated in this volume by Rachel Moran and David Cole, is by itself sufficient to address the inequalities now afflicting noncitizens in the United States. Instead, we might think of personhood as a strategy that, in both success and defeat, leads to a newly imagined American citizenship.
It is a commonplace to say that in this age of globalization, traditional notions of citizenship are under strain, as the growth of transnational and supranational institutions, phenomena, and practices, has spawned new forms of citizenship and new citizenship practices. But in the U.S. we have seen a reassertion of citizenship, especially after the September 11th attacks, but even before. Curiously, a citizenship move is now being made from both the right and the left: from the right, a post-9/11 nationalist, citizenship exceptionalism, and from the left, a call to a reinvigorated constitutional citizenship as a touchstone for progressive politics. In response to both of these moves, yet another segment of the left has urged the embrace of constitutional personhood as a more inclusive approach than the citizenship turn.
Citizenship on the Right
The citizenship move from the right should not be underestimated. The national security framework of post-9/11 America provided a ready response to globalization’s pressures on state sovereignty, and a rationale for a resurgent citizenship. This is clearest in the context of Guantánamo, an exercise in extraordinary state violence that was, and continues to be, reserved for noncitizens. The political commitment to a two-tiered system of rights, with citizenship as the dividing line, carried over from the Executive (whose Presidential Military Order purported to authorize the detention of “enemy combatants”) to the Congress, which, in its passage of the Military Commissions Act of 2006, attempted to strip habeas rights of only noncitizen “enemy combatants,” and to authorize a military commission system reserved only for noncitizens. Although the Supreme Court rejected the habeas-stripping provisions as unconstitutional in Boumediene v. Bush, the military commissions continue (albeit in suspended form) for noncitizens alone, while citizens are unquestionably entitled to the full panoply of rights and protections of a regular trial in federal court.
We know that law is broadcast and not telegraphed. As such, the doctrinal citizen/noncitizen divide at Guantánamo has not been limited to the island camps, but instead bleeds into political and cultural understandings in the territorial United States, creating or reinforcing vulnerabilities among immigrant communities here. This is especially true among Arab, Muslim, and South Asian communities. The dehumanization of Arabs, Muslims, and South Asians at Guantánamo necessarily has a spillover effect on the personhood status of these communities here.
Citizenship on the Left
It is in this political context that the citizenship vs. personhood debate on the left must be considered. Guantánamo aside, we know that, as a historical matter, citizenship has been a tool of exclusion as often as a conceptual source of rights; black subordination, racial regulation of other non-white populations, and the exclusion of women have all been achieved in part through citizenship practices, as have colonial rule and expropriation. And yet, this dark history notwithstanding, citizenship retains a shiny appeal as an instrument of emancipation. As a matter of rhetoric, but also in practice, the promise of citizenship, or more accurately, of full citizenship, features centrally in the liberal democratic project.
I am skeptical of the citizenship turn because of its inherent limitations as applied to noncitizens. As Linda Bosniak has shown, the paradox of citizenship is not merely that, as demonstrated by history, it lacks political valance. Rather, citizenship is constitutively ambivalent, or perhaps more accurately, bivalent. By its very nature, citizenship offers the promise of inclusion through the practice of exclusion, the composition of a coherent “us” through the rebuffing (or expelling) of the “them.” Given this structural contradiction, we must question whether the emancipatory potential of citizenship isn’t forever delimited by its exclusionary edge.
And yet, as a practical matter, arguing the personhood of immigrants often implicates citizenship. This brings me back to the work of immigrants’ rights advocates. Precisely because citizenship is unavailable to our clients, in much of our work we are trying to assert personhood-based rights. When we bring cases on behalf of immigrant workers who have been cheated out of their wages, we often argue explicitly that their citizenship status is irrelevant, which, implicitly, is an argument that their entitlement to wage protections derives from their personhood. When we seek to have evidence excluded in immigration court because of Fourth Amendment violations by immigration agents, we are asserting that immigrants are part of “the people”—the polity. When we bring habeas corpus suits to gain the release of immigrants from prolonged detention, or when we argue that due process requires the appointment of counsel for a mentally ill respondent in deportation proceedings, we are, once more, arguing personhood.
Sadly, in the contemporary moment, and throughout much of American history, asserting the personhood of immigrants has been both a legal and a factual argument. We claim the legal protection of personhood, but must demonstrate the factual reality of personhood because of a pervasive culture of dehumanization of immigrants. To put it more bluntly, we argue that our clients are people, because so much of our politics and culture argues that they are not. Guantánamo is the extreme example here, but there are innumerable instances of the dehumanization of Latinos for decades.
Personhood’s Voice, Citizenship’s Language
As a matter of advocacy, then, many immigrants’ rights advocates feel compelled to perform their clients’ personhood in order to secure the rights that come with it. Often times, this is done in the language of citizenship, even though as a doctrinal matter, citizenship is irrelevant. Thus, the narrative frame of the case emphasizes that the clients are hard-working, involved in civic organizations in their community, go to church, pay their taxes, provide financial and social support to family and friends, and have no criminal record. By this account, they are model citizens in every way but for status citizenship. Indeed, not only are the clients made out to conform to social citizenship norms, they over-conform, performing a kind of super-citizenship that is neither expected nor typical of the status citizen.
On one level, the lawyering choices I am describing merely reflect the common practice of constructing sympathetic clients. But when it comes to representing noncitizens, the construction of the sympathetic client necessarily sounds in citizenship. Indeed, the claim to rights is, as Martha Minow has argued, an insistence upon shared membership in a common community. When that claim to membership is made by a noncitizen, it necessarily echoes citizenship as the paradigm of membership in the nation.
This suggests a hidden work that status citizenship may do in the exercise of rights. For most status citizens, citizenship certifies the rights-claimant as worthy of her rights. This is Arendt’s conception of citizenship as the right to have rights: it is the political right to have legal rights. Status citizenship is an unimpeachable, dispositive document of political legitimacy, and therefore, of rights-bearing. It has a talismanic quality, ending before it can begin any question as to whether the subject is rights-bearing.To assert status citizenship is to establish irrebuttably one’s rights entitlement. This is a kind of work that, in the current moment, personhood simply cannot do.
The performative claim is not that the immigrant has rights based on personhood, but on an idealized version of the life that the rights certified by status citizenship are intended to enable. The lawyering approach here bears a similarity to the framework of “earned citizenship” that has come to prevail in the most recent efforts at comprehensive immigration reform. In both cases, the argument is that the noncitizen is entitled not just to rights, but the free exercise of rights, because of the behavioral similarity they bear to status citizens; by this argument, the immigrant is sufficiently citizen-like so as to justify closing the rights gap between them. Thus, even when asserting seemingly personhood-based rights, status citizenship remains the point the reference. The exercise of rights by immigrants, then, is still tethered to status citizenship, as the narrative prerequisite for rights resides in a projection of the life of a rights-bearing status citizen.
If, in order to prevail in the exercise of a putatively personhood-based right, one must mimic (and simultaneously, outperform) the imagined life of the status citizen, then we cannot fairly say that personhood exists as a source of rights independent of citizenship. The absence of noncitizens’ status citizenship haunts the client’s personhood claims, such that personhood is, paradoxically, read through the lens of citizenship. Citizenship becomes the hallmark of personhood, the constructed defining the natural, and robbing personhood of its universalist claims. The dilemma, then, is for practitioner and theoretician alike, to conjure a notion of personhood-based rights that is meaningful in a world in which status citizenship, and in particular, its exclusionary edge, remains deeply salient.
Transforming Citizenship
Rather than force a reconciliation of these structurally irreconcilable features of citizenship, perhaps we should welcome their contradictions. While the lawyering burden of performing a client’s social citizenship may undermine the integrity of personhood as a source of rights, it also undermines status citizenship by calling the question of why someone so citizen-like may enjoy only some and not all of the rights of the status citizen. Perhaps, then, it is not that a continued or expanded development of personhood-based rights will overcome the exclusionary boundaries of status citizenship, but instead will so profoundly reinforce those boundaries, and bring them into such sharp relief, as to make them untenable. The logic of citizenship’s exclusionary edge would be temporarily disproved, thus necessitating a renegotiation of boundaries.
This is one way of understanding the language of “earned citizenship” that has prevailed among many advocates of comprehensive immigration reform. By performing the noncitizen’s citizen-like qualities—demonstrating continuity of past employment, lack of serious criminal record, satisfaction of tax obligations, English-language proficiency and civics knowledge —advocates seek to make the citizen/noncitizen divide unsustainable, for a brief historical moment, for a finite population. Robust personhood claims, then, culminate in the simultaneous enlargement of citizenship’s emancipatory realm and reassertion of its exclusionary edges. The transformation is thus only partial, and status citizenship retains its upper hand. But partial transformation is a good deal more than we have today, and would be a welcome accomplishment by the year 2020. Posted
10:33 AM
by Guest Blogger [link]
Mobilizing and constitutional change in the unitary executive's shadow
Ideas do not move our constitutional norms, people do. This much is a lesson of recent scholarship by Bruce Ackerman, Reva Siegel, and Robert Post.New constitutional entitlements like the right to bear arms baptized in 2008, on this account, crest on waves of popular mobilization.Architectonic change to fundamental constitutional structures, familiar from Reconstruction and the New Deal, necessitates multiple political sallies by majorities engorged with populist fire.
In predicting the shape of constitutionalism to come, therefore, it may be useful to search for emergent social movements with the potential to make constitutional change. Complementing Robin West’s focus on legislated constitutionalism, resisting Richard Ford’s skepticism about abstract constitutionalism, we might ask: What social movement, so far unrealized, has a potential to pressure entrenched constitutional norms by 2020?
For some years now, my (non-academic) work has focused on national security issues.Security-related changes to immigration, criminal law, and charitable regulation have, in my view, disproportionately hit Muslim Americans. But in New York and LA, traditionally quiescent communities have resisted discriminatory or burdensome policies.In line with what Judith Resnik terms “transnational localism,” subnational (here, civil society) actors challenged governmental monopolies on the definition and operationalizing of “security” (a more elusive concept than generally recognized).
Muslim America is a potent, if latent, social force for change.Cruise the streets of Jackson Heights, Queens, or Divan Avenue, Chicago.You’ll see an ethnically diverse, striving, and (in the Pew survey’s words) “highly assimilated” community.Spend some time in the tea lounges and masjids, you’ll hear ample discontent.In one mosque near my former Brooklyn home, congregants learned that three (!) informants routinely attended prayer services. Equally importantly, you’ll hear vociferous concern about the shutdown of Muslim charities under IEEPA, which has encumbered religious obligations of alms (zakat).One recent decision illustrates how IEEPA both curtails core expressions of religious identity and hinders legal representation to challenge that curtailment.
Muslim Americans, in consequence, have much to gain from challenging the assumption that it is the federal government alone that speaks for us and monopolizes policy decisions when it comes to national security and related foreign policy.Just as the “sole organ” doctrine in foreign affairs and its cognates limits states and localities, as Professor Resnik explains, so too it (selectively) constrains certain migrant communities who still struggle for voice on the national stage.
Fashioned in then-Senator George Sutherland’s idiosyncratic tract The Internal and External Powers of the National Government, dragooned into law by Justice Sutherland in Curtiss-Wright, the “sole organ” doctrine licenses an executive branch monopoly on foreign affairs.Despite early able critique by David Levitan in Yale Law Journal, the doctrine abides, sustained by political utility as much as originalist fidelity or descriptive acuity.
Professor Koh argues that the “sole organ” doctrine has taken a drubbing, citing recent Supreme Court rulings.But I am not so sure.For one thing, even if the Supreme Court is eager for Congress to reassert its prerogatives, as Justice Breyer’s Hamdan v. Rumsfeldconcurrence illustrates, it is a different question whether Congress will pick up the slack.Despite intermittent evidence that Congress feels voters pressure about military over-exposure in Afghanistan, little suggests legislators sense pressure to rein in the presidency along any other security or foreign-policy metric.
More than another pressure groups, Muslim Americans in my view are well-positioned to challenge the executive branch’s presumed monopoly on foreign affairs wisdom.Not only do they have much to gain in civil liberties as, they have much unique to contribute.As I elaborate below, Muslim American mobilization aimed to establish a new constitutional polyphony in foreign affairs and national security, on this account, is a win-win proposition.
Three brief examples show this dynamic:Consider first U.S. policy seeks to influence events in volatile Pakistan.In these efforts, the interaction effects of the large diaspora Pakistani-American community with Pakistan’s culture and politics is largely ignored.But government should be leveraging the considerable influence diasporic communities have on sending nations.
Second, active political engagement with migrant communities here diminishes motivations for more radical forms of political action.Voice, that is, reinforces loyalty.In the Midwest’s Somali American community, some young men recently traveled to fight with the Shabaab, provoking breathless consternation in Congress and elsewhere.No one in the Senate asked, however, why Somali Americans would feel so excluded from US policy formation that they took such extreme measures.An opportunity to build productive dialogue between Somalia Americans—a potential mitigating influence on that lawless state—and also to nurture political voice was lost.
Third, Muslim Americans could be a vital voice for the rule of law overseas.As judicial regulation and procedural scrutiny of detention operations in Guantánamo and other US sites increases, the US has increasingly displaced its detention operations to other countries.Recently minted regulations endorse this continued outsourcing to Pakistan and other allies.The price of this displacement is further corrosion of the rule of law in these countries.Displacement thus exacerbates conditions that originally fostered transnational terrorist groups such as al Jihad in Egypt.
To date, few have made the connection between the Supreme Court’s insistence on a patina of legitimacy on domestic detention and the growing erosion of legality overseas.Muslim Americans, sensitive to conditions in those countries, can play a crucial warning and advocacy role.
Not only Muslim Americans but all Americans, in short, have much to gain from challenging the “sole organ” doctrine and contending for a more contentious process of policy formation.I do not know if Muslim Americans will take up this challenge:Fledgling organizations such as Muslim Advocates are promising sparks of change.But their mobilization and increased voice, however strong it proves, can only improve the Constitution in 2020.
Executive Authority in a post-Westphalian World: How Global Trends Influence U.S. Separation of Powers
Jon D. Michaels, UCLA School of Law
The rise of Executive power in the post-9/11 era can be attributed to many things. Chief among them are strident assertions of unfettered Article II powers during times of crisis,[1] the legislative flurry to satisfy the President’s wish list in the aftermath of the terrorist attacks,[2] and the notion that combating al Qaeda requires working on the so-called “dark side” of the law.[3]
At the end of the day, though, what might change the constitutional landscape in terms of Executive authority and separation of powers more than anything else are the dynamic, organic trends toward greater globalization, liberalization of political economies, and technological revolution. These trends deemphasize national boundaries, enable non-statist transnational connections, and promote markets over bureaucracies – and thus they are often thought to erode state authority and empower non-state actors, including al Qaeda.[4]
Of late, the Executive has itself adapted to these trends and seized upon opportunities created by these movements to aggrandize power vis-à-vis the courts and Congress, patterning many of its national-security initiatives on more fluid and unconventional arrangements. Its selective harnessing of these fluid arrangements and identities has enabled our military, intelligence, and homeland security officials to operate in the less regulated interstices of the national and international legal grid. This grid is currently calibrated to the statist, Westphalian system where national governments monopolize the use of force, and conflict is between nation-states and understood in terms of defending clearly defined national boundaries.[5]
So long as the law lags behind novel innovations in organizational and tactical design made possible by globalization, liberalization, and new technologies, the Executive may exercise greater authority than it otherwise would possess. Indeed, consider the following institutional, personnel, and geographic arrangements:
• Institutional
o Coalition Provisional Authority: a quasi-U.S. entity[6] that had been in charge of key decisions regarding the Iraqi occupation, including disbanding the Iraqi Army and privatizing its state industries;[7] largely insulated from oversight and largely exempt from administrative law protocols[8] (including the Senate’s role in Appointments);[9] and, free to spend Iraqi oil funds and undertake other activities with broad discretion.[10]
• Personnel
o Corporate Facilitation of Military and Counterterrorism Operations: U.S. intelligence officials solicit voluntary cooperation from telecoms, banks, and courier companies, thus bypassing otherwise applicable statutory and constitutional warrant requirements;[11] Defense officials hire contractors and maintain plausible deniability vis-à-vis sensitive operations (e.g., Blackwater assassination plans);[12] and, Defense officials’ use of contractors enlarges American fighting capacity, thus concealing the true scope of military operations (and casualty counts) and avoiding the need to initiate a civilian draft, seek greater international troop commitments, or scale back the engagement.[13]
o Foreign Interrogators/Interrogations: detainees brought to third-party nations where coercive techniques are legally employed.[14]
• Geographic[15]
o Domestic Eavesdropping: Intelligence officials depart from prior practice of not engaging in warrantless domestic wiretapping on the ground that, now, wars and loyalties are borderless – and agents on American soil may be facilitating terrorist attacks.[16]
o Black Sites: detainees brought to undisclosed locations around the world, without the Executive having to acknowledge their confinement, document their whereabouts, or permit Geneva Convention inspections.[17]
o Guantanamo: detainees held at Guantanamo, ostensibly to keep them beyond the reach of U.S. courts.[18]
Despite their varying degrees of success, these seemingly post-Westphalian reconfigurations[19] suggest ways in which the Executive is attempting to conduct national-security policy in less regulated space. Though some of these practices precede the War on Terror,[20] and some have domestic, regulatory analogues,[21] today’s instantiations run an unprecedentedly wide gamut of novel arrangements and implicate a considerably broad set of legal, normative, and strategic questions. As we think about the Constitution (and public law more generally) in 2020, much attention has focused on whether we should reach beyond our borders to consult and sometimes rely on relevant foreign and international law.[22] What’s being described here is slightly different. Here, the issues are how international trends transform or may be used to distort domestic practices and how our laws and doctrines should respond to these transformations and distortions. That is to say, changes in the way the world works at the international level are having effects on the operation of separation of powers in the United States, with an obvious consequential impact on constitutional values.
In thinking through these issues, we will have to balance domestic versus international legal commitments; strategic versus normative priorities;[23] and, short-term, ad-hoc regulation (that closes gaps that emerge as innovative practices outpace the law [24]) versus structural, comprehensive reform that takes a more holistic approach to the changing world. Moreover, in thinking through these problems, we might have to reassess our efforts in hastening, resisting, or steering technology gains, globalization, and political-economic liberalization[25] – a project of reassessment that might already be underway in light of growing disillusionment with market-driven governance[26] and growing alarm over the realization of a “National Surveillance State.”[27]
ENDNOTES
[1] See, e.g., Legal Authorities Supporting the Activities of the NSA Described by the President, Office of Legal Counsel, U.S. Dep’t of Justice, Jan. 19, 2006, http://justice.gov/opa/whitepaperonnsalegalauthorities.pdf; Memorandum from Jay S. Bybee, Assistant Atty. Gen., Office of Legal Counsel, U.S. Dep’t of Justice, on The President’s Power as Commander in Chief to Transfer Captured Terrorists to the Control and Custody of Foreign Nations, to William J. Haynes, II, Gen. Counsel, Dep’t of Def. (Mar. 13, 2002), http://www.usdoj.gov/opa/documents/memorandum03132002.pdf; Memorandum from John C. Yoo, Dep’t Assistant Atty. Gen., Office of Legal Counsel, U.S. Dep’t of Justice, on Authorization for Use of Military Force Against Iraq Resolution of 2002, to Daniel J. Bryant, Assistant Atty. Gen., Office of Legislative Affairs, U.S. Dep’t of Justice (Oct. 21, 2002), http://www.washingtonpost.com/wp-srv/nation/documents/2002_1021_OLC_memo_military_force_iraq.pdf.
[2] See, e.g., USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272; Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L. No. 108-458, 118 Stat. 3638; Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600; The Foreign Surveillance Act of 1978 Amendments Act of 2008, Pub. L. No. 110-261, 122. Stat. 2436.
[3] Interview by Tim Russert with Richard Cheney, “Meet the Press” (Sept. 16, 2001). See generally JANE MAYER, THE DARK SIDE: THE INSIDE STORY OF HOW THE AMERICAN WAR ON TERROR TURNED INTO A WAR ON AMERICAN IDEALS (2008).
[4] See, e.g., Peter J. Spiro, Globalization and the (Foreign Affairs) Constitution, 63 OHIO STATE L.J. 649, 667-73 (2002); see also Richard H. Steinberg, Who Is Sovereign? 40 STAN. J INT’L L. 329, 329-30 (2004) (collecting authorities supporting this claim).
[5] See, e.g., PHILIP BOBBIT, THE SHIELD OF ACHILLES: WAR, PEACE, AND THE COURSE OF HISTORY 509-15 (2003); Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. PA. L. REV. 675, 702-09 (2004); Kal Raustiala, The Geography of Justice, 73 FORDHAM L. REV. 2501, 2508-09 (2005); Spiro, supra note 4, at 660-73.
[6] See L. Elaine Halchin, The Coalition Provisional Authority (CPA): Origin, Characteristics, and Institutional Authorities, Cong. Research Servs. Report for Congress, Apr. 29, 2004, at CRS-7-14, http://www.fas.org/man/crs/RL32370.pdf. Cf. U.S. ex rel. DRC, Inc. v. Custer Battles LLC, 376 F. Supp. 2d 618, 620 (E.D. Va. 2005), rev’d on other grounds, 562 F.3d 295 (4th Cir. 2009), (noting “the essential nature of the CPA is shrouded with ambiguity”).
[7] See RAJIV CHANDRASEKARAN, IMPERIAL LIFE IN THE EMERALD CITY: INSIDE IRAQ’S GREEN ZONE (2006). [8] See Hard Lessons: The Iraq Reconstruction Experience, Office of the Special Inspector General for Iraq Reconstruction, Feb. 2, 2009, http://www.sigir.mil/hardlessons/pdfs/Hard_Lessons_Report.pdf; Oversight of Funds Provided to Iraqi Ministries Through the National Budget Process, Office of the Special Inspector General for Iraq Reconstruction, Report No. 05-004, Jan. 30, 2005, http://www.sigir.mil/reports/pdf/audits/dfi_ministry_report.pdf (noting lack of transparency and insufficient managerial, financial and contractual control).
[9] See Coalition Provisional Authority Memorandum Number 4, Contract and Grant Procedures Applicable to Vested and Seized Iraqi Property and the Development Fund for Iraq, Aug. 19, 2003, at 19, http://www.iraqcoalition.org/regulations/20030820_CPAMEMO_4_Contract_and_Grant_Procedures_and_Appendix_A_-_D.pdf (declaring unavailability of an external appeals process for bid protests); Office of the Inspector General, Coalition Provisional Authority’s Contracting Processes Leading Up To and Including Contract Award, Office of the Inspector General, Coalition Provisional Authority Report No. 04-013, at 2 (2004), http://www.sigir.mil/reports/pdf/audits/cpaig_audit_cpa_contracting_processes.pdf (reporting that the CPA “had not issued standard operating procedures”); Halchin, supra note 6, at Summary and CRS-2 (noting that none of the CPA principals were confirmed by the Senate); id. at CRS-24 (“The CPA Administrator exercises rule-making authority . . . . Unlike the heads of federal agencies, however, the Administrator apparently has not followed the Administrative Procedure Act.”).
[10] Halchlin, supra note 6, at CRS-32-33 (“Perhaps this ambiguity allows the [CPA] to perform multiple roles, each with its own chain of command, stakeholders or constituents, funding, and accountability policies and mechanisms. . . . Possibly, the mix of arrangements allows CPA to operate with greater discretion and more authority, and have access to more resources than if it was solely a federal agency or an arm of the United Nations. . . . By operating under more than one set of laws, regulations, and policies, CPA possibly could expand the scope and reach of the organization’s authority beyond what it would be otherwise.”); see also Hard Lessons, supra note 8.
[11] See Jack M. Balkin, The Constitution in the National Surveillance State, THE CONSTITUTION IN 2020, at 179, 203 (Jack M. Balkin & Reva B. Siegel, eds. 2009); Jon D. Michaels, All the President’s Spies: Private-Public Intelligence Partnerships in the War on Terror, 96 CAL. L. REV. 901, 908-19 (2008); see also Danielle Keats Citron, Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age, 80 S. CAL. L. REV. 241, 255 (2007); Daniel Solove & Chris Hoofnagle, A Model Regime of Privacy Protection, 2006 U. ILL. L. REV. 357, 359, 364-69.
[12] See Mark Mazzetti, CIA Sought Blackwater’s Help To Kill Jihadists, N.Y. TIMES, Aug. 20, 2009, at A1.
[13] See, e.g., Jon D. Michaels, Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War, 82 WASH. U.L.Q. 1001 (2004); Martha Minow, Outsourcing Power: How Privatizing Military Efforts Challenges Accountability, Professionalism, and Democracy, 46 B.C. L. REV. 989, 1023-24 (2005).
[14] See Jane Mayer, Outsourcing Torture, NEW YORKER, Feb. 14, 2005, at 106; Dana Priest & Joe Stephens, Long History of Tactics in Overseas Prisons Is Coming to Light, WASH. POST, May 11, 2004, at A1.
[15] See Raustalia, supra note 5.
[16] See, e.g., The NSA Program to Detect and Prevent Terrorist Attacks: Myth v. Reality, Office of Public Affairs, U.S. Dep’t of Justice, Jan. 27, 2006, at 3, http://justice.gov/opa/documents/nsa_myth_v_reality.pdf; James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1; see also Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2049 (2005) (“The traditional concept of ‘enemy alien’ is inapplicable in this conflict; instead of being affiliated with particular states that are at war with the United States, terrorist enemies are predominantly citizens and residents of friendly states or even the United States. The battlefield lacks a precise geographic location and arguably includes the United States.”).
[17] See Jane Mayer, The Black Sites, NEW YORKER, Aug. 13, 2007, at 46.
[18] See, e.g., Brief for the Respondents, Boumediene v. Bush, No. 06-1195 (U.S. Oct. 9, 2007), available at http:// www.abanet.org/publiced/preview/briefs/pdfs/07-08/06-1195_Respondent.pdf; Brief for Respondents, Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (No. 05-184), available at http://www.usdoj.gov/osg/briefs/2005/3mer/2mer/2005-0184.mer.aa.pdf; Brief for the Respondents, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No. 03-6696), available at http:// www.usdoj.gov/osg/briefs/2003/3mer/2mer/2003-6996.mer.aa.pdf.
[19] See, e.g., Paul Schiff Berman, The Globalization of Jurisdiction 151 U. PA. L. REV. 311 (2002); Rosa Ehrenreich Brooks, Failed States, or the State as Failure?, 72 U. CHI. L. REV. 1159 (2005); Laura A. Dickinson, Public Values in a Privatized World, 31 YALE J. INT’L L. 383 (2006); Raustalia, supra note 5.
[20] See PAUL VERKUIL, OUTSOURCING SOVEREIGNTY 10-13 (2007); Charles Tiefer, The Iraq Debacle, 29 U. Pa. J. Int’l L 1, 29 n. 139 (2007); Leslie Wayne, America’s For-Profit Secret Army, N.Y. TIMES, Oct. 12, 2002, at C1.
[21] See Jon D. Michaels, Privatization’s Pretensions, 77 U. CHI. L. REV. __ (forthcoming 2010).
[22] See, e.g., Vicki C. Jackson, Progressive Constitutionalism and Transnational Legal Discourse, in THE CONSTITUTION IN 2020, at 285, 288-93 (Jack M. Balkin & Reva B. Siegel, eds. 2009); Harold Hongju Koh, America and the World, in THE CONSTITUTION IN 2020, at 313, 318-20 (Jack M. Balkin & Reva B. Siegel, eds. 2009).
[23] See, e.g., David Cole, “Strategies of the Weak”: Thinking Globally and Acting Locally Toward a Progression Vision of the Constitution, in THE CONSTITUTION IN 2020, at 297, 298 (Jack M. Balkin & Reva B. Siegel, eds. 2009).
[24] For extensions of criminal liability to military contractors overseas, see John Warner National Defense Authorization Act for FY 2007, §552, P.L. 109-364, 120 Stat, 2083, 2217 (2006) (amending 10 U.S.C. §802(a)(1)); Military Extraterritorial Jurisdiction Act of 2000, 18 U.S.C. §§ 3261-67. For extensions in the reach of habeas, see Boumediene v. Bush, 128 S. Ct. 2229, 2259-62 (2008).
[25] See Steinberg, supra note 4, at 334-39 (describing ways in which powerful states harness global trends to enhance their own authority).
[26] See, e.g., VERKUIL, supra note 20; see also Sundeep Tucker & Jamil Anderlini, Economic Leaders Call for Tighter Rules in Global Financial System, FIN. TIMES, Sept. 29, 2008, at 1.
[27] Balkin, supra note 11; Jack M. Balkin, The Constitution in the National Surveillance State, 93 MINN. L. REV. 1 (2008); Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 FORDHAM L. REV. 489 (2006).
A decade ago, lawyers in the United States who worked on cases involving mistreatment of prisoners might have talked about those cases as involving “police brutality.”The lawyers would have described them as falling under the rubric of constitutional litigation involving “civil rights” and “civil liberties.”Today, those same lawyers might describe the same mistreatment of prisoners as “torture” and a violation of “human rights.”
Does the difference in terminology matter, or is this merely a reflection of a “trendy” but superficial globalization?The shift towards the use and consideration of international human rights law by domestic advocacy groups in the United States is a fairly recent phenomenon (though one with historical precursors).As the ACLU’s website explains:
“In 2004, the ACLU created a Human Rights Program (HRP) specifically dedicated to holding the U.S. government accountable to universal human rights principles in addition to rights guaranteed by the U.S. Constitution. HRP is part of a reemerging movement of U.S. based organizations that uses the international human rights framework in domestic rights advocacy.”
Are American constitutional lawyers talking about international human rights the legal equivalent of a pretentious francophilic suburbanite air kissing her friends and declaring the latest sweater at Target to be “très chic”?
Is reference to international human rights law a useful strategy for progressive constitutional advocates, or does it simply invite criticism and attack on the grounds that dangerous and undemocratic “foreign” influences are being illegitimately injected into our legal system?Am I calling in the black helicopters here?
Accuse me of having drunk too much of the international human rights Kool-Aid if you wish, but I believe that thoughtful engagement with the broader international human rights movement by progressive constitutional advocates is good for America and good for the world.Why?
The language of international human rights has become a dominant global discourse.There are well-known criticisms of this discourse, to be sure, but the language of human rights has exerted a powerful influence on the way that people around the globe think and talk about issues of fundamental importance to the way people live their lives – from their ability to speak freely, participate in government, practice religion, shape their families and other social connections, engage with government and civil society on terms of equality, achieve the minimum conditions of material prosperity necessary for a life of dignity – water, food, shelter, medical care, education.We can’t participate in this global conversation if we don’t speak the same language as progressive advocates in other countries.
International human rights law addresses many of the same issues and concerns as U.S. constitutional law, though there are of course quite important differences between the two bodies of law.Most obviously, international law embraces a broader vision of rights including not only civil and political rights, but also economic and social rights. In this respect, the global human rights regime echoes the framework put forth by Franklin Roosevelt in his “Four Freedoms Speech” in 1941 – freedom from want, freedom from fear, freedom of speech and expression, freedom of religion. The drafting of important international human rights instruments in the aftermath of World War II was heavily influenced by these ideas.Roosevelt’s concern for security – freedom from fear – as a basic human need also resonates today in attempts to balance individual liberty with the need for protection against violence, either by states or non-state actors.In the international legal order, however, freedom from fear finds its institutional home in the collective security framework of the U.N. Charter rather than in human rights law; and the tension between security and rights is no less evident in international law than national legal systems.Understanding security as a human rights issue, however, is vital to confronting many of the challenges America will face in the coming decades.
International human rights law differs from U.S. constitutional law in other important ways as well.It emphasizes personhood over citizenship as a foundation for rights (though of course, many parts of the Constitution speak of persons and people, not citizens).Its focus on human dignity finds echoes in many post World War II constitutions, but not so explicitly in the text of our own Constitution.It operates within a different institutional framework, in which litigation is often less important than documenting and publicizing abuses; raising awareness of issues; generating political pressure; lobbying and diplomacy.
Far from making international human rights law irrelevant to a progressive constitutional vision, these differences in perspective and strategy can be quite useful in rethinking a way forward in the coming decades.As Rachel Moran and David Cole, among others, discuss in their contributions to the Constitution in 2020, even progressive theories of constitutional law that place great weight on citizenship run the risk of undermining the basic dignity afforded to non-citizens. Many of the essays in the volume address issues of economic and social inequality and inadequacy.And many address the idea of the Constitution – and constitutional rights – outside the courts.International human rights law speaks to all of these concerns.
The United States has long been a leader in international human rights.Core international instruments like the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) are modeled on rights established and developed in U.S. constitutional law.Our nation has been a powerful advocate for human rights in its diplomacy and in important international fora.
Today, as many have pointed out, the United States role as a global human rights leader is imperiled. Why? Recent policies of the United States government, especially detention and interrogation in connection with the “war on terror”, have involved significant and very high-profile human rights violations.Members of the Bush Administration openly defended practices that constitute torture.In other areas of individual rights, the U.S. also does not compare favorably with other developed democracies. Death penalty? Gays in the military? Universal health care?Decent primary education? To be sure, in some areas such as free speech, the U.S. has adopted standards that are more protective of individual rights than other nations.But the United States faces serious challenges in our claims of preeminent leadership in the human rights field.
When our Supreme Court disses foreign and international courts, the judges on those courts become less likely to care what the U.S. Supreme Court thinks.As several recent articles have pointed out, constitutional courts around the world are increasingly likely to cite the European Court of Human Rights or the Inter-American Court of Human Rights rather than the U.S. Supreme Court.As Vicki Jackson points out in her essay, when we act as if we have nothing to learn from the rest of the world, we run the risk of being left out of, and thereby unable to contribute to, the development of, a global body of law that is likely to have an important impact on U.S. interests in decades to come.
More importantly, when U.S. behavior evinces a double-standard – acting as if the rules of international human rights law apply to other countries but not to us – we increase the likelihood that other countries will claim that they, too, are not bound by these allegedly universal principles.
Like various contributors to the Constitution in 2020 volume -- including Harold Koh, David Cole, Vicki Jackson, Judith Resnik and others -- I believe the United States has a key role to play in shaping the world outside our borders.
We will be a stronger, wealthier, and safer country in 2020 if other countries respect human rights.
Moreover, U.S. constitutional law may well benefit from consideration of the way that similar issues are conceptualized and resolved in international human rights law.Even if we do not always cite foreign or international sources in our briefs, it is useful for progressive advocates to know something about how our counterparts in other countries conceptualize an issue.Maybe even talk with those counterparts.Just as advocates for the abolition of slavery in the nineteenth century drew strength from transnational networks of religious and civil society groups, progressive advocates in the U.S. today may strengthen their efforts by building bridges to those advocating on similar issues in other nations. (And a note to anyone who came upon this blog posting after googling “black helicopters”:I’m not talking about giving up sovereignty, or being bound by the views of foreigners – I’m talking about respectfully considering the wise and considered views of others before making our own minds up.)
The United States does not and cannot exist in isolation from the rest of the world, and any vision for American constitutional law in the coming decades must recognize this fact – not incidentally, not as an afterthought, but as a fundamental part of understanding the nature of our society, our economy, and our government.
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