Monday, November 27, 2006

A Bit of Wishful Thinking on Civil Liberties


Scott Turow, engaging in a bit of wishful thinking, suggests that Justice Scalia will prove to be the pivotal vote for civil liberties in upcoming cases on the War on Terror. In Turow's eyes, Scalia may be a veritable jurisprudential wild card who will stand up to President Bush in his assertions of presidential power in cases involving the NSA domestic surveillance program and the Military Commissions Act.

Turrow points to Scalia's decisions in Kylo and Apprendi, and his concurrence in Hamdi v. Rumsfeld as evidence of Scalia's maverick ways, and he deduces that Scalia's "occasional alliance with the court’s more liberal justices could be struck again in future terror cases. The result would be an unequivocal declaration that executive power must yield to constitutional liberties, even when the nation is on the prolonged war footing we seem to have adopted."

Would that it were so, but it is not likely. What Turow neglects-- and he is hardly alone-- is that the civil liberties issues raised in the war on terror do not primarily concern construction of the Bill of Rights. Rather, as the Hamdan case suggests, they involve questions of the separation of powers, the scope of Presidential power in wartime, and the President's (and Congress's) authority to regulate aliens.

The Bush Administration has not chipped away at civil protections liberties where they are strongest, but rather where they are weakest: cases involving statutory rights, the scope of habeas corpus jurisdiction, the rights of aliens, particularly aliens held overseas, and human rights protections under international law. The civil liberties cases of the War on Terror will not look like those of the past, which is why the Administration will be able to diminish civil liberties while claiming that it has not seriously limited the Bill of Rights as to American citizens. When Turow thinks about struggles over civil liberties, he is largely fighting the last war.

The next two key constitutional cases on the war on terror will probably involve the NSA domestic surveillance case and constitutional challenges to the Military Commissions Act. They involve presidential power and the power of Congress to strip the jurisdiction of the federal courts with respect to aliens. Scalia's previous decisions suggest that he is far more likely to be on the Administration's side in these controversies. His dissents in Rasul v. Bush, Hamdan v. Rumsfeld and INS v. St. Cyr are far better predictors of how he will look at key civil liberties issues in the War on Terror than the cases Turow cites.

Although the NSA case may involve the Fourth Amendment, most courts have held that the Fourth Amendment does not apply to foreign intelligence collection, and there are various other exceptions to the Fourth Amendment that may take the NSA program out of its ambit. That being the case, the key question turns on Presidential power to work outside of the Foreign Inteligence Surveillance Act. The argument against the legality of the NSA program is pretty much the same as the majority's argument in Hamdan v. Rumsfeld, an argument that Scalia rejected. Scalia has long been an advocate of a strong executive, and where Congress can be said to support what the executive has done, Scalia's degree of deference is likely to be even higher.

Things get no better with the Military Commissions Act. A passing acquaintance with Scalia's views on jurisdiction stripping in his dissent in Hamdan and his views on habeas stripping (especially with respect to aliens) in St. Cyr suggest that he is among the least likely of the Justices to be sympathetic to claims that Congress acted unconstitutionally in passing the Military Commissions Act. Remember that the Military Commissions Act primarily affects non-citzens held overseas, and if anything is clear from Scalia's concurrence in Hamdi v. Rumsfeld, it is that he makes a sharp distinction between the rights of citizens and non-citizens.

There may be some civil liberties issues in the future in which Scalia joins the liberals. I doubt, however, that many of them will be the key issues in the War on Terror. That is because the Bush Administration has found ways to limit civil liberties without making a direct assault on the substantive content of the Bill of Rights. Rather, the Administration has found ways to route around the Bill of Rights by creating a parallel system of military detention and surveillance justified by claims of emergency and national security. That is to say, the Bush Administration has produced an early version of what I call the National Surveillance State. To the extent that the coming constitutional struggles over the National Surveillance State involve the scope of Presidential power (often abetted by Congress) and the rights of aliens, particularly aliens who are in the country illegally or are behing held overseas, Justice Scalia is not likely to be the great civil libertarian that Turow hopes he will be.

But my larger point concerns more than Justice Scalia's jurisprudence. It is about civil liberties generally. Because the problems of governance and the nature of goverment responses are always changing, it is not enough to prevent governments from doing bad things that people fought over long ago and that we now firmly reject. Rather, in ever new situations, governments are able to find ever new ways to limit people's liberties under the forms and practices of law, making new distinctions, and creating new techniques that are plausibly distinguishable from old controversies. That is why the protection of civil liberties is not about making sure that governments don't repeat precisely the same mistakes they made fifty or a hundred years ago. It is about making sure that they don't abuse power in new ways based on the evolving forms of governance.


Hm. I half agree w/ JB.

If the merits of the Addington-Yoo theory of executive supremacy during wartime got to Scalia, and *if* (big "if") he had any intellectual integrity on the subject, he would write a particularly withering rejection of same.

But (here's where I agree with JB) Scalia also is rather expansive on the power of Congress to strip jurisdiction from the courts. So Scalia's unlikely to reach the merits. Never mind the transparently unconstitutional effects of allowing Congress to deny habeas jurisdiction without literally "suspending the writ."

Scalia makes the same fundamental differentiation concerning wartime enemy combatants based on citizenship which I do - citizens enjoy the constitutional rights and should be tried for treason if the are acting as enemy combatants while alien enemy combatants do not.

Scalia has a son who has served as an Army officer in Iraq, so he has a much better grasp on the reality of war than his peers on the court. Consequently, it is unsurprising that Scalia reportedly said in "March 8 remarks to an audience at the University of Freiburg in was "crazy" to suggest that combatants captured fighting the United States should receive a "full jury trial," and dismissed suggestions that the Geneva Conventions might apply to detainees at Guantanamo Bay, Cuba."


If Turrow is similarly "crazy" if he is looking toward Scalia to extend constitutional rights to alien enemy combatants for the first time in our history.

Agreed that Turow is engaged in rather wishful thinking. He is also, I think, rather serioiusly misreading Scalia's dissenting opinion in Hamdi. I've just made that point in a post on Mike Dorf's blog, at

Aside from the Fourth Amendment issue, which is not the most central to the NSA matter, the domestic surveillance case is not a matter of civil liberties but of separation-of-powers.

There are two arguments advanced by the administration -- at least in public, if not forthrightly in court -- to justify the NSA surveillance program: a statutory claim that the 2001 Authorization for the Use of Military Force implicitly overrides the explicit progibitions of FISA; and a constitutional claim that presidents possess Article II powers that trump anything Congress enacts in this field (essentially requiring a holding that FISA is somehow unconstitutional.)

On the statutory question, Scalia dissented from the Hamdi plurality, which said the AUMF did authorize detention of a U.S. citizen seized in a foreign theater of battle. But he also joined the dissenters in Hamdan, who argued that the AUMF did authorize military commissions without additional legislation. How he and the other dissenters would rule on the statutory argument in the NSA case depends on a different set of facts and a different statute (FISA). The court has held that the AUMF authorizes some things, but not all things the administration claims.

On the larger constitutional question, Scalia's Hamdi dissent clearly showed that his orginalist reading of the Constitution does not support anything close to the sweeping executive war powers claimed by Bush. In Hamdi, the court rejected the President's separation-of-powers claim 8-1. Scalia's dissent was the position least favorable to Bush.

Administration lawyers are afraid to frame their Article II "argument" in an actual brief precisely because they fear teeing it up would draw a 8-1 or 9-0 smackdown in SCOTUS. If this court had to confront that argument squarely, I am confident that Scalia, Alito and Roberts would all reject the administration's radical constitutional theory.

The piece was misleading from the title/subtitle on. The subtitle suggests he might be "a bigger obstacle than the Democratic Party." If only!

Turow's honesty forces him to repeatedly voice the "narrow" view of Scalia's Constitution, including a statement he made about how we enjoy rights far beyond what is req. and war time will "ratchet" them down. The Cato Institute didn't quite genuflect at that.

This leaves him thin gruel to rely on. In fact, Turow makes the blatantly false statement that "the Constitution's protections are generally intended for only American citizens" to fit Scalia's dissent in Rasul into the argument.

This when it repeatedly speaks of "persons" and limited powers that don't "generally" suddenly greatly expand when the tens of millions of non-citizens residing in this country or otherwise dealt with by the gov't are affected. Libertarian?

Scalia's formalism does have libertarian effects in various cases, but to the extent they did, Thomas if anything sometimes was willing to go further. And, what about Hamdi? When Padilla had a shot to get real relief from his argument, Scalia suddenly departed from Stevens.

Finally, Scalia is labeled as some pure originalist in the piece. This too is misleading at best. [Again, Thomas is a better candidate.] Scalia has "strict reliance" on the original understanding. The BOR "means exactly" what it does in 1791.

This is a carcicature of his views that he himself doesn't promote. Scalia in various cases accepts precedent, even if it goes against his views of original understanding.

He also sometimes favors clear rules, tradition and democratic decision-making (a disputed term, sure enough) over what quite arguably original understanding strictly requires. And, in areas like commerce power, he has shown to be quite anti-libertarian (Raich).

The person who supported a constitutional right to burn a flag over Justice Stevens' passionate dissent will have his moments. But, this article simply did not convince.

Honestly, it seemed a bit intellectually dishonest, not just too credulous. This is not a slam per se against Scalia either. I just don't think the article covered his beliefs appropriately.

Scalia has a son who has served as an Army officer in Iraq, so he has a much better grasp on the reality of war than his peers on the court.

Unless you know him personally, that statement is plainly specious.

a 8-1 or 9-0 smackdown in SCOTUS.

9-0? Is Thomas planning to resign anytime soon?

Betcha $20 that no case decided under a Republican administration gets *any* Thomas vote to rein in the "wartime" powers of the Exec. (Offer good to JaO only!)


I suspect that Thomas may have imbibed the Kool Aid of supreme executive war powers, which is why if I had to bet I would bet most heavily on 8-1.

Nevertheless, even in his Hamdi dissent on the separation-of-powers question Thomas said the judiciary should defer to both political branches. And the Hamdan dissent he authored was on statutory, not constitutional, grounds.

Like every other justice, Thomas does subscribe to the Jackson framework from Youngstown (which Thomas employed himself in Hamdi and Hamdan). If the constitutional question were presented squarely in the NSA case, he at least would have to find some rationalization for why Congress exceeded its powers in enacting FISA. That is not out of the question for him, I realize. I don't think anyone else would sign such a dissent.

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