Saturday, June 12, 2004



I used the Washington Post's Veep-O-Matic today to pick Kerry's running mate. Figuring that this election is going to be about Iraq more than anything else, the four criteria I used were: military service, foreign policy/defense expertise, big name, and from a battleground state. The one name that came back with all four criteria was Wesley Clark. (Clark also satisfies two other conditions that I didn't include but could have: He is a Southerner and not a professional politician).

You can just imagine him debating Dick Cheney: Cheney will say something completely crazy about foreign policy, and Clark will just look at him with a stern glance and a sorry shake of the head.

He seems the logical choice on paper. But Clark's campaign skills have yet to be fully developed. Will Kerry pick him instead of Bill Richardson, Dick Gephardt, Bill Nelson or John Edwards? Your guess is as good as mine.

Friday, June 11, 2004

Yoo: If you don't like our torture, vote us out of office


John Yoo, who served in the Office of Legal Counsel from 2001 to 2003, tries, without much success, to defend the Bush Administration in this op-ed in the Los Angeles Times.

I've only met John once, at a Federalist Society panel on judicial nominations. He was charming, polite, and his arguments were lawyerly and well made, although since I was on the other side I wasn't fully persuaded. In this case, however, I have to say that I don't think the arguments he offers in the op-ed are very good at all. He also engages in a non-sequitur, dragging out the old ticking time bomb scenario (or in this case, "a nuclear weapon in an American city") to conclude that there must be general authorization for all "strategic and tactical decisions" a President might make as Commander-in-Chief. But the fact that we might give the President the benefit of the doubt in the ticking time bomb situation does not imply that he should be free from all congressional oversight.

Yoo also tries to defend one of the most wrongheaded claims in the torture memo, the claim that Congressional laws that impinge on the President's assertions of his Commander-in-Chief power should be construed not to apply to the President. I think this argument, taken to its logical conclusion, destroys the checks and balances in our Constitution and makes the President unaccountable to the Rule of Law.

There is one thing in this op-ed that I do agree with: At the very end, Yoo says: "If the American people disagree with [the President's] policy [on prisoner interrogations], they have options: Congress can change the law, or the electorate can change the administration."

And there you have it. If you don't like what we are doing, throw us out of office. We dare you. Double dare you.

I think we should take up that challenge, don't you?

Thursday, June 10, 2004

Too Profane to Mention?


Ernie Miller points out that after having revived the doctrine of broadcast profanity with great fanfare this year, the FCC seems to be backing away from it. The FCC's recent consent decree with Clear Channel makes no reference to profane language, it only restricts obscene and indecent broadcasts. And in case you are wondering, that's not because nothing broadcast by Clear Channel was profane under the FCC's new definition.

Ernie is not sure whether the FCC has abandoned its new profanity doctrine or whether they plan to spring it again on some other broadcaster for thinly disguised political reasons. I'd like to believe that they are quietly backing away from what was, quite simply, a terrible idea.

Wednesday, June 09, 2004

Arguments That Make You Ashamed to be a Lawyer


I've been spending some time thinking about the legal claims made in the Pentagon's "torture memo." They sound like legal arguments, to be sure. But they are so mindlessly wrong-headed that you wonder how people can argue themselves into these conclusions.

The key argument in the memo stems from the fact that in order to implement our obligations under international conventions against torture, Congress passed a law making it criminal to engage in torture overseas. The memo then sets out to prove that this law does not bind the President. Why? Because all statutes should be construed to avoid constitutional difficulties. Preventing the President from using torture would pose a constitutional difficulty because it would impinge on his powers as Commander-in-Chief. As the memo puts it, "Congress may no more regulate the President's ability to detain and interrogate enemy combantants than it may regulate his ability to detect troop movements on the field." "Any effort by Congress to regulate the interrogation of unlawful combatants would violate the Constitution's sole vesting of the Commander-in-Chief authority in the President." Taken to its logical conclusion, this argument would suggest that Congress may never place any restraints on anything that the President wishes do do under his powers as Commander-in-Chief because to do so might create a constitutional conflict with his powers as Commander-in-Chief. In short, the argument, taken to its logical conclusion, gives the President plenary power to do anything as long as he believes it is within his powers as Commander-in-Chief.

This is an assertion of power that would make Richard Nixon proud. (See the post below on Nixon's theory of presidential power.). Even the Iran Contra conspirators during the Reagan Administration did not make so strong a claim. They argued that the Boland Amendment, which prevented the expenditure of funds to the contras, did not apply to the activities of the National Security Council. Whether that argument was correct or not is besides the point. What is important is that they did not presume that Congressional legislation related to the conduct of war and foreign policy could not bind the President. The torture memo takes a much stronger position. It truly makes the President a King, someone who must be presumed to do no wrong. If the President adopted this position, and acted upon it, it would be grounds for impeachment.

The second argument is that people engaged in torture at the direction of the Executive may not be prosecuted for war crimes because they were following the orders of a superior. The memo recognizes that following orders is not a defense under both American and international law if the subordinate knows or has reason to know that the order is unlawful. After reciting various authorities to this effect, the memo then twists that legal formulation and concludes that "In sum, the defense of superior orders will generally be available for U.S. Armed Forces personnel engaged in exceptional interrogiations except where the conduct goes so far as to be patently unlawful."

Note the switch. Instead of saying that the defense of following orders is generally unavailable, the defense is now described as generally permissible. And instead of a limited defense in cases where the subordinate did not know and did not have reason to know of the unlawful nature of the order, the defense becomes much broader. The act is generally privileged unless the illegality of the order is patent.

What difference does this formulation make? Put the first set of arguments about Presidential power together with the second. You are a subordinate asked to torture a subject. Do you know that this order is patently unlawful? No, you do not, because of the memo's first argument. The first argument claims that in order to avoid constitutional conflicts, all laws restricting the President's power to interrogate subjects should be construed not to apply to the President. Since the President is ordering you to torture someone, you may-- indeed, you must-- presume that this order does not violate any existing law when properly construed so as to avoid a constitutional conflict. Hence you can torture the suspect with a clear conscience.

Clearly it takes a highly trained legal mind to reach conclusions like these.

There is more in this memo worth discussing, but the import should by now be clear. The stench of corruption permeates the pages of this report. Legal minds, blinded by ideology, and seduced by power, have willingly done the Administration's dirtiest work-- apologizing for torture and justifying violations of the most basic human rights. They have mangled the law and distorted the Constitution, manipulating legal sources to maximize power and minimize accountability. It is the sort of legal reasoning that twists law to destroy the Rule of Law. It is the sort of legal reasoning that brings shame on our nation and our people. It is the sort of legal reasoning that makes me ashamed to be a lawyer.

Above the Law?


In the past few days there has been much discussion of the recently released secret Pentagon "torture memo". The report argues that the President, under his powers as commander-in-chief, has the right to order torture of suspects regardless of the Eighth Amendment's ban on cruel and unusual punishments, existing laws, and international agreements to the contrary. It also argues that people acting at the president's request can escape prosecution for crimes on the grounds that they are only following orders.

There is a pretty serious problem with the arguments in the memo, given that the Article II, section 3 of the Constitution states that the Executive "shall take care that the laws be faithfully executed." That suggests that the Commander-in-Chief power described in Article II, section 2, clause 1, however, great it may be, cannot be exercised through violation of law.

In any case, I thought I'd offer some historical perspective on the controversy. To begin with, here, (reprinted from my constitutional law casebook), is Richard Nixon making arguments remarkably similar to those in the torture memo. These come from an interview with David Frost following his resignation as a result of the Watergate scandal:

Mr. David Frost: So what in a sense you're saying is that there are certain situations . . . where the President can decide that it's in the best interests of the nation or something, and do something illegal.
Mr. Nixon: Well, when the President does it, that means that it is not illegal.
Mr. Frost: By definition.
Mr. Nixon: Exactly. If the President, for example, approves something, approves an action because of national security, or, in this case, because of a threat to internal peace and order, of significant magnitude, then the President's decision in that instance is one that enables those who carry it out to carry it out without violating a law. Otherwise they're in an impossible position.

Nixon argued that the President is not above the law because the President determines what the law is, and subordinates who follow the President's orders are thereby immunized. It follows that if the President determines that torture does not violate the law, it does not violate the law, and if he orders his subordinates to torture people, they are immunized from later prosecution.

Next, here's Abraham Lincoln,who wrote the following in an 1863 letter to Ohio Democrats after they passed a resolution denouncing his policy of military arrests and suspension of habeas corpus:

You ask, in substance, whether I really claim that I may override all the guarantied rights of individuals, on the plea of conserving the public safety when I may choose to say the public safety requires it. This question, divested of the phraseology calculated to represent me as struggling for an arbitrary personal prerogative, is either simply a question who shall decide, or an affirmation that nobody shall decide, what the public safety does require, in cases of Rebellion of Invasion. The constitution contemplates the question as likely to occur for decision, but it does not expressly declare who is to decide it. By necessary implication, when Rebellion or Invasion comes, the decision is to be made, from time to time; and I think the man whom, for the time, the people have, under the constitution, made the commander-in-chief, of their Army and Navy, is the man who holds the power, and bears the responsibility of making it. If he uses the power justly, the same people will probably justify him; if he abuses it, he is in their hand, to be dealt with by all the modes they have reserved to themselves in the constitution.

Lincoln's argument, although flawed in its interpretation of Article I, section 9, is far more subtle than Nixon's. Lincoln does not assert that he automatically determines what the law is simply because he is President. Rather, he argues that the Constitution specifically contemplates that the writ of habeas corpus can be suspended in time of emergency, but does not specify who must make that decision (he is wrong about that-- my view is that under Article I, section 9, Congress must authorize the President; the President cannot do it alone). Someone has to make a decision in times of emergency about suspension of the writ, Lincoln argues, and therefore President is permitted to make a gamble: If he exercises his powers justly, he will be exonerated. If he abuses his powers, then he is subject to sanction, including not only being thrown out of office in a subsequent election, but also impeachment, and subsequently, indictment, and criminal prosecution.

Note that Lincoln is not saying, unlike Nixon, that the Commander-in-Chief power allows him to do anything, and that all of his actions are necessarily legal. Rather Lincoln is saying that Article I, section 9 gives him the power to suspend the writ of habeas corpus and detain people indefinitely if he deems necessary, and that his decision will be subject to political oversight later on. In this passage, Lincoln does not say that he can overturn any existing laws (in another famous statement, he suggests he should be able to disregard a single law to preserve all the others). He does not say that he can violate the Eighth Amendment's prohibition on cruel and unusual punishments, laws specifically prohibiting torture, or the country's treaty obligations, or commit what would otherwise be war crimes. He merely says that a particular clause of the Constitution allows detention of people in times of emergency, that in the absence of a clear statement as to who makes this decision, he has the right to make it, and that he will be held to account if he abuses his power. How much more so should he be held to account if he violates the Constitution or the law.

Moreover, Lincoln's argument requires a certain degree of political transparency. It requires that the people be able to know whether the President has made a difficult decision in order to preserve the country. The problem with the present torture scandals is that, as far as we know, the Bush Administration never wished its policies regarding torture, or its actual practices of prisoner abuse, to see the light of day. Rather, it was merely luck that photographs of what went on at Abu Ghraib were released to the media, which then set the stage for further revelations. And unlike Lincoln, the Bush Administration does not believe that it can be held accountable for its actions if abuse is proved. Indeed, it continues to insist that it should be allowed to do what it wants, however it wants, without interference from Congress or anyone else.

The Bush Administration has been pursuing a logic very much like Nixon's. The President, because he is Commander-in-Chief, does not violate the law if he thinks a particular action is necessary. Rather, he determines what the law is. This way of thinking twists the Rule of Law beyond recognition. It is a chilling reminder of what people seduced by power and convinced of their utter rectitude will do to justify their actions.