Tuesday, July 31, 2007

Some Thoughts on Leaving Office

Michael Stokes Paulsen

Today was my last day as a law professor at the University of Minnesota Law School. (Tomorrow is my first at University of St. Thomas School of Law, across town.) It's been a great run of sixteen years. Sixteen! Fully one-third of my life. The equivalent of four presidential terms. Eight times longer than I've held any other job.

It is hard to clean out an office after sixteen years. So much accumulated paper! I'd moved offices once, within the building, a few years ago, when the addition was built. I decided to move over to what I affectionately call the Mondale Extreme Left Wing. In making that move, I probably threw away one-third of what I'd accumulated. But that barely made a dent. This time I had to be ruthless.

In an on-line world, it should be easier to throw things away. You can always get a fresh copy pretty quickly. Give me a laptop and a place to stand, and I will move the world. I wrote a large note to myself and taped it to my bookshelf. "Do I Really Need It?" It helped me to pare down more vigorously.

Maybe too vigorously. I apologize to all those who've sent me reprints of their law review articles over the years. I finally parted with a lot of them this past week. (Don't worry, though; I'm sure I kept yours, because of its significance and deep personal value.) I looked at them all again, quickly, to remind myself of what they were about. I think that's the real purpose of reprints these days -- notification of a new publication. Glance, consider, familiarize. Sometimes save and read. File. Recall and search on-line when you really need to read it.

Still, when it comes to reading articles, I'd much rather sit and read a nice, pretty reprint than print something out onto 8 by 11 inch sheets of paper, killing several trees. And I 've never made it through an entire article on a computer screen. So, keep sending them. I'll accumulate them for the next sixteen years or so, in my new office at St. Thomas.

I sent out a couple of years worth of reprints of my own, today. I've become slovenly about sending them out in a timely fashion. But today they head out the door (along with me). In part, I just didn't want to schlep them. In part, they went nicely with a change-of-address letter. My reprint list is badly outdated, compiled seven secretaries ago. (I am not kidding.) Your copies were probably sent to your place of employment six years ago. (Didn't that guy move from Chicago to Harvard? Texas to Michigan? The Fourth Circuit to a GC job in Chicago?)

Maybe someone will keep and read one or two of the shorter articles. Or just notice and file. A Minnesota colleague mused that, when he sends out reprints, he wonders if it wouldn't be nice to include a handy disposal bag right along with them.

Throwing away books is considerably harder. It feels somewhat immoral. I bequeathed some. I donated some. But what about old editions of casebooks, no longer needed, and filled with my personal highlighting and margin scribbles? What about old editions of casebooks from when I was a law student, no longer of sentimental or intellectual value sufficient to lift into a box and transport across town? Who would want those, anyway? And aren't they sort of, well, personal? I designated those few for trash.

I saw them rolling away on a book cart the next day. I protested and explained. No, no, no, the library wants them. Don't worry, they won't go on the shelves or anything. They go into this storage room. The library just wants them for their book count. It's relevant to U.S. News rankings and all.

I smiled. There are some games I'm just not that interested in playing. But if others want to, that's fine.

Who's the Decider? (Part 427)

Marty Lederman

Larry King: Did you dispatch the White House Chief of Staff and the Counsel to the President to the Attorney General's hospital room to try to get him to sign off on the NSA surveillance program?

Dick Cheney: "I don't recall that I gave instructions to that effect."

* * * *

What's interesting is that Cheney pretended to wrack his brain to recall whether he gave the fateful "instructions." As if that might actually have happened -- as if there would be nothing out of the ordinary if the Vice President had "instructed" the President's two closest advisors to try to squeeze a cabinet official.

Any other Vice President in the history of the Republic would have responded in a way that revealed how absurd the question was (i.e., how absurd it should be), to wit:
"I don't give instructions to those persons. They work for the President, not for me. Indeed, when they do act, they act as agents of the President. I can make recommendations, of course. But that's really beside the point, because ultimately it's the President's call whether to send his two closest advisers to bring pressure to bear on a cabinet official."

Monday, July 30, 2007

The virtues of Nazi ghosts

Andrew Koppelman

I just spent several days at the Law and Society conference in Berlin, and took the opportunity to walk around the city. I had never been in Germany before. The heart of the city is easy to cover on foot, which means that in a short time one can visit many of the principal landmarks of the atrocities of the Nazi era: the square in front of Humboldt University where the book-burning of 1933 took place (commemorated by a remarkable underground monument – a room, visible through a pane of glass, full of empty bookshelves), the Neue Synagoge that was set afire on Kristallnacht, the Jewish hospital that was turned into a collection point for the extermination camps, the former sites of the (now-demolished) headquarters of the Gestapo and SS, the Reichs Chancellory and adjacent bunker where Hitler made his last stand. The most remarkable landmark at all is the small number of pre-World War II buildings that are still standing, since so much of the city was destroyed in the fighting in 1945. Wherever you go, there are markers in several languages that unflinchingly describe who the Nazis were and what they did. There is a particularly detailed history of the Gestapo and SS at its former headquarters site, also available here.

I am impressed by Germany’s capacity to take ownership of its history without evasion or groveling. There is no effort to whitewash the past. There is an obvious determination to remember and reflect.

I wish the United States could do the same. You could spend a lot of time on the Mall in Washington, D.C. without being made to think about slavery, the genocide of the Indians, and the path of Western conquest. This is related, I think, to Americans’ easy acceptance (which I’ve written about elsewhere) of a narrative in which we are the world’s Good Guys, so that any atrocity that we happen to commit (the prolonged imprisonment and torture of innocent people in the “War on Terror” is the most recent example) can’t really be that bad, because it’s us that’s doing it. Hitler’s ghost is everywhere in Berlin, and it’s a good citizen, forcing the natives to maintain a sober self-image. I find it hard to imagine Germany soon falling again into the kind of grandiose delusions that are ubiquitous in American politics. We ought to conscript our own demons and put them to the same kind of work.

Online "Debate" About Executive Privilege

Marty Lederman

Jack and I are both part of an online "debate" (so, far, more like a discussion) that the Federalist Society is hosting on the current executive-privilege questions, both substantive and procedural. So, far, we're joined by Chuck Cooper, Michael Dorf, Richard Epstein and Peter Shane, with the prospect of others joining shortly. The permanent link is supposed to be this one, but there's a glitch at the moment there, so for the time being you can find the debate here.

Sunday, July 29, 2007

What's the Legal Significance of the Data Mining?

Marty Lederman

Today's New York Times reports that "the 2004 dispute over the National Security Agency’s secret surveillance program that led top Justice Department officials to threaten resignation involved computer searches through massive electronic databases, according to current and former officials briefed on the program. It is not known precisely why searching the databases, or data mining, raised such a furious legal debate. But such databases contain records of the phone calls and e-mail messages of millions of Americans, and their examination by the government would raise privacy issues."

Josh Marshall understandably wonders what's going on here. After all, as the Times itself notes, the fact that the N.S.A. was involved in data mining "has previously been reported," including importantly in the book of the Times's own James Risen. Moreover, the Administration's emphasis has been on why it did not need to comply with FISA. And yet, my understanding is that FISA generally does not restrict the sort of data mining that was likely at issue here. The electronic surveillance that FISA restricts is limited to the acquisition of the "contents" of certain communications (50 USC 1801(f)(1)), and "contents" is defined in turn to mean "any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication" (50 USC 1801(n)). According to John Yoo's latest book and other sources, the data mining that the NSA wished to use "did not provide the content of the calls," but instead revealed what the Times today calls "metadata," i.e., some information about the characteristics of the calls apart from their contents and (in Yoo's words) "devoid of information that could identify an individual."

So what was the legal dispute about?

I think there are at least three possibilities (and probably many more).

First, and least likely I think, perhaps the dispute was about another statute entirely, the Stored Communications Act, 18 U.S.C. 2702(a)(3), which provides that a provider of remote computing service or electronic communication service to the public "shall not knowingly divulge a record or other information pertaining to a subscriber to or customer of such service . . . to any governmental entity."

It's not clear that the data mining here involved any such divulgence of subscriber information by service providers. And in any event, that statute restricts only the service providers, not the government, and so it's unlikely that this is what caused the furor in March 2004. If, however, this is the source of the dispute, perhaps it centered on a very implausible theory that a statutory exemption applied due to some notion of customer consent. I'm grateful to Orin Kerr for raising this possibility, and for having earlier explained, in a slightly different context, why such a "consent" theory would have been a legal non-starter. I have more on the SCA and the weakness of the "consent exception" theory, here.

Second, perhaps the NSA data mining was the legal problem -- not because of FISA, but because of a different prohibition found in a law that had just been enacted in the Fall of 2003, the 2004 Department of Defense Appropriations Act. (Thanks to a Balkinization reader for pressing me on this theory.) I don't think this was the problem, for a reason I'll describe below, but to even get to that point, it takes a bit of exposition to explain what the legal restriction might have been. If you're not interested in the details, and want to just get to the meat of what I think the legal problem actually was, just skip ahead down the page to just before the section on the "Third" problem.

Famously, section 8131(a) of the 2004 DoD Appropriations Act had defunded another data mining program that had received substantial public attention and approbation -- the Total Information Awareness program, or TIA, which had recently been re-dubbed the "Terrorist Information Program." Section 8131(a) of the Act provided that "[n]otwithstanding any other provision of law, none of the funds appropriated or otherwise made available in this or any other Act may be obligated for the Terrorism Information Awareness Program."

Importantly, however, the DoD appropriations bill included a proviso clarifying that this TIA funding cut-off did not apply to another data-mining program: "Provided, That this limitation shall not apply to the program hereby authorized for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence, as described in the Classified Annex accompanying the Department of Defense Appropriations Act, 2004, for which funds are expressly provided in the National Foreign Intelligence Program for counterterrorism foreign intelligence purposes."

OK, so there was also a funded program for "processing, analysis, and collaboration tools for counterterrorism foreign intelligence" -- let's call it "PAC-CFI." We don't know what this program consisted of, or what the specific appropriation for it was, because that is all described in a secret law -- in the Classified Annex "accompanying" the bill, which apparently "expressly" provides funds for what was then called the "National Foreign Intelligence Program for counterterrorism foreign intelligence purposes." (The modifier "foreign" was deleted in a law passed several monhs later. The current National Security Act definition of the "National Intelligence Program" (50 USC 401a(6)) is "all programs, projects, and activities of the intelligence community, as well as any other programs of the intelligence community designated jointly by the Director of Central Intelligence and the head of a United States department or agency or by the President.")

The TIA funding prohibition didn't cover this secret program, for which appropriations were specified in the Classified Annex to the law. So what's the problem? Well, the very next subsection -- 8131(b) -- also purported to impose a limitation on that data-mining program: "None of the funds provided for Processing, analysis, and collaboration tools for counterterrorism foreign intelligence shall be available for deployment or implementation except for:

(1) lawful military operations of the United States conducted outside the United States; or

(2) lawful foreign intelligence activities conducted wholly overseas, or wholly against non-United States citizens."

Perhaps the pre-3/04 data mining that OLC had approved -- and that Gonzales and Card might have been imploring the ailing Ashcroft to continue approving -- would have violated this funding prohibition.

And what might OLC's legal theory have been, prior to March 2004, for avoiding this funding limitation? Three possibilities:

a.) When President Bush signed the 2004 DoD Appropriations bill, on September 30, 2003 (just before Jack Goldsmith took over at OLC), he issued a signing statement that raised a constitutional objection to section 8131. Oddly, however, that objection was not that the funding limitation itself was unconstitutional, but instead that the classified annex was, well, classified: "8131 of the Act make[s] clear that the classified annex accompanies but is not incorporated as a part of the Act, and therefore the classified annex does not meet the bicameralism and presentment requirements specified by the Constitution for the making of a law. Accordingly, the executive branch shall construe the classified annex reference[] in section[] 8131 as advisory in effect. My Administration continues to discourage any efforts to enact secret law as part of defense funding legislation and encourages instead appropriate use of classified annexes to committee reports and joint statements of managers that accompany the final legislation."

How this objection interacts with the section 8131(b) funding restriction is oblique, at best. Here's one theory: What the signing statement is saying is that President Bush does not consider the underlying classified annex to be a validly enacted law at all, because it is not part of the public law enacted by the bicameralism and presentment that Article I of the Constitution requies. (This -- whether the Constitution permits classified laws -- is actually a fascinating topic in and of itself.) If so, then the specific appropriation in that Classified Annex is treated merely as "advisory, in effect," and then (this would be the subtle, or implausible, move in the legal analysis, depending on your perspective) the funding limitation in section 8131(b) is also effectively "advisory," because it applies only to a specification that is not itself law. Perhaps DOJ reasoned that the PAC-CFI data-mining program was not limited to the funds specified in the Annex -- that it could be funded, even more extensively, by money generally appropriated to intelligence or military activities in the Appropriations Act and other laws to intelligence acitvities -- and that therefore the 8131(b) limitation does not effectively apply, either because it refers to a non-law, or because it does not extend to the other, broader founts of funding for the PAC-CFI program.

b.) More likely, OLC and/or the Vice President had simply concluded that the funding restrction in 8131(b) was substantively unconstitutional, because it impinged on the Preisdent's Commander-in-Chief authorities (the Torture Opinion/NSA White Paper theory). (My only hesitation here is that I can't figure out why that objection was not also included in the signing statement.)

c.) The NSA data-mining "program" at issue here was deemed to be distinct from the PAC-CFI program to which the funding restriction applied.

It is possible that when Jack Goldsmith looked at the question, he concluded that these (or other) legal arguments for avoiding the funding limitation were indefensible.

Possibly. But I'm skeptical, for a couple of reasons. One is that I'd be willing to wager that at least one of these arguments -- perhaps the third -- was not so far beyond the pale that it would have set off the crisis within DOJ. The bigger problem with the notion that this restriction on the PAC-CFI was the source of the March 2004 dispute is that the OLC "fix" that Jack Goldsmith reportedly developed does not appear to have been tailored to that statutory restriction: The NSA program even after March 2004 -- the one that OLC approved -- does not track section 8131(b): It was not limited to surveillance "wholly oveseas" or "wholly" against non-U.S. citizens. Instead, it allowed interception of communications that were partly overseas, and that were partly of non-U.S. citizens (the Al Qaeda and related suspects).

Third -- and this is to my mind the most likely possibility -- the legal problem wasn't the data mining itself, but instead that the uses of the data that were mined violated FISA. The Times story hints at this -- that perhaps it was not so much the data mining itself, but instead what what NSA did with the mined data, that caused the legal uproar: "Some of the officials said the 2004 dispute involved other issues in addition to the data mining, but would not provide details. They would not say whether the differences were over how the databases were searched or how the resulting information was used."

Here's the theory, roughly:

There was some sort of data mining program going on. Probably not of content, almost certainly not content reviewed by humans. That is to say, it involved computers searching through "meta-data" related to calls and e-mails, looking for certain patterns that might suggest connections to Al Qaeda or to suspicious activitiy that might be terrorism-related. (I have my theories as to what the programs might have been looking for, but don't want to get into such speculation in this forum. And in any case, my theories are probably way off.)

This data-mining indicated that it might be valuable to do more targeted searches of particular communications "pipelines" (John Yoo's phrase), looking for more specific information. But that's where FISA came in. In order to target a particular U.S. person, or to wiretap a particular "facility," FISA requires that the NSA demonstrate to the FISA court probable cause to believe (i) that the target of the electronic surveillance is a foreign power or an agent of a foreign power, and (ii) that each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power. 50 U.S.C. 1805(a)(3).

Perhaps, as John Yoo suggests in his book, FISA would have prohibited following up on the leads revealed by the data mining with more targeted wiretaps of suspicious "channels" or "pipelines," "because we would have no specific al Qaeda suspects, and thus no probable cause."

I think what happened is that the data mining revealed something that the NSA, with DOJ's blessing, followed up on, perhaps using quite long and attenuated "connections" (e.g., phone calls and e-mails three degrees of separation removed) -- what Risen and Lichtblau's original story referred to as "an expanding chain" -- and this follow-up surveillance involved purely domestic communications, as well as communications of persons for whom there was no probable cause to believe they were Al Qaeda agents. Further speculation, with links to plenty of other bloggers, here.) If this is corerct, then it was the follow-up surveillance, not the data mining, that was the legal problem -- it didn't satisfy FISA because whatever it was NSA learned from the data mining, it was something far short of probable cause that all the subsequent targets were agents of Al Qaeda. And OLC concluded that Article II did not justify disregarding FISA.

Goldsmith reportedly insisted that the surveillance be justified based on the AUMF, which imposed two limitations:

a. First, on the view of the Court in Hamdi (later explained in much greater detail by Jack Goldmsith and Curt Bradley in their Harvard Law Review artcle on the AUMF), the AUMF only authorizes conduct that had historically been undertaken by the Preisdent in wartime. Roosevelt and other Presidents had intercepted overseas telegrams and other international communications; but there was no precedent for interception of wholly doemestic communications without court approval.

b. Second, the AUMF itself requires a nexus to those responsible for 9/11 -- which is where the OLC requirement came from that the communications involve at least one person in, or associated with, Al Qaede or related groups.

So OLC insited these two criteria be satisfied in order to avoid FISA's strictures. (I should emphasize that I do not think this AUMF theory is adequate justification for disregarding FISA -- I'm only trying to describe the possible legal argument here.)

But who knows for sure? As Orin writes, "we still don't know exactly what the legal issues were that were in dispute. I can come up with about 10 different theories" (Orin knows more about all this stuff than I do, which is why I've only provided three, with some sub-theories!) -- "but I just don't know which one is particularly likely to be right."

P.S. Unfortunately, most of the reaction to the Times story is about the question of whether it helps or hurts the allegations that the Attorney General lied to Congress. Folks, really, that's a sideshow. Of course he tried as much as possible to deceive the Congress, in numerous respects, including in order to keep them from discovering what Comey bravely and responsibly revealed. No one -- no one -- still thinks that Gonzales's testimony is at all valuable or relevant, or ever has been, for purposes of informing Congress about anything. For goodness sake, when Newt Gingrich and Jonah Goldberg and Orrin Hatch and Jeff Sessions all think you're dishonest, well . . . there isn't a single issue on which there is more consensus in America than whether Alberto Gonzales is trustworthy and has been a truthful Attorney General. And, in my view, whether the deceptions and prevarications and dissembling add up to perjury or not is really neither here nor there. It wasn't about perjury with Clinton, and it's not now. There was a serious cover-up here, but it largely occurred before the Times broke the NSA story in 2005. Since that time, the scandal is not that any particular Administration witness wrongly reassured any member of Congress about anything -- it's not as if anyone listened to Gonzales's testimony and then said, "well, then, ok, never mind about that NSA thing" -- but instead that the Administration (and those in Congress aware of the details of the NSA program) have continued to hide the details of the program, and the legal justifications during the lifespan of the program, from Congress as a whole and (with the exception of some technical details that should remain classified) from the public, as well. The focus now, in other words, should be on the substance of the NSA and FBI conduct, on DOJ's justifications therefore, and on the breakdown in the separation of powers -- and not the parsing of the Attorney General's testimony, which has never been useful for anyone in Congress anyway.

P.P.S. I've turned off the comments function, because unfortunately the comments on this blog long ago devolved into something . . . well, something not worth reading. In and of itseld that's fairly benign; the problem, as I see it (and Jack may well disagree), is that it effectively discourages serious discussion in the comments section of the substance of our posts and the questions they raise. That is to say, we can't get a really good discussion going, the way they do on Obsidian Wings, Crooked Timber, and precious few other blogs. I don't mean to suggest that our comments are uniformly unhelpful -- far from it; the problem is that the chaff buries the wheat to the point where it's not worth the effort to cull it. Accordingly, if you have substantive reactions and/or other theories, please let me know by e-mail, thanks.

Saturday, July 28, 2007

The Fairness Doctrine, Part I


Senators Durbin and Kerry have recently raised the possibility of resurrecting the Fairness Doctrine. Senators Thune and Coleman have tried a preemptive strike against it. The right wing of the blogosphere is very much in arms about the issue, fearing that the Democrats are going to reinstate it. There is almost no chance that they will do so in the next two years, and even if they did, President Bush has vowed to veto the bill. Nevertheless, if the Democrats win the White House in 2008 there is an outside chance that the Fairness Doctrine might make a comeback, so I thought I'd say something about it.

The Fairness Doctrine is bad public policy and it should not be revived. That does not necessarily mean that it is unconstitutional, as many critics have charged. In fact it is probably not unconstitutional on its face, but it certainly could be unconstitutional as applied in certain circumstances. In this post, I only want to talk about its policy implications, why it is so easy to evade and why it does little to improve the quality of broadcasting. I'll leave the constitutional arguments to Part II of this series. In Part III I'll suggest what Congress might do if it really wanted to reform our broadcasting system. Critics on the right have charged that the recent attempt by Democrats to resurrect the Fairness Doctrine is an attempt to silence conservative talk radio. If that is so, it is doomed to failure, for reasons I shall describe in a moment.

A bit of history: We have been living without the Fairness Doctrine for about twenty years. The FCC, dominated by Reagan appointees in the 1980s, issued a report in 1985 arguing that the Fairness Doctrine was no longer necessary given the increase in media outlets due in part to cable penetration. The FCC also argued that the doctrine chilled speech and was probably unconstitutional, despite the fact that the Supreme Court upheld aspects of it in 1969 in the Red Lion decision. In any case, the FCC eliminated the Fairness Doctrine in 1987. Congress tried to reestablish it by statute several times in the years that followed, but Presidents Reagan and George H.W. Bush vetoed the bills and their vetoes were sustained.

The Fairness Doctrine, which has its roots in the 1940s, should be distinguished from the Equal Time/Equal Opportunities provisions of the Federal Communications Act, which are statutory. They are part of section 315 of the Federal Communications Act. The equal time/equal opportunities rules require that if a licensee gives the use of broadcast facilities to a qualified candidate for public office, it must give equal time and opportunities to all of the candidate's opponents. If the licensee sells the time to a candidate, it must offer time to the other candidates at the same rate; if it gives away time free, it must offer opponents time for free. There are exceptions for bona fide news events and interviews. The purpose of the Equal Time/Equal Access rules are to prevent broadcast stations from becoming effectively propaganda mouthpieces for particular candidates during election time.

The Fairness Doctrine is both broader and narrower in scope. It is narrower in the sense that it does not require that the licensee actually give the microphone to anyone else, as the equal time provision does. Many people who write about the Fairness Doctrine assume that the Fairness Doctrine requires that licensees let strangers use the station's facilities. That is only true under two sub-doctrines-- the so-called personal attack rules and the political editorializing rules. These are narrowly defined and rarely apply. In general, the Fairness Doctrine does not require this, as long as the licensee covers different points of view. As I'll explain shortly, this feature allows licensees to get around the Fairness Doctrine fairly easily.

The Fairness Doctrine is broader in scope because it applies in many more cases than the Equal Time provisions. The doctrine has (or had) two prongs. The first prong requires broadcast licensees to cover important issues of public concern. The second prong requires licensees to cover contrasting points of view fairly. The first prong was as important to the doctrine as the second. Its goal was to ensure that broadcast licensees did not provide only entertainment, but also contributed to public debate. But in doing so, it had to be an honest broker in its coverage. Originally, under the FCC's Mayflower doctrine, licensees were forbidden from editorializing at all. That prohibition was dropped in the late 1940s and the Fairness Doctrine was adopted as a less restrictive alternative. Henceforth licensees could editorialize if they allowed opportunity for discussion of contrasting perspectives.

By the 1980s, the fairness doctrine had long outlived its usefulness. It is possible that it was good public policy during the period in which there were only a limited number of television stations in each community, although I doubt it. The reason I doubt it was that the fairness doctrine in practice was fairly easy for most licensees to evade and mostly caused them bureaucratic problems.

First, licensees mostly decided for themselves what issues were of public concern. This allowed them to limit the ways in which the doctrine would affect them.

Second, licensees were permitted to decide what "both sides" of the relevant issue were and who would represent those sides. Issues are often multidimensional. Since it would not be possible to cover all aspects of a question, the licensee was given considerable range in choosing what the issue was, what the "reasonable" positions were on an issue, and who would present those positions. Licensees could exclude "extremist" positions or could include them to discredit the side they did not like.

To give only one example, when a reporter covered a controversy, the fairness doctrine did not demand anything more than traditional journalistic neutrality/objectivity. Journalists could present contrasting quotes from sources they themselves chose. Thus, a licensee determined to provide a particular message with respect to an issue could easily frame matters and select spokespersons so as to give a slanted portrayal. They could select only a narrow range of views on a topic and they could pick weak or unsympathetic representatives of positions they did not favor.

Perhaps more to the point, most licensees didn't want to cover public issues very much at all. Rather, they wanted to focus on entertainment and sports, and regarded the Fairness Doctrine as mostly a nuisance.

In practice, the Fairness Doctrine did not pose much of a problem for broadcasters who simply wanted to broadcast entertainment and sports, and whose coverage of contemporary events was broadly and blandly mainstream in their tastes, either liberal or conservative. It was more problematic for a handful of station owners who had a decidedly out of the mainstream point of view and who wanted to use their license to broadcast their views to the exclusion of others. The Fairness Doctrine fit mainstream journalistic practices of objectivity (with all their faults and non-objective elements) like a glove, which was not surprising because the Doctrine was modeled on those developing practices.

What about today, though? The increase in number of media outlets meant that advertiser-driven stations could make money by covering smaller niches and thus appeal to only one side of the political spectrum. This is one reason for the rise of conservative talk radio.

The Fairness Doctrine would probably require a change in formats for conservative talk radio. But it would not necessarily require actual fairness. Nor would it necessarily change the demagogic character of talk radio. Rush Limbaugh might have to invite a series of liberal patsies to give their views, which he could bully, make fun of, or talk past. Or he could offer his account of liberal views, which would no doubt be highly amusing to his audience. A radio version of Fox's Hannity and Colmes would clearly have passed muster under the Fairness Doctrine as the FCC enforced it in the old days, because, after all, there's Colmes, isn't there? It's true that Hannity sometimes treats him as a sidekick, and that he's not very liberal, but he does present contrasting points of view.

Now it's true that, under the Fairness Doctrine, someone like Michael Savage couldn't rant on and on without letting someone get a word in edgewise, but since Savage would be allowed to pick his opponents, it is unlikely that the bottom line message of talk radio would change all that much. It would simply be pitched in a way that preserved a fig leaf of fairness given bureaucratic imperatives from the FCC.

As you can see, given how easy it is to get around the requirements of the Fairness Doctrine, the doctrine is not going to do much to cure the bad behavior we see on the airwaves these days. At most it will cause bureaucratic problems for licensees, and require them to hire a few more personnel. Perhaps it will lead to the hiring of a few liberal patsies and punching bags. So think of it as affirmative action for milquetoasts. But what it won't do is improve the quality of talk radio.

In my next installment, I'll discuss the constitutional arguments for and against the fairness doctrine. It turns out that these arguments are trickier than they might at first seem.

UPDATE: Eugene Volokh has more on the implementation problems with the Fairness Doctrine. He also quotes from Powe and Krattenmaker's study, which, I think, offers the best criticisms of the doctrine as it developed before 1987.

Friday, July 27, 2007

Basic Law, Higher Law, Our Law-- An Essay on Constitutional Redemption


I'm spending this weekend at the American Constitution Society Conference in Washington, D.C. To mark the occasion, here's a little essay on constitutional interpretation, taken from my latest piece on original meaning and constitutional redemption. It's about the key purposes that constitutions like America's serve, and the idea of a redemptive constitutionalism.

Basic Law, Higher Law, Our Law

A successful constitution like America’s must serve many different and overlapping functions. For convenience, I divide them into three categories: A constitution like America’s must simultaneously work as basic law, as higher law, and as our law.

By basic law I mean that the Constitution sets up a basic framework of government that promotes political stability and allocates rights, duties, powers and responsibilities. A constitution also serves as basic law in the sense that it is foundational law (or supreme law) that trumps other law to the contrary. To operate effectively as basic law, a constitution does not have to be just. But it must preserve political stability and channel political and legal decisionmaking so that the governmental system can sustain itself over time.

The American Constitution is far more than basic law in this sense. Americans also view their Constitution as a source of important values, including justice, equality, democracy, and human rights. They view the Constitution’s guarantees as objects of aspiration; the Constitution either offers or refers to a standard that stands above ordinary law, criticizes it, restrains it, and holds it to account. Fidelity to the Constitution requires that we aspire to something better and more just than the political, social and legal arrangements we currently maintain. Hence the Constitution trumps ordinary law not simply because it is legally or procedurally prior to it, but because it represents important values that should trump ordinary law, supervise quotidian acts of governmental power, and hold both law and power to account. Thus, we say that the Constitution is not merely basic law, it is also higher law; that is, it is a source of inspiration and aspiration, a repository of values and principles. People sometimes use the terms "basic law" and "higher law" interchangeably; for example, the German Basic Law strongly protects human dignity, and Bruce Ackerman has famously argued that constitutional amendment outside of Article V is an example of "higher lawmaking." I want to separate the two expressions because they point at different constitutional functions. The German Basic Law is both basic law and higher law in my sense, and constitutional amendments– whether inside or outside of Article V-- might involve the creation of both new basic law and new higher law.

Finally, it is not enough that the Constitution serve as basic law– a framework for governance, or as higher law– a source of aspirational standards and values. It must also be our law. The people who live under it– the American people– must understand the Constitution as their law– not the law of Turkey, or the law of France or the law of South Africa. The South African Constitution may be widely admired as an example of contemporary constitution-making; but it is not our law. The Constitution works as our law when we identify with it and are attached to it, whether or not we consent to it in any official or legal sense. The Constitution works as our law when we view it as our achievement and the product of our efforts as a people, which simultaneously involves a collective identification with those who came before us and those who will come after us.

Viewing the Constitution as "our law" has a curious consequence: it helps us imagine ourselves as part of a collective subject persisting over time, the collective subject– We the People– whose law the Constitution is and to whom the Constitution belongs. Many features of a political culture can cause people to think of themselves as a collective subject that persists over time; but, at least in the United States, our Constitution also performs this function. Thinking of the Constitution as our law– the law of We the American people-- involves a narrative conception that appeals to collective memory-- to a stock of stories, symbols and understandings that bind people together and make them a people. Put another way, viewing the Constitution as "our constitution" is a constitutional story– a constitutive narrative through which people imagine themselves as a people, with shared memories, goals, aspirations, values, duties, and ambitions.

Viewing the Constitution as the Constitution of We the People is a constitution of the People. It accepts and endorses a constitutional story about who Americans are and what America is– we are the people who broke away from Great Britain and who created and ratified the Constitution to secure our liberty, and so too will be our successors. Viewing the Constitution as our Constitution constructs a collective subject with a collective destiny that engages in collective activities. It binds together people living in different times and different places as a single people. It allows us to see the hopes, desires, actions, ambitions, and achievements of people who lived long ago as our hopes, desires, actions, ambitions and achievements.

The success of this constitutional story is central to the present generation’s attachment to the Constitution as their Constitution– even though they never consented to it or voted for it– and therefore to the Constitution’s sociological legitimacy. Attachment is a different attitude than consent. We consent to something we have a choice in; but we can become attached to something that we live with or live in over time.

The method of text and principle, I believe, serves the multiple functions of a constitution – as basic law, higher law, and our law– far better than other forms of originalism. An originalism that strongly distrusts delegation to future generations and demands that open-ended provisions must be closely connected to original expected application is defective in all three respects. That kind of originalism makes the most sense if we think of the Constitution only as basic law. It tries to turn open-ended principles and standards into something more concrete and rule-like, something whose effects will hopefully be more predictable and (in many cases) more constraining. But that is not the only way that constitutions could serve as basic law. Constitutions can also channel and give incentives for political stability and adaptation rather than merely block and constrain decisionmaking. In fact, the former is a far better way to understand the basic law function of a constitution.

Even if tying constitutional principles closely to original expected application works tolerably well as basic law, it fails utterly as higher law and as "our law." The idea of higher law views the Constitution as a repository of ideals morally superior to ordinary law and toward which ordinary law should aspire. It makes the Constitution an object of political and moral aspiration and offers a potential for redemption. Thus the higher law function of constitutionalism has a temporal dimension: the higher law is a set of principles that critiques present political arrangements and that we must try to realize over time.

Justice Scalia has argued, by contrast, that a constitution’s "whole purpose is to prevent change– to embed certain rights in such a manner that future generations cannot readily take them away," because societies may not progress, or mature, but rather "rot." His vision is not aspirational. It is a narrative of decline from a wiser, more just time. Things always threaten to get worse than they were at the founding, so we need guarantees to keep people as just as they were in 1787. If he is right, then it would be puzzling why so many constitutions– not only the U.S. Constitution, but also most post-World War II constitutions-- would contain abstract and relatively open-ended rights guarantees.

The very notion of constitutional aspiration presumes the opposite of Scalia’s narrative of decline. It presupposes that each generation should strive to do better than the previous ones did. The idea of redemption assumes that the political arrangements of the past have features that must be redeemed.

Aspirationalism is Janus-faced. It recognizes that a constitution always exists in a fallen condition, that it inevitably contains compromises with evil and injustice. At the same time, it maintains that the constitution and the constitutional tradition contain elements and resources that can assist in their eventual redemption. Implicit in this notion of aspiration is the willingness to gamble on the future. It requires faith in future generations entrusted with working out and developing the Constitution’s guarantees over time. Constitutional redemption requires faith in the constitutional tradition’s ability to grow and improve, without any guarantees of success. Far from a fear that future guarantees will rot, an aspirational Constitution requires a steadfast belief that the evils of the present can and will be recognized and remedied, if not in our day then in the days to come.

Finally, a constitutional theory that distrusts delegation to the future fails as "our law." The Constitution is our law when we feel attachment to it and when we feel that we have a stake in it even if we did not consent to it officially. The Constitution is our law when we feel that it reflect our values sufficiently well that we can identify with it as ours; or, because we feel have a say in what the Constitution means, we have faith that it could and will come to reflect our values better over time. Thus, the idea of constitution as our law also has a temporal dimension. It requires an identification between ourselves, those who lived in the past and those who will live in the future. And it requires faith that the Constitution is either good enough as it is to deserve our respect and attachment or that it eventually will be redeemed.

For the Constitution to be "our law" it must do two things simultaneously. First, it must connect past generations to present ones through a process of narrative identification. It must allow us to see ourselves as part of a larger political project that stretches back to the present and forward to the future. The Constitution succeeds as our law when we can identify ourselves with those who framed and adopted it– we when are able to see ourselves as part of them and them as part of us. Second, the Constitution must allow us to identify our present principles and commitments with the principles of those who lived before us. Constitutional traditions achieve this by encouraging people in the present to call upon the past– and the struggles and commitments of the past– as their past and as their struggles and commitments. The understanding of the past frames our present situation and explains how we should go forward into the future. This identification between past and present allows us to say that we are continuing the work of those who came before us when we apply the Constitution’s text and principles in light of our current circumstances.

Doing this necessarily requires delegation to the future, because each generation must see itself as given the task of applying constitutional principles in its own time. We understand our present situation and the possibilities and needs of the future through the trajectory of our interpretation of the meaning of the past– both the principles we committed ourselves to achieving and the evils we promised ourselves we would not permit again. When we in the present perform this task, we carry forward the imagined political project that metaphorically connects us to those who came before us. Their principles are our principles, and, the Constitution they left us is our Constitution, reflecting not only their past commitments but also our present ones.

A theory of interpretation that refuses to allow this delegation does not allow the Constitution to be ours because it does not allow us to see our present day values in the Constitution as the application or fulfillment of past principles and commitments. If people feel that the Constitution’s principles are not their principles, but simply imposed on them as a straitjacket from an alien past, the Constitution is not theirs, and it offers them little hope that it will come to be theirs in the future.

Thursday, July 26, 2007

DOJ Explains AG's Dissembling . . . and It's Exactly What You'd Expect

Marty Lederman

The Department of Justice this afternoon released the following press statement, which confirms what I wrote last evening:

1. The NSA electronic surveillance activities -- the "program" -- were first given the moniker "Terrorist Surveillance Program" in early 2006, when the Administration was defending the program to the public, a defense that included assurances that "the program" had been briefed to congressional leaders since 2001.

2. After March 2004 -- that is, after Jack Golddmith, et al., threatened to resign if the program continued as it had been operating since 2001 -- the program consisted of interception of communications that were both (1) "international" (in that at least one party was not in the U.S.) and (2) that involved at least one party who was thought to be "an agent or member of al Qaeda or an affiliated terrorist organization."

3. Since March 2004, there has not been disagreement within DOJ about the legality of the program as so limited. (Which is not to say it was legal -- it wasn't.)

4. But there was huge, unprecedented dissent within DOJ about the legality of the NSA program in early 2004, when the "program" did not satisfy one or both of those conditions -- that is, when the program intercepted wholly domestic communications and/or communications where no party was even loosely affiliated with Al Qaeda or "affiliated terrorist organizations." {For more detail on how the program might have been much broader before the Goldsmith/Comey resistance, see here.)

5. DOJ would also have you believe that the Attorney General never intended to suggest otherwise to Congress. That's ridiculous, of course, as Spencer Ackerman and Paul Kiel explain at length.

But it's also much less important than the merits. What Congress and the public should be investigating now is not so much what the meaning of "program" was in the Attorney General's hamfisted attempts to deceive the legislature since January 2006, but instead just what the NSA (and the FBI) were up to, both between 2001 and March 2004, when the program must have been unthinkably broad and unlawful; and also from 3/2004 to January 2007, during which period it was "limited" in the two respects noted above. What were the legal justifications and theories for both versions of "the program"? Those are the questions most worthy of Congress's (and the public's) attention. It's time for Jay Rockefeller, Jane Harman, et al., to step up and explain to the public -- without revealing secret NSA technical capabilities, of course -- just what has been going on all these years, including what members of Congress knew, and when, on the facts and the law. Gonzales, et al., have been able to sustain this run-around as long as they have only because no one else will speak up. If it weren't for Comey's brave testimony, the whole issue would have died out long ago . . .



THURSDAY, JULY 26, 2007 (202) 514-2007

WWW.USDOJ.GOV TDD (202) 514-1888


Confusion is inevitable when complicated classified activities are discussed in a public forum, where the greatest care must be used not to compromise sensitive intelligence operations. The Administration first used the term “Terrorist Surveillance Program” in early 2006 to refer publicly to a particular intelligence activity that the President publicly acknowledged and described in December 2005 -- that is, the NSA’s targeting for interception international communications coming into or going out of the United States where the NSA has reasonable grounds to believe that a party to the communication is an agent or member of al Qaeda or an affiliated terrorist organization. That is the only intelligence activity that the Attorney General meant when he used the phrase “Terrorist Surveillance Program.”

When Members of Congress and the public, after that activity was disclosed, questioned whether it was lawful, the Attorney General noted that there had not been serious disagreements raised by the Justice Department about the lawfulness of that particular activity -- i.e., the interception of international communications of al Qaeda. That statement was accurate. There was not a disagreement between the Justice Department and the White House in March 2004 or any other time about whether there was a legal basis for that particular intelligence activity.

Indeed, the white paper that the Department sent to Congress on January 19, 2006 reflects and is consistent with the legal position taken by the Department in 2004, including under Mr. Comey's tenure, concerning the legal basis for that activity. The disagreement that occurred in March 2004 concerned the legal basis for intelligence activities that have not been publicly disclosed and that remain highly classified.

The May 17, 2006 letter from Director of National Intelligence Negroponte is consistent with the Attorney General’s testimony. The letter indicates that the March 10, 2004 meeting included a briefing on the activity we have called the “Terrorist Surveillance Program,” without indicating whether other intelligence activities were discussed.”

# # #

Common Article 3 and the Non-Unitary Executive Branch

Marty Lederman

The President's Executive Order last week -- ostensibly construing our obligations under Common Article 3 of the Geneva Conventions, including the absolute prohibition on "cruel treatment and torture" -- conspicuously and intentionally failed to prohibit the CIA's "enhanced" interrogation techniques, including stress positions, prolonged isolation and/or sleep deprivation, and threats of harm to the detainee and his family. Vague reports suggest that waterboarding and hypothermia are now out-of-bounds, but the President would not even confirm that much.

This interpretation of our treaty obligations is so transparently implausible that even Robert Turner, who has defended almost all of the Administration's aggressive legal arguments in the conflict against Al Qaeda, today forcefully dissented from this mangling of the Geneva Conventions. Together with President Reagan's appointed Marine Corps commandant P.X. Kelley, Turner writes:
It is clear to us that the language in the executive order cannot even arguably be reconciled with America's clear duty under Common Article 3 to treat all detainees humanely and to avoid any acts of violence against their person. . . . The Geneva Conventions provide important protections to our own military forces when we send them into harm's way. Our troops deserve those protections, and we betray their interests when we gratuitously "interpret" key provisions of the conventions in a manner likely to undermine their effectiveness. . . . In a letter to President James Madison in March 1809, Jefferson observed: "It has a great effect on the opinion of our people and the world to have the moral right on our side." Our leaders must never lose sight of that wisdom.
To the same effect, at the Senate Judiciary hearing this week, Senator Durbin urged the Attorney General to consider the ramifications of the Executive Order for armed conflicts in the future -- in particular, for the well-being of the numerous U.S. personnel who are not entited to POW protections. He asked the AG, in particular, whether it would be legal for a foreign government to subject nonuniformed U.S. personnel to five particular interrogation techniques -- "painful stress positions, threatening detainees with dogs, forced nudity, waterboarding and mock execution."

This was our Attorney General's shameful non-response:

"Senator, you're asking me to answer a question which, I think, may provide insight into activities that the CIA may be involved with in the future. . . . [I]t would depend on circumstances, quite frankly."

Thank goodness the Attorney General speaks "only" for the President and Vice President, and not for the entire Executive branch. In questions following a hearing last summer, Senator Durbin asked the each of the Judge Advocates General of the military services the same question about the application of Common Article 3 to such interrogation techniques. The JAGs -- Navy Rear Admiral Bruce MacDonald; Army Major General Scott Black; Marine Brigadier General Kevin Sandkuhler; and Air Force Major General Jack Rives -- have now submitted their answers, which are just a bit less equivocal, and quite a bit shorter, than the responses of the Attorney General, the President, and Mike McConnell:

QUESTION: Are those five techniques consistent with Common Article 3 of the Geneva Conventions?

ANSWER (from each of the JAGs): "No."

Q: Are they unlawful?

A: Yes.

Wednesday, July 25, 2007

How Many "Terrorist Surveillance Programs" Have There Been?

Marty Lederman

The skirmish in the Senate Judiciary Committee yesterday morning over whether the NSA "Terrorist Surveillance Program" (TSP) uncovered by the New York Times in 2005 was the "same program" as the one at issue in the Ashcroft hospital room in March 2004 -- the one over which 30-plus officials at DOJ threatened to resign -- is based on a transparently flimsy sort of legerdemain offered by the Attorney General.

To recap very briefly:

1. The Attorney General previously testified to Congress that there had been no dispute within the Administration concerning the legality of the TSP.

2. Then, lo and behold, it turns out there was a dispute of epic proportions in early 2004 -- the refusal of Comey, Goldsmith and Philbin to rubberstamp the transparently illegal conduct that John Yoo and others had previously sanctioned; the drama that played out in the Ashcroft hospital room; the President's defiance of the DOJ leadership and his continuation of what they deemed an illegal program; the threatened en masse resignation; the revamping of the NSA program in a manner that OLC could bless; etc.

3. This means, of course, that the Attorney General simply lied to Congress -- and did so, moreover, in order to prevent Congress from learning about the remarkable lawlessness of what had been taking place until March 2004, and the unprecedented crisis within the Executive branch when push came to shove and the President insisted on continuing with a course of conduct that Ashcroft's DOJ thought was clearly unlawful.

4. How to fix that? Well, sayeth the AG, the 2004 dispute was not about "this program," the TSP, but was instead about "other intelligence activities."

5. The Senators, not surprisingly, are incredulous, as are members of the House who had been briefed on the "program," such as Jane Harman. See the excerpts of the Schumer questioning from TPM here, Spencer Ackerman's follow-up here, and Glenn Greenwald's take here. [UPDATE: Hilzoy, as usual, is indispensible.]

It's really not difficult to untangle basically what was happening here. Beginning in late 2001, there was an NSA program of electronic surveillance outside (that is, in violation of) FISA. OLC said it was illegal in early 2004. The NSA and others changed the program in certain unknown respects to allow it to pass OLC muster. (My guess -- The earlier version included surveillance of communications that did not involve anyone even arguably covered by the persons and entities described in the September 2001 Authorization to Use Military Force. And/or that the pre-2004 program also included surveillance of domestic-to-domestic communications. But who knows?)

Thus, the post-3/04 "program" involves "intelligence activities" that are in certain respects distinct from the actitivies that occurred before March 2004 -- and, as to that version of the surveillance, there is no longer any dispute within the Administration.

Does this mean that the AG's testimony was truthful? Hardly. It's the same activity -- a form of electronic surveillance -- but tweaked in certain respects to allow at least a figleaf of a legal argument that DOJ could live with. Therefore, the Attorney General certainly deceived the Congress when he testified that there was no internal disagreement over the legality of "the program." What he meant, apparently, was that there was no disagreement after the profound disagreement was remedied by a change in the program!

Ah, says the AG, but technically I didn't lie, because the 2004 changes established a new, and different, "progam." This is mere wordplay. It's not as if there is some formal, legal definition or authorization of particular "programs." The conduct in question is an extra-legal set of activities that the Administration itself can label in any of 1001 different ways. It could, for exmaple, conclude that there were hundreds of different "programs," since every day the intercepted communications were slightly different from those intercepted the day before. It would hardly be an excuse for the AG's intentionally misleading testimony to note that whereas it was called "the TSP" in 2006, it was given a different moniker else when it was operated more indiscriminately back in 2001-2004. A rose by any other name . . .

Alas for the AG, it turns out not even the names have been changed. The AP dramatically reports this evening that it has "obtained" a document proving that the "program" discussed with congressional leaders on March 10, 2004 was the same exact "Terrorist Surveillance Program" that the President later confirmed and that was in operation until this past January.

Truly, this isn't news. I "obtained" the same document this evening. I did so by downloading it from the Web, where it has been available since it was released to the public on May 17, 2006. The document is a letter to Denny Hastert from John Negroponte, the Director of National Intelligence, attaching a list of members of Congress "who attended briefings on the Terrorist Surveillance Program" from Ocotber 2001 through May 2006, including the "gang of eight" at that White House meeting on March 10, 2004, the day of the Ashcroft hospital visit. Indeed, you may recall that when the Administration acknowledged the existence of the TSP, this was its principal defense -- that for over four years, members of Congress had been briefed on "the program."

Doesn't really matter what it was called, however. Call it the TSP. Call it Ishmael. All the same, there was an internal dispute about its legality -- and then, after it was altered in some respect, there wasn't. The Attorney General not surprisingly wanted to conceal this dramatic internal development from the Judiciary Committee when he was defending the New and Improved TSP Program. What he didn't anticipate was that Jim Comey would be more truthful in his testimony. And what's important now is not whether the Attorney General dissembled to the Committee -- of course he did -- but instead having a serious public debate about just what the NSA and DOJ were doing before March 2004, what they've been doing since, and whether that activity, rather than the testimony about it, was lawful.

Originalism is for Progressives


Doug Kendall and Jim Ryan's essay in the New Republic makes the eminently sensible point that progressives should stop viewing originalism as the enemy just because they have come to associate it with people they disagree with politically. Instead, they should recognize that originalism is the right approach for progressives as well as conservatives:

what if progressives tried another tack? What if they stopped accusing Scalia and his ilk of intellectual simplicity and instead accused them of being unfaithful to the Constitution? Suppose that they pointed out where neither text nor history supports the results conservatives say they support? Suppose they even charged that conservatives ignore the Constitution when it gets in their way? Now that would be a fair fight.

Indeed, there's a nascent movement among progressives to embrace the Constitution rather than run from it. The central theorist of this school--what you might call progressive originalism--is Yale law professor Akhil Reed Amar. Amar is one of his generation's most influential constitutional historians. His works on the Constitution have won acclaim from across the political spectrum, with one prominent conservative law professor calling Amar's recent opus, America's Constitution: A Biography, the best book written about the Constitution since The Federalist Papers. This conservative acclaim is somewhat surprising, because Amar reveals the Constitution to be a deeply progressive document.

Over the years, conservatives have convinced many liberals--not to mention the public--that the Constitution is a document largely geared towards protecting private property and wealth. Amar demolishes this notion. He explains that our Constitution started out both democratic and inclusive for its time and has remained viable because of constitutional amendments that improved the document.

Amar's most powerful argument is that the post-Civil War amendments fundamentally altered our founding document in ways that have yet to be recognized by the Supreme Court. What may have begun as a document focused on protecting liberty was transformed into a document just as concerned with equality. A federal government that began with powers that were "few and defined" was awarded vast new powers to protect due process and equal protection. Conservatives may not like this, of course, but they should not be able to wish away these changes.

This approach may not sound terribly revolutionary. But once liberals understand that the Constitution is a progressive document, it will transform the way in which they argue. Consider the one big liberal victory last term--the ruling that the Environmental Protection Agency has the authority to combat global warming. Justice Anthony Kennedy joined the Court's liberal wing in that case because of his conclusion, rooted in constitutional history, that states warrant special solicitude when they challenge federal government inaction. It might have been a persuasive point, but it wasn't made in any of the briefs filed in the case--a symptom of the progressive aversion to this style of argument.

Or take the thorniest of issues--reproductive choice. The fear that a constitutional vision rooted in text and history would mean jettisoning Roe v. Wade pushes liberals away from such a vision. But Jack Balkin, also of Yale Law School, advocates a different approach. Balkin was once a critic of originalism, but, in an important article, "Abortion and Original Meaning," Balkin embraces "fidelity to the original meaning of the Constitution," and argues that the text and history of the citizenship clause of the Fourteenth Amendment supports Roe. Justice Ruth Bader Ginsburg appears to have picked up this argument in her dissent to the recent partial-birth abortion case. She asserted that the right to reproductive choice is not rooted in a "generalized notion of privacy" but rather in a woman's "equal citizenship stature." What Balkin and Ginsburg realize is that Roe will only survive if progressives convince the Court and the public that the right to reproductive choice is rooted in our founding document.

Of course, the Constitution's text and history does not line up perfectly with a progressive agenda. Constitutional text and history, moreover, will not provide precise answers to many questions confronted by courts. But, faced with these complications and uncertainties, progressives would do well to follow Scalia's lead. In public debates over constitutional interpretation, Scalia keeps it simple. Sure, he says, sometimes I have to follow precedent. Sure, he admits, sometimes text and history aren't so clear. But those are details. Don't let them distract you: I like a rock-hard Constitution, plain and simple, and that Constitution binds me as a judge.

It's important to remember that before Antonin Scalia and Clarence Thomas, there was Hugo Black, one of the great liberal defenders of the Bill of Rights, who made originalist arguments for the positions he took. Originalism is not the interpretive philosophy of stand patters. It is the philosophy of people who want to restore and redeem the Constitution's promises in a world where they have been forgotten or disrespected. That is why many conservatives turned to originalism in the 1980s-- they wanted to turn the Constitution back to what they believed was the proper path. Liberals might well disagree with them on the merits. What they should not disagree about is that the goal of interpretation is fidelity to the Constitution and its underlying principles. If liberals think that the current generation of conservative judges have hijacked the Constitution and twisted its meaning, they shouldn't respond by callling for a counter-hijacking. Rather they should follow the example of Hugo Black. They should call for a return to first principles, to the best interpretation of the Constitution's original meaning and underlying values. They should be originalists once again.

Many progressive scholars avoid these conclusions because they know that life is change. They are worried that originalism means giving up the idea of a living constitution-- a constitution that adapts to changing times. Nothing could be further from the truth, as I have explained here and here. Properly understood, fidelity to original meaning and living constitutionalism are not opposed positions. They are two sides of the same coin.

The House Judiciary Contempt Report

Marty Lederman

Here is the Report that explains the basis for the resolution that the House Judiciary Committee is voting on this morning, which would recommend that the full House hold Harriet Miers and Josh Bolten in contempt of Congress. It is, by a long stretch, the most comprehensive account yet of the U.S. Attorney scandal, and of Congress's interests in discovering just how and why the White House removed those officials from office.

For more (much more) about the law and process of such contempt-of-Congress citations, see the new CRS Report that I posted about yesterday.

Tuesday, July 24, 2007

Everything You Always Wanted to Know About Contempt of Congress . . .

Marty Lederman

Just in time for the House's move toward contempt of Congress proceedings, the invaluable Congressional Research Service today issued a report entitled "Congress’s Contempt Power: Law, History, Practice, and Procedure."

I can't say I can vouch for, or that I would necessarily agree with, every single proposition in it (I must confess that I haven't had time to read the whole thing yet), but from what I have seen, it is characteristically comprehensive, careful, balanced and informative. See especially the sections on inherent contempt (beginning on page 12); DOJ's argument that inherent and criminal contempt are unconstitutional where the President has asserted executive privilege (page 27); and what the Report refers to as "Civil Contempt," or, more precisely, civil actions filed by Houses of Congress to enforce subpoenas (pp. 33-46).

Kudos to the Report's principal authors, Morton Rosenberg and Todd Tatelman, for a great and timely public service.

“Whether they want a lady host, I don’t know.”

Ian Ayres

The announcement of Drew Carey as the new host of the “Price is Right” has a slight connection to civil rights. A few weeks ago, when retiring icon Bob Barker was asked at the Daytime Emmy about who might replace him, he mentioned Rosie O'Donnell:

"I believe they're going to have a meeting with Rosie. She knows the show. There's no doubt in my mind she could do the show."

But in a moment of candor, he went on and said:

"Now, whether they want a lady host, I don't know. I've never heard that discussed. As far as I know, they've only auditioned men."

The possibility that the producers of the show don't "want a lady host" is the possibility of a Title VII violation. Title VII prohibits sex discrimination in employment unless the employer can establish what's called a BFOQ or "Bona Fide Occupational Qualification." The EEOC Guidelines do allow intentional sex discrimination in hiring an actor or actress where the sex-specific roles are necessary for the "purpose of authenticity or genuineness," see 29 C.F.R. § 1604.2(a)(2). But there is no way that the producers could establish that sex was a BFOQ for being host of "The Price is Right."

The same conclusion probably holds true for hosting "The View." The thought that only women could host a talk show would be difficult to square with existing case law. Probably a dozen different hosts have been employed by The View. They have all been female. There is little doubt that the producers of that show discriminate on the basis of sex in hiring.

Indeed, even John Travolta's portrayal of Edna in the movie Hairspray raises a non-trivial BFOQ question. Travolta, like all of his predecessors, is male. But it's hard to say that casting a man for the part is necessary for "authenticity or genuineness" -- especially when the whole point of his portrayal is that Travolta (unlike Divine) is playing it straight.

Monday, July 23, 2007

Original Public Meaning and "Contemporary Expected Application"


I had wanted to respond to Larry Solum's discussion of my most recent post on originalism.

Larry argues:

[E]vidence about original expected applications can be relevant to the original meaning of the constitutional text. But to make it relevant you need to show how and why. But note that this same gap is present in Balkin's own argument. Balkin writes: "We do not live in a world with the same assumptions about the power of school officials over their students, just as we do not think that the original understanding of libel, profanity, sexuality explicit speech or commercial speech should apply either. Our modern doctrines are consistent with original meaning of "the freedom of speech"" But he doesn't tell us how and why the contemporary expectations are relevant to the "original public meaning" of freedom of speech.

There is an important theoretical point here--one that likely has been made before, although I'm not aware of a particular source. Balkin's distinction between original public meaning and original expected applications is important and theoretically crucial. But there is a similar gap between original public meaning and contemporary expected applications. But whereas original expected applications provide relevant, probative, but not conclusive evidence about the original public meaning of the constitutional text, contemporary expected applications rarely provide such evidence.
I was initially puzzled by Larry's argument. I do not think-- and I have never claimed-- that something called "contemporary expected application" is evidence of original public meaning. At most I have argued that people living in the present must try to apply original public meaning to their present circumstances. So contemporary understandings and expectations might inform how we apply original public meaning and underlying principles today, but ordinarily we would not look to them as evidence of what the words in the Constitution originally meant, at least if we have older, contemporary evidence of the public meaning of words.

For this reason, I wouldn't agree with Larry that there's a "gap between original public meaning and contemporary expected applications" that is "similar" to the gap between "original expected applications" and original public meaning." "Contemporary expected applications" plays no role in my views about how to ascertain original public meaning, while at least original expected applications can be useful in some respects-- as Larry points out and as I shall describe in more detail a moment. For that reason, I don't think I have any obligation to "tell . . . how and why the contemporary expectations are relevant to the `original public meaning' of freedom of speech" because I don't think they are relevant to discerning "original public meaning." At most they are relevant evidence about how to apply the Constitution's meaning in the present.

For those of you who aren't up on the beginnings of this discussion, here's my theory in a nutshell: I argue that constitutional interpretation requires fidelity to original public meaning but not to original expected application. Original public meaning is what the words used meant to competent speakers of the language in the relevant political community at the time of adoption. Original expected application is how people at the time expected those words would be applied to concrete situations in their world. Original public meaning is a proper object of constitutional fidelity, while original expected application is not.

This theory is based on the distinction between meaning and application. This distinction is not perfectly airtight, but neither is it illusory. For example, the ban on "cruel and unusual punishments" requires us to decide today how we should apply the original public meanings of the words "cruel and unusual." It does not require us to follow how people in 1791 would have applied the concepts of "cruel and unusual." Some punishments that they believed were not "cruel and unusual" could nevertheless be unconstitutional today when we apply the original public meaning of the text in our current world. The present day command that we must apply in present circumstances is the text's original public meaning. But the law does not command us to follow how the adopting generation might have expected the text would be applied.

Given this theory of interpretation, original expected application can be useful to constitutional interpretation in four distinct ways, which should not be confused with each other. Two of these ways concern how we use original expected applications as evidence of the original public meaning of the text, one of them concerns how we ascertain the principles underlying the text, and one of them concerns how we should apply text and principles to concrete situations in our own world.

First, original expected application is relevant to contemporary interpretation because it is evidence of the original public meaning of the individual words in the text. We might want to know, for example, whether the words "equal" and "protection" had a different meaning in 1866 than they do today. In this case, original expected application serves much the same function as a dictionary from 1866.

Second, original expected application can shed light on original public meaning because original public meaning includes generally recognized terms of art. Original expected application is evidence of those terms of art. It helps us determine whether the words of the text in combination-- for example "equal protection of the laws"-- uses a generally recognized term of art at variance with ordinary usage. "Due Process of Law" is a term of art that has a long history, and its meaning as a term of art changes over time. Its meaning as a term of art in 1866 is different than its meaning in 1791, for example. My study of the history of the Fourteenth Amendment, however, suggests that "equal protection of the laws" was not a generally recognized term of art in 1866.

Third, original expected application is relevant in order to determine what are the principles underlying a text with relatively abstract and general terms. We look to the justifications and arguments people made for the words they chose in order to see what principles they were trying to articulate through their choice of words. However, the principles we derive from history are not the same as original expected applications. (For a more detailed explanation of this point, see my discussion here). The principles underlying the text should be at roughly the same level of abstraction as the words used.

For example, my research into the history of the Fourteenth Amendment shows that the text "equal protection of the laws" meant to establish, among other things, constitutional principles against caste and class legislation. The generation that adopted the Fourteenth Amendment nevertheless expected that states could ban whites and blacks from marrying each other. Today, however, I would argue that laws banning racial intermarriage would violate the prohibition on caste and class legislation.

Fourth, the original expected application is relevant in order to determine the best way to apply the text and principles to concrete situations. (This goes back to my basic distinction between meaning and application. Original expected application can be evidence of public meaning and it can also be an argument for correct application. But these are different ways of using it.) However, original expected application may not be very persuasive evidence of correct application, because the proper application of text and principle to concrete situations is heavily dependent on social contexts and social understandings. As time passes, the original expected application may be less and less useful for deciding the best way to apply the text and underlying principles to contemporary problems. The case of interracial marriage mentioned above is one example. Here is a second: The original expected application of "equal protection of the laws" was thought consistent with the coverture rules, under which women lost all of their rights upon marriage, under the fiction that they surrendered them to their husbands by agreeing to marry. In 1866 people thought that this practice was perfectly consistent with the words "equal protection of the laws," and with the underlying principles of equal citizenship and the ban on class and caste legislation. I do not think that stripping women of all rights upon marriage today would afford them equal protection of the laws, whatever people thought back then.

This brings me back to Larry's post. Larry now postulates another category that he calls "contemporary expected application." I do not use this concept in my work, so I will have to do the best I can in responding to his points. But three things are worth noting at the outset about this new category.

First, it has very little probative value for discovering original public meaning. It matters, if at all, with respect to application of original public meaning.

Second, "contemporary expected application" it is not the same thing as contemporary understandings and values. Rather, it involves contemporary beliefs-- to the extent people have them-- about how to apply the original public meaning of the Constitution. (Just as original expected application involves beliefs about how to apply the original public meaning of the Constitution at the time of adoption.)

Third, the concept of "contemporary expected application" like the concept of "original expected application" is a third party concept, not a first party concept. It is what other people contemporary with the interpreter think about how to apply the Constitution's text and principles, not what the interpreter thinks.

To me this last point is central. The Constitution's text is a present-day command that requires interpreters in the present to apply it in the present, using what ever resources (including past doctrines and precedents) are at their disposal. To do this interpreters inevitably draw on contemporary understandings and values that are part of their ways of thinking. But that is not because the interpreter looks to "contemporary expected application" as evidence of what he or she should believe but simply because the interpreter lives in the present. It is worth noting that both originalists and non-originalists live in the present and have contemporary understandings and values that they bring to the task of interpretation.

So the concept of "contemporary expected application" is not the same thing as the interpreter's own understandings and values, which are inevitably contemporary because the interpreter lives in the present. And it is not evidence of what other people's beliefs and values are generally. Rather, it is evidence of what other people expect about how to apply the original public meaning of the constitutional text. There may well be some convergence on those questions, but on other issues-- for example on the most heated constitutional issues of the day-- there may be significant divergence and a distribution of different positions.

So understood, "contemporary expected application" probably plays a limited role in constitutional interpretation to the extent that it differs from the interpreter's own best sense of how to apply the Constitution. Of course, sometimes a interpreter may use doctrines that specifically look to contemporary values and understandings to flesh out the meaning of phrases like "cruel and unusual" or "due process of law." But in that case the interpreter looks to contemporary values and understandings generally, as opposed to how people think the original public meaning of the Constitution should be applied.

However, there is another way that "contemporary expected application" might be helpful to the interpreter. And it could be very helpful indeed. If by "contemporary expected application" all you mean is the existing set of doctrines and doctrinal categories designed to implement constitutional meaning, then "contemporary expected application" would be good evidence of how to apply the Constitution's original public meaning if existing doctrines and precedents were generally reasonable implementations of constitutional text and principle.

In fact, I think this is very often what people do. They start with the existing doctrinal structure and take it for granted that existing doctrine (for the most part) is a reasonable implementation even if it is not always the best one, and then reason from doctrines and doctrinal categories to conclusions. Hence it would make sense to say, as I do say, that "Our modern doctrines are consistent with original meaning of `the freedom of speech.'" That is, I believe that our current doctrines are for the most part reasonable applications and implementations of original public meaning.

But if we believe doctrine and doctrinal categories-- as "contemporary expected application" of the Constitution-- are presumptively reasonable, we must always be prepared to criticize doctrine if it strays too far from what we believe to the best interpretation of the Constitution. That is to say, doctrine might be presumptively reasonable, but not conclusively so. And this brings me back to my original post on Justice Thomas and his use of originalist arguments. In Morse v. Frederick Justice Thomas was right to want to go back to first principles. He was wrong in thinking that how people expected things should work in the early 1800s is the best way to apply the Constitution today.

Friday, July 20, 2007

To sleep, perchance to dream

Marty Lederman

The Washington Post:
"Bush's order requires that CIA detainees 'receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.'"
So far, so good.
"A second senior administration official acknowledged sleep is not among the basic necessities outlined in the order."
Ay, there's the rub.

The CIA Interrogation Executive Order: Well, Did You Really Expect Anything Better?

Marty Lederman

The President has finally signed the Executive Order purportedly construing Common Article 3 of the Geneva Conventions, as required by the Military Commissions Act (MCA). It is, in a word, worthless. Last month I surmised that the E.O. would be "very cryptic and uninformative, and that the public will not learn of what techniques our government is using and deeming not to be 'cruel treatment and torture.'"


[NOTE: I just dashed this off quickly -- sorry it's so rough. Time permitting, I might smooth it over later.]

Recall that the Court in Hamdan held that CA3 governs U.S. conduct in the conflict with Al Qaeda. Most importantly, CA3 categorically prohibits "cruel treatment and torture." Until the MCA was enacted, all violations of CA3 were felonies under the War Crimes Act (WCA), but the MCA narrowed the scope of the WCA, such that only what the statute calls "grave" breaches of CA3 are now criminalized. And, not surprisingly, the subcategories of "cruel treatment" and "torture" that remain criminal under the MCA-amended WCA just so happen not to include the forms of cruel treatment that reportedly comprised the CIA's "enhanced interrogation techniques" program. In other words, the MCA appears to have de-criminalized the CIA's use of those techniques -- such as stress positions, prolonged sleep deprivation, hypothermia [UPDATE: But see below], threats, extreme isolation, and possibly even waterboarding.

As I've explained in several posts, however -- including this one -- non-criminal does not equal legal. Common Article 3 remains the supreme Law of the Land, even if not all of it is incorporated in the War Crimes Act. The MCA expressly cautions that its revised WCA definitions "are intended only to define the grave breaches of common Article 3 and not the full scope of United States
obligations under that Article" (section 6(b)). And section 6(a)(3) provides as follows:


(A) As provided by the Constitution and by this section, the President has the authority for the United States to interpret the meaning and application of the Geneva Conventions and to promulgate higher standards and administrative regulations for violations of treaty obligations which are not grave breaches of the Geneva Conventions.

(B) The President shall issue interpretations described by subparagraph (A) by Executive Order published in the Federal Register.

(C) Any Executive Order published under this paragraph shall be authoritative (except as to grave breaches of common Article 3) as a matter of United States law, in the same manner as other administrative regulations.

(D) Nothing in this section shall be construed to affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States.

Today's order is supposed to fulfill the President's MCA obligation to issue interpretations of non-grave breaches of Common Article 3.

The only truly important section of the E.O. is section 3(b)(i)(C), which defines the category of violence that will be deemed to violate Common Article 3 for purposes of determining whether a CIA interrogation program comports with CA3. In addition to torture as defined by the federal criminal statute, and the forms of violence that remain prohibited under the new WCA, that subsection of the E.O. prohibits only "other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in [the War Crimes Act]."

In other words, if a form of violence is not already prohibited by federal criminal law, and is not "comparable" to the forms of violence prohibited by the WCA, the CIA is not prohibited from using it.

Does this prohibit the CIA "enhanced" techniques? Who knows? Are they "comparable" to what the WCA prohibits? You tell me. Here are the relevant WCA definitions:

(A) TORTURE.—The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

(B) CRUEL OR INHUMAN TREATMENT.—The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
The Bush Administration and the MCA have interpreted "serious" and "severe" in extremely confusing and unhlepful ways, all with an eye to permitting at least some of the CIA techniques. Today's order merely adds to the obfuscation.

This is no way to run a government ostensibly subject to the rule of law. As I've written repeatedly here, there is no excuse for the fact that neither the statute nor the E.O. defines with any clarity whatsoever which techniques are prohibited and which are not. (I'm putting aside here the possibility, probably fanciful, that the CIA uses some technique that is truly secret, in the sense that it has never been revealed or publicly discussed.)

[UPDATE: The White House press statement says that "[t]he President has insisted on clear legal standards so that CIA officers involved in this essential work are not placed in jeopardy for doing their job - and keeping America safe from attacks. This Order was signed after an extensive interagency process of review and coordination. By providing these clear rules, the Order has clarified vague terms in Common Article 3." "Clear" rules and standards; "clarified" terms -- and yet no one has the foggiest idea whether any or all of the CIA techniques is now deemed lawful. It would be exceedingly easy to be clear here -- but that's actually the last thing the Administration wants, because in their view interrogations are more fruitful if the detainee has no idea what the interrogators' limits might be.

The New York Times reports
that "the White House said Friday that it had given the Central Intelligence Agency approval to resume its use of some harsh interrogation methods in questioning terrorism suspects in secret prisons overseas." I think it is only fair to assume that because the Administration is unwilling to rule out any of the techniques, it is likely that most or all of those techniques are now approved for use by the CIA. And just to be clear: Those techniques are cruel treatment, and therefore when we use them, we will be breaching the Geneva Conventions, notwithstanding this Executive Order. One exception: Hypothermia appears to be prohibited by the requirement of "protection from extremes of heat and cold." Or so says "Senior Administration Official No. One," in this transcript: "I think it's intended to be clear that we're not talking
about forcibly induced hypothermia or any use of extreme temperatures as a
practice in a program like this."]

Just as the details of the Army Field Manual are published and open to public debate, so, too, should be the legal limitations that our government has identified regarding the CIA's analogous activities. As it is, this hide-the-ball lawmaking is supremely cynical, and, after all these years of public debate, an insult to the public and to the Congress. It's not surprising, however.

Two other small tag-ends:

1. The E.O. requires the Director of the CIA to determine that all techniques are "safe for use with each detainee with whom they are used." What does "safe" mean here? Your guess is as good as mine.

2. The E.O. states that the President "hereby reaffirm[s] [his] determination," allegedly made on February 7, 2002, that all members of Al Qaeda and "associated forces" are "unlawful enemy combatants." In fact, the President has never made such a determination before now with respect to Al Qaeda. Moreover, insofar as it suggests that members of Al Qaeda have necessarily acted unlawfully, this "reaffirmation" is also probably wrong. Being a member of Al Qaeda might make one an unprivileged enemy combatant, in the sense of not being entitled to certain privileges afforded most combatants under the laws of war. But it does not, without more, mean that someone has acted "unlawfully."

Older Posts
Newer Posts