Liberal vs. Conservative Cities

Daniel Solove

Over at PrawfsBlawg, my co-blogger Kaimi Wenger links to a study's results of the Top 25 most liberal U.S. Cities and the Top 25 most conservative ones based on voting patterns.

On the liberal side, the list begins: (1) Detroit, MI; (2) Gary, IN; (3) Berkeley, CA; (4) Washington, DC; (5) Oakland, CA; (6) Inglewood, CA; (7) Newark, NJ; (8) Cambridge, MA; (9) San Francisco, CA; and (10) Flint, MI. Chicago, New York, Boston, New Haven, Seattle, and St. Louis all are in the Top 25.

On the conservative side, the list begins: (1) Provo, UT; (2) Lubbock, TX; (3) Abilene, TX; (4) Hialeah, FL; (5) Plano, TX; (6) Colorado Springs, CO; (7) Glibert, AZ; (8) Bakersfield, CA; (9) Lafayette, LA; (10) Orange, CA. Among the more well-known other cities in the list are Anchorage and Oklahoma City.

What strikes me is how significantly more culturally and economically prominent the list of liberal cities is compared to the conservative ones. The liberal cities are generally much larger, are more widely known as major tourist destinations, and are more major economic centers than the conservative ones. My goal is not to start a nasty liberal vs. conservative debate, and not to encourage "my-political-party's-cities-are-better-than-yours" braggadocio. But I wonder if there are any explanations for the stark differences in the nature of these two lists of cities.
Posted 4:36 PM by Daniel Solove [link] (11) comments

Early Substantive Due Process

Mark Graber

Some support and some modifications of Jack's post on substantive due process before the Civil War. I believe it is becoming the consensus view of legal historians that due process (or the equivalent "law of the land" provision) had a substantive component. Significantly, this view is shared by scholars on the left (Howard Gillman, see his wonderful The Constitution Besieged), on the right (James Ely's work on property), and those whose constitutional politics are unknown to me (i.e., Charles McCurdy). As Alfred Hill wrote, "Taney’s . . . unsupported assertions in . . . Dred Scott of a substantive scope for the due process clause are less plausibly explained by an assumption of uncharacteristic slovenliness on so important an issue, than by his probable awareness that, on the state level, such a scope for the clause . . . in protection of ‘vested rights’ had long been taken for granted."
The antebellum Republican party championed substantive due process. The antislavery Fifth Amendment, in their view, forbade federal laws permitting human bondage in the territories. "[T]he [due process] clause," Salmon Chase and other prominent abolitionists asserted, "prohibits the General Government from sanctioning slaveholding, and renders the continuance of slavery, as a legal relation, in any place of exclusive national jurisdiction, impossible." The Republican Party Platforms of 1856 and 1860 declared that federal laws establishing slavery in the territories deprived enslaved blacks of their liberty without due process of law. This is well known, and again, uncontroversial among legal historians
What is less well known is that, contrary to Curtis, most Republicans believed the due process clause protected the right to bring property into the territories. "[T]he slaveholder [would have] the same right to take his negroes to Kansas that a freeman has to take his hogs or his horses," Abraham Lincoln declared, "if negroes were property in the same sense that hogs and horses are." Justice McLean's dissent agreed as did the Republican justices deciding the Insular cases almost a half a century later. The issue that divided Republicans from Taney concerned whether slavery enjoyed the same form of protection.
In short, substantive due process is as old as the Republican. At the end of the day, almost every political movement has insisted that due process or some other clause protects what have become mislabeled as "unenumerated rights." The real issue is what is the best reading of those rights, not whether they exist.
Posted 2:33 PM by Mark Graber [link] (38) comments

Dred Scott and Kelo

JB

The closest analogy to the substantive due process argument in Dred Scott v. Sandford isn't Roe v. Wade. It's the dissenters' position in Kelo v New London.

Have I got your attention? Good, because it's time for a little lesson on the history of substantive due process.

Dred Scott is often cited as the Supreme Court's earliest flirtation with the idea that the Due Process Clause places substantive as well as procedural limitations on government, often known as the doctrine of substantive due process. Because Roe v. Wade also relies on the idea of substantive due process, critics of Roe often invoke Dred Scott to show why Roe was such a bad idea.

There is a second comparison between Dred Scott and Roe that is sometimes run together with the first: In Roe the Supreme Court held that fetuses are not persons; in Dred Scott the Supreme Court held that blacks are not citizens. These are not substantive due process arguments; they are arguments about the original understanding of the constitutional text. One of these two arguments is based on sound history and the other is not. Guess which one? It turns out that it's Roe. In 1868 the word "person" in the Fourteenth Amendment was not generally understood to include persons who were not yet born, in part because, at common law, abortion was not a felony before quickening. Dred Scott's argument about the original understanding of citizenship, however, is not sound. Taney's originalist argument that blacks were not expected ever to be citizens is not supported by history, as Justice Curtis's dissent shows: there were in fact free black citizens in various states at the time of the founding.

But, today, as I said, I'm interested in substantive due process. Many people think that substantive due process is inconsistent with the original understanding and that the doctrine began with Dred Scott as a means of defending slavery. Therefore Dred Scott is doubly bad. This is incorrect. Taney's argument in Dred Scott comes from the same source as the argument of the dissenters in Kelo, and it has the same pedigree in thought of the founding era.

Now, in fact Taney applies the substantive due process argument incorrectly, as Justice Curtis ably shows in his dissent in Dred Scott. But the key point is that Taney's argument in Dred Scott is not the originator of the idea of substantive due process; the idea goes back to the founding (and before in the history of the English common law), and the same argument lives on in the dissenters' views in Kelo. Indeed, as I shall explain later, it lives in even on the majority's opinion and in Justice Kennedy's concurrence. Substantive due process, I must report, is as American as apple pie, and even the people who publicly disdain it actually invoke it. Kelo is just the latest example.

This doesn't show that Roe or any other substantive due process case is right or wrong; My point is simply that the "substantive due process is evil because it appeared in Dred Scott" meme is stupid and shows an ignorance of history. Moreover, once you understand that history, you will see the closest analogue to Taney's argument in Dred Scott is not Roe v. Wade; it is the dissenters' position in Kelo. And that doesn't make their position necessarily wrong either.

Hoping that I've tantalized you enough with my comparison of Dred Scott and Kelo, let me try to explain what Dred Scott's substantive due process argument was actually about. Remember, this is *not* the infamous argument that blacks can't be citizens-- that's the argument from original intention. (Are you listening, Justice Scalia?) Rather, Taney's due process argument is the claim that Congress could not, through the Missouri Compromise, ban slavery in the territories north of the compromise line, because the Federal Government must abide by constitutional civil liberties guarantees in territories it controls. Thus, Taney argues:

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peaceably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law.

And there it is. But before getting to the substantive due process argument, note the context in which it appears. Taney is arguing that if as long as the United States holds territory, the Constitution and the civil rights the Constitution guarantees bind the government there. Does this sound familiar? Yes, it's the same issue at stake in the litigation over interrogation practices at Guantanamo Bay. The Bush Administration put detainees there so that it would not be bound by American constitutional norms, arguing that the Constitution does not follow the flag. But Chief Justice Taney says that won't work. You can't deny people basic constitutional rights just because a piece of land you control isn't part of the mother country. The United States was once a colony, too, and the British Empire didn't protect the colonists' rights. When we became a nation, we promised we would do better. Thus Taney says, "citizens of the United States who migrate to a Territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Government, and to be governed by any laws it may think proper to impose." Take that, King George.

So Taney is making an anticolonial argument: If the United States holds a piece of property as its territory, it cannot escape guaranteeing constitutional rights. Of course the rights he was thinking about were the property rights of slaveholders, and the rights the Guantanamo Bay detainees are arguing for are the right to a hearing and the right not to be tortured or subjected to cruel, inhuman and degrading treatment. But this would not be the first time that constitutional law made strange bedfellows.

You can distinguish the Guantanamo case in two ways. First, Guantanamo Bay is held by a perpetual lease, not owned outright, and second the detainees are aliens, not citizens. But in Rasul v. Bush, Justice Kennedy's concurrence pointed out that this was a formalist ruse. The United States holds Gitmo quite securely; it exercises sovereignty over it in all practical terms. If you buy Taney's argument that we should do better than the British Empire did, the idea that the U.S. can escape its constitutional obligations through the formality of a leasehold argument rings quite hollow. And although Taney spoke of the rights of citizens, the Bill of Rights does not make distinctions between aliens and citizens, particularly not the Due Process Clause, which protects "persons," not citizens.

In any case, Taney's anticolonial argument was rejected by the Supreme Court in a series of decisions in the early 1900's collectively referred to as the Insular Cases. The Supreme Court held that Puerto Rico and other possessions gained through the Spanish-American war were, unlike Louisiana and California, "unincorporated" territories, and so the Bill of Rights (and the Constitution generally) did not apply there. At most, the federal government was required to respect only the most fundamental rights applied. One of those rights, however, was due process of law.

The irony of Dred Scott and the Insular Cases is that today we think of Dred Scott as the very antithesis of a human rights decision. But in fact Dred Scott actually offered a theory of the Constitution that was far more protective of human rights in U.S. possessions (and territories under America's effective control, like Guantanamo Bay) than the doctrines the Court subsequently created to justify the United States' imperial ambitious following the Spanish-American War. But of course, the irony makes perfect sense if you understand that Taney wanted to protect the property rights of white southerners who owned slaves, while the Supreme Court in the Insular Cases didn't want to extent full constitutional rights to the native peoples in Puerto Rico, the Philippines, and elsewhere. Like the Court in the Insular Cases, Taney wanted to protect civil rights only for the people he cared about most; he didn't think that blacks had any "rights which the white man was bound to respect." But if one takes his argument beyond the despicable context of the property rights of slaveholders and applies it, as Taney himself understood it, to the legal obligations of an imperial power to protect basic human rights, it has surprising resonance.

And that brings me to the main event, Taney's substantive due process argument. As you will recall, Taney argued that the federal government couldn't ban slavery in the Territories because that would mean that when the slaveholder crossed into free territory, he would lose his property rights in his slaves; his slaves would become free and own their own labor. Taney argued that "an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offence against the laws, could hardly be dignified with the name of due process of law."

What Taney is referring to in this passage had a long and honored history in the United States, and before it, in England. It is the doctrine of vested rights, the idea that the legislature may not take away vested rights of property. The roots of the idea go back to Magna Carta, and its reference to "the law of the land" On the eve of the American revolution, William Blackstone, who generally supported parliamentary supremacy, nevertheless explained that taking private property either for public use without the payment of compensation, or without the owner's consent, would violate the "law of the land." That means A to B transfers without the owner's consent violate the "law of the land." Thus, in 1798, in Calder v. Bull, Justice Chase insisted that "An act of the Legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority ... . A few instances will suffice to explain what I mean... . [A] law that takes property from A. and gives it to B: It is against all reason and justice, for a people to entrust a Legislature with such powers; and, therefore, it cannot be presumed that they have done it." Justice Chase's argument in Calder is the first Supreme Court appearance of the doctrine of unenumerated rights. Legislatures may not destroy vested rights.

The idea of taking property vested in A and giving it to B, along with the prohibition on a person being a judge in his or her own case, were the most obvious examples of a violation of the law of the land, or of due process of law. And so it appeared to people at the Founding when they wrote the due process clause of the Fifth Amendment. It was generally assumed at the time, and by federal and state courts in subsequent decisions, that the idea of "due process of law" was synonymous with the protections of the "law of the land." And both phrases were generally understood to prevent governments from engaging in simple "naked" transfers-- taking from A and giving to B. Indeed, in 1829 in Wilkinson v. Leland, Justice Story suggested that principle apparently held whether or not a state had a law of the land or due process clause in its constitution: "We know of no case, in which a legislative act to transfer the property of A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the union."

If you look at the language of the Fifth Amendment, you will see that it has not one, but two limitations on eminent domain. The second one is the Public Use Clause, which says that private property shall not be taken for public use without just compensation. The Public Use Clause regulates private to public transfers for public use, but note that it says nothing about takings for private use. That is because this category is already dealt with in the first limitation on eminent domain, the Due Process Clause, which prohibits private to private transfers. The two clauses appear after each other in the text, first the due process clause, prohibiting A to B transfers, then the public use clause, regulating the conditions under which takings can occur for public use.

And that brings us back to Taney and Dred Scott. Understood against this long historical background, Taney was not making things up out of whole cloth in Dred Scott when he said that the effect of the Missouri Compromise was inconsistent with due process of law. He was adverting to the basic doctrine of vested rights; the idea that government cannot take vested rights from A and give them to B. That, he claimed is precisely what the Federal Government had done when it applied the Missouri Compromise to southerners bringing their property into free territories. It was taking their property and giving it to the slave.

The problem with Dred Scott, you see, was not that Taney was using the idea of substantive due process. For the idea he invoked, that the government could not take away vested rights, was among the most hallowed ideas around at the Founding. And there was nothing particularly evil about the idea of protecting vested rights in property. What was evil was that the United States allowed some people to hold property in other human beings.

The problem with Taney's argument is an incorrect application of the vested rights principle. The appropriate rejoinder is Justice Curtis's in his dissent in Dred Scott. Justice Curtis, it should be noted, *agreed* with Taney that taking vested rights of property violates the Due Process Clause: "this restriction on the legislative power is not peculiar to the Constitution of the United States; it was borrowed from Magna Charta; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of the great charter." However, Curtis explained, people do not have vested rights in property when they voluntarily enter into jurisdictions that do not recognize that species of property. For in the second jurisdiction the rights are not vested; indeed, they do not even exist. This point doesn't arise with estates in land because they are not movable, so they can't cross jurisdictions, but it does apply to chattels that can be moved from place to place.

If you've been paying attention to the Supreme Court's recent docket, you may find all this talk about taking from A and giving to B familiar. It's what was at issue in Kelo v. New London, in which the Supreme Court held that taking property as part of a comprehensive scheme to stimulate economic development was a public use, and did not violate the Constitution as long as just compensation was given. Justice O'Connor began her dissent by quoting the passage from Calder v. Bull I cited above, which as we have seen, is the original citation for the doctrine of unenumerated rights. What New London was doing, she argued was nothing less than taking property from individual homeowners and giving it to other private parties.

Nobody accused Justice O'Connor of engaging in substantive due process, and amusingly, Justices Scalia and Thomas, who don't usually recognize unenumerated rights, joined her opinion. Of course, the reason was that her argument was nominally premised on the text of the Public Use Clause. But as I noted above, the Public Use Clause doesn't actually say that property can't be taken for private use. It says only that "private property [shall not] be taken for public use, without just compensation." That leaves out takings for private use without just compensation and takings for private use with just compensation. O'Connor is reading into the text of the Public Use Clause things that are not actually there. The prohibition is in the Fifth Amendment to be sure, but not in the Public Use Clause.

So where *do* we get the principle banning takings for purely private use that was at stake in Kelo? We get it from the basic idea of substantive due process, which prohibits A to B transfers and protects vested rights from being destroyed by government. Justice Thomas tries to avoid recognizing this in his dissenting opinion, arguing that despite its language the Public Use clause cannot apply merely to public uses; otherwise, it would allow takings for private use without compensation, which would "contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation." He artfully elides the question of what textual provision in the Constitution prevents takings for private use with compensation. We know the answer-- it's the Due Process Clause. That's what most people at the Founding thought, and that's why the Fifth Amendment is written that way.

But, wait, that would mean that in Kelo Thomas is actually making an argument from (shudder) substantive due process. And it would be the same sort of argument that Chief Justice Taney made in Dred Scott. But we all know that Justices Thomas and Scalia don't believe in substantive due process. And they certainly don't agree with anything that awful Chief Justice Taney said in Dred Scott.

Or do they?

And that's not all: Let me point out that the majority and Justice Kennedy agreed that at least some private to private transfers also violate the Constitution. So they too buy into the substantive due process argument, at least where the government deliberately takes land for the purpose of benefiting a private party. (That is to say, they limit the restriction on private use to purely private purposes. This is, roughly speaking, the post-New Deal conception: The legislature can take from A and give to B for a public purpose (and if the legislative act constitutes a taking, it must pay just compensation), but it may not do so for a purely private purpose.)

Let me summarize: Critics of Kelo (including the dissenting Justices) are making a very old kind of argument from substantive due process, indeed the *original* argument from substantive due process, and the very sort of argument that Chief Justice Taney made in Dred Scott. Does that undermine their arguments or make them bad people? No, it does not. And here's the moral of the story: Just because an argument appears in Dred Scott doesn't mean that the idea is bad. The idea that the Constitution follows the flag is not bad, and substantive due process is not bad.

Slavery is bad.

Posted 7:19 AM by JB [link] (89) comments

Going Backwards on Darwin and Religion

Brian Tamanaha

Darwin's 1859 publication of The Origin of Species incited a wicked backlash from religious quarters in the United States, pitting science directly against religion. But within three decades an accommodation had been achieved, as Richard Hofstadter described in Social Darwinism in American Thought (1944):

Joseph Le Conte, in his Religion and Science, a collection of Bible-class lectures, followed [Asa] Gray in maintaining that the argument from design could not be changed by any possible answer to the question whether there had been transmuation of species or what the process of evolution might be. Science, he urged, should be looked upon not as the foe of religion, but rather as a complementary study of the ways in which the First Cause operated in the natural world. Whatever science might learn, the existence of God as First Cause could always be assumed.

A key factor in the reconciliation was the role played by leading religious figures like Henry Ward Beecher, publisher of Christian Union, in accepting evolutionary theory as scientifically sound. Finding that there was no necessary inconsistency, Beecher remarked that "design by wholesale is grander than design by retail."

By the 1880's, the lines of argument that would be taken in the reconciliation of science and religion would be clear. Religion had been forced to share its traditional authority with science, and American thought had been greatly secularized. Evolution had made its way into the churches themselves, and there remained not a single figure of outstanding proportions in Protestant theology who still ventured to dispute it. But evolution had been translated into divine purpose, and in the hands of skillful preachers religion was livened and refreshed by the infusion of an authoritative idea from the field of science.

More than a Century later this mutually agreeable understanding is in danger of falling apart. Evolutionary theory is again under siege, though the tenor of the attack is different. Rather than being challenged as inconsistent with biblical teaching, and therefore wrong, the theory of evolution is now being challenged by Intelligent Design advocates--a cleaned up version of creation "science"--as a weak scientific theory (despite piles of empirical support). The attack is on scientific turf, not religious turf, or at least that is the claim by ID folks, although they have little (or no) science to offer and candor presumably would compel them to admit that they are motivated by religious reasons.

This raises the question: why has a sensible way to reconcile faith and science that has worked for so long become unacceptable to many religious leaders in this country? This is not like the other ongoing battles over religion in the public sphere and the separation between state and church (school prayer, Decalogue displays, funding for parochial schools), all of which raise debatable issues of public and private values.

The validity of evolutionary theory is about scientific knowledge. It's not a debate over values.

They have gone a bridge too far. School boards and state legislatures that legally require that ID be mentioned in biology classes, as a number have done and more are considering doing, are abusing the coercive power of the state. It is no longer about defending religious values in society, which is a noble cause, but about aggressively insisting that others pay heed to their dogma.
Posted 11:03 PM by Brian Tamanaha [link] (35) comments

How Policy Solutions (Constructively) Beget Problems

Dan Kahan

Most policymakers think linearly: identify a problem, then devise a solution. But a phenomenon known as “cultural cognition” essentially stands this approach on its head. First devise a policy solution, one that affirms all cultural worldviews simultaneously, because it's only then that one can expect persons of diverse cultural persuasions to come to the shared belief that there is a problem worth addressing.

Cultural cognition refers to the tendency of persons to conform their view of risks and other policy-relevant facts to their cultural values. People do this, in part, to minimize cognitive dissonance: it’s much more pleasant to believe that what’s morally worthy is also benign, and what’s base dangerous, than vice versa (see Mary Douglas, Purity and Danger (1966) on this). People also tend to form factual beliefs that line up with their cultural values because of the culturally partisan foundations of trust. Confronted with competing claims about what activities are dangerous and what policies will abate those dangers, people naturally tend to take the word of those who share their cultural values.

In these circumstances, risk attitudes are likely to be driven by a kind of cultural-identity self-defense mechanism. Because guns are integral to valued social roles within their way of life, for example, relatively hierarchical and individualistic persons (particularly hierarchical and individualistic males) are likely to react skeptically to the idea that weak gun control laws promote crime and result in gun accidents. Egalitarian and solidaristic persons are drawn to the idea that commerce and industry threatens the environment in part because that conclusion justifies regulating activities their values condemn as entrenching inequality and valorizing unconstrained self-interest.

None of this is to deny that there is a truth of the matter about the risks posed (or not posed) by guns, by industrial pollution, and by myriad other activities the dangerousness of which is a point of cultural contention. But the phenomenon of cultural cognition does imply that the simple discovery and dissemination of truth cannot be expected to generate consensus on what societal risks are real and how they should be ameliorated. In order for the truth to be commonly accepted, it must be presented in a form, or under circumstances, that dissipates the threat it poses to certain groups’ cultural identities.

This is the nerve of a brilliant body of research conducted by social psychologist Geoff Cohen and his collaborators. See G. L. Cohen, J. Aronson & C. M. Steele, When beliefs Yield to Evidence: Reducing Biased Evaluation by Affirming the Self, 26 Personality & Social Psych. Bull. 1151 (2000). Cohen et al. show that individuals are much more willing to accept information that threatens a strongly held political value (e.g., opposition to the death penalty or opposition to abortion) shortly after some self-affirming experience -- e.g., doing well on a particular kind of test or being made aware that they possess traits that others respect. The mechanism behind this effect is that such affirmation buffers the threat to self that individuals would otherwise experience as they contemplated revising an opinion that they hold in common with others with whom they share a strong group identity.

There is a political analog of the Cohen self-affirmation effect. It involves affirming the selves of those who might resist information about a societal danger not by timing such information to arrive immediately after a personally affirming experience (that would be a neat trick!) but rather by tying that information to a proposed policy solution that itself affirms the resisters’ cultural values.

For a historical example, consider the softening of conservative opposition to air pollution regulation in the early 1990s. Individualists tend to resist the idea that commerce threatens the environment, because that conclusion would imply that society ought to constrain market behavior and like forms of private ordering. Yet when the idea of tradable emission permits ¾ a market solution to the problem of air pollution -- was devised, the conservative and highly individualist Bush I Administration stopped resisting. Shown a solution that affirmed their cultural values, it became less costly -- in cultural-status-threat terms -- for individualists to accept the idea that there was a problem to be dealt with after all.

For a contemporary example, consider the global warming controversy. Again, individualists -- because they see it as threatening the autonomy of markets -- and hierarchists -- because they see it as impugning the competence of social and governmental elites -- are very skeptical of the idea that global warming is a serious threat. (This is one of the findings of the National Risk & Culture Survey, which I and a number of other scholars conducted.)

But recently, certain groups -- conservative and liberal, it turns out -- have started to tout renewed investment in nuclear power as a way to reduce the fossil fuel greenhouse-gas emissions primarily responsible for global warming. The Cohen self-affirmation effect suggests why this strategy might work. Individualists and hierarchists both support nuclear power, which is emblematic of the very cultural values that are threatened by society’s recognition of the global warming threat. Shown a solution, then, that affirms their identities, individualists and hierarchists can be expected to display less resistance -- not just politically, but cognitively -- to the proposition that global warming is a problem after all.

Indeed, when egalitarians and solidarists are exposed to the such information, they are likely to perceive nuclear power to be less dangerous. The affirmation of their identity associated with the recognition of global warming as a serious threat lowers the cost -- in a cultural status sense -- of accepting information that they have long resisted too.

Will the proposal of “nuclear cooling” generate the same convergence of risk perception about global warming that tradable emissions did on perception of air pollution? Members of the Cultural Cognition Project are currently investigating this and related questions in a set of experiments aimed at identifying the mechanisms of cultural cognition.

But this much is clear already: because culture is cognitively prior to fact, culture must be prior to fact politically as well. To promote sensible democratic responses to risk, policymakers need to be just as sophisticated about the cultural values that laws express as they are about the costs and benefits they impose.

Posted 6:33 PM by Dan Kahan [link] (54) comments

A Memento from the Truman Library

JB

I am back in my home town, Kansas City, this weekend and I took my parents to see the Truman Library in nearby Independence, Missouri. We had not been to the library in many many years, and I highly recommend it to anyone who has not visited.

By the standards of more recent Presidential behemoths, the Truman Library is modest and unpretentious, much like the man himself. Perhaps equally important, the library doesn't present a whitewash of Truman's presidency either, offering both sides of the argument about what was one of the most fateful decisions of his presidency, which occurred sixty years ago this week, the decision to drop the atomic bomb on Japan.

One of the most moving pieces in the library was also one of the smallest. It was a Purple Heart awarded to a serviceman who had been killed in Korea. The soldier's parents blamed Truman for their son's death; they sent him back the medal with a note, saying in effect: he can have no use for this medal because he is dead due to your policies, so we are sending it back to you. The medal, and the note, were discovered in Truman's desk at the library after he died. Apparently he had kept it close to him all those years as a reminder of the human cost of the decisions he had made.

It is an act that I would commend to all Presidents, past, present, and future.

Posted 5:34 PM by JB [link] (66) comments

Rendition to Torture

Marty Lederman

In my many postings to this blog about the torture scandal, I haven't written much about the Administration's practice of "rendition," whereby it secretly transfers detainees to foreign nations (e.g., Egypt, Syria, Uzbekistan) that have an established history of torture. (The best single account remains Jane Mayer's piece in the New Yorker back in February.)

Michael Isikoff's story in Newsweek this week, however, prompted me to jot down a few remarks about the legal questions associated with the "rendition" debate.

1. Article 3 of the Convention Against Torture provides that "[n]o State Party shall expel, return ('refouler') or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture," and further specifies that "[f]or the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights."

The U.S. Senate ratified this obligation on the understanding that "the phrase 'where there are substantial grounds for believing that he would be in danger of being subjected to torture,' as used in Article 3 of the Convention, [is] to mean 'if it is more likely than not that he would be tortured.'"

Thus, as a matter of U.S. law (as opposed to international law), Article 3 applies only if there is a greater than 50% likelihood that the transferee will be tortured. And recall that the definition of "torture" in U.S. law is also substantially narrowed as a result of Senate understandings at the time of ratification. For a more detailed explanation of these legal standards, see the recent decision of the U.S. Court of Appeals for the Third Circuit in a case involving a deportation to Haiti, Auguste v. Ridge, 395 F.3d 123 (3d Cir. 2005), and the decision of the Bureau of Immigration Appeals in In re J-- E--, 23 I&N Dec. 291. The court in In re J—E— concludes that this standard can be satisfied upon proof that "deliberately inflicted acts of torture are pervasive and widespread" in the nation in question, or that the authorities "use torture as a matter of policy," or "routinely."

2. It appears the Administration's view is that Article 3 applies only to cases in which a person is sent from the United States to another country, and that the treaty obligation does not apply to cases in which a detainee is transferred from one location outside the U.S. (e.g., Guantanamo) to another nation. This argument is made in an article written by John Yoo shortly after he left the Department of Justice (see 79 Notre Dame L. Rev. at 1229-1232), and is strongly suggested in Alberto Gonzales's written answer to Question No. 11 of Senator Kennedy's supplemental questions during the (now) Attorney General's confirmation proceedings.

3. Nevertheless, the Attorney General stated that as a matter of "policy" the U.S. refuses to render detainees to nations where it is more likely than not they will be tortured. This is how the State Department recently described that U.S. policy, in a Report to the United Nations on the Convention Against Torture:

The United States is aware of allegations that it has transferred individuals to third countries where they have been tortured. The United States does not transfer persons to countries where the United States believes it is "more likely than not" that they will be tortured. This policy applies to all components of the United States government. The United States obtains assurances, as appropriate, from the foreign government to which a detainee is transferred that it will not torture the individual being transferred. If assurances were not considered sufficient when balanced against treatment concerns, the United States would not transfer the person to the control of that government unless the concerns were satisfactorily resolved.

4. Michael Scheuer, a former CIA officer who claims to have originated the al Qaeda detainee rendition program under the Clinton Administration, has written that despite the fact that renditions are vetted very carefully in order to ensure that the proper "assurances" are in hand ("I never a saw a set of operations that was more closely scrutinized by the director of central intelligence, the National Security Council and the Congressional intelligence committees. Nor did I ever see one that was more blessed (plagued?) by the expert guidance of lawyers."), the whole operation is shot through with a serious case of willful blindness:

[T]he non-C.I.A. staff members . . . knew that taking detainees to Egypt or elsewhere might yield treatment not consonant with United States legal practice. How did they know? Well, several senior C.I.A. officers, myself included, were confident that common sense would elude that bunch, and so we told them—again and again and again. Each time a decision to do a rendition was made, we reminded the lawyers and policy makers that Egypt was Egypt, and that Jimmy Stewart never starred in a movie called "Mr. Smith Goes to Cairo." They usually listened, nodded, and then inserted a legal nicety by insisting that each country to which the agency delivered a detainee would have to pledge it would treat him according to the rules of its own legal system.

5. It has been widely assumed that under the post-9/11 rendition program, the U.S. is rendering detainees to foreign nations precisely for the purpose of having them tortured (or of credibly threatening them with torture). How else to explain the extensive, highly secretive programs of wisking detainees away to foreign nations where torture is ubiquitous? As one reporter asked the President at his March 16th press conference, "What is it that Uzbekistan can do in interrogating an individual that the United States can't?" (The President's non sequitur in response was probably more revealing than he intended: "We seek assurances that nobody will be tortured when we render a person back to their home country.") (Scheuer suggests that the rendition program was initiated in the Clinton Administration not so much so that the detainees could be subjected to torture and other coercive interrogation, but instead because it was easier to detain and convict the detainees in the foreign legal systems. The function of post-9/11 renditions, by contrast, does not appear to be to subject the detainees to legal process such as trial, but instead to interrogate them. Because all the evidence of the program under both Administrations is classified, however, it's difficult to know whether the objectives and practices have changed.)

6. Even if the 50%-likelihood-of-torture threshold is not met in a particular case, such a rendition for the purpose of facilitating torture would nevertheless be unlawful to the extent it constituted a conspiracy or attempt to torture. (Even John Yoo agrees with this—see 79 Notre Dame L. Rev. at 1232-1233—although he apparently would permit the President to supersede this statutory prohibition pursuant to his Commander-in-Chief authority, id. at 1198-1204.)

7. The Isikoff article discusses this memorandum, written in November 2002 by an FBI supervisory special agent (a former New York City prosecutor) from the bureau's behavioral analysis unit who was assigned to Guantanamo. The memo, forwarded to a senior FBI lawyer on Nov. 27, 2002, discussed a special interrogation plan for a detainee who we now know to have been Mohammed al-Qahtani. On that same day, DoD General Counsel Haynes sent a memo to Secretary Rumsfeld attaching a request to use interrogation techniques in three "Categories." Those Categories appear virtually verbatim in the FBI memo, but the FBI memo further indicates that an additional "Category IV" was also being discussed at GTMO. Category IV read as follows:

Detainee will be sent off GTMO, either temporarily or permanently, to Jordan, Egypt, or another third country to allow those countries to employ interrogation techniques that will enable them to obtain the requisite information.

The FBI agent writes concerning this "Category":

In as much as the intent of this category is to utilize, outside the U.S., interrogation techniques which would violate 18 U.S.C. s. 2340 if committed in the U.S., it is a per se violation of the U.S. Torture Statute. Discussing any plan which includes this category, could be seen as a conspiracy to violate [the Torture Statute]. Any person who takes any action in furtherance of implementing such a plan, would inculpate all persons who were involved in creating this plan. This technique can not be utilized without violating U.S. federal law.

It's difficult to know just quite what to make of this. On the one hand, it indicates that the purpose of a transfer to countries such as Egypt and Jordan is precisely to allow for the possibility of using interrogation techniques that would violate U.S. law. This could shed light on the rendition practice that the U.S. has subsequently developed, and undermine the notion that such renditions are not for the purpose of permitting or threatening torture. On the other hand, we have no further indication whether Secretary Rumsfeld ever approved such a rendition from GTMO, or even that it was proposed to him.

* * * *

Much more on the practice and law of "extraordinary rendition" can be found in reports written by the Committee on International Human Rights of the Association of the Bar of the City of New York and the NYU Center for Human Rights and Global Justice, here and here.
Posted 9:15 AM by Marty Lederman [link] (155) comments

John Bolton is Unconstitutional

Marty Lederman

Well, his so-called "recess nomination" to be U.N. Ambassador is unconstitutional, at any rate—at least in this writer's humble opinion. And so is the recess appointment on Tuesday of Peter Flory to be Assistant Secretary of Defense—and most of the other "recess" appointments made by this President, and by President Clinton before him.

The Bolton appointment, and others like it, was ostensibly made pursuant to the Recess Appointments Clause (Art. II, sec. 2, cl. 3), which provides that the President "shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." The President purported to make the Bolton appointment during a current "Recess of the Senate" that allegedly began last Friday.

There are two basic arguments as to why the Clause does not apply here. The first is discussed in great detail in several briefs that my co-counsel and I filed on behalf of Senator Kennedy in cases dealing with last year's "recess appointment" of U.S. Court of Appeals Judge William Pryor. The most detailed of those briefs can be found here and here. The basic argument is that the term "the Recess" refers solely to recesses between "Sessions" of the Senate, and not to intra-session adjournments, such as the one the Senate began last Friday. (Indeed, as Senator Frist's statement demonstrates ("I ask unanimous consent the Senate stand in adjournment under the previous order under the provisions of H. Con. Res. 225. Thereupon, the Senate, at 8:35 p.m., adjourned until Tuesday, September 6, 2005, at 12 noon."), the current Senate break is not even a "recess" of any kind under governing legislative rules: It's an adjournment, which is another animal entirely, at least for internal congressional functions and possibly for constitutional analysis, as well.)

I won't bore you with the details of the argument—interested readers can find much more in those linked briefs—except to note that this was the accepted understanding of the Executive Branch itself for the first 132 years of practice under the Constitution, affirmed by a well-reasoned opinion of Attorney General Knox in 1901 (23 Op. A.G. 599), only to be abandoned in a (misguided) 1921 Opinion of Attorney General Daugherty (33 Op. A.G. 20).

Second, even if the Senate break that began last Friday were deemed "the Recess," the vacancy in the office of U.N. Representative did not "happen" during that recess—it occured instead while the Senate was sitting. This argument is discussed in footnote 11 of our Stephens amicus brief, and it is the principal basis of Judge Barkett's thoughtful dissent from the court of appeals' decision in Stephens. (With respect to this question, the Executive Branch has since 1823 been of the view that the word "happen" must be construed to mean "exist," see 1 Op. A.G. 631, 632-33, although supporters of this argument "must, in candor, admit that their construction is not conformable to either the literal or the ordinary import of the words 'may happen,'" Case of Dist. Attorney of United States, 7 F. Cas. 731, 735 (E.D. Pa. 1868) (No. 3924).)

Not to worry—these arguments are not the mere fevered imaginings of the Senator from Massachusetts and some "activist" liberal law professors. They also find favor with much more conservative proponents of constitutional originalism and of "plain-meaning" interpretation. (There are, of course, formidable arguments on the other side, as well. See, for instance, pages 17-29 of this brief of the Solicitor General, and this paper.) This issue makes for strange bedfellows. As Professor Herz has written:

The Recess Appointments Clause occupies an interesting niche in
constitutional law. In terms of importance and vagueness—the two
essential ingredients of controversy and scholarly attention—it falls far shy of, for example, the Due Process Clause. On the other hand, it does not suffer from the irrelevance or the precision that have doomed the title of nobility prohibitions or the requirement that the president be thirty-five years old to the Siberia of constitutional discourse. There are stakes, but they are not too high; there is substantial text to work with, but no shortage of interpretive issues. In considering the scope of the clause, moreover, one is perforce behind a sort of Rawlsian veil of ignorance. A given interpretation may be good for your team at one point in history and bad at another. Therefore, ideology and the appeal of desired outcomes in the short-term can more easily be set aside here than when considering many substantive constitutional issues.

(As an aside, I higly recommend Professor Herz's short essay, 26 Cardozo L. Rev. 443, which is a reply to the countervailing views of Professors Hartnett (id. at 377) and Rapapport (52 U.C.L.A. L. Rev. 1487). Professor Herz uses the debates over the Recess Appointments Clause to probe some important questions in the modern clash between formalist and functional modes of constitutional interpretation, such as "whether considerations of purpose may lead to different interpretations of the same text in different settings; and . . . whether it is proper to stick to an old text and justify the constant understanding by changing purposes.")

Even if you're persuaded by our arguments, I wouldn't advise getting too excited about the prospect of John Bolton's eviction from the East Side of New York. In the context of this particular nomination, there's unlikely to be any context in which the constitutionality of Bolton's appointment will be justiciable. And even if the courts were to consider the question, recent history suggests that they may not be terribly receptive to the arguments propounded by opponents of such intra-session "recess" appointments. But cf. this opinion of Justice Stevens respecting a denial of certiorari.
Posted 6:27 AM by Marty Lederman [link] (126) comments

National Security, Terrorism, and the Bird Flu

Daniel Solove

Over at PrawfsBlawg, I have a post that follows up on a topic I've been blogging about a lot lately (here and here). Inspired by a great cartoon by Tom Toles (Washington Post), which I've included in the post, I argue that we're wasting money on elaborate ways to detect terrorists, such as Secure Flight, data mining, and searching bags in NYC subways. Instead, the bird flu remains a very sigificant risk, and we're so focused on terrorism that we might be caught inadequately prepared for a bird flu epidemic. I also include statistics that show that a 9-11 attack each year would not even make the annual top 20 causes of death.
Posted 1:49 PM by Daniel Solove [link] (16) comments

Not Catholic Enough?

Mark Graber

Liberals concerned with Judge John Roberts might act on the basis of deeply held Catholic values when deciding whether to overrule Roe v. Wade might consider the virtues of having Judge Roberts act on Catholic values in other areas of the law. The Catholic church, after all, opposes capital punishment, has little good to say about our adventures in Iraq, particularly the torture issue, and is committed to far greater economic redistribution than takes place in the United States. I'm not Catholic (or even Christian), and I gather that there may be a difference in the nature of Catholic opposition to abortion and Catholic opposition to capital punishment. Still, if Judge Roberts took his orders from the Pope, I suspect he might frequently vote differently than he actually does and will.

One interesting question is how both the left and the right would react to a judicial nominee who they believed would overrule Roe, Griswold v. Connection, Lawrence v. Texas, and every decision sustaining capital punishment, as well as provide far greater protection for welfare rights and far stricter judicial supervision of torture than is presently the case. The other point is that Catholocism seems as interpretable as the constitution. Both Roberts and John Kerry and probably sincere Catholics yet they bring very different values to the public sphere (in this light one might note that Frank Murphy and William Brennan, possibly the two most liberal justices of the 20th century were Catholics). Simply saying one is a person of faith, therefore, says no more about one's values that the claim that one will not legislative from the bench. Roberts is not conservative because he is Catholic. Rather, he interprets Catholocism and the constitution in a certain way because he is a conservative. It is those conservative values that need exploring, not his religious faith.
Posted 11:05 AM by Mark Graber [link] (24) comments

The Mowhoush Murder, Geneva, the Scorpions, and Military "Special Forces"

Marty Lederman

A few preliminary reactions to the two must-read stories in today's Washington Post, which I summarize below:

1. The fact of Mowhoush's murder has been publicly acknowledged for some time. But what these stories show is that it was not the result of an isolated, unauthorized incident of brutality: From all that appears, this was a concerted, planned, systematic and extended series of brutal interrogations, carried out by numerous persons and entities, within the military and the CIA, in a manner that they all considered to be authorized. No rotten apples. No nightshift. Official U.S. policy and practice.

2. This has nothing whatsoever to do with Al Qaeda or the Taliban. The Scorpions were employed, and Mowhoush was murdered, in Iraq. The Administration has repeatedly insisted that detainees in Iraq—in contrast to the suspected Al Qaeda and Taliban detainees at GTMO—remain fully protected by the Geneva Conventions. With respect to POWs, Article 17 of the Third Geneva Convention provides that "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." And Article 27 of the Fourth Geneva Convention requires that civilian detainees "shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity."

Quite obviously, what occurred in Iraq in 2003 was not even close to being in compliance with Geneva (not to mention the violations of federal criminal laws). And yet we still see military officials testifying that stuffing a detainee in a sleeping bag and putting detainees in a wall locker and banging on it were "appropriate," effective and approved techniques. How can this be?

I can think of at least four explanations:

a. Perhaps the Administration does not consider suspected Iraqi insurgents to be protected by the Geneva Conventions. By some time in 2004, the Department of Justice had concluded that at least some non-Iraqi insurgents were not Geneva-protected. And in his written testimony, now-Attorney General Gonzales—while reaffirming the Administration's long-stated position that the Geneva Conventions apply to the conflict between the United States and Iraq, and that Iraqi military personnel who satisfy the criteria of Article 4 are entitled to POW status under Geneva—clarified that other actors in Iraq, such as insurgents, who take up arms without complying with the criteria of Article 4, "may not be legally entitled to protections under [Geneva]." Is it possible that there was an Administration determination, as early as 2003, that a wider category of Iraqi detainees was not protected by Geneva? It certainly appears as if many U.S. personnel in Iraq—most of them trained to strictly apply Geneva—were working under an assumption that Geneva was inapposite.

b. The Pentagon set the stage for the derogation of Geneva norms by entrusting Iraqi detainee operations to commanders who promulagated rules that can best be described as confusing, and then turned a blind eye when soldiers sought clear guidance. This is basically the story told in the Schlesinger, Fay and Jones Reports.

Those reports explain in detail that the interrogators at Guantanamo, and the conflicting and confusing set of directives from the Pentagon for GTMO, "circulated" freely to Afghanistan and then to Iraq (Schlesinger 9). Lieutenant General Sanchez, the commander of the Combined Joint Task Force in Iraq, approved techniques going beyond those approved for GTMO, "using reasoning" from the President's February 7, 2002 directive on unlawful combatants (id. at 10). The "existence of confusing and inconsistent interrogation technique policies," including a "proliferation of guidance and information from other theatres of operation," contributed "to the belief that additional interrogation techniques were condoned in order to gain intelligence" (Jones 15-16; Fay 8, 10, 22). "The lines of authority and the prior legal opinions blurred" (Fay 10), and "DoD's development of multiple policies on interrogation operations for use in different theatres or operations confused Army and civilian Interrogators [at Abu Ghraib]" (Fay Finding No. 7).

And when the soldiers "on the ground" in Iraq repeatedly sought specific advice about proper interrogation parameters, the Pentagon was, at best, suspiciously unforthcoming about the governing rules. This is the way General Paul Kern, the appointing authority for the Jones/Fay investigations, delicately put the point: "The people who were conducting the interrogations clearly were feeling a lot of pressure to produce intelligence, as they should have been. That's what the purpose of the interrogation is. And in looking for . . . guidance, they were submitting requests back and forth, which were never in our view completely clarified. So they were using drafts of other processes that they had known and they were asking for clarity, which in the end resulted in a couple of memos which were published by the Combined Joint Task Force for them to use. But in the end, it did not absolutely make it clear what the boundaries were."

c. This abuse was the foreseeable result of a special, separate set of approved practices for the CIA and for certain military "Special Forces." As the Fay Report explained, "CIA detention and interrogation practices [in Iraq] led to a loss of accountability, abuse, reduced interagency cooperation, and an unhealthy mystique that further poisoned the atmosphere at Abu Ghraib" (pp. 52-53). The CIA practices and techniques led to a "perception" that such techniques and practices "were suitable and authorized for DoD operations" (pp. 118-119).

Furthermore, such extreme techniques apparently were not reserved for use by the CIA. As Seymour Hersh reported last year, Secretary Rumsfeld and Under-Secretary Cambone have established secret special access programs (SAPs) within DoD that are authorized to use rough treatment, and sexual humiliation, in interrogating not only suspected al Qaeda operatives, but also the numerous persons rounded up as possible "insurgents" in Iraq. (And as Bart Gellman reported in the Washington Post, Rumsfeld further concluded that such operations need not be disclosed to Congress.) If these reports are correct—and today's stories appear to confirm them—there is a wholly secret interrogation regime within the Department of Defense that is playing by non-Geneva-compliant rules. (Of course, this does not explain how such rules could have been authorized or justified, in light of the Uniform Code of Military Justice, and other federal criminal statutes prohibiting assault and torture. In many previous posts, I've speculated that the Administration must be relying on the notion that the President has the constitutional authority to authorize conduct that would violate such statutes.)

d. This possible explanation is perhaps the most disturbing of all: It's possible that many military (and other) interrogators have come to believe that the techniques used in Iraq comply with Geneva. How is that possible? Here's the key quotation from today's story: "It was a time when U.S. interrogators were coming up with their own tactics to get detainees to talk, many of which they considered logical interpretations of broad-brush categories in the Army Field Manual, with labels such as 'fear up' or 'pride and ego down' or 'futility.'" In other words, the interrogators convinced themselves that these techniques were described in Army Field Manual 34-52—a Manual that has, since the 1960's, defined the interrogation techniques that are acceptable within the military even for POWs who are entitled to the protections of the Geneva Conventions.

This is consistent with the troubling development about which I wrote a couple of weeks ago—the conclusion of the Pentagon's own recent Schmidt Report that degrading and abusive techniques (such as having female interrogators physically seduce and taunt a Muslim detainee; forcing him to wear a bra and placing a thong on his head during interrogation; tying him to a leash, leading him around the room and forcing him to perform a series of dog tricks; stripping him naked; and pouring water on his head during interrogation 17 times) are authorized by Field Manual 34-52, because they are examples of what the Manual calls the "Futility" and "Ego Down" techniques.

This exact same reasoning is at the heart of today's story. The absurd logic appears to be this: (i) Manual 34-52 describes treatment that may be used on POWs, consistent with Geneva; (ii) Manual 34-52 approves of particular techniques denominated "Futility," "Pride and Ego Down," and "Fear Up"; (iii) Hence, any technique, no matter how "abusive" and "degrading," no matter how violent, that results in the detainee's sense of futility, loss of ego, or "fear up," is permissible, and legal under Geneva.

It should be obvious why this logic is so disturbing, and so dangerous.

3. Most, if not all, of the abuse that has thus far been reported—at GTMO, in Iraq, and in Afghanistan—occurred between November 2002 and Mowhoush's murder in November 2003. A couple of weeks ago, a Deputy General Counsel at the Pentagon testified that the Pentagon was told (perhaps by DOJ) in December 2003—presumably before knowledge of Abu Ghraib—that it should no longer rely on John Yoo's legal analysis, such as that found in the (still undisclosed) March 14, 2003 OLC memo and in the final DoD Working Group Report. Among other things, that analysis apparently explained that federal laws could be circumvented pursuant to the President's Commander-in-Chief authority.

I have been wondering what might have prompted DOJ, in December 2003, to do such an extraordinary about-face, and to renege on recent OLC recent legal advice that had been provided in the teeth of profound concerns expressed by the JAGs and others. Is it possible that this murder was the last straw—the incident that proved the JAGs right and that caused the Administration to insist on a serious reconsideration of where the "new paradigm" had so swiftly led? What, if anything, do we know about CIA and DoD policies and practices after 2003? [UPDATE: The Denver Post reports that military investigations are ongoing into the following allegations of detainee abuse in Iraq after the Mowhoush murder:

April 12, 2004: Member of the 1st Marine Expeditionary Force abused a detainee involved in shooting death of a Marine lieutenant and sergeant. During interrogation, detainee was kicked in the rib cage, punched in kidney area and slapped in the head. Incident being investigated.

Jan. 9, 2004: FOB Rifles Base detainee died while in custody. The detainee, an escapee who had been recaptured, was shackled to the door of his cell with his hands over his head and gagged. Five minutes later, he was found dead. The death is under investigation.

Dec. 31, 2003: Military police officer used butt of M-4 rifle to strike a detainee in the face and on the back of the neck. Then the officer placed the muzzle of his M-4 rifle in the detainee's mouth and pulled trigger on the empty weapon. Officer then chambered a round and pointed the rifle at detainee, firing a round 5 or 6 feet from detainee. The incident is under investigation.]

4. It's increasingly obvious that we will not have a full and fair accounting of this dark chapter in our history—and that we will not have an accurate picture of what was authorized, nor what continues to be authorized, for the CIA and the Pentagon—until we have divided government. In one of today's stories, Peter Hoekstra (R-Mich.), chair of the House Intelligence Committee, asked if he was satisfied with the information he received on the Scorpions unit, responded: "We're not spending a lot of time going back and dissecting tactical programs." I'll say.
Posted 7:10 AM by Marty Lederman [link] (75) comments

Horrifying. Shameful.

Marty Lederman

Josh White and Dana Priest have two remarkable stories in the Washington Post this morning. The first recounts how, in February or March of 2002, the President authorized the CIA to recruit and train an Iraqi paramilitary group, code-named the Scorpions, to foment rebellion, conduct sabotage, and help CIA paramilitaries who entered Baghdad and other cities "target buildings and individuals." Priest and White report an Army investigator's testimony that "at some point, and it's not really clear how this happened, [the Scorpions] started being used in interrogations . . . because they spoke the local dialect." Priest and White also quote an intelligence official as saying that the Scorpions were tasked "from time to time, to do 'the dirty work.'"

The second article, about a CIA/Army/Scorpions murder, must be read in its entirety. This is how it begins:

Iraqi Maj. Gen. Abed Hamed Mowhoush was being stubborn with his American captors, and a series of intense beatings and creative interrogation tactics were not enough to break his will. On the morning of Nov. 26, 2003, a U.S. Army interrogator and a military guard grabbed a green sleeping bag, stuffed Mowhoush inside, wrapped him in an electrical cord, laid him on the floor and began to go to work. Again.

It was inside the sleeping bag that the 56-year-old detainee took his last breath through broken ribs, lying on the floor beneath a U.S. soldier in Interrogation Room 6 in the western Iraqi desert. Two days before, a secret CIA-sponsored group of Iraqi paramilitaries, working with Army interrogators, had beaten Mowhoush nearly senseless, using fists, a club and a rubber hose, according to classified documents.

The sleeping bag was the idea of a soldier who remembered how his older brother used to force him into one, and how scared and vulnerable it made him feel. Senior officers in charge of the facility near the Syrian border believed that such "claustrophobic techniques" were approved ways to gain information from detainees, part of what military regulations refer to as a "fear up" tactic, according to military court documents.

The circumstances that led up to Mowhoush's death paint a vivid example of how the pressure to produce intelligence for anti-terrorism efforts and the war in Iraq led U.S. military interrogators to improvise and develop abusive measures, not just at Abu Ghraib but in detention centers elsewhere in Iraq, in Afghanistan and at Guantanamo Bay, Cuba. Mowhoush's ordeal in Qaim, over 16 days in November 2003, also reflects U.S. government secrecy surrounding some abuse cases . . . .

The sleeping-bag interrogation and beatings were taking place in Qaim about the same time that soldiers at Abu Ghraib, outside Baghdad, were using dogs to intimidate detainees, putting women's underwear on their heads, forcing them to strip in front of female soldiers and attaching at least one to a leash. It was a time when U.S. interrogators were coming up with their own tactics to get detainees to talk, many of which they considered logical interpretations of broad-brush categories in the Army Field Manual, with labels such as "fear up" or "pride and ego down" or "futility."

Other tactics, such as some of those seen at Abu Ghraib, had been approved for one detainee at Guantanamo Bay and found their way to Iraq. Still others have been linked to official Pentagon guidance on specific techniques, such as the use of dogs.

Two Army soldiers with the 3rd Armored Cavalry Regiment in Fort Carson, Colo., are charged with killing Mowhoush with the sleeping-bag technique, and his death has been the subject of partially open court proceedings at the base in Colorado Springs. Two other soldiers alleged to have participated face potential nonjudicial punishment.

["CREDIT-WHERE-IT'S-DUE" UPDATE: Little did I know it, but the Denver Post (particularly Arthur Kane and Miles Moffeit) has been all over this story for months, with very little, if any, national exposure or fanfare. I've interlineated some links to several of the Denver Post's storys throughout this post.]

Note that this case has nothing whatsoever to do with Al Qaeda or the Taliban. It occurred in Iraq, where, in theory, the Geneva Conventions continue to apply. And it is not limited to the CIA and the Scorpions -- it implicates the military, as well. [UPDATE: The Post has now posted the transcript of the preliminary hearing against two of the charged Army officers.]

Mowhoush -- suspected of being a high-ranking official in Saddam Hussein's Republican Guard and a key supporter of the insurgency in northwestern Iraq -- was detained when he simply "walked into the Forward Operating Base 'Tiger' in Qaim on Nov. 10, 2003, hoping to speak with U.S. commanders to secure the release of his sons, who had been arrested in raids 11 days earlier."

The first stage of his interrogation was handled by the military, not the CIA or the Scorpions. In the months before Mowhoush's detention, White writes, "military intelligence officials across Iraq had been discussing interrogation tactics, expressing a desire to ramp things up and expand their allowed techniques to include more severe methods, such as beatings that did not leave permanent damage, and exploiting detainees' fear of dogs and snakes, according to documents released by the Army." A week into Mowhoush's detainment, a PowerPoint presentation dated Nov. 18 stated that non-threatening interrogation had ended and that the interrogator "took the gloves off because Abid refused to play ball." "In an interrogation that could be witnessed by the entire detainee population, Mowhoush was put into an undescribed 'stress position' that caused the other detainees to stand 'with heads bowed and solemn looks on their faces.'" (White further reports that this shameful technique "backfired," in that the humiliation ensured that Mowhoush "would not be able to stop the [insurgent] attacks.")

The second stage of the Mowhoush interrogation was carried out by an Army "Special Forces" group, by the CIA, and by the dreaded Scorpions. White recounts:

[O]n Nov. 21, 2003, Mowhoush was moved from the border base at Qaim to a makeshift detention facility about six miles away in the Iraqi desert, a prison fashioned out of an old train depot [and nicknamed "Blacksmith Hotel"], according to court testimony and investigative documents. . . . [At] Blacksmith Hotel, . . . teams of Army Special Forces soldiers and the CIA were conducting interrogations [of 350 detainees who were picked up by the 3rd Armored Cavalry Regiment and the 101st Airborne Division in a series of massive raids].

At Blacksmith, according to military sources, there was a tiered system of interrogations. Army interrogators were the first level.

When Army efforts produced nothing useful, detainees would be handed over to members of Operational Detachment Alpha 531, soldiers with the 5th Special Forces Group, the CIA or a combination of the three. . . . If they did not get what they wanted, the interrogators would deliver the detainees to a small team of the CIA-sponsored Iraqi paramilitary squads, code-named Scorpions, according to a military source familiar with the operation. . . .

On Nov. 24, the CIA and one of its four-man Scorpion units interrogated Mowhoush, according to investigative records.

"OGA Brian and the four indig were interrogating an unknown detainee," according to a classified memo, using the slang "other government agency" for the CIA and "indig" for indigenous Iraqis.

"When he didn't answer or provided an answer that they didn't like, at first [redacted] would slap Mowhoush, and then after a few slaps, it turned into punches," Ryan testified. "And then from punches, it turned into [redacted] using a piece of hose."

"The indig were hitting the detainee with fists, a club and a length of rubber hose," according to classified investigative records. [UPDATE: Testimony from the preliminary hearing suggests that the CIA and/or the Scorpions beat detainees with the handle of a sledgehammer. See also this Denver Post story from July 27th.]

Soldiers heard Mowhoush "being beaten with a hard object" and heard him "screaming" from down the hall, according to the Jan. 18, 2004, provost marshal's report. The report said four Army guards had to carry Mowhoush back to his cell.

[UPDATE: According to this Denver Post story in April, an armed forces medical examiner testified that the Novermber 24th beating caused massive bruising over the detainee's back and five broken ribs.]

The third, and final, stage of the interrogation was conducted by four Army officers. On November 26, 2003, Mowhoush was brought, moaning and breathing hard, to Interrogation Room 6, according to court testimony. "Chief Warrant Officer Lewis E. Welshofer Jr. did a first round of interrogations for 30 minutes, taking a 15-minute break and resuming at 8:45. According to court testimony, Welshofer and Spec. Jerry L. Loper, a mechanic assuming the role of guard, put Mowhoush into the sleeping bag and wrapped the bag in electrical wire. Welshofer allegedly crouched over Mowhoush's chest to talk to him. Sgt. 1st Class William Sommer, a linguist, stood nearby. Chief Warrant Officer Jeff Williams, an intelligence analyst, came to observe progress. Investigative records show that Mowhoush 'becomes unresponsive' at 9:06 a.m. Medics tried to resuscitate him for 30 minutes before pronouncing him dead." [UPDATE: Testimony from the preliminary hearing indicates that when the detainee started to pray in the sleeping bag, Welshofer "poured water on the detainee's mouth," and then "cupped his hands over the detainee's mouth, creating a seal while he was sitting on the detainee's chest."]

An Army memo dated May 10, 2004 found that although the death was directly related to the "non-standard interrogation methods" employed by the Army in this third stage, "the circumstances surrounding the death are further complicated due to Mowhoush being interrogated and reportedly beaten by members of a Special Forces team and other government agency (OGA) employees two days earlier."

Williams was arraigned yesterday on a murder charge and is scheduled for court-martial in November, and Welshofer's court-martial is set for October. White reports that Loper and Sommer have not been referred for trial: "Commanders are still considering what, if any, punishment to impose."

At a preliminary court hearing in March for Williams, Loper and Sommer, an interrogator who worked with Welshofer in Iraq, and the Colonel who commanded the 3rd Armored Cavalry Regiment, both told the court that stuffing a detainee in a sleeping bag and putting detainees in a wall locker and banging on it were "appropriate," effective and approved techniques that were used "to frighten detainees and make them tense." White further reports that the "claustrophobic technique" was even used "for some time after" Mowhoush's death, according to sources familiar with the interrogation operation. "The interrogation techniques were known and were approved of by the upper echelons of command of the 3rd ACR," said Williams's attorney. "They believed, and still do, that they were appropriate and proper." [UPDATE: Indeed, Sgt. 1st Class Michael Pratt of the Utah National Guard testified at the preliminary hearing that the sleeping bag technique "was used openly" in "many interrogations"; and the Denver Post reports Williams's attorney as saying that that technique was used for months after Mowhoush's death.]

[UPDATE: As this Salt Lake Tribune story reminds us, the Pentagon issued a widely circulated press statement after Mowhoush's death, in which it announced that he had died "of natural causes" during "an interview with U.S. forces." Not surprisingly, that statement has since "been scrubbed from all Defense Department Web sites."]

In a follow-up post, I'll have a few comments on the possible ramifications of these stories.
Posted 6:07 AM by Marty Lederman [link] (135) comments

Pataki and the Morning After Pill

JB

This New York Daily News story suggests that Governor Pataki will veto legislation allowing sales of the morning after pill without a prescription unless (1) men are prohibited from buying the pill, (2) girls under 16 may not purchase it, and (3) women who purchase it are limited in the numbers they can buy. Numbers 2 and 3 seem like acceptable compromises, although the story's description of demand number 3 is ambiguous: if Pataki means to limit the number of pills a woman can buy at one time, this might be reasonable under certain circumstances (there are privacy concerns about record keeping, for example), but not if he means to limit the number of pills a woman can ever buy.

However, Pataki's demand number 1, a ban on all sales to men, seems clearly unconstitutional. What theory justifies preventing men from buying a morning after pill that isn't based on stereotypical notions about male and female behavior and would survive constitutional scrutiny?

I invite comments on this question.

Posted 7:51 AM by JB [link] (36) comments

A Potemkin Constitution for Iraq?

Kim Lane Scheppele

There is now a published translation of the latest leaked version of the Iraqi constitutional draft. (That website has lots of useful insider information about the Iraqi constitutional process more generally, so those who want to know more can follow quite a lot of detail there.)

I had very much hoped that the Constitutional Commission would take more time before finalizing their proposal. The Transitional Administrative Law or interim constitution permitted the Commission up to six months of extra time. And, in my view, the Commission needs it because there are too many really crucial things that are unsettled. Among them are:

-- whether Iraq is a federal state or a unitary state (this is the make-or-break issue for the Kurds)
-- what the role of Islamic law is in (or above) the constitution
-- what the principles of elections will be (country-wide PR, regional representatives, single-member districts)
-- what to do in the event that an election does not result in a workable parliamentary majority
-- how to divide oil revenues among the regions or between the regions and the center (this is one of the big issues for the Sunnis because they are afraid they will be left with nothing)
-- what the status of contested areas like Kirkuk is . . .

. . . and many other things.

Plus, it seems to that the present draft has many dangerous tendencies. For example:

-- the constitution concentrates too much power in the executive
-- the parliament is reduced to being a rubber stamp for the executive
-- the constitution seems to put Shari'a above the constitution
-- women's rights are restricted
-- the constitutional court is given the power of judicial review, but then four out of the nine judges on the constitutional court are required to have their primary education in Shari'a instead of secular law.

These things are going to take time to fix. If there were really time for a consultative process, both within the Commission and in the broader society, I suspect that the constitution would be much better.

The constitutional drafting process was supposed to begin right after the January elections. But because the political leaders dithered after the election and didn't form a government for months, the constitutional drafting process was shortchanged. Plus, the Sunnis entered late in the process and didn't get to participate as many of these features were put into the draft. Now it appears that the Constitutional Commission won't have time to do this right because they have acquiesced under intense American pressure in a deadline that is way too close.

Constitutions have to be real political bargains among political elites at the time of a political transition or else they will fail the moment they are promulgated. But such bargains cannot be pulled out of the air quickly. I'm afraid that the only kind of constitution Iraq can reasonably be expected to get within the next two weeks is a a Potemkin constitution. Unless the big questions are settled to the satisfaction of all of the major factions in the country, that is all a rushed constitution can be.
Posted 12:44 AM by Kim Lane Scheppele [link] (69) comments

A Brainteaser About "Acting Above the Law"

Brian Tamanaha

Assume that the President has the legal authority as Commander in Chief to ignore or violate military codes, federal statutes, and international conventions when leading the United States in the global war on terror. This is a large assumption, admittedly, but go with it (as the OLC did). Assume, further, that in the exercise of this legal authority the Bush administration orders, for example, that we engage in torture and indefinite detention of individuals without legal charges, contrary to national and international law (not that we would do such a thing).

So here's the puzzle: When he orders that the law be violated, will the President be acting lawfully? Will he be abiding by "the rule of law"? Or will he be acting "outside of and above the law"?

We can make the question even harder by adding the assumption that a Court--not just an OLC lawyer--has actually ruled on the President's assertion of such power, agreeing that the President has the legal authority to order violations of the law (domestic and international).

You might say, as a legal positivist would, that the law grants the President the legal authority to violate the law. But putting it that way contains a telling equivocation: "legal authority to violate the law."

Ordinary criminal law does not recognize "legal authorization" as a legitimate defense for criminal conduct. And this argument carried no weight at the Nuremberg trials. But we're talking about the President of the United States here, defending the nation. [This is a pseudo-philosophical inquiry, so please save the outrage, as I am not suggesting by these analogies that Bush is a criminal.]

So, again, let's ask: assuming that he has the legal authority to order violations of the law, would President Bush be complying with the "rule of law" when he did so?

It seems clear--as the very phrasing of the question indicates--that he would be violating the law, acting above the law, not complying with the rule of law, even if he had such legal authorization. This makes sense not just linguistically, but also because the "rule of law" means that government officials, including sovereigns, are bound to abide by the law, like everyone else.
Posted 9:15 PM by Brian Tamanaha [link] (29) comments

Take My House: Please!

Mark Graber

The hot rage among some libertarians is to urge government to condemn the property of those justices who were in the KELO majority. Well, as a supporter of KELO, all I can say is that I will be quite happy (though probably not thrilled to high heaven) if the government takes my house. All I ask is, like KELO, they pay substantially more than any private buyer might be willing to offer. Amazing how much protection strict adherence to fair compensation can give private homeowners.
Posted 2:14 PM by Mark Graber [link] (23) comments

On Courts

Mark Graber

One of the more interesting dialogues at the American Constitutional Society's annual meeting over the weekend occurred when Kathleen Sullivan paid homage to courts and Mark Tushnet responded by pointing out that courts are good only when they are on your side. Debate then followed over whether courts are good.

A more political science perspective might suggest that courts are simply there whether you like them or not. Judicial review is not likely to run away, so all political coalitions seek to use courts both to advance agendas while they are in office and to preserve those agendas should rival politicians gain power. As Thomas Keck and numerous others point out (William Lasser has a first rate book on this subject), judicial restraint is rarely the dominant theme for long. Coalitions that come to power preaching opposition to courts, be they New Deal Democrats or Reagan Republicans, soon find that courts have much work to do (and I should add, each with some degree of sincerity insists that such activism is justified because it is in the constitution, as opposed to the other guys who are merely legislating from thebench).

Such a perspective suggest a rather different take on the Roberts nomination. I presume that Roberts will advance a Republican constitutional vision if confirmed. But there are many Republican constitutional visions. Which one. More important, he is likely to be on the bench for a long time. At some point in time a different political regime is likely to arise. Will Roberts imitate the four horsemen of 1937 and fight that regime tooth and nail or, more in the manner of a Justice Grier (see Civil War and Reconstruction) will he limit his fights to the margins. As progressive constitutionalists formulate our shadow constitution, we need to be aware that a judiciary packed with certain types of conservatives will not only overrule liberal triumphs of the pst, but place severe barriers limiting liberal triumphs of the future.
Posted 11:34 AM by Mark Graber [link] (20) comments

Guantanamo Trials "Rigged?"

JB

The Australian Broadcasting Company is reporting that two former prosecutors for the Bush Administration's military tribunals have complained to their superiors in e-mails that the procedings are "rigged" and "a fraud on the American people." The transcript from the ABC radio broadcast, which contains the contents of the leaked e-mails, is here.

What's particularly interesting is that these are statements from prosecutors, not from military defense counsel.

The first e-mail came from Major Robert Preston, who complained that the procedures were "half-assed." Preston was transferred out of his assignment a month later. The second e-mail came from Captain John Carr, who also left the Office of Military Commissions:

Capt Carr says the commissions appear to be rigged.

"When I volunteered to assist with this process and was assigned to this office, I expected there would at least be a minimal effort to establish a fair process and diligently prepare cases against significant accused," he wrote.

"Instead, I find a half-hearted and disorganised effort by a skeleton group of relatively inexperienced attorneys to prosecute fairly low-level accused in a process that appears to be rigged."

Capt Carr says that the prosecutors have been told by the chief prosecutor that the panel sitting in judgment on the cases would be handpicked to ensure convictions.

"You have repeatedly said to the office that the military panel will be handpicked and will not acquit these detainees and that we only needed to worry about building a record for the review panel," he said.

UPDATE: Neil Lewis covers the story for the International Herald Tribune (A slightly different version now appears on the New York Times website:

The defense lawyers' complaints and those of outside groups like the American Bar Association were, it is now clear, being echoed in confidential messages by the prosecutors who would, if anything, benefit from any slanting of the process.

Among the striking statements in the prosecutors' messages was an assertion by one that the chief prosecutor had told his subordinates that the members of the military commission that would try the first four defendants would be "handpicked" to ensure that all would be convicted.

The same officer, Captain John Carr, also said in his message that he had been told that any exculpatory evidence - information that could help the detainees mount a defense in their cases - would probably exist only in the 10 percent of documents being withheld by the CIA for security reasons.

Carr's e-mail message also said that some evidence that at least one of the four defendants had been brutalized was lost and other evidence on the same issue had been suppressed.

Posted 9:19 AM by JB [link] (20) comments