Progressive Political Science: Feminism

Mark Graber

Not being an expert on the subject, I have always wondered whether feminists in political science who write on legal matters speak with a different voice or accent than feminists in the legal academy. Consider Our Lives Before the Law, by Professor Judith Baer of Texas A&M, who (along with Leslie Goldstein) is the most distinguished senior feminist in public law. One virtue of the book, I think, is that Professor Baer recognizes that liberalism, republicanism, and broad isms are not inherently male, that all have variants that are more or less attractive for women (perhaps one place where political scientists speak with a different accent is most of us who write on constitutionalism have taken several graduate courses in political theory). Theories fail in practice, Our Lives Before the Law asserts, because fundamental responsibilities in all societies tend to devolve downwards. Whatever the master theory, liberalism, socialism, feudalism, etc., social life is organized so that such basic duties as providing care for the young, care for the elderly, and cooking and cleaning are poorly compensated and assigned to the least powerful segments of society. No matter what the general organizing principle of a regime, men are always better placed to take advantage of opportunities and better positioned to foist certain undesired responsibilities off on women. The solution to this problem, Professor Baer astutely observes, is neither to celebrate female capacity for caring or assert in the abstract that women are the same as men, but simply to empower those who engage in those tasks that are necessary for society to survive. Just as the early abolitionists observed that we cannot determine much about the capacity of persons of color until they have equal opportunities for education and jobs, so Baer correctly notes that we cannot determine the capacities of women until society equally values soldiering and childbirth, both risky activities, or lawyering and childraising. Rather than focus on women per se, Professor Baer wishes us to focus on certain activities necessary for societies to survive. This is valuable for feminists and non-feminists alike, an important insight for political theorists of all persuasions.
Maybe 37 feminists in the legal academy are saying the same thing, but not from my limited reading. The theory and empirical analysis struck me as sharper, possibly because, like other political scientists, Baer's work is peer reviewed. Still, readers of this blog looking for alternative legal feminists might try Our Lives Before the Law, then post comments on the virtues or vices of the piece compared to the standard feminist law review essay.
I thought about Our Lives Before the Law last night when I accidentally stumbled into the national meeting for the American Constitutional Society. It really is a wonderful program, filled with terrific speakers. And, as important for me, it takes place the week after swim season ends (parents of summer swimmers know the significance of that). But, of course, all the speakers are lawyers and law professors. Maybe that is okay. After all, the American Constitutional Society sometimes seems simply an organization of lawyers. My fussing about speaker selection is a bit like my complaint that no Jew was allowed to vote on the pope. Still, I suspect that conversation will not be limited to legal method and doctrine, that a good deal of political science, philosophy, history, sociology, etc., will be central to many presentations. In this vein, might it be reasonable to think that debate on progressive alternatives might be improved by having Professor Baer on the panel devoted to reproductive rights (and/or Professor Frymer--who has a law degree--on the panel devoted to unions). Maybe next year?
Posted 10:27 AM by Mark Graber [link] (66) comments

Our President: Stupid or Evil?

JB

President Bush to reporters yesterday:

Q Mr. President, many in Europe are worrying that with the fight against terrorism the commitment of the United States to human rights is not as big as it used to be -- that is not only to do with Guantanamo, but also with the secret prisons where the CIA holds terror suspects. My question is, what will happen to these people who are held in these secret prisons by the CIA? Will they ever see a judge? Or is your thinking that with some terror suspects, the rule of law should not apply or does not have to have applied.

PRESIDENT BUSH: First of all, I appreciate that question, and I understand we -- those of us who espouse freedom have an obligation, and those who espouse human rights have an obligation to live that to those -- live up to those words. And I believe we are, in Guantanamo. I mean, after all, there's 24 hour inspections by the International Red Cross. You're welcome to go down yourself -- maybe you have -- and taking a look at the conditions. I urge members of our press corps to go down to Guantanamo and see how they're treated and to see -- and to see -- and to look at the facts. That's all I ask people to do. There have been, I think, about 800 or so that have been detained there. These are people picked up off the battlefield in Afghanistan. They weren't wearing uniforms, they weren't state sponsored, but they were there to kill.

And so the fundamental question facing our government was, what do you do with these people? And so we said that they don't apply under the Geneva Convention, but they'll be treated in accord with the Geneva Convention.

And so I would urge you to go down and take a look at Guantanamo. About 200 or so have been released back to their countries. There needs to be a way forward on the other 500 that are there. We're now waiting for a federal court to decide whether or not they can be tried in a military court, where they'll have rights, of course, or in the civilian courts. We're just waiting for our judicial process to move -- to move the process along.

Make no mistake, however, that many of those folks being detained -- in humane conditions, I might add -- are dangerous people. Some have been released to their previous countries, and they got out and they went on to the battlefield again. And I have an obligation, as do all of us who are holding office, to protect our people. That's a solemn obligation we all have. And I believe we're meeting that obligation in a humane way.

As well, as we've got some in custody -- Khalid Shaykh Muhammad is a classic example, the mastermind of the September the 11th attack that killed over 3,000 of our citizens. And he is being detained because we think he could possibly give us information that might not only protect us, but protect citizens in Europe. And at some point in time, he'll be dealt with, but right now, we think it's best that he be -- he be kept in custody.

We want to learn as much as we can in this new kind of war about the intention, and about the methods, and about how these people operate. And they're dangerous, and they're still around, and they'll kill in a moment's notice.

In the long run, the best way to protect ourselves is to spread freedom and human rights and democracy. And -- but if you've got questions about Guantanamo, I seriously suggest you go down there and take a look. And -- seriously, take an objective look as to how these folks are treated, and what has happened to them in the past, and when the courts make the decision they make, we'll act accordingly.

As a matter of fact, reporters-- and many others too-- have taken a look at what has been going on at Guantanamo, aided by information from the FBI. Here, for example, is Anthony Lewis in today's New York Times. (Lewis, by the way, recapitulates many of the legal points made by our own Marty Lederman on this blog):

Agents of the Federal Bureau of Investigation observed what went on in Guantanamo. One reported on July 29, 2004: "On a couple of occasions, I entered interview rooms to find a detainee chained hand and foot in a fetal position to the floor, with no chair, food or water. Most times they had urinated or defecated on themselves and had been left there for 18, 24 hours or more."

Time magazine published an extended article last week on an official log of interrogations of one Guant?namo detainee over 50 days from November 2002 to January 2003. The detainee was Mohamed al-Kahtani, a Saudi who is suspected of being the planned 20th hijacker on Sept. 11, 2001, but who was unable to enter the United States.

Mr. Kahtani was interrogated for as long as 20 hours at a stretch, according to the detailed log. At one point he was put on an intravenous drip and given 3 1/2 bags of fluid. When he asked to urinate, guards told him that he must first answer questions. He answered them. The interrogator, not satisfied with the answers, told him to urinate in his pants, which he did. Thirty minutes later, the log noted, Mr. Kahtani was "beginning to understand the futility of his situation."

F.B.I. agents, reporting earlier on the treatment of Mr. Kahtani, said a dog was used "in an aggressive manner to intimidate" him. At one point, according to the log, Mr. Kahtani's interrogator told him that he needed to learn, like a dog, to show respect: "Began teaching detainee lessons such as stay, come and bark to elevate his social status to that of a dog. Detainee became very agitated."

At a minimum, the treatment of Mr. Kahtani was an exercise in degradation and humiliation. Such treatment is forbidden by three sources of law that the United States respected for decades - until the administration of George W. Bush.

The Geneva Conventions, which protect people captured in conflict, prohibit "outrages upon personal dignity, in particular, humiliating and degrading treatment." The scope of that clause's legal obligation has been debated, but previous American governments abided by it. President Bush decided that the Geneva Conventions did not apply to the suspected Al Qaeda and Taliban members who are detained at Guant?namo.

The United Nations Convention Against Torture, also ratified by the United States, requires signatories to "prevent in any territory under its jurisdiction ... cruel, inhuman or degrading treatment." The Bush administration declared that this provision did not apply to the treatment of non-Americans held outside the United States.

Finally, there is the Uniform Code of Military Justice. It makes cruelty, oppression or "maltreatment" of prisoners a crime. Armed services lawyers worried that some methods of interrogation might violate the Uniform Code and federal criminal statutes, exposing interrogators to prosecution. A Pentagon memorandum obtained by ABC News said a meeting of top military lawyers on March 8, 2003, concluded that "we need a presidential letter" approving controversial methods, to give interrogators immunity.

The idea that a president can legalize the unlawful evidently came from a series of memorandums written by Justice Department officials. They argued, among other things, that President Bush's authority as commander in chief to set interrogation methods could trump treaties and federal law.

Although President Bush decided to deny detainees at Guant?namo the protection of the Geneva Conventions, he did order that they must be treated "humanely." The Pentagon, responding to the Time magazine article on the treatment of Mr. Kahtani, said, "The Department of Defense remains committed to the unequivocal standard of humane treatment for all detainees, and Kahtani's interrogation plan was guided by that strict standard."

In the view of the administration, then, it is "humane" to give a detainee 3 1/2 bags of I.V. fluid and then make him urinate on himself, force him to bark like a dog, or chain him to the floor for 18 hours.

No one can seriously doubt now that cruelties and indignities have been inflicted on prisoners at Guantánamo. Nor is there any doubt that worse has happened elsewhere - prisoners beaten to death by American soldiers, untold others held in secret locations by the Central Intelligence Agency, others rendered to be tortured by governments such as Uzbekistan's.

And yet the President keeps insisting that we are treating our prisoners consistent with democracy, human rights, and the rule of law.

Two questions come to mind. First, does the President actually believe what he is saying? If so, then he is being willfully blind to the evidence. The second is whether he indeed does know what is going on but believes that he can continue with the status quo and that the American public and the rest of the world won't pay attention or hold him accountable. If so, then his repeated announcements that nothing wrong is happening at Guantanamo are not only cynical, but deeply immoral.

Which word, then, best describes our President, the leader of the free world, the self-proclaimed champion of democracy, human rights, and the rule of law? Stupid or evil?

Posted 6:24 AM by JB [link] (95) comments

Impeachment Legalisms

Mark Graber

Inspired by Ralph Nader, several progressive websites are now debating whether President Bush should be impeached, a debate slightly less realistic than progressive debates over whether, say, Hilary Clinton would make a better Chief Justice than Bill Clinton. The point that should be emphasized over and over again is that President Bush and too many members of his administration use repeated professions of faith to cover up a basically amoral conception of politics. The administration has repeatedly misled the American people on what it knew about Iraq, before and after the invasion. The administration is engaging in indiscriminate and religious offensive torture, violating both domestic and international law with impunity and arrogance. Whether these practices constitute impeachable offenses is irrelevant in the present political climate. The greater challenge is convincing Americans that we have an amoral administration that unless it is replaced as soon as possible will do irreparable damage to America's reputation abroad, the only lasting weapon the United States can wield in the war against terrorism.
Posted 1:31 PM by Mark Graber [link] (71) comments

Political Science and the Progressive Constitution I: Race and Labor

Mark Graber

Recently, progressives have been making significant efforts to elaborate an alternative constitutional vision to those being elaborated by the Bush Administration, the Rehnquist Court and the constitution-in-exile movement. For the most part, this effort has been limited to elite law professors, legal activists, and a few political activists. If, however, as progressives have come to understand, constitutionalism outside of courts is as vital to political movements as the elaboration of legal doctrine then we might want to expand the ranks of progressive intellectuals thinking about how to create a more just regime. What I thought I would do in the next few weeks is highlight the work of some political scientists who I think ought to play more active roles helping elaborate the progressive constitution and, as important, the sort of politics necessary to bring forth that constitution.

Consider the important work Paul Frymer of U.C. Santa Cruz is doing on the relationship between persons of color and labor unions. In a forthcoming book and an award winning article, "Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935-1985," published in the August 2003 issue of the American Political Science Review. Frymer details some of the constitutional struggles between two key components of the Great Society coalition. The good news is that he finds, contrary to the work of Gerry Rosenberg, that courts were able play a significant role integrating unions. Litigation was not a "hollow hope" in this endeavor. The bad news is that the litigation substantially weakened labor unions and may have increased Republican support among workers.

One potential teaching is that important differences may exist between progressive elites and potentially progressive constituencies. Most progressive intellectuals buy pretty much the full progressive agenda. We are anti-death penalty, for gay marriage, believe in affirmative action, favor strong unions, want substantial economic redistribution, etc. As Frymer points out, however, different progressive constituencies have only partially progressive agendas. White workers may be for strong unions, but are not as enthusiastic about integration, much less affirmative action. Hence, a crucial issue is not simply laying out elite ideals ,but figuring out the necessary compromises to ensure a more progressive constitution. Getting better judges is not likely to solve this problem, because what is crucial is that accommodations be worked out between progressive constituencies, not simply that we figure out who has the more progressive position.

At any rate, Frymer's work clearly should be central to elaborating progressive constitutional visions and politics. Crucial to Republican success has been an uncomfortable modus vivendi between social conservatives and libertarians (as well as big business). Creating similar accommodations will be crucial to any future leftist political success.
Posted 10:58 AM by Mark Graber [link] (64) comments

Guest Blogger-- Brian Tamanaha

JB

I'm please to announce that Brian Tamanaha, the author of several books on law and society and jurisprudence, will be guest blogging on Balkinization. Please give him a warm welcome.

Posted 6:55 PM by JB [link] (71) comments

US Chamber of Commerce Vindicates Vulgar Marxism

Brian Tamanaha

At a time when Marxism has appeared all but dead in the United States, its flag carried mainly by ignored holdouts in university social science departments, it is ironic that compelling support for Marxist thought is now being provided by the United States Chamber of Commerce (USCC). This is no half-hearted Marxist stuff but “vulgar Marxism” in its most unabashed form: the USCC has engaged in a systematic and comprehensive effort to seize control of the various instruments of the legal apparatus to wield the law on behalf of corporate interests.

According to Chamber President Tom Donohue, in the 2004 election “the Chamber put 215 people on the ground in 31 states; sent 3.7 million pieces of mail and more than 30 million e-mails; made 5.6 million phone calls.” After the election, in a memo to the Chamber’s Board of Directors, Donohue drooled over the anticipated fruits of this effort: “The expanded numbers of pro-business votes in the Senate and the House—along with a team of reasonable regulators and appointees in the executive branch—will mean a more favorable hearing for some of our key priorities, including legal reform, comprehensive energy legislation, permanent tax relief, market-based healthcare, and pension reform, and balanced workplace, environmental and corporate governance rules.”

By a wide margin, the Chamber leads all other single organizations in lobbying expenditures, spending $53 million in 2004 and almost $40 million in 2003 to promote these positions.

The Chamber also engaged in a “targeted campaign” in 16 State Supreme Court electoral contests in 2004 to secure the election of pro-business judges. Stanton D. Anderson, the Chamber’s Chief Legal Officer, claimed after the election that the Chamber “won every race in which we were involved.” Anderson proudly held up this successful effort to seat friendly judges as “an example of what the business community can do.” The Chamber has put an estimated $50 million into state judicial elections since 1998.

The Chamber has its own in-house litigation firm, the National Chamber Litigation Group, which actively brings suits and intervenes in ongoing litigation to defend business interests. Among other cases, the Chamber recently sued the Securities and Exchange Commission to invalidate a new rule which requires that three fourths of the board of directors of mutual funds be independent.

The Chamber of Commerce has thus implemented a well-funded and well-executed effort to seat favorable legislators, to secure the laws and regulations they desire, to have friendly executive branch and administrative agency officials carry out these laws and regulations, to aggressively participate in litigation to advance their agenda, and to insure that presiding judges are receptive to their positions.

This is just one organization. Add the activities of individual corporations and the various industries the Chamber represents, combined with the activities of other similar organizations (including another heavyweight, PhRMA, the pharmaceutical trade association), and the vast scope of this impressive effort will come vaguely into view. And there are many indications that this effort to seize control of the law and use it as an instrument to further corporate interests is proving successful.

So inured to this have we become that mention of it is regularly greeted by the Left, after a flash of outrage, with a shrug of resignation. Perhaps the only consolation is for the few die hard vulgar Marxists (if there are any left) who get to say that they were correct after all in claiming that law is a raw instrument of elite economic domination. A fascinating characteristic of this effort is that it is carried on openly, brazenly, with no pretense about the supposed neutrality of law, and little bother with hiding behind an ideological cover. When pressed for a justification, the stock line is offered (albeit dressed up a bit) that what’s good for Corporate America is in the public interest. But most often no justification in terms of the common good is asked for or given. Today the law is seen as an instrument by the Right and the Left, and whoever is able to control it gets to use it.

My thanks to Jack Balkin for inviting me to participate as a guest blogger.
Posted 1:19 PM by Brian Tamanaha [link] (108) comments

Race and the Constitution-in-Exile

Mark Graber

Yesterday's Miller-El opinions raise interesting and overlooked questions about the directions of a future Bush/DeLay/Frist Court. Justice David Souter, no flaming liberal by any liberal standard, in an opinion joined by Justices O'Connor and Kennedy (neither, particularly the latter, inclined to play race cards), found that Dallas prosecutors had engaged in unconstitutional race discrimination when they used peremptory challenges to get rid of 10 of 11 black jurors, when they asked different questions of those black jurors, when they excused black jurors who gave more death penalty friendly answers than white jurors, and when there was a long history of discrimination in the Dallas prosecutor's office. Justices Thomas, Scalia, and Rehnquist, however, insisted that such evidence was not sufficiently clear and convincing, demanding almost that the prosecutor announce that racial criteria were being used.

The broader significance of Miller-El is that a great many constitutional cases are more about weighing of evidence than general standards. What Miller-El demonstrates is that the Justices George Bush and company admire the most are unwilling to see race discrimination (against persons of color) even when moderate conservatives are grossly offending by the state action. Under what conditions, one might ask, would a Bush Court ever find race discrimination when a prosecutor or state official gave a race-neutral explanation. Brown and related decisions need not be overruled when a court simply credits any excuse states make for flagrant racial disparities
Posted 11:11 AM by Mark Graber [link] (15) comments

GTMO: Where Was the Law? Whither the UCMJ?

Marty Lederman

One of the more interesting, and disheartening, things about the interrogation of Mohammed al-Qahtani at Guantanamo in 2002-2003 -- the official log of which is examined in detail in this week's Time Magazine -- is that the military appears to have been fully aware that the techniques it was employing were unlawful. The Pentagon's efforts to provide legal justification for its activities are quite revealing.

As I've previously explained, there are numerous legal norms that could potentially have applied to the interrogation techniques employed at GTMO. The four most important potential constraints were:

(i) the Geneva Conventions;

(ii) Article 16 of the Convention Against Torture, which requires the U.S. to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity";

(iii) the President's February 7, 2002 directive that the Armed Forces must treat al Qaeda and Taliban detainees "humanely";

and (iv) the Uniform Code of Military Justice (UCMJ).

The first obstacle was largely overcome when the President decreed that suspected al Qaeda and Taliban detainees are not POWs and are not entitled to any of the protections of the Geneva Conventions. In my view, the most important component of this determination was one that was made quietly, largely outside public purview: The Administration determined that Common Article 3 of the Geneva Conventions, which prohibits "violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment," does not apply by its terms to our conflicts with al Qaeda and the Taliban; and, more importantly, it appears that the Administration also determined that it would not uniformly apply the standards of Common Article 3 as a matter of policy, thereby deviating from more than a half-century of U.S. practice.

The Article 16 problem was circumvented when the Administration decided that Article 16 does not apply to the treatment of aliens overseas, including at Guantanamo. (This conclusion is hotly contested, and may well be mistaken -- but it is the view of the Executive branch.)

I explained yesterday that the President's "treat[] humanely" directive is hardly an obstacle at all, because the Pentagon is of the view that "humane" treatment includes, for example, giving a detainee three and a half bags of IV fluid and then refusing to grant him permission to urinate; using dogs "in an aggressive manner to intimidate the detainee"; and forcing a detainee to stand nude, bark like a dog and growl at pictures of terrorists.

That brings us, finally, to the Uniform Code of Military Justice -- which is the most difficult-to-crack part of the legal puzzle. The UCMJ is a federal statute that prohibits U.S. armed forces from, among other things, engaging in cruelty, oppression or maltreatment of prisoners (art. 93), assaulting prisoners (art. 128) (a prohibition that includes a demonstration of violence that results in reasonable apprehension of immediate bodily harm), and communicating a threat to wrongfully injure a detainee (art. 134). The UCMJ plainly prohibits many of the techniques the military used against al-Qahtani -- and (as explained below) the Pentagon acknowledged as much -- but the military did not let the UCMJ stand in the way. Why? What was the legal theory according to which the Pentagon could blithely ignore binding U.S. law?

Frustrated that detainees at GTMO, especially al-Qahtani, "have tenaciously resisted our current interrogation methods," on October 25, 2002 General James Hill forwarded to the Pentagon, for its review, proposed "counter-resistance techniques." Although General Hill was "uncertain whether all the techniques . . . are legal under US law," he expressed his "desire to have as many options as possible at my disposal and therefore request that Department of Defense and Department of Justice lawyers review" some of the techniques.

The proposed techniques included many that were eventually used on al-Qahtani, including forced nudity, forced grooming, "[u]sing detainees['] individual phobias (such as fear of dogs) to induce stress," 20-hour interrogations, stress positions, and the use of mild physical contact such as grabbing, poking and light pushing. The proposed techniques also included waterboarding (the use of a wet towel and dripping water to induce the misperception of suffocation), and "scenarios designed to convince the detainee that death or severely painful consequences are imminent for him and/or his family."

In an extensive legal memorandum appended to Major Hill's request, Staff Judge Advocate Diane Beaver acknowledged the problem posed by the UCMJ. She writes:

"U.S. military personnel are subject to the Uniform Code of Military Justice. The punitive articles that could potentially be violated depending on the circumstances and results of an interrogation are: Article 93 (cruelty and maltreatment), Article
118 (murder), Article 119 (manslaughter), Article 124 (maiming), Article 128 (assault), Article 134 (communicating a threat, and negligent homicide), and the inchoate offenses of attempt (Article 80), conspiracy (Article 81), accessory after the fact (Article 78), and solicitation (Article 82). Article 128 is the article most likely to be violated because a simple assault can be consummated by an unlawful demonstration of violence which creates in the mind of another a reasonable apprehension of receiving immediate bodily harm, and a specific intent to actually inflict bodily harm is not required."

Beaver then notes, almost in passing, that physical contact with a detainee "will technically constitute an assault under Article 128, UCMJ." In an earlier paragraph, Beaver is still more candid in acknowledging that physical contact, as well as the "water cure" version of waterboarding, "would constitute a per se violation of Article 128 (Assault)," and that threats of death "may also constitute a violation of Article 128, or also Article 134 (communicating a threat)."

Well, then, if some of the proposed techniques are acknowledged to be "per se" federal crimes, how is it that Beaver can then recommend their use and (in a cover memo) conclude that they "do not violate applicable federal law"? Here's the only clue: She writes that because of the "per se" prohibitions of the UCMJ, "[i]t would be advisable to have permission or immunity in advance from the convening authority, for military members utilizing these methods." No explanation here of the legal theory pursuant to which such ex ante "permission or immunity" to violate the law could be conferred.

As Beaver's memo went up the chain of command, it appears that virtually everyone (with the possible exception of General Hill, who expressed some legal trepidation) agreed with Beaver's conclusion that the UCMJ somehow would be no obstacle -- perhaps because they assumed that interrogators would be provided some sort of "permission or immunity in advance from the convening authority." Major General Michael Dunleavy concluded "that these techniques do not violate U.S. or international laws." Similarly, DoD General Counsel Haynes, following discussions with Deputy Secretary Wolfowitz, Doug Feith and General Myers, informed Secretary Rumsfeld that all of the proposed techniques "may be legally available." (Haynes also advised that, for policy reasons, "a blanket approval" of waterboarding and threats of death "is not warranted at this time.")

These legal understandings of the UCMJ continued into the spring of 2003, as the DoD was producing its comprehensive Working Group Report. That report, however, is much more revealing about the possible legal basis for giving interrogators "permission or immunity" in advance to violate federal law. The final report, promulgated on April 4, 2003, acknowledges that assault and maltreatment are offenses under the UCMJ, but adds that "[d]efenses relating to Commander-in-Chief authority, necessity and self-defense or defense of others may be available to individuals whose actions would otherwise constitute these crimes, and the extent of availability of those defenses will be fact-specific. . . . Where the Commander-in-Chief authority is being relied upon, a Presidential written directive would serve to memorialize this authority." [UPDATE: And ABC News reports (based on notes of a DoD official) that in a meeting held March 8, 2003, a group of top Pentagon lawyers concluded that "we need a presidential letter approving the use of the controversial interrogation to cover those who may be called upon to use them."

This is, I think, the key to the puzzle. The Pentagon understood that federal statutory law -- the UCMJ -- stood in the way of what it wished to do, and rendered unlawful what it already had done in the case of al-Qahtani. It had in its back pocket, however, the legal immunity conferred by the Department of Justice's authoritative legal opinion that the President has the absolute authority, pursuant to his Commander-in-Chief power, to determine "what methods to use to best prevail against the enemy," notwithstanding any statutory restrictions that Congress may have imposed.

Is there such a presidential order approving the use of certain otherwise unlawful techniques? Well, at least one FBI e-mail suggests that there is. I'm a bit skeptical -- I have a hard time believing that Alberto Gonzales and the White House Counsel's Office would have created a paper trail that includes specific authorization of unlawful activity signed by the President (although stranger things have happened). (The ABC News report states that "[n]o such letter was issued." But it doesn't provide any basis for this conclusion.) But I do suspect that there is at least one document out there purporting to "immunize" interrogators from culpability for such activity:

Not surprisingly, there were those within the Pentagon (JAG lawyers, in particular) who were skeptical of the legal justifications for the approved techniques. But, as Senator Levin noted in a March hearing, the Church Report on interrogation at GTMO (a report that remains classified) notes that the DoD working group "was stopped from developing its own legal analysis and instead, was required to accept the legal analysis contained in a memorandum from the Justice Department's Office of Legal Counsel, a memorandum [with] which the working group strongly disagreed. According to [the Church] report, that memo, entitled 'Military Interrogation of Alien Unlawful Combatants,' was prepared by Deputy Assistant Attorney General John Yoo for Department of Defense General Counsel Haynes, and . . . had a date of March 14, 2003. This memo was presented, as [the Church] report indicates, to the working group as 'controlling authority' on all legal issues. . . . You [Admiral Church] also noted that conclusions of that memo are nearly identical to those of the August 1, 2002 Office of Legal Counsel memo which is known as the Torture Memo."

When, if ever, will we see the March 2003 OLC Opinion to the Pentagon, without which we cannot fully understand the legal basis for the interrogation techniques approved and implemented by the Department of Defense? Don't hold your breath.
Posted 8:25 AM by Marty Lederman [link] (157) comments

Defining "Humanely" Down, Part II

Marty Lederman

On February 7, 2002, the President issued a directive requiring the Armed Forces to treat al Qaeda and Taliban detainees "humanely." In several previous posts here (including this one and the posts linked therein), I've noted that this directive does not apply to the CIA, and that therefore the CIA almost certainly has been authorized to engage in conduct against detainees that is not, on anyone's view, "humane."

But that still does not explain what we know about the Pentagon's interrogation techniques. In particular, I've previously questioned how it could be that Secretary Rumsfeld, General Counsel Haynes, and other high-ranking DoD officials could have determined -- as they did -- that interrogation techniques such as waterboarding, forced nudity, threatening the death of family members, use of dogs to induce stress, etc., could possibly be lawful in light of various legal constraints that in theory apply to the military, including most importantly the Uniform Code of Military Justice and the President's February 2002 "treated humanely" directive.

In an earlier post, I noted Judge (now AG) Gonzales's written testimony (see the answer to Question 15) that "the term 'humanely' has no precise legal definition," but that, "[a]s a policy matter, I would define humane treatment as a basic level of decent treatment that includes such things as food, shelter, clothing and medical care. I understand that the United States is providing this level of treatment for all detainees." As I understood this testimony, Judge Gonzales was suggesting that by requiring the Armed Forces to provide "humane" treatment at a minimum, the President merely meant that detainees must be afforded "decent treatment that includes such things as food, shelter, clothing and medical care" -- but beyond that, apparently they can be waterboarded, they can be threatened with the death of their loved ones, dogs can be used to prey on their fears -- and even the clothing that is otherwise part of the basic "decent treatment" can be stripped from them for certain periods -- all without implicating the presidential directive.

Today we learn much more about what the Department of Defense means when it boasts of its commitment to "humane" treatment of detainees at Guantanamo.

This week's Time Magazine contains a detailed report on the official, classified Pentagon log from the interrogation of GTMO detainee Mohammed al-Qahtani, who the Pentagon suspected of being the twentieth September 11th hijacker.

In response to the Time report, the Pentagon yesterday issued a press release. That release is very revealing in several respects. For instance, the principal justification the Pentagon now offers for its coercive interrogation of al-Qahtani is that it "enabled the Department of Defense to gain a clear picture of Kahtani's strong connection to al-Qaida leadership to include Osama Bin Laden." In other words, the most important information that was squeezed out of al-Qahtani appears to have been that he was, in fact, who we thought he was when we detained him. That is to say, the interrogation proved that the detention (and the ensuing interrogation itself) was justified. Buried further down in the press release are suggestions that even more valuable information was obtained, but virtually all of it involves past conduct. The press release asserts that al-Qahtani "was believed to possess information essential to preventing future terrorist attacks." Did the weeks of interrogation provide any such "essential" information? Not by the looks of it. (DoD asserts that the detainee "[p]rovided infiltration routes and methods used by al-Qaida to cross borders undetected." That would appear from the face of it to be fairly valuable information. But it's still a far cry from information "essential to preventing" future planned attacks. Moreover, it's curious that the press release doesn't really make much of this assertion -- is there less there than meets the eye?)

But be that as it may, I'm willing to assume, at least for present purposes, that the al-Qahtani interrogation did produce some valuable information. My principal interest is the Pentagon's explanation of why this interrogation was lawful.

"The Department of Defense remains committed," claims the press release, "to the unequivocal standard of humane treatment for all detainees, and Kahtani's interrogation plan was guided by that strict standard."

And of what does this "unequivocal" humane-treatment standard consist? According to the Time magazine account, the Pentagon log reveals that:

-- al-Qahtani was subjected to 20 hours of interrogation at a stretch;

-- He was given three-and-a-half bags of IV fluid and then refused permission to urinate, until he wet his pants -- and the log reports that 30 minutes later "[h]e is beginning to understand the futility of his situation."

-- His interrogators prohibited al-Qahtani from praying during Ramadan unless he disregarded his religious obligation not to drink water.

-- In a game called "Drink Water or Wear It," the interrogators poured bottles of water on al-Qahtani's head when he refused to drink.

-- His head and beard were shaved.

-- He was subjected to a drill euphemistically known as "Invasion of Space by a Female."

-- Dogs were brought into the interrogation room, and, according to FBI reports, were used "in an aggressive manner to intimidate the detainee."

-- al-Qahtani was made to stand nude, bark like a dog and growl at pictures of terrorists.

-- His interrogators hung pictures of scantily clad women around his neck.

-- According to an FBI agent's report, al-Qahtani was "subjected to indecent isolation for over three months," until he evidenced behavior "consistent with extreme psychological trauma (talking to non-existent people, reporting hearing voices, crouching in a cell covered with a sheet for hours on end)."

* * * *

No doubt there are those who will argue that these techniques were appropriate in light of who we suspected the detainee was, notwithstanding the apparent lack of any concrete or specific reason to think that the detainee would be able to provide information to thwart future attacks. And I'm willing to indulge the assumption here that perhaps a compelling argument can be made that such techniques ought to be available in such circumstances -- perhaps even that Congress could be persuaded to authorize such techniques.

But be that as it may, no such authorization has yet been provided. And I think one thing about this account should be fairly noncontroversial, and uncontroverted -- namely, that the techniques to which al-Qahtani was subjected were a far cry from "humane" treatment, under any colloquial, or even any idiosyncratic, sense of that term. If this is what the Pentagon understands the President's directive to allow, then that "humane treatment" requirement is worthless, a sham.

Moreover, and wholly apart from the President's February 2002 directive, there remains no explanation of how conduct such as that described in the Pentagon's al-Qahtani log could possibly comply with the UCMJ, a statute that happens to be the supreme law of the land. It is becoming increasingly evident that the Pentagon for some reason felt free simply to ignore the UCMJ. Perhaps the explanation lies in the view of the Department of Justice that the President has the absolute power, pursuant to his Commander-in-Chief power, to determine Â?what methods to use to best prevail against the enemy,Â? notwithstanding any statutory restrictions on interrogation techniques. (I'll try to say more about the UCMJ in a future post.)
Posted 7:27 PM by Marty Lederman [link] (105) comments

Sunday Times: British Cabinet Told in July 2002 To Come Up With Way To Make War Legal

JB

In a follow up to its story on the Downing Street Memo, The London Sunday Times reports that British cabinet officials were told in July 2002 in a secret Cabinet Office Briefing paper that the U.S. and Britain were planning on going to war and to come up with a way to make the invasion of Iraq "legal." This contradicts the assertions by President Bush and Prime Minister Tony Blair that the two went to the U.N. in the fall of 2002 not as an excuse to justify war but rather to prevent war, and that the use of force was a policy of last resort.

MINISTERS were warned in July 2002 that Britain was committed to taking part in an American-led invasion of Iraq and they had no choice but to find a way of making it legal.

The warning, in a leaked Cabinet Office briefing paper, said Tony Blair had already agreed to back military action to get rid of Saddam Hussein at a summit at the Texas ranch of President George W Bush three months earlier.

The briefing paper, for participants at a meeting of Blair’s inner circle on July 23, 2002, said that since regime change was illegal it was “necessary to create the conditions” which would make it legal.

This was required because, even if ministers decided Britain should not take part in an invasion, the American military would be using British bases. This would automatically make Britain complicit in any illegal US action.

“US plans assume, as a minimum, the use of British bases in Cyprus and Diego Garcia,” the briefing paper warned. This meant that issues of legality “would arise virtually whatever option ministers choose with regard to UK participation”.

The paper was circulated to those present at the meeting, among whom were Blair, Geoff Hoon, then defence secretary, Jack Straw, the foreign secretary, and Sir Richard Dearlove, then chief of MI6. The full minutes of the meeting were published last month in The Sunday Times.

The document said the only way the allies could justify military action was to place Saddam Hussein in a position where he ignored or rejected a United Nations ultimatum ordering him to co-operate with the weapons inspectors. But it warned this would be difficult.

“It is just possible that an ultimatum could be cast in terms which Saddam would reject,” the document says. But if he accepted it and did not attack the allies, they would be “most unlikely” to obtain the legal justification they needed.

The suggestions that the allies use the UN to justify war contradicts claims by Blair and Bush, repeated during their Washington summit last week, that they turned to the UN in order to avoid having to go to war. The attack on Iraq finally began in March 2003.

The briefing paper is certain to add to the pressure, particularly on the American president, because of the damaging revelation that Bush and Blair agreed on regime change in April 2002 and then looked for a way to justify it.

There has been a growing storm of protest in America, created by last month’s publication of the minutes in The Sunday Times. A host of citizens, including many internet bloggers, have demanded to know why the Downing Street memo (often shortened to “the DSM” on websites) has been largely ignored by the US mainstream media.

The White House has declined to respond to a letter from 89 Democratic congressmen asking if it was true — as Dearlove told the July meeting — that “the intelligence and facts were being fixed around the policy” in Washington.

The Downing Street memo burst into the mainstream American media only last week after it was raised at a joint Bush-Blair press conference, forcing the prime minister to insist that “the facts were not fixed in any shape or form at all”.

Together with the Downing Street Memo, this story is important not simply because of the notion (in the Downing Street Memo's words) that intelligence and facts were "fixed" around the policy of going to war. Rather, it is important because it indicates that President Bush was determined to go to war by July 2002 (and probably in April 2002 according to the latest memo) even though he repeatedly insisted that he had not made up his mind and that he would weigh all options. Indeed, the stated reason for consulting with allies and going to the United Nations was to find a way to avoid war. War was "the last option." The Downing Street Minutes and the Cabinet Report show that this was all a ruse; the President was determined to go to war and he was using his consultations with allies to pressure them to go along; similarly, he went to the U.N. not to stop war but as a way to engineer an excuse for going to war.

The question worth considering is whether this sort of lie about the government's intentions-- for there really is no other word to describe it-- is one we should allow a President to make in the conduct of war and foreign policy. Should a President who is determined to go to war in any event be permitted, or perhaps even expected, to deny his committment to war in public until the moment he feels it politically appropriate to announce it, many months after Congress had given him authorization to act if war became necessary?

Here is another way to look at it. We live in democracy, and the choice to go to war is one of the most important that our elected representatives make. If in seeking authorization for the use of military force the President lies to Congress about his intentions to go to war, does this matter? If the President had said to Congress in the fall of 2002: "I am determined to go to war and I want your authorization" would the debate over authorization of the use of military force have been different? Would public sentiment have been different? Did some Congressmen and Senators vote to give the President authorization to use military force believing that Bush was sincere, that he would try to stop war if he could, and that voting for the resolution would strengthen his hand in trying to avert war? Or did all of them think that this was fluff, pretty words not to be taken seriously, and that war was inevitable?

I don't think that these are easy questions at all.

Posted 8:38 AM by JB [link] (4) comments

Government Funding of Religious Discrimination: The Constitutional Questions and the OLC Opinions

Marty Lederman

Government may not, of course, discriminate on the basis of religion when it hires its own employees. So says the First Amendment, the Equal Protection Clause and (with respect to the federal government) Article VI. But what happens to this guarantee of nondiscrimination when the state “devolves” certain social-service functions to the private sector, and then subsidizes such functions by providing direct grants to the private entities performing the services? Can a government provide direct funding to a social-service organization, knowing that the funds will be used to subsidize employment positions that are made available only to persons of a single religious denomination?

A bit of background: A principal goal of the President’s “Faith-Based Initiative” is to ensure that a greater percentage of federal grants is awarded to religious, or faith-based, social-service providers, to enable such providers to perform social services (such as drug counseling, welfare assistance, child care, etc.). The initiative has, of course, been very controversial in several respects. One of the most important unresolved constitutional questions is whether there are certain sorts of religious entities (churches, for instance) to which the state may not make direct financial grants. (Justice O’Connor’s governing concurrence in Mitchell v. Helms cryptically indicated that there are “special dangers associated with direct money grants to religious institutions,” including a concern that is “based on more than just diversion [of the aid to religious activities]”; and she cautioned that “the most important reason for according special treatment to direct money grants is that this form of aid falls precariously close to the original object of the Establishment Clause’s prohibition.” But the courts have not yet resolved the implications of Justice O’Connor’s warnings.)

It is basically settled, however, that the state may provide direct aid to at least some organizations that are “faith-based” in the sense that they are affiliated with a church or motivated by a religious mission. See, e.g., Bowen v. Kendrick. Nevertheless, under governing doctrine—including the views of all nine Justices in Kendrick and Justice O’Connor’s governing opinion in Mitchell v. Helms—such recipients of direct aid may not engage in “specifically religious activities,” such as prayer, religious education and proselytizing, at least within the “program” that is funded by the state.

OK, but even if its state-subsidized functions must be secular, what if such an organization decides to hire only persons of one religion? Certainly the state may prohibit such discrimination as a condition of the entity’s receiving aid. But must it do so? What if a government, such as the Bush Administration, wishes to permit the recipient organization to prefer coreligionists, even in employment positions that are government-funded? (For a very helpful collection of materials discussing the policy and legal questions associated with this issue, see this page of the Roundtable on Religion & Social Welfare Policy site.)

The context for the principal constitutional question is this: Although title VII of the 1964 Civil Rights Act generally prohibits religious discrimination in employment, Congress carved out an exemption for certain religious organizations to permit them to discriminate in favor of coreligionists. Several recent charitable-choice statutes expressly reaffirm the applicability of the title VII exemption, even for recipients of direct government aid, and other charitable-choice laws can be construed not to affect the title VII background rule. Thus, as a matter of federal statute, religious organizations that receive government aid under certain (but not all) charitable choice laws may continue to invoke the title VII exemption to allow them to restrict employment to coreligionists, even where the jobs in question are federally funded. (Such recipients may still be prohibited from such discrimination by state or local law, however.)

This raises the serious and unresolved constitutional question noted at the top of this post: Does the Establishment Clause permit the government to provide grants to a religious organization if such grants will subsidize discriminatory employment practices—particularly where the government requires all other, nonreligious employers to refrain from such discrimination?

The question is receiving a great deal of recent attention. It is one of the primary questions presented in the case of Lown v. Salvation Army (S.D.N.Y.), where the governments’ motion to dismiss is currently pending before a district judge in the Southern District of New York. In a recent series of four columns on FINDLAW—here, here, here, and here—Professors Vik Amar and Alan Brownstein argue that such funding of religious discrimination is unconstitutional. By contrast, at pages 39-49 of this recent monograph, Professor Carl Esbeck and colleagues at the Center for Public Justice argue that the title VII exemption for religious organizations is constitutional as applied to recipients of direct aid. And Professors Chip Lupu and Bob Tuttle, in a forthcoming comprehensive article concerning the Constitution and the faith-based initiative, have tentatively suggested a middle ground—namely, that the permitted discrimination is unconstitutional in some applications, i.e., as to certain employees, depending on how the discriminatory practice will affect actual religious practice and commitments. (The article is a work in progress, and Professors Lupu and Tuttle have cautioned that they are still working through this difficult question.) Earlier academic treatments include an article by Professor Steve Green, 30 Hastings Const. L. Q. 1 (2002), and a Note by Laura Mutterperl, 37 Harv. C.R.-C.L. L. Rev. 389 (2002).

The Bush Administration has consistently asserted that there is no Establishment Clause problem. Its views are expressed in an amicus brief that the Department of Justice recently filed in the Lown case, and in an Opinion of the Office of Legal Counsel promulgated in June 2001, which OLC just posted to the Web last week.

The Clinton Administration’s views were somewhat more complicated and equivocal than those of the Bush Administration. In October 2000, OLC promulgated this 33-page Opinion, which analyzes in depth the constitutional (and related statutory) questions. [Disclosure: I worked on both the 2000 and 2001 OLC Opinions.] The 2000 OLC Opinion was distributed widely outside the Executive Branch—inded, DOJ sent it to members of Congress—and it has often been cited and discussed in legislative testimony and academic articles. Assistant Attorney General Moss slated it for publication on the OLC website and in the bound volumes of OLC Opinions. OLC has not, however, posted it to the Office website.

The 2000 OLC Opinion identifies four distinct possible constitutional objections to government funding of an employer that discriminates in favor of coreligionist employees. The Opinion turns aside two of those four constitutional arguments (pp. 17-20), and also explains (pp. 20-22) that when a private entity receives state funding in order to perform social services that the state itself might once have performed, the private entity does not thereby necessarily become a “state actor,” itself subject to constitutional rules against religious discrimination. The opinion also concludes, however (pp. 22-25), that certain government decisions to fund discriminatory organizations might raise serious Establishment Clause questions, depending on the manner in which the government decides which entities to subsidize. Finally, the Opinion explains (pp. 26-30) that although the constitutionality of the title VII religious exemption itself is difficult and unresolved as applied to employers that receive direct government aid, Justice Brennan’s concurrence in Corporation of Presiding Bishop v. Amos provides the basis of an argument that might survive scrutiny under the Court’s “religious accommodation” doctrine (a doctrine that the Court further developed just last week in Cutter v. Wilkinson). (This last argument, about Amos, also forms the heart of the 2001 OLC Opinion.) The 2000 Opinion also examines several difficult, related statutory questions (pp. 6-9, 30-32); background constitutional rules about the funding of religious activities and religious organizations (pp. 12-16); and a question involving the so-called “ministerial exception” to title VII, as applied to direct-aid recipients of social-service grants (pp. 32-33). [Note: As a result of a computer glitch, the 2000 Opinion as originally promulgated (and as linked here) doubled-numbered three footnotes (Nos. 39-41).]

Because this post is already overlong, I won’t go into detail here about the specifics of, and differences between, the two OLC Opinions. Perhaps I’ll have more to say in response to comments, or in further posts. For now, however, I think that folks interested in this constitutional question, or in the workings of the Department of Justice, may wish to read both Opinions—if only for what they demonstrate about how a change in Administrations can affect OLC’s practice and perspective on a particular constitutional issue.
Posted 9:46 AM by Marty Lederman [link] (113) comments

Separate, Unequal How Civil Unions Fall Short Of Marriage

Ian Ayres

Here's an oped of mine from today's Harford Courant explaining why Connecticut's new civil union statute still fails to grant same sex couples all the legal rights that marriage would. It is based on a blog that I posted here a while ago.
Posted 9:45 AM by Ian Ayres [link] (69) comments

Block That Metaphor!

Mark Tushnet

From a concurring opinion in Spector v. Norwegian Cruise Line, dealing, as the respondent's name indicates, with cruise ships: "I would give no wider berth, however, to the 'internal affairs' clear statement rule.... That rule, as I understand it, derives from, and is moored to, the broader guide that statutes 'should not be interpreted...'."

Two reasons to avoid such flourishes: The same paragraph concludes: The statute "should not be hemmed in where there is no potential for international discord." Four paragraphs later, there is this: "the plurality cuts the rule loose from its foundation." I suppose one can be "hemmed in" at a berth, though the phrasing is awkward. But one might have hoped that the author would have tried, "cuts the rule loose from its mooring."
Posted 1:33 PM by Mark Tushnet [link] (83) comments

Closing down Gitmo

JB

Apparently President Bush has not ruled out closing down the Guantanamo Bay detention center, according to Reuters. But the problems at Gitmo and the constellation of U.S. run prison camps will not be solved simply by closing down the prison camp there and transferring the prisoners elsewhere, particularly to other secret detention centers around the globe. Jimmy Carter called for closing these secret camps as well as Gitmo; that point is likely to be lost in the upcoming debate over whether to close the prison at Guantanamo. If all the Administration does is move badly treated prisoners to another secret camp where they will also be abused, it has done nothing but engage in a cynical public relations ploy.

To reform matters in a way that will gain the confidence of the world, the Administration has to hold accountable the mid and upper level people who allowed prisoner abuse at Gitmo and at other camps. And it has to make public the fact that it is making reforms, rather than simply saying repeatedly that the problem is due to a few bad apples.

Posted 7:39 AM by JB [link] (4) comments

All Balkin, All of the Time

Ian Ayres

My affair with www.lessig.org/blog/ is now at an end -- which also means that I do not intend to hog so much of the space here with cross postings. But here's a last "thanks for the fish" post which includes the places and times of five different Straightforward book events (taking place in June in SF, Chi., Phil., New Haven, and Wash., D.C.) in the off chance that you might want to catch Jennifer or me in person.
Posted 6:34 PM by Ian Ayres [link] (69) comments

How to Raise a Gay-Friendly Child

Ian Ayres

Here's a post from Jennifer Gerarda Brown with pragmatic device on how to raise more enlightened children in a world still filled with de jure discrimination. If you listen carefully, you can almost here Fred Small singing.
Posted 6:30 PM by Ian Ayres [link] (76) comments

Want to Support Gay Rights? Take a Vacation

Ian Ayres

Here's a post explaining our Vacation Pledge For Equal Marriage. With a few clicks of your mouse right here you can pledge to marry in the first state that democratically embraces marriage equality. You can learn more about the petition at www.vacationpledge.org
Posted 6:08 PM by Ian Ayres [link] (85) comments

A New Marriage Decision (for Heterosexuals)

Ian Ayres

A little over one year ago, the Massachusetts Supreme Judicial court made history with its 2004 decision in Goodridge, generating a new option for gay couples: marriage. We all know the controversy (and state constitutional amendments) these changes have wrought. Much of the focus has been on same-sex couples and their choices: will they travel to marry? Will they seek to transport their marriages across state lines and impose them on unwilling home states?

Less noted has been the new and difficult choice presented to heterosexual couples: Now that it is possible to marry in a jurisdiction that does not discriminate on the basis of sexual orientation, is it moral for heterosexuals to marry in discriminating states?

Here's my answer.
Posted 8:20 PM by Ian Ayres [link] (34) comments

Bush Criticizes Own Administration, Asks Latin America For Help

JB

From the Washington Post:

President Bush urged the nations of the Western Hemisphere on Monday to work together to prevent governments in the region from backsliding to authoritarian rule.
. . . .
Bush, in his speech, spoke of two competing visions for the hemisphere.

"One offers a vision of hope. It is founded on representative government, integration into the world markets, and a faith in the transformative power of freedom in individual lives," Bush said.

"The other seeks to roll back the democratic progress of the past two decades by playing to fear, pitting neighbor against neighbor and blaming others for their own failures to provide for their people."

He's completely right, you know.

Posted 6:19 PM by JB [link] (26) comments

Court decides Gonzales v. Raich

JB

The Supreme Court upheld Congress' power under the Commerce Clause to regulate small amounts of marijuana used for personal medical purposes. The vote was 6-3, with Justice Stevens writing the majority opinion, Justice Scalia writing an opinion concurring in the judgment, and Justice O'Connor writing a dissent, joined by the Chief Justice and Justice Thomas. Justice Thomas also wrote a separate dissent. The Court reaffirmed Congress's extensive power, recognized in Wickard v. Filburn, to regulate the cumulative effects of intrastate activities like growing marijuana for personal use on interstate commerce.

The case turned on an ingenious argument by the plaintiffs: they defined a class-- medical marijuana for personal use as authorized by state law-- and argued that because this class was analytically distinct and had no significant cumulative effects on interstate commerce it was not within Congress's Commerce power. The majority rejected the argument; the fact that one can imagine such carveouts does not require the Congress must exempt them, nor does the Constitution withdraw these carveouts from the Commerce Power. If purely intrastate activity comes within a more comprehensive general scheme of regulation, Congress may reach it under its Commerce Power. Justice Scalia puts the matter somewhat differently: he points out that Congress has the power under the Necessary and Proper Clause to reach intrastate activity, even if it is not economic in character, if failure to reach this activity would frustrate Congress's goals of facilitating, regulating, or prohibiting a more general class of interstate commerce. Thus, Scalia argues that even if homegrown medical marijuana for personal use is not commerce and is not even economic activity, Congress could reasonably conclude that including it in the general prohibition would facilitate Congress's general policy of regulating controlled substances, and that failing to include homegrown medical marijuana would frustrate Congress's policy objectives. In some ways Scalia's argument is more modest than that of the majority, but in other ways his point gives Congress even greater powers to reach noneconomic activity.

Raich distinguishes Morrison and Lopez on the grounds that the activities regulated in those cases (guns near schools and violence against women) were not part of a more general regulatory scheme that was primarily aimed at economic activity.

The effect of Raich's distinction of Lopez and Morrison is that Congress may not "grandstand" by picking out particular instances of non-economic local conduct and regulating them (a point that, I believe, applies more properly to Lopez than to Morrison). Instead, Congress must aim at and produce comprehensive schemes of regulation of economic activity. This "anti-grandstanding" rule may have interesting effects on the collations necessary to get legislation passed. The broader the scheme, the more likely there will be resistance, so what I am calling the "anti-grandstanding" doctrine puts a modest constraint on regulation.

If Congress does pass a comprehensive scheme, however, the Court will uphold it, even if it reaches intrastate activities, and clever plaintiffs like those in Raich may not come up with carveouts and assert that these are beyond the Commerce Power.

Posted 11:22 AM by JB [link] (31) comments

IP Pop Quiz

Ian Ayres

Name a type of intellectual property that the owner can't practice?

If you own a patent, you can practice your own invention.
If you own copyrighted material, you can certainly publish and sell it.
If you own a trademark, you can certainly put it on your products.

Answer
Posted 10:28 PM by Ian Ayres [link] (1) comments

Gay Like Me

Ian Ayres

When should a heterosexual trying to promote gay rights leave her own orientation ambiguous? My coauthor Jennifer Gerarda Brown provides four guiding questions in this post:

In his 1995 Chicago Law Review article, The Regulation of Social Meaning, Larry Lessig discussed some of the rhetorical devices that can change a society's shared understanding of the meaning conveyed by a given word or action. One of these, Lessig explained, was "ambiguation," which gives "a particular act, the meaning of which is to be regulated, a second meaning as well, one that acts to undermine the negative effects of the first." In Straightforward: How to Mobilize Heterosexual Support for Gay Rights, we argue that when heterosexuals tolerate ambiguity about their own sexual orientation, they use ambiguation to promote equality for LGBT people.

In 1959, a white man named John Howard Griffin took extreme measures to adopt the perspective of African-Americans: he shaved his head, chemically altered the color of his skin, and traveled the South for two months in the guise of an itinerate black man. He recounted his experiences of racial prejudice and hatred in Black Like Me, which became a national bestseller and opened the eyes of many white Americans to the evils of Jim Crow. By literally walking a mile in his brothers' shoes, Griffin was able to gain not only a greater understanding of racism, but a greater sense of solidarity with Black Americans.

Today, heterosexual Americans have similar -- if far less dramatic -- opportunities to adopt the perspective of their brothers and sisters who are gay, lesbian, and bisexual. There is no skin dye, no bodily marker, to allow a heterosexual to follow Griffin's model, but we should consider the potential in words or well-chosen silence to allow straight Americans even momentarily to have "Gay Like Me" experiences.

Ambiguation has long been deployed by gay, lesbian and bisexual people when they are closeted. But coming out can be ambiguating, too, because people who come out are bound to defy the preconceptions of their audience -- by being individuals, not categories. The process of coming out can thus ambiguate -- in the core sense of producing multiple and more varied meanings. If gay peoples' "coming out" is ambiguating, so too might be heterosexual peoples' "going in."

This "going in" for heterosexual people could include a variety of moves: permitting confusion about whether or not they are gay; foregoing opportunities to identify opposite sex partners as spouses; making affirmative statements that align them with gay, lesbian, and bisexual people, and not qualifying those statements with disclosure of their own heterosexuality. And just as Griffin promoted civil rights for African-Americans by even temporarily assuming a black identity, so too heterosexuals can promote gay rights by tolerating greater ambiguity about sexual orientation.

To see how this might work, consider an example from Lessig's Chicago article: the case of Denmark, King Christian, and the Star of David. Legend has it that when the Nazis invaded Denmark and demanded that Danish Jews wear the yellow Star of David on their clothing, King Christian X began to wear a Star of David on his own clothing. Soon all Danes were wearing the Star, confounding Nazi attempts to set the Jews apart from their countrymen. As Lessig explains:

"The Nazis required Jews to wear yellow stars. Wearing a star had then a
particular meaning, in part constructed by disambiguating who were Jews and who
were not, thereby facilitating the expression of racial hatred. Danes who
opposed the racism of the Nazis then began to wear stars themselves. Their
action then ambiguated the meaning of wearing a star. Now wearing a star meant
either that the person was a Jew or that the person was a Dane supporting the
Jews. Their action also tied the Danes to the Jews: now Danes were seen as
supportive of the Jews."

Can we find contemporary analogs to the Star of David, symbols of homosexuality that could be appropriated by non-gay people in liberating directions?

Gay rights advocacy groups have taken advantage of opportunities to use ambiguation. On National Coming Out Day, many people wear buttons or stickers expressing gay-affirmative messages. When, even for a day, people identifying with a broad range of sexual orientations all wear the gay-identified pink triangle, they literally replicate the Danes' legendary appropriation of the Star of David. For that one day, at least, sexual orientation is ambiguated, because it is not clear: does a person wear a triangle to come out (on that day of all days of coming out) or to express support for and solidarity with LGBT people as they come out? And does it matter why we wear the triangle that day?

Or consider our friend (a lesbian we'll call Sarah) in Madison, Wisconsin. Vandals broke a window and burned the rainbow flag Sarah had flown from her front porch. When Sarah talked with her neighbors about the attack on her home, one of her neighbors, who is heterosexual, suggested that all of the houses on the street should put up rainbow flags to show solidarity and support. The flags would say to the vandals, in effect: "Do you want to persecute gay people? Well, you'll have to come after all of us, too." Like the non-Jewish Danes who wore the Star of David, a street full of neighbors flying gay pride flags could protect and support through ambiguation.

Michael is another friend of ours whose sexuality became the stuff of conversations, all because of one simple action he took. In 1996, the Association of American Law Schools began to publish in its annual directory a list of law professors who self-identified as "Gay, Lesbian and Bisexual Community Law Teachers." In 1998, Michael, then a junior professor at a Midwestern law school, first appeared on the list. The reactions were varied. Surprise: "I thought he had a girlfriend." Political: "Maybe Michael placed himself on the list in an act of solidarity." Postmodern: "Michael wants to subvert sexual orientation categories, which are artificial and oppressive." Some of these conversations missed the point; others were helpful as they caused people to focus on the purpose of the list and the criteria for legitimate membership in the group it purported to represent.

We may never know Michael's motivations for joining this list (Michael has not responded to our efforts to discuss the list and his appearance on it -- such conversations would, after all, be disambiguating; we thus obscure his identity and offer this analysis only tentatively, and decidedly not with the intent to judge him negatively). If Michael is indeed gay or bisexual, the story may be much simpler than all the gossip and analysis would suggest. Suppose for a moment, though, that Michael is heterosexual. Suppose that he joined the list not to come out but rather to change the social meaning of the AALS list of "Gay, Lesbian and Bisexual Community Law Teachers." Suppose he joined the list as an act of solidarity (that is, to declare himself a member of the community which includes (but is not limited to) gay, lesbian, and bisexual law professors). Such a move would not only ambiguate the list, it would be a voluntarily self-ambiguating move.

More famously, Richard Gere has frequently refused even to acknowledge or discuss rumors that he is gay, except to say that "denying it would denigrate homosexuals." By refusing to deny rumors of his homosexuality, Gere declines the invitation to place himself outside of a group of people he wants to validate and uphold.But there are risks in ambiguation. It is important to be sensitive to the fact that this strategy will not be appropriate always and everywhere. At times, it might run counter to the goals of LGBT groups and individuals. To avoid these pitfalls, we suggest that allies ask themselves the following four questions:

Am I trivializing sexual orientation? Ambiguation can be viewed negatively if it appears to be "playing" with homosexuality in trivializing ways. Much is at stake, so ambiguate with care.

Do I predict that my audience will think less of me if they perceive me to be gay, lesbian, or bisexual? Ambiguating may be most constructive if the audience is likely to hold a negative view of homosexuality. When heterosexual allies allow such an audience to place them in a disfavored category, they gain an opportunity to challenge some of the assumptions leading to that disfavor. It is also in these settings that they follow most closely in John Howard Griffin's footsteps, as they gain a chance to empathize a bit with gay, lesbian and bisexual people.

If, on the other hand, the audience for the ambiguating act is gay friendly or gay neutral enough that it would make no difference to them, then ambiguation may be merely misappropriation of gay identity. Assume for the sake of argument that Michael, the Midwestern law professor, is heterosexual. Did his act of ambiguation succeed? The AALS list is not a Star of David. It carries no negative connotations -- for the AALS that created it or for the now hundreds of people who appear on the list. Standing in solidarity with an oppressed group of people who are under attack is one thing; joining the group when it is being affirmed is another thing entirely.

Should sexual orientation be irrelevant to the discussion or transaction at issue? Ambiguation creates noise or distortion in the signal of sexual orientation. If people's "true" sexual orientation -- that is, sexual orientation as lived and experienced -- is appropriately part of the conversation or transaction, then "noise" created by ambiguation will be disruptive. If, on the other hand, signals about sexual orientation are being used to disempower or oppress gay, lesbian, or bisexual people, then interfering with those signals might be the moral thing to do.

We've already seen an example of each situation. To the extent Michael's appearance on the AALS list inserts some noise into the signal, it might actually run counter to the goals of the list. In contrast, when Sarah's house in Madison, Wisconsin was vandalized and her gay pride flag burned, flags on every other home might have helped to take sexual orientation out of the calculus of who would be safe, rendering sexual orientation irrelevant.

Can I entertain some internal ambiguity about my own sexual orientation? All of us, straight and gay, have absorbed negative messages about homosexuality. If the process of ambiguating and the rationales for it help us to examine and perhaps resolve some of these negative messages, the process is constructive. Still, these are extremely difficult questions for many people to ask themselves. One key point about ambiguation is that it should be authentic and true. So much harm has been done by the closet and the deception it requires. We should avoid deceptive remedies, even if they have noble goals.

Would Lambda Approve? The LGBT community is less likely to support trivializing or self-aggrandizing attempts at ambiguation and more likely to support ambiguation that reflects genuine introspection or is deployed when sexual orientation should not be relevant to the question at hand. In some ways, our substantive questions reflect the kinds of concerns that community members have often raised. To measure this, you could personify the community in an organization like Lambda and imagine the response your ambiguation would get.

Ambiguation in Action

Finally, if it's OK, then how exactly would an ally go about ambiguating? The following list provides a few suggestions of the sort of thing one could do or say to create an ambiguating effect. Note that while these suggestions falls short of actual misrepresentation, they all raise questions about sexual orientation. And to the extent the speaker allows those questions to go unanswered, others might rethink their assumptions about when and why sexual orientation is relevant.
1. Avoid gender specific terms like "husband" or "father" and instead use terms like "partner" and "parent."
2. Fly a gay pride flag from your home or put one in sticker form on your car.
3. Wear a pink triangle button or other gay-affirmative symbol. Simply wearing a T-shirt that says "I support gay marriage" can send a powerful message and raise questions.
4. When discussing gay people and their perspectives, experiment with phrasing that aligns you with gay and lesbian people without clearly identifying your own sexual orientation. For example, say something like "those of us who are gay might take umbrage at the claim that child rearing does not occur in families headed by same-sex couples." Particularly if the audience for this sentence contains people with anti-gay sentiments, a sentence that potentially aligns you with gay people may be an equality-enhancing move.
5. When a person says something to suggest that he or she has misperceived your sexual orientation, think carefully before jumping to correct. If correcting the misperception will raise that person's estimation of you, it might be better to remain in their disfavored category. The key element in all of these examples is a willingness to occupy a large, uncharted space in which sexual orientation is unassigned, where multiple realities or possibilities are entertained, and where heterosexual people reflect long and hard before they expend any energy to distinguish themselves from gay, lesbian and bisexual people.

Creating critical masses of heterosexual people willing to take these risks could be one of the central challenges of gay rights advocacy in the 21st century.
Posted 12:14 AM by Ian Ayres [link] (51) comments

Book Contest

Ian Ayres

Posted 7:26 AM by Ian Ayres [link] (24) comments

The Three A's - Acknowledge, Apologize, Act

Ian Ayres

Posted 1:38 PM by Ian Ayres [link] (97) comments

Can the State Constitutionaly Regulate Fraudulent Inducement to Associate?

Ian Ayres

Lots of people responded that requiring a private conversation between a discriminatory organization and its potential members would unconstitutionally chill the associational rights.

But this ignores the unavoidable default nature of speech/silence. Our contractual silences always have some default meaning. Right now in New Jersey, if a private organization remains silent about discrimination when speaking to its members, this means they retain the option of discriminating on the basis of sexual orientation. There is no constitutional reason why the New Jersey legislature can't flip this default. They could ordain that private organizations that fail to privately disclose (and obtain acknowledgements about) their policies that are in derogation of general civil rights restrictions will be deemed to accept those restrictions.

Either silence on the topic means that the organization retains the right to discriminate or they don't. Either default burdens associational rights in the sense that it forces orgs that want the opposite treatment to speak. The current (discrim allowed) default burdens the associational rights of groups that don't want to discrim because they are forced to speak to get what they want. So at first cut the Constitution doesn't have a way to prefer one vs. the other. But here are two arguments for switching to the non-discrim default. 1. Most orgs prefer non. discrim default so as an empirical matter we are forcing less speech; and 2. The non-discrim default is consonant with a state law of general application -- so that we are only forcing orgs that want rights in derrogation of general state policy to speak.

There is however a continuing concern that our in camera review mechanism may fail and that the public would learn the names of members. One commentator chillingly asked: "Have you forgotten that the membership records kept by gay organizations during the Weimar era were seized by the Nazis when they came to power, and used to help round up homosexuals?"This is an important concern. And maybe we should back away from even in camera review. Readers of this blog know that information tends to find ways to be set free. So imagine two different ways to induce the private conversation between the boy scouts and its potential members:1. If sued an organization would have a duty to prove by a preponderance of the evidence that it had a general policy of disclosing its policy to prospective members and receiving their written acknowledgements. They would not have to retain the acknolwedgements. The organization might be able to establish the general policy through testimony and it might be rebutted by counter testimony.
2. The state might create an action for "fraudulent inducement to associate." This might be a private right of action for people who were induced to join an organization without ever being told that it discriminated. Besides the victims of discrimination, there are people like myself who feel injured by learning that we unwittingly associated with a discriminatory organization.

It might even be constitutional to hold a church liable for fraudulently inducing membership Didn't Hakeem Olajuwon unwittingly give to a mosque that was supporting terror? A central idea here is that we have constitutional pricniples on both sides of the question.
Posted 9:32 AM by Ian Ayres [link] (24) comments

Can the state constitutionally require a private conversation?

Ian Ayres

When I originally posted about an article that Jennifer Brown and I wrote on Alternet, I received responses worried that it was dangerous to require the public disclosure of membership in unpopular organizations.

But the key to our proposal was to require a wholly private conversation between a discriminatory organization and it's potential members. As I explain in more detail in this Lessig post:

New Jersey might pass a new statute that mandates a private conversation
between organizations that wish to retain the right to discriminate and their
potential members. The organization would have to privately disclose to
potential members that it discriminates AND members would have to privately sign
an acknowledgement (which would be kept on file by the organization for the
possibility of in camera court review) that they wish to associate with an
organization that retains the right to discriminate.

Posted 3:03 PM by Ian Ayres [link] (29) comments

Managing Information (and Privilege)

Ian Ayres

My coauthor, Jennifer Gerarda Brown, explains what we're about in our new book in the following post:

Let me take a stab at mapping out what Ian and I are going to try to accomplish over the next week. As Larry mentioned, we've just published Straightforward - which makes the argument that mobilizing heterosexual support is crucial to making progress on securing equal rights for gay, lesbian, and bisexual citizens. The book is
packed with advice about what people can do - on personal and public
levels.

But what we really want to stress here over the next week are a series of informational innovations that can promote equality in the military, in the boy scouts (and other discriminatory organizations), in marriage, and in the workplace. The Fair Employment mark fits right in with the theme of informational incrementalism. By certifying one piece of information - that a business does not discriminate - we
might be able to induce a substantial number of employers to privately opt into
ENDA, a proposed federal statute that Congress has been unwilling to
enact.

The first chapter of our book discusses how we might set out to manage heterosexual privilege. We highlight three approaches: exploiting, renouncing, and disabling privilege. We also suggest informational strategies for implementing each
approach. We'll try to suggest factors that counsel allies to speak out specifically as heterosexuals, and others that suggest it's better to leave sexual orientation ambiguous.

Over the next week, you'll see the way our proposals attempt to harness the support of heterosexual allies, and the important role that information plays in that process. It shouldn't surprise the readers of this blog that managing information turns out to be a powerful way to manage privilege.

Posted 7:27 PM by Ian Ayres [link] (2) comments

Mark(et)ing Nondiscrimination

Ian Ayres

I am going to be guest blogging over at Larry Lessig's wonderful blog for the next week and will be cross posting here:

Today's the beginning of Gay Pride month. So if you're wondering what you could do that might help the cause of equality, please think about asking your boss to license the Fair Employment Mark. With just a few clicks of the mouse at www.fairemploymentmark.org any employer in the country for no licensing fee can legally commit not to discriminate on the basis of sexual orientation.

You can learn more about this idea here or in Chapter 4 of my new book with Jennifer Brown, Straightforward: How to Mobilize Heterosexual Support for Gay Rights.


Posted 9:32 AM by Ian Ayres [link] (82) comments