Law and Political Science

Mark Graber

For about a decade and a half, prominent students of public law have been criticizing the quality of legal scholarship, in particular the ways in which lawyers did and did not do empirical analysis. One criticism, most prominent in an influential law review article by Lee Epstein and Gary King in the Chicago Law Review, was that empirical analysis in law reviews tended to be shoddy, that law professors were unaware of basic principles of social science methodology. Another criticism, most prominent in Gerry Rosenberg's THE HOLLOW HOPE and perhaps my RETHINKING ABORTION, is that much legal analysis either invented convenient empirical facts or tended to deduce empirical facts from normative theories. Consider the claim that restrictions on abortion reflect the underrepresentation of women in legislatures. The claim may be true in the sense that elite women tend to be more pro-choice than elite men and elites are overrepresented in legislatures, but almost no legal work that made this claim acknowledged or even exhibited any interest in the substantial body of public opinion research indicating that women, if anything, tended to be slightly more pro-life than men.

The quality of legal scholarship has clearly improved as a result of these critiques. While the legal academy is still populated with many celebrity constitutional theorists, who would seeming rather turn down a Supreme Court appointment than cite a political scientist who studies public law (or actually stay up to date on the empirical facts underlying their theories), both the quality and quantity of law and social science conversations have improved. Political scientists regularly participate in legal conferences, and there is more engagement (as well as citation) with political science scholarship (witness recent works by Scott Powe. Michael Klarman, Jeff Rosen, Barry Friedman, Mark Tushnet, etc). Many law faculities have successfully raided political science departments, witness Mark Brandon at Vanderbilt Law, Andy Koppelman and Lee Epstein at Northwestern Law, and Kim Scheppele's stint at Penn Law. Nirvana has not yet been reached. In particular, I think there is a bit of "same old, same old," that in addition to paying closer attention to the work of a small number of senior scholars, legal scholarship would benefit by paying closer attention to such scholars as Julie Novkov, Pamela Brandwein, Jon Gould, Paul Frymer, George Lovell, Thomas Keck, Keith Bybee, and others I have no doubt forgotten. Engagement, in short, could be a lot broader. Still things are much better and the trends with respect to the legal academy are upwards.

Alas, the trends with respect to political science are clearly downwards. Today, the crisis of scholarship is in political science departments rather than in law schools. As what counts as legal scholarship has expanded, what counts as political science scholarship is narrowing. Fueled in part by a new generation of administrators who increasingly evaluate scholarship by the amount of grant funding for the research and in part by a new generation of political scientists more concerned with getting money than ideas, what constitues good political science is increasingly being determined by market considerations. Statistics are good because you can get grants to collect data. History is bad because you have to read the text yourself. Objectivity is when you have a second year grad student code opinions as legal or conservative. Making the decision for yourself on the basis on intensive textual analysis is subjective and, hence, not really scientific. One consequence of all of this is that rather than think about interesting problems in the world and read texts, too many younger scholars are being told to use those methods that promise "certainty, and "require expensive machinery and graduate students, so they can get funding. More than one law professor has complained that the result has been lots of statistics that either have little bearing on an important problem in the world or totally misconceives the problem in the world. Another consequence is that teaching in a law school has become increasingly attractive to a great many of us, precisely because the legal academy is becoming the place where ideas are judged on their merits, rather than on their economics. This situation is unfortunate. As humanistic political scientists either physically or emotionally leave their departments, fewer and fewer persons are left to train the next generation of scholars. The generation of political scientists that ranged from Howard Gillman to Christine Harrington to Jeff Segal has, in my judgment, been particularly creative. I fear, however, for the next generation and hope, that in addition to wooing us with both higher salaries and more supportive intellectual environments, law schools and law professors combat the increasing problems with political science with the same fervor that some of us sought to combat the problems we saw in legal scholarship.
Posted 9:23 AM by Mark Graber [link] (7) comments

Data Retention in the National Surveillance State

JB

The Justice Department has asked Internet companies to keep records of what sites individuals visit on the web and what search terms individuals enter in order to aid law enforcement, the New York Times reports.

The department proposed that the records be retained for as long as two years. Most Internet companies discard such records after a few weeks or months.In its current proposal, the department appears to be trying to determine whether Internet companies will voluntarily agree to keep certain information or if it will need to seek legislation to require them to do so.

Data retention is a crucial element of surveillance. One of the most significant protectors of privacy is amnesia. Ordinarily, much of what we do is forgotten, even if it is done in public or is otherwise easily captured. But if the government or private parities keep records of what we do, they can not only recall it, but trace our behavior over time. Hence if government is really serious about surveillance, it is not surprising that they want as much data retention as possible. One key question is who will bear the cost-- although data retention is increasingly cheap, it is not costless, and the Justice Department's request will put some burden on Internet companies.

Although Attorney General Gonzales initially offered enforcement of child pornography laws as the reason for requiring data retention, it soon became clear that the Justice Department wants to use the records for terrorism and general law enforcement. This is inevitable, and it is one of the risks of systematic data retention. Once Internet companies save data and make it routinely available to government, it is very hard for government to restrain itself from using it for many different purposes, not just simply the worst offenses. It would be like putting a very large and delicious cake in front of a very hungry person and expecting them not to want to take a bite.

It is sometimes said that data collection by computers does not invade privacy as long as no human being is watching. But when data is collected and retained, the fact that no human being is watching is irrelevant. Human beings always have the ability to view the data later on, and, moreover, to collate it, discovering features of our lives that were not obvious from isolated elements. This makes data retention a powerful tool of law enforcement, but also a powerful danger to individual privacy.

Posted 9:00 AM by JB [link] (2) comments

Democracy vs. the Market in New Orleans

Anonymous

New Orleans recently held a mayoral election and, to the surprise of many, the incumbent, Ray Nagin, was reelected. Nagin’s reputation is probably low nationwide, but in New Orleans he gradually won people back by persevering through the long months since Katrina and establishing ties with black voters. In general, however, the election showed you can’t beat someone by not offering an alternative. On most issues, Nagin’s opponent Mitch Landrieu, the Lt. Governor of Louisiana, did not disagree with Nagin. This also made it difficult for the election to serve as a referendum on what should be done about the many issues facing the city. Major issues, such as the ability of the city to provide services to all areas inhabited pre-Katrina and the parlous state of the criminal justice system, were not discussed. In the absence of substantial policy discussion, many agreed the election was about leadership.

The inability of the New Orleans mayoral election to focus on policy should sound familiar. The kind of policy discussion that occurs during American elections is rarely satisfying to policy wonks, academics, and the more responsible media commentators. Candidates are reluctant to engage in the kind of specific policy advocacy that could offend some voters. So they temporize, avoid detailed discussions, and emphasize the positive. Decisions are not made through the election, they are put off until after the election.

Perhaps there is a deeper reason why the election seemed to stay on the surface. People in New Orleans have been led to believe that they live in a sort of populist democracy. Who will determine how New Orleans will be rebuilt? Why, the people of New Orleans. From this perspective, all of the major decisions will be determined democratically. There is no doubt that civic participation is up post-Katrina. People search everything their elected officials say for signs and portents of the future. They expect their officials to solve the problems of the city. But perhaps as a decider of the future, democracy is a relatively poor cousin of the market. Many in the New Orleans area have already voted with their feet – they moved across Lake Pontchartrain to higher ground. Home insurance is difficult to obtain – the major insurance companies are pulling back from the coast. The tourist industry is having difficulty restarting.

At this point, for every challenge there is still a solution. The full weight of the coming federal homeowner bailout, for example, will not be felt until late summer or the fall. People will of course feel more confident about the future if no hurricane troubles the city by November. But the market will eventually make its own judgment on New Orleans, perhaps to the deep disappointment of many residents.

One final point about the mayor of New Orleans, who is being inaugurated for his second term today. Perhaps he was hurt somewhat by the account of Katrina in Douglas Brinkley’s recent book Deluge. Brinkley is a historian at Tulane, but this book is a work of journalism. If you want a good overview of Katrina, it is worth reading, but Brinkley’s view of Nagin is so negative that it is perceived here as over the top. According to Brinkley, Nagin’s performance during Katrina was the product of a nervous breakdown and the cold calculation of a political hack. It’s hard to see how both could be the case (and I’ve left out the part where Nagin might be a demon in human form). But Brinkley could have just left it with Nagin’s own testimony before Congress where he admitted a number of substantial mistakes. And if he did admit mistakes, how was he reelected? Perhaps because New Orleans voters saw even less competence during Katrina from their Governor and President.
Posted 11:34 AM by Anonymous [link] (6) comments

Ceballos and Public Speech: Response to Roosevelt

Marty Lederman

There isn't much, if anything, in Kim's post with which I disagree -- including the notion that "academic freedom" is unlikely to be a significant constitutional protection for teacher speech and scholarship (especially in light of the long history of viewpoint-based hiring and tenure decisions).

Kim is absolutely right that the speech that is most important from the perspective of self-governance is speech from the employees to the public, and therefore that Ceballos is not the most disturbing aspect of the Court's government-employee-speech doctrine. Kim writes that "as long as that speech [to the public] is protected, I'm not worried if intragovernmental speech is not." I might share this reaction, if the premise were plausible. But as Kim concedes, the Connick test does not provide very much protection for speech of employees to the public, because that is exactly the speech that is most likely to have an impact on the workplace, thus providing the employer with a strong Connick defense.

Indeed, the limitations of Connick are the least of the problem. These days, the majority of important employee speech to the public is specifically limited by contract, by rules restricting disclosure of classified information, by privilege rules (e.g., attorney-client privilege, deliberative-process privilege, Executive privilege, etc.), and by internal workplace rules, such as those restricting what Supreme Court clerks may disclose to the public. In cases such as Snepp and Morison, the courts have basically held -- not without reason -- that the First Amendment is categorically unavailable to "whistleblowers" when such contractual or classification or privilege rules are present. These rules, and the judicial decisions upholding them and rejecting constitutional defenses out of hand, threaten to render numerous important government processes -- not only cases of wrongdoing but also basic decisions about policy and process -- entirely impervious to disclosure, oversight, public debate and correction. [NOTE: Although I think that such rules are often far too overbroad, I do not think that employees should have the right to simply ignore them. Perhaps this perspective is a function of my tenure at the Office of Legal Counsel. Because of the culture of confidentiality in that office, I would never dream of publicly disclosing classified or attorney-client-protected information that I learned there. Nor do I think that's such a bad thing -- at least so long as the office itself has a presumption of transparency in its decisionmaking, a practice that OLC has followed on occasion and that many of us have urged it to reinstitute.]

This is a particularly dangerous trend in the federal Executive branch, in light of a increasing culture of secrecy characterized by, e.g.:

-- Grossly overbroad use of classification;

-- Aggressive investigation and punishment of leaks (see the recent Mary McCarthy incident, and the new subpoenas to the San Francisco Chronicle);

-- The refusal of the Administration to make public the legal opinions that have authorized the legally controversial tactics used in the current wars;

-- The resistance to congressional oversight, and the assertion of a constitutional power to ignore statutory notification requirements;

-- The assertion of a state-secrets privilege in many recent cases (dealing with, e.g., renditions, torture, the NSA wiretap and phone-records programs, etc.), even where the allegations are that the "secrets" that are classified are with respect to the existence of unlawful programs;

-- The extraordinarily broad arguments made by the SG in the Cheney "task force" case (see here and here), which essentially amounted to an assertion that Congress has virtually no power to regulate -- and thus also no power to oversee -- what occurs in the Executive branch, as long as the internal conduct can be said to have been in the service of the President's power to develop legislative recommendations, to make appointments, to seek opinions from his cabinet heads, to engage in foreign affairs, or to act as Commander-in-Chief;

-- The fairly narrow reach of FOIA and the federal whistleblower statute, at least as construed by the Executive branch and (for the most part) by the courts;

-- The Attorney General's recent in terrorem comments about how the press might be prosecuted for publishing leaks;

-- The current prosecutions in the AIPAC case for disclosure by non-employees of leaked information;

and

-- The alarming and grossly undereported recent decision of the Court of Appeals for the D.C. Circuit in Boehner v. McDermott, holding that disclosure or publication of publicly significant information is not protected by the First Amendment if the disclosure or publication is made with knowledge that it was unlawfully obtained or leaked.

In combination with the pro-employer tilt of Connick itself -- but cf. U.S. v. NTEU -- these trends do not bode well for what Kim rightly identifies as the public-employee speech "that is most important from the perspective of self-governance." And in that light, the Ceballos decision is disheartening, because where public disclosure of alleged government wrongdoing is so fraught with risk of sanction -- and is very unlikely to be deemed constitutionally protected -- the possibility of internal grievance was just about the only modest fallback option for a sincere and well-motivated whistleblower. For the Court now to tell such employees not to worry because the Pickering test might provide some constitutional protection if they go public with their complaints sounds like fairly cynical reassurance to me -- at least until such time as there is some indication from the Court that it is willing to put much more teeth into the constitutional protections for such public disclosure.
Posted 11:34 AM by Marty Lederman [link] (6) comments

Who's Afraid of Ceballos?

Anonymous

Most of the commentary on the Ceballos decision has been negative, including posts by Jack and Marty here. I confess I'm not that troubled by the decision. I think that it takes essentially the right view of the problem of public employee speech. At the least, to damn with faint praise, it's not the worst thing about the Court's employee speech jurisprudence.

The reason employee speech presents such a difficult problem is that the participants are occupying multiple roles, and the different roles possess very different rights and powers. The government as sovereign generally may not punish citizens for the content of their speech, but the government as employer may demand that employees do the job they were hired to do, and insofar as effective performance of that job requires saying some things and not others, it can control their speech. Correlatively, individuals as citizens retain their rights to free speech, but as employees they are subject to job-related sanctions such as dismissal if their speech compromises their performance.

If we think of the issue this way, the majority opinion in Ceballos is essentially doing nothing more than following a syllogism. The government can fire employees based on job performance. When employees speak as part of their employment duties, they are performing the job. Therefore, they can be fired for such speech.

I take this to be quite a narrow holding. Marty notes that the Court did not purport to overrule Givhan v. Western Line Consol. School Dist., 439 U.S. 410 (1979), which held that an English teacher's complaints to a school principal about racism in hiring were protected speech, and I think Justice Kennedy's treatment of that case shows the limits of Ceballos. The controlling factor, Kennedy says, is that Ceballos' expressions "were made pursuant to his duties as a calendar deputy." Thus, Ceballos does not mean that employees get no protection for speech made on the job, or to their employers. I would not even read it to mean that speech made in the course of invoking an internal grievance procedure is unprotected, for those procedures are optional. It means only that when part of an employee's job is the production of certain speech, he or she can be dismissed if that speech is deemed unsatisfactory.

What is so wrong with this reasoning? One response has been that it creates strange anomalies: an employee whose duty it is to uncover wrongdoing and report it to superiors receives no protection for doing so, while an employee whose duties are different does. And the employee whose duty is to uncover wrongdoing is protected if he writes a letter to the editor of a local newspaper, but the same speech is not protected if submitted to a supervisor in a memo.

But why are these anomalies? They follow quite naturally from the distinction between employee speech and citizen speech. And I do not find that distinction as artificial or formal as others have. I think it does a reasonable job of tracking the difference between speech that is important to the First Amendment and speech that is not. From the perspective of speakers, employee speech to employers is likely to be low value. Employee speech, when it is part of an employee's job description, is both compelled and constrained by the job description. It is unlikely to be a significant source of self-actualization, except in the rare case of employees (such as academics, of whom more later) whose job description does not place content-based restraints on their required speech. (When such speech is not part of the job description, it is appropriately conceptualized as a citizen speech to the government, which should get more protection; and this is how I would think about Givhan.)

From the perspective of listeners, which I tend to favor in thinking about First Amendment issues, employee to employer speech is also low value. Public employees are certainly well-placed to know what is wrong with the agencies they work for, and their speech to the public has great First Amendment value. But their speech to employers does not. That speech is valuable in terms of helping the employer; it can contribute greatly to government efficiency, and it arguably should be protected by statute. But governmental efficiency is not a First Amendment value--indeed, my main objection to the Court's employee speech jurisprudence is that it places too high a value on government efficiency, at the expense of real First Amendment values like public oversight of government.

Another problem, Jack suggests, is that the upshot is that First Amendment protection goes to the wrong speech--to the less informed employees who are speaking about matters outside their expertise. I agree with Jack's suggestion that there is relatively little First Amendment value in speech like that at issue in Rankin v. McPherson, 483 U.S. 378 (1987) (the sheriff's dispatcher who, commenting on the Reagan assassination attempt, said "If they go for him again, I hope they get him."). But as I said above, I also think there is little First Amendment value in even an expert report submitted as part of an employee's duties. (Again, this is not to say that there isn't great value in terms of possible contribution to governmental efficiency, just that it has little to do with either self-actualization or democratic self-governance, which are the standard First Amendment desiderata.)

What about Ceballos' implications for academic freedom? I think that it's actually quite hard to make out a right to academic freedom that protects employees of state universities in a manner similar to the protections citizens enjoy. After all, they are judged on the content of their expression, and sometimes fired for it, when they undergo tenure review. If they are not fired, tenure is what protects them, and I don't think that the First Amendment requires a tenure system in public universities. If state universities abolished tenure and started making promotion or retention contingent on approved viewpoints, that would certainly destroy their academic reputations, but I don't think that Party Line University is unconstitutional. (Perhaps the best argument on the other side is that some job descriptions effectively create public forums, within which the government cannot engage in certain kinds of discrimination. But if the government wants to create a university that promotes only its own viewpoints, I think it can do so.)

What we should be concerned about, I think, is not Ceballos so much as the whole Connick-Pickering regime under which employee speech never receives full First Amendment protection but is protected at most by a relatively anemic balancing test. This approach chills the speech that is most important from the perspective of self-governance: speech from the employees to the public. As long as that speech is protected, I'm not worried if intragovernmental speech is not. I'm not even worried if on-the-job speech that isn't part of an employee's duties isn't protected--that is, I think we could say that the speech in Rankin isn't protected with very little cost to the First Amendment. What is needed (and this is an argument I made in my student note some years ago) is a safe harbor where employee speech can be fully protected subject to some narrow exceptions for speech that harms working relationships (e.g., criticism of direct superiors) or that suggests the employee is somehow unfit to do his or her job (e.g., racist speech by a police officer). With such a safe harbor (in my note, I suggested off-the-job speech), we can be relatively confident that the speech that does have value from the First Amendment perspective will not be suppressed.

Posted 5:15 PM by Anonymous [link] (3) comments

Regime Politics and Non-Majoritarian Problems

Mark Graber

Howard Gillman, the founder of historical institutionalism in public law, is writing some very interesting stuff on the Empirical Legal Studies Blog. Today, he focuses on "regime politics," the view, espoused by many political scientists, that judicial review in practice more often serves than thwarts the will of elected officials in the dominant national coalition. My work is often cited as being in this tradition. But I am not sure. Below is a version of my comment on Professor Gillman's post.

I'm a big fan (what else is new) of the so-called "regime politics" literature and an even bigger fan of Howard Gillman's contributions (he "accidently" omitted his award winning essay in the 2002 APSR and his contribution to the recent Kahn/Kersch volume--both of which ought to be required readings in public law graduate courses). Still, I wonder whether "regime politics" correctly captures what is going on. Gillman is interested in "how much of the behavior of judges -- and (for that matter) how much of the development of law -- can be explained if we assume that courts often serve what Robert Dahl once called the "dominant governing coalition" of a polity." My own sense of the universe is that while some legal developments can be said to serve the interests of the dominant governing coalition (Jacksonians from all over the spectrum wanted the court to decide Dred Scott), more often than not, judicial review serves the interests of only some members of the dominant coalition. I think I can explain why some large number of Republicans welcomed Lawrence (either because they liked the result or wanted the court to resolve the issue), but I would not say it served the interests of the entire coalition. This was a point I tried to make, but did not make at all clearly in the very dated "Non-majoritarian" essay alluded to in the main post (boy, do I wish I could rewrite the thing in light of what others have taught me). Dominant national coalitions are quire frequently fragmented, that rather than understand judicial review as either thwarting or serving the interests of dominant national coalitions, we would better understand the practice as advancing some fragments of the dominant national coalition at the expense of others. (Think Kevin McMahon's story of how Democrats in the executive branch used courts to circumvent Democrats in the Congress on racial issues).
Posted 3:47 PM by Mark Graber [link] (6) comments

Ceballos-- The Court Creates Bad Information Policy

JB

Marty has explained the details of the Ceballos opinion below and I won't repeat what he has to say here. Instead let me offer a few remarks on the larger meaning of the case.

The Court's employee speech cases rest on an unstable tension. On the one hand, government cannot punish people for expressing their views on matters of public opinion as contributions to public discussion. Nor can it punish people for criticizing the government and its internal operations. On the other hand, government employers have interests in workplace harmony and managerial efficiency. Statements by employees can interfere with both. What to do then, when government employees criticize government operations or make statements that annoy or embarrass their employer?

The Court has resolved this tension by dividing cases into two categories. Where the employee is not speaking on a matter of public concern, there is no first amendment protection. Where the employee speaks on a matter of public concern-- i.e., something that is a contribution to public discussion-- the Court balances the employee's rights against the damage to the employer's legitimate interests in managerial efficiency and workplace harmony.

Balancing tests are messy, ad hoc, and difficult to apply fairly. Ceballos tries to avoid the balancing test by carving out a new bright line rule. If the statement is made as part of the employee's duties, or in the employee's capacity qua employee, there is no first amendment protection at all. It is as if the statement were not a matter of public concern or a contribution to public discussion.

The result is that employees get some first amendment protection only if their speech is outside of their duties and responsibilities as employees. What this means is that the paradigm case of protection becomes a case like Rankin v. McPherson, in which a local sheriff's dispatcher said, upon hearing that President Ronald Reagan had been shot, but would survive, "if they go for him again, I hope they get him."

Note that the dispatcher had no special expertise about Reagan; rather, she was just blowing off steam and expressing her hatred of the President. She would receive some degree of First Amendment protection if the work of the local sheriff's department was not too greatly undermined by the fact that one of its dispatchers expressed support for what was, in fact, a very serious crime. As Justice Scalia said, the issue was whether she could "ride with the cops and cheer for the robbers." The Court concluded, 5-4 that the disruption was not sufficiently serious.

In the original decision in this line of cases, Pickering, the Court suggested that one reason for protecting employee speech is that employees, by their position and expertise, might have information and perspectives that would be particularly valuable contributions to the public in deliberation about public issues. Not all employees would, of course, but enough would that protecting employee speech would leverage their knowledge and expertise. (At the same time, the Court was worried that employees would use their assumed expertise to make false statements of fact that would be difficult for employers to rebut). Thus, we can see Pickering as a case about *information policy*; i.e., a set of decisions about how government should promote the creation and dissemination of valuable information throughout society. The Pickering test, as originally conceived, sought to promote the spread and diffusion of valuable information from people who would have reason to know about government policies and whether they made sense or were inefficient, unwise, corrupt, or illegal.

The problem with this vision was that it ran headlong into the government's interest in preserving workplace harmony and managerial efficiency. No employer likes an employee who makes him or her look bad, and this almost always causes strife within the workplace, since the employee who complains is almost always suggesting that someone else did a bad job, was corrupt, or in Ceballos's case, acted illegally.

Instead, the Court has retreated to a vision of employee speech cases where employees are protected only where they are least likely to be in a position to know what they are talking about, as in the case of Rankin v. McPherson.

After Ceballos, employees who do know what they are talking about will retain First Amendment protection only if they make their complaints publicly without going through internal grievance procedures. Although the Court suggests that its decision will encourage the creation and use of such internal procedures, it will probably not have that effect. Note that if employees have obligations to settle disputes and make complaints within internal grievance procedures, then they are doing something that is within their job description when they make complaints and so they have no First Amendment protections in what they say. Hence employees will have incentives not to use such procedures but to speak only in public if they want First Amendment protections (note that if they speak both privately and publicly, they can be fired for their private speech). However, if they speak only publicly, they essentially forfeit their ability to stay in their jobs, first because they become pariahs, and second, because they have refused to use the employer's internal mechanisms for complaint (mechanisms which, if they used them, would eliminate their First Amendment rights). In short, whatever they do, they are pretty much screwed. So the effect of the Court's decision is to create very strong incentives against whistleblowing of any kind. (Another possible result of the case is that employees will have incentives to speak anonymously or leak information to reporters and hope that the reporters don't have to reveal their sources).

I am sympathetic to the Court's desire to reduce the burden of ad hoc balancing by creating a bright line rule of no protection. But in this case, the Court's decision doesn't really create a bright line rule, because the boundaries of what is within an employee's job description may turn out to be quite contestable, and will be contested in future cases. Perhaps more important, the Court resolves the original tension in its doctrine by creating a rule that completely undermines the doctrine's information policy goals. All the doctrine does now is protect people like the dispatcher in Rankin v. McPherson, who is contributing nothing to information about the government's operations, but is just blowing off steam. Perhaps the dispatcher does deserve First Amendment protection, but the doctrine shouldn't be organized around her.

Posted 2:41 PM by JB [link] (54) comments

Do Public Employees Have Any First Amendment Rights to Complain About Wrongdoing?

Marty Lederman

Cross-posted from SCOTUSblog.

As a general matter, a state cannot deny someone public employment because of their private speech. What then, is the First Amendment protection for the speech of a public employee? The Supreme Court has developed a distinct doctrine addressing that question, in which the canonical cases are Pickering v. Board of Ed. of Township High School Dist. and Connick v. Myers. As a general matter, the Pickering/Connick test sets out a two-part inquiry: First, was the employee's speech on "a matter of public concern"? If not, then the employee has no First Amendment cause of action based on his or her employer’s reaction to the speech. If, however, the speech was on a matter of public concern, then the First Amendment question is whether the government entity had an adequate justification for treating the employee differently from any other member of the general public. The state has broader discretion to restrict speech when it acts in its role as employer, but the restrictions it imposes must be directed at speech that has some potential to affect the state employer's operations.

In almost all of the cases in this line, the speech in question had clearly been made in the employee's private capacity. Somewhat surprisingly, the Court had never quite decided whether "official capacity" speech -- speech an employee makes qua employee -- is entitled to even the modest First Amendment protection of Pickering/Connick.

Today the Court held that most, if not quite all, of the speech made in a public employee's official capacity is entitled to no constitutional protection at all. The case involved a deputy district attorney, Ceballos, who worked in the Los Angeles County District Attorney's Office. Ceballos discovered what he considered to be serious misrepresenations in an affidavit that his office had used to obtain a search warrant -- and he did what an employee was supposed to do in such a situation: Not announce it to the public, but instead bring the alleged wrongdoing to the attention of his supervisors. Those supervisors disagreed with Ceballos's concerns; and Cebellos claimed that he was thereafter subjected to a series of retaliatory employment actions.

The Court issued its opinion today in Garcetti v. Ceballos, No. 04-473, originally argued in the October sitting and then reargued after Justice Alito joined the Court. Justice Alito's was the fifth vote in favor of reversal (although we don't know for certain whether the judgment or opinion would have been different with Justice O'Connor participating). Justice Kennedy wrote the majority opinion, which the Chief Justice and Justices Scalia, Thomas and Altio joined. As I had predicted, Justice Souter -- who likely was assigned to write the majority before Justice O'Connor's retirement -- wrote a dissent, joined by Justices Stevens and Ginsburg. Justices Stevens and Breyer each also filed dissenting opinions.

The looming question in the case was not so much the outcome but the Court's rationale -- and, in particular, the question whether the Court would hold that a government employee's speech in her "official capacity" is entitled to no constitutional protection -- not even of the modest Pickering/Connick variety. The Solicitor General urged the Court to hold that "the First Amendment has nothing to say about actions based on [a] public employee's performance of his duties."

Today, the Court took that very signifiant step, holding that "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline." This apparently means that employees may be disciplined for their official capacity speech, without any First Amendment scrutiny, and without regard to whether it touches on matters of "public concern" -- a very significant doctrinal development.

Or perhaps not quite. In order to issue such a holding, the Court would have had to distinguish or overrule Givhan v. Western Line Consol. School Dist., 439 U. S. 410 (1979), which provided First Amendment protection to an English teacher who had raised concerns to the principal about racism in her school’s employment practices. Citing Givhan, Justice Kennedy writes today that "[t]he First Amendment protects some expressions related to the speaker’s job," even when made within the workplace. But, he argues, "[t]he controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy."

So, it appears that if one's duties are to expose wrongdoing in the workplace, such exposure is entitled to no constitutional protection, but that if an employee whose duties do not involve such whistleblowing makes the exact same complaint, then Pickering/Connick analysis still applies. A somewhat odd result, at least on first glance. And odder still: Under today's opinion, if Mr. Ceballos had written a newspaper article complaining about the wrongdoing in question, rather than taking the matter to his supervisor, he would at least be entitled to whatever constitutiional protection Pickering/Connick offers. Does today's decision therefore give employees an incentive to go outside the established channels -- to take their concerns to the newspapers, instead of up the established chain to their supervisors? Justice Kennedy has two responses to this perceived "doctrinal anomaly":

First, "[t]his objection misconceives the theoretical underpinnings of our decisions. Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government. The same goes for writing a letter to a local newspaper, see Pickering, 391 U. S. 563, or discussing politics with a co-worker, see Rankin, 483 U. S. 378. When a public employee speaks pursuant to employment responsibilities, however, there is no relevant analogue to speech by citizens who are not government employees."

Second, the practical concern is overstated, according to the Court, because if "a government employer is troubled by the perceived anomaly, it has the means at hand to avoid it. A public employer that wishes to encourage its employees to voice concerns privately retains the option of instituting internal policies and procedures that are receptive to employee criticism. Giving employees an internal forum for their speech will discourage them from concluding that the safest avenue of expression is to state their views in public."

And what does this decision protend for the constitutional rights of teachers in their classroom speech and in their scholarship? The answer is not yet clear. Here's Justice Kennedy again: "There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court’s customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching."
Posted 12:13 PM by Marty Lederman [link] (2) comments

So, What About the Merits?: Was the Search of Rep. Jefferson's Chambers Lawful?

Marty Lederman

I don't intend to answer the question here, only to provide some pointers for folks more interested in the nitty-gritty:

Rep. Jefferson's brief to the dstrict court can be found here.

Akhil Amar runs down most all of the possible arguments from originalist and structuralist perspectives here.

Bob Bauer explains here and here why he thinks there's more to the legal objections than meets the eye -- and further elaborates here on how our eyes should, in fact, be kept on "the big picture."

From what little I've read, the most serious constitutional argument appears to be that some of the materials in Rep. Jefferson's office are protected by the Speech or Debate Clause -- materials that DOJ purports not to be interested in searching; that such materials must be strictly segregated from those not so protected; and that the Administration's procedures for enforcing this separation were inadequate. (Those procedures are described in paragraphs 136-155, pages 74-82, of the affidavit in support of the government's application for the search warrant.) For a sense of the details of this argument, see Eugene Volokh's post (and some of the comments, esp. by "Medis") here.

For what it's worth, even if this argument is a valid one (and I haven't looked at the question closely enough to know whether it is), it hardly seems the stuff of high dudgeon or a constitutional shoot-out at the Rayburn Corral. Perhaps, if this were part of a concerted congressional effort to fight back against the tide of Executive aggrandizement, the outrage might be understandable. But Congress has been almost completely indifferent, for two years running now, with respect to very serious separation-of-powers challenges -- an Executive branch that has repeatedly asserted a constitutional power to ignore statutes regulating the conduct of war; that has kept virtually all of its dubious activities secret from the legislature and public; that has resisted any serious oversight; that has engaged in widespread surveillance of U.S. citizens without warrant or probable cause of wrongdoing (or that the U.S. persons are agents of al Qaeda); etc. And Congress has simply sat back and done nothing. If Denny Hastert, et al., had been fighting tooth and nail on torture, and oversight of Iraq, and the manipulation of intelligence, and the use of signing statements to signal noncompliance with scores of statutes, and violations by NSA of FISA and other statutes, etc., then perhaps this latest incident would rightly be seen as a straw that broke the camel's back. But as Jack has explained, Congress has instead allowed its own core constitutional powers -- such as the enactment of laws -- to be swept aside with impunity by an Administration with a strikingly aggressive view of Executive prerogatives. That legislators care much more about the sanctity of the contents of their offices than about the enforcement of the laws they have written is, perhaps, predictable, but nevertheless unfortunate. (Barney Frank to the same effect: "What we now have is a Congressional leadership, the Republican part of which has said it is okay for law enforcement to engage in warrantless searches of the average citizen, now objecting when a search, pursuant to a validly issued warrant, is conducted of a Member of Congress.")

For a significantly different take on it, however, see Bob Bauer's posts, linked above.
Posted 1:47 PM by Marty Lederman [link] (10) comments

Why Did Bush Seal the Documents from the Jefferson Raid?

JB

Ostensibly Bush was worried that three of his advisors, including Attorney General Gonzales, would resign. But this is a White House known for its stringent demands of (and enforcement of) loyalty. The President might also have been worried that the House would demand that Gonzales resign, but calls for Bush cabinet officials to resign have hardly deterred this White House before (think Donald Rumsfeld).

A third, far more interesting reason-- also alluded to in Marty's previous post-- appears at the very end of this Washington Post story about the raid on Congressman Jefferson's office:

"If you tell the House to stick it where the sun don't shine, you're talking about a fundamentally corrosive relationship between two branches of government," the senior administration official said. "They could zero out funding; they could say, 'Okay, you can do subpoenas, so can we.' "

The one thing that this Administration fears more than anything is oversight.
Posted 9:35 AM by JB [link] (7) comments

Give Credit Where It's Due

Marty Lederman

Turns out it was none other than David Addington who was the official within the Executive branch questioning the legality of the search of Congressman Jefferson's office:

Vice President Cheney's chief of staff, David S. Addington, was among the leading White House critics of the FBI raid, telling officials at Justice and on Capitol Hill that he believed the search was questionable, several sources familiar with his views said. . . . Addington -- who had worked as a staffer in the House and whose boss, Cheney, once served as a congressman -- quickly emerged as a key internal critic of raiding the office of a sitting House member. He raised heated objections to the Justice Department's legal rationale for the search during a meeting Sunday with McNulty and others, according to several sources.

Perhaps this is simply the function of a very principled view of a very strict regime of separated powers, going in both directions.

Or perhaps Addington -- always on the lookout for threats to Executive prerogatives, no matter how speculative -- is looking ahead, contemplating the impact of this precedent if and when Congress starts subpoenaing documents from the Executive branch . . . .

In any event, just as the Jefferson search was the alarm bell that finally and belatedly awoke the Congress to the notion that perhaps it has some institutional prerogatives worth fighting for, Addington's campaign to return the documents to Rep. Jefferson apparently was the straw that broke another camel's back -- about this matter, high-ranking DOJ officials were willing to stand up to Addington: Reportedly the Attorney General, Deputy Attorney General and Director of the FBI all threatened to resign if Addington prevailed.
Posted 1:20 AM by Marty Lederman [link] (8) comments

A corrupt Congress is shocked to discover a lawless Executive

JB

I've noticed several attempts in the news to connect the FBI's raid on Congressman Jefferson's office with the Bush Administration's heavy handed assertion of executive authority.

I think this is a distraction. There is no constitutional or legal bar to the search that I am aware of. The Speech and Debate Clause does not prohibit it. Although as a matter of tradition and comity, the Executive should avoid invading the offices of Congressmen and Senators whenever possible, in this case the warrant authorizing the search came only after Congressman Jefferson refused to obey a subpoena for documents. The Speech and Debate clause, and indeed, the principles of respect and comity between the branches should not be employed to insulate government officials from liability for acts of illegality and corruption.

And that is the real issue: Illegality and corruption, both by members of the Executive branch *and* by members of Congress.

The Bush Administration has, over the past six years, detained American citizens without any of the protections of the Bill of Rights, engaged in cruel, inhuman and degrading treatment of detainees, imposed new forms of secrecy to insulate itself from oversight both by the Press and by Congress, used the state secrets privilege to shut down any investigation into its mistreatment of detainees, hid and prevaricated about the evidence justifying, the reasons for, and the cost of Iraqi war, and begun a massive spying program on American citizens. Throughout all of these events, the United States Congress has been essentially supine, unable or unwilling to lift a finger to oppose an executive branch that was simultaneously incompetent, arrogant and out of control. And now, when the FBI catches redhanded a Congressman engaged in the most egregious act of corruption, *now* members of Congress are upset that the Executive is asserting too much authority.

They have their nerve.

Quite frankly, I find the bipartisan closing of ranks over this issue disgusting. If Congressmen are interested in Executive overreaching, they should start demanding that the President justify his NSA program; instead they doing everything they can to paper over its illegalities. They should hold hearings on how the Executive misused and manipulated intelligence reports, hearings that have repeatedly been promised and have repeatedly been postponed. They should hold hearings on the Administrations's policies of no-bid contracts in Iraq and elsewhere, and the many reports of corruption, incompetence, and war profiteering by these very same contractors who didn't have to engage in competition or oversight. They should investigate the President's decisions about torture, about rendition, about detention policies, about, well, you name it-- all the incompetent and corrupt activities of this most incompetent and corrupt Administration.

Instead of being upset about the President spying on Americans without a warrant, and in violation of federal law, the members of the U.S. Congress are upset about the FBI searching a Congressman's office with a legal warrant. Instead of being upset about the cruel, inhuman and degrading tactics of the CIA and military interrogators, members of the U.S. Congress are upset that a corrupt Congressman's office has been disturbed. Instead of being upset about abuses of government contracting and incompetence that have cost the tax payers countless sums of money and sapped resources from our troops overseas, members of Congress are busy protecting corruption in the halls of Congress itself.

Make no mistake: the real reason why Congress is so concerned about the raid on Jefferson's office is that many of them know that corruption within Congress is rampant. If the FBI and the Justice Department can start getting serious about investigating corruption in Congress, many of their colleagues (and possibly they themselves) could be next. Is it any accident, do you think, that instead of trumpeting corruption by a Democratic Congressman, Speaker Hastert-- who himself is rumored to be under investigation in the Abramoff affair-- is objecting loudly to the search of Jefferson's office?

The American Constitution is premised on the idea that any Executive overreaching that might take us on the path to tyranny and dictatorship would be met with Congressional objection and Congressional oversight. For six years we have been subjected to an arrogant, self-righteous, and incompetent Administration, which has grabbed for power and avoided accountability in every way it could, chipping away at Americans' proud traditions of freedom, harming our country's interests around the world and undermining the deliberative processes that produce sound policy and good governance. It is an Administration blinded by smug self-righteousness, devoted not to the development of competent and sound policies for the governance of our country, but to the concentration and perpetuation of its own power. But at the moment that we need the Congress most, it is feckless, corrupt, and venal, offering no resistance to mounting evidence of this Administration's illegality and incompetence. If Congress now finds that Executive power is encroaching a bit too close for comfort, it is poetic justice, for this Congress has thoroughly abdicated its constitutional responsibilities to protect the American people from Executive overreaching.

Posted 11:39 AM by JB [link] (17) comments

The Unfortunate Transparency of Law: Why They (Allegedly) Could Not Simply Amend FISA

Marty Lederman

So, why aren't the Senate Democrats making more of a fuss about the fact that the Attorney General and Michael Hayden determined to ignore FISA on the theory that the President has the constitutional power to violate such statutes? If Hayden's testimony is any indication, there appear to be two reasons:

First, it appears that Democrats such as Nancy Pelosi, Jane Harman, and Bob Graham were repeatedly briefed on the program. The Democrats have not yet come up with an adequate explanation of why their leaders did not object -- not even in private, to the Administration -- that the program violated FISA and was therefore unacceptable absent further statutory authorization. It could be that the program was described in such a way that it was not clear to the members of Congress that it did violate FISA. Or perhaps the Democratic leadership had no real opportunity to object. But if the Administration told the Democratic leadership that this program was not in compliance with FISA -- and that the authorization for the program derived from the authority of the Commander-in-Chief to ignore statutory constraints -- then it could be argued that the Democratic leadership would be complicit in the campaign to secretly circumvent FISA. If that's so, then it's predictable that the Democrats would now be reluctant to raise a fuss about the issue. They need a story that will explain the conduct of their own leaders -- and they might not yet have one (not a story that can be told in public, anyway).

Second, if Hayden is to be believed, the members of Congress who were briefed agreed with the Administration that: (i) The program was useful but in violation of FISA; (ii) The best way to deal with the program of FISA's obsolescence was to amend FISA to accommodate the program; but (iii) To amend FISA in such a way would risk public revelation of NSA methods that had to remain secret:

SEN. ROBERTS: [A]s you go down the list of people who were briefed -- and I'm just going to mention a few here: Ted Stevens, Dennis Hastert, Nancy Pelosi, Bob Graham, Dick Shelby, Jay Rockefeller, John Murtha, Harry Reid -- these are not shrinking violets. These are pretty independent people. And they say what is on their mind. So my question to you is: Basically, when you were doing the briefings, did anybody . . . express real opposition to this program?

HAYDEN: Sir, again, I don't want to get into private conversations, but the generalized questions asked and answered, concerns raised and addressed -- and I can tell you, in my heart of hearts, Senator, I never left those sessions thinking I had to change anything.

ROBERTS: Well, did anybody say, at any particular time that the program ought to be terminated?

HAYDEN: No, sir.

ROBERTS: That it was illegal?

HAYDEN: No, sir.

ROBERTS: There was, as I recall, a conversation unto the necessity of, perhaps, to fix FISA -- if that's not an oxymoron -- to improve FISA, to reform FISA. And that is an ongoing discussion in this committee and in the Judiciary Committee. And my memory is that it was members of Congress who gave you advice not to do that. Is that correct?

HAYDEN: Sir, that was in the large group in March of 2004. And there were discussions. FISA was considered to be one of the ways ahead. And my memory of the conversation is that there were concerns, I would say, almost universally raised, that it would be very difficult to do that and maintain the secrecy which was one of the advantages of the program.
* * * *
SEN. MIKULSKI: [I]n the five years that we've known each other and have talked about privacy versus security and the inhering tension, why didn't you come and ask for reform, either to any member of the committee or the committee and say, this, stabbing from what you've said -- and I don't want to put words in your mouth -- but FISA, in some ways, is dated. It's klutzy; it has choke points; technology has changed; the threat has changed.

Why didn't we get a request for reform?

HAYDEN: There were clear concerns [at DOJ], in which frankly, I shared, that attempts to change FISA would reveal important aspects of the program, eliminating key secrets that enabled us to do the kinds of things we were doing to an enemy whom I'm certain felt that this space was a safe haven for him. . . . And finally, in that March 2004 meeting that the chairman and Senator Hatch had mentioned where we had the senior leadership of the Congress there in addition to the leadership of the two intelligence committees, there was discussion about changes to FISA. And without getting into the details of the conversations, ma'am, there was a powerful and general consensus that an attempt to change the legislation would lead to revelations about the nature of the program, and thereby hurt its operational effectiveness.

Assuming that this account is accurate (and I have no way of knowing whether it is), it would raise two important questions.

First, Can it really be the case that any necessary amendment to FISA would reveal NSA secrets that would, in turn, cause Al Qaeda to act differently, thereby undermining NSA's efforts? That sure doesn't seem to be plausible.

For example: From all we can tell, the NSA program involves surveillance of persons ("targets," in FISA parlance) here in the United States, based upon a judgment of NSA experts that their calling patterns reveal that such targets might be conversing with Al Qaeda members (or with agents of undefined "affiliated organizations"). Under FISA, those patterns likely do not establish probable cause that the targeted U.S. persons are agents of a foreign power, nor that the targets' phones are used by agents of a foreign power. And without those two showings, the FISA Court could not approve the surveillance -- it would be unlawful.

If that's the case, why couldn't FISA be amended, for example, along the lines proposed by former DOJ FISA expert David Kris? Under one variant of Kris's proposal -- which is based on the very standards that NSA is said to have been using -- the FISA Court would be required to grant approval upon probable cause that the communications to be intercepted involve at least one party who is a member or agent of Al Qaeda or an affiliated terrorist organization. Or, if for some reason probable cause is too high a standard, then the statute could merely require a reasonable basis to believe that the communications to be intercepted involve at least one party who is a member or agent of Al Qaeda or an affiliated terrorist organization. If that formulation doesn't quite cover what NSA wishes to do, surely there are other possibilities, as well.

Why would such a statutory amendment -- any more than the numerous other amedments to FISA over the years, including in the PATRIOT Act -- reveal state secrets in a way that would undermine NSA's SIGINT capabilities? The statute need not describe the methods by which NSA develops its evidence, nor the computer algorithms that provide the reason to believe that conversations with Al Qaeda are afoot. For many, many decades, agencies such as the CIA and NSA have engaged in extensive classified conduct, pursuant to general statutory authorizations, without any suggestion that the existence of the law itself reveals too much about sources and methods: It has not been necessary for such agencies to act outside the law.

In his testimony, Hayden suggested that the NSA is working in a "space" that Al Qaeda believes is "a safe haven" -- presumably beyond the reach of the law -- and that an amendment to FISA would tip off Al Qaeda that the haven is no longer so safe. But even assuming arguendo what we have no reason to assume -- namely, that Al Qaeda knows the ins and outs of FISA's complex statutory scheme -- why would terrorists have any reason to believe that they currently have a "safe haven" for their international phone calls? After all, the NSA can currently lawfully intercept those very same calls if the interception takes place overseas -- indeed, FISA does not even apply to such surveillance. Why, then, would an amendment such as Kris's proposal or something similar appreciably alter Al Qaeda's calling patterns?

Second, and more fundamentally, let's assume that Hayden, and the members of Congress who have been briefed, are correct that an amendment to FISA would itself reveal too much about the NSA's capabilities, to a point where terrorists would actually take steps to make their communications less susceptible to surveillance. OK, but what should happen then? Indeed, further assume what appears to be the case here: that the very reason a statutory amendment would be detrimental is that it benefits our intelligence operations to have the enemy believe that what our intelligence agencies are doing is unlawful. (This same scenario is playing itself out in the context of torture and other coercive interrogation techniques. The Administration goes around the world trumpeting that it does not torture, that it treats all detainees humanely, and that it does not engage in cruel, inhuman and degrading treatment. But if we actually abided by all of those norms, Al Qaeda would know that there are certain limits to our interrogation methods -- and such interrogations are far less effective if the detainee knows that the interrogator has legal limits. Therefore, we secretly adopt very counterintuitive notions of "torture" and "humane" treatment -- which permits us to use techniques such as waterboarding and hypothermia against surprised Al Qaeda suspects who (understandably) assume that such horrific techniques are legally proscribed. More importantly, we refuse to publicly discuss whether such techniques are off-limits. We may insist in our every utterance that we do not torture, but in the very next breath we also insist that to publicly explain what we mean by "torture" would be to give away critical state secrets.)

In other words, assume what might well be the case: that the Administration (and possibly some in Congress) did not wish to amend FISA to make the NSA program lawful because there is a genuine and distinct tactical advantage in having our enemies think that we are abiding by the rule of law declared in the U.S. Code, when in fact we are not doing so.

So here's the question: Is it acceptable in a liberal democracy for a nation's positive law to announce to the world that Conduct X is unlawful, but for the government to secretly engage in such conduct nonetheless? Assume you are a member of Congress who agrees that the NSA program is valuable, agrees that it is currently proscribed by FISA, and agrees that any amendment to FISA would give away the store. What should you do? (This is not a rhetorical question. Although I'm certainly inclined to say that this is one of the costs of the rule of law, I genuinely think it's a difficult question, and one that needs thoughtful responses because, justifiably or not, it appears to be arising more frequently these days.)
Posted 8:35 AM by Marty Lederman [link] (13) comments

Price Gouging is Not a Disparate Impact Defense

Ian Ayres

In certain markets, disparate impact law prohibits policies that disproportionately burden protected groups -- unless those policies have a sufficient business justification.

Some people -- including some judges like Richard Posner -- have suggested that any policy which increases a firm's profits should satisfy the business justification requirement.

But in an article that has just been accepted by the California Law Review, I argue that policies which enhance profits by exploiting market power should not constitute a business justification.

Price gouging is not business justified -- even if greatly enhances a firms profits.

The article applies this idea to employment, but it grows out of work that I did as an expertwitness on a series of auto financing cases. The article discusses these cases and the arguments of three opposing experts: Richard Epstein, James Heckman and George Priest.
Posted 8:20 AM by Ian Ayres [link] (11) comments

Michael Hayden and Article II

Marty Lederman

According to General Michael Hayden's testimony yesterday, in the days following September 11th, Hayden was of the view that FISA outlawed the sort of surveillance program that the NSA eventually implemented. UPDATE from the transcript:

HAYDEN: I was asked by Director Tenet, "Could you do more?"

I said, "Not within current law."

He says, "Well, what could you do more?"

And I put it together with, as I said, technologically possible, operationally relevant, now the question of lawfulness.

So I described where we had stopped our expansion of activities because of the current legal structure under which we were operating.

Indeed, one year later he even testified to a joint House-Senate Committee that the legislators and their constituents needed to reconsider, in light of modern developments and 9/11, the balance between liberties and security that Congress and the President had struck when they enacted FISA in 1978.

But in October 2001, he approved the NSA surveillance program anyway. Why didn't he abide by FISA? Because he received assurances from the Attorney General, the Office of Legal Counsel, and the White House Counsel that the President had Article II authority to supresede (i.e., violate) that statute and its criminal prohibitions. Apparently, the top three NSA attorneys agreed with this constitutional analysis, which was enough for Hayden -- even though their views were not provided in writing and Hayden had not read the OLC opinions (still not public, by the way) setting out the Article II argument.

Apparently, back in 2001, the Department of Justice had not yet dreamed up the argument that Congress inadvertently approved a circumvention of FISA when it enacted the September 18, 2001 Authorization for Use of Military Force. At the inception of the program, the legal justification was simply that FISA was unconstitutional as applied to this endeavor. Hayden "did not recall any substantive discussion about the Congressional authorization in September 2001 to use all necessary force against Al Qaeda — a resolution that the White House now says helped give it legal authority for the wiretapping operation. 'Our discussion anchored itself on Article II,' he said."

UPDATE: Here's the relevant excerpt from the transcript:

HAYDEN: [W]hen I talked to the NSA lawyers, most of my personal dialogue with them, they were very comfortable with the Article II arguments and the president's inherent authorities.

SEN. LEVIN: Does that mean that they were not comfortable with the argument that...

HAYDEN: I wouldn't say that. But when they came to me and we discussed its lawfulness, our discussion anchored itself on Article II.

LEVIN: And they made no comment about the authority which was argued by some coming from the authorization of military force?

HAYDEN: Not strongly, one way or the another. It was Article II.

(Full disclosure: I worked at OLC at the time but, not surprisingly, I was not "read into" this NSA program; and I have no knowledge, beyond what I've read in the press, about what OLC advised.)

In the office to which he has been nominated -- Director of Central Intelligence -- Hayden will likely confront this Article II argument in other important settings. For example, the McCain Amendment now prohibits the CIA from engaging in cruel, inhuman and degrading treatment of detainees. One might think that this statute -- along with the torture and federal assault statutes -- would foreclose the use of waterboarding, hypothermia and other CIA "enhanced interrogation techniques," such as forcing prisoners to stand, handcuffed and with their feet shackled to an eye bolt in the floor, for more than 40 hours. But reportedly such techniques remain part of the CIA's repertoire, justified in large measure by the Administration's view that the President's "constitutional authority . . . to supervise the unitary executive branch and as Commander in Chief" gives him the power to ignore such statutory constraints, or to construe them in a manner contrary to manifest legislative intent.

UPDATE: In his testimony, Hayden indicated that if the lawyers tell him there's an Article II prerogative, that will be enough for him:

SEN. FEINGOLD: General, if you're confirmed, there will likely come a moment when the president turns to you and asks whether there is more the CIA can do under the constitutional authority that he has asserted under Article II. What would you tell him? Is there more?

HAYDEN: Well, obviously a hypothetical, but let me just imagine the hypothetical in which not unlike the NSA situation, there are additional things that could be done.
Senator, I'd consult my lawyers and my conscience just as I did in 2001. In this particular case, Senator, to be very clear, all right, the White House counsel, the attorney general, the Department of Justice's lawyers and my own lawyers at NSA ruled this to be a lawful use of the president's authority.

I don't know enough about Hayden, nor about the current struggles among DOD, DHS, Negroponte and the CIA for control of intelligence operations, to have any view on whether he should be confirmed. I've heard many people in the know opine that he is a thoughtful, dedicated and effective public servant. And perhaps it's understandable that if the DOJ lawyers, including the Attorney General, tell him the President has the authority to ignore statutes, it would be presumptuously for him not to follow that advice.

But would it be too much to ask the Senate, at a minimum, to extract a promise from Hayden that when the CIA determines not to abide by certain statutes in the name of the Commander-in-Chief Clause, that such a decision be made openly, thereby permitting such a solemn constitutional judgment to be subject to legislative and public scrutiny and debate? (A rhetorical question -- the answer is all-too-obvious.)

Speaking of which, the law already requires that such decisions be disclosed to Congress, so that the other branches of government can, if they wish, implement systems of checks and balances. 28 U.S.C. 530D(a)(1)(A)(i) provides that the Attorney General "shall submit to the Congress a report of any instance in which the Attorney General or any officer of the Department of Justice . . . establishes or implements a formal or informal policy to refrain . . . from enforcing, applying, or administering any provision of any Federal statute . . . whose enforcement, application, or administration is within the responsibility of the Attorney General or such officer on the grounds that such provision is unconstitutional." Subsection (e) of that statute extends this reporting obligation to the head of each executive agency or military department that implements such a policy of "constitutional noncompliance." Such a report must be made within 30 days after the policy is implemented, and must "include a complete and detailed statement of the relevant issues and background (including a complete and detailed statement of the reasons for the policy or determination)." (The statute includes provisions for redaction of classified information in copies of the report distributed outside a congressional committee or agency.)

I think it's fair to assume that the Administration has not submitted such reports to Congress with respect to the numerous statutes that it is not fully implementing on grounds that they impinge on the President's constitutional powers. Will Congress step up to the plate and begin to enforce the section 530D requirement?

UPDATE: Please allow me to add this, on the subject of congressional capitulation. As Dana Milbank gleefully explains, what happened yesterday on any question that mattered, including on all questions related to the legality of what the NSA has been doing, is that Hayden agreed to testify only in closed session:

Is the NSA eavesdropping program that President Bush confirmed the entire program? "I'm not at liberty to talk about that in open session," Hayden said.

Can detainees be held in secret for decades? "Let me give it to you in the closed session."

Is "waterboarding" an acceptable interrogation technique? "Again, let me defer that to closed session."

Two notable things about this:

First, no one in the Administration has provided the slightest justification for such secrecy -- as to why, for instance, the NSA's phone-records practices cannot be discussed in public. Of course if computers are using a particular algorithm to find calling patterns, or something such as that, such details need not be disclosed. But why not explain what the phone companies have done, and what the NSA's legal justification might be?

Second, so the Senators go into closed session, and presumably are briefed on all questions that we've been asking for two years now. And then what? Are the legal rationales valid, or not? When will the public get a chance to know which laws the Administration is circumventing, and to debate what our government has been doing (including the debate about the serious constitutional issues)? So far, not a peep from the Senators. Hey, it would be a step forward if the Democratic Senators even so much as announced that they now understand the practices, are satisfied that they're legal, and agreed that the issues can't be discussed in public. Frustrating, yes -- but at least there would then be a semblance of the constitutional system at work. But instead, silence: It's as if the only problem here was that the Senators's egos were slighted, and that now that they've been briefed, all is well with the world and the NSA and CIA can continue business as usual. Checks? Balances?
Posted 5:10 AM by Marty Lederman [link] (12) comments

The Twin Dangers of the National Surveillance State

JB

Previously I noted that because of the changing nature of warfare and the digital revolution, the United States is rapidly moving toward a National Surveillance State. Whichever party is in power will work toward the creation of such a state, the only difference is how they will negotiate the risks to civil liberties and the concentration of power in the Executive.

The National Surveillance State poses two distinct dangers. The first is that the executive's power to conduct war will displace the area previously assumed to fall within the criminal justice system. Hence the Executive increasingly has the choice to treat dangers within the United States as matters of war and national security rather than as matters of crime and criminal justice. The latter, but not the former, come with a series of traditional civil liberties protections that constrain and check the Executive. If the government can create a parallel law enforcement structure that routes around the traditional criminal justice system, and which is not subject to the oversight and restrictions of the criminal justice system, it may be increasingly tempted to make use of that parallel system for more and more things. It may argue that the criminal justice system is insufficiently flexible and outmoded for the types of problems it faces. However, the more that it routes around the criminal justice system, the more it institutionalizes the parallel system as the method of choice for the government to pursue.

For example, by going outside of FISA and telecommunications privacy laws, the government ensures that the information gleaned from monitoring phone calls and data mining phone records cannot be used to justify traditional judge-issued warrants, and the evidence produced cannot be introduced in ordinary criminal trials. Similarly, evidence derived from coercive interrogations or interrogations involving cruel, inhuman and degrading treatment cannot be introduced in criminal trials. This means that if the government attempts to use the criminal justice system after having used the parallel system it is put at a significant disadvantage in its ability to prove its case. Faced with this disadvantage, it may choose increasingly to expand and defend the parallel system of intelligence, interdiction, incarceration, interrogation, and punishment.

The Padilla case is an interesting example. My suspicion is that the government tried as long as it could to keep Padilla out of the criminal justice system in part because much of the evidence it had against Padilla was probably illegally obtained from the perspective of the criminal justice system; for example, it may have been elicited through coercive interrogation of or cruel, inhuman and degrading treatment of persons held by the CIA or other intelligence operations. A second example is the recent revelations of NSA interception of domestic to overseas telephone calls. One of the justifications offered for the legality of the program is that going outside FISA (and other laws) is not by itself illegal, but merely means that the information elicited cannot be used in criminal trials, but can be used in the government's military operations. That justification shows how parallel tracks are produced and reinforced over time. The more that the government depends on NSA-style domestic surveillance, the more it will want to expand the parallel track of enforcement to make use of the information it derives.

As the laws of war encroach on the criminal law, and the needs of national security encroach on domestic criminal law enforcement, the government will be increasingly tempted to take the path of least resistance-- and least accountability-- and choose to treat individuals within the United States as subject to intelligence, interdiction, incarceration, interrogation, and punishment under the aegis of national security rather than criminal procedure.

The second danger of the National Surveillance State is not that the criminal justice system will increasingly be displaced by a parallel track of military and national security enforcement, but that the criminal justice system will become increasingly like the parallel track, that is, that it will lose the civil liberties protections, checks and balances, and oversight by independent actors (e.g., judges) that we normally associate with the criminal process in the United States. Take the FISA example once again. Right now the government may be arguing that going outside FISA means that evidence can't be introduced at criminal trials. If so, then why not simply ask Congress to amend FISA so that the NSA's searches are legal and the evidence can be admitted in criminal trials? (This has, in fact, been suggested as a solution to the problem of illegality). After all, the Supreme Court has given Congress a fairly wide berth to determine how to draw the boundaries of foreign intelligence. A second example is the increasing use of preventive detention, indefinite detention of material witnesses, administrative warrants and National Security Letters. These strategies modify the previous understandings of the criminal justice system and allow the executive to detain and engage in surveillance without the usual civil liberties limitations, checks, and oversight.

A third example drives from the NSA's data mining program. Although the NSA is currently using its datamining operations to locate threats to national security, there is no reason in theory why the same technologies can't be harnessed to aid domestic criminal law enforcement. Once the databases of all phone calls made in the United States are compiled, and combined with consumer data derived from private organizations like ChoicePoint (to take only one well known example), one can produce rich digital dossiers (to use Dan Solove's term) that could be used either by the nation's national security agencies or its criminal law enforcement arm. The information that is useful to one will increasingly be useful to the other. Knowing this, the government will use it for more and more features of everyday law enforcement. As William Arkin wrote recently in his Washington Post column, "tomorrow, there could be an illegal immigrant tax and pay record monitoring tip-off system, a sexual predator and pornography attention algorithm, a drug dealing and buying behavior inconsistency profile." That is to say, if the information gleaned from the government's national security wing is transferred over to its law enforcement wing (and shared with state and local law enforcement authorities) criminal law enforcement will be transformed into increasing surveillance of ordinary Americans to prevent not only the most serious threats to national security, but also everyday crimes, including even misdemeanors and administrative infractions. The government will be tempted to move increasingly from investigation and arrest after crimes occur to surveillance, prevention and interception before crimes occur. After all, if we can keep our citizens safe from Al Qaeda using the most advanced information technologies, which become increasingly inexpensive to use and implement, why not use the same technologies to protect our citizens from crimes, whether major or minor. And if we use the surveillance state to prevent threats to national security from coming to fruition, why not use the same technologies to head off criminals, both dangerous and petty, before they have a chance to act?

The twin dangers of national security displacing the criminal justice system and the criminal justice becoming increasingly like the national security system are consequences of technological change. Although the National Surveillance State arises from the changing nature of war, changes in technology do not stop with the problem of war, as least as traditionally conceived. Rather, the very same changes in technology threaten to transform the ways that democratic governments interact with their citizenry. That is why the debate over the NSA program is so incredibly important. We need to have a national debate on how we will implement a system of information gathering and processing that is quickly becoming the norm and not the exception. If we do not have this debate, the system will be implemented so as to displace the civil liberties and rights of citizenship we hold dear.

Posted 9:04 AM by JB [link] (14) comments

Pretty Boy Democracy

Mark Graber

A good deal of my recent work focuses on non-legal aspects of constitutionalism. For example, constitutional law requires that the president be 35 years or older, a citizen of the United States, and get a majority of the electoral vote, etc. Any person who meets those standards is legally qualified to be president of the United States. But the constitutional qualifications were also designed to privilege a certain kind of person. Thus, we might ask constitutional theory questions about a) whether George Bush or Bill Clinton was the sort of person whose election the constitutional system was designed to privilege and b) what sort of persons does the constitutional system for elections presently privilege. Here is some brief thoughts.

The constitution of 1787 was designed to privilege the election of best persons, men (not women)who had a reputation for political integrity and competence. You voted for George Washington because you trusted Washington would do what was right. The constitution throughout much of the nineteenth and twentieth centuries privileged the election of party leaders. You voted for James Polk, Grover Cleveland, and John Kennedy, because you were members of their party and supported the party's general platform (this requires lots and lots of qualifications). The constitution of the twenty-first century increasingly privileges the election of pretty boys. Think of Lynn Swann running for governor of Pennsylvania on the ground that he was a star football player and looks good on television. People vote for candidates because they like them personally and feel the candidate is in some ways like them. Clinton plays the saxophone. Bush plays at being a homey frat boy. There are increasingly no policy implications to elections, as was the case with party elections, nor are there much governing implications, since no one really thinks Swann (or Bush) is that competent a governor. What matters is how one appears in the media.

If this is the case, then tinkering with constitutional law is likely to have little impact on public problems. The crucial issue is a)whether I am right about the increase of pretty boy democracy in a media age, b) whether pretty boy democracy is a viable means of governing a twenty-first century polity (maybe it is, maybe the advisors do the real governing), and, if not, c) is there anything culturally or constitutionally that can be done to return to either a partisan system, where the president and other political leaders actually have a mandate to pursue certain policies or an elite system, where the president and other political leaders can be trusted to make intelligent decisions.
Posted 8:55 AM by Mark Graber [link] (13) comments

FBI: We're Using National Security Letters to "Backtrack" Reporters' Calls

JB

From ABC News:

The FBI acknowledged late Monday that it is increasingly seeking reporters' phone records in leak investigations.

"It used to be very hard and complicated to do this, but it no longer is in the Bush administration," said a senior federal official. . . . The official said our [ABC's] blotter item was wrong to suggest that ABC News phone calls were being "tracked."

"Think of it more as backtracking," said a senior federal official.

But FBI officials did not deny that phone records of ABC News, the New York Times and the Washington Post had been sought as part of a investigation of leaks at the CIA. . . .

Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).

The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government.

National security letters are usually issued by FBI field supervisors or other lower level bureaucrats. They do not require approval by a judge, grand jury, or other independent agency. Thus, they provide none of the checks and balances that we expect from the warrant requirement (and indeed, today's warrant requirement is fairly weak at this task in any case).

For those of you who might be interested, here's what a National Security Letter looks like. (And here's an interesting Washington Post story from last November on how the FBI has used National Security Letters for more and more purposes). Note the requirement of secrecy to ensure than the parties investigated (in this case the members of the press) have no idea that their records have been looked at by the FBI. This requirement of secrecy makes some sense if the person investigated is a terrorist suspect; it makes much less sense if the person being investigated is a reporter or a member of the public whom the FBI does not actually believe is associated with terrorism or espionage.

This last point is particularly relevant because the government's ability to issue national security letters was greatly enhanced by the Patriot Act, as discussed here. Most important for present purposes, the Patriot Act changed the old rule that the FBI could use National Security letters only to gain records concerning suspected terrorists or persons suspected of engaging in espionage. The Patriot Act allowed the FBI to issue National Security Letters-- which require virtually no independent supervision-- as long as the FBI officer believes that the information could be relevant to an investigation related to terrorism or espionage. Since there is almost no oversight over National Security Letters, and since the FBI works quite hard to avoid disclosing what it has done using National Security Letters and why it has done it, the practice is easily subject to abuse and overreaching, relying largely on the good faith of lower level agents and their professional capacity to restrain themselves. Indeed, the National Security Letter offers so few restraints on executive overreaching that it is not significantly different from simply dispensing with a warrant requirement altogether.

Once again, compare the FBI's own admissions with President Bush's previous statement. While the President assured us that the NSA was only looking into people with contacts to Al Qaeda and other terrorist organizations, he said nothing about the FBI, and the FBI admits that its use of phone call records is not limited to those suspects, but is aimed at members of the press.

Posted 2:44 PM by JB [link] (7) comments

A Lot of Reporters Must Be Calling Al Qaeda

JB

ABC News reports that "the government is tracking the phone numbers [reporters] call in an effort to root out confidential sources." Apparently the Bush Administration is upset at leaks revealing that it has been spying on Americans and wants to put a stop to the revelations.

The President explained a few days ago that the NSA was data mining phone numbers of domestic calls solely in order to determine who was making contact with terrorist organizations.

[T]he privacy of ordinary Americans is fiercely protected in all our activities. We're not mining or trolling through the personal lives of millions of innocent Americans. Our efforts are focused on links to al-Qaida and their known affiliates. So far we've been very successful in preventing another attack on our soil.

Unless reporters and members of the nation's intelligence services are all in league with Al Qaeda, it appears that the government mines phone records of American citizens for far more than this.

Should one be surprised that the Administration has been less than honest about this point, and that its surveillance activities are aimed at members of the press? The question answers itself.

Posted 3:53 PM by JB [link] (9) comments

Redeeming Lottery Tickets

Ian Ayres

In this Forbes column, Barry Nalebuff and I suggest creating a new lotto ticket that lets people have the excitement of a traditional lottery while they are investing for their retirement.

A lottery savings ticket would look just like a lotto ticket, scratch like a lotto ticket, cost a buck and pay out the same prizes. The only difference would be that half the revenue would be earmarked for a personal retirement savings account rather than for education. There would still be about a third for prizes and the remainder for administering the game.

Extolling the benefits of abstinence is likely to be no more effective with gambling than it has been with sex education. Instead of denying the pleasure that people get from gambling, we harness it to produce more savings.

One of the great difficulties in encouraging private savings has been to find some mechanism that will produce a disciplined pattern of ongoing contributions. The beautiful thing about the lottery is that hard-core players play their number religiously.
Posted 1:37 PM by Ian Ayres [link] (6) comments

West Wing and the Constitution (finale)

Sandy Levinson

Tonight was the final episode of West Wing. I, for one, found it immensely moving in its emphasis on the peaceful transfer of power and the almost magisterial abruptness with which it's out with the old (Jed Bartlett) and in with the new (Matt Santos), symbolized by the movers coming in at 11:45 or so and stripping the Oval Office of Bartlett's personal affects and changing the presidential pictures. Indeed, given my previous posting about the whiff of fascism in the air, which I certainly don't recant, I think it is important to note that not even the biggest critics of Bush & Co. (of which I'd like to think I'm one) believe that he (or they) will move to cancel the 2008 elections and declare themselves in office for life. Nor, even more obviously--so obvious that it goes almost literally without saying--do we fear a military coup, for all of the talk of the (justified) revolt of the (former) generals against the egregious Donald Rumsfeld. It is not contradictory, I believe, to argue at one and the same time that Bush's conception of his prerogatives of office is dictatorial (or, if one prefers, "authoritarian" or "monarchical," which is Bruce Fein's term) AND that he gives no hint of rejecting the most basic norm of American constitutionalism, which is the opportunity to vote the rascals out in an election. I have no particular illusions about the circumstances of the last two elections, but the remedy, at least in part, is Joe Hill's (I think) "Don't Mourn; Organize."

There was one unfortunate mistake, at the very beginning of the program, when Ellen Santos is (properly) complaining about having Inauguration Day on January 20, during yet another icestorm in DC. Her husband says that we can blame that on Jefferson and Adams. That, of course, isn't true. Washington was inaugurated on April 30, and inaugurations after that were on March 4, until th3 20th amendment changed it to Jan. 20, which took place for the first time in 1937. (So, as I may have posted before, one can win a bar bet by asking someone to name the two presidents, who did not die during their first terms, whose first terms in office were in fact less than four years.)

In any event, "West Wing," RIP (save for syndication).
Posted 9:40 PM by Sandy Levinson [link] (3) comments