Wednesday, May 31, 2006

Who's Afraid of Ceballos?


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

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

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

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

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

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

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

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

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

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

Regime Politics and Non-Majoritarian Problems

Mark Graber

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

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

Tuesday, May 30, 2006

Ceballos-- The Court Creates Bad Information Policy


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

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

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

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

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

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

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

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

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

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

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

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

Marty Lederman

Cross-posted from SCOTUSblog.

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

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

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

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

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

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

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

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

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

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

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

Saturday, May 27, 2006

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

Marty Lederman

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

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

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

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

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

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

For a significantly different take on it, however, see Bob Bauer's posts, linked above.

Why Did Bush Seal the Documents from the Jefferson Raid?


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

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

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

The one thing that this Administration fears more than anything is oversight.

Give Credit Where It's Due

Marty Lederman

Turns out it was none other than David Addington who was the official within the Executive branch questioning the legality of the search of Congressman Jefferson's office:
Vice President Cheney's chief of staff, David S. Addington, was among the leading White House critics of the FBI raid, telling officials at Justice and on Capitol Hill that he believed the search was questionable, several sources familiar with his views said. . . . Addington -- who had worked as a staffer in the House and whose boss, Cheney, once served as a congressman -- quickly emerged as a key internal critic of raiding the office of a sitting House member. He raised heated objections to the Justice Department's legal rationale for the search during a meeting Sunday with McNulty and others, according to several sources.
Perhaps this is simply the function of a very principled view of a very strict regime of separated powers, going in both directions.

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

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

Thursday, May 25, 2006

A corrupt Congress is shocked to discover a lawless Executive


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

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

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

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

They have their nerve.

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

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

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

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

Monday, May 22, 2006

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

Marty Lederman

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

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

Second, if Hayden is to be believed, the members of Congress who were briefed agreed with the Administration that: (i) The program was useful but in violation of FISA; (ii) The best way to deal with the program of FISA's obsolescence was to amend FISA to accommodate the program; but (iii) To amend FISA in such a way would risk public revelation of NSA methods that had to remain secret:
SEN. ROBERTS: [A]s you go down the list of people who were briefed -- and I'm just going to mention a few here: Ted Stevens, Dennis Hastert, Nancy Pelosi, Bob Graham, Dick Shelby, Jay Rockefeller, John Murtha, Harry Reid -- these are not shrinking violets. These are pretty independent people. And they say what is on their mind. So my question to you is: Basically, when you were doing the briefings, did anybody . . . express real opposition to this program?

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

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

HAYDEN: No, sir.

ROBERTS: That it was illegal?

HAYDEN: No, sir.

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

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

Why didn't we get a request for reform?

HAYDEN: There were clear concerns [at DOJ], in which frankly, I shared, that attempts to change FISA would reveal important aspects of the program, eliminating key secrets that enabled us to do the kinds of things we were doing to an enemy whom I'm certain felt that this space was a safe haven for him. . . . And finally, in that March 2004 meeting that the chairman and Senator Hatch had mentioned where we had the senior leadership of the Congress there in addition to the leadership of the two intelligence committees, there was discussion about changes to FISA. And without getting into the details of the conversations, ma'am, there was a powerful and general consensus that an attempt to change the legislation would lead to revelations about the nature of the program, and thereby hurt its operational effectiveness.
Assuming that this account is accurate (and I have no way of knowing whether it is), it would raise two important questions.

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

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

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

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

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

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

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

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

Price Gouging is Not a Disparate Impact Defense

Ian Ayres

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

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

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

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

The article applies this idea to employment, but it grows out of work that I did as an expertwitness on a series of auto financing cases. The article discusses these cases and the arguments of three opposing experts: Richard Epstein, James Heckman and George Priest.

Friday, May 19, 2006

Michael Hayden and Article II

Marty Lederman

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

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

I said, "Not within current law."

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: In his testimony, Hayden indicated that if the lawyers tell him there's an Article II prerogative, that will be enough for him:
SEN. FEINGOLD: General, if you're confirmed, there will likely come a moment when the president turns to you and asks whether there is more the CIA can do under the constitutional authority that he has asserted under Article II. What would you tell him? Is there more?

HAYDEN: Well, obviously a hypothetical, but let me just imagine the hypothetical in which not unlike the NSA situation, there are additional things that could be done.
Senator, I'd consult my lawyers and my conscience just as I did in 2001. In this particular case, Senator, to be very clear, all right, the White House counsel, the attorney general, the Department of Justice's lawyers and my own lawyers at NSA ruled this to be a lawful use of the president's authority.
I don't know enough about Hayden, nor about the current struggles among DOD, DHS, Negroponte and the CIA for control of intelligence operations, to have any view on whether he should be confirmed. I've heard many people in the know opine that he is a thoughtful, dedicated and effective public servant. And perhaps it's understandable that if the DOJ lawyers, including the Attorney General, tell him the President has the authority to ignore statutes, it would be presumptuously for him not to follow that advice.

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

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

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

UPDATE: Please allow me to add this, on the subject of congressional capitulation. As Dana Milbank gleefully explains, what happened yesterday on any question that mattered, including on all questions related to the legality of what the NSA has been doing, is that Hayden agreed to testify only in closed session:
Is the NSA eavesdropping program that President Bush confirmed the entire program? "I'm not at liberty to talk about that in open session," Hayden said.

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

Is "waterboarding" an acceptable interrogation technique? "Again, let me defer that to closed session."
Two notable things about this:

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

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

Wednesday, May 17, 2006

The Twin Dangers of the National Surveillance State


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

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

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

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

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

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

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

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

Pretty Boy Democracy

Mark Graber

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

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

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

Tuesday, May 16, 2006

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


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

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

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

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

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

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

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

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

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

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

Monday, May 15, 2006

A Lot of Reporters Must Be Calling Al Qaeda


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

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

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

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

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

Redeeming Lottery Tickets

Ian Ayres

In this Forbes column, Barry Nalebuff and I suggest creating a new lotto ticket that lets people have the excitement of a traditional lottery while they are investing for their retirement.
A lottery savings ticket would look just like a lotto ticket, scratch like a lotto ticket, cost a buck and pay out the same prizes. The only difference would be that half the revenue would be earmarked for a personal retirement savings account rather than for education. There would still be about a third for prizes and the remainder for administering the game.

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

One of the great difficulties in encouraging private savings has been to find some mechanism that will produce a disciplined pattern of ongoing contributions. The beautiful thing about the lottery is that hard-core players play their number religiously.

Sunday, May 14, 2006

West Wing and the Constitution (finale)

Sandy Levinson

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

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

In any event, "West Wing," RIP (save for syndication).

Saturday, May 13, 2006

The whiff of fascism in the air

Sandy Levinson

In tomorrow's New York Times, David Brooks's column is titled (presumably not by him) "From Freedom to Authority." The general thesis is that "we're moving from what you might call loose conservatism to tight conservatism. We're seeing a conservatism that emphasizes freedom give way to a conservatism that emphasizes authority." The most remarkable sentences are the following:

"Middle-class suburbanites understood this shift far more quickly than the professional conservatives in Washington. What people wanted post-9/11 was Giuliani-ism on a global scale — someone who was assertive and decisive enough to assume authority and take situations that seemed ungovernable and make them governable."

As a matter of fact, I think that Ruldoph Guliani behaved quite commendably in the immediate aftermath of September 11. That being said, I think there is little doubt that he was, prior to that date and then again about three months later, the most truly fascistic major political figure in the United States. What Brooks, who,ironically or not, is regarded as a "moderate" and relatively non-ideological conservative (at least by EJ Dionne, his regular interlocutor on NPR), is calling for is an ever more Schmittian authoritarian executive who pays little regard to constitutional niceities. One name for this is fascism.

To be completely candid, I do believe that one of the reasons for such calls is that our constitutional structure makes governance so difficult. As Kim Lane Scheppele and Oren Gross have both recently argued, there are a spate of "emergency powers" laws on the books that presidents often take advantage of, so that, increasingly, "the emergency is the norm," again as Schmitt might have predicted. One reason for the appeal of a Schmittian presidency is the perception that ordinary government has broken down in the perpetual gridlock that appears to be Washington (save for cutting the taxes of the rich). As I have also argued in other venues, Schmitt's writings on the Weimar Parliament are all too relevant these days. It is not good news, when all is said and done, that less than a quarter of the public (22%) approve of Congress or have any real confidence in its own capacity to serve the public interest.

Let me also say a word or two about Marty's response to my earlier posting on Clinton. First, I agree with him completely that Bush is worst than Clinton in almost every conceivable way, though, as a matter of fact, I was never impressed by Clinton's regard for civil liberties. My point in my previous post is that the kind of defense offered by liberals during the impeachment controversy--that Clinton must be guilty of a truly "high crime and misdemeanor" to make impeachment thinkable and that calls for his resignation were feeding the unwise transformation of the American political system from one that depended on fixed-term presidencies to a more parliamentary system--are coming back to bite us now. For a number of months after the initial disclosures about Monica, I believed that Clinton should resign. Then, I was made so angry the the Republican vendetta that I ended up applauding his remaining in office. I now believe I was right the first time. What exactly was the benefit of "three more years" of Bill Clinton between January 1998-2001? Remind me of his accomplishments during those years.

Marty and I absolutely agree that the key to understanding why Clinton got away with very little and Bush with almost everything has to do with partisan control of Congress and, therefore, of the ability to investigate. Even Republicans are becoming embarrassed at the bankruptcy of congressional oversight over this lawless and incompetent Administration. Incidentally, one of my other assertions in my forthcoming book is that Republican professionals had no desire actually to get rid of Clinton--they didn't want an incumbent Al Gore--but, rather, knew that bicameralism + the 2/3 requirement for conviction in the Senate would give House Republicans a "free pass" with regard to their posturing about impeachment. It was all a charade, save for a very few principled Republicans who really were offended, rightly or not, by the absolutely reckless sexual behavior and then lying and, finally, perjury, committed by a man who could indeed have been a great president had he been able to discipline himself more. That is why so many Democrats speak of the "tragedy" of Bill Clinton--a person of enormous ability--whereas almost no one thinks well enough of George Bush to refer to him as a "tragic figure" (unlike, for some, Colin Powell, say).

Have a good weekend.

Where There's Smoke . . . There's Cheney and Addington

Marty Lederman

It was only a matter of time, right? This can't come as a surprise to anyone by now: The New York Times reports that the idea of engaging in electronic surveillance in violation of FISA was hatched by the Vice President's Office, on the theory that the President has the constitutional authority to run roughshod on piddling technicalities such as laws enacted in conformity with our constitutional design.

The story appears to have been leaked by those sympathetic to the NSA and General Hayden. The thrust of their account is that we should be grateful that the NSA surveillance is not much, much broader than has been; the only reason the program does not extend to surveilling purely domestic calls (rather than "merely" obtaining records of them) is that the NSA pushed back against Cheney and Addington.

It is increasingly clear that if any accurate and instructive histories are ever to be written about the Bush Administration, they will need to be much more focused on the Vice President's Office than previous presidential studies. My sense, and that of others who have been mcuh closer than I to the crucial debates within the Administration, is that there are a lot of people who have stories of Cheney and Addington they are anxious to tell, once there is no further prospect of professional retailiation.

This is an appropriate occasion for a partial response to Sandy Levinson's recent posts. Sandy, there are two reasons why Bush remains in office, and neither of them has anything to do with legal and historical testimony of Cass Sunstein and Sean Wilentz. The first is that the Republican Party controls both houses of Congress. The second is that even if the Democrats controlled both houses, impeachment and conviction of the President would only make matters worse -- much, much worse. See the Twenty-Fifth Amendment, section 1.

Paying the price for defending Clinton

Sandy Levinson

In my last post, I bewailed the fact that we have no workable constitutional mechanism--and, just as much to the point, acceptable and widely shared political rhetoric--for getting rid of an incompetent, rather than a criminal, president. Let me suggest that liberals are now seeing certain chickens coming home to roost because of their highly legalistic defense of Bill Clinton in 1998. Thus many prominent legal academics (I think particularly of Cass Sunstein, but there are certainly others) insisted that Clinton could be impeached only for a high crime and misdemeanor, and neither disgracing his office nor perjury seemed to count. And Sean Wilentz, in testifying before Congress, described the Andrew Johnson impeachment as merely "political." Not only might one proper response be "so what" (though I admit that the language of the Constitution presents certain problems), but it is also the case that Wilentz, in his zeal to save Clinton, utterly ignored the fact, as spelled out by Bruce Ackerman in his pathbreaking work on the constitutional "transformation" during the aftermath of the Civil War, that the impeachment was central to getting the Fourteenth Amendment, among other things. In any event, isn't it clear, in retrospect, that the country would have been far better off had Clinton resigned (and given Gore the advantage of presidential incumbency)? Instead, liberals, like Monica Lewinsky herself, played into Clinton's narcissism--and the rhetorical pull of the fixed-term presidency, which gives presidents an almost feudal-like sense of a property entitlement to the White House. Far better that we adopt a Ross Perot notion of the president as simply our employee, to be bounced whenever he (or in the future she) manifests sufficient incompetence to warrant firing. But that would require a Constitution that gave the employers (We the People) the right to fire their agent (the President) for just cause even if the agent hadn't actually robbed the till. (Shouldn't it be enough if he consistently misplaces the goods and alienates the customers?)

Tice: Even More Illegal NSA Spying


According to former NSA employee Russell Tice, there's more illegal domestic surveillance that the NSA is engaged in, and President Bush's new nominee for the CIA, General Michael Hayden, knew about it. This from a report by Chris Strohm from CongressDaily (National Journal):
A former intelligence officer for the National Security Agency said he plans to tell Senate staffers next week that unlawful activity occurred at the agency under the supervision of Gen. Michael Hayden beyond what has been publicly reported, while hinting that it might have involved the illegal use of space-based satellites and systems to spy on U.S. citizens.

Russell Tice, who worked on what are known as "special access programs," has wanted to meet in a closed session with members of Congress and their staff since President Bush announced in December that he had secretly authorized the NSA to eavesdrop on U.S. citizens without a court order. In an interview late Thursday, Tice said the Senate Armed Services Committee finally asked him to meet next week in a secure facility on Capitol Hill.

Tice was fired from the NSA last May. He said he plans to tell the committee staffers the NSA conducted illegal and unconstitutional surveillance of U.S. citizens while he was there with the knowledge of Hayden, who has been nominated to become director of the CIA. Tice said one of his co-workers personally informed Hayden that illegal and unconstitutional activity was occurring.

The Senate Intelligence Committee plans to hold Hayden's confirmation hearing next week. "I think the people I talk to next week are going to be shocked when I tell them what I have to tell them. It's pretty hard to believe," Tice said. "I hope that they'll clean up the abuses and have some oversight into these programs, which doesn't exist right now."

Tice originally asked to meet with the Senate and House Intelligence committees, but they did not respond to his request. The NSA did not reply to written questions seeking comment for this story.

Tice said his information is different from the Terrorist Surveillance Program that Bush acknowledged in December and from news accounts this week that the NSA has been secretly collecting phone call records of millions of Americans.

"It's an angle that you haven't heard about yet," he said.

According to an unclassified resume, Tice was a specialist in space operations systems, command and control warfare, advanced technology and all-source collection analysis. During an 18-year career, he worked on some of the most secretive programs in the government.

Tice would not discuss with a reporter the details of his allegations, saying doing so would compromise classified information and put him at risk of going to jail. He said he "will not confirm or deny" if his allegations involve the illegal use of space systems and satellites.

Tice said he would raise concerns that illegal activity was occurring in electronic reports, but that his comments were deleted from those reports.

Friday, May 12, 2006

Malfeasance and misfeasance

Sandy Levinson

I have mentioned in an earlier posting a forthcoming book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), that the Oxford University Press will be publishing in October. Reading Jack Balkin's most recent post--on how George Bush is, in some strange sense, "liberated" by the polls and his lame-duckness to do whatever he wants, however reckless, I want to bring to readers' attention one section of the chapter in the book on Article II and the presidency, titled "On "Malfeasance" and "Misfeasance"; Why Criminal Presidents Present Less of a Threat than "Merely" Incompetnet Ones." In that section, I argue that one of the worst legacies of the framers is a rigid, fixed-term presidency that can be escaped only if a president is indeed sufficiently criminal to meet whatever the "high crimes and misdemeanors" clause of the Impeachment Clause means. Although I am well aware that many people on the left believe that Bush has manifested his criminality by aspects of the war in Iraq, the NSA surveillance, and the like, it is, I believe, a sign of our constitutional pathology that we feel we must label him a criminal, about which there is reasonable debate, rather than a blithering incompetent, which seems more widely accepted across the political spectrum. (And, incidentally, one obvious problem with impeachment, under the current system, is that it would give us Dick Cheney as president, which would be even worse on almost any criteria. So then one must fantasize impeaching Cheney as well, which gives us Dennis Hastert, who no sane person would believe is competent to be president in today's complex world. Next in line is Ted Stevens (ditto).)

The scenario that Jack most ably (and frighteningly) sets out requires as the background condition that we, as a political order, are indeed trapped in what I call the "iron cage" of our constitutional structure. Almost any other political system in the world would be figuring out how to strip an incompetent menace like Bush of his political power. The best we can do is hope for a Democratic takeover of at least one house of Congress so that it can harass him with investigations. But, as Jack notes, there is simply no reason to believe that he will cooperate in any significant investigation. More than ever, we are moving/have moved to a Schmittian presidency, and the Constitution bequeathed us by James Madison and his friends apparently gives us no effective way of responding. George Mason in fact wanted to make "maladministration" impeachable, but Madison disagreed, arguing that would give too much power to Congress, and he thus insisted on a "misfeasance" (criminality) standard for impeachment. In this, as in many other areas, Madison may have been right for his particular time, but disastrous inasmuch as the Madisonian vision continues to smother us 220 years later.

Bush is just another word for nothing left to lose


Yesterday my colleague Bruce Ackerman pointed out to me that if things continue to go as they have, President Bush is never likely to regain his popularity and his political capital; as a result, he has very little to lose if he engages in even greater risk taking behavior than he demonstrated in his first six years in office. If his gambles pay off, he regains some political capital; if they don't, he can't lose much more popularity than he already has. Moreover, even if the Democrats retake the House and Senate in 2006, the chances of impeaching him are slim and the chances of impeaching him *and* removing him from office are even slimmer.

It's true that a risk taking Bush might screw things up for the Republican Party for the next election cycle or two, but he has already done that quite nicely, thank you. Moreover, he has never been one to put the interests of other politicians ahead of his own, so why should he start now?

Throughout his Presidency Bush has shown a desire to engage in gambling and risk taking behavior. Now that he has gambled himself into a failed presidency, he may well decide that taking even greater risks has considerable upside and very little downside.

What kinds of risks might he be willing to take? Although I do not believe it will happen, the most obvious is a unilateral decision to bomb Iran. Many people think that this is a spectacularly bad idea. But look at it from the perspective of a failed Presidency with two and a half years to go. Right after the bombing starts, there's a good chance that many Americans will rally around the President. If Bush were to preemptively attack Iran, politicians of both parties will be placed in a difficult position. They might gamble that a public, tired of constant war, will react negatively to the strikes. But if they criticize the President without finding out whether the public supports what he is doing, they risk looking soft on national security and bucking a popular upsurge of support. Gambling and picking the wrong side has greater consequences for them than for Bush: They are facing reelection, while the President is not. Hence they will be tempted to take the safer route and support the President. If the expedition turns out badly, they can always criticize him later on. Indeed, if the President goes ahead and bombs Iran, we might see both John McCain and Hillary Clinton falling over themselves to see who can take the toughest stance. Several people have speculated that the President might bomb Iran before the 2006 elections in order to preserve a Republican Congress. The irony is that if the Democrats win one or more Houses, Presidential risk taking is even more likely. And remember, it does not have to be Iran. There are always plenty of other places where the President might think a little bombing might do some good.

But let's put Iran to one side. There are lots of other gambles that a failed President can take with very little downside risk. For example, with a Democratic controlled Congress, he can veto bills left and right (well, mostly from the right); it will be hard to override his veto. He can make more recess appointments. And he can try to stock the courts with even more strongly conservative judges. What does he care if the Democrats can block some of them? Finally, he can stop investigations in their tracks by withholding information on national security and executive privilege grounds, and he can prevent embarrassing criminal investigations by using his pardon power as his father did. He can become increasingly truculent and he can dare the House to impeach him and the Senate to remove him. I mean, what are the chances that two thirds of the Senate will vote to convict and remove? Not very great, even if the Democrats retake the Senate. And even if the risk is, say twenty percent, he might conclude that it's a gamble worth taking.

But, you may object, what about his legacy in history? Won't engaging in even greater risk taking damage what historians will say about him? Well Bush has every reason to believe that if he will be honored at all by later generations, it will be for pursuing aggressive policies following 9-11 that helped keep the country safe and prepared it for a long struggle against terrorism. He may well assume that he will be regarded retrospectively with the same degree of respect and warmth that Harry Truman received many years after he left office. Remember that Truman was also regarded as a stubborn man who got the country embroiled in a frustrating war overseas (Korea), and his approval ratings were just as low. Nevertheless, Truman was eventually remembered as the President who first formulated and implemented the successful policy of containment during the Cold War. In the same way, Bush might reason, he will be remembered not for deficit spending, Katrina and the Iraq debacle but for his policy of muscular responsiveness to the threat of Islamic terrorism, which later Presidents will adopt just as Truman's containment policies were adopted by Presidents of both parties during the Cold War.

And here's the kicker: Bush has every reason to think that the next series of Presidents, whoever they may be, will follow many of his policies in the War on Terror. As Sandy Levinson and I have explained, we are gradually moving from a National Security State to a National Surveillance State, with an increasingly powerful executive acting largely with the blessing of Congress. Given the changing nature of warfare and the threats America faces, we would have done so no matter who took office in 2000. The only difference between the two parties would have been how they finessed the issue of civil liberties, and it's important to remember that the Democrat Bill Clinton was not a great civil libertarian, particularly when it came to national security policy. There is little reason to think that someone like Al Gore or Hillary Clinton would make a fetish out of protecting civil liberties or reducing Presidential power once they took office.

Thus, Bush may reasonably conclude that he will be the Harry Truman of the early 21st century-- he made some mistakes, and he went overboard on civil liberties, but future Presidents will thank him for pushing the envelope on Presidential power because it cleared a wide space for them to use in their Administrations. Perhaps you imagine (or you hope) that future Presidents make it a point to reveal all the bad things that were done during the Bush Administration. You are wrong. Future Presidents will not waste much time or political capital trying to expose what Bush did while in office; quite the contrary, they may try to take advantage of the climate of secrecy and Presidential unilateralism that he created. After all blowing the whistle on what the previous Administration did makes it more difficult for them to do similar things in the future. (Moreover, if future Presidents appear to be even a little less aggressive than Bush, they will seem quite moderate in comparison.) If the various misdeeds of this Administration ever to come to light and come to justice, it will not be because later Presidents expose them out of the goodness of their hearts, but because Congress and the judiciary reassert themselves, and more people risk their careers by leaking information. Without such courage, much of what Bush and his subordinates did in the past several years will never be fully known, and Bush's reputation will be burnished by later Presidents following his example.

Now I don't actually believe that Bush is the second coming of Harry Truman-- I think that history will be far less kind. But from Bush's perspective, it's a plausible legacy to shoot for. If that's so, Bush has no incentive to admit any mistakes or to ask forgiveness for anything he's done in office. Indeed, he has every incentive to be just as risk taking, just as stubborn, and just as bull headed as he has been for the past six years, if not more so.

And that, I am afraid, does not bode well for the future of our country.

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