Have You No Sense of Decency?

David Luban

The Book of Ecclesiastes has it right: truly, there is nothing new under the Sun.
Posted 10:27 AM by David Luban [link]

John Adams Meets Joe McCarthy

Eugene R. Fidell

The current campaign against Attorney General Holder for hiring lawyers who have either represented Guantanamo detainees or have filed briefs or otherwise taken positions supporting their interests in habeas corpus litigation is a nasty business that should offend every American. The demand for a list of these lawyers' names brings to mind Senator Joe McCarthy and his list of communists in the State Department. It also brings to mind our second president, John Adams, and an equally patriotic lawyer named Kenneth C. Royall who got to be Secretary of War and Secretary of the Army after defending the German saboteurs who were convicted by a 1942 military commission.

The effort to delegitimate the representation of detainees by treating as infiltrators those who have answered the call to public service in the current administration is beneath contempt. No such objection was raised when Royall was selected to be a brigadier general or senior civilian official. Nor did Adams’ representation of the Redcoats who perpetrated the Boston Massacre—probably the most loathed criminal defendants in Eighteenth Century North America—prevent him from succeeding George Washington.

In 2003, when the military commissions were just getting underway, a nonprofit organization I head, the National Institute of Military Justice, struggled with whether civilian attorneys should participate in what many believed were deeply flawed commissions. In the end we opposed a boycott:

The question whether to participate in proceedings when one believes that the governing procedures are an unwarranted departure from due process norms must be decided according to each individual’s conscience and professional values. But it would be as unfortunate for the American justice system for competent civilian defense counsel to make themselves unavailable in military commissions as it would be if civilians were formally precluded from participation. Military lawyers have proven over many years that they can and will provide zealous representation, even for highly unpopular clients. Nonetheless, and whatever else may be said of military commissions, public confidence in the administration of justice would be ill-served by a boycott by the civilian bar. Public esteem for the bar would also suffer. . . .

The absence of competent civilian defense counsel from military commissions would mean that talent and experience that might improve the quality of justice and promote confidence in the fairness and integrity of the proceedings will be missing. There is an argument, of course, that by abstaining from military commissions, civilian lawyers will demonstrate their rejection of the procedures chosen for these tribunals. But as long as those accused face trial by commission, abstention by the civilian bar cannot increase the likelihood that they will receive justice or at least as much justice as might be obtained with help of civilian counsel. . . .

Mindful of the fact that the decision to participate may be a function of deeply held and, in many instances, conflicting personal and professional values, and that reasonable people may well differ on the matter, we recommend that attorneys who are otherwise qualified for the civilian defense counsel pool, and have the time, give serious consideration to submitting their names. The highest service a lawyer can render in a free society is to provide quality independent representation for those most disfavored by government. . . .

The bar came forward and was right to do so, whatever one may think or feel about the detainees themselves. Lawyers from nonprofit organizations and law firms big and small exerted themselves (winning impressive victories time after time in the Supreme Court) despite such disturbing events as the broadcast suggestion by a Bush Administration official that clients of some of the white shoe law firms whose partners and associates were representing detainees should take their business elsewhere. That official soon left the government and, to their undying credit, house counsel for the very law firm clients he sought to influence spoke up forthrightly to express admiration and support for the pro bono work of their attorneys.

What the detainees’ lawyers have done is in keeping with the highest tradition not just of the bar, but of our country. Don’t expect any of them to be recognized in the gallery at some future State of the Union address, but if some of them are willing to serve the nation, we should welcome them rather than vilify them, confuse them with their clients, or permit others to use them as a tool for undermining an administration that is simply trying to clean up the mess it inherited.

Labels: Guantanamo, Military Commissions; Joe McCarthy; Detainees

Posted 8:18 AM by Eugene R. Fidell [link]

The Wrong Move

Deborah Pearlstein

Cross-posted at Opinio Juris

This morning’s papers bring news from anonymous administration officials that “President Obama's advisers are nearing a recommendation that Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, attacks, be prosecuted in a military tribunal.” See The Post’s story here.

While I always take such preview reports with a grain of salt (is it an official trial balloon, or an unofficial attempt to sway the debate the other way?), it’s hard to let this one go by. If the reports are true, the President is getting some unfortunate advice. And is at risk of losing the best chance of getting KSM’s case off the front pages before the 2012 elections.

The reasons why federal criminal prosecution is the right answer for KSM have been set forth well and in detail elsewhere, and I generally won’t recapitulate them here. The arguments seem already to have persuaded the President’s top “advisers”: the Attorney General, who had announced plans to try KSM in the criminal courts in New York, and the Vice President, who said just two weeks ago that “[w]e have no doubt the best, most effective legal way to get his guy behind bars for the longest time and get the most information with the most certainty is in an Article Three court." The Secretary of Defense has likewise rejected the notion that the President should be precluded from pursuing civilian trials where appropriate. See this joint letter from Secretaries Holder and Gates, noting that “we ensure that all relevant factors are carefully considered when determining the appropriate forum in which to try a particular case.”

So what’s driving the shift? Most reports suggest that the Administration thinks if it capitulates on the KSM trial, Sen. Lindsey Graham will help the White House to win the funding and legal authority it now needs from Congress to close Guantanamo – a political motive in the strictest sense of the term. On that score, I guess count me skeptical that any Senator has the power to get a majority of members of both houses of Congress to vote in favor of allowing any Gitmo detainees to be brought to the United States for detention in an election year. But who knows?

The bigger looming danger is on the legal front. It’s easy to start with the historical odds that a post-9/11 trial before a military commission will founder. (The federal courts stunning track record of success in prosecuting terrorism cases of this kind only gets more impressive when one compares it to the record of even completed cases before the old military commissions). But maybe more important, if the Administration shifts gears now – worse, if the President overrides the very public recommendation of his Attorney General – it hands defense counsel a much stronger argument against the legitimacy of commission trials than they already had. Namely, the argument that the Executive’s choice between Article I commissions and Article III courts is constrained by no principle in law – no finding of a state of armed conflict, no international law-based set of charging offenses, no even military determination of necessity (given that Holder and Gates “carefully considered… all relevant factors” in making the KSM-civilian-trial decision the first time) – but is rather a pure question of expediency, a choice that can depend equally on whether the defendant committed a war crime as on whether the defendant’s Senator can deliver a vote on, say, health care. (That the putative vote in this case happens to be about detainee issues rather than any other voting issue of congressional concern doesn’t seem to me to make a difference in assessing the legality, or not, of the Administration’s basis for choosing a military trial over a civilian court.)

You might accept or not my argument that selection between forums on such a basis raises a constitutional question (see here or my Senate testimony here). But it would be a mistake to think the courts don’t care about atmospherics such as this. Indeed, I was this morning recalling the reaction by the Fourth Circuit Court of Appeals (in an opinion authored by conservative judge (and once thought Supreme Court contender) Michael Luttig) after the Bush Administration announced its intention to try Jose Padilla before federal criminal court after maintaining before – and successfully persuading – the Fourth Circuit that national security necessity required the President to have the power to hold Padilla as an “enemy combatant” in the “war on terror.” The issues were of course different there. The question involved detention power, not trial forum per se; and the Bush Administration was actively aiming to avoid renewed Supreme Court review of the Padilla case, a case it by then appeared likely to lose. But Judge Luttig’s apoplexy seems worth remembering as the Administration gears up for the mammoth litigation sure to follow an attempt to prosecute KSM before yet another set of military commissions:

“The government cannot be seen as conducting litigation with the enormous implications of this litigation -- litigation imbued with significant public interest -- in such a way as to select by which forum as between the Supreme Court of the United States and an inferior appellate court it wishes to be bound…. [A]s the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be.”




Posted 11:48 AM by Deborah Pearlstein [link]

Overrule Cruikshank, not Slaughter-House

JB

Hindsight is 20/20. In the opening minutes of the McDonald oral argument, Chief Justice Roberts told Alan Gura that he would have difficulty overruling the Slaughter-House Cases, "which have been the law for 140 years." In hindsight, what Gura should have said is, first, the Supreme Court overrules cases all the time-- just look at Citizens United this term-- (nudge, nudge, Justice Kennedy)-- and, second, that it wasn't really necessary to overrule Slaughter-House.

Instead, the Court should overrule United States v. Cruikshank, decided in 1875.


Most lawyers have never heard of Cruikshank, and if they did, they wouldn't be particularly proud of the decision. It overturned convictions in the Colfax Massacre, one of the worst episodes of racial and political violence during Reconstruction, during which white vigilantes murdered scores of African-Americans. To put it mildly, this was not a proud day in American history. The Supreme Court, through a series of technical distinctions, found a way to let domestic terrorists go free. The title of Charles Lane's recent book, "The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction" tells it all. After Cruikshank, federal power to protect civil rights against Klan violence was greatly limited.

One of the technical distinctions used in Cruikshank was that the First and Second Amendments, and indeed most of the rights protected in the Bill of Rights, were not rights "granted" by the federal Constitution, but only "secured" by the Constitution against government interference. Chief Justice Waite argued that the rights described in the Bill of Rights were natural rights pre-existing the Constitution, so they couldn't be "granted" by the Constitution and therefore couldn't be privileges or immunities of national citizenship. Instead, these and other natural rights were attributes of state citizenship, and citizens had to look to the states for their protection.

Does this argument sound confusing? If so, it is because it is confused. Waite's argument is premised on the existence of natural rights that pre-exist the state, but the conclusion does not follow from the premise.

Constitutions protect natural rights by creating positive legal rights; these legal rights are created and granted by the adoption of the Constitution and its amendments just like any other legal rights.

So it's entirely possible that both the states and the federal government could create distinct provisions protecting the same natural right-- say freedom of speech. Indeed, they might differ in some respects, because state free speech provisions might be broader or narrower in scope.

Whether or not the right of assembly is a natural right, the right contained in the text of the Constitution is a positive legal right created by the adoption of the constitutional text. When the federal government guarantees that natural right through a federal constitutional provision, it creates a federal right, and therefore it is a privilege or immunity of citizens of the United States whether or not states have a similar positive right in their own constitutions that protects that same natural right.

There is no particular reason to honor Cruikshank today. Not only is it badly reasoned, but it perpetrated a great injustice. And even today it prevents Congress from protecting some federal rights from private conspiracies.

Moreover, if we overturn Cruikshank, we can still keep Slaughter-House. Slaughter-House stands for the proposition that rights of state citizenship and rights of federal citizenship are distinct. But that proposition is consistent with the existence of federal and state rights that are similar in scope but come from different sources. For example, Slaughter-House held that the right to visit a federal post office was a privilege or immunity of national citizenship. If a state created a statute that also protected that right, it would not follow that the federal right vanished. It would simply be protected by two different jurisdictions in two different ways.

Waite's argument in Cruikshank was sophistry, designed to throw out a conviction for domestic terrorism. In the process, he effectively held that the rights in the Bill of Rights did not apply to the states. There is no particular value in maintaining Cruikshank's convoluted logic today. There is certainly very little justified reliance on this decision. Most people have never heard of it, and its most significant effect today is to immunize certain forms of political violence.

If Gura had said all this to Chief Justice Roberts, would it have made a difference? Probably not. The Justices don't seem to be moved very much by history except when it meshes with their preexisting views. But it would have allowed the Court to preserve an well-known icon, Slaughter-House, by drawing attention to one of the Court's worst but least well-known mistakes-- Cruikshank. It was certainly worth trying.


Posted 6:58 AM by JB [link]

Guns, Abortion, and the McDonald Oral Argument

JB

The transcript of the McDonald v. City of Chicago oral argument is here. The Court seems likely to apply the Second Amendment to the states but will likely use the Due Process Clause rather than the Privileges or Immunities Clause. Not a single Justice who spoke seemed inclined to use the Privileges or Immunities Clause, although, as usual, Justice Thomas, the Justice most likely to find the argument hospitable, was silent.

The Court did not spend much time worrying about the historical record, nor did the lawyers have much time to discuss it. Instead, individual Justices like Justice Kennedy and Justice Ginsburg wondered whether using the Privileges or Immunities Clause would require incorporation of the grand jury right and the right to civil trials, which presumably, was a deal breaker for them.

Amusingly, some of the Justices were worried that using Privileges or Immunities would open up the possibility of implied fundamental rights, which they already recognize under the Due Process Clause. Justice Scalia in particular remarked that he had essentially accepted substantive due process. Up to a point, that is: he bitterly resists every new implied fundamental right and still would like to overrule some cases recognizing such rights. As Doug Kendall notes below, it seems easier to take a very limited view of implied fundamental rights when one is working with the Due Process Clause than with the Privileges or Immunities Clause, whose text was designed to recognize such rights. The ghosts of Lochner and Roe v. Wade hovered over the argument. "Seems" is the operative word in the previous sentence, however. In fact, as I note below, using the Due Process Clause instead of the Privileges or Immunities Clause hasn't really stopped the courts from finding implied fundamental rights.

The Justices as a group seemed to think that not much is gained by moving to Privileges or Immunities when there is already a jurisprudence under the Due Process Clause. The differences in language in the two texts, and their relative compatability with implied fundamental rights, didn't seem to matter much to them. The history of the two clauses seemed not to matter much at all. This should not be surprising. As a rule, the Justices only invoke history when it is consistent with views they already hold.

Justice Stevens channeled Justice Frankfurter, arguing that perhaps incorporation to the states did not incorporate the whole right, but just its core elements. Justice Breyer argued that the Second Amendment was special because it involved a threat to life, and therefore should not be incorporated or should only be partly incorporated against the states. The Court has previously rejected Justice Frankfurter's theory, but as a result of a fractured court in Apodaca v. Oregon, it has incorporated only part of the sixth amendment jury trial right.

Nevertheless, it is unlikely that there are five votes for partial incorporation. Rather, there are probably five votes for full incorporation under the Due Process Clause.

The bottom line of the oral argument, not surprisingly, is that (excepting Justice Kennedy and possibly Justice Thomas) the Justices' substantive views on gun rights and abortion rights will determine the outcome of this case:

Many of the Justices who support incorporation of the Second Amendment don't want to open the door to new implied fundamental rights, which they fear might be easier to protect under the Privileges or Immunities Clause. Thus they support incorporation of the Second Amendment under the Due Process Clause (ironically) because they fear more cases like Roe v. Wade and Lawrence v. Texas, which were decided under the Due Process Clause. If they retain existing doctrine, they believe that (somehow) it will be easier to refuse to recognize new implied fundamental rights under the Due Process Clause.

Conversely, the Justices who support implied fundamental rights don't like using the Privileges or Immunities Clause because they oppose incorporation of the Second Amendment period, and continue to think Heller was wrongly decided. Therefore they prefer arguing that the Amendment shouldn't be incorporated under any clause. Because not all of the Bill of Rights has been incorporated under the Due Process Clause, and all of it would be incorporated if one used the Privileges or Immunities Clause, they prefer the Due Process Clause. Moreover, if one is to incorporate the right, it should be incorporated under the Due Process Clause because there is one precedent (Apodaca) which suggests that one can incorporate rights under the Due Process Clause only partially.

I should add, finally, that the hope of some of the Justices that continuing to stick with the Due Process Clause to hold off recognition of new implied fundamental rights is a fool's errand: History shows that if you close down one avenue for implied fundamental rights (privileges or immunities) another avenue opens up (due process). That is because, whether you like it or not, there has been powerful public pressure for the recognition of implied fundamental rights throughout American history, and this, not surprisingly, is one reason why the Constitution contains both the Ninth Amendment and the Privileges or Immunities Clause.


Posted 6:48 AM by JB [link]

Don't Trash the Constitution, Justice Scalia

Doug Kendall

This front-page story in yesterday’s Washington Post featured a quotation from Justice Antonin Scalia, taken from a 2006 Yale Law School presentation, in which the Justice calls the 14th Amendment's Privileges or Immunities Clause "flotsam." Flotsam is defined by Webster's Dictionary as "floating debris": trash, in other words. Talk about trashing the Constitution.

Justice Scalia continued along these lines at oral argument today in McDonald v. City of Chicago, a case about whether the Second Amendment limits the gun control laws passed by states. Scalia jumped all over McDonald’s attorney, Alan Gura, who had the temerity to argue that the text and history of the Privileges or Immunities Clause was relevant to the outcome of the case. Scalia accused Gura of “bucking for some place on a law school faculty” by advancing an argument in text and history that was “the darling of the professoriate.”

Why would a Supreme Court Justice who professes to care deeply about the text and history of the Constitution disparage part of that text and refuse even to hear an argument about the history of the Privileges or Immunities Clause? Simple: this text and history doesn’t fit with his longstanding argument against judicial protection of substantive fundamental rights.

Throughout his tenure on the Supreme Court, Justice Scalia has disparaged the doctrine of substantive due process, under which the Supreme Court has recognized fundamental substantive rights including the right to reproductive choice in Roe v. Wade and the right to sexual intimacy in Lawrence v. Texas. Scalia has called substantive due process “babble” and an “oxymoron” and repeatedly sought to overturn rulings like Roe, arguing they cannot be squared with the Constitution’s text and history. In dissent in a 1999 case called City of Chicago v. Morales, Scalia asserted: “[t]he entire practice of using the Due Process Clause to add judicially favored rights to the limitations upon democracy set forth in the Bill of Rights (usually under the rubric of so-called “substantive due process”) is in my view judicial usurpation.”

The text and history of the Privileges or Immunities Clause thus present a very big problem for Justice Scalia. The Clause isn’t trash. It isn’t an “ink blot,” as Robert Bork wanted to treat it. It is, rather, the central provision of the Constitution’s 14th Amendment, and the Clause intended by the framers to protect both the enumerated and unenumerated fundamental rights of American citizens. It is the “darling of the professoriate,” for the simple reason that it is the right answer as a matter of text and history to the question of how rights like the Second Amendment apply against state action. The Clause has been misread by the Supreme Court for 140 years, starting with the Court’s 1873 ruling in The Slaughterhouse Cases, and as Yale Law School’s Akhil Amar has summarized: “Virtually no serious modern scholar -- left, right, and center -- thinks that [Slaughterhouse] is a plausible reading of the Amendment.” Constitutional Accountability Center filed a brief in McDonald on behalf of preeminent constitutional scholars, including Balkinization's own Jack Balkin, urging all the Justices, including Justice Scalia, to restore the Privilege or Immunities Clause to its rightful place.

That’s not likely to happen in McDonald, if today’s argument is any guide, in large part because Justice Scalia and his colleagues, notably including Chief Justice Roberts, refused to take this text and history seriously. Their reason is surprising: it turns out that when it comes to gun rights, Justice Scalia and Chief Justice Roberts apparently believe that substantive due process is working just fine and is “easier” than reconsidering the Privileges or Immunities Clause. But how can this be, given the criticism of the doctrine from conservative sources? It appears that it is “easier” because it means the conservative justices don’t have to rethink or give up on their attack on the legitimacy of substantive due process.

Chief Justice Roberts concedes as much in this unintentionally funny question at the end of Gura’s argument:

Privileges and immunities give you a lot more flexibility than due process, because it is not limited to procedural -where you don't have to deal with the hurdle that it's limited to procedural by the text.

Let me translate that. Because the Privileges or Immunities Clause is in fact the provision of the Constitution designed to protect substantive fundamental rights, it would give more “flexibility” to judges to recognize and protect these rights. On the other hand, if we begrudgingly follow prior rulings and incorporate using substantive due process, we retain the ability to bash the doctrine and resist any further extension of it.

So two of the Justices that voted recently to overturn two prior rulings and call into question 100 years of campaign finance laws in Citizens United, based on a heart-felt (though erroneous) interpretation of the Constitution’s First Amendment, appeared poised today to follow prior rulings they clearly think are questionable, and ignore arguments about the right answer in text and history, because doing so would give judges “flexibility” to protect rights and liberties of U.S. citizens.

We don’t yet have the Court’s ruling in McDonald. It is not too late for Chief Justice Roberts, Justice Scalia and the other members of the Court to take the text and history of the Privileges or Immunities Clause seriously, and at least recognize in their opinion that the Clause was written to protect fundamental substantive right from infringements by the states. But it looked today very much like when the Chief Justice and Justice Scalia say they take constitutional text and history seriously, what they mean is that they take text and history seriously, unless it’s inconvenient to their judicial philosophy.



(Cross-posted on Huffington Post and Text and History).


Posted 6:30 PM by Doug Kendall [link] (164) comments

The Right Decision

Deborah Pearlstein

Cross-posted at Opinio Juris

Earlier this term, the Supreme Court granted certiorari to decide the latest issue in the sad case of the Uighurs still held at Guantanamo Bay after having been cleared of “enemy combatant” status by both Bush and Obama Administrations. U.S. treaty obligations restricting the ‘refoulement’ of individuals to countries where they’re likely to face torture have effectively prevented the United States from sending the Uighurs , a persecuted Muslim minority in China, back to China. And while the Washington, D.C. federal district court ruled months ago that the Uighurs continued detention at Guantanamo was without legal authorization, the D.C. Circuit court rejected the notion that the remedy for unlawful detention at Guantanamo Bay was release into the United States. Under U.S. immigration law, the D.C. Circuit held, no court can compel the Executive to allow aliens entry into the United States. The Uighurs, languishing at the U.S. naval base in Guantanamo, Cuba, were thus without effective remedy under law. The Supreme Court granted cert to decide the question whether the federal courts were in fact without effective remedial power. With the case set for oral arguments later this month, the Court today ordered the D.C. Circuit decision vacated, and it remanded the case to the appeals court to determine whether additional proceedings were now “necessary and appropriate” in light of the Obama Administration’s recent success in finding foreign nations (Switzerland and Palau) to offer the Uighurs a place to live.

Under the circumstances, I tend to think the Court handled the matter just right. Despite the pending offers of resettlement, the Uighurs’ attorneys had pressed the Supreme Court to decide the case now. Among other things, the Uighurs offered resettlement in Palau – a country lacking a Muslim population to speak of – evidently view the island nation an unacceptable alternative to continued detention at Guantanamo Bay. And given a choice between Palau and, say, Florida, I might well favor Florida too. The problem is that the Uighurs had only a modest chance, at best, of securing resettlement in the United States even if the Court had kept the case. Indeed, given the uncertainty of the outcome before the Supreme Court, the possibility that the Court would keep the case – and decide it against the Uighurs who, after all, now have at least Palau – might have cemented a permanently bad outcome for the remaining Guantanamo detainees who have also been cleared for release but have yet to find a country offering resettlement. For now – particularly thanks to the Court’s decision to vacate the D.C. Circuit opinion below – the possibility remains even in the D.C. Circuit that the courts may not be without all effective remedial power in resolving (before a potentially different panel) the next case of a stateless Guantanamo detainee (which case is surely coming).

Finally, while the Uighurs’ case is perhaps the saddest of the many sad cases resulting from mistakes made at Guantanamo beginning in 2002, the Obama Administration deserves some credit for, so far, threading the needle to find the marginally more favorable of the few options remaining for resolving these cases. It is true that the options would not have been quite so narrow – now that Congress has prohibited the transfer of almost all Gitmo detainees to the United States – had the Administration been more politically astute at the outset in actively managing the closure of Guantanamo together with the members of Congress whose obstruction it needed to avoid. Nonetheless, recent diplomatic resettlement efforts have been markedly more successful than those pursued by the Bush Administration. And this Administration has managed, so far, to avoid both the conclusive cementing of rights-hostile judgments (like that of the D.C. Circuit in the Uighurs’ case), and the repeated rebukes the previous executive faced at the hands of the highly active Supreme Court.




Posted 3:08 PM by Deborah Pearlstein [link]