Human Rights in the Balance: What's at Stake in Hamdan

Guest Blogger

David Luban

This week the United States Supreme Court stands on the verge of a momentous non-decision - a non-decision that would quietly deal a major setback to international human rights, and place the United States at odds with our allies on a crucial issue of how to interpret human rights treaties.

The Court has listed Hamdan v. Rumsfeld for its conference for the second time on Friday - which means that this major case failed to attract the four votes necessary for certiorari the first time around. If the Court decides on Friday not to hear the case, the lower court ruling stands. The very fact that the Supreme Court didn't take up Hamdan the first time around means that the Justices have not appreciated how momentous that lower court ruling is.

Hamdan concerns the legality of President Bush's military commissions to try suspected terrorists at Guantanamo. In mid-July, the D.C. Court of Appeals overturned a decision declaring that the commissions lack the necessary due process features of courts-martial, and violate the Geneva Conventions. The appellate panel - which included now-Chief Justice Roberts - held that the time to address flaws in the military commission procedure is after the trials, not before, and after the defendants have exhausted their military remedies. Perhaps the Supreme Court accepts this conclusion, and that is why it hesitates to take up Hamdan now rather than later.

But another part of the Hamdan decision is doing its damage now. Among the issues Hamdan settled is a crucial question about who the 1949 Geneva Conventions protect. In the only split portion of the decision, the panel voted 2-1 that Geneva does not apply to the Global War on Terror. The implications of this holding are profound, and go to the very heart of modern human rights protection. To see why, it is necessary to understand how Geneva works.

The Geneva Conventions establish two levels of wartime protection, depending on the nature of the war. If the war is an "old paradigm" conflict between states, Geneva provides an elaborate system of protections - for prisoners of war in the Third Convention, and for civilians in the Fourth Convention. (The remaining two conventions concern wounded and sick combatants on land and sea.) But what about conflicts that don't pit state against state? Here, in "common Article Three" (common, that is, to all four Conventions), the Geneva framers insisted on at least minimum human rights for anyone who is detained. These include rights not to be sentenced or punished without minimum due process - the Geneva right on which Hamdan based his argument against the military commissions.

But common Article Three also provides for other basic human rights, including rights against violence, cruel treatment, torture, and "outrages upon personal dignity, in particular, humiliating and degrading treatment." When the D.C. Circuit held that Article Three does not apply to the War on Terror, it stripped away all these basic protections from detainees. In place of the split-level protections of Geneva - full protections in state-against-state wars, and at least minimum human rights the rest of the time - Hamdan creates a third tier of "protections," namely no protections at all, in the War on Terror. Where Geneva creates a main floor and a basement, Hamdan digs beneath the basement and adds a dungeon.

To see why this matters so desperately, consider the astonishing events of the past two weeks. On September 22, the Secretary of the Army and the Chief of Staff for the Army published a self-congratulatory article in the National Review, insisting that the Army has done a splendid job of punishing those who abuse detainees. Ironically, the very next day, Captain Ian Fishback's allegations of widespread detainee abuse by the celebrated 82nd Airborne were published - allegations that included the lamentable story of Fishback's 17 months of futility trying to get the Army to address the abuses, which included outrages like breaking a detainee's leg with an aluminum baseball bat purely for amusement. Then, on October 6, the Senate passed the McCain Amendment by an overwhelming bipartisan vote, demanding that the United States forego cruel, inhuman, and degrading treatment of detainees. The Amendment, attached to a massive defense appropriations bill, plugged a loophole in the law that the Bush administration has used to reach the bizarre conclusion that the ban on cruel, inhuman or degrading treatment does not apply outside U.S. territory. Astoundingly, the Bush Administration replied that the McCain Amendment is so unacceptable that the President might exercise his first veto ever against a bill that has the Amendment attached. This protest is tantamount to an admission that the United States has indeed been abusing detainees abroad, and doesn't want to stop. Why else would the President so vehemently oppose McCain?

The McCain Amendment's heart is in the right place - but, unfortunately, it may not survive the Congressional conference. Even if it does, it contains one conspicuous weakness: it attaches no penalties to violations. Thus, even if the McCain Amendment becomes law, it is still the Geneva Conventions that offer the best hope of legally controlling the kind of practices that led to Abu Ghraib - and, if Fishback's accusations stand up, other abuses as well. Geneva has the tremendous virtue of familiarity: U.S. military standard operating procedures have been built around them for more than fifty years. If the Supreme Court leaves Hamdan's ruling intact, the wall that Geneva built to protect detainees from torture, humiliation, and violence crumbles.

The Hamdan majority adopted the Bush Administration's argument that Geneva does not apply in the War on Terror. According to this argument, Article 3 applies only to "internal" armed conflicts - civil wars within a single country. The War on Terror is not a civil war, nor is it an old-paradigm war between nation-states; neither fish nor fowl, it falls outside all categories that Geneva protects.

The Hamdan majority has treaty text to back up its interpretation. Article Three states that it applies only "in case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., parties to Geneva]." The War on Terror undoubtedly is "of an international character," and it occurs in the territories of many states, not one; thus, Article Three does not apply. So goes the argument, and it has some plausibility.

As Judge Williams notes in his dissent, however, the awkward phrase "not of an international character" simply means "not between nation-states." International law has traditionally been defined as the law governing relations among states - the literal meaning of "inter-national." And so, "not international" doesn't mean "internal" - it merely means "not between nation-states." On that reading, the standard one among international lawyers, Article Three does apply to the War on Terror, which clearly is an armed conflict not between nation-states. Initially, the framers of the Geneva Convention considered limiting Article Three to internal armed conflicts; but they rejected that narrow phrasing in favor of the broader phrase "not of an international character." Nor does the phrase "…occurring in the territory of one of the High Contracting Parties" limit Article Three to conflicts within a single state. That phrase is in the Convention simply to ensure that Geneva applies only to states that are parties to it, not states that aren't. Treaties cannot bind non-parties, and Geneva would have been invalid if it purported to apply outside the territory of at least one of its "High Contracting Parties." Today, that is a non-issue, because every state in the world except the demilitarized island republic of Nauru has joined the Geneva Conventions. But in 1949 it was unclear that Geneva would win such universal acceptance, and so the treaty had to add language limiting its scope to states that agreed. The phrase is there purely for jurisdictional purposes, and it means "at least one High Contracting Party," not "at most one."

Of course, these esoteric interpretive issues can be debated, as the split opinion in Hamdan clearly demonstrates. All the more reason for the Supreme Court to weigh in on the issue rather than ducking it. In the post-Abu Ghraib era, the stakes could not be higher.

The issue goes deeper, however, to the very nature of human rights treaties - and here the D.C. Court of Appeals simply ignores the way that our closest allies read such treaties. The United States has argued - most persuasively in an internal executive branch memo written by the controversial law professor John Yoo - that in 1949 the framers of Geneva never even considered the possibility of a conflict like the War on Terror. All they had in mind was state-against-state wars like World War II, or civil wars, like the Chinese civil war then in its end stages. Yoo argued that to expand Geneva protections to the War on Terror is to go beyond the intent of the drafters and, in effect, to modify the treaty without going through the formal amendment process.

Apparently, the Bush Administration bought this argument, because Yoo's opinion formed the basis of the President's declaration February 7, 2002 that Geneva does not apply to Al Qaeda or Taliban captives. But the argument uses an interpretive method that international law and our allies have rejected. International tribunals and the European Court of Human Rights have argued that there is something special about human rights treaties that calls for a more expansive interpretive method. Thus, in a 1989 decision the European Court noted the "special character" of any "treaty for the collective enforcement of human rights and fundamental freedoms." The "object and purpose" of such treaties "require that its provisions be interpreted and applied so as to make its safeguards practical and effective." In the same vein, the International Criminal Tribunal for Former Yugoslavia thought that expansive readings of human rights treaties guides "the entire logic of international humanitarian law. This body of law is not grounded on formalistic postulates…Rather, it is a realistic body of law, grounded on the notion of effectiveness and inspired by the aim of deterring deviation from its standards to the maximum extent possible." These Courts understand that the whole point of universal human rights is that they are supposed to be, well, universal - and that means you don't loophole human rights treaties like Geneva with the aim of narrowing them. You read them as living documents that expand to fill gaps that changes in the challenges to human rights create. If the nature of war has changed since 1949, it would defeat the purpose of a human rights treaty like common Article Three to restrict it to the kind of wars being fought in 1949.

In fact, the European Court's and Yugoslav Tribunal's conclusion follows the standard methods of treaty-reading that international law creates and that the United States has long accepted. There happens to be a treaty about the law of treaties - the Vienna Convention on the Law of Treaties. According to the Vienna Convention, when the plain meaning of treaty language is unclear, interpreters should look to the "object and purpose" of the treaty. When it is a human rights treaty, object-and-purpose analysis call for generous readings, not cramped, crabbed loophole lawyering. U.S. foreign relations law accepts these provisions of the Vienna Convention - but the Hamdan decision does not so much as mention them. If the D.C. Court of Appeals decision stands, the United States will find itself at odds with much of the rest of the world, including our European allies.

That would be a curious result at a time when it has become controversial whether the Court should consider the way foreign courts treat legal issues. Justices Breyer and Kennedy have both taken fire from the right because of their willingness to cite decisions of foreign courts; currently, a resolution is pending in the House of Representatives condemning the very mention of foreign judgments in U.S. constitutional opinions. Apparently, the idea that U.S. jurists might learn from outsiders is unpatriotic and undemocratic. (Perhaps the logical next step is to forbid U.S. courts from citing scientific evidence written by foreign scientists.) Both these Justices have been admirably steadfast in insisting that solipsism and jingoism have no place in judicial deliberation. When it comes to reading treaties, the case for looking to international sources is even stronger, because the Vienna Convention (in another provision that the United States accepts) instructs interpreters to take into account "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its application." In other words, treaty interpreters are supposed to look at how treaties have been applied around the world.

If the Court denies cert to Hamdan, it will say, in effect, that the reach of human rights treaties, and the methods for interpreting them, are simply not issues worthy of the Court's attention. That would be a curious result indeed.
Posted 2:08 PM by Guest Blogger [link] (27) comments

Judicial Nominations and Elections

Mark Graber

One way of thinking about judicial nominations is that, while the court has a famous tendency to follow the election returns, the court and judicial nominations are also struggles over what election returns mean. Indeed, one might interpret the present debate over Harriet Miers as a debate over the meaning of 2004 (or a set of elections from 1994 to 2004).
For George Bush, the 2004 election was a personal triumph. Americans voted to put him in office. In particular, Americans trusted him to lead the country. It follows from this that the ideal judicial nominee to cement this electoral result is a nominee whose main qualification is personal loyalty to George Bush. If the rest of us are not 100% sure exactly what that means (well, we have a good idea what it means with respect to torture, but can debate whether it means overrule or narrow Roe), so what. Americans in 2004 voted to trust George Bush and we should trust him now.

For many conservatives, the series of elections from 1994 to 2004 were a triumph of a conservative constitutional vision. The precise content of this vision is subject to some dispute, compare the differences between Randy Barnett and Robert Bork, but what is crucial is that Americans have empowered this administration to make fundamental changes in the constitutional status quo, be that challenging principles of federal power dating from the New Deal, overruling Roe, providing greater protection for property rights, dismantling affirmative action and federal habeas corpus, or some other variation/combination. Harriet Miers is unacceptable because she does not embody any conservative constitutional vision. Edith Jones does, as do a host of other characters. Hence, but entrusting a crucial Supreme Court position to a personal loyalist, Bush betrays the revolution of 1994 to 2004.

For many liberals, the series of elections from 1994 to 2004 merely demonstrate that Americans are badly divided and polarized on the crucial constitutional issues of the day. No one has a mandate to govern from the extreme. Rather elections indicate a lack of consensus. Hence, the appropriate Supreme Court nominee is a moderate conservative, who reflecting that conservatives have enjoyed more success than liberals, will not engage in liberal activism, but reflecting the uncertain state of American politics, will generally maintain the constitutional status quo.

My position is that both the liberal and the conservative position have elements of truth, that the country is clearly moving rightward on a good many issues, but that conservatives have no achieved a 1932-36 style victory. Indeed, they are counting on Democratic spinelessness to achieve in the courts what they cannot win at the polls.

John Roberts had elements that might appeal to all three. He was a Republican loyalist, had attachments to movement conservatives, but was convincing to some (not me) that he was generally happy with the constitutional status quo. Miers's appeal is strictly to those who trust George Bush or believe that the election of 2004 commits Americans to trusting George Bush.
Posted 1:32 PM by Mark Graber [link] (11) comments

Sexual Perversion in Rumsfeld's Pentagon

Scott Horton

This week Capt. James Yee’s book concerning his experiences in Guantánamo will hit America’s bookstores. This morning’s Sunday Times (London) offers a fascinating set of excerpts from Yee’s work. Money quote:

“It was my turn to be humiliated every time I was taken to have a shower. Naked, I had to run my hands through my hair to show that I was not concealing a weapon in it. Then mouth open, tongue up, down, nothing inside. Right arm up, nothing in my armpit. Left arm up. Lift the right testicle, nothing hidden. Lift the left. Turn around, bend over, spread your buttocks, knowing a camera was displaying my naked image as male and female guards watched.

“It didn’t matter that I was an army captain, a graduate of West Point, the elite US military academy. It didn’t matter that my religious beliefs prohibited me from being fully naked in front of strangers. It didn’t matter that I hadn’t been charged with a crime. It didn’t matter that my wife and daughter had no idea where I was. And it certainly didn’t matter that I was a loyal American citizen and, above all, innocent.”

When all the baseless suspicions against Yee were disproved, the Pentagon turned to its favored technique to punish him. He was accused of improper sexual conduct. In American society today, these words generally relate to conduct that is abusive – unauthorized sexual contact. Not in Donald Rumsfeld’s Pentagon: there they relate to consensual sexual relations between a man and a woman. The consistent factor is that one of the sexual partners has made it on to the Pentagon’s black list for one reason or another.

The Rumsfeld Pentagon has developed destruction of the character of those who get in its way to an art form. Those viewed as troublesome become the target of a special investigation. Wiretaps are applied to their telephones and their emails are read. An evidentiary case is built and humiliating leaks to the press occur.

Let’s stop for a moment and ask: when the persons in question are two-, three- and four-star generals, at what level must this be authorized? In fact, the targets have included two-, three- and four-star generals, and the authority or impetus for such action has almost certainly come from the Office of the Secretary of Defense. The charges brought have tended to fall into two baskets: charges of petty dereliction and sexual misconduct. In the former case, we have seen charges that officers kept classified documents on their laptop computers – when the documents turned out not to be classified; and we have seen charges of petty errors and oversights in contract administration. (Conversely, serious cases of contract misadministration involving billions of dollars and Halliburton are resolved by persecuting the whistleblower.) But the favored technique clearly lies in bringing charges of improper sexual conduct, invariably involving consensual sexual relations.

These charges are easily brought. The number of eunuchs and sexual abstainers among the uniformed military is low and sociological research has long shown that the vast majority of the population has sexual relations outside of wedlock at some point. That means that these charges can be brought against virtually anyone. If the rules were enforced uniformly and aggressively, we would not be able to maintain a volunteer army. But the current highly selective application may achieve the same result. Two important bar organizations have already looked at the situation and concluded that the application of sexual misconduct rules by the uniformed services suggests highly uneven application. Both urged reforms. The Pentagon refuses to budge. The tool is too powerful, and too readily abused. Therein lies its attraction.

In addition to the case of Capt Yee, developed in his current book, consider these:

- Maj Gen Thomas J Fiscus, Judge Advocate General of the Air Force – known to have criticized rules on treatment of detainees – accused of sexual misconduct

- Lt Gen John Riggs – questioned the level of troop commitments to the Iraq campaign – accused of sexual misconduct and technical contract infractions

- Gen Kevin Byrnes – responsible for incorporating changes in doctrine on interrogation and treatment of detainees, rumored to have had reservations about changes hammered through by Rumsfeld – accused of sexual misconduct

Each of these cases suggests highly irregular investigative and disciplinary process which sharply discredits the Pentagon and the military justice system. Press reports also demonstrate a remarkably incurious media that frequently plays into the Pentagon's smear tactics by failing to fathom the currents under the press releases. The Pentagon is aided in this process by the coerced silence of the accused, usually eager to salvage something of his pension and benefits. A good example is the Washington Post article reporting on the punishment of General Fiscus. An unnamed Pentagon source is quoted as saying, with obvious malice, that Fiscus can expect to be disbarred as a consequence of their action. When I raised the matter with a bar ethics committee chair, I was told this: "If we began disbarring lawyers because of consensual sexual relations, we would rapidly run out of members."

To really understand what’s going on, these cases and the extreme sexual priggishness they reflect must be juxtaposed against a decision – taken at or near the top of the chain of command and crammed down on investigators – to jettison prior military doctrine requiring humane treatment of detainees. In introducing new, inhumane practices, the Pentagon leadership embraced sexual humiliation tactics with particular relish. An examination of published accounts of the twelve internal Army investigations discloses the following admittedly inhumane practices:

- enforced nudity, including suggestive poses and stacking of bodies;

- allusions to and threats of improper sexual conduct;

- improper and unauthorized touching, including touching of genitalia;

- probes involving light sticks and other tools (which may come close to constituting rape by instrumentality under state statutes);

- use of (fake) menstrual blood;

- sexual blackmail;

- distribution and use of sexually explicit materials;

- suggestions that detainees are homosexual or have otherwise engaged in sexual conduct inconsistent with Muslim religious values; and

- having an interrogator deliver “lap dances” to detainees.

These practices clearly violate legal rules and traditional US military doctrine on the treatment of detainees. They also degrade the US service personnel who are required to apply them. But consider the swing between the disgrace and ruin of highly valued career officers for consensual sexual relations and the officially sanctioned, grossly abusive sexual misconduct described above. It demonstrates a plasticity in moral values, that can only be called breathtaking. How are we to bridge this chasm? The most appealing explanation lies in the motives of those driving this ostensibly schizophrenic conduct. Plainly, they view sexual morals as something to be manipulated for the accomplishment of political objectives. Hence, lewd and offensive sexual conduct can be deliberately used as a tactic against detainees. On the other hand, officers who earn the leadership’s ire will be humiliated and disgraced using innuendo of sexual misconduct as a tactic.

The cynicism and immorality of this mindset is staggering. It reflects a wholesale repudiation of traditional military values.

One can well question the efficacy of sexual humiliation practices as tools for interrogation and intelligence gathering. However, no one can question their highly inflammatory effect in the War on Terror: they tarnish America's reputation and put our soldiers at risk. And they may well claim another victim. Experts are already noting that at Rumsfeld's current burn rate, the volunteer army cannot be sustained much longer. Rumsfeld's cynical sexual policies are destroying military morale and discipline and hastening the volunteer army's demise.
Posted 9:07 AM by Scott Horton [link] (27) comments

What Does it Mean to Rebuild New Orleans?

Stephen Griffin

Suppose your home and the surrounding area were wiped out in a flood. The federal government agrees to restore the status quo ante, provided it is shown that your area is crucial to the economic health of the entire United States. The job of proving this proposition is given to you. How could you accomplish this? Perhaps you would start by feverishly combing through economic statistics, searching for the right figures that would show your hometown contributes something unique to the U.S. At the end of the day, however, you might grow nervous about whether you could show that your hometown is truly special. And perhaps you would begin to question the premises of the task. Isn’t it enough that you and your neighbors are citizens of the United States and the victims of a natural disaster? Isn’t that a valid claim on the resources of your government?

These questions have been occurring to me as I have been reading through the few extended commentaries (as opposed to reporting or op-eds) on Hurricane Katrina. George Friedman, a “strategic forecaster,” has written one that has been distributed on the web. James Stoner, a political scientist at Louisiana State University and an able student of American constitutionalism, has published one in The Weekly Standard (September 26, 2005). To put matters a bit crudely, these articles suggest that what is important about New Orleans is its port. No one can deny that the Port of New Orleans has substantial economic value. But I think many residents of the city and surrounding area would be surprised by the idea that the main justification for rebuilding New Orleans is to preserve its port. This first suggests that the only justifications that matter are economic, which is surely not right. But the surprise would be also that the port is only one piece of a larger economic picture.

Let’s stay with the economic perspective for a moment. Besides the port, what does New Orleans do? There’s tourism, of course, which tends to be written off as a fountain of low-wage dead-end jobs. That’s a bit simplistic, because tourism itself is a vital source of entrepreneurship in the local economy, although the self-starters here are chefs, musicians, and hoteliers. But that constitutes economic activity nonetheless. The largest private employer in New Orleans is Tulane University, where I teach. New Orleans will never be described as a college town, but there are a significant number of knowledge producing institutions here including Tulane, Loyola, Dillard, Xavier, the public University of New Orleans, a branch of Southern University, and the medical school of Louisiana State University. Locals know that New Orleans has two medical schools (LSU and Tulane) that engage in scientific research and a lot of hospitals, including the enormous Charity Hospital that was hard hit by the storm. So education and medicine must be added to the lists that always include the port and tourism. This suggests that rebuilding New Orleans will be a matter of jump-starting many different economies at once, and all deserve attention from the federal government.

Before I become a complete booster, I want to step back and ask whether this sort of inquiry is really necessary. All cities have some economic rationale. There are only a few in twentieth century U.S. history that have been faced with the realistic prospect of disappearing (East St. Louis, Illinois and Camden, New Jersey come to mind). Perhaps economic value should be presumed, and we should analyze this issue from the perspective of equal citizenship. Surely part of the reason we rebuild cities and regions after natural disasters like Hurricane Katrina is that we would want the same done for us. We acknowledge a mutuality of concern, a reciprocity of benefit (dare I say equal concern and respect?) among our fellow citizens.

So I come to the main question – how should New Orleans be rebuilt? I do not think it will be surprising to say that some public institutions should not have their terrible status quo ante restored. There were public housing projects that should have been rebuilt years ago and even more aged schools where the best thing to do is just raze them and start over. New Orleans should not be rebuilt – it must be reconstructed. The public will only get value for the taxpayer dollars spent if New Orleans becomes a different place, with better housing and better schools. But can we make New Orleans a vital commercial center as well? Stoner is hopeful. He says that once the city is made secure from the threat of future storms, “there is no reason that New Orleans should not find a niche in the growing information economy, which values personality and thrives on human interest as well as technical proficiency.” Here I have some serious doubts.

It is useful in this respect to consider the lessons of John Barry’s widely read book, Rising Tide (concerning the Mississippi flood of 1927). According to news reports, Barry participated on a task force summoned by Louisiana senators Mary Landrieu and David Vitter to design legislation to rebuild New Orleans and southern Louisiana generally. I wonder what he told them. Barry’s book has been cited for the proposition that the federal government long ago assumed responsibility for preventing floods along the Mississippi and is therefore ultimately responsible for the failure of the levees around New Orleans. But Barry argues also that the 1927 flood led to (or at least was part of the story of) the decline of New Orleans as a commercial city. Barry comments that New Orleans had never been open to new people, to immigrants. “New Orleans had been exclusive from the first” and “After the flood the city grew ever more insular.” (p. 410) He continues:

“The social conservatism intertwined with the financial conservatism; the one magnified the effect of the other. In the 1970s, a local economic study concluded: ‘[The] social system excludes executives recently transferred to New Orleans and discourages their participation in community issues. . . .A narrow circle of wealth-holders . . . represent a closed society whose aims are to preserve their wealth rather than incur risks in an effort to expand it. . . . This development has reduced the opportunities.’ At the same time, Eads Poitevent, a bank president and Boston Club member, conceded: ‘The long-established New Orleans financial community has often been accused of being a conservative aristocracy that was tight-fisted and wanted to keep things as they have always been. To some extent, that is absolutely true.’ As a result, business in the city did not expand; it shrank. Local companies found it more difficult to grow. Large companies looking for headquarters, or even a regional headquarters, put their operations in Houston or Atlanta. Only one Fortune 500 company, Freeport McMoran, has its headquarters in New Orleans.” (p. 411)

The public cannot get value for its money unless New Orleans is reconstructed, not rebuilt. But reconstruction cannot occur without addressing what might be called the question of the social. Do you want to spend billions to allow New Orleans to keep Mardi Gras? I don’t mean the colorful parades, but the social exclusiveness that has traditionally operated to the detriment of the city’s commercial prospects. Contrary to Stoner, there are many overlapping reasons why New Orleans cannot participate in the information economy. The Mardi Gras mentality, social exclusivity, not to mention public schools with a dreadful reputation, all stand in the way. If the rest of the U.S. wants things to be different, they must set conditions on the rebuilding of New Orleans. At the moment, conditions having to do with possible corruption are receiving all the attention. But the conditions that matter are those that would change and possibly transform Louisiana politics and society.
Posted 3:26 PM by Stephen Griffin [link] (45) comments

Why are Bush's Nominees so Moderate?

Guest Blogger

Michael E. Levine

President Bush has now surprised both his friends and his enemies by nominating Supreme Court justices who are conservative but apparently not "out of the mainstream", at least as the mainstream is understood by those to the right of Nancy Pelosi and Barbara Boxer. Is the President a closet "moderate"? Has he turned his back on his base?

No. He is simply maximizing his preferred choices within two constraints, one self-imposed and one imposed on him. The self-imposed constrained is easily articulated: as much of 43's presidential choices seem to have been made to avoid repeating his perception of 41's mistakes, he is unwilling to nominate someone who will be "another Souter". As I interpret this, for 43 the sin of the Souter nomination was less that he ultimately didn't turn out to be as conservative as Sunuunu had told 41 he would be, but rather that 41 took Sunuunu's word for it and nominated someone he didn't know, saying things about him that ultimately made it look to his supporters and to history that he didn't know what he was doing.

This President Bush is not going to nominate anyone to the court who will surprise him or history. In Roberts' case, he chose someone he knew a little but whom many people knew a lot and who had such a distinguished profile and career that the only possible grounds he might have been rejected on were ideological. (I'll get to that in a moment.) In the case of Miers, he has chosen someone he knows extremely well personally, probably as well as any president has known a nominee since Fortas. While it may not be possible to predict how either will rule in every case, there will be no dramatic surprises with either of them.

The imposed constraint is more interesting in some ways: No matter who screams and yells from either the conservative or liberal side of the Senate, the President cannot afford a donnybrook at this moment in his political life (Katrina, Iraq, budget, congressional leadership ethics, "outing" CIA agents, etc.). He can avoid one by de facto presenting his nominations not to the Judiciary Committee or to the Senate as a whole, but to a committee of 14 Senators who contain within them the deciding votes on whether the Democrats can conduct a filibuster and whether the Republicans can change the Senate rules to outlaw filibusters on judicial nominations (the so-called "nuclear" option). In modern political economy terms, the group contains within it the "median voter" on both issues (to defeat a filibuster requires 60 votes, so the "median voter" in that case is not the 51st vote but the 60th.) No candidate unsatisfactory to this group can be confirmed and no candidate acceptable to this group can be defeated.

Who is the Gang of Fourteen? In a very polarized Senate, it is a group of seven Senators from the left (such as it is) of the Republican Senate delegation and seven from the right (such as it is) of the Democratic delegation who care enough about the Senate and the country not to want to see the Senate's traditional function as the more deliberative and less partisan body gutted and who recognize that when a President wins an election (pace Bush v. Gore and all that), he or she is entitled to nominate Justices who broadly represent the point of view that won.

The Gang of 14 made an agreement whereby the seven Democrats would no longer vote along with their party on filibustering judicial nominees except in "extraordinary circumstances", and in turn the seven Republicans would break with the Republican leadership on voting for the "nuclear option." Just what an "extraordinary circumstance" is was left undefined, but at a minimum what it means is that the President cannot insist on a nominee so conservative that he or she will get support only from the Republican "base", requiring party discipline to hold the Republican vote for her, nor can the Democrats refight the 2004 election by insisting that nominees be broadly acceptable to them.

In President Bush's current circumstances, pressed from the right and wishing to avoid a divisive fight that will highlight the disarray his administration is teetering toward, this means staying well within the boundaries defined by the Gang. There are two ways to do this: one, nominate a minimalist conservative (one who avoids legislating from the bench and would have a preference for staying within precedent where possible, in contrast to one who wants to rewrite law to enshrine an earlier, or perhaps unprecedented, view of the Constitution) who so stellar that the only possible objection to him is extreme ideology of the left or right. Enter Mr. Chief Justice Roberts. Two, nominate someone whose views are known well only to the President, allowing him to defend her to the right by saying he really knows her and they should trust him and to defend her to the left by making sure that she has left no imprint that would suggest that she is an ideologue. Enter Mme. Miers.

What are President George W. Bush's "real" views on what kind of nominee or Court he wants? We'll never know. But we know what kind he can have.

Posted 7:43 AM by Guest Blogger [link] (52) comments

Guest Blogger: Stephen Griffin

JB

I'm very pleased to announce that constitutional theorist Stephen Griffin from Tulane will be guest blogging on Balkinization. Steve has said that he wants to blog in particular about the issues of governance arising out of hurricane Katrina. Please give him a warm welcome.
Posted 3:37 PM by JB [link] (23) comments

The Katrina Experiment

Stephen Griffin

The United States has begun a large-scale human experiment of the kind social scientists only dream about. The authorities instituted a mandatory evacuation of an old city and the surrounding region and are now attempting to literally jump-start its economy, society, culture, and politics. Can they pull it off? From the perspective of governance, looking at the many ways our constitutional and legal order interacts with politics and society, the reconstruction of southeast Louisiana is certainly the most interesting (and possibly the most important) phenomenon on the contemporary American political scene.

It is one that concerns me directly, since I teach constitutional law at the Tulane University School of Law. I say “teach,” although the fall semester has been cancelled and the campus is still closed to everyone, including faculty. So I am writing and thinking about Katrina from the relative safety of my home in Mandeville, Louisiana, on the north shore of Lake Pontchartrain in St. Tammany Parish.

There are all sorts of policy issues connected with Hurricane Katrina, of course, but one of the most interesting consequences of the storm is how it has revealed the preconditions for effective governance in the contemporary United States. A simple example, drawn from still-unfolding developments, is provided by the empty coffers of local governments. The governments of southeast Louisiana, including the city of New Orleans, are running out of money. No tax base equals no money. That’s obvious you might think, although prior to Katrina no one thought about this problem because it was thought that after a hurricane, everyone would just move back in (as they had done so many times before). Now, however, there is nothing to move back to across tens of square miles. The federal government is the only government capable of funding the operating expenses of local government. But on what basis and under what conditions?

Here’s another precondition: the balance between confidence and uncertainty. As you read this, a crucially important race is being run in Louisiana, a race between confidence and uncertainty, one largely governed by perceptions of risk about the future. Individuals are wondering whether insurance will cover their damages, whether federal help will step in for insurance, whether New Orleans will Nola be safe and non-toxic, and so on. Businesses are wondering whether their employees will show up, whether they will be able to hire in an area with a labor shortage, whether they will get a loan from the Small Business Administration, and insurance, insurance, insurance. And everyone is thinking about hurricane protection in the future – what will the federal government do to improve the levee and coastal protection system. Everyone is studying the news for signs – is the water on? Is the power coming back to my neighborhood? What’s going on with my house? The more these reasonable questions can be answered, confidence grows and people will expect New Orleans to come back. The more time that goes by without answers and convincing leadership, uncertainty starts to win the race. I suggest uncertainty is a killer of communities and economies. Everyone who lives here who has some damage and doesn’t have a perfectly secure job or business is having their confidence slowly eroded by uncertainty about the future. And that could severely impact the Katrina experiment, the reconstruction and repopulation of Nola (the term I will use for New Orleans and the surrounding region).

The drag of Louisiana’s past is not helping matters. Hurricane Katrina has been a clear lesson in the role that stereotypes play in framing responses to unusual, complex policy matters. There are many stereotypes kicking around, but the most salient right now is the specter of corruption. Not to sound too defensive, but any fair review of news articles over, say, the last two years would show plenty of local/state corruption in New York (although that state would do better if Long Island were removed), New Jersey (local again), and Connecticut (governor), although I don’t believe any of these states is surrounded by a special aura of corruption. But the corruption stereotype is also a distraction from the real problem that has plagued the state’s development efforts in the past – a perfectly legal, though unwise emphasis on benefiting your family (kin) and friends first, to the exclusion of (dare I mention it) the common good. But Katrina is the kind of event that should remind us that on occasion there is a common good, if it is only the one of avoiding policy disasters that are in no one’s interest.

Addendum, October 12 -- On how the "race of perceptions" looks in Louisiana, see the guest column in today's Washington Post: http://www.washingtonpost.com/wp-dyn/content/article/2005/10/11/AR2005101101324.html. I note the NYT today called for Bush to actually submit a reconstruction plan; people here are getting impatient as well. Reading between the various news articles, it seems a plan is being drafted by House Republicans, not the White House.
Posted 3:33 PM by Stephen Griffin [link] (36) comments

Does Church-State Separation Apply to Theories of Constitutional Interpretation?

Brian Tamanaha

The question of whether the doctrine of separation of church and state applies to theories of constitutional interpretation may sound confused, irrelevant or implausible, or an obvious affirmative (or negative). But not so fast.

A repeated theme of conservative critics of Bush's nomination of Harriet Miers is that she lacks a developed theory of constitutional interpretation. That remains to be seen. However, based upon news reports that the Bush Administration is selling her nomination to evangelical leaders (with some success) by convincing them of her fundamentalist religious commitment, it is not far fetched to ask whether she may in a certain subclass of cases apply a rule of interpretation that goes like this: When in doubt, interpret the Constitution consistent with the will of God.

Miers hasn't said this, nor would she openly, but leading Christian conservative Dr. Dobson has made veiled assurances to his fellow fundamentalists--"You will have to trust me"--which suggest that this is not an absurd idea.

According to news reports, Miers is a committed member of her church. The below propositions are taken from the Church's statement of beliefs [Impt: see addendum below for correction]:

•We believe that there is one Living and True God, eternally existing in three Persons, the Father, the Son, and the Holy Spirit, equal in power and glory; and that this triune God created all, upholds all and governs all.

•We believe that the Scriptures of the Old and New Testaments are the Word of God, fully inspired, without error in the original manuscripts, and the infallible rule of faith and practice.
....
•We believe that God created this world in 6 days, that He created man in His own image, for fellowship with Himself.

•We believe that life is sacred. It begins at conception and should be held in respect. Abortion to us is the taking of innocent life and should be condemned.

•We believe that God created man and woman for celibacy or a monogamous relationship. Homosexuality is a perversion of God's design and is condemned by Him in the Scriptures. We love the homosexual but denounce the behavior.

•We believe that God is sovereign. Man does not possess the judgment nor the right to determine when one's life should end. Euthanasia is man assuming God's sovereign role and therefore, must be rejected.

The first clause literally holds that these views "govern all." This may be read as the ultimate Supremacy Clause. The final four clauses raise issues now before the Supreme Court or likely to come before it.

Miers has not stated whether she adheres to these propositions or what role they will have in her decisions as a Justice. Perhaps it will have no role at all (though Dobson seems to think otherwise). But there is enough here to make it legitimate--indeed pressing--to ask.

So back to the question: does the separation of church and state apply to theories of constitutional interpretation?

Literally the First Amendment establishment clause does not apply: "Congress shall make no law respecting an establishment of religion..." Although a strong argument can be made that said theory of constitutional interpretation amounts to an "establishment of religion," this does not involve an Congressional enactment.

The only other clause that might apply is Article VI section 3: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

A theory of constitutional interpretation applied by a sitting Justice is not "a Qualification" for Office, so again it would seem not to apply. Indeed, if it applies at all to this situation, it would be to prohibit the apparent demand of certain Senators as a condition of their support that Miers explicitly commit to to overturning Roe (and please don't bother denying that this is a religious test).

So there is no explicit Constitutional provision that would prevent such a theory of interpretation. Invoking the Supremacy Clause is a stretch, because a theory of interpretation like this does not challenge the supremacy of the Constitution--it just tells the judge how to read it.

We can depart the words of the Constitution and resort instead to the notion that the separation of church and state is a constitutional principle, which would prohibit a theory of interpretation like this.

This argument, however, starts out on shaky ground because it is not based upon any directly relevant language in the Constitution. Original intent does not clear up much. For some the separation was to protect the state and for others it was to protect religion. And in either case it is not clear that anyone had a theory of constitutional interpretation in mind. It gets even trickier when one recognizes that scripture was still referred to by judges in the 18th century as a part of the common law (young Jefferson wrote an essay attacking this), and that the Supreme Court referred to natural law principles in a few early 19th Century cases.

The answer is uncertain.

This may all sound like moot speculation. If Miers did apply such a rule of constitutional interpretation, it is unlikely she would ever state it explicitly in an opinion. Nor is there anything that could be done about it (forget impeachment).

For these reasons it is anything but moot right now. Religious conservatives cannot insist that Miers pass their religious test before getting their support for her appointment, then turn around and object to specific questions about whether she would apply a theory of constitutional interpretation like the one stated above.

This is not about treating a person unfairly owing to her religious beliefs, but about knowing how a Justice will interpret the Constitution.


ADDENDUM: Two alert readers of this post have informed me that the list of church principles I have recited does not come from Miers' church, but from a church with the same name in a different location. My apologies for the error. I have not altered the post other than to note this correction because, as one of the readers noted, it has been reported that her own church holds views similar to those listed above. My thanks to the readers for the correction.

ADDENDUM 2: A member of Ms. Miers Church sent me their statement of beliefs to clarify the record. I have reprinted them in full below:

WHAT WE BELIEVE AT VVCC http://www.vvcc.org/beliefsgo.asp

Our beliefs are not innovative. Anyone familiar with historical Christian teaching will find these statements fall well within the boundaries of evangelical theology. (Evangelical means theology derived from the evangel, or the Gospel. In other words, it's biblical theology rather than speculative theology or theology rooted in tradition.)

We try not to be dogmatic about matters on which believers hold divergent views. Our core beliefs are centered in Christ and His message as supported by Scripture. More obscure doctrine, as well as controversial issues about which the Bible is silent, are left to believers to sort out on their own. On these issues we take no official/dogmatic position. What follows is a summary of what we believe.

We believe the Bible to be the only infallible, inspired, authoritative Word of God. As such it is our final authority for all matters of faith and Christian practice. (2 Timothy 3:14-16)

We believe that there is one God eternally existing in three persons- Father, Son and Holy Spirit. He is the Creator of all things. (Genesis 1:1; John 1:1; Matthew 3:16-17; 2 Corinthians 13:14)

We believe in Jesus Christ, God in human flesh, who came to this world to die for our sins and who was bodily raised from the dead. (1 Corinthians 15:1-8 )

We believe in the Holy Spirit, the Spirit of the Living God, who draws people to Christ and who lives in every person who has received Christ. (John 16:8-9; Acts 2:38; Ephesians 1:13-14)

We believe that man, created by God, willfully sinned and as a result is lost and without hope apart from receiving Jesus Christ. (Romans 3:23;6:23; Acts 4:12)

We believe that salvation (forgiveness of sins) is available only by the grace of God through the blood of Jesus Christ. This free gift of forgiveness is offered to all who receive Christ as Lord and Savior. (Ephesians 2:8-9; Colossians 2:6; John 3:16)

We believe the Bible clearly teaches the pattern to receive Christ is to believe in Jesus as God's Son and Savior of the world, repent of personal sin, confess Christ publicly, and be baptized. (Romans 10:9; Acts 2: 36-38; Mark 16:16)

We believe that full immersion under water is the prescribed mode of baptism as indicated by Jesus' own example and command, and best depicts our union in His death, burial, and resurrection. (Mark 1:9-10; Matthew 28:19; Romans 6:4)

We believe that the Church is the body and bride of Christ on earth, founded on the day of Pentecost, consisting of all Christians everywhere. (Matthew 16:13-18)

We believe that death seals the eternity of each person (Hebrews 9:27). Those who are forgiven will spend eternity with God in heaven, those not forgiven will be eternally separated from God in hell. (John 5:28-29; Daniel 12:2; 2 Corinthians 4:14; Acts 17:31)

17601 Marsh Lane | Dallas, Texas 75287 | 972.245.8822| info@vvcc.org|
Posted 11:00 AM by Brian Tamanaha [link] (37) comments

Is the Miers Nomination in Trouble? Some Data From Epstein and Segal's Advice and Consent

JB

The Miers nomination gives me an opportunity to talk about a wonderful new book, Advice and Consent: The Politics of Judicial Appointments, by two prominent political scientists, Lee Epstein and Jeffrey Segal. Epstein and Segal have produced a short, accessible book with a wealth of data and historical examples that tells you virtually everything you need to know about Presidential nominations to the judiciary. Epstein and Segal demonstrate that politics in judicial nominations is nothing new. From the beginning of the Republic presidents have used the courts to promote their political ideologies, and the Senate has been influenced by politics in its decision whether to confirm. The only thing that has changed in recent years is the degree of public participation-- including a far more prominent role played by interest groups-- in federal judicial nominations. The politics of judicial appointments has become more obvious today as the process has become more participatory and, in some respects, more transparent. But, in Epstein's and Segal's view, it has not suddenly become more political.

This book could not have come out at a better time, especially because Epstein and Segal give a detailed discussion of the factors that cause nominations to succeed or fail. Although many of their observations will be obvious to students of the Court, they back them up with a wealth of social science data. Epstein and Siegel use statistics to confirm that Senators are more likely to vote for a candidate who is perceived to have impeccable qualifications, and they are less likely to vote for a candidate whose ideology is perceived to be widely different from theirs. They note that stronger public support for a candidate usually increases the chances that the candidate will be confirmed, while weak public support adds to a nominee's troubles. Finally, they point out that candidates who are seen as tipping the Court in a new direction are likely to engender stronger opposition than those who are viewed as not significantly affecting the current ideological balance of power.

Their most important findings, however, involve how the two dimensions of ideology and qualifications interact. Epstein and Segal looked at hundreds of Senators' votes from 1953 to the present. (There are quibbles about the categories and measurement methods employed for this data, but the larger trends are not in question). Their findings are summarized in the following chart:

Senate Voting Over Supreme Court Nominees Since 1953
(by perceived qualifications of the nominee ideological compatibility between nominees and senators)

	Perceived Ideological Distance between Nominee and Senator
Perceived Qualifications of Nominee	Ideologically Very Close	Average	Ideologically Very Distant
Highly Qualified	99.3 (602)	97.3 (299)	94.8 (231)
Qualified	97.6 (422)	83.0 (317)	44.9 (187)
Not Qualified	91.8 (182)	38.5 (96)	1.7 (115)

What this chart suggests is that if a nominee is widely perceived as highly qualified, he or she is very likely to be confirmed. The nominee will pick up votes even from Senators who are vigorously opposed to the nominee's perceived politics (as viewed at the time of confirmation). However if the President submits a nominee whose qualifications are in doubt, the nominee quickly begins to lose votes among senators who believe that the nominee's politics are likely to diverge from their own. A nominee who appears unqualified will usually hold onto votes from Senators who believe that the nominee's politics are very close to their own-- ideology trumps lack of qualifications-- but the less qualified the nominee appears, the fewer other senators who will vote in favor. This doesn't matter if a majority of the Senators have the same ideology as the candidate, but that is rarely the case.

There is one apparent exception to the general rule that a widespread perception of sterling qualifications virtually guarantees confirmation, and that is Robert Bork. When Bork was nominated in 1987, most people believed that he was exceptionally well qualified to be a Justice; nevertheless he was not confirmed. My best guess is that this is because Bork's opponents successfully painted him as so extreme in his views that Senators believed that he was "off the wall" and so not really qualified despite his impeccable credentials. For example, Bork denied that Griswold v. Connecticut, which guaranteed the right of married couples to purchase and use contraceptives, was rightly decided. He also said that he could not think of a way to defend Bolling v. Sharpe, which held that the federal government could not segregate schoolchildren by race in the D.C. public schools. These statements, along with Bork's other views expressed in his previous writings, convinced a sufficient number of senators that he would not reason about constitutional issues the way that most mainstream lawyers would, and this undermined his otherwise sterling qualifications.

From this chart, you can see why John Roberts was almost certain to be confirmed as Chief Justice: he was widely perceived as having stellar qualifications and few people believed that he was wildly out of the mainstream; indeed he seemed to be the epitome of an establishment conservative lawyer. And you can also see why Harriet Miers might be in for some trouble. The key issue, I repeat, is perception, not reality. If Miers is perceived as relatively unqualified (particularly in comparison to Roberts), she will not be able to count on Senators who believe that her politics differs substantially from theirs.

From this chart you can also see the potential disadvantages of a stealth candidate. By definition a stealth candidate's perceived ideology is fuzzy and uncertain. As a result, more Senators from the President's own party have reason to believe that the candidate's views might differ markedly from their own. That gives them less incentive to support the candidate, all other things being equal. Put another way, the less qualified the candidate appears, the greater the chance that the uncertainty about his or her judicial positions-- the defining characteristic of a stealth candidate-- loses the nominee potential supporters he or she might otherwise have enjoyed. Note that this problem with stealth candidates arises only if their qualifications are in doubt. A nominee like David Souter benefited greatly from his prior judicial experience, his Ivy League credentials, and the perception that he was extremely bright, studious, and able. Indeed the stealth strategy is best designed for situations when the candidate is widely perceived to have strong qualifications. If a stealth candidate's qualifications are clearly excellent, lack of clarity about his or her ideology is more likely to help a candidate than harm him or her, because it greatly increases the chances of support from Senators who suspect the candidate's ideology is quite different from their own.

Harriet Miers is a stealth candidate whose qualifications have been questioned, whether fairly or unfairly. That makes her potentially far more vulnerable than John Roberts or even David Souter. She is vulnerable not because people on the left are uncertain about her judicial views-- for that uncertainty might actually gain her some votes-- but because people on the right are not certain whether she will be reliably conservative.

Hence the Bush Administration has two basic strategies to secure her nomination. The first is to counteract the image that she lacks the qualifications necessary to be a Supreme Court judge. She will have to impress the Senators at her hearings with her legal acumen and her command of constitutional issues. The second strategy is to convince conservatives that she is a reliable conservative on all the issues they care about. This appears to be the strategy that the White House has settled on for the time being. The reason is simple: President Bush cannot remake Miers' credentials-- they are what they are. But what he can do is send signals that he knows what her views are and that conservatives will like those views. Thus we have already begun to see news stories that Miers is a devoted born-again Christian, that Miers is solid on the War on Terror, and that Miers will support the interests of business.

Miers has a good shot at confirmation if this public relations campaign is successful and the President can convince his party to trust his assessment of Miers' likely views. On the other hand, if he cannot command virtually unanimous assent from the Republicans in the Senate, the nomination may be in for a bit of a rough ride, because he will have to rely on help from a substantial number of Democrats. And this creates a real problem for the President: The more clearly and successfully he defines Miers as a strong conservative, the less likely Democrats are to help him get her confirmed. But if the President lets Miers' views remain undefined and fuzzy, it will be far more difficult to keep members of his own party in line.

Posted 7:31 AM by JB [link] (5) comments

Halftime Score: John McCain 90, Dick Cheney 9

Marty Lederman

The Senate just voted 90 to 9 (yup, ninety to nine) in favor of Senator McCain's amendment to the Defense Appropriations bill, which would prohibit all U.S. personnel from engaging in cruel, inhuman or degrading treatment of detainees -- i.e., engaging in conduct that would "shock the conscience" under Due Process Clause doctrine -- anywhere in the world. The McCain Amendment, if enacted, would (among other things) close the "CIA loophole" that was created by virtue of the Department of Justice's controversial conclusion that Article 16 of the Convention Against Torture does not apply outside the U.S.

The vote tonight occurred only after White House officials this week "not only pressured Mr. McCain to modify his measure, but also approached sympathetic Senate Republicans to work against the amendment." (This was the latest episode in a longrunning dispute between Senator McCain and the Vice President on this issue.)

The lonely "nay" votes were cast by Sens. Allard, Bond, Coburn, Cochran, Cornyn, Inhofe, Roberts, Sessions and Stevens.

The House will, of course, be a tougher nut to crack (largely because of the Chair of the Armed Services Committee) -- as will the House/Senate conference. But ninety votes -- including that of the majority leader -- is a very strong tailwind for Senator McCain.

UPDATE: More from Andrew Sullivan here, including: thoughts on how the public support for Ian Fishback may have made a real difference; the text of Senator McCain's eloquent floor statement; and the text of a letter from Colin Powell, of all people, to McCain, in support of the amendment -- support that must have also contributed to the margin of the remarkable vote today. Of course, Powell has been pressing this side of the debate against Cheney, et al., since January 2002. It's telling that he can have more influence on the question now that he's out of the government than he ever did when he was Secretary of State and his warnings and pleas were routinely ignored.
Posted 9:23 PM by Marty Lederman [link] (19) comments

Libertarian Conservatives Upset At Their Fundamentalist Bedfellows

Brian Tamanaha

Mirror of Justice, a blog dedicated to Catholic Legal Theory, has a thread on whether religious conservatives were played by the Bush Administration. The explicit quid pro quo for the overwhelming electoral support evangelicals (as well as a large proportion of Catholics) provided Republicans at the last election was the appointment of judges who were against abortion and gay rights. Evangelicals were not shy about taking credit for Bush's re-election, and demanded their due reward. At a private conference in March 2005, with appearances by Bill Frist and Tom Delay, evangelical leaders discussed a plan to "work with congressional Republicans to achieve a judiciary that sides with them on abortion, same sex marriage, and other elements of their agenda."

The nomination of Miers has been interpreted by some evangelicals as a betrayal. Operation Rescue immediately announced that it would not support Miers because her anti-abortion stance was not clear (this is before it was generally known that Miers long ago expressed support for gay rights). As the New York Times reported, the Bush Administration made personal assurances to its evangelical supporters:

To persuade the right to embrace Ms. Miers's selection despite her lack of a clear record on social issues, representatives of the White House put Justice Hecht on at least one conference call with influential social conservative organizers on Monday to talk about her faith and character.

Some evangelical Protestants were heralding the possibility that one of their own would have a seat on the court after decades of complaining that their brand of Christianity met condescension and exclusion from the American establishment.

In an interview Tuesday on the televangelist Pat Robertson's "700 Club," Jay Sekulow, chief counsel of the Christian conservative American Center for Law and Justice, said Ms. Miers would be the first evangelical Protestant on the court since the 1930's. "So this is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court," Mr. Sekulow said.

Although not all religious conservatives were appeased, many appeared to be convinced enough to mute their negative reaction, at least for the time being.

But these assurances to religious conservatives in turn raised the ire of libertarian conservatives. Here are excerpts from David Bernstein's reaction on Volokh Conspiracy to the above NYT article:

(1) Is the evangelical right, who along with the rest of the conservative coalition, swore "no new Souters"...going to allow itself to be suckered by identity politics of the basest sort? (2) Shame on the White House for engaging in such identity politics. Racial identity politics is corrosive enough. Do we need to add religious identity politics to the mix? Especially for the Supreme Court? (3) Thus far, beyond the president's personal endorsement and her loyalty to him, all that supporters of Miers have been able to come up with is that she's an evangelical Christian and personally pro-life. Are conservatives, religious or not, supposed to support a nominee for a lifetime appointment on the Supreme Court solely on the basis of her personal faith?...(4) Conservatives, including religiously motivated conservatives, should be looking well-beyond Miers' views on "social issues" to her views of the Constitution....Eventually, her views on current social issues will be largely irrelevant, and her views on the Constitution will be what matters as future disputes arise.

Other libertarian conservatives have seconded Bernstein's outrage. The question I have for libertarian conservatives is this: who are you kidding?

To their credit, your religious conservative political bedfellows have been completely frank--as explicitly stated on their websites and reported time and again in the press--about the fact that they expected to be paid back in Supreme Court appointments (C.J. Roberts, by the way, did not fit the bill). And they have made quite clear that anti-abortion is far and away the most important criterion on their list (with resistance to gay rights next, followed by more religion in the public sphere).

In answer to your first question, Mr. Bernstein, evangelicals would say that they would be "suckers" only if Miers does not turn out to be the fervent anti-abortionist Justice they justly deserve. That is presicely the point behind the Mirror of Justice discussion about whether they were, indeed, suckered once again. The answers to the rest of your questions follow from that. Indeed your questions smack of the kind of condescension evangelicals complain about receiving from the liberal elite and American establishment (see article above).

The "conservative coalition" that Mr. Bernstein refers to was a mis-matched marriage of convenience that had to break up sooner or later.

Religious conservatives--we should stop using the euphemism "social conservative" to label groups that avowedly pursue a religious agenda--have all along been straightforward and principled in the pursuit of their goals.

Libertarian conservatives, in contrast, arguably have been less than principled in one crucial respect: they have not often enough spoken out against the efforts of their religious conservative allies to impose their religious views on all the rest of us through legal means (mandating the teaching of creationism--oops, "Intelligent Design"--in public school science classes, stalling sale of day after pills, and on and on). Securing the appointment of a fundamentalist Supreme Court Justice is just one piece of this agenda. If Mill's On Liberty serves as the libertarian bible, libertarian conservatives should long ago have taken umbrage at the core agenda of their religious allies to use the law (via legislation, administrative actions, and judges) to infuse the public sphere with religion.

This may be uncharitable speculation, but given this deep antagonism in underlying views, perhaps it is the case that all along libertarian conservatives have held their nose while in bed with their fundamentalists partners, willing to have them along so long as they helped deliver the votes, but not expecting that they would get very far in advancing their religious agenda. That is what many fundamentalists believe.

If it turns out that Justice Miers is a Christian fundamentalist who interprets the Constitution consistent with the will of God, fundamentalists will have gotten what they were promised, and libertarians will have gotten what they deserved. And all the rest of us will be paying the price.

Addendum: I have resisted the strong impulse to edit this post to soften its polemical thrust. There is too much nastiness in the blogosphere between political opponents, and I regret adding to it. Sorry Mr. Bernstein and other libertarian conservatives. But, as the bumper sticker says: "If you are not outraged, you are not paying attention."
Posted 4:10 PM by Brian Tamanaha [link] (26) comments

Meditations of a Militant Moderate

Guest Blogger

Peter Schuck

Jack Balkin has invited his colleagues to weigh in on Balkinization, and I hope to do so in the future. For now, he is allowing me to engage in the following bit of shameless promotion for my new book, Meditations of a Militant Moderate: Cool Views on Hot Topics (Rowman & Littlefield 2005), which is a collection of short essays (averaging around 2000 words) on a wide variety of subjects: affirmative action; Owen Fiss's flawed theory of groups and equal protection; the incoherence of Cornell West; slavery reparations; housing integration; the Pledge of Allegiance; school vouchers; military recruitment on campus; groups and expressive speech; professors and the profession; class actions; punitive damages; lying in law; civil juries; impact litigation; gun control litigation; tort reform; surrogate motherhood; preemptive strikes and Iraq; etho-racial profiling; victim compensation; the 9/11 Victims Compensation Fund; a model for adjudicating terrorism; immigration; refugee protection; reforming the 1996 immigration law; citizenship after 9/11; immigrant voting; developing giants (China and India); rethinking liberalism (written just after the 1980 election of Reagan); the virtues of diversity; punctilios for a diverse society; incivility; and the 2004 elections.

So what is a militant moderate? Damned if I know * but I think that I am one. Here is my short answer in the preface to the book:

Preface: Why I Am a Militant Moderate

Barry Goldwater was wrong: Extremism in the pursuit of liberty * even liberty -- is indeed a vice, and moderation in its pursuit is truly a virtue. I have written these essays for those readers who lack Goldwater's strident certitude * about what liberty is, how it can best be attained, and which other values must be sacrificed to attain it.

What does it mean to be a militant moderate, and why do I think that it is a good thing to be? These are important questions and thus the answers are not at all obvious. At first blush, one might even think that militant moderate is an oxymoron. When we think of militants, after all, we may conjure terrorists in Iraq, Crusader armies pillaging the Holy Land, or dead-enders holed up in Waco and Ruby Ridge. These are not pleasant images, much less icons of reasonableness. And Goldwater's motto remind us that moderation has no intrinsic merit; its value depends on what it is being moderate about. But I find no inherent contradiction in being a militant moderate. Moderation refers to an orientation to a substantive issue relative to other orientations to that issue, while militancy denotes a high level of conviction about that position and a willingness to act on it.

So much for definitions. Now let us set aside militancy for a moment and consider why one might want to be a moderate in the first place. Some reasons are not particularly admirable. We all know complaisant people who are prepared to pay almost any price in order to avoid offense or controversy. Some insipid politicians seek compromise, any compromise, for its own sake. Somewhat less contemptible are those who believe that (or act as if) the truth of any matter is always located in the middle of the space between contending positions. These people are blind to certain stubborn realities: that radical evil and heroic goodness exists, that some extreme positions are actually correct, and that even incorrect extremes can exert salutary pressures on status quos resting on little more than political inertia and embedded injustice.

But not all reasons for being a moderate are misguided. Approximately 2500 years ago, the Greek philosopher Aristotle offered the (literally) classic defense of moderation, arguing that the nobility of individual character depends on achieving a middle point between the antipodal excesses of human conduct and feeling to which humans are inclined. For Aristotle, cowardice and rashness are vices but courage is a virtue. Surliness and flattery are vices, friendliness a virtue. Moderate temperament and disposition, in this view, are constitutive not only of private morality but of civic virtue and social health.

Aristotle's theory of the golden mean was intended to cultivate the character needed by a good society and polity. While sharing this goal, I embrace moderation for a somewhat different reason: the design of sound public policy requires it even (perhaps especially) when Aristotelian virtue is in short supply. Whether the issue is foreign relations, the war on terrorism, health care, tort reform, illegal immigration, tax simplification, Social Security, homelessness, AIDS, or deficit reduction, policymakers and ordinary citizens alike stumble in the dark, groping their way through what seems like crisis after crisis. In this daunting policy milieu, neither the simple ideology nor the simple morality of those on either end of the political spectrum provides much useful guidance for the hard work of social problem-solving. Ideology lacks the suppleness needed to apprehend and act on complicated, changing social facts, and morality in such matters almost always cuts in more than one direction. Ideology and morality may provide useful starting points for the pursuit of policy solutions, but the roads they mark quickly run out when they enter the morass of political and social complexity and conflict.

This morass, of course, is the best argument for incrementalism, one of moderation's vital techniques. If we are uncertain about where to go or how to get there but know that we are in quicksand, we are well-advised to take small steps until reaching terra firma. But although incrementalism is very common, it is not exciting; it seldom makes the heart race or the spirit soar. And this timidity puts it at a severe political disadvantage. Americans are drawn, perhaps preternaturally, to novelty, boldness, self-confidence, and decisiveness. Politicians naturally try to exemplify these appealing traits. So do businesses seeking capital, scientists stalking research grants, and policy entrepreneurs looking for political openings. Indeed, all who yearn to make a big splash and be noticed tend to use a marketing style that features extreme but unsustainable claims of novelty and certainty. At this rhetorical dance, moderation is usually a wallflower.

Yet most really new policy ideas are, alas, bad ones. This statement is neither cynical, churlish, nor reflexively conservative. Consider that the same policy problems, more or less, have been around for a very long time * at least since the advent of the modern administrative state in the New Deal and especially with its vast expansion during the 1960s. Unlike scientists and engineers who often discover new facts and techniques enabling them to solve problems with large social payoffs, public policymakers must work with a limited set of familiar tools. Most plausible policy ideas are not really new; they have been proposed and debated before in some form or were already tried somewhere and found wanting. They are old wine in new bottles.

Indeed, if a policy idea is truly new, there is a good chance that it will be politically or administratively unworkable. Even policy ideas that are attractive in principle are often unsound, sometimes even disastrous, in practice. As numerous case studies demonstrate, implementation of a new idea in a complex, political, and decentralized policy environment inevitably produces many unforeseen consequences, some of which may perversely undermine the policy's goals. In this environment, even the most astute policymaker cannot predict most of what will actually happen once the policy is actually operating in the field. She comprehends few of the numerous implementation-relevant variables and exercises effective control over fewer still.

The hard realities of implementation mean that even creative policymakers are well advised to proceed with extreme caution. They do best not by instituting large, synoptic change in a single stroke but by muddling through. This fact, which only the most unregenerate ideologue will deny, is reason enough to turn even innovative and reformist policymakers into moderates * and it should do the same to the rest of us. We moderates should grow more militant as we recognize that every policy implementation failure today dims the prospects for genuine reform tomorrow.

The social value of militant moderates is also underscored by the 2004 elections. As both parties conspicuously played to their closed-minded, dug-in extremes, the broad mainstream of opinion -- Schlesinger's "vital center" -- received less attention and representation than it should have. As I explain in the final essay, the voters are more centrist on the issues than the politicians and the mass media pundits are, and this gap, which is worrisome for our democracy, can and must be remedied. Americans deserve better from their public intellectuals than axe-grinding, score-settling, and smug certitudes. The bitterness on all sides of the election testifies to our desperate need for calming, thoughtful, trustworthy interlocutors who understand complexity, respect diverse values, want to solve real problems, and (as Learned Hand put it) are not too sure that they are right.

The 37 essays (and one poem) that follow are written in this pragmatic, reformist, non-ideological, empirically-minded spirit.

Posted 2:53 PM by Guest Blogger [link] (20) comments

It all depends on what you mean by the word "qualified"

JB

From the Washington Post:

"I know her heart. She knows exactly the kind of judge I'm looking for," Bush said at a morning news conference, noting that she had helped conduct the search that led to the appointment of Chief Justice John G. Roberts Jr. She will be "exactly" what he is looking for, Bush said several times.

Asked by a reporter if she was "the most qualified" person he could find in the country, he said, "Yes, otherwise I would not have" named her.

You see, the word "qualified" means something different than you think it does. "Qualified" means that the nominee meets President Bush's requirements for a Justice, i.e., that she is the sort of person that Bush himself would choose. Almost by definition, then, Miers is eminently "qualified," and we know this because Bush in fact did choose her.

By the same irrefutable logic we can conclude that the Bush tax cuts will "pay for themselves," the deficit is "under control," the Administration's response to Katrina was a "success," and the war in Iraq was "justified" because of Iraq's "weapons of mass destruction."

Posted 4:55 PM by JB [link] (13) comments

Conservative Crack-Up Over Miers

Brian Tamanaha

As everyone knows by now, conservatives are throwing a fit over Bush's nomination of Harriet Miers. In this column in the Village Voice I suggest, with some sympathy for Miers, that a crack-up among conservatives was inevitable. Try not to be distracted by the dancing image.

To lighten your mood, check out this commentary on President Bush. Click on the figure a couple of times if it gets stuck.
Posted 12:36 PM by Brian Tamanaha [link] (2) comments

Why it's so hard to have a constitutional revolution-- Part I

JB

I sympathize with the movement conservatives who are bemoaning the Miers nomination, even though I don't share their politics. President Bush promised them a forthright movement conservative in the mold of Antonin Scalia and Clarence Thomas. What he delivered instead was first a rock solid establishment conservative in Chief Justice John Roberts, and now an old-fashioned Dallas, Texas business conservative in Harriet Miers.

In the days to come, we are likely to get a lot of allegations that Miers is unqualified for the job. Don't be fooled. Sure, she didn't go to a fancy law school (neither did the second Justice Harlan, by the way). But in her own way she's just as qualified as lots of other people who have sat on the Court. She may not be qualified in the way that legal academics like myself might like, and not in the way that movement conservatives would like, but she fits a familiar stereotype of Supreme Court Justice-- the business lawyer with powerful connections.

Following the Civil War, Republican Presidents placed a series of railroad lawyers on the Court with little or no judicial experience, but plenty of experience as counselors to business. That's what Miers is essentially, a Texas lawyer with lots of business connections who advised corporate clients, including, most importantly, George W. Bush. He liked the advice she gave him, and so she followed him during his career.

Presidents don't choose this kind of nominee because they want a revolution. They choose them because they will give the executive a free hand, and, perhaps most important, because the nominee will help ensure a pro-business climate.

George W. Bush has always been an interesting hybrid of the traditional business conservative who came from a powerful Republican family and a religious conservative who found God. That combination has made him appealing to many different parts of the Republican coalition. But when the chips are down in his Administration, Bush has shown his true colors as a business conservative who above all wants a smooth ride for capital. That is what Miers offers.

Business conservatives are less interested in shaking up the world than in stability and in clearing a path for the promotion of their interests. Although their goals may often overlap with the goals of movement conservatives and religious conservatives, they are relatively uninterested in religious proselytization or ideological crusading. Business conservatives are pragmatists at heart, and the promotion of capital makes them more cosmopolitan in spite of themselves.

Religious and social conservatives may be shocked to learn that the Republican Party is the party of big business after all-- it has been since the Civil War-- and that big business is not always interested in the same things they are. That is why the Republican revolution in the courts inevitably will be a revolution on business's terms.

And what, exactly, does business want? Overturning the New Deal? The Constitution in Exile? The return of God to the public schools? The end of affirmative action? Outlawing abortion once and for all? Squashing gays and lesbians underfoot? None of these things. What business wants is stability, comfort, predictability, and an agile, productive, submissive and demobilized population. It wants a powerful executive that can protect America's interests abroad. It wants a Congress freed from federal judicial oversight that is able to dish out the pork, jiggle the tax code and deregulate the economy according to its ever shifting concerns and interests. And it wants a Supreme Court that will give a pro-business President and a pro-business Congress a free hand, a Court that will protect the rights of employers over employees, advertisers over consumer groups, and corporations over environmentalists.

It wants, in short, someone very much like Harriet Miers.

Posted 11:17 AM by JB [link] (67) comments

Keeping Things in Perspective

Mark Tushnet

Readers of this blog are likely to have a professional interest in avoiding the following thought: But, really, in the long run aren't Barry J. Marshall and Robin Warren (this year's winners of the Nobel Prize for Medicine and Physiology for their finding that ulcers are caused not by stress but by bacteria) more likely to have an impact on the lives of Americans than John Roberts and Harriet Miers? (And even the "it's science, so somebody would have found this out eventually" point -- which is basically about the contributions people make on the margins -- is true of Roberts and Miers as well.)
Posted 8:38 AM by Mark Tushnet [link] (23) comments

Who Is Harriet "Pit Bull" Miers?

Brian Tamanaha

No one seems to know much about Supreme Court nominee Harriet Miers, though this report provides a few interesting tidbits. Bush should at least be given credit for nominating a candidate who has united the right and left--in being underwhelmed.
Posted 11:25 AM by Brian Tamanaha [link] (17) comments

The Information Advantage

Mark Graber

What both John Roberts and Harriet Miers have in common is that the administration knows a lot more about them than the rest of us. In this sense, Miers is very different than David Souter, who seems to have been unknown to everyone, including President Bush the Elder, when nominated. What may be most troubling about such nominations is that they are means of avoiding accountability. An increasing number of political scientists and law professors are advancing what might be called a political regime theory of the judicial function. On this view, the constitution may be plausibly interpreted in different (not infinite) ways so presidents (and senators) are authorized by election to seek federal justices who share their constitutional vision. As I have said in public numerous times, my primary objection to Scalia is my objection to Ronald Reagan and the Republicans who won the 1980 Senate elections. My objection to Bush the younger is that he steadfastly refuses to inform us of exactly what is his constitutional vision. Does he favor overruling Roe or merely narrowing the decision. What about the revival of commerce clause and 11th amendment limitations on federal power. I do not need detail, but I'd like something more than cliches about modest justices and judicial restraint. In short, President Bush is clearly moving the court in a particular direction. he just isn't telling us what that direction is other than vaguely conservative.
Posted 8:33 AM by Mark Graber [link] (5) comments

The Miers Nomination

JB

President Bush's nomination of Harriet Miers to replace Sandra Day O'Connor combines three important requirements for this President. First, Miers is a woman, preserving the number of women currently on the Court. Whether this means that there are now two "women's seats" on the Court is anybody's guess, but it does suggest that Bush felt considerable political pressure to maintain the number of women currently on the Court and he was not willing to oppose that pressure.

Second, Miers is a long time friend of the President's whom he trusts on a personal level. This gives him information about her beliefs and values that most other people are not likely to have. It also allows Bush to have a far greater degree of comfort in making a lifetime appointment, because he will have a somewhat better ability to guess how Miers will likely respond not only to the key issues of the moment but to unknowable problems in the future. When in doubt, this President has turned to trusted aides and associates, and promoted them. The Miers nomination is yet another example. The advantage of this strategy is predictability (for the President, as opposed to the public as a whole); the disadvantage is the danger of cronyism. Although we don't know much about Miers, it's likely that, like John Roberts, she was picked with a view toward protecting executive power.

Third, Miers is a "stealth" candidate, who has not written or spoken much about the key issues that fill the Supreme Court's current docket. Presidents will turn to such candidates when they have to please many different constituencies in their party and when they face the prospect of a significant confirmation fight if they choose an ideological stalwart. President Bush is often said to avoid the sorts of decisions his father made, but in this respect George Bush is taking a page from his father's playbook. Hoping to avoid the confirmation battle over Robert Bork, President George H.W. Bush chose David Souter, about whom little was known when he was first nominated. (Unlike Souter, Miers is a stealth candidate about whom the President has lots of information unavailable to the public.) Choosing a stealth candidate is a sign that the President wants to avoid a fight, either because he is in a relatively weak political position, because he fears that his supporters disagree among themselves, or because he would rather expend his energies and influence elsewhere. All three of these seem to be the case right now.

Posted 7:57 AM by JB [link] (32) comments

What the England Courtmartial Doesn't Tell Us

Scott Horton

"The martial law, being based upon no settled principles, is, in truth and reality, no law, but something indulged rather than allowed as a law."

- Matthew Hale, History of the Common Law (1713)

The Wall Street Journal’s editorial page is increasingly isolated in its counter-factual approach to developments in the still unfolding detainee abuse scandal. In a week in which most newspapers in the United States have focused on the the shocking new allegations of abuse coming out of Camp Mercury, the Journal’s Robert Pollack tells us that the “torture narrative” (adopting Heather Mac Donald’s phrase) is unraveling. In this conclusion Pollack fails only in his understanding of what constitutes the “torture narrative,” for indeed the claims that policymakers were divorced from the mounting record of abuse have been exploded to such a degree that a Republican Congress now seems determined to deal with them.

From the outset of the torture abuse scandal, Rumsfeld has pursued a strategy of blaming a “few rotten apples” and attempting to focus public attention on figures visually associated with the abuses of Abu Ghraib. Lynndie England is accorded a star role in this process, and indeed her grinning, leash-holding pose over a stripped Iraqi prisoner has achieved a near iconographic quality.

Last week, England was convicted and sentenced by a courtmartial in Ft Hood, Texas. The process followed a busted plea bargain arrangement – her supervising NCO and father of her seven-month-old son, Charles Graner, gave testimony contradicting the England plea bargain and thus making it impossible to implement under military procedure.

Tunnel Vision

Pollack focuses his analysis on what has gone on in the courtmartial proceedings surrounding roughly a dozen low-ranking soldiers at Abu Ghraib. He then links this to the Schlesinger commission conclusions, quoting Schlesinger’s “Animal House on the night shift” remark. In doing this he provides little real analysis and demonstrates an alarmingly poor grasp of the basic facts. We should start by noting that the problems at Abu Ghraib are at this point a tiny fraction of the horror of detainee abuse – in the meantime, many of the most serious cases have been documented coming from other facilities such as Bagram and the Salt Pit in Afghanistan, Camp Cropper, Volturna and Camp Mercury in Iraq, and, of course, Guantanamo Bay. Since patterns of conduct in many of these cases is strikingly similar to what transpired at Abu Ghraib, the notion that the abuses there arose from the initiative of a group of 19- and 20-year-olds is no longer plausible.

But the column also reveals a faulty understanding of how a courtmartial operates and the conclusions that can be drawn from it.

Plea Bargain Practice

Pollack quotes statements of both Lynndie England and Jeremy Sivits in earlier proceedings without telling us anything about the circumstances of these statements. Both were plea bargain statements. The plea bargain process is essential to the economics of our criminal justice system. However, it frequently isn't consistent with justice. Anyone familiar with the plea bargain process knows that plea bargain statements are a form of kabuki theater - in essence, what the prosecutor gets as a gift in exchange for a reduced sentence. Accordingly, the plea bargain statements that Pollack quotes tell us one thing: that the prosecutors were focused with a laser-like intensity on throwing inquiry off the trail of command authority. It does not provide any kind of evidence that the command authority is innocent. Given the relationship between command authority and the prosecutorial service, it might suggest just the opposite. Citing such statements as proof of what is said borders on being comical.

That's particularly true in England's case. Her plea bargain was busted because Graner testified that the photos had been taken in order to train others in techniques for preparing prisoners (directly contradicting Pollack’s characterization, incidentally). This was inconsistent with the plea bargain statement, and thus forced the court to throw the plea bargain out.

Defense of Superior Orders

The mistreatment of prisoners through acts including physical abuse is a clear offense under the Uniform Code of Military Justice. The operative provisions are seen as simultaneously implementing US military doctrine dating back over two hundred years, US criminal law, and important provisions of the Third and Fourth Geneva Conventions. There is no question but that the anti-prisoner abuse provisions of the UCMJ were violated at Abu Ghraib. Pollack’s column focuses on suggestions that command authority “created the climate” or “set the tone” for prisoner abuse, and suggests that this was disproved at the England court martial. This reveals an amazing ignorance of the charges and available defenses.

I am skeptical about whether superior orders should be available in a case such as this one, so my sympathies are not with Lynndie England and her counsel on this question. But I also feel Pollack's observations are ignorant. We cannot permit a soldier to defy law – especially key provisions of the laws of armed conflict – and get away with it based on a murky and subjective sense that this is what the command authority wanted. The law quite properly requires more. Rule 916 of the Manual for Courts Martial states that

"[i]t is a defense to any offense that the accused was acting pursuant to orders unless the accused knew the orders to be unlawful or a person of ordinary sense and understanding would have known the orders to be unlawful."

There must be a clear demonstration of superior orders, which the soldier had a reasonable basis to believe lawful. What this reasonable basis may be is something of a sliding scale. A fresh recruit cannot be expected to understand all the details of the Geneva Conventions and can rely on guidance from an officer as to what they say and what it means. A senior NCO is expected to know more. Officers are charged with a great deal of knowledge of the law of armed conflict, and field grade and flag officers generally undergo fairly detailed training and are absolutely charged with intricate knowledge of these rules. However, the abuses charged were things that only a morally depraved person would put in a gray zone. A very insightful analysis of this issue in the context of the England courtmartial has been furnished by Phil Carter; I share almost all of the views he expresses there.

But in the end, England’s defense counsel backed away from the superior orders defense, choosing instead to position her as weak minded and impressionable – a characterization with which virtually all observers agree. So, far from being some sort of show down on command responsibility, as Pollack suggests, the issue barely figured in the trial.

Discovery

The strategic decisions of England’s defense counsel were dictated by a series of rulings by the trial judge on discovery matters. Most of counsel's requests to take depositions of command authority figures were denied. I don't mean to imply criticism of the judge's decisions in saying this. In fact, I examined the first deposition list produced by England's counsel and thought it was clearly designed to burden the Government. I also would have limited the scope of witnesses.

Perhaps more troubling, it appears that the Army’s document production was not very thorough, and indeed, that the production may have been “sanitized.” I have not examined these productions, and my information is limited to discussion with counsel in other cases, but I will give a clear example of what I have in mind. On June 12, 2005, Time’s Adam Zagorin went with a story about a
secret Guantánamo interrogation log. I am familiar with some of the materials that Zagorin drew on for his piece and discussed them with Zagorin as he was writing it. These materials were not produced in the courtmartial proceedings, though they must have been within the scope of the defendants' document requests. The log that Zagorin discusses had vital significance to England's defense because it establishes beyond any doubt that one of the procedures that England engaged in - leading a detainee striped naked on a dog leash - was in fact a fully sanctioned and approved procedure used to prepare detainees in connection with interrogation under the "Ego Down" technique. I have strong reason to believe they were drawn from a cache of documents which were pulled to hide them from investigators and those seeking discovery in courts martial. (This is what I mean by “sanitized.”) Time, acting on demands from the Department of Defense, failed to make the documents it discussed public, thus contributing to the effort to "sanitize." I expect that some of these materials will soon be published nevertheless.

In addition to this, we should consider a recent statement of General Janis Karpinski. She notes that she went searching for command documents reflecting authorization for the extraordinary detention arrangements established at Abu Ghraib. She found something quite interesting. "It was a memorandum signed by Secretary of Defense Rumsfeld, authorizing a short list, maybe 6 or 8 techniques: use of dogs; stress positions; loud music; deprivation of food; keeping the lights on, those kinds of things," Karpinski said. "And then a handwritten message over to the side that appeared to be the same handwriting as the signature, and that signature was Secretary Rumsfeld's. And it said, 'Make sure this happens' with two exclamation points. And that was the only thing they had. Everything else had been confiscated." (My emphasis). The document that Karpinski describes was also not produced, though its existence has been confirmed by other officers.

These are two out of several "red flags" suggesting that a special effort was made to "sanitize" the record. If borne out, they would point to a significant attempt to obstruct the justice process. But in the context of the Lynndie England courtmartial, it would have made a defense of superior orders, already problematic, all but impossible.

What General Schmidt Taught Us

Pollack denies a link between the Guantanamo procedures and what transpired at Abu Ghraib. However, the Fay/Jones and Taguba reports sharply contradict him on this point. General Taguba noted that among other things MG Miller had introduced the use of military dogs at Abu Ghraib and advocated the use of the military police units (such as England's unit) to "prepare" detainees for interrogation. The central story of the Fay/Jones report is one of the "migration" of the Guantanamo techniques to Abu Ghraib.

Lt Gen Mark Schmidt's report thoroughly exploded the Schlesinger conclusion about "Animal House on the night shift." Schmidt repeatedly reviews cases of abuse that track the incidents at Abu Ghraib perfectly - the use of a leash to force a naked detainee perform "dog tricks," forcing a detainee to wear women's lingerie and other practices intended to sexually degrade the detainee, strip searches, the process of stacking bodies. But time and again he concludes "this was a SecDef approved technique."

Consequently, no question persists as to the origin of the techniques that England, Graner and others used at Abu Ghraib. They were procedures designed for use at Guantanamo, approved by Rumsfeld, and implemented in Iraq.

Unindicted Co-conspirators

The core of Pollack’s piece rests in the assertion that by convicting England, the courtmartial has acquitted command authority, and particularly Secretary of Defense Donald Rumsfeld. The thought that the conviction of one defendant implies the innocence of another (much less a person not a co-defendant) makes fine Hollywood or Broadway drama, but is neither rational nor the way the criminal justice system works. It also demonstrates ignorance of the vital military doctrine of command responsibility.

Of course, no one has ever accused Rumsfeld of holding a leash on or physically pummeling a detainee. The potential charges against Rumsfeld are different, and far more serious than those against Lynndie England. At present, the charges come to two major points. First, that he oversaw and directed changes in policy that produced a brutalization of the detention system. The policy debate and Rumsfeld's pivotal role in it is now spread out on the record. The suggestion that these policies, once formed, would have no effect in the theater of battle displays an alarming ignorance of command and control systems. Pollack must have a low opinion of our military indeed to think that policy dictates of the Secretary of Defense would be ignored by officers in the field. Second, the charge is that Rumsfeld failed to enforce the laws banning torture and abuse and failed to discipline or punish those who violated them, creating command responsibility at the highest level. This is the issue I most recently visited in “Shirking Responsibility.” Straddling these two prongs is the doctrine developed by the United States at the Nuremberg tribunals, under which cabinet officers hold per se liability for systematic abuse at prison camps in times of war, especially when a policy link to this abuse is found. Rumsfeld may well have good defenses to all these points, and he should be given an opportunity to articulate them. However, the charges as developed to this point are grave.

These charges have not been briefed or presented to the England court martial; nor obviously could a courtmartial convened under the authority of Secretary Rumsfeld presume to entertain questions about crimes involving him. That would be a matter for other courts, applying different rules than those found in the courtmartial system.

The Order to Gitmoize

Donald Rumsfeld gave a direction to “gitmoize” the intelligence gathering process in Iraq. He dispatched MG Geoffrey Miller, who introduced the new brutal intelligence gather techniques to Guantánamo, to Iraq, and to Abu Ghraib, to introduce the Guantanamo procedures there. Classified, since disclosed portions of the Fay/Jones report record that within twenty-four hours of LTG Sanchez’s exit interview with MG Miller, the first of a series of orders was issued opening the door to abusive and unlawful interrogation practices. The Fay/Jones report fully and responsibly accepts that these acts led to serious war crimes. This included procedures which had been designed in conscious evasion of the rules of the Geneva Conventions. The evidence ties these fateful decisions inextricably to the abuses that occurred in Abu Ghraib and other locations across Iraq.

With the conviction of Lynndie England, we have indeed gotten to the bottom of the abuse scandal. However, as Joseph Galloway says, now it is time to get to the top.
Posted 4:03 PM by Scott Horton [link] (66) comments