Wednesday, November 30, 2005

Judge Alito and the Concerned Alumni of Princeton

Marty Lederman

There's a good deal of discussion recently about Judge Alito's membership twenty years ago in the Concerned Alumni of Princeton, a group apparently devoted to the retention of quotas that had long excluded women and minorities from Princeton.

I know very little about CAP and its policies other than what I've read in hilzoy's informative post here. And I know even less about the reasons for, or extent of, Judge Alito's involvement in CAP. (Quick legal question, however: Why wouldn't such quotas have been flatly illegal under title VI of the 1964 Civil Rights Act (race discrimination) and title IX of the Education Amendments of 1972 (sex discrimination)? I know there's an argument that title IX doesn't bar private, single-sex colleges from receiving federal funds -- although I think the question is much more difficult than most people assume -- but race discrimination? Or quotas aganst women if the college was already coeducational? Didn't Princeton receive federal funds?)

But even if there is an innocent explanation for Alito's CAP involvement, and/or it can simply be chalked up to the mistakes of one's "youth" -- notwithstanding that the person in question was in his mid-30s and had already been representing the United States before the Supreme Court for several years -- shouldn't the following two things be much more troubling than the CAP membership itself?:

First, Alito singled out -- trumpeted, even -- his CAP membership in order to brandish his conservative bona fides when applying for a job as Deputy AAG in the Office of Legal Counsel in the Reagan Administration. That is to say, he took pains to wtite -- presumably with sincerity -- that such membership in an organization of questionable repute -- along with the fact that the "greatest influence on [his] views" included the Bill Buckley National Review of the early 1960's, which was also virulently opposed to the civil rights movement -- demonstrated his ultra-conservative qualifications for a high-level government position in OLC, an office that (as much as any office in the Executive Branch) is supposed to answer legal questions objectively. (As T.R. Goldman writes, "[t]he irony is that Alito's ideologically charged application was for a job in a venerable and long-standing Department of Justice office whose mission usually involves nondescript legal analysis. 'It was the ultimate mismatch between that application and the job Sam and I were asked to do,' notes Pepperdine University law professor Douglas Kmiec, who was a deputy assistant AG at the OLC with Alito. . . . 'OLC was designed to be an objective appraiser of the law, a place inside a political administration where policy people can come and say, "OK, we'll ask the lawyers what the law requires."'" Apparently, Alito's conservatives credentials were suspect because he had spent so much time acting in a nonpartisan capacity in the SG's Office and had attended Yale Law School. Goldman reports Alito's supporters as explaining that "without a political track record, Alito had to put his best conservative face forward"; thus, "the job application's intensely ideological tone." My own favorite bit in his OLC application is the not-so-subtle suggestion that his excuse for having attended Yale was that Alex "Passive Virtues" Bickel was teaching there.)

In his mid-30's, a seasoned Samuel Alito, already having served in a position of great responsibility for the U.S. government for several years, chose to affirmatively brag about -- rather than to apologize for -- his membership in CAP, and about his enthusiastic embrace of the early 1960's National Review, because he thought that, of all his many attributes and accomplishments, those things would serve to demonstrate his credentials for a high OLC post.

Second, and more surprising still, in the completed questionnaire that Judge Alito submitted to the Senate Judiciary Committee this week, he writes this about CAP (at page 7):

Concerned Alumni of Princeton . . . was a group of Princeton alumni. A document I recently reviewed [presumably his OLC application?] reflects that I was a member of the group in the 1980s. Apart from that document, I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group. The group has no current officers from whom more information may be obtained.

(Hat tip: Orin K.) So, in 1985 he determined that this membership was one of the small handful of facts that most qualified him for one government post in which his job would be to impartially interpret the law; and 20 years later, when applying for a similar, if more important, legal post, he has no recollection of that membership other than from the 1985 application itself?

This seems very hard to believe. From everything I've heard, however, Judge Alito is an honest and straight-shooting fellow; so I'm willing to assume that his CAP membership and participation were so fleeting, so negligible, in the 1980s that he truly does not recall them now, 20 years later. But, if that's indeed the case, what does that say about his citation of his CAP membership on his OLC application back in 1985, in order to demonstrate how died-in-the-wool conservative he was? The whole incident is very odd.

P.S. Just to be clear: I'm not suggesting that being fond of the early-60's National Review as a teenager should disqualify someone for a Supreme Court seat forty years later. But going out of one's way in the mid-80s to emphasize how one's philosophy was formed by that youthful dalliance with such a periodical? And doing so in order to demonstrate one's fitness for an high-level OLC post? Well, that's something else entirely . . .

Justice O'Connor to the rescue?


The oral arguments for Ayotte can be found here and here. The liberal justices gave both Ayotte and the Solicitor General a hard time; Chief Justice Roberts wanted to throw out the challenge and have doctors bring a brand new "pre-enforcement as-applied challenge" that would test the constitutionality of New Hampshire's lack of an emergency health exception. The liberal Justices wanted to know what the difference was between that case and the present one, other than changing the plaintiff's name. (In fact, since the doctors, like Planned Parenthood, would be invoking third party standing, and because they would be bringing the challenge before any emergency had actually occurred, it's hard to see what the difference would have been. The real difference, one assumes, is the kind of relief that could be offered-- total invalidation versus partial invalidation-- but, as I shall describe in a moment, several of the Justices didn't think that there should be a difference even with respect to that question.).

The most important moment came during Planned Parenthood's argument when Justice O'Connor said in the exasperated tone that usually indicates which way she is going to come down on a case (at about 5:40 in the second mp3 file): "What resulted here was the invalidation of the entire statute and all of its applications. . . . So the question you're being asked is how can that be narrowed... The statute may well have a majority of valid applications, and what of our doctrines allow a narrower application. Obviously it's a matter of concern."

The discussion that followed among the Justices concerned how to remand the case to the 1st Circuit so as to authorize it to issue a narrower injunction that would hold the statute inapplicable to situations where a doctor in good faith believes that there is a medical emergency that gives insufficient time to engage in a judicial bypass of the parental notification requirement. That is, they wanted to know how to send the case back down to keep the statute in place but hold it inapplicable to certain situations. From Justice Breyer's remarks, it looks as if a majority of the Court was warming to the task: Salerno wouldn't apply precisely, but courts in situations like that in Ayotte would be authorized to issue injunctions that got rid of certain applications of a statute while leaving the rest of the statute enforceable. It would be an ad hoc pragmatic sort of doctrine, not quite a full facial challenge, and not quite a traditional as-applied challenge, whose parameters are wildly uncertain, just the sort of thing that Justice O'Connor likes.

If the liberals go along with reversing and remanding, the conservatives surely will too, albeit for different reasons. So it looks right now as if Planned Parenthood loses the case to the extent that it goes back to the 1st Circuit, which will be instructed to consider how and whether to issue a narrower injunction. But if Justice O'Connor gets her way, Planned Parenthood will also win, because it will be allowed to ask the 1st Circuit for an injunction that holds the statute inapplicable to health emergency situations. Moreover, Planned Parenthood has additional challenges to the statute which it now may raise again, and so it's possible that the 1st Circuit could get rid of other parts of the statute (or even the whole thing) on those other grounds that it didn't find it necessary to reach in the previous round of litigation. So everbody wins and everybody loses-- a classic O'Connor result.

It will be quite interesting to see whether O'Connor can cobble together one last majority and get the opinion written and handed down quickly before she leaves. Of course, if she can get Justice Kennedy and the four liberals to go along with her pragmatic solution, her vote won't be necessary, and the case can come down later.



Today the Supreme Court will take up Ayotte v. Planned Parenthood of Northern New England, its first significant abortion case in five years. On the surface, the case concerns whether New Hampshire's parental notification law must include an exception for emergencies when a minor's health is at risk. Beneath the surface, however, are two key issues that will determine the direction of abortion regulation in the future.

Earlier cases from Roe onward have held that states must allow women to preserve their health when it is threatened, even in the late stages of pregnancy; Stenberg v. Carhart, the 2000 case that struck down Nebraska's partial birth abortion statute, holds that states may not require women to adopt less safe methods of abortion when professional medical opinion holds that a safer method is available. From these precedents, it might seem that New Hampshire must include an exception from parental notification requirements where there is a health emergency as diagnosed by a competent physician. Were the Supreme Court nevertheless to uphold the New Hampshire law, one way it might do so is by changing the doctrinal understandings of the importance of health, or by offering a narrow view of what types of health risks implicate the abortion right. That decision, in turn would have significant implications for future abortion regulations that make limited or no exceptions for a pregnant woman's health, that trade off health concerns for other goals, or that require women to adopt less healthy methods for terminating their pregnancies. In particular, such a change in constitutional doctrine might affect the constitutionality of the 2003 Federal Partial Birth Abortion Act. That act includes a declaration by Congress that partial birth abortions are never safer than other methods, but that conclusion is disputed within the medical profession. See my earlier discussion here.

The second, more technical issue in Ayotte is what plaintiffs have to show to get an injunction against a newly passed abortion statute. The Supreme Court's 1992 Casey decision suggests that if a new abortion law poses an undue burden to some signficant class of women to whom the regulation applies (or as the Court put it, "it operates as a substantial obstacle" to a "large fraction" of the cases to which the regulation is "relevant"), a court may enjoin it immediately. That is what the Supreme Court itself did in Casey with Pennsylvania's spousal notification provision. The Attorney General of New Hampshire argues that the correct procedural rule is the rule of United States v. Salerno-- that when plaintiffs bring facial challenges to enjoin a new statute, the court should reject the challenge unless the statute has no constitutional applications. Salerno was a 6-3 decision upholding a federal statute that allowed detention of criminal suspects awaiting trial. Because the pre-trial detention statute had at least some constitutional applications, a facial challenge (and an injunction) were inappropriate.

If the Court applied the Salerno rule to abortion cases, it would mean that plaintiffs could not directly challenge new abortion regulations as soon as they were passed. Instead, a series of plaintiffs would have to go to court and prove that the law was unconstitutional as applied to their individual circumstances. This process would be time consuming and expensive, and it would take years to produce a jurisprudence limiting the statute's unconstitutional reach. Thus, the effect of applying Salerno (as opposed to what the Court actually did in Casey) would be to allow states to pass significant restrictions on abortion and keep them in force for long periods of time until a series of time consuming and expensive cases gradually eliminated their unconstitutional features. Indeed, precisely because creating an appropriate factual record for an individual as-applied challenge by a pregnant woman may be time consuming and expensive, the series of suits may never be brought, with the result that a whole host of abortion limitations that are actually invalid under the undue burden test will remain in force and will be applied to limit women's right to abortion. Applying Salerno to abortion litigation, in short, would drain much of Roe's and Casey's practical applicability to the real world. And because this will be achieved through an abstruse and technical doctrine of court procedure, many members of the public will not even realize that Roe and Casey have been effectively gutted.

For these two reasons, but particularly, the second, Ayotte promises to be a major abortion decision.

Sunday, November 27, 2005

Luban and the real debate about torture


David Luban's article in today's Washington Post is an excellent summary of key issues in the debate about torture. Here is the introduction:
For viewers of TV shows such as "Commander in Chief" and "24," the question is about ticking bombs. To find the ticking bomb, should a conscientious public servant toss the rulebook out the window and torture the terrorist who knows where the lethal device is? Many people think the answer is yes: Supreme emergencies demand exceptions to even the best rules. Others answer no: A law is a law, and a moral absolute is a moral absolute. Period. Still others try to split the difference: We won't change the rule, but we will cross our fingers and hope that Jack Bauer, the daring counterterrorism agent on "24," will break it. Then we will figure out whether to punish Bauer, give him a medal, or both. Finally, some insist that since torture doesn't work -- that it doesn't actually unearth vital information -- the whole hypothetical rests on a false premise. Respectable arguments can be made on all sides of this debate.

Real intelligence gathering is not a made-for-TV melodrama. It consists of acquiring countless bits of information and piecing together a mosaic. So the most urgent question has nothing to do with torture and ticking bombs. It has to do with brutal tactics that fall short -- but not far short -- of torture employed on a fishing expedition for morsels of information that might prove useful but usually don't, according to people who have worked in military intelligence. After Time magazine revealed the harsh methods used at the Guantanamo Bay detention facility to interrogate Mohamed Qatani, the so-called "20th hijacker," the Pentagon replied with a memo describing the "valuable intelligence information" he had revealed. Most of it had to do with Qatani's own past and his role in the attacks of Sept. 11, 2001. Other parts concerned al Qaeda's modus operandi. But, conspicuously, the Pentagon has never claimed that anything Qatani revealed helped it prevent terrorist attacks, imminent or otherwise.

The real torture debate, therefore, isn't about whether to throw out the rulebook in the exceptional emergencies. Rather, it's about what the rulebook says about the ordinary interrogation -- about whether you can shoot up Qatani with saline solution to make him urinate on himself, or threaten him with dogs in order to find out whether he ever met Osama bin Laden. And the trouble is that this second debate is so wrapped up in legalisms, jargon and half-truths that it is truly hard to unravel.

The most recent issue is Arizona Sen. John McCain's amendment to a defense appropriations bill, designed to plug loopholes in current anti-torture law. It has passed the Senate, and the House is scheduled to vote on it sometime next month. President Bush has responded that we do not torture, we treat prisoners humanely, and we follow our legal obligations. But what, exactly, are the politicians arguing about?

Luban explains why the Bush Administration is opposing the McCain Amendment, and what the Administration actually means when it says that "we don't torture" and we treat detainees "humanely." The Bush Administration's position is that

(1) "Torture" does not include cruel, inhuman and degrading treatment of the sort used in Guantanamo: "18- to 20-hour-a-day questioning for 48 out of 54 days, blasting prisoners with strobe lights and ear-splitting rock music, menacing them with snarling dogs, threatening to hurt their mothers, and humiliations such as leading them around on leashes Pfc. Lynndie England-style, stripping them naked in front of women, or holding them down while a female interrogator straddles them and whispers that we've killed their comrades." Therefore all such treatment is consistent with the Administration's statement that "we don't torture."

(2) Although cruel, inhuman, and degrading treatment (CID) violates the Constitution, not to mention international agreements to which the United States is a signatory, the Administration's position is that these bans on cruel, inhuman and degrading treatment do not apply outside the geographical boundaries of the United States and its territories. (The McCain amendment is designed to close this particular loophole, which, as Luban points out, was not intended by the original Senate reservations to the 1988 Convention Against Torture). So when the Administration says "we don't torture," what it really means is that "we are free to engage in cruel, inhuman and degrading treatment anywhere outside the United States, including Guantanamo Bay."

(3) "Humane treatment" according to the Bush Administration, "requir[es] nothing more than providing food, clothing, shelter and medical care. In the Bush lexicon, therefore, sexual humiliation, acute sleep deprivation and threats to have a detainee's mother kidnapped and imprisoned are humane." Thus, when Adminstration officials say that "we treat our detainees humanely," they have said nothing about interrogation methods.

(4) Members of al Qaeda (or, equally importantly, those the Administration believes are al Qaeda) have no rights against cruel, inhuman, and degrading treatment: "Bush declared that al Qaeda members have no Geneva Conventions rights -- not even the minimum rights against cruel and humiliating treatment that the Geneva accords guarantee to detainees who don't qualify as POWs. Although in February 2002 the president ordered the military to treat detainees according to the Geneva standards, his order conspicuously omitted any mention of non-military agencies such as the CIA. It also left a large loophole for `military necessity.' In the law of war, military necessity encompasses anything that contributes to victory, so the president's directive really forbids nothing but pointless sadism. Cheney and his new chief of staff, David Addington, have fought the McCain amendment precisely because it would prohibit CID treatment. In short, we comply with our legal obligations because, in the Bush lexicon, we hardly have any."

(5) Despite these artful rhetorical maneuvers, the Administration still manages to cross the very wide boundaries for interrogation practices it has set for itself:
"We don't torture" means that we don't use worse tactics than CID [cruel, inhuman and degrading treatment] -- except when we do. Waterboarding (in which a prisoner is made to believe he is drowning) and withholding pain medication for bullet wounds cross the line into torture -- and both have allegedly been used. So does "Palestinian hanging," where a prisoner's arms are twisted behind his back and his wrists are chained five feet above the floor.

A Nov. 18 ABC News report quoted former and current intelligence officers and supervisors as saying that the CIA has a list of acceptable interrogation methods, including soaking naked prisoners with water in 50-degree rooms and making them stand for 40 hours handcuffed and shackled to an eyebolt in the floor. ABC reported that these methods had been used on at least a dozen captured al Qaeda members. All these techniques undoubtedly inflict the "severe suffering" that our law defines as torture.

Consider the cases of Abed Hamed Mowhoush and Manadel Jamadi. Mowhoush, an Iraqi general in Saddam Hussein's army, was smothered to death in a sleeping bag by U.S. interrogators in western Iraq. Jamadi, a suspected bombmaker, whose ice-packed body was photographed at Abu Ghraib, was seized and roughed up by Navy SEALS in Iraq, then turned over to the CIA for questioning. At some point during this process, according to an account in the New Yorker magazine, someone broke his ribs; then he was hooded and underwent "Palestinian hanging" until he died. The CIA operative implicated has still not been charged, two years after Jamadi's death. And the SEAL leader was acquitted, exulting afterward that "what makes this country great is that there is a system in place and it works."

He got that right. Shamefully, it is a system that permits cruel, inhuman and degrading treatment, smudges long-standing lines about what is and is not permitted in routine interrogations -- and then expresses hypocritical horror when soldiers and interrogators cross the blurry line into torture and murder.

Luban's article is a helpful corrective to a debate that Administration officials-- including the President of the United States-- have repeatedly and willfully confused with their Orwellian doublespeak. They have tortured the English language so they can treat others cruelly. We shouldn't let them get away with either practice.

Saturday, November 26, 2005

The "Deemed Export" Rule and the First Amendment

Marty Lederman

The New York Times reports this morning that the Commerce Depatment is on the verge of promulgating new regulations restricting the ability of U.S. institutions, including universities, to expose foreign students to "sensitive technology."

For many years, the Commerce Department has imposed limits on the export of "technology" to certain nations (most importantly, China), and has further decreed that exposing such technology to foreigners here in the U.S. is "deemed" a restricted "export." "The rules govern the use of software, equipment or technical data that has military applications and therefore cannot be exported to certain countries without a license. A similar license, called a deemed export license, is required when the same sensitive technology is used by a foreign citizen in an American laboratory, on the ground that such a foreigner might return home and reproduce the technology there." (Some DoC Deemed Export FAQs can be found here.)

The new regulations -- a summary of the proposal is here -- apparently would tighten those pre-exisitng rules, by imposing additional safeguards to ensure that foreign students do not learn of U.S. technology. "The proposed . . . rules would require contractors, including universities getting research financing, to create separate security badges for foreign citizens and 'segregated work areas' for research using export-controlled technology." The Inspector General Report that prompted the proposed changes can be found here.

The Times story reports that universities are strenuously opposing the new rules, arguing that "tight restrictions on research by foreigners could backfire and actually hurt national security by hindering scientific progress."

The Times story doesn't note it, but this also raises a very interesting, and complicated, First Amendment question, involving the constitutional right of U.S. citizens (and companies and institutions) to share information with non-citizens. Because, for all the talk of "technology," "software," "technical data," etc., what this regulation truly is about is a straightforward restriction on the conveyance of information from one private party to another. Indeed, that's the whole point of the regulation: to prevent certain foreign nations from learning "sensitive" information, developed by and known to U.S. persons, that can be put to technological and military use overseas.

The data in question are information that the U.S. persons could, if they wished, make generally available to the public. Indeed, to the extent the information is widely disseminated, e.g., through publication, it has traditionally been exempt from the "deemed export" restrictions. See generally 15 C.F.R. 734.7-734.11. But the federal government in effect says to universities and corporations that if they choose to keep the information generally secret, or in-house (typically, for proprietary reasons), they then may not share it with certain foreign persons, even where the purpose of that sharing is not to facilitate overseas use of the information.

The way the Commerce Department's inspector general puts it is that the regulations are intended to "protect[] secrets from potential spies in American laboratories."

But this is (generally) not classified information, and is not government-owned "secret" information. The data are "secrets" only in the sense that U.S. business interests keep them generally under wraps, for proprietary purposes.

In general, of course, the government may not prevent me, or you, from telling our own secrets to whomever we wish, even where we have reason to suspect -- but do not intend -- that such secrets might be turned to disfavored uses. The interesting First Amendment question is whether and to what extent that basic constitutional rule is tempered when the audience in question is foreign, and when the unintended but foreseeable "disfavored use" is one that could harm national security interests. (Some readers may be interested to know that this was one of the very first questions Cass Sunstein wrote about after he left the Office of Legal Counsel. See Sunstein, Government Control of Information, 74 Cal. L. Rev. 889, 905-912 (1986).)

Disclosure: I worked on the deemed export rule when I was at the Department of Justice's Office of Legal Counsel, between 1994-2002.

Thursday, November 24, 2005

Will The Threads Start To Unravel?


This New York Times article confirms something I suspected as soon as Padilla's indictment was announced. The Bush administration is desperate to avoid accountability on its detention and interrogation policies not because of what it may need to do in the future but rather because of the illegality of what it has already done. As a result, Administration officials dropped any mention of the previously touted "dirty bomb" plot against Jose Padilla, because prosecuting that theory would lead to inquiries about what exactly it had done to get the information that formed the basis of the accusation.
The decision not to charge [Padilla] criminally in connection with the more far-ranging bomb plots was prompted by the conclusion that Mr. Mohammed and Mr. Zubaydah could almost certainly not be used as witnesses, because that could expose classified information and could open up charges from defense lawyers that their earlier statements were a result of torture, officials said.
. . . .
In an interview on Wednesday, a British lawyer for another man accused by the United States of working as Mr. Padilla's accomplice in the bomb plot also accused American officials of working to extract a confession. The lawyer said the United States had transferred the man to Morocco from Pakistan, where he was captured in 2002, in an effort to have him to sign a confession implicating himself and Mr. Padilla.

"They took him to Morocco to be tortured," said Clive A. Stafford Smith, the lawyer for the suspect, Binyan Mohammed. "He signed a confession saying whatever they wanted to hear, which is that he worked with Jose Padilla to do the dirty bomb plot. He says that's absolute nonsense, and he doesn't know Jose Padilla."

Not to belabor the obvious, but information obtained by torture has two significant defects. First, it won't stand up in court because it's unreliable. Second it violates basic human rights, and that's an important reason why our constitutional system doesn't allow such practices in the first place.

It seems that the Administration's decision to flout the Constitution and the rule of law has come home to roost. The Administration assumed all along that it was entitled to do whatever it wanted, and that no one should object, because, after all, it was fighting evil. But the best way to fight evil is not to do evil yourself.

And what about Padilla's own treatment while in military custody?

[P]art of the bombing accusations hinged on incriminating statements that officials say Mr. Padilla made after he was in military custody - and had been denied access to a lawyer.

"There's no way you could use what he said in military custody against him," a former senior government official said.

What I'd like to know is whether Padilla will be permitted to talk about what we did to him in the military prison. One assumes (or at the very least one hopes) that it did not rise (or sink) to the level of "enhanced" interrogation techniques the CIA has been using. Perhaps the very fact that the Bush Administration is willing to allow Padilla his day in court means that they did nothing more than question him without a lawyer present. But it will certainly be interesting to learn what interrogation techniques the Administration was willing to employ on an American citizen held in South Carolina over the course of three year's time. And it will be interesting to see whether and how the Administration attempts to keep information about what it did to Padilla from the public.

Statements in the district court litigation in New York suggest that Padilla was subjected to psychological techniques designed to break him; indeed, the Administration initially argued that he could not be given a right to see an attorney precisely because it would undermine the effectiveness of those techniques. See Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42, 46, 50 (SDNY 2003). If so, it is worth knowing what sort of techniques were used.

Are the threads of the Administration's coverup starting to unravel? Stay tuned.

Tuesday, November 22, 2005

Padilla Indicted


Today the U.S. government formally indicted Jose Padilla, an American citizen arrested in the United States who had been held as an enemy combatant for three years outside the reach of the criminal justice system.

Originally the Justice Department claimed that Padilla had planned to detonate a "dirty bomb" (i.e., one that would explode radioactive nuclear waste) in the United States. Later the Justice Department changed that to an allegation that he planned to set fire to (or blow up) an apartment building in Chicago. In today's indictment, the Justice Department alleges neither act; instead it claims that Padilla had traveled abroad to become "a violent jihadist" and that he had conspired to send "money, physical assets and new recruits" overseas to engage in acts of terrorism."

Since 9/11 the Bush Administration has sharply criticized others for daring to suggest that citizens accused of terrorism should be dealt with through the criminal justice system. It has insisted that 9/11 changed everything and that terrorism must be dealt with through novel methods that dispense with the ordinary protections that the Constitution affords the accused. Now it has backtracked in one of the most prominent cases and done precisely what it said it could not do-- treat Padilla as a criminal defendant.

The reason is not difficult to discover. The Administration counted votes and figured that even with a replacement for Justice O'Connor, it would likely lose in the Supreme Court. (The four dissenters in Rumsfeld v. Padilla thought Padilla was unconstitutionally confined, while Justice Scalia, who joined the majority, made clear that the September 18, 2001 Authorization for the Use of Military Force did not justify detaining a U.S. citizen, because the AUMF was not a legitimate suspension of the writ of habeas corpus).

By indicting Padilla now, The Bush Administration moots Padilla's appeal to the Supreme Court. It also leaves standing the Fourth Circuit's decision in the Padilla case, which broadly upheld the President's power to detain U.S. citizens like Padilla as unlawful combatants. (See Marty Lederman's post here for an analysis).

That result is particularly worthy of note, for the Fourth Circuit opinion may yet come in handy if the Administration needs to hold another U.S. citizen within the geographical boundaries of that circuit. The Administration now knows that the Fourth Circuit is a Constitution-free zone. It can, if it needs to, declare someone an enemy combantant, thrown them into a military prison, and interrogate them at its leisure. It will take years for a citizen to exhaust his appeals and reach the Supreme Court; and when the citizen finally gets to the Supreme Court, the Administration has the option to indict and moot the case (as it did with Padilla) or, if the Court's personnel have changed sufficiently in the interim, risk an appeal to the Supremes.

You may recall that, following the Hamdi decision last year, the Administration decided not to give Yaser Hamdi a hearing, but instead released Hamdi to Saudi Arabia, extracting in return a surrender of Hamdi's U.S. Citizenship and a promise that he would not sue. Now it has indicted Padilla to avoid facing a simliar rebuff by the U.S. Supreme Court. In both cases, the Administration argued that that it was of the utmost necessity to detain them indefinitely and that it could not give these men the constitutional protections ordinarily afforded criminal defendants without severely damaging national security. These assertions now ring hollow-- Hamdi is free, and Padilla is in the criminal justice system.

The Padilla case is a sobering lesson in how much leeway the President has to imprison and detain people for long periods of time in violation of the Constitution. The fact that the government's story about why Padilla was a threat has changed so frequently should give us pause the next time the government asserts that we should trust it when it rounds up U.S. citizens and claims the right to hold them indefinitely for our protection. Padilla may well be a very bad fellow, but we have a method of dealing with such bad fellows. It is called the rule of law, and we should not surrender it so readily merely because the President desires it.

Monday, November 21, 2005

New Orleans in the Spin Cycle

Stephen Griffin

The last few days of the media cycle have not been kind to New Orleans. Locals spent today complaining about the “60 Minutes” report last night that had the city turning into an island surrounded by the Gulf of Mexico in perhaps 80 years. The report did indeed have some problems. It tended to equate the coastal erosion problem with the breach of the levees, two different events. It passed over experts and a National Academy of Sciences report suggesting that the eroding coast could be restored to an extent. But it did highlight a point of view that citizens here thought would never turn up in a reasonable public debate – that the city ought not to be rebuilt, at least not on anything like the same scale.

Despite today’s criticism, the CBS reporter, Scott Pelley, did not back off. Somewhat ominously, he commented: “People in Louisiana are desperately hoping that the federal government is going to come up with billions of dollars to restore the city and protect for city," Pelley adds. "It's not at all clear at this point that that is going to happen.”

This illustrates a large gap in perceptions that seems to have opened up between New Orleans and Washington. Consider the contrast between the “60 Minutes” report and a front-page Sunday editorial by the local newspaper, the Times-Picayune. The paper laid down the law:

But we need the federal government -- we need our Congress -- to fulfill the promises made to us in the past. We need to be safe. We need to be able to go about our business feeding and fueling the rest of the nation. We need better protection next hurricane season than we had this year. Going forward, we need protection from the fiercest storms, the Category 5 storms that are out there waiting to strike.
Some voices in Washington are arguing against us. We were foolish, they say. We settled in a place that is lower than the sea. We should have expected to drown.
As if choosing to live in one of the nation's great cities amounted to a death wish. As if living in San Francisco or Miami or Boston is any more logical.
Great cities are made by their place and their people, their beauty and their risk. Water flows around and through most of them. And one of the greatest bodies of water in the land flows through this one: the Mississippi.
The federal government decided long ago to try to tame the river and the swampy land spreading out from it. The country needed this waterlogged land of ours to prosper, so that the nation could prosper even more.

This editorial illustrates the primary sort of public justification for aid that has been used by the city since Katrina struck. We are economically useful, indeed essential, so helping us is in your interest. The problem is that this argument is not working. The port of New Orleans was hurt, but commerce seems to be flowing in a way that has not led to a crisis in Midwest agricultural exports. Oil and gas flow out of the Gulf, but it seems we do not need an entire city to maintain them. Local business people are making reasonable economic arguments when they visit Washington, but they are getting the brush-off. (Tuesday’s New York Times contains a similar story).

A story in today’s Washington Post reveals one source of the problem. There has been $18 billion spent so far, and it is becoming clearer that this is just a fraction of what will be required to truly rebuild the city. The story says: “It is yet to be determined, for instance, just how much of a role the federal government will play in picking up the tab. ‘It depends on a threshold question: What are you going to rebuild? What is the federal responsibility for rebuilding a city, a metropolitan area or a region? This is where it gets really confused,’ said Bruce Katz, director of the metropolitan policy program at the Brookings Institution. ‘Federalism is a messy business.’”

Bruce is right on the money. Federalism means never having to say you’re sorry, because it is never clear where political responsibility lies. The “60 Minutes” report did make it clear that New Orleanians find it incomprehensible that the federal government will not step up to the plate. But the city has not yet found an argument that works.

So far, the only way the city has found traction with Washington is in a crisis. If local estimates are right, we may have one by the end of the year, as tens of thousands of small businesses go into bankruptcy, along with mortgage holders and local governments. And we will have reports and recommendations from the New Orleans city and state recovery commissions, reports that will give Louisiana congressional representatives something to work with.

Somewhat counterintuitively, I continue to think that the best argument New Orleanians can make is: “you would want the same done for you.” That is, we should make arguments based on our status as citizens, not stevedores or oil workers. And we should stress culture, not economics. However, I now have a better understanding of what is wrong with the argument Jim Stoner made in the National Review (referred to in my second post). Stoner discussed the feasibility of flood control by comparing Louisiana to the Netherlands. But the Netherlands does not appear to be a federal state, and in any case flood control there is a matter of national preservation. The Netherlands will not write itself off to the sea, but it appears that many in Washington are willing to do just that to New Orleans.

UPDATE: Everyone should read this editorial in Wednesday's NYT:

CIA "Enhanced Interrogation Techniques" Revealed

Marty Lederman

On Friday, ABC News broke a very important story; and yet it seems that no one has noticed (or perhaps no one cares).

"Former and current intelligence officers and supervisors" described for ABC News six specific "enhanced interrogation techniques" that the CIA has approved for a dozen or so high-level Al Qaeda detainees incarcerated in isolation at secret locations on military bases in regions from Asia to Eastern Europe:

1. The Attention Grab: The interrogator forcefully grabs the shirt front of the prisoner and shakes him.

2. Attention Slap: An open-handed slap aimed at causing pain and triggering fear.

3. The Belly Slap: A hard open-handed slap to the stomach. The aim is to cause pain, but not internal injury. Doctors consulted advised against using a punch, which could cause lasting internal damage.

4. Long Time Standing: This technique is described as among the most effective. Prisoners are forced to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours. Exhaustion and sleep deprivation are effective in yielding confessions.

5. The Cold Cell: The prisoner is left to stand naked in a cell kept near 50 degrees. Throughout the time in the cell the prisoner is doused with cold water.

6. Water Boarding: The prisoner is bound to an inclined board, feet raised and head slightly below the feet. Cellophane is wrapped over the prisoner's face and water is poured over him. Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the
treatment to a halt.

This story is notable for several reasons:

1. Confrmation that use of these techniques is formally approved at the highest level of the CIA: "According to the sources, when an interrogator wishes to use a particular technique on a prisoner, the policy at the CIA is that each step of the interrogation process must be signed off at the highest level -- by the deputy director for operations for the CIA."

2. The fact that several former and current CIA officers and supervisors are leaking CIA "methods" is newsworthy in and of itself. There's a very strong taboo against revelation of sources and methods within the CIA; such conduct could subject the leakers to severe discipline and even criminal exposure. Therefore it's virtually unheard of. These leaks -- together with recent leaks concerning the CIA's "black sites" where these interrogations occur, and about a CIA Inspector General report questioning the legality of these techniques -- indicate that there must be profound dissent within the agency on this issue, including on the question of the efficacy of such techniques: "[T]he debate among intelligence officers as to whether they are effective should not be underestimated." According to ABC News, the leakers "say they are revealing specific details of the techniques, and their impact on confessions, because the public needs to know the direction their agency has chosen."

3. The techniques were first approved in March 2002, at least four months before the infamous OLC "Torture Memo." This suggests that the CIA was willing to engage in such conduct before OLC signed off on it (in writing, anyway), and that OLC's advice was offered with respect to ongoing conduct. The general practice within OLC is not to opine on the legality of past or ongoing conduct within the Executive branch, because in such a case there could be an understandable inclination to skew advice so as not to conclude that Executive officials had been acting unlawfully. On the other hand, the Executive branch obviously needs to know if it has been acting unlawfully so that it can conform its practice to the law. Therefore it's often a tough call within OLC whether to give advice in situations such as this.

4. These techniques -- especially Nos. 4 through 6 -- would very likely be deemed conduct that "shocks the conscience," and that therefore would be forbidden by the McCain Amendment. (The CIA's own Inspector General apparently concluded that some of the techniques do shock the conscience.) I should caution, however, that there is no judicial precedent for applying the "shocks the conscience" standard in the context of interrogations of high-level international terrorism suspects, and therefore there is no way to know for certain whether the McCain Amendment would prohibit even such harsh techniques.

* * * *

I'm not going to discuss here whether these techniques are moral, or "effective," or worth the costs, or whether it was inevitable that they would "migrate" to less carefully monitored settings (e.g., Iraq), or whether they contributed to the confusion throughout the military about legal standards governing detainee treatment. Those important discussions are ongoing elsewhere (such as at Crooked Timber, on Andrew Sullivan's site, and in the comments to this Orin Kerr post), and I don't have any particular expertise to offer on such topics.

No one is discussing this question, however: Are such techniques currently legal?

In a series of posts here, I've tried to explain why the Administration concuded that the CIA, when acting against alien detainees overseas, is not bound by a whole host of legal restrictions, including (but not limited to) the Due Process Clause, the Geneva Conventions, Common Article 3 of the Geneva Conventions, customary laws of armed conflict, Article 16 of the Convention Against Torture, the Uniform Code of Military Justice, and the President's directive that detainees be treated "humanely."

For now, however, I'd like to focus only on the question whether these techniques are federal crimes under two statutes: The federal anti-torture law (18 U.S.C. 2340A), and the federal assault statute (18 U.S.C. 113).


If our enemies used these techniques on U.S. military personnel, no one would, in public debate, deny that such techniques (especially Nos. 4-6) are impermissible forms of torture. Indeed, waterboarding and "cold cell" have often been used by repressive regimes, and have historically been thought of as standard forms of torture. And yet the CIA and OLC have concluded that they are not "torture" -- and, as I explained at the end of this post, OLC stuck to this conclusion even after it had, in December 2004, rejected all of the unconvincing statutory analysis of the August 2002 Torture Memo.

How could OLC possibly have concluded that waterboarding and "cold cell" are not necessarily torture? Well, we won't know for certain unless and until we see OLC's specific legal analysis. But surely, a large part of the explanation must be that the Senate (at the urging of the first President Bush) insisted upon adopting extremely restrictive readings of certain key terms of the Convention Against Torture as a condition of its ratification of that treaty -- restrictive terms that Congress itself adopted in the torture statute.

The criminal statute defines torture as an act "committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control"; and the statute in turn defines "severe mental pain or suffering" to require "prolonged mental harm."

I suppose the OLC theory must have been that although these techniques obviously inflict severe discomfort, severe agony, and, in the case of waterboarding, severe terror ("Unavoidably, the gag reflex kicks in and a terrifying fear of drowning leads to almost instant pleas to bring the treatment to a halt."), they do not necessarily inflict severe physical pain or suffering -- at least when applied under certain conditions and with certain "protections" (about which we still lack information). What about severe mental suffering? Perhaps OLC concluded that the mental pain is intermittant and short-lived, rather than "prolonged" -- say, if the water-boarding lasts only a couple of minutes, and is not intended to result in any lasting mental suffering.

Without seeing OLC's analysis, it's very hard to determine whether these legal conclusions were reasonable. I do think it's safe to say, however, that the conclusions are counterintuitive. If, for instance, one had asked the President and the 500+ representatives who voted for the torture statute whether waterboarding and "cold cell" and "Long Time Standing" constituted "torture" as they understood it, they all would have said "yes." And to the extent these techniques really aren't "torture" because of technical lacunae in the statute, perhaps that's a sign that Congress should consider amending its definitions.

At the very least, we can now understand that when the President indignantly repeats that "we do not torture under any circumstances," such an assertion of grand principle comes with an important footnote: "The following do not constitute 'torture': Being forced to stand, handcuffed and with one's feet shackled to an eye bolt in the floor, for more than 40 hours; being doused with cold water while standing naked in a 50-degree cell; and being bound to an inclined board, with one's feet raised and head slightly below the feet, and cellophane wrapped over one's face while water is poured over you, inducing a terrifying fear of drowning."


Under 18 U.S.C. 113, simple assaults, or assaults by striking or beating, are misdemeanors if they occur "within the special maritime and territorial jurisdiction of the United States." The Administration concedes that this prohibition restricts our interrogations of detainees held "within the special maritime and territorial jurisdiction of the United States." Therefore, it plainly would make unlawful most or all of the six "enhanced" CIA techniques if they occur within the special maritime and territorial jurisdiction of the United States (SMTJ).

In late 2001, the PATRIOT Act amended the SMTJ statute (18 U.S.C. 7) so that the definition of SMTJ now includes "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership."

According to the ABC News story, the locations at which the enhanced techniques occur "often . . . consist of a secure building on an existing or former military base." Regardless of current ownership, those buildings obviously are being "used for purposes of [the CIA]," and therefore would appear to be within the SMTJ, which would make the CIA's techniques there unlawful.

OLC must have concluded that these facilities are not within the SMTJ; but I have to confess that I have not yet figured out the basis on which the office might have reached such a conclusion, in light of the broad language of the statute.

The BOGSAT anxiety and the Rule of Five

Ian Ayres

In modern military jargon, “to bogsat a problem” means to informally discuss and kick around possible solutions. The term is an acronym for “bunch of guys sitting around a table.”

But many people feel an anxiety when its just guys sitting around any official table – particularly as the number of guys sitting at the table becomes large.

I recently felt this anxiety when I was on a committee that was charged with making a public appearance. The full committee in fact included more than one woman but on the day of our appearance only six males were in attendance.

It somehow felt wrong to me (and I bet to some of the people who saw us) that it was an all male committee.

The anxiety I felt is related to a natural cognitive perception of statistical significance. Statisticians tend to call an estimate statistically different from a null hypothesis if there is less than a 5% chance that the estimate would have occurred by chance if the null hypothesis were in fact true.

Nobody feels anxious if a two-person committee is all male because this could happen by chance. But if a committee is composed of fifty men, we should wonder whether women had a fair chance.

So what is the magic number between two and fifty where our anxiety really kicks in.

The binomial theorem suggests a Rule of 5. If a coin comes up 4 times in a row tails, statisticians can’t reject the hypothesis that it is still a fair coin (because 6.3% chance of that a fair coin would produce this result). But 5 tails in a row is too unlikely – only a 3.1% chance. If 5 tales come up in a row, we reject the hypothesis that it was a fair coin (at the standard 5% level of statistical significance).

The binomial distribution lets us exactly calculate the likelihood of an observed outcome given an assumed underlying probability. (It’s easy to calculate binomial distribution probabilities – just use the =binomdist() function in Excel.) With regard to the sexual composition of committees a natural normative focal point is a 50% probability of females.

Of course, there may be contexts where we implicitly should expect a higher or lower probability. But I predict in many settings that 50% probability has a normative pull.

A testable hypothesis of my theory is that, for example, all male panels with 5 or more participants are more likely to be challenged by the audience than all male panels with 4 or few participants.

Heather Gerken in a recent Harvard Law Review article on 2nd order diversity uses the binomial theorem to show that randomized fair draws of jury panels will by chance produce some that are disproportionately male or female (7.3% of the time there will be 3 or fewer men). She forever changed my thinking by showing that there might be (2nd order diversity) values to have a fraction of juries with disproportionately male and disproportionately female compositions.

But having just lived through a disproportionate composition, the pulls of first-order diversity are still strong. Indeed, I’m was so troubled about my participation that I’m attracted to the idea of dropping out of groups that fail the rule of 5 test. If a fifth man drops out, it stops projecting a statistically significant disparity. 4 men are not statistically significant. But non-random engineering of this type might back fire and obscure the underlying problem. As in other contexts, it is an empirical question whether voice or exit will be more effective. Sometimes noisy exit is the best of both worlds.

The bionomial distribution has other ways of informing our civil rights intuitions. In the 2000 census, white non-Hispanics constituted about 70% of the population. The binomial theorem suggests a racial “Rule of 9.” If a group of 9 or more people is comprised of solely of white non-Hispanics , we can immediately reject at the 5% level the notion that the group was randomly chosen from the general population.

Of course, having a single woman or a single minority member does not end the inquiry. The bionmial distribution can give the exact probability that a group of size N would have 1 or fewer women or 2 or fewer women. Indeed, if we take 50% to be the underlying normative null hypothesis, the potential replacement of O’Connor with Alito is that the Supreme Court would again slip into statistical non-compliance. You see the probability that 2 or fewer women would be drawn out of 9 trials is 9%. While the probability that 1 or fewer women would be drawn out of 9 trials 2%.

Social Movements and Constitutional Change


A draft of my new article on social movements and constitutional change is up on SSRN. It was originally given as the Donahue Lecture at Suffolk Law School. Here's the abstract:
This essay explores how social movements change-and fail to change-the positive law of the U.S. Constitution. Although judges often insist that listening to social movements is inconsistent with the judicial role, history shows that social movements do change constitutional doctrine, although not always as they intend.

Social movements have two basic strategies for influencing constitutional interpretation. First, they can exert influence on the major poltical parties who control the system of judicial appointments. Influencing judicial appointments increases the chances that the movement's constitutional claims will receive a sympathetic ear. Instead of convincing existing judges, this strategy attempts to replace older judges with newer ones more likely to share elements of the movement's basic outlook and ideology.

Second, social movements can attempt to change public opinion, and especially elite opinion. This strategy attempts to convince judges already on the bench by appealing to the values they share with other relatively affluent, educated legal elites. Appeals to elite opinion are risky, however, because they encourage populist reprisals and countermobilizations led by political entrepreneurs. Without sustained popular support, social movement victories may not prove lasting.

The article applies this analysis to the New Departure, a period immediately following the ratification of the Fourteenth Amendment when the movement for woman suffrage attempted to persuade judges and politicians that the Fourteenth Amendment gave women the right to vote. The New Departure failed because it was not able to adopt either of the two strategies described above. The case of the New Departure suggests that social movements are most likely to receive protection from the federal judiciary when they are already influential in the political process.

Sunday, November 20, 2005

Nuremberg at Sixty: Is Jackson's Poisoned Chalice Now at Bush's Lips?

Scott Horton

For the last twenty years, it’s been common practice among law professors to view modern human rights law, and in a sense the entire international law system, as something that started with the gavel that convened the first of the Nuremberg criminal tribunals. That gavel fell sixty years ago today. These tribunals gave force to the concept that international law was not just about relations between nations. International law also created obligations for individuals, who could be subject to trial and severe sanction. America was the most aggressive proponent of this course, and the American prosecutor, Justice Robert Jackson, was extremely conscious of what this meant for his country. “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.”

Today it seems that Jackson’s poisoned chalice truly is pressed to the lips of the United States, or more particularly, those of George W. Bush. The Bush Administration has retreated from the country’s traditional embrace of international law, and continues to view even its most basic commitments – such as the Geneva Conventions – with contempt. While John McCain has mustered a vote of 90 – 9 in the US Senate in support of a return to the traditional view, Bush remains defiant and threatens a veto. Why the adamant opposition?

Can it be that the Nuremberg legacy provides the answer? If any single consideration stands in the way of the Administration’s embrace of the McCain Amendment, it might well be what Andrew Sullivan calls “concern for immunity from prosecution for past actions and decisions.” Nuremberg set some clear principles, and many of them had to do with the mistreatment of those held in prisons in wartime. A concept of ministerial liability for pervasive abuse was established, and this was based on notions of command responsibility. Another case established that those who write legal memoranda which counsel government officials and the military to ignore the Geneva and Hague Conventions can be prosecuted and imprisoned – as in fact a number of German Justice Ministry officials were in the case of United States v. Altstoetter.

Many in the Bush Administration seem to have a very curious understanding of Nuremberg. Rather than leading a new movement to overturn the international legal system that started at Nuremberg, a number of key Bush officials are more likely to be the Pinochets of the next generation – blocked from international travel and forever fending off extradition warrants and prosecutor’s questions. Notwithstanding a sovereigntist assault, sixty years later the principles of Nuremberg seem as robust as ever – and likely to create lasting troubles for those who would deny them.

Friday, November 18, 2005

The Assumption that Judging On the Supreme Court (and Elsewhere) is Politics

Brian Tamanaha

Everywhere you look it seems to be almost taken for granted that the personal values or political views of judges have a determinative impact on their decisions. That is the assumption behind the daily search to dig up and scrutinize anything that might bear on Judge Alito's political views.

That was also the underlying assumption in the spectacle surrounding the appointment of a judge to try Rep. Tom Delay: first a Democractic judge recused himself, then a Republican judge did the same, then another Republican judge passed it off to a semi-retired judge who was a registered Democract but didn't contribute much to political campaigns.

Many social scientists who study judging also believe that the values and political views of judges determine their decisions. An informative new book, Advice and Consent, by Lee Epstein and Jeffrey Segal, political scientists who have conducted several important studies of judicial decision-making, states at the very outset (quoting C. Herman Prichett, another leading political scientist of the judiciary) "that judges 'are influenced by their own biases and philosophies, which to a large degree predetermine the position they will take on a given question. Private attitudes, in other words, become public law.'" This is the core thesis underlying their book.

Given the pervasiveness of this assumption, it is no wonder that the public also increasingly thinks that judges decide cases based upon their personal views, as a couple of recent polls have indicated.

Closer to home, most of the law students in my Jurisprudence class are convinced that judging is politics, and that judges can pretty much do whatever they want to.

This attitude about judging brings to mind the Critical Legal Studies Movement of the 1970's and 1980's, a group of radical legal theorists at elite law schools whose mantra was "law is politics." The "Crits" argued that legal rules and standards are indeterminate. Judges can thus pick the outcome they desire. At the time, the Crits were roundly attacked as exaggerators or nihilists. If they made this argument today, however, it would sound redundant. Times sure have changed.

But is this pervasive assumption correct? And how can we know for sure?

Most judges will deny that the substantial bulk of their decisions are determined by their personal politics. The fact that a high percentage of appellate decisions are unanimous, even when judges on panels have different political views, tends to support this position. Besides, judges insist, most cases don't invoke any particular personal value or political view. There is a strong suspicion that we can't trust accounts by judges, however, either because they are deluded about or concealing the real source of their decisions, so their denials doesn't count for much.

The certainty of many political scientists that judges are "politicians in black robes" is based upon empirical studies that correlate judges' legal decisions with attitudinal indicators (which is a stand in for their personal views). One study showed that Justice Douglas, for example, voted liberal in 94.3 percent of civil rights cases, whereas Justice Rehnquist voted liberal in only 4.5 percent of these cases. Accordingly, in this type of case one could predict with a high degree of reliability the decision these Justices would render without regard to the specific facts or applicable law in the case. This offers convincing evidence that their personal views determined their decisions.

The evidence is not entirely one-sided, however. Jeffrey Segal, co-author of the new book that flatly asserts that judging is personal politics, completed a study in 1984 which showed that "legal factors" predicted 76 percent of the Supreme Court's decisions in search and seizure cases. Lee Epstein, the other co-author, completed a study in 1992 of criminal cases which showed that 75 percent of the Justices' decisions could be predicted by "legal factors." Both of these studies still stand, since they were done of past Supreme Courts and the correlations the authors found are set. Curiously, both authors have conducted studies which show that personal factors predict decisions and that legal factors predict decisions, to about the same degree. Puzzling questions obviously remain.

It is also important to keep in mind that the Justices differ in the extent to which their decisions line up with their personal views, and that the correlations do not show up in all types of cases. So it is fair to say that, even accepting the studies as correct, some Justices are less political than others when rendering decisions, and in certain types of cases politics appears to have less of an impact.

A more measured appraisal is Jack Balkin's statement in a posting on this blog: "The Supreme Court's decisions in a small number of hotly contested areas are strongly influenced by the ideological views of its members."

In contrast to studies of the Supreme Court, the evidence that judging is personal politics is less strong with respect to the lower federal courts and lower state courts. In their book Segal and Epstein admit this, although they couch it in terms that perhaps obscures the differences. At least for lower courts, studies by Frank Cross and others have found that, while certain correlations between legal decisions and personal views show up, in large part the decsions appear to be based on the law. Studies of federal district court judges show that they usually adhere to precedent. Again, not enough studies have been done to be sure, but the bulk of the studies so far indicate that law, not politics, determines most lower court decisions.

Against this general trend, however, some lower court judges appear to render decisions more highly correlated with their personal politics than others. That is precisely what makes Judge Alito's pattern of decisions a matter of concern. A recent NYT article which examined Judge Alito's decisions found that "with few exceptions, he has sided with employers over employees in discrimination lawsuits and in favor of corporations over investors in securities fraud cases."

Assuming the report is correct, in these types of cases it appears that Alito has allowed his personal views freer reign, in contrast to the bulk of lower court judges who appear more restrained. This suggests the possibility that Justice Alito (if confirmed) may be like Douglas and Rehnquist in the sense that, in certain classes of cases, his decision can be predicted with 90+ percent accuracy simply by knowing who the parties are. That kind of judging is personal politics.

But this post is not about Alito.

There is no doubt that judges have the power to issue decisions that are based on their personal views, and the skill to couch these decisions in legal argument (the law is indeterminate in this sense at least). And there is also no doubt that certain legal standards by their nature call upon value-based decisions or evoke personal responses from judges. That is a far cry, however, from asserting that judging is just personal politics cloaked in law.

In my most cynical law professor moments, I too think that judging is politics (remember Bush v. Gore!). But that was not my dominant experience as a lawyer. And that was not my experience when I drafted bench memos and opinions as a law clerk to a judge. Legal rules constantly boxed us in, setting constraints. You could usually come up with some kind of argument that pointed toward a desired outcome, to be sure, but that does not mean these arguments were winners (that is, legally persuasive). There were rules, and usually the rules pointed in one direction or another, even when there was room for discretion. In cases like this the decisions are, by and large, determined by the law, not the values or political views of the judges.

Anyone who has practiced law or has been a judge knows this. And it has been repeated innumerable times, even by skeptical legal thinkers, from Holmes to Llewellyn to (Crit) Duncan Kennedy.

So why am I repeating it at such length? The assumption that judging is personal politics is pervasive. At least for now, this ready assumption is incorrect when applied to the bulk of judges in the bulk of their cases. But it is one of those beliefs that has the capacity to become self-fulfilling. There is nothing to stop judges from becoming "politicians in black robes," if that is what they come to see themselves as. Most of the students in my Jurisprudence class--likely a few future judges amongst them--already think that.

Thursday, November 17, 2005

Advice to Thurgood Marshall

Mark Graber

Dear Thurgood:

The girl and boys at Justice believe we have developed a plan to ensure an easy, uncontroversial confirmation process. Just play along with us and you’ll be on the Court in no time.

1. Our plan is to emphasize your nomination as alleviating the gross and unfair underrepresentation of justices from geographically small states. As everyone knows, the constitution was supposed to guarantee powersharing arrangments between the geographically large and small states, but because of overreaching by New Yorkers, Californians and others, William Brennan is the only member of the present court from a geographically small state. President Johnson will soon hold a nationally televised news conference where he will stress that your appointment is designed to remedy this historic inequity. Please highlight your Maryland roots at all opportunities and tell the press how proud your are to follow in the footsteps of Roger B. Taney, the last Supreme Court justice to represent that state. Your state may be small in space, but it is rich in legal heritage.

2. Remember that you joined the NAACP Legal Defense Fund only because of their great dental plan and the opportunities to travel to the rural south that were not being offered by more prestigious firms. As a junior staffer, any memo you may have written or case you may have litigated was at the behest of your superiors, so you should not be held personally responsible for any views you may have expressed. As director of the LDF, by comparison, your policy was to encourage independent action by junior staff attorneys (you always felt stiffled by Charles Huston). Hence, the responsibility of all actions taken under your leadership falls on those junior attorneys. Your job as leader was merely to provide a supportive environment for younger attorneys to hone their litigation skills. And continue to emphasize the dental plan, the frequent opportunities to travel to Washington DC, and the probability that you would develop the leadership skills necessary to sit on major corporate boards as your reasons for accepting leadership positions at the LDF. When pressed make the following analogy. No reasonable person would hold a president or cabinet member responsible after learning that their subordinates were torturing Vietnamese prisoners outside of Saigon. How then, could any reasonable person hold the LDF leadership in New York responsible for the decision of some hothead fresh out of law school to challenge a school choice plan in Jackson, Mississippi.

3. At every opportunity remind everyone that Plessy v. Ferguson is a superprecedent, that not being overruled, that case is entitled to great weight in your legal judgments. On capital punishment, we believe the best strategy is to claim that you have never thought or discussed whether that procedure is constitutional. If pressed on the capital cases you litigated, remind persons that you did so merely as a staff attorney and that they were always litigated on their particular facts. Indeed, confining cases to their particular facts is a particular wise strategy. Thus, while you can endorse the Supreme Court’s conclusion in Powell v. Alabama that the defendants were entitled to counsel, be clear that your opinion might have been different had counsel had less than 30 minutes to prepare a defense for six, as opposed to nine, defendants. Similarly, you should emphasize your belief that the due process revolution is only clearly stare decisis in cases involving southern police officers who physically resemble the character Rod Steiger played in In the Heat of the Night, and that the right of birth control announced in Griswold v. Connecticut might be limited to happily married couples.

4. There are several cliches you must remember to articulate in any answer of more than thre esentences. The first is your reverance for the constitution. The wit of man, you should point out, reaches its apogee with the electoral college, a life tenured judiciary, and the solomonic commandment that the right to a jury trial shall always be preserved whenever the value in controversy is more than twenty dollars. As a judge, you will never legislative from the bench. We are not entirely sure what this means, but we know it must be emphasized. Possible meanings include raising millions of dollars even though you are running unopposed, having an affair with a staffer, and bouncing checks. Don’t do these things or anything else someone decides is legislating from the bench. Remember you are a impartial referee, not like those zebras from Russia or the people who judge women’s figure skating. Come to think of it, maybe we should junk that metaphor.

5. Be sure to bring your family to the Senate confirmation hearings, but only the photogenic ones. Kids with braces are out. We will supply more attractive substitutes.

You have worked hard for this Supreme Court appointment. Just remember that, if successful, you will have a lifetime to fight for your heartfelt beliefs. Just not now.

Wednesday, November 16, 2005

Why Habeas at GTMO is So Important

Marty Lederman

A remarkable post over at Obsidian Wings. Read it . . . and then ponder the fate of those (and other) wrongly identified, i.e., non-terrorist, detainees, if the Graham/Levin habeas-stripping compromise is enacted into law.

Tuesday, November 15, 2005

Confusing Developments Senate-Side on GTMO Detention, Commissions and Habeas

Marty Lederman

(Cross-posted in part at SCOTUSblog.)

[UPDATE: The Senate approved the Graham/Levin "compromise" amendment (see below) by a vote of 84-14. All of the No votes but one (that of Sen. Specter) were cast by Democrats.]

The 9/11 Commissioners have lambasted the Administration for doing absolutely nothing to implement the 9/11 Commission's recommendation that the U.S. unequivocally adopt and implement the standards of Common Article 3 of the Geneva Conventions for our treatment of terrorism detainees. See pages 8-9 of the Commissioners' new Report.

Here's a modest and simple suggestion for Senator McCain and others who are valiantly trying to bring order to this chatoic situation: Wouldn't it be a major step forward for Congress to implement the 9/11 Commission's recommendation by expressly codifying the standards of Common Article 3 -- in order to set a statutory baseline for both treatment and trial of detainees across-the-board?

Meanwhile, over in the Senate, the plot thickens on the Graham habeas-stripping amendment that the Senate approved last week. Senator Bingaman is offering an amendment to ameliorate the effects of the Graham Amendment. A group of more than 350 law professors, in an effort organized by the Brennan Center for Justice at the NYU School of Law, brennan.habeas.letter.pdf">have urged the Senate to vote for the Bingaman Amendment and against the Graham Amendment. [UPDATE: The Senate voted 54-44 against the Bingaman Amendment. Four Republicans for (Chafee, Smith, Specter, Sununu); four Democrats against (Bayh, Conrad, Lieberman and Nelson (Neb.)).]

But the much more likely vehicle for Senate action this week -- any minute now, in fact -- is a compromise worked out between Senators Graham and Levin (among others). [UPDATE: The Senate has approved the "compromise."]

I have some questions and concerns about the compromise, discussed below. But first, on the tactical developments, here's the explanation from the Washington Post:
A bipartisan group of senators reached a compromise yesterday that would dramatically alter U.S. policy for treating captured terrorist suspects by granting them a final recourse to the federal courts but stripping them of some key legal rights.

The compromise links legislation written by Sen. Lindsey O. Graham (R-S.C.), which would deny detainees broad access to federal courts, with a new measure authored by Sen. Carl M. Levin (D-Mich.) that would grant detainees the right to appeal the verdict of a military tribunal to a federal appeals court. The deal will come to a vote today, and the authors say they are confident it will pass.

Graham and Levin indicated they would then demand that House and Senate negotiators link their measure with the effort by Sen. John McCain (R-Ariz.) to clearly ban torture and abuse of terrorism suspects being held in U.S. facilities.

"McCain's amendment needs to be part of the overall package, because it deals with standardizing interrogation techniques and will reestablish moral high ground for the United States," Graham said.

Such broad legislation would be Congress's first attempt to assert some control over the detention of suspected terrorists, which the Bush administration has closely guarded as its sole prerogative. By linking a provision to deny prisoners the right to challenge their detention in federal court with language restricting interrogation methods, senators hope to soften the administration's ardent opposition to McCain's anti-torture provision -- or possibly win its support.

The Justice and Defense departments have expressed strong support for legislation that would curtail a flurry of civil litigation coming out of the military's detention camp at Guantanamo Bay, Cuba, according to some senators involved in the negotiation. "The truth is, this is something the administration would dearly like," Sen. Jeff Bingaman (D-N.M.) said of the language curtailing detainee access to the courts.

But Vice President Cheney, a major architect of the U.S. anti-terrorism effort, is strongly opposed to any compromise that includes the McCain provision, the senators said. Cheney personally lobbied against McCain's measure to ban abuse and torture, contending that its language was too broad and would prohibit the use of interrogation methods necessary to secure vital national security information. After the Senate approved the measure as part of a defense spending bill, he pushed to exempt the CIA from its provisions.

Now Cheney has turned to House Republican leaders to hold McCain's language back.

"It's fair to say the White House has made the case -- both the president and the vice president -- that the McCain amendment is harmful," acting House Majority Leader Roy Blunt (R-Mo.) said last week.

(More on this amendment from Katherine over at Obsidian Wings.)

I have not had time to review the compromise carefully, let alone to consult with folks who know much more about these matters than I do. But my initial impression is that this bill, if amended, would still cut off numerous sorts of challenges to the Administration's detention policies and practices and GTMO, and would raise innumerable ambiguities and unanswered questions. (Major caveat: The examples that follow are the result of an extremely preliminary and superficial review of the amendment. Therefore, they are subject to change, and I welcome comments from those closer to the scene, and from those with more expertise on these issues.)

For example:

-- The bill would appear to eliminate review -- on habeas, anyway -- for detainees found not to be "enemy combatants" by the Combatant Status Review Tribunals but who nevertheless remain in detention, and detainees who have not been evaluated by such tribunals but who are being held indefinitely.

-- The bill would appear to cut off habeas petitions for GTMO detainees contesting the conditions of their confinement (e.g., that they have been tortured or subjected to cruel, inhuman, and degrading treatment).

-- The bill appears to be limited to detainees at Guanatanamo, which ironically enough might give detainees elsewhere around the world greater habeas rights than GTMO detainees would have.

-- By eliminating all habeas peititons for GTMO detainees, would the bill end the Rasul/Al Odah and Hamdan cases? The final paragraph appears to be intended to preserve such cases, but it is very oblique.

-- If those cases are preserved, do they need to be re-filed in the U.S. Court of Appeals for the District of Columbia Circuit, under the new procedures -- and then only after a conviction?

-- What would "exclusive jurisdiction" of the D.C. Circuit mean? Would there be any appeal from that court's decisions?

-- Would the statute establish congressional approval/ratification of the President's military commissions -- in some or all their particulars?

-- A military commission conviction could be challenged on grounds that subjecting the alien to the President's military commision Order was not "consistent with the Constitution and laws of the United States." What about treaties? Customary laws of armed conflict? Are those included in "laws"? Would this very statute change the "law" of the United States with respect to the President's statutory authority to convene the commissions?

-- Will all the CSRT and Commission proceedings be governed by the new, Graham-proposed definition of "unlawful enemy combatant," which I believe was added to the DoD appropriations bill last month in the Senate? (This is a very important question that hasn't received enough attention yet.)

I'm sure this list could be multiplied many times over.

My initial, seat-of-the-pants impression is that this is a blunderbuss solution that cries out for careful and deliberate consideration and debate by congressional committees, where experts can weigh in and various questions can be examined and answered. Alas, that doesn't appear to be a realistic option any longer.

Is it nevertheless worth enacting this "compromise" now if that's the cost of enacting the McCain Amendment prohibiting cruel, inhuman and degrading treatment? I'm not sure. What do others think?

Monday, November 14, 2005

Tipping is un-American?

Ian Ayres

My ties to tipping continue.

You can listen to a Marketplace public radio commentary here (look ma, I'm blogcasting) in which I go further than ever in suggesting that we should think about doing away with this institution.

And thanks to a tip from Jonathan Simon, I just watched a great 1936 movie, The Petrified Forest.”

The movie is set almost exclusively in a diner on the edge of a desert that has a prominent sign proclaiming:

Tipping is un-American: Keep Your Change

The owner of the diner is a throwback, a literal member of vigilante group. The fact that the owner is still fighting the anti-tipping battle in the 1930’s is yet another signal that he is out of step with modnernity.

A lot of people did think that tipping was un-American twenty years earlier. As detailed in my Yale Law Journal article with Fred Vars and Nasser Zakaraya, 6 states and the District of Columbia criminalized certain types of tipping and more than 100,000 people joined the anti-tipping league.

But by the 30s, most of these criminal provisions were judicially or legislatively repealed. And the tipping norm was much more accepted as at least an acceptable option.

Indeed, seeing the movie makes me think that the happenstance of depression itself may have contributed to the flowering of the tipping norm. During these trying years, there might not have been as much of a stigma involved in taking a gratuity.

Saturday, November 12, 2005

No Need to Fret About Waterboarding: It's Merely a Psychological Ploy

Marty Lederman

OK, it's the Wall Street Journal editorial page, so one has to expect that nothing's beyond the pale. But still. Today's apologia for torture is a bit much.

The basic thrust of the editorial, not surprisingly, is that the techniques the Administration approved for the CIA (and at GTMO in late 2002), and the legal limbo constructed by the Justice Department and DoD (in which the President's constitutional authorities, and "necessity," justify violations of federal criminal laws, and in which degrading and humiliating treatment is lawful), did not "migrate" to Iraq and lead to abuses there -- indeed, the evidence apparently is "overwhelming" that there was no such seepage.

But that sort of blinking at reality is common by now -- as are the absurd accusations that the Administration's critics are arguing that all Al Qaeda detainees should be treated as POWs, and that we're "perverse[ly] conflat[ing] the amputations and electrocutions Saddam once inflicted at Abu Ghraib with . . . any authorized U.S. interrogation techniques." Those are classic straw-man arguments. (Just to clarify: We don't think that Al Qaeda terrorists are entitled to POW protection. And no, Dick Cheney is not as bad as Saddam Hussein -- or Stalin. Got it?)

What's more novel about this editorial, and more audacious, are two other things:

First, the editorial complains that the Vice President's proposed exemption to permit the CIA to use cruel, inhuman and degarding treatment is too narrow: It shouldn't make any difference, reasons the Journal, "which department is doing the interrogating," and military interrogators should have similar leeway Although I admire the WSJ's recognition that a detainee's fate should not depend on which U.S. agency is paying his interrogator's salary, the Journal apparently is not aware that many of the CIA's techniques -- namely, assaults, threats, and cruelty and maltreatment -- would be criminal (under the UCMJ and federal assault statute) if performed by the military. Oops.

Second, the editorial refers to the most extreme CIA-approved techniques -- expressly including waterboarding -- as "psychological techniques." Gotta give 'em credit: That's certainly one way to look at it. I suppose I was being unimaginative in thinking of mock burial, and of the "water cure," as assaults, and sadistic threats of excruciating death -- in truth, we've merely been trying to psych 'em out: We're jus' keeding!.

[UPDATE: Andrew Sullivan, not surprisingly, was similarly stopped short by the WSJ's trivialization of waterboarding -- and his post is illustrated!]

Friday, November 11, 2005

Hamdan, Rasul, et al., Imperiled

Marty Lederman

Cross-posted from SCOTUSblog.

The Senate yesterday by a vote of 49-42 passed an amendment to the Defense Appropriations bill, offered by Lindsey Graham, section (d) of which would eliminate the statutory right of habeas corpus for alien detainees held by the Department of Defense at Guantanamo. This would, in effect, overrule the Supreme Court's June 2004 decision in Rasul v. Bush.

This amendment, if enacted, would by its terms appear to eliminate the jurisdiction of the courts -- and thus make meaningless the habeas petitions at issue -- in pending cases, such as, most importantly, the Hamdan case the Court decided to hear this week, and the extremely significant Rasul cases on remand, which are presently pending in the U.S. Court of Appeals for the D.C. Circuit. As Bobby Chesney explains in further detail, this would be a very momentous development, and would probably mean that most or all of the Administration's decisions on, and conduct regarding, detention, interrogation and abuse at GTMO, would be impervious to judicial review and oversight.
Continuing coverage over at Obsidian Wings. [UPATE: Katherine and hilzoy over at OW are in the midst of a series of posts responding to Senator Graham's arguments in support of his amendment. The first of those posts includes a link to Graham's statements on the Senate floor.]

Senator Bingaman reportedly will offer an amendment to the Graham Amendment on Monday that would delete the withdrawal of habeas; but if that effort fails, the New York Times reports that the Graham amendment is likely to pass the House as well and to be signed by the President.

It's conceivable that some of the GTMO detainees might still have a constitutional right to habeas -- but although the Rasul decision doesn't rule out the possibility, prevailing on such a constitutional claim would probably require the Court to overrule or sharply distinguish Johnson v. Eisentrager. Also, as Steve Vladeck explains here, there are complex Federal-Courts-final-exam-like questions about the constitutionality of the Graham Amendment itself. But the fate of such a constitutional challenge would be decidedly uncertain. Therefore the Graham Amendment could be a very serious development for several of the most important pending and future cases concerning the conflicts with Al Qaeda and the Taliban.

UPDATE: Mark Kleiman asks three questions. I'll provide some tentative answers that I think the proponents of the Graham Amendment would offer, and invite others to chime in in the comments section:

1. Can this be reconciled with the provision in Article 1, Section 9, forbidding the suspension of habeas corpus except in cases of rebellion or invasion?

A: The Graham Amendment almost certainly is intended, and would be construed, to withdraw only statutory habeas jurisdiction -- the sort currently authorized by 28 U.S.C. 2241, according to Rasul -- and not any jurisdiction to hear constitutional habeas petitions. I don't believe there's any caselaw on the question of whether the Suspension Clause of Article I, Section 9 applies to withdrawals of previously conferred statutory habeas -- but I'm doubtful: Typically (but not invariably), Congress can at point B take back a statutory benefit that it had conferred at Point A, including a statutory right to invoke federal court jurisdiction.

To be sure, if I'm right, courts would continue to have jurisdiction to hear constitutionally based habeas petitions. The problem, however, is that it's not clear that aliens overseas have constitutional rights to habeas -- not, in any event, unless the Court overrules or distinguishes Eisentrager.

2. If the Congress can deny aliens access to the courts to challenge their detention, what would keep it from doing the same to citizens?

A: Citizens undoubtedly do have a constitutional right to file habeas petitions in certain circumstances. Congress could eliminate that right, too, but in order to do so, it would have to find that public safety requires it, because of "Rebellion or Invasion." Article I, Section 9.

3. If the principle of court-stripping is valid, is there any Constitutional right that cannot be effectively abolished by a simple Congressional majority?

A. Congress isn't eliminating any substantive right, constitutional or otherwise. It is "only" eliminating a statutory right to file certain habeas petitions. Obviously, eliminating judicial review will have a dramatic impact on the ability of GTMO detainees to enforce any constitutional rights they may have -- but that only raises two further questions: (i) whether aliens overseas have constitutional rights (one of the principal questions in the pending Rasul/Al Odah case), and (ii) whether Congress must provide a judicial remedy for every violation of constitutional right.

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