Watch What We Do

JB

From the Boston Globe:

With his job on the line over the shocking revelations of torture at Abu Ghraib prison last year, Defense Secretary Donald H. Rumsfeld told the world to ''watch how democracy deals with wrongdoing and scandal and the pain of acknowledging and correcting our own mistakes and, indeed, our own weaknesses."

Now, exactly one year after the photographs from Abu Ghraib became public, the Defense Department has placed seven low-ranking guards under court-martial. No general -- or colonel, or CIA intelligence officer, or political appointee -- has faced any charges.

Human rights groups yesterday seized on the anniversary to reiterate their dismay over the lack of command responsibility, saying Abu Ghraib will be remembered as much for who wasn't held accountable as who was.

But while investigations into the Iraqi prison case have come to a close, the scandal has led to broader revelations about the mistreatment of prisoners in US military custody around the world.

Disclosures at other military detention centers, from Guantanamo Bay to Afghanistan, have revealed use of sleep deprivation, shackling in painful positions, exposure to temperature extremes, and beatings that have resulted in at least 28 deaths -- suggesting that the detainee abuse scandal that started with Abu Ghraib will haunt the war on terrorism for years to come.

''The abuses aren't as sexy, so to speak, as some of the genuinely perverted images that came from Abu Ghraib," said Ken Hurwitz of Human Rights First. ''But the real interrogations have been, by all accounts, quite brutal. As more and more detainees are released from places like Guantanamo, the idea that Guantanamo was doing it right and Abu Ghraib was doing it wrong is just not holding up."

The entire article is worth reading.

Posted 8:16 AM by JB [link] (37) comments

What Turns on the GLAD litigation now that CT has civil union?

Ian Ayres

A lot. And it is not just the important dignitary interest of same-sex couples in having access to the word "marriage."

The press has suggested that the civil union statute confers all the state marriage rights on same-sex couples who register. But this is not true.

There are arguably six different classes of substantive rights that may still be denied same-sex couples under the civil union statute (when it takes effect on Oct. 1), but would not be denied if GLAD wins its litigations and strikes down the marriage exclusion.

You might have thought that CT had at least created a "separate but equal" regime of civil union and marriage. Let's be clear. Civil union is a true advance. Being able to ride in the back of the bus, is a lot better than not being able to ride at all. But the civil union statute is better characterized as a "separate but substantively unequal" regime.

The basis for this list and much more can be found in GLAD questions and answers about CT's new civil union law.

Here's the top six reasons why CT civil union rights are substantively different than equal marriage rights:

6. As I posted before, the civil union statue discriminate against 16 and 17 year olds. Here's GLAD's take:

[T]here are certain circumstances in which 16 and 17-year-olds may marry, but
you must be 18 to join in a Civil Union (unless you are ruled an emancipated
minor by a court). . . . [A] minor between ages 16 and 18 will be deemed
to be over 18 for the purpose of obtaining a Civil Union license if the minor
has received a court order of emancipation. . . . This is different than
the Connecticut law governing marriage. A person under 18 can marry in
Connecticut if an acknowledged, written consent of a parent or guardian is filed
with the registrar of vital statistics. If there is no parent or guardian
resident in the United States, “the written consent of the judge of probate for
the district in which the minor resides, endorsed on the [marriage] license,
shall be sufficient.” (Conn. Gen. Stat. §46b-30(b)). A person under
16 can marry in Connecticut if “the judge of probate for the district in which
the minor resides endorses his written consent on the license.” (Conn.
Gen. Stat. §46b-30(a)).

If the marriage exlcusion were abolished, same-sex couples would be able to marry on the same basis as different sex couples.

5. "[T]he Civil Union law gives public officials the explicit right not to officiate at a Civil Union while there is no such explicit exemption in the marriage laws." If the marriage exclusion were abolished, public officials would have the same duties to perform same-sex and different sex weddings.

4. As it now stands "couples joined in Civil Union will not be able to file joint tax returns because Connecticut ties one’s filing status to federal law." If the marriage exclusion were abolished, it is more likely that same sex couples would be able to file joint state tax returns.

3. "[I]t will be harder to gain respect for one’s Civil Union in other states– in whole or in part – than it would be for a marriage. While marriages of same-sex couples will face discrimination in some places, marriages are advantaged over Civil Unions because all states have a marriage-system (with rich histories of respect for marriages validly licensed elsewhere) and only two other states (Vermont and California) have a Civil Union system. If the marriage exclusion were abolished, it would be more likely that at least some states would recognize as a same-sex marriage than they would be to recognize a same-sex civil union.

2. The civil union statute may allow employers to deny benefits to same-sex couples who are joined in Civil Union but unmarried. "[B]y calling the status a “Civil Union,” a self-insured employer (and that includes most large employers) will have to amend its plans to include Civil Union spouses whereas married spouses would automatically be covered under self-insured plans that defer to a state-law definition of who is married." If the marriage exclusion were abolished, it is more likely that an employer would be prohibited from discriminating between same-sex and different-sex married couples.

And the number one reason why civil union is substantively different than marriage:

1. "The word “marriage” is the gateway to the 1138 federal protections afforded married couples. Without that word, same-sex couples in Civil Unions have no claim for those legal protections." If the marriage exclusion were abolished, same-sex married couples would have a stronger standing -- both legal and political -- to challenge the federal discrimination. They would have a ready-made option for their marriage rights to spring to life as soon as the federal discrimination ended.

We should cut the Gordian knot of dual causation. The state argues "We're not to blame for same-sex spouses not qualifying for social security, because the feds wouldn't give them to you even if we allowed you to marry." The feds argue, "We're not to blame for same-sex spouses not qualifying for social security, because even if we granted benefits to married spouses CT will not allow you to marry."

This is just like the classic problem in tort law where there is no but-for cause. The mechanic can say, "My failure to fix your brakes did not cause the accident because you didn't push on the brake." The driver says, "my failure to push on the brakes did not cause the accident because the mechanic hadn't fixed them." Tort law knows how to deal with problem (a pox on both your houses!) and we should too.

Stepping back we see that the CT legislature did not go all the way in creating "separate but equal" civil union rights. On reflexion this shouldn't be so surprising. The seats on the back of the bus are never quite nice.
Posted 8:13 AM by Ian Ayres [link] (19) comments

Preaching Civil Disobedience by Civil Servants

JB

Here's a puzzle: Pope Benedict's chief official in charge of family matters, Cardinal Alfonso Lopez Trujillo, has stated that Catholic officials in the Spanish government should refuse to officiate at same-sex weddings if the Spanish same-sex marriage law passes.

Before condemning the Pope's directive to Catholic government officials (as announced through his spokesman) as a meddlesome interference in politics, consider whether you would feel differently if the Pope ordered American Catholics in positions of power to refuse to participate in executions of death row inmates.

Should it make any difference that the underlying substantive claim is same-sex marriage as opposed to the application of the death penalty? Should it matter that the Pope is ordering government officials as opposed to private citizens to refuse to cooperate with laws the Pope believes are unjust?

Posted 10:47 PM by JB [link] (27) comments

hip, hip

Ian Ayres

Our very own Jack Balkin has been named to the 225th class of Fellows of the American Academy of Arts and Sciences Fellows.

Who would have thought that a Barstow graduate from Kansas City would rise to such great heights?
Posted 9:49 AM by Ian Ayres [link] (2) comments

The Scandal of Abu Ghraib, One Year Later

JB

And justice has not yet been done. To our great shame.

Senator Kennedy's speech yesterday is well worth reading for a reminder that the torture scandal goes well beyond Abu Ghraib. It involved decisions by government officials to use methods of interrogation that violated our own country's norms of decency, Congressional statutes against torture, and international law, and had been rejected as ineffective by the Army's own internal interrogation manual. Kennedy's speech concludes:

Last weekend, the Army's Inspector General revealed he had exonerated almost all of its top officers of any responsibility for abuse of detainees at Abu Ghraib, even though one of them, Lieutenant General Sanchez, explicitly approved the use of severe interrogation practices, and even through a review by former Secretary of Defense James Schlesinger found that General Sanchez and his deputy "failed to ensure proper staff oversight of" the operations at Abu Ghraib.

What signal does this pattern of prosecutions for low-ranking soldiers, exonerations for generals, and promotion for civilians send to our men and women in the armed services, and to our veterans?

The torture scandal is not going away on its own. Our nation will continue to be harmed by the reports of abuse of detainees in U.S. custody, the failure by top officials to take action, and the abandonment of our basic rules and traditions on human rights.

The scandal directly endangers U.S. soldiers and U.S. civilians abroad. We no longer demand that those we capture in the war on terrorism be treated as we treat prisoners of other wars. What will we say to a country that justifies its torture of a U.S. soldier by citing our support for such treatment? How we can we hold other nations accountable for their own human rights violations, when we continue to hold prisoners for years, without charging them or convicting them of anything?

The nation's standing as a leader on human rights and respect for the rule of law has been severely undermined.

We cannot simply answer, as some have done, that the behavior is acceptable because terrorists do worse. By lowering our standards, we have reduced our moral authority in the world. The torture scandal has clearly set back our effort in the war on terrorism. It is fueling the current insurgency in Iraq. Even our closest allies, such as Great Britain, have raised objections to our treatment and rendition of detainees.

Al Qaeda is still the gravest threat we face. The widespread perception that the U.S. condones torture only strengthens the ability of Al Qaeda and others to create a backlash of hatred against America around the world. If we do not act to locate official responsibility for Abu Ghraib, we will condone a new status quo in which our policy toward torture is technically one of zero tolerance, while de facto our officials tolerate and commit torture daily.

Many of us were struck by the rhetoric in President Bush's Inaugural Address. "From the day of our founding," he said, "we have proclaimed that every man and woman on this earth has rights, and dignity, and matchless value, because they bear the image of the Maker of Heaven and earth." Many of us would like to work with the President to develop a foreign policy that advances these important values. But rarely has the gulf between a President's rhetoric and his Administration's actions been so wide. It is simply not possible to reconcile his claim that "America's belief in human dignity will guide our policies" with the barbaric acts that have been committed in America's name.

We must not allow inaction to undermine two bedrock principles of human rights law that we worked hard to establish at Nuremberg: that higher officials cannot escape command responsibility and lower officials cannot excuse their actions by claiming that they were "just following orders."

It is time to come to terms with the continuing costs of the torture scandal, and respond effectively. We need to fully restore the nation's credibility and moral standing, so that we can more effectively pursue the nation's interests in the future.

First, we must acknowledge that the rule of law is not a luxury to be abandoned in time of war, or bent or circumvented at the whim and convenience of the White House. It is a fundamental safeguard in our democracy and a continuing source of our country's strength throughout the world.

Sadly, a recent National Defense Strategy policy contained this remarkable statement: "Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism." Who could have imagined that our government would ever describe "judicial processes" as a challenge to our national security-much less mention it in the same breath as terrorism? Such statements do not reflect traditional conservative values, and they are clearly inconsistent with the ideals that America has always stood for here and around the world.

Second, we must acknowledge and apply the broad consensus that exists against torture and inhumane treatment.

Never before has torture been a Republican versus Democrat issue. Instead, it's always been an issue of broad consensus and ideals, reflecting the fundamental values of the nation, and the ideals of the world.

President Reagan signed the Convention Against Torture in 1988. The first President Bush and President Clinton supported its ratification. The Senate Foreign Relations Committee, led by Senator Jesse Helms voted 10-0 in 1994 to recommend that the full Senate approve it. The Clinton Administration adopted a "zero tolerance" policy on torture. Torture became something that Americans of all political affiliations agreed never to do.

9/11 didn't nullify this consensus. We did not resolve as a nation to set aside our values and the Constitution after those vicious attacks. We did not decide as a nation to stoop to the level of the terrorists, and those who did deserve to be held fully accountable

Americans continue to be united in the belief that an essential part of winning the war on terrorism and protecting the country for the future is safeguarding the ideals and values that America stands for at home and around the world.

That includes the belief that torture is still beyond the pale. The vast majority of Americans strongly reject the cruel interrogation tactics used in Iraq, Afghanistan, and Guantanamo -- including the use of painful stress positions, sexual humiliation, threatening prisoners with dogs, and shipping detainees to countries that practice torture. The American people hold fast to our most fundamental values. It is time for all branches of the government to uphold those values as well. It is clear beyond a doubt that we cannot trust this Republican Congress or this Republican Administration to conduct the full investigation that should have been conducted long before now. We've had enough whitewashes by the Administration and Congressional Committees.

Finally, to implement these values, we need a full and independent investigation of our current detention, rendition, and interrogation policies, including an honest assessment of what went wrong in Iraq, Afghanistan, and Guantanamo.

The investigation will require genuine candor and cooperation by all officials and agencies in the Bush Administration, full accountability, a clear statement of respect for human rights, and a plan for protecting those rights throughout the government. Only a truly independent and thorough investigation can restore America's reputation and put us back on the right path to the future.

The challenges we face in the post-9/11 world are obvious, and the stakes are very high. Working together, we have met such challenges before, and I'm confident we can do so again. I urge all of my colleagues, on both sides of the aisle, to join together to protect the rule of law, protect our soldiers serving abroad, and restore America's standing in the world.

Rush Limbaugh, on the other hand, thinks it's reason to celebrate:

"The sad anniversary of the Abu Ghraib torture scandal is now upon us." (Laughing.) Sad, my foot! These guys are happy as hell to be celebrating this today, but I think that we should encourage them. They have misread the public totally on this and they still think this is an election winnable issue for them.

Senator Kennedy says, "It's an appropriate time to reflect on how well we've responded as a nation. The images of cruelty and perversion are still difficult to look at a year later. An Iraqi prisoner in a dark hood and cape, standing on a cardboard box with electrodes attached to his body. Naked men forced to simulate sex acts on each other." Senator Kennedy is just jealous. This is the kind of stuff that used to go on in Hyannisport and he's just jealous that as he's getting older, he's not part of it. . . .

You want to know what to get me for Abu Ghraib? You know what? That is a good question. I don't really want anything for Abu Ghraib. The Democrats, that is who we need to get presents for. One thing, have you thought about handcuffs? Those have multiple uses for Democrats. A whip. You know, to go along with the handcuffs. Dawn says a good present would be to give a Democrat a digital camera so that he or she can document their own atrocities. All you have to take it to a Madonna concert. You got the whips, and the handcuffs and chains right there on stage and people are paying for this. . . .

We're putting our heads together down here at EIB Southern Command. We've come up with three more gift ideas for a liberal Democrat today. It is Abu Ghraib Day. Senator Kennedy issued a statement, Democrats celebrating the one year anniversary of the Abu Ghraib scandal. I don't know how I forgot this. Obviously, at the top of the gift list has to be women's underwear. Remember, women's underwear was put on the heads of Islamic prisoners to humiliate them. Democrats found this totally objectionable, can't believe it. Another thing, remember all of the pictures of Abu Ghraib prisoners with bags on their heads, with eye holes cut out. Give them some of those. Those are cheap. Go to the grocery store, get groceries, then give them the empty bags with the eye holes cut out favorite liberal Democrat, that as well as handcuffs. The bag for the head has a series of uses for liberal Democrats as well. Then, of course, there is a leash. A leash can be found at any pet store and it goes along with the German Shepherd that you are going to give away to a democrat here as they celebrate the one year anniversary of Abu Ghraib Day.

As I said before, to our great shame.

Posted 11:33 AM by JB [link] (46) comments

Waldron/Yoo Debate on Torture

Marty Lederman

Last Thursday, the Columbia Law School chapters of the American Constitution Society and Federalist Society co-sponsored a debate on torture featuring University Professor Jeremy Waldron, of Columbia, and John Yoo, of the Boalt Law School (formerly of OLC). Professor Waldron is the author of the forthcoming article Torture and Positive Law: Jurisprudence for the White House, to be published in the Columbia Law Review.

The Columbia ACS has now posted a video of the hour-long debate here. I strongly encourage all those interested in this issue to take the time to view it. Professor Waldron's presentation is perhaps the most powerful and cogent account I have recently seen on this subject. But don't take my word for it: I also strongly recommend this defense of Professor Waldron by the pseudonymous Columbia Federalist Society blogger "T. More."

A couple of especially provocative comments from Professor Yoo:

Upon noting that Professor Waldron is a distinguished Kantian philosopher: "I think it would be very difficult to be a Kantian and to have any responsibility in the government."

And, in response to a question about the broad assertions in the OLC memos of the President's alleged authority as Commander-in-Chief to ignore statutory limitations—such as the argument in the August 2002 torture opinion (which I discuss briefly here) that Congress is powerless to restrict the President’s decisions concerning "what methods to use to best prevail against the enemy"—Professor Yoo explains that Congress cannot criminalize any "legitimate exercise" of conduct that "falls within" the President's Commander-in-Chief power. What Professor Yoo apparently means by this is that if the President may engage in particular conduct in the absence of statutory limitation, Congress is foreclosed from restricting that conduct by statute. Thus, for example, Professor Yoo shockingly asserts that Congress could not enact a law prohibiting the President from ordering the use of nuclear weapons or from sending troops to Europe.

Perhaps the most interesting exchange occurred toward the end of the debate, when "Ex Post" asked Professor Yoo to engage Professor Waldron on the moral questions raised by the Administration's legal manipulations of the words of the torture statute and the Geneva Conventions. Yoo explained that such moral considerations are for the policymakers, not the lawyers: "In [writing] the legal memos, what’s the function of a lawyer? I view the function of a lawyer in those cases as to interpret the Geneva Conventions or the torture statute and not to interject my own moral views into what the government should do. . . . [The moral arguments] are the kinds of things that ought to be considered in an analysis that’s separate from the legal analysis."

To which Waldron responded as follows:

"I think with regard to some law, you can do the strict separation between the letter of the law and the moral spirit that Professor Yoo has indicated. [W]ith regard to much human rights law, and much international law, and much constitutional law, sometimes you cannot do that; you cannot understand the human rights provisions without understanding—at least in some sense—the moral ideas that inform it, imbue it, give it its coherence, shape its concepts, give us our sense of its importance. I believe that’s true of human rights provisions prohibiting torture. I believe it’s true also of the scheme of protection laid down in the Geneva Conventions. You need to understand this not as a strange set of runes which we will look at as if we’ve never seen them before, and have no idea what they’re trying to do, but [will] try to figure out what the text requires. In some sense, that’s obtuse lawyering, as well as obtuse morally.

Now, Professor Yoo is exactly right that that doesn’t mean we intersperse our own moral or ethical or religious preferences into the matter. But these are provisions that have what Gerry Neumann [of Columbia Law School] calls a ‘supra-positive aspect.’ You cannot understand them without understanding that they embody certain moral ideas—and that [understanding] affects what you can do in the way of manipulating them or limiting them or restricting them out of existence."

I think Professor Waldron is absolutely correct that it is "obtuse" to attempt to construe the torture statute and the Geneva Conventions without giving serious regard to the moral and practical objectives that obviously embue those laws. And as many of my earlier posts here have demonstrated, I'm certainly no defender of the legal analysis in the August 2002 OLC torture memorandum, which did not even acknowledge those moral and practical objectives. Nevertheless, having been an OLC attorney for eight years, I can attest that it is often much easier said than done to incorporate the "supra-positive" aspect of such laws into one's legal analysis; or, more to the point, it's extremely difficult to persuade policymakers to act in accord with such "supra-positive" aspects of the laws, when the actual words of the laws contain evident gaps, limitations, and ambiguities—some of which were inserted intentionally by the lawmakers who negotiated, drafted, and ratified such enactments. I'd be very interested in hearing others' views on this question.
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Posted 5:07 PM by Marty Lederman [link] (116) comments

Conspiracy or Free Speech?

JB

A jury has recently convicted a Muslim cleric for exhorting his followers to fight against the United States:

A prominent Washington-area Muslim cleric was convicted Tuesday of urging his followers days after the September 11 attacks to go to Afghanistan and help the Taliban fight U.S. military forces.

Ali al-Timimi, 41, was convicted on all 10 counts of an indictment brought in U.S. District Court in Alexandria, Virginia.

The Islamic scholar remains free on $75,000 bail pending sentencing, which Judge Leonie Brinkema has scheduled for July 13.

Possible sentences for the charges on which he was convicted range from 30 years to life in prison.

The jury had deliberated for a week after a trial that centered on al-Timimi's conversations at a meeting with young Muslim men on September 16, 2001.

Three of the followers traveled to Pakistan and received military training but never went into Afghanistan.

Some of al-Timimi's followers were charged separately and convicted earlier as members of a "Virginia jihad" organization.

Government prosecutors said al-Timimi had urged the men to defend the Taliban regime as part of a global war against the United States and the West.

Defense attorneys acknowledged al-Timimi had spoken out against the U.S. government and expressed support for the September 11 attacks, but they insisted he was free to express his controversial views and had only suggested the men leave the United States for their own protection

There's something fishy about this story. Under Brandenburg v. Ohio, the government may not convict someone for urging others to violate the law (or even take up arms against the United States) unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such [imminent lawless] action." Under the facts as recounted in this news story, what al-Timimi did, however hateful, was constitutionally protected. His exhortations to his followers did not lead immediately to violence or violations of the law.

In fact, the actual charge against al-Timimi was criminal conspiracy. To convict him of conspiracy there would have to be an agreement between him and his followers to fight the U.S. and an overt act by one or more of his followers. Going to Pakistan and training for the military would be such an overt act.

Thus, what the case really turns on is whether the prosecution had credible evidence that this was more than a religious leader criticizing the U.S. in overheated religious sermons, and urging his followers to fight to the death against the Great Satan (which would be protected speech), and was in fact an agreement between the cleric and his followers to fight the U.S., with steps taken by those followers to carry out the agreement. Putting the matter in this way, however, shows that there can sometimes be a fine line between criminal conspiracy and protected expression. It is not a crime to say that all Muslims should resist the United States and fight against it in Afghanistan. It is, however, a crime to recruit soldiers for that war. The line between the two situations may sometimes be difficult to draw.

If you have additional information about the proof that the government put on (see for example, this article), or the charges against al-Timimi, please feel free to link to it in the comments section.

UPDATE: Marty Lederman sends some comments he wrote back in September, before the trial was held:

The Al-Timimi indictment can be found here.

The basic charges are based upon the federal aiding and abetting statute, 18 U.S.C. 2, which by its terms punishes as a principal not only those who "aid" or "abet" a crime, but also those who "counsel" or "induce" a crime. In the DOJ Report a few years ago, the Attorney General wrote that "[w]e are not aware of any modern case in which culpability under § 2 was premised solely on "counseling" in the form of encouragement (or advocating that a crime be committed), without any actual aid or assistance to the principal. Insofar as § 2 were construed to permit culpability in such a "pure" advocacy situation, it is likely -- at least absent special circumstances, such as implicit coercion or a fiduciary relationship between the pertinent parties -- that the prosecution would be required to satisfy the Brandenburg standards." [Disclosure: I helped to draft the Report.]

There are two facts alleged in the indictment that might take the case outside the Brandenburg model:

First, the exhoration to crime was not public, but relatively private. ("On or about September 16, 2001, at the meeting at Kwon’s house, ALI AL-TIMIMI told the conspirators that what he said at the meeting must be kept secret.") And, as the DOJ Report noted, "Professor Kent Greenawalt has argued that the Brandenburg requirements (such as the requirement of "imminent" criminal conduct) should be relaxed in the case of private, nonideological solicitations to crime, even where there is no inducement or threat, but only persuasion. Kent Greenawalt, Speech, Crime and the Uses of Language 261-65 (1989). While this argument has some force, we are not aware that any court has yet endorsed it."

Second, there is a single allegation of what Eugene would call "crime-facilitating" speech: "On or about September 17, 2001, ALI AL-TIMIMI advised Yong Kwon and Khwaja Hasan how to reach the Lashkar-e-Taiba camp undetected." It is arguable that Brandenburg would not be applicable to this discrete bit of conduct -- true aiding and abetting. Indeed, the DOJ Report suggests that it would not be.

I'd be very curious to hear whether . . . others think that the Brandenburg "imminence" requirements should apply under either or both of these two circumstances.

Marty also points out that since he wrote this, the indictment might have been amended; moreover jury instructions might have clarified the issues; and the jury might have found that the Brandenburg test was satisfied.

Posted 3:07 PM by JB [link] (24) comments

Learning From the Conclave

Sandy Levinson

Many things can be said about the choice by the conclave of cardinals of 78-year-old Joseph Cardinal Ratzinger to be the new Pope. One of them is that the cardinals, for all of their deep (and probably sincere) devotion to the departed John Paul II, expressed its deep desire that there be no possibility, barring what would truly be miraculous, of another quarter-century reign by his successor. The Catholic Church may, like the U.S. federal judiciary, be committed to life tenure, but the cardinals have done whatever they could to limit the actual term of service. Would that the United States Senate learn a lesson from what has just happened in Rome.

William Rehnquist has served on the Supreme Court for over a third-of-a-century; he has been Chief Justice for almost two decades. Consider his two predecessors: Earl Warren was on the Court for only fifteen years, from 1954-1969; Warren Burger retired in his seventeenth year, in 1986. This in fact is quite close to what a recent paper by Northwestern law professors James Lindgren and Steve Calebresi has demonstrated is the mean length of service of Supreme Court justices from 1790-1970, approximately sixteen years. Since then, however, the average term is over 26 years. Even if one defends life tenure on the Supreme Court—an idea that I and many others believe is an idea whose time has gone—there is no defense whatsoever for the ever-increasing length of actual terms.

Much has been written about the battles sure to be waged when Rehnquist steps down. Almost all of the anticipatory salvos have involved the ideologies of prospective nominees. Might Congress not pay some attention, however, to the age of the nominee? For example, Democrats should insist, as a price for their support or, at least, non-filibuster, that the nominee be at least 60, preferably 65.

There is something to the argument that winners of elections, especially if their party also controls the Senate, should have some leeway in packing the judiciary, including the Supreme Court, with ideological friends. There is nothing to the argument that that packing should extend literally a generation. My own preference would be that Supreme Court justices could serve an 18-year (non-renewable) fixed term. That would obviously allow a president to “pick young” (as with William O. Douglas or Clarence Thomas) or “go old” (as with Lewis H. Powell or Harry Blackmun). In the absence of such a sensible change, however, the only thing that the citizenry can do is to demand that youngsters wait their turn, not necessarily because there isn’t anything to be learned from the (relatively) young—there most certainly is—but because a sensible country would not appoint justices to de facto 30-year terms.

The cardinals in Rome were able to learn from experience and sent a very strong message in their choice of the elderly Ratzinger. Ironically, the oldest member of the current Supreme Court is the 85-year-old John Paul Stevens, about to begin his fourth decade on the Court. I like his judicial politics, but that is the only thing that can be said for what otherwise has to be recognized as an act of narcissistic vanity. Even if there is nothing we can do, practically speaking, to force justices to leave after an appropriate time of service, we can surely act to prevent such extended terms. Our motto when evaluating whoever is nominated to succeed Rehnquist (and other retiring justices) should be “Don’t Trust Anyone Under 65”!

Posted 9:54 PM by Sandy Levinson [link] (45) comments

Less Information Can Improve Decisionmaking

Ian Ayres

Malcolm Gladwell gave a great talk at a fundraiser for All Our Kin.

One of the ideas from his wonderful book, Blink, is that less information can lead to better decisionmaking.

This make sense in a variety of settings -- anonymous contributions which screen the contributor's identity can improve politicians' (including judges') decisionmaking.

anonymous auditions can improve philharmonic decisions.

But Gladwell also has an interesting application to juries -- maybe we should also put a screen between the defendant and the jury. There is no reason in the world that the jurors need to see a non-testifying defendant.

But we take this idea a step further. There is an interesting triangle in the court room made of of the defendant, the jury and the witness. Gladwell is clearly right that there is no reason why jury should see defendant. Even if jurors were trained to assess lying, the defendant has a constitutional right to remain silent and not to testify. But the defendant may have a right to see the jury. This suggests a one way mirror on this side of the triangle.

On the defendant-witness side of the triangle, I think we should have a clear unscreened line of sight. The defendant has a right to confront the witnesses – which is a right to see and be seen (harder to lie about defendant when witness has to look in eye).

As to witness-jury side of triangle, I think we should have a one way mirror that lets jury see witness, but no reason why witness needs to see jury. (witnesses aren’t supposed to play to the jury).

It would be interesting to try to convince a judge to experiment with this in a real trial in the appropriate case where real prejudice might be at stake to experiment with this idea. We might want to at least give the defendant the option to put up a one way screen (but there might be instances of intimidation where the prosecution could reasonable demand it as well.
Posted 1:51 PM by Ian Ayres [link] (8) comments

All Hail The Nutmeg State

Ian Ayres

Connecticut became tonight the first state to legislatively embrace "civil union" rights for same sex couples. It is now impossible to argue that it just "activist judges" who force equality on an unwilling majority. In CT, 3 out of 4 senators voted for it and it was signed by a Republican govenor. As Jennifer Brown wrote this statute makes clear that the hidden ambition of the proposed federal constitutional ammendment is really to preempt the democratic embrace of marriage equality that so many people see now as inevitable.

With this statute, Connecticut leapfrogs ahead of California on the road to marriage equality. While California's domestic partnership law was first, it continues to deny same-sex couples equal state rights:

Domestic Partners will not be able to file joint state income taxes and state
employees will not be entitled to the same benefits under the state’s long-term
care benefits package.

Neither state, however, provides equal standards for qualification. As I earlier blogged, Connecticut discriminates against same-sex couples by making them wait until they are 18 (while allowing heterosexual couples to marry at 16 or 17 with parental or judicial permission). Here we are just following California's discriminatory lead (again 18 for same sex, less than 18 with parental consent for heteros).

What is most interesting is the question of how to rank the C states with regard to their treatment of people who are older than 62. In California, different sex couples can register for domestic partnership if and only if they are >62, while no different sex couples can united in civil union in CT (or Vermont for that matter). On this dimension, does this make California better or worse than CT in terms of equality. Well in one sense it is a move away from "separate but equal" discrimination. But it is an assymetric move in that it represents yet another place where different sex couples clearly have more rights thn same sex couples. If you are a sufficiently old different sex couple in California, you can sit in the front or the back of the bus.

Connecticut civil union is not the whole enchilada of marriage equality, but it will provide tangible, on-the-ground benefits to thousands of same-sex couples and their families. Now it is time for other state legislatures to follow suit.
Posted 9:24 PM by Ian Ayres [link] (26) comments

St. Malachy's Prophecy and Pope Benedict XVI

JB

Why did Joseph Cardinal Ratzinger choose as his papal name Benedict XVI? Many explanations have been offered, but there is one that is particularly intriguing.

Ratzinger was no doubt familiar with the prophesies of St. Malachy, an Irish Bishop who lived in the twelfth century, and who is supposed to have prophesied all of the future popes. Malachy's list was supposedly given to pope Innocent II, and remained hidden in the church archives until it was "discovered" in 1590, and published in 1595 by Arnold de Wyon. A more probable explanation is that the list is a forgery that was composed around that date, possibly by Wyon himself, and attributed to Malachy.

In any case, Malachy's list offers prophetic mottos for 112 remaining popes. Each is supposed to describe some aspect of the pope's life, or, in the case of the earlier popes, a feature of his heraldic coat of arms.

It turns out that we are very near the end of Malachy's list. The motto for the 109th pope, John Paul I, is de medietate lune, "[He] of the half moon." This prophecy is said to have been fulfilled because John Paul I became pope during a half moon and died 33 days later during another half moon. The motto for the 110th pope, John Paul II, is de laboris solis, "[He] of the labor of the sun." This prophecy is said to fit because the sun labors by traveling around the world (Malachy wrote before Copernicus!) and Pope John Paul II was famous for his travels.

The motto for the next pope, Ratzinger, now Benedict XVI, is de gloriae olivae, "[He] of the glory of the olive," about which more in a moment. The last pope in the list (number 112, but no number is given in the text) is Petrus Romanus, or "Peter the Roman." Peter, of course, was the first Bishop of Rome as well as the first pope. This is the only pope for whom Malachy adds a comment: "In extreme persecution, the seat of the Holy Roman Church will be occupied by Peter the Roman, who will feed the sheep through many tribulations, at the term of which the city of seven hills will be destroyed, and the formidable Judge will judge his people. The End." Apparently Petrus Romanus is the last pope before Judgment Day. Some people have argued that because no number is assigned to Petrus Romanus, he is actually the same pope as Gloriae Olivae, and so Gloriae Olivae is in fact the last pope; others argue, to the contrary, that because no number is assigned to Petrus Romanus in Saint Malachy's list, that any number of popes could intervene between Gloriae Olivae and Petrus Romanus, so that the church (and the world) as we know it is not about to end.

Ratzinger surely knew of Malachy's prophecy, and his choice of papal name may have been designed (consciously or unconsciously) to fulfill the prophecy. The phrase "Gloriae Olivae" or "glory of the olives," has several possible meanings. The olive is the sign of the Jews; the olive branch is the sign of peace, and the olive branch is also a symbol of the Benedictine Order, one branch of which is called the Olivetans. Hence some people had speculated that this pope would be a converted Jew (like Cardinal Lustiger of Paris), one who works for peace (like Benedict XV) or a member of the Benedictine Order.

Ratzinger is not a converted Jew, and he is not a member of the Benedictine Order, but by choosing the name Benedict XVI, he made simultaneous reference to Benedict XV, who reigned during World War I, and pushed hard for peace throughout the war, as well as Saint Benedict, the founder of the Benedictine Order.

It is hard to imagine that Ratzinger actually hopes that he will be the next to the last (or the last) pope. For that means that the end of days is near. Nevertheless, the choice of name suggests that he believes that the purpose of his papacy will be striving for peace and confronting evil in the world. Perhaps fittingly, Pope Benedict XVI has chosen pax or "peace" as his papal motto.

Posted 12:36 AM by JB [link] (29) comments

More on Blackmun and His Clerks

JB

I want to second much of what Mark Tushnet has said below on about David Garrow's recent story in Legal Affairs. I want to add that I spent some time going through the Blackmun files last summer in preparation for a book on Roe v. Wade, and I read most of the same memos from the clerks that Garrow did. I did not get the impression that Blackmun was being pushed around by his clerks or that he abdicated responsibility for his views to them. Rather, the impression I got from reading the files was that his clerks really loved Blackmun; they often spoke quite frankly not out of lack of respect for him but because they were a sort of close-knit family. Blackmun, in turn, was exceedingly generous to them and this comes out in the remarks in his interview with Harold Koh; for example, in Blackmun's remarks about Pam Karlan's excellent work on the dissent in Bowers. This sense of closeness and familial bonding is not at all uncommon a relationship between some judges and their clerks. It is simply particularly well documented in Blackmun's files.

There is some partisan gossiping by the clerks in the files on the abortion cases, but I sincerely doubt that this is unusual among clerks, particularly in cases involving hot button issues like abortion. We just have a better documentary record of this gossiping because Blackmun liked things written out in official memos.

Garrow is worried that some Justices, including Blackmun, delegate too much authority to their clerks. That is certainly a legitimate source of concern, but there is nothing that I found in Blackmun's papers to suggest that the reasons for concern were particularly greater in Blackmun's case than in the case of any other recent Justice.

Posted 6:30 PM by JB [link] (3) comments

Garrow on Blackmun and law clerks

Mark Tushnet

There's been some commentary on David Garrow's article in Legal Affairs on Justice Blackmun and his reliance on law clerks. I have some comments on Garrow's presentation. A preliminary overview is that a great deal of what Garrow identifies is perfectly standard law-clerk communication to a justice, reporting what's happening in other chambers, offering strategic advice, and so on. Anyone familiar with files in a wide range of chambers will have seen similar memos.

1. Garrow discusses the role of law clerks John Rich and George Frampton in drafting the opinion in Roe v. Wade, and in particular on their role in fleshing out the "trimester" framework. On the substance, it's worth noting that Blackmun was hearing from at least three other justices -- Stewart, Brennan, and Marshall -- that the draft that had been circulated was too rigid in its use of "viability" as the sole criterion for striking the balance between the woman's interest and the state's interest. And, as I've written elsewhere, once you try to move away from the viability standard, you're pretty much inevitably going to end up with the trimester framework. So, it's not clear to me that there's anything terribly troubling about the law clerks' role. Garrow says that "what stands out . . . is the unusually assertive and forceful manner in which the clerks voiced their views to Blackmun." The quotations Garrow provides don't strike me as particularly dramatic, and in any event I would think it would be a good rather than a bad thing that a judge encouraged his law clerks to be forceful and assertive. (One might recall here William Rehnquist's memos to Justice Robert Jackson in Brown and Terry v. Adams decided during the term Rehnquist clerked.)

2. In connection with the Cruzan case, Garrow quotes a memo from a law clerk saying that she "did not really know what your views are on this case," and comments that "it is extraordinary for a clerk to acknowledge that she 'did not really know' her justice's views on one of the term's most important cases." Garrow also quotes the law clerk's comment that she did "not know whether you have special concerns or thoughts about the case," which puts her other comments in a somewhat different light. Brennan had taken the principal dissent, and it's not unusual for other chambers to wait to see what the lead dissent will say before deciding whether to express any "special concerns or thoughts." I would take the comment that the clerk "did not really know" Blackmun's views to mean that she did not know whether he had any special concerns or thoughts not expressed in the circulated draft dissent -- and that, I think, would not be terribly extraordinary.

3. Garrow quotes what he calls "intemperate statements" and "hostile and sometimes harshly sarcastic references to other justices," which he says do not appear in clerks' memos to Brennan, Marshall, and Powell, and infers from "Blackmun's failure to stop such comments" that Blackmun "himself lacked respect for some of his colleagues." (a) This is one clerk out of dozens employed by Blackmun over the years, and there is no reason not to think that she was an outlier. (b) The comments come in the Casey case, which I suspect loosened otherwise observed strictures on comments. (c) In Justice Marshall's files, there's a join note from one of his law clerks -- in my view, an outlier in the openness of expression -- referring to a circulated draft in a case called Schmuck v. United States, saying, "Join the schmuck in Schmuck" (no points for figuring out who the reference is to). (d) We have no idea what's in the law clerk memos to, for example, Justices Scalia and Kennedy, but we do have some evidence of Rehnquist's memos to Jackson, some of which are fairly called intemperate -- referring to law clerks who "began screaming as soon as they saw this [Terry v. Adams] that 'Now we can show those damn southerners, etc.'" (e) Law clerks are youngsters, by and large, and a justice might reasonably think it not worth his time to keep them under tight rein with respect to what they wrote inside the chambers.

4. In connection with Callins v. Collins, Garrow quotes a law clerk's comments, "I would love to hear your thoughts" (twice), taking them to be a request for comments on the substance of the draft dissent in that case. But, from the context, it seems reasonably clear that the law clerk was asking for comments on her suggestions about the timing of the dissent -- whether it should be issued in connection with a particular execution or whether, as happened, it should be issued in connection with, as she put it, "any death case."

5. Most generally, Garrow's presentation fails to take into account (a) that there is a range of practices among the justices about drafting opinions (the Chief Justice has written that he delegates a fair amount of the drafting to his law clerks and not infrequently publishes opinions essentially unrevised by him), and (b) that justices typically delegate more of the drafting responsibility to their law clerks as they age. Early in the piece Garrow mentions Felix Frankfurter, who at the start of his tenure drafted everything himself, and near the end had his law clerks draft nearly everything for him.

In the end, I'm not persuaded that Garrow has actually identified anything coming close to what he calls a "scandalous abdication of judicial responsibility," at least where the standards for determining what constitutes judicial responsibility are set with reference to actual practices by the people who are justices rather with reference to some standard not likely to be implemented universally in any modern human institution.
Posted 2:22 PM by Mark Tushnet [link] (34) comments

blogcasting

Ian Ayres

Is blogcasting the waive of the future? A force for good or evil?

Here's a first experiment (with many thanks to John Davie).
Posted 11:42 AM by Ian Ayres [link] (30) comments

Frist Plays the Religion Card

JB

Senator Bill Frist, who seems to have lost any scruples he might have had, has decided to play the religion card in his attempt to break the Democratic filibuster, The New York Times reports:

As the Senate heads toward a showdown over the rules governing judicial confirmations, Senator Bill Frist, the majority leader, has agreed to join a handful of prominent Christian conservatives in a telecast portraying Democrats as "against people of faith" for blocking President Bush's nominees.

Fliers for the telecast, organized by the Family Research Council and scheduled to originate at a Kentucky megachurch the evening of April 24, call the day "Justice Sunday" and depict a young man holding a Bible in one hand and a gavel in the other. The flier does not name participants, but under the heading "the filibuster against people of faith," it reads: "The filibuster was once abused to protect racial bias, and it is now being used against people of faith."

This is sheer demagoguery. The Democrats are filibustering ten judicial nominees not because they are people of faith but because their substantive constitutional positions on a host of issues, most of which have nothing to do with religion, are radical and out of step with the mainstream. There are many people of faith who are Democrats or who agree with the Democrats' positions. It is deeply unfair and unjust to assert that disagreeing with conservative Christians about the best interpretation of the Constitution makes Democrats persecutors of religion. Indeed, this sort of rhetoric merely fans the flames of intolerance and helps make politics in the United States ever more poisonous.

Posted 10:11 PM by JB [link] (20) comments

a great day to celebrate (except for a gratuitously offensive amendment)

Ian Ayres

There is much to celebrate now that the Connecticut House has joined the state sentate in passing a civil union bill. The democratic embrace of full legal rights for same-sex couples is real progress. The insistance on the distinct term (civil union vs. marriage) is still "separate but equal" discrimination -- but being forced to use a "blacks only" water fountain is better than having no water fountain at all.

However, before passing the bill, the House approved two amendments. The first reiterated the state's definition of marriage as being between a man and a woman. Jennifer Brown and I organized 79 law professors to sign a letter arguing that this amendment was unnecessary because it would have no legal effect. Connecticut Attorney General Richard Blumenthal issued an opinion the next day backing us up.

But the House not only passed the unnecessary amendment -- which necessitates now additional consideration by the Senate, they also passed a gratuitously offensive amendment that limits same-sex civil unions to couples that are at least 18 years old.

This amendment smells in the nose. The original bill went to great care to create the same conditions for civil union as for marriage. So since different sex couples are allowed to marry at 16 or 17 with permission of parent or probate judge, the original civil union bill would allow 16 and 17 year old same sex couples to register for civil unions with the same sorts of permission.

It is frustrating that the house passed the offensive age amendment more easily (126-22) than the marriage definition amendment (80-67).

So what's so wrong with the age restriction? It substantively discriminates against same-sex couples. Why is a 17 year old fit to marry some of the different sex, but not fit to enter into a civil union with someone of the same sex? I, by the way, don't have a strong feeling that 17 year olds should have the right to do either. And empirically there are not a lot of 17 year olds marrying in Connecticut. But what saddens me is that because of this single hiccup, Connecticut will not be able to say that it gives same sex couples the same options for legal rights as different sex couples. You only get the same rights if you are old enough.
Posted 9:21 PM by Ian Ayres [link] (53) comments

Cornyn Backtracks

JB

As well he should:

The PRESIDING OFFICER. The Senator from Texas.
Mr. CORNYN. Mr. President, thank you. I appreciate the opportunity for Senator Durbin and me to speak for a few minutes.

The purpose for my rising is to follow up on some remarks I made yesterday, Monday, on the floor of the Senate. The full transcript of those remarks, which has to do with judges and recent decisions of the U.S. Supreme Court is available, of course, in the Congressional Record, but it is also available on my official Web site for anybody who would care to read it.

As a former judge myself for 13 years, who has a number of close personal friends who still serve on the bench today, I am outraged by recent acts of courthouse violence. I certainly hope no one will construe my remarks on Monday otherwise. Considered in context, I don't think a reasonable listener or reader could.

As I said on Monday, there is no possible justification for courthouse violence. Indeed, I met with a Federal judge, a friend of mine in Texas, this past week, to make sure we are doing everything we can to help protect our judges and courthouse personnel from further acts of violence. And like my colleague from Illinois, I personally know judges and their families who have been victims of violence, and have grieved with those families. But I want to make one thing clear. I am not aware of any evidence whatsoever linking recent acts of courthouse violence to the various controversial rulings that have captured the Nation's attention in recent years.

My point was, and is, simply this: We should all be concerned that the judiciary is losing respect that it needs to serve the interests of the American people well. We should all want judges who interpret the law fairly -- not impose their own personal views on the Nation. We should all want to fix our broken judicial confirmation process. And we should all be disturbed by overheated rhetoric about the judiciary from both sides of the aisle. I regret that my remarks have been taken out of context to create a wrong impression about my position, and possibly be construed to contribute to the problem rather than to a solution. Our judiciary must not be politicized. Rhetoric about the judiciary and about judicial nominees must be toned down. Our broken judicial confirmation process must be fixed once and for all.

Thank you, Mr. President.

I yield the floor.

Senator Cornyn is correct-- it is time to stop the overheated rhetoric about the judiciary. He is right that his remarks were part of the problem, not the solution. He is also right that there is something wrong with the confirmation process. The problem, however, lies not in the process itself but in the poisonous atmosphere of our politics today.

Posted 9:14 AM by JB [link] (29) comments

Judicial Intimidation

JB

From the Washington Post:

Sen. John Cornyn said yesterday that recent examples of courthouse violence may be linked to public anger over judges who make politically charged decisions without being held accountable.

In a Senate floor speech in which he sharply criticized a recent Supreme Court ruling on the death penalty, Cornyn (R-Tex.) -- a former Texas Supreme Court justice and member of the Judiciary Committee -- said Americans are growing increasingly frustrated by what he describes as activist jurists.

In fact, as the Post story explains, violence against judges has generally involved highly unstable people who bear personal grudges against particular decisions against them.

It's difficult to see why Cornyn would make so asinine a comment if he had not intended to send the message that federal judges should watch what they do from now on. This cannot be put down to an offhand remark or mere abstract speculation. It was in a speech on the Senate floor made by a seasoned politician. Cornyn knew exactly what he was doing.

Sadly, Republican politicians like Tom Delay and Cornyn now appear to believe that veiled threats against the federal judiciary play well with their political base. Cornyn's remarks are especially disgraceful given the fact that he is a himself a former judge. He above all people should know better than to suggest on the floor of the U.S. Senate that judges have brought on themselves the violent acts of lunatics. He does nothing but encourage such violence in the future.

Posted 12:48 AM by JB [link] (63) comments

Save Peer to Peer

JB

Death in the Afternoon explains how.

Posted 12:17 AM by JB [link] (25) comments

The Global Flow of Information

JB

This weekend I'll be at a conference hosted by my center, Yale's Information Society Project. The conference is on The Global Flow of Information; it's about the role of the new information technologies in globalization and how these technologies shape cultural, political, economic, and military power.

Here is the conference description, and a list of panels and speakers.

Posted 7:14 AM by JB [link] (29) comments