Which Is It, Mr. President?

Marty Lederman

In his press conference this morning, the President focused on two things: (i) defending the legality of his Executive Orders authorizing eavesdropping of conversations involving U.S. persons (including citizens); and (ii) scolding Senators for refusing to reenact the PATRIOT Act.

What virtually no one is pointing out is the incongruity of these two arguments -- that if the President is correct about the legality of his wiretapping protocol, then there is little need to reenact the PATRIOT Act.

The principal problem with the wiretapping program is that the NSA is intercepting communications involving "U.S. persons" -- citizens and lawful permanent resident aliens -- without any judicial warrant or any approval from the FISA court. That is expressly prohibited by FISA (50 USC 1802(a)(1)(B)). (Thanks to Dan Solove for being the first to blog about this clearly.) FISA actually authorizes some forms of surveillance without FISA court approval order for up to one year, but such surveillance is subject to specific statutory limits, the most of important of which is that there must be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." And, just to make clear that this is, in fact a prohbition, FISA further specifically makes it a crime to "engage in electronic surveillance under color of law except as authorized by statute." (Why didn't the NSA simply get approval from the FISA Court -- which would have made these interceptions entirely legal? I think Ken Bass is almost certainly correct that it's because this is the rare case in which the FISA court would have actually denied approval, because NSA appears to have been engaged in a fishing expedition of phone numbers and e-mail addresses that it had discovered in connection with al Qaeda operatives. [UPDATE: William Kristol and Gary Schmitt agree that FISA would not have authorized the warrants here -- but they argue that's why the President had constitutional grounds to ignore the statute.])

In his comments this morning, the Attorney General conceded that the NSA program would violate FISA ("Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.") -- or would do so, anyway, except for two things:

1. The AG claims that the September 18, 2001 Authorization for Use of Military Force, enacted by Congress to authorize "necessary and proper force" against Al Qaeda and others responsible for 9/11, actually superseded, or impliedly repealed, the FISA prohibition on warrantless wiretapping of U.S. persons.

2. The AG claims that the President has the constitutional power, under the Commander-in-Chief Clause, to ignore FISA's prohibition in this context. "There were many lawyers within the administration who advised the president that he had an inherent authority as commander-in-chief under the constitution to engage in this kind of signals intelligence," said Gonzales, speaking on CNN.

Both of the Administration's arguments here are quite radical: (i) That the AUMF impliedly repealed the well-wrought scheme in FISA, with its prohibition on warrantless eavesdropping on U.S. persons (a repeal that only the Executive knew about: neither the public, nor even the Congress that enacted the AUMF, was aware that it had performed such radical surgery on the U.S. Code); and (ii) even if the AUMF did not repeal/amend FISA, there's a Commander-in-Chief override.

I actually think the former argument is more preposterous than the latter, although I'm sure others will disagree. [See post above, in which I conclude that the Administration's contempt for the legislature here is remarkable. I should add, as well, that FISA actually has an express provision to deal with emergencies in times of war, 50 USC 1811, which provides: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." On the Adminisrtation's view, this 15-day limit, too, must have been impliedly repealed when Congress authorized the conflict in Afghanistan.]

In any event, if the Administration is correct about the legality of its wiretaps, then the President's impassioned scolding of the Congress this morning for failing to reenact the PATRIOT Act is entirely misguided: After all, the President already has the authority under Article II of the Constitution to do most of what the PATRIOT Act authorizes -- indeed, to override statutory provisions that would prohibit such Executive acts -- and, as if that weren't enough, Congress has already (in the AUMF) authorized the President not only to do whatever it takes to defeat Al Qaeda, but also to ignore any preexisitng legal restrictions.

Of course, this means that the PATRIOT Act itself was largely superfluous in the first instance . . . . (But that's how radical the Administration's justification of its NSA program appears to be.)

[NOTE: I realize that the PATRIOT Act also includes criminal prohibitions on private conduct that the President could not create out of thin air. But when he scolded Congress this morning for not extending the Act, presumably he was not thinking about the criminal provisions, but instead about the provisions that authorize Executive actions, such as searches and electronic interceptions.]

[UPDATE: Must-read posts from Juliette Kayyem, Orin Kerr, and Dan Solove. And on the utter inadequacy of the supposed "consultation" with congressional leadership, see this remarkable letter from Senator Rockefeller to the Vice President from 2003.]

[ADDITIONAL NOTE: There are two additional arguments floating around about why the NSA surveillance is unlawful: That it violates the Fourth Amendment; and that Al Qaeda is not the sort of foreign entity whose communications can be intercepted without court approval under FISA. I don't know much about the Fourth Amendment question -- read Orin Kerr over at the Volokh Conspiracy for more details -- but my understanding is that there are at least reasonable arguments that this program does not violate the Fourth Amendment, and, more to the point, I think the Administration's argument in this respect is that NSA is not violating the Fourth Amendment -- and not that the President has the constitutional authority to ignore the Bill of Rights. As for the other FISA argument, it seems to me to be a close, hard question that turns on whether Al Qaeda is "a faction of a foreign nation or nations, not substantially composed of United States persons," under 50 USC 1801(a)(2). Orin has more to say on that, as well.

The important point, however, is that, as the AG conceded this morning, the NSA's conduct -- if it is not authorized by the AUMF or Article II of the Constitution -- would be criminal under FISA because it intercepts the contents of communications to which United States persons are a party.]
Posted 12:38 PM by Marty Lederman [link] (33) comments

The Constitution: A Safe Haven for Terrorists

JB

This Sunday on Meet the Press Secretary Rice explained that President Bush needed to wiretap American citizens in the United States without a warrant and without going through the procedures required by the Foreign Intelligence Surveillance Act (FISA) because it is important to prevent the "use of American territory as a safe haven for communications between terrorist operating here or people with terrorist links operating here and people operating outside of the country."

The "safe haven" of which Secretary Rice speaks is the constitutional protections afforded by the Fourth Amendment, which apply to American citizens on American soil. What Secretary Rice is saying, in effect, is that the President wants the same freedom from constitutional limitations within the United States that he enjoys on the battlefield or overseas.

What a shame that the Constitution seems to be getting in the way of the President doing whatever he wants. And he has the gall to talk about "strict construction." When it comes to his own prerogatives, this President clearly wants as loose a construction as possible.

Posted 7:14 AM by JB [link] (5) comments

Why Evidence Obtained From Torture Should Never Be Admissible

JB

Suppose you believe that there are a small number of situations posing immediate peril to a large number of people, in which torture is absolutely necessary to elicit the key information that will prevent the peril, so that every nation in the world will practice torture under these circumstances.

At the same time you wish to deter the use of torture in every other circumstance, because you are worried about descending down the slippery slope to situations where a great peril is not imminent, or where the information elicited by torture is not necessary to prevent this great peril but is merely helpful to advance national security or other important interests.

The best way to achieve this set of goals would be not to carve out a legal exception for torture in emergencies but rather to impose a total ban. If the situation is so dire that torture is absolutely necessary to save a large number of people, illegality will not be a deterrent. Government officials will still commit torture. Then, after the fact, legal decisionmakers can determine whether their actions should be excused or pardoned.

Even if you excuse or pardon torture after the fact, however, you should not make evidence obtained by torture admissible in a subsequent military tribunal or criminal prosecution. If the torture was necessary to prevent an imminent and grave peril, the information should be used for that purpose, and that purpose alone. Otherwise you will indeed descend down the slippery slope, because you have created incentives for government officials to torture in order to elicit information for the purpose of assisting military or criminal prosecutions.

If this line of reasoning is roughly correct, then Congress is making a terrible mistake when it proposes to ban torture (and cruel, inhuman, and degrading treatment) while simultaneously allowing evidence obtained through such methods to be admissible in military tribunals that determine the status of persons held at Guantanamo Bay. The obvious reason for the proposed rule is that the CIA has in fact engaged in a good deal of cruel, inhuman, and degrading treatment to secure information, or it has shipped people off to countries where they have been subjected to these methods; the information has already been elicited and the government wants to use it.

Congress should resist this line of argument. We should not allow ourselves to use the fruits of torture (or CID treatment) even where the torture (or CID treatment) has already occurred. Otherwise we give ourselves incentives to employ these methods where they are not absolutely necessary. The correct rule is a total ban on torture and cruel, inhuman and degrading treatment and a total ban on admissibility of evidence produced by these methods. As suggested above, this rule will not in fact mean that the government will never torture anyone. But it will help deter government from practicing torture in all the situations in which it should be deterred.

Posted 11:33 PM by JB [link] (21) comments

The McCain Amendment -- The Good

Marty Lederman

Faced with apparent veto-proof supermajorities in both the Senate and the House, the White House had little choice but to capitulate today to accepting the McCain Amendment in the form it passed the Senate, without the CIA exemption upon which the Vice President had been insisting.

There's a great deal worth saying about the McCain Amendment, and about the legislative and administrative deals that are apparently still brewing in connection with it, but unfortunately I just had surgery to repair a shattered ankle, and therefore I'm a bit constrained in what I can blog just now. Nevertheless, I don't want to disappoint my friend Orin Kerr, so I suppose I'll take a stab at some haze-o'-pain-and-narcotics blogging. ;-) Apologies in advance if the results are less than pellucid.

Andrew Sullivan is understandably, and justifiably, thrilled at the recent turn of events. After all, the McCain Amendment looked like a long shot, and the President was threatening his first veto, even if it meant not funding the Pentagon and the war in Iraq (now that's dedication to cruelty!). Andrew and others (such as Michael Kinsley) deserve major kudos for keeping the heat on, and for patiently taking on, and taking apart, the suddenly prominent and emboldened pro-torture, anti-McCain camp (incluidng Charles Krauthammer, Kenneth Anderson, the Wall Street Journal editorial page, and the cavalier crew over at the National Review Corner (see numerous posts over the past couple of weeks from Levin, Lowry, McCarthy)) -- many (but not all) of whom are actually proposing to go much further than Bush, Cheney and Addington, and to legalize torture, as such, as to certain detainees, despite the categorical treaty and statutory prohibitions already in place against torture. (Just to be clear: As far as I know, there is no one in the Executive Branch or the Congress -- no one -- who would even hint at, let alone propose, a legislative enactment to sanction any exceptions to the torture ban. Those, like Krauthammer and others, who would codify exceptions to torture, cannot find support from any public official -- not Cheney, not Addington, not Hunter, not Cambone, etc.) [CLARIFICATION: I do not mean to suggest that each of the persons listed here would, like Krauthammer, propose an express exemption for "torture," as such.]

And, of course, Senator McCain deserves a great deal of credit for being so resolute in apparently standing his ground against repeated entreaties from the Vice President and National Security Adviser Hadley to water down his proposal.

Passage of the McCain Amendment will definitely be a welcome step forward--one that is long overdue. I suppose I ought to be thrilled about it, seeing as how the principal provision of the Amendment is one that I urged here in January and again in May. The McCain Amendment would accomplish one very important, baseline reform: It would eliminate the geographical distinctions that the Department of Justice has disingenuously read into Article 16 of the Convention Against Torture.

To reiterate: Article 16 requires the United States to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." The U.S. ratified article 16 subject to the Senate's understanding that this article refers only to conduct that would violate the Fifth, Eighth and Fourteenth Amendments—for present purposes, conduct that would "shock the conscience" under Due Process Clause standards.

The Department of Justice has construed the Senate's "understanding" not only to incorporate the substantive requirements of the Fifth Amendment (prohibiting conduct that "shocks the conscience"), but also to incorporate any geographical restrictions that apply to the Fifth Amendment. The Administration has taken the view that (i) the Fifth Amendment does not protect aliens who are in the custody of the U.S. overseas, and therefore, (ii) neither does Article 16.

As I've explained in numerous posts on this site, what this means, as a practical matter, is that the CIA has been authorized, in its interrogations of non-POWs overseas, to take any steps short of a very narrow DOJ definition of "torture," including waterboarding, "cold cell" (hypothermia), and "long time standing," even if such techniques would be unconstitutional if applied here in the United States.

The McCain Amendment would eliminate this geographical distinction. Its second provision provides, categorically, that "[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment," and that "[n]othing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section."

In other words, the McCain Amendment will revive, and codify, the original (and proper) understanding of Article 16 of the CAT. (Indeed, it may go even further, because the McCain Amendment, unlike Article 16 itself, is not limited to territory "under [U.S.] jurisdiction," a textual qualification in the CAT that DOJ apparently also relies on to limit the geographical scope of Article 16.) And presumably that will, in turn, restrict the use of at least some of the more extreme measures that the CIA has been authorized to use -- methods such as waterboarding and cold cell, which are likely unlawful torture and/or assault, in any event, notwithstanding DOJ's strained legal interpretations.

Nevertheless, the McCain Amendment is not a panacea -- and it hardly signals the end of the torture debate. This is both because the Amendment is more modest in effect than some have assumed -- its influence will depend in large part on the Executive branch's interpretive and implementing choices -- and because its enactment apparently will come at great cost. More on these potential problems in the posts below.
Posted 11:27 PM by Marty Lederman [link] (27) comments

The McCain Amendment -- The (Potentially) Bad

Marty Lederman

For all of the very substantial virtues of the McCain Amendment, there remains a serious risk that the Administration will apply it in a very narrow fashion that could materially undercut Senator McCain's intent. There are potential pitfalls with respect to both of the Amendment's two substantive provisions -- and there remains the lurking spectre of a Commander-in-Chief override.

1. The Army Field Manual. The first provision of the McCain Amendment provides in pertinent part: "No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation."

From the 1960's until late 2002, Army Field Manual 34-52 prescribed the 17 interrogation approaches that were acceptable within the military--including for POWs who are entitled to the fullest protections of the Geneva Conventions. The McCain Amendment is intended to regularize the military's techniques again, by requiring that they be described in the Field Manual.

But the McCain Amendment would not freeze the Field Manual in place -- it could be amended, and this is precisely what is currently occurring. The Army has prepared an updated and amended Field Manual, which includes, for the first time ever, a classified Addendum setting out a secret set of interrogation methods.

According to the New York Times, the addendum was forwarded this week to Stephen A. Cambone, the Undersecretary for Intelligence Policy, for final approval:

The addendum provides dozens of interrogation examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations. [D]efense officials said the new guidelines could give the impression that the Army was pushing the limits on legal interrogation at the very moment when McCain is involved in intense three-way negotiations with the House and the Bush administration to prohibit the cruel treatment of prisoners. In a high-level meeting at the Pentagon on Tuesday, Army and other Pentagon officials raised serious concerns that Mr. McCain would be furious at what could appear to be a back-door effort to circumvent his intentions. "This is a stick in McCain's eye," one defense official said. "It goes right up to the edge. He's not going to be comfortable with this."

The account isn't entirely clear, but I'm assuming that the published manual would be intended for POW interrogations, and thus would track the Geneva Convention's prohibition on all coercive techniques -- and that the addendum, by contrast, will cover interrogation of non-POWs, against whom coercive techniques of some nature may be used. If so, the addendum might (as the Times story suggests) permit techniques that had never been permissible in the military prior to 2002. Presumably the addendum would not authorize assaults, threats, cruelty and maltreatment, all of which are criminal offenses under the UCMJ. But who knows? This Administration has run roughshod over that criminal statute in the past. More importantly, presumably the addendum does not comply with Common Article 3 of the Geneva Conventions, which had guided U.S. policy and practice for over 50 years until the President abandoned it on February 7, 2002. (See my discussions here and here.)

Moreover, there is yet a more ominous possibility. Perhaps, as I suggest above, the function of the classified addendum is to cover certain classes of detainees, e.g., "unlawful combatants," who do not qualify for full Geneva protections. But perhaps, instead, the addendum gives more specific details concerning what the military has concluded is authorized even with respect to POWs -- e.g., spelling out what is permitted under the approaches of the Manual itself.

Now, there's nothing inherently wrong, and much to be gained, about spelling out in greater detail the 17 Field Manual techniques, and perhaps even of doing so in a classified setting. But if that's what this is, then I fear that the Addendum construes the FM techniques much as the Pentagon's outrageous Schmidt Report did -- e.g., to authorize, as forms of "Ego Down" and "Futility" that are permissible against all detainees, methods such as:

-- forcing a detainee to wear a bra and have a thong placed on his head during interrogation;

-- tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks;

-- forcing him to dance with a male interrogator;

-- stripping him maked;

-- placing Korans on a television "as a control measure";

-- and pouring water on the detainee during interrogation—17 times.

In the Army Field Manual itself (see pages 3-18 to 3-19), "Fear Up" and "Futility" describe forms of questioning and psychological, verbal gamesmanship, designed to induce a detainee to reveal information by, for instance, feeding him disinformation that convinces him that all hope is lost. At GTMO, however—and in the Schmidt Report—these categories are fundamentally transformed, to the point where they are almost unrecognizable.

If that's what the Addendum does -- i.e., specify that the Field Manual permits the extreme techniques employed at GTMO -- then I can see why it would infuriate Senator McCain. If, as the Schmidt Report concludes, the techniques used at GTMO are authorized by the Army Field Manual itself, it then would follow that the military may use those techniques on any detainees, including POWs, anywhere in the world, in any conflict. (Moreover, it would appear to authorize techniques that violate the UCMJ.) As such, it would threaten a transformation of what is deemed acceptable, lawful treatment of U.S. military detainees across the board—an erosion of the Geneva-based standards that have been the basis for the military's training and practices for the last few decades.

2. The Ban on Cruel, Inhuman and Degrading Treatment
As I explained in the previous post, the second, and more important, provision of the McCain Amendment would categorically prohibit U.S. personnel anywhere in the world from engaging in "cruel, inhuman and degrading" treatment, which in effect means a prohibition on conduct that would "shock the conscience" in violation of the Due Process Clause if it occurred here in the U.S.

The vulnerability of this provision is that no one has any firm idea how the "shocks the conscience" standard applies in the context of interrogations of suspected international terrorism operatives. At least three, and presumably at least five, of the current Supreme Court Justices are of the view that "[a] constitutional right is traduced the moment torture or its close equivalents are brought to bear." Chavez v. Martinez, 538 U.S. at 789 (Kennedy, J., concurring in part and dissenting in part). But what about coercive techniques short of "close equivalents" to torture? Those same Justices have indicated that "severe compulsion" would shock the conscience in the context of a criminal investigation. Id. at 794. But how this would translate to the context of interrogating Al Qaeda suspects for the purpose of trying to secure valuable terrorism-related intelligence is anyone's guess. The Court has recently suggested that the "shocks the conscience" test turns, at least in part, on the reasons for the government's conduct. City of Sacramento v. Lewis, 523 U.S. at 849. This doesn't mean, of course, that a worthy objective automatically saves an extreme technique from invalidation under the "conscience-shocking" test. But it does mean that one has to weigh the government's purposes in the mix. And, for obvious reasons, there is virtually no caselaw applying the "shocks the conscience" test in circumstances such as those at issue here.

It is safe to say, I think, that some of the more extreme CIA techniques -- waterboarding and cold cell, say -- would invariably, or almost always, shock the conscience. Therefore, the McCain Amendment will take certain previously approved techniques off the table. (If this weren't the case, then the Vice President's tooth-and-nail opposition would have been fairly inexplicable.) But beyond that, its effect as to particular interrogation techniques is somewhat uncertain. [UPDATE: I'm not comforted by the Vice President's recent statement trying to make the best of McCain, in which he suggests that the "shocks the conscience" standard is awfully manipulable: "Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose, that's in the eye of the beholder. But I believe, and we think it's important to remember, that we are in a war against a group of individuals and terrorist organizations that did, in fact, slaughter 3,000 innocent Americans on 9/11, that it's important for us to be able to have effective interrogation of these people when we capture them."]

3. Executive Override?
Has the Administration abandoned its view that the Commander-in-Chief may ignore statutory restrictions that impinge on the President's judgment of “what methods to use to best prevail against the enemy”? (See more here.) We'll need to keep an eye on the President's signing statement(s).

* * * *

In sum, it's possible the Administration will construe and apply the McCain Amendment in a manner that will substantially weaken its effect. Moreover, the McCain Amendment does not contain any enforcement mechanisms: It doesn't establish criminal or civil penalties for violations. The good news, however, is that next month Senator McCain becomes the Chair of the Senate Armed Services Committee, which will give him serious leverage for overseeing the administration of his own Amendment (including the changes to the Army Field Manual).

There remains the question whether the benefits of the McCain Amendment are outweighed by the other provisions that the White House has apparently secured in exchange. I'll discuss these briefly in my next post.
Posted 11:26 AM by Marty Lederman [link] (15) comments

The McCain Amendment -- The Ugly

Marty Lederman

The biggest downside of the McCain Amendment is that the Senator's victory on the substance of that amendment appears to have come at great cost on other substantive matters. In particular, the White House reportedly has been able to secure at least three statutory provisions of its own -- provisions that are being tied to McCain, as a singular "packaged" deal. The specific wording of the three provisions is not yet public, as far as I know. Therefore it is difficult to assess their full impact. But here's an initial summary, roughly in order of least to most troubling:

1. CIA "Immunity"

According to the Washington Post, Senator McCain agreed to add two paragraphs "that would give civilian interrogators legal protections that are already afforded to military interrogators," and that "specifically would allow those civilians to defend their use of interrogation tactics by arguing in court that a 'person of ordinary sense and understanding would not know the practices were unlawful.'"

I'm not sure exactly how this would work. The idea, as it was described during negotiations, was to make sure that CIA interrogators would not be civilly liable, or criminally culpable, if they reasonably relied on the Attorney General's certification that a particular technique is lawful. (The Robb-Silberman Report revealed that the Attorney General personally approves all intelligence agency interrogation techniques that go beyond openly published interrogation techniques.)

It's not clear to me how much this would change the law, at least on the criminal side. As a general matter, due process already protects persons against criminal culpability for conduct undertaken in reasonable reliance upon the legal opinions of government officials. Certain cases might raise hard questions about whether it is reasonable to rely on an official AG opinion of law -- but it seems to me that there should be a strong presumption that such reliance is reasonable: We should encourage Executive branch officials and employees to seek the legal advice of the AG (and OLC), and to rely on such advice. If the advice is wrong, disingenuous, or offered for improper purposes (e.g., to provide legal cover for conduct of dubious legality), the DOJ officials should be called to account -- not the CIA agents who acted in reliance thereon. (Again, in rare cases the AG's advice might be so implausible that reliance upon it is unreasonable. See, e.g., United States v. Dietrich, 126 F. 671, 675-676 (C.C.D. Neb. 1904) (Van Devanter, sitting as circuit judge). But one hopes that will be the rare case.)

2. Admission of Evidence Obtained by Torture?

As Scott Horton relates below, the evolving Graham-Levin-Kyl-Warner amendment apparently now includes a provision stating that a military administrative tribunal or board, in making a determination of status or disposition of a detainee, "shall to the extent practicable assess -- (A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and (B) the probative value (if any) of such statement."

It's not immediately apparent to me whether and to what extent -- and for what purposes, or subject to what review -- this provision would permit the admissibility of statements unlawfully obtained by torture. To the extent it would do so, however, it would of course create an incentive to use unlawful interrogation techniques.

3. Limitations on Detainees' Access to Judicial Review

This is the big problem -- the principal, review-stripping provisions of Graham-Levin-Kyl-Warner. I blogged previously about the version as passed by the Senate, which was, to say the least, confusing and ambiguous -- and ominous in its implications. Apparently, since that time, the White House and the conferees have been working on making further revisions that will go further still to cut off judicial review over important questions relating to detainees' status, detention, and treatment. It's not yet clear how this will all pan out, or how it will be construed. But to the extent these provisions overule significiant facets of the Supreme Court's Rasul decision, that would be a major victory for the White House, which has been desperate to avoid even the slightest judicial oversight of its detention and interrogation practices. It's not at all clear to me that enacting the McCain Amendment -- valuable as that is -- is worth it, if this is the cost. (It's possible, of course, that the Graham provisions would be just as likely to be enacted even if the McCain Amendment had failed, in which case inclusion of the McCain Amendment obviously is a positive development.)
Posted 11:24 AM by Marty Lederman [link] (54) comments

The McCain Amendment -- What Would the Law Be, Anyway?

Marty Lederman

So, if the McCain Amendment is enacted, what would the law of interrogation be, anyway? A quick summary:

1. There would be few, if any, geographical distinctions -- what's permissible at a secret Polish site should be the same as what's permissible in South Carolina. Senator McCain is to thank for this welcome development.

2. Torture is categorically prohibited -- as it has been throughout the past four years. "Torture" is defined, for purposes of domestic law (and, arguably, our treaty obligations) by the Senate's understandings, which require a specific intent to inflict severe physical or mental pain or suffering. Severe mental pain or suffering consists of prolonged mental harm. As the Levin OLC Memo explained, there is "little guidance to draw upon in interpreting this phrase"; all that can reasonably be said for certain is that the mental damage "must extend for some period of time." The Levin Memo also concluded -- incorrectly -- that "severe physical suffering" requires suffering for an extended duration, or persistent suffering. This may explain why DOJ apparently concluded that waterboarding was not necessarily torture -- but the legal premise is wrong: The statute does not require that severe physical suffering be extended, or persistent. Waterboarding is, in fact, specifically intended to result in severe physical suffering, and thus it is torture (and a war crime), even under the narrower U.S. definition. (The same would appear to be true for "Cold Cell" and "Long Time Standing," as well.)

3. Assaults are categorically prohibited (see 18 U.S.C. 113) within the Special Maritime and Territorial Jurisdiction of the U.S., which is defined (18 U.S.C. 7) to include "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership."

4. For the armed services, there are longstanding, categorical criminal prohibitions, under the Uniform Code of Military Justice, on assaults (including threats), cruelty and maltreatment.

5. Pursuant to Article 17 of the Third Geneva Convention, "[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind."

In general, this means that the techniques used on POWs must be limited to those traditionally included in Army Field Manual 34-52, as reasonably construed (i.e., not as construed by the Schmidt Report).

6. The law of "rendition" remains much as I described it back in August: not much has changed.

7. All U.S. personnel must refrain from conduct that shocks the conscience. This is the result of the McCain Amendment. Although we don't know precisely how this standard would or should be applied to the interrogation of Al Qaeda detainees who may have valuable intelligence, it plainly lays down a marker that would materially affect current CIA practices.

* * * *

So, what more is needed? This much, at a minimum, I would say: A statute requiring strict adherence to the standards of Geneva Common Article 3 -- prohibitng "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." As I explained here, this is precisely the proposal endorsed by the 9/11 Commission, and by many military officers eager to restore the military's best, and historic, practices.

It is quite possible that this standard of conduct already applies to our treatment of all detainees, as a matter of binding treaty obligation. (That is, for instance, the thrust of Judge Williams's partial dissent in Hamdan, discussed here.) In any event, it is the standard that the United States was committed to upholding for over 50 years, in all manner of conflicts, against all sorts of enemies, even where the Executive branch did not think that it applied as a matter of treaty obligation. All that changed with the President's directive of February 7, 2002.

As the 9/11 Commission proposed, Congress should by statute restore the tradition that the President overturned with the stroke of a pen. In conjunction with the McCain Amendment, codification of Common Article 3 would go a long way to preventing the sorts of detainee abuse scandals that we have seen over the past two years.
Posted 11:18 AM by Marty Lederman [link] (20) comments

Domestic Spying

JB

President Bush, it seems, is looking more and more like Richard Nixon every day.

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."

Apparently, John Yoo, who seems to be actively seeking the Carl Schmitt Memorial "Anything Goes" award, provided the by-now perfunctory legal justification for shredding the Fourth Amendment:

The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.

For example, just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use "electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses."

Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."

The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, cited "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."

Once you begin with the twin assumptions that (1) emergency justifies suspension of constitutional rights and (2) that the President cannot be bound by the rule of law when he acts as Commander-in-Chief, there is very little left to restrain the President. And so he has not been restrained.

Posted 6:37 AM by JB [link] (1022) comments

Torture by the Back Door

Scott Horton

Lindsey Graham has played a largely laudable role in the battle for honorable standards of treatment for detainees in the War on Terror. His efforts to regulate litigation in the U.S. courts coming out of the detention facility in Guantánamo have been much more controversial. Senator Graham, who is a reserve Air Force JAG officer and appeals judge, has couched some of his positions in terms of a desire to protect the integrity of the military courts system and to create a rational and efficient process of appeal. At a conceptual level this approach has much to it, though many JAG officers are quick to differentiate the established courts martial system from the military commissions and tribunals created by fiat of Secretary of Defense Rumsfeld, where sharp deviations from accepted courtmartial practice have been decreed.

Of all the controversial aspects of the new system Rumsfeld decreed for detainees in the War on Terror, none has been more controversial that the evidentiary standard given. Congress directed – in the Uniform Code of Military Justice – a flat prohibition on the use of testimony secured through torture or extreme coercion, and provided that the UCMJ rules would be binding on the military justice system. 10 U.S.C. sec. 863. The Federal Rules of Military Evidence carry this ban forward. But notwithstanding these clear signs of Congressional direction, Rumsfeld decided against any prohibition on the use of evidence extracted through torture – concluding that this should be left up to the finders of fact, who should be free to consider anything for “probative value.”

Accordingly it appeared reasonably clear that Rumsfeld’s course was a shirking – if not outright defiance – of Congressional guidance. Senator Graham’s original language would have made this clear, and reincorporated the prohibition. Of course such a piecemeal approach was dangerous, and would raise the specter of Congressional ratification or approval of the balance of the Rumsfeld rules. Since, as Senator Specter noted, Congress in fact failed to study these rules, such an inference would be clearly unwarranted.

In the last forty-eight hours, however, a turn for the worse appears to have been taken. Under strong pressure from the White House, it is now being said that Senators Graham, Warner and Levin have agreed to – or are close to agreeing to – this language:

Consideration of statements derived with coercion --

(1) Assessment -- The procedures submitted to Congress pursuant to subsection
(a)(1(A) shall ensure that a CSRT, ARB or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall to the extent practicable assess --
(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and
(B) the probative value (if any) of such statement

If adopted, this language could be viewed as acceptance of the Rumsfeld view that there is no prohibition per se on the use of evidence extracted by torture or other highly coercive means. In the history of the American Congress, this would mark its first acceptance of torture as a technique and blessing on the use of its fruits.

Coming after an 18-month public debate over torture policies at the end of which a solid consensus has formed against the Administration’s viewpoint, this would be a shocking result. It is made even more shameful by comparison with the decision of Britain’s highest court, handed down just one week ago, reaffirming the ban on the use of torture-extracted evidence as a legal absolute.

It is imperative that these backroom dealings on a matter of such important public concern be fully exposed and discussed. If Congress wishes to combine a vote against torture in the McCain Amendment with a back-door blessing on torture in Graham-Levin-Kyl, at least let this be done in full public view and let the votes of those who support this abomination be publicly recorded.
Posted 10:21 AM by Scott Horton [link] (23) comments

RIP: Eugene Mccarthy

Mark Graber

One of my earliest political memories is anger at Robert Kennedy cutting in on Eugene McCarthy. McCarthy had the guts to challenge an incumbent president and, to my sixth grade mind, he had earned the right to the Democratic nomination. Of course, those were my liberal republican days, so I was committed to leading my homeroom for Richard Nixon. Still, I admired McCarthy far more than most politicians I read about. He seemed generally concerned with issues, more concerned with seeing justice done by his lights than getting elected.

I thought about McCarthy last night when watching commentary over whether Tookie Williams's death sentence should have been commuted. The central issues, according to CNN, was whether commutation or execution would better help Governor Schwarzenegger's sagging popularity ratings. At least that was the basis on which the talking heads presumed the clemency decision was made. All this invoked then Governor Clinton flying home to Arkansas in a great show of toughness on crime to execute a mentally retarded killer that I cannot believe Clinton really thought was an appropriate candidate for the death penalty (who knows about Schwarzenegger). Perhaps these are just images from a 12 year old mind, but I cannot imagine Eugene McCarthy doing the same. Our politics are impoverished by his absence.
Posted 6:26 PM by Mark Graber [link] (18) comments

The Curious Word 'Honor'

Scott Horton

Three generations of American statesmen of both political parties constructed a powerful alliance. With this alliance, America prevailed in her greatest challenge, the Cold War, and with it, America emerged just fifteen years ago as the world’s paramount power. This power brought with it still greater responsibility. Our Government has assumed a conscious mantle of leadership, but the manner in which it has sought to pursue a new and highly controversial war has not always done us credit. As the London Times wrote in a powerful editorial on Sunday, one decision in particular has betrayed the vision of the Founding Fathers and the common bond of the English-speaking peoples. It is the decision to haul out of the armory of shame the old tool of royal prerogative, torture.

America still has important friends around the world, but increasingly they are saddened. They look for the old America and wonder what has happened to her. Last Thursday, the Judicial Committee of the House of Lords - Britain’s Supreme Court - handed down a landmark decision on the issue of torture. I can’t escape thinking it was written like a worried letter to American friends. For one thing, the Law Lords decided the question before them - whether evidence derived from torture could ever be introduced in legal proceedings - almost entirely on the basis of precedent from before 1789. That is, precedent which forms the common bond between the United States and Britain, the sole aspect of American law as to which the Law Lords have the power to speak with unquestioned authority. In presenting the case this way, the Law Lords seem to be making a conscious appeal to their American counterparts, and to the court of American opinion. And what they have to say is important, addressing as it does one of the most troubling questions to arise in our lifetime. They remind us of facts that were well known to the great leaders who cobbled our republic together, but seem forgotten by the men who now walk Washington’s corridors of power.

In 1628, a noble favorite of King James I was assassinated, and the proposal was put in council whether the man accused of the deed should be tortured to extract information about those who might have conspired with him. The new king, Charles I, declared that he would not use Royal Prerogative to order this unless the law expressly sanctioned it - and to answer this question, the judges of England were assembled at Serjeants’ Inn to deliberate the question. Blackstone recorded their answer,

‘The judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England.’

From that year forward, no writ ever issued in England for torture. And after the Civil War and the Glorious Revolution, the question of Royal Prerogative also was finally resolved.

In answering the question anew, last week, Lord Hoffmann, perhaps Britain’s most renowned judge and certainly one of its best, stated ‘That word honour, the deep note which Blackstone strikes twice in one sentence, is what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it.’ He goes on to cite an important essay by the Columbia legal ethicist Jeremy Waldron, which talks at length about these concepts and concludes that the prohibition on torture falls into the area of legal archetypes. Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681 (2005).

Like Blackstone, Hoffmann uses the word ‘honour’ twice in stating his rule against torture. Why does this strange word figure so prominently here? What on earth does ‘torture’ have to do with ‘honor?’

‘Honor’ has a strange ring in modern ears. We are used to hear it in accounts of duelers motivated by personal slight, and consequently it has the feel of vanity and by-gone times. But this is not what Blackstone and Hoffmann mean. The word they use is a concept of the classical philosophers, reintroduced in the Renaissance.

In classical times, the concept was, of course, ‘virtue.’ As Joseph Addison explains in The Spectator No. 219 (Nov. 10, 1711), the word ‘honor’ came in English usage to parallel ‘virtue’ and ultimately to supplant it (‘Vertue,’ he writes, ‘is the most reasonable and genuine Source of Honour.’)

As it happens, it was a vital word in the founding of this country. In the winter of 1776-77, for instance, as the Continental Army was camped at Valley Forge, the American commander, George Washington gave a curious order to his troops. He wanted them to perform a play. Specifically, it was Joseph Addison’s ‘Cato, A Tragedy,’ a play about the final days of the Roman senator and stoic philosopher Cato. For Cato and for Addison, ‘honor’ was a simple and powerful concept. A person behaved with honor when he lived his life as the realization of the values for which his society stood. Cato died struggling for the values of the Republic, against the dictator and would-be emperor Julius Caesar. In one of his final, pathos-laden speeches, Cato says that death is preferable to a life lived without honor. ‘When vice prevails and impious men bear sway, the post of honour is a private station.’ For Washington, who quoted this passage at least twice in letters to friends, ‘honor’ requires conduct - in daily life, but especially in times of war - that bears witness to the values for which the soldier and his nation stand. And curiously, a part of that honor Washington took not from Cato, but from his arch-rival Caesar. As Addison recalls, Caesar’s great and unexpected string of military victories against the Republic after he crossed the Rubicon rested in part on his policy of clementia – the decision always to treat his defeated adversaries with dignity and respect, and to restore them to their offices and wealth, provided only that they recognize his legitimacy as a ruler and pledge not to battle against him.

As his correspondence and contemporary writings show, it is clear that Addison’s work, the concepts of the Stoic philosophers, and the writings of Enlightenment thinkers who campaigned against torture had equal measure in influencing Washington as he conceived a new standard of warfare in those fateful years. At the Battle of Trenton, Washington gave concrete form to this idea. He introduced a rule on the treatment of prisoners - ‘Treat them with humanity,’ he said. In no case would torture or abuse be countenanced; the captured mercenaries were to receive food, lodging and medical treatment in no respect inferior to our own soldiers. In particular, their religious values were to be respected. Washington ordered severe penalties for any soldier who broke this rule. So for Washington ‘honor’ meant that torture was forbidden. Indeed, for him this prohibition and a positive standard of conduct associated with it was the very essence of the word ‘honor.’

Col. Ted S. Westhusing, the highest ranking US soldier to die in Iraq, was also the US Army’s premier ethicist. His Ph.D. dissertation was written on the classical definition of ‘honor’ and its application in the law of armed conflict. I didn’t know Col. Westhusing, but I knew and admired his work. In his last reports from Iraq, he expressed real anguish about the collapse of the discipline and values for which the US military has been known historically. According to the Los Angeles Times account, his last message included these lines: ‘I cannot support a mission that leads to corruption, human rights abuse and liars. I am sullied. I came to serve honorably and feel dishonored.’ In Ted Westhusing’s life and death lies an unmistakable and profound bond with the past – with Seneca, Addison’s Cato, and George Washington. This loss diminished our military service, for who can doubt but that Westhusing was an important moral leader. America’s leadership desperately needs to hear Col. Westhusing’s call.

President Bush tells us that the war in Iraq must continue so that the casualties suffered - 2,100 Americans killed, and perhaps 10,000 seriously wounded - shall not have been in vain. In this he goads the American public, just as Agamemnon invoked the Greek dead to bring Achilles back to battle in the Trojan War. But our answer to Bush must be this - nothing we do today can change the facts underlying this nation’s march to war in Iraq. What once seemed a strong case for just war now is revealed decidedly less so. That is now a cause for the historians. But at least let our soldiers fight it with the honor that is their birthright. Denying America’s military traditions dishonors us all, but for soldiers in combat it brings a special taint.

The Bush Administration’s policy of torture and abuse has been an unprecedented assault on our nation’s honor. It is time for us to take it back.

John McCain in proposing his amendment said, ‘It’s not about who they are. It’s about who we are.’ That indeed is the essence of the concept of honor, as Washington used the term. Enacting the McCain Amendment will be a critical first step - but only one step - in this struggle.

In remembrance of Ted S. Westhusing, Col, USA, who died in Iraq, June 5, 2005.
Posted 11:29 AM by Scott Horton [link] (24) comments

Deconstruction's Legal Career

JB

My new article on deconstruction and legal scholarship is now available on SSRN. Originally written in 1998, I have revised it a bit to take into account my latest thinking on the relationship bewteen law and deconstruction. Here is the abstract.

This article describes law's encounter with deconstruction, and how it changed deconstruction. In the hands of lawyers, deconstruction became a set of rhetorical strategies for critiquing legal distinctions and showing their ideological character. Legal scholars used deconstructive arguments to offer normative prescriptions in ways quite different from literary critics or philosophers. Although in theory all texts and distinctions are deconstructable, legal scholars assumed that some interpretations were better than others. Legal deconstruction thus became a set of repeatable rhetorical practices used for pragmatic purposes; and it revealed that these rhetorical and pragmatic features were already present in literary and philosophical deconstruction.

Deconstruction's encounter with law also overturned several popular assumptions about deconstruction. First, legal deconstruction does not assert that legal texts have no meaning or that their meanings are indecipherable. Rather, it argues that texts are overflowing with meanings that point in different directions and emerge over time. Second, one deconstructs conceptual oppositions not to show that legal concepts have no boundaries, but that their boundaries are fluid and appear differently as the conceptual opposition is placed into new interpretive contexts. Legal deconstruction asserts that legal distinctions are nested oppositions - conceptual oppositions whose terms bear a relation of mutual dependence and differentiation; this complicated relationship is revealed as interpretive contexts change. Ideological drift, in which concepts change their political valance as they are repeatedly invoked at different points in history, is a special case of this phenomenon. Third, instead of asserting that legal doctrine is radically indeterminate, legal deconstruction suggests that social construction places ideological constraints on legal decisionmaking and helps produce the sense that some arguments are better than others. Finally, far from denying the existence of fundamental human values, legal deconstruction presupposes a transcendent value of justice which law attempts to express but always fails fully to articulate.

Posted 11:25 AM by JB [link] (17) comments

Katrina and the Web of Responsibility

Stephen Griffin

The NYT created quite a stir with Sunday’s editorial, “Death of an American City.” Strong medicine, but on point. The NYT’s basic message is the lack of leadership by all concerned, but especially on the federal level. Nola citizens still do not know whether the federal government will pay for an improved levee system, whether it is “true” Category 3 protection or the best possible Category 5.

This may be a decisive week for New Orleans. Congress will end its session by the weekend and by then we should know whether they have voted money for levee improvements or not. Because many Nola residents view improved levee protection as an absolute precondition for their return to the area, Congress’s action (or failure to act) could be decisive for the effort to rebuild the city.

It’s pretty clear there are many in DC who think the cost of better levees is just too much. But from a Nola perspective, things look a bit different. What Nola citizens are being told was well summarized by a headline in our local paper, The Times-Picayune , on December 8: “100 days after Katrina, the evidence is clear that the great flood was a man-made disaster.” Article continues: “Evidence shows that the six levee breaches along three canals and the overtopping at the Mississippi River-Gulf Outlet can be traced to human error.” Design flaws, poor engineering and bad construction materials all played a part. It appears that the city never had "true" Category 3 hurricane protection, as was always said. Further, this lesser degree of protection was fatally undermined by human error and negligence all coming from the Army Corps of Engineers. And further, had the existing levee system been done properly to a Category 3 level, the city would not have flooded.

So locals have reason to believe that Katrina was a man-made disaster, man-made, that is, at the federal level. The idea that the feds would escape responsibility, or, as a price for rebuilding, insist that the city be changed significantly, is thus especially infuriating. From the Nola perspective, it's the feds fault. They have to make good for what they have done. On the other hand, locals do understand that the old system of multiple levee boards has to go and there is a major grassroots effort going on now to make that happen at the next state legislative session.

In addition, from a local perspective, corruption is being used by the feds as a dodge to refuse to help. After all, the main money the state is interested in is for the levee system. That would be federal money given to a federal agency, the Corps, not the state or local government. If the feds think corruption is a problem in the Corps, they should solve it. But using local corruption as an excuse not to rebuild the levee system properly is a non sequitur.

Many experts think the best protection for New Orleans is not the levee system by itself, but restoring the wetlands that absorb the force of giant storms like Katrina. There’s already a plan in place to do this called Coast 2050. Unfortunately, according to experienced enviros, it’s not clear wetlands can be restored to anything like their former condition. And why were they allowed to erode in the first place? At this point, Katrina turns into a local story, one of allowing oil and gas companies and timber interests to work their will by cutting hundreds of canals through the wetlands and not requiring them to fix the damage. That’s a state matter, but not one even on the radar screen of current Louisiana politics. Instead, Louisiana politicians want to use a better share of oil revenue to pay for the restoration of damage properly attributed to oil companies. But no one wants to talk about the responsibility of private interests for what has happened or the complicity of state government. That would indict just about everyone.

One thing you can say for democracy – when things go bad, it’s usually everyone’s fault.
Posted 11:11 PM by Stephen Griffin [link] (10) comments

The Fair Employment Mark is fit to print

Ian Ayres

FYI, the New York Times Sunday Magazine included

The Fair Employment Mark

in their Year in Ideas issue yesterday (yippee). As readers of this blog will remember, any employer any in the world can make a binding legal promise not to discriminate on the basis of sexual orientation with just a few clicks of the mouse.
Posted 11:01 AM by Ian Ayres [link] (14) comments

Undisclosed Prisons, Detention Without Charges, and Now Secret Laws: the Bush Adminstration's Latest Act of Contempt for the Rule of Law

Brian Tamanaha

The Bush Administration has time and again demonstrated contempt for the basic principles of the rule of law when it deems it necessary for the war on terror. [I thought about wording this more politely, but why beat around the bush on a matter of such importance]. Its obsession with secrecy is also well documented. So this story on CNET news should come as no surprise. But it's still shocking.

Apparently there is a federal regulation or order of some kind which requires that everyone who boards a commercial flight must produce an ID. This seems to be a sensible precaution [see Concurring Opinions for funny but serious commentaries on security measures]. The shocker is not the regulation, but the fact that, in a case based upon this regulation, the Justice Department refuses to disclose the terms of the regulation, or even to confirm that it exists.

A three-judge panel of the 9th Circuit Court of Appeals seemed skeptical of the Bush administration's defense of secret laws and regulations but stopped short of suggesting that such a rule would be necessarily unconstitutional.

"How do we know there's an order?" Judge Thomas Nelson asked. "Because you said there was?"

Replied Joshua Waldman, a staff attorney for the Department of Justice: "We couldn't confirm or deny the existence of an order." Even though government regulations required his silence, Waldman said, the situation did seem a "bit peculiar."

That was an impressive understatement. Every account of the "rule of law" requires that laws enforced against the public must be made public. But the Justice Department, our national law enforcement agency, thinks not:

The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.

It is impossible to figure out what possible reason the Bush Administration could have for keeping the terms and status of this regulation or order a "secret," since it is being invoked (at least implicitly) millions of times each day [Unless it's a massive bluff and no such reglation exists?]. But never mind that.

This is a gross violation of the rule of law, for which no justification could be adequate.

UPDATE: Orin Kerr at Volokh Conspiracy has added a more information to this bizarre story. His basic point is that this situation is not as bad as it sounds because people who refuse to produce an ID are not arrested, but merely won't be let on the plane. This response is besides the point: a secret law is unacceptable. Besides being wrong in principle, it once again tarnishes our credibility as a country. We cannot insist that we abide by the rule of law (and lecture other countries on the subject), while claiming that it is okay to have a secret law. It's kind of like the Bush Administration insisting that we are opposed to torture and denying that we commit torture, while resisting the enactment of a law against torture and seeking to immunize our agents who might commit torture. Nobody buys it.
Posted 9:22 AM by Brian Tamanaha [link] (19) comments

Conservative Elites and Abortion

Mark Graber

I overlapped with many of the nation's leading conservative elites when I attended Dartmouth College during the middle to late 1970s. Granted that people change over time, but the notion that this crowd would be leading the charge for "traditional family and sexual values" seems rather absurb. Most belonged to fraternities that seemed rather dedicated to sex outside of marriage. Then again, looking at the conservative record in Congress, maybe "boys will be boys" is what is meant by traditional family and sexual values.

I was reminded of my Dartmouth experiences the other day when interviewed by a reporter from the Wall Street Journal on the probable consequences of a Supreme Court decision overruling Roe. Part of the reason was Paul Gigot was my editor when I was on the school paper (he was terrific, exceptionally open-minded). The other was that the reporter seemed rather pro-choice. I did my usual schick, explaining why I think both pro-life and pro-choice forces have incentives to exaggerate the likely political and social impact of a decision overruling ROE (see too many blogs below). She, on the other hand, with a concern for the less fortunate not normally associated with the WSJ, kept pushing me to highlight more serious impacts on poor and minority women. Do I think they will be worse off if ROE is overruled. I do. But many who do not live near an abortion provider are already badly off.

My more general conclusion is that the family values revolution is being led, partly by sincere religious believers, but also by former fraternity drunks who are mostly interested in gaining votes for lower taxes and imperial adventures in the Middle East. I rather doubt that Dartmouth frat boys will cry if ROE is overruled or change their behavior much. Nor, do I suspect, will the Wall Street Journal find that decision an occasion for mourning or celebration. If you can afford Dartmouth or read the Wall Street Journal regularly, ROE does not matter.
Posted 1:40 PM by Mark Graber [link] (24) comments

More on the Differences Between Conservatives and Liberals, Via Kekes

Brian Tamanaha

In a post last week, exploring the philosophical differences between conservatives and liberals, I quoted extensively from Roger Scruton and John Kekes, two leading conservative thinkers. The differences, I argued, did not appear to be that great, at least in terms of underlying views of human society and values. Kekes, who has published a number of books on conservatism, often takes positions that many liberals would find congenial, objectionable mainly in degree or in line drawing.

Kekes' most recent post on Right Reason, the third in a series of posts aimed at articulating the core conservative position, leads me to wonder whether the real differences are not in underlying philosophies but in attitudes. Consider this passage from his post:

A safe generalization about conservatives is that they are skeptical about progress. They are not so foolish as to deny that science, technology, education, and so forth have changed human lives for the better. But they have also changed them for the worse. The stock of human possibilities has been enlarged, yet with more possibilities come more evils. Conservatives doubt that more possibilities are bound to make lives on the whole better because they believe that permanent conditions render uncertain any significant improvement of the human condition. One of these permanent conditions is the prevalence of evil. In religious, ideological, racial, and ethnic conflicts, in unjust wars, terrorist attacks, and violent crime innocent people are murdered, tortured, and mutilated. All over the world cruelty, greed, prejudice, and fanaticism ruin the lives of countless victims. Outrage provokes outrage. Millions nurture seething hatred of real or imagined enemies. The forces of barbarism continually break through the superficial layer of order and threaten the security of a substantial segment of humanity. This is how it is now and how it has been throughout history.

Okay, so the world sucks. On that I think conservatives and liberals could agree.

But two differences between liberals and conservatives come to mind in reaction to the the above passage. Many a liberal would respond to the latter half--the stuff about unjust wars and torture--by thinking: "Yep, and we (the US of A) do a lot of that bad stuff too, alas." In constrast, many a conservative reading that passage would think about how screwed up and evil everyone else is, but without reflecting upon our own conduct.

The second difference is that a liberal would hope that things could be better, and would try in some way, however small and seemingly futile, to do something to make that happen. A conservative would think how screwed up and evil everyone else is. Here's Kekes' next passage:

The responsibility for all this evil lies with human beings. It would be shortsighted, however, to stop here because the prevalence of evil reflects not just a human propensity but also a contingency that influences what propensities human beings have and develop. The human propensity for evil is itself a manifestation of this deeper and more pervasive contingency which operates through genetic inheritance, environmental factors, the confluence of events that places people at certain places at certain times, the fortunate and unfortunate accidents that happen, and the historical period, society, and family into which people are born. These and other factors influence human affairs independently of human intentions. It would be unreasonable to conclude from this that contingency is a force for evil, since contingency could be a force for the good as well. The conservative view is that whether the balance of good and evil propensities and their realization by people tilts one way or another is a contingent matter over which human beings and the political frameworks they maintain have insufficient control. The right political frameworks will help, of course; just as the wrong ones will make matters worse. But not even the best political framework can bring contingency within human control because the efforts to control it are subject to the very contingency they aim to control. This is the fundamental reason why conservatives are skeptical about the possibility of a steady and overall improvement of the human condition.

Is Kekes--and those conservatives who agree--right that there has been little sustained improvement in the human condition and little reason to hope for more (so don't try for big positive changes)? A thousand years ago, chances are that Kekes would have been a serf who tilled the soil day in and day out, with no options, a short burdensome life, wives and children who died, etc. Of course, Kekes acknowledges there has been improvement in material conditions. Rather his contention is that there has been little or no change in the quality of our lives, at least in the sense of being surrounded by contingency and evil. But still...?

Kekes main point is to reject "ideologies" of all kind (in favor of preservation of the status quo and prudence). Ideologies have led us astray, increasing evil because they induce us to attempt the hopeless and often counter-productive task of making society better. Liberals, he suggests, are suckers for ideologies, seduced by some vision to try to make a better world.

But I keep thinking that the good old Founding Fathers were pursuing Enlightenment inspired ideologies (and many conservatives reject the Enlightenment), and the Civil Rights movement, and so on.
Posted 9:27 AM by Brian Tamanaha [link] (5) comments

One reason why torture might not work

JB

It might mislead you into starting an unnecessary war:

The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment, according to current and former government officials.

The officials said the captive, Ibn al-Shaykh al-Libi, provided his most specific and elaborate accounts about ties between Iraq and Al Qaeda only after he was secretly handed over to Egypt by the United States in January 2002, in a process known as rendition.

The new disclosure provides the first public evidence that bad intelligence on Iraq may have resulted partly from the administration's heavy reliance on third countries to carry out interrogations of Qaeda members and others detained as part of American counterterrorism efforts. The Bush administration used Mr. Libi's accounts as the basis for its prewar claims, now discredited, that ties between Iraq and Al Qaeda included training in explosives and chemical weapons.

The ticking time bomb scenario often used to justify torture generally assumes that we already know there is a ticking time bomb and that we must resort to torture to elicit necessary information to stop it without delay. The prior question, however, is where we got our understanding that there was a ticking time bomb in the first place. This story suggests that the perception that we had to go to war (our ticking time bomb) may have been generated by false information designed to escape torture (or cruel treatment), which, in turn, has led to the perceived necessity for additional cruelties. In this way falsity begets more falsity, evil begets more evil.

We are often told that cruel and inhuman treatment of prisoners is justified because it produces important information that saves lives. But how many more lives, one wonders, were destroyed because of the false information that cruel and inhuman treatment elicits? And what mistakes have we been making, even to this day, on the basis of information collected through renditions to other countries that practice torture, and by cruel and inhuman treatment of prisoners by our own personnel?

Thomas Jefferson, speaking of slavery, once said: "can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever."

Will the consequences of our sins someday be visited upon us? I, too, tremble for my country.

Posted 8:12 AM by JB [link] (25) comments

Condi Rice's "No Torture" Pledge: Don't Believe the Hype!

Marty Lederman

Sorry, Jack, but it is, in fact, too good to be true.

Many news outlets are reporting, as big, breaking news, the fact that the Secretary of State today said in Kiev: "As a matter of U.S. policy, the United States' obligations under the CAT (Convention against Torture), which prohibits cruel, inhumane and degrading treatment -- those obligations extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States."

The Washington Post, for instance, made this its lead story today, with the headline "Rice Seeks To Clarify Policy on Prisoners," and the subhead "Cruel, Inhuman Tactics By U.S. Personnel Barred Overseas and at Home." The Post story explains that "Rice's statement appeared to leave little room for ambiguity, which could potentially undermine her credibility if it is later discovered that CIA personnel are still using prohibited interrogation techniques."

This is dead wrong. Her statement (a) is nothing new; and (b) leaves a ton of room for ambiguity. [UPDATE: The Post editorial page, on the other hand, does a remarkably quick and thorough job making mincemeat of its own lead story, with an editorial that begins "Secretary of State Condoleezza Rice did not break any new ground yesterday," and that proceeds to make many of the same points that I set forth in this post.]

It's Nothing New

The Post recounts that Attorney General Gonzales said the same thing last month in a written answer to a Senate question. Yes. But more to the point, Gonzales said the same thing -- indeed, appeared to be even less equivocal about U.S. "policy" -- back in January, when he submitted written answers to Senate questions in his confirmation hearing. As I reported at length back then, Gonzales wrote that U.S. policy was to refrain from cruel, inhuman and degrading treatment ("CIDT") everywhere -- even though that wasn't, in the Administration's view, what the law required. He elaborated that the Administration "want[s] to be in compliance with the relevant substantive constitutional standard incorporated into Article 16"; that he "had been advised" (interesting use of tense) that "approved interrogation techniques were analyzed under that standard and satisfied it"; and that "since that time, we have determined to undertake a comprehensive legal review of all interrogation practices. . . . The analysis of practices under the standards of Article 16 is still under way, but no one has told me that we are not meeting the substantive requirements of Article 16."

In September, the then-nominee to be Deputy Attorney General, Tim Flanigan, said the same thing, in his responses to the Senate. See here.

And yet, notwithstanding these assurances about U.S. "policy," the CIA practices of waterboarding, and hypothermia, and forcing prisoners to stand, handcuffed and with their feet shackled to an eye bolt in the floor for more than 40 hours, presumably continued unabated. See here. Moreover, the Vice President continued to fight tooth and nail to prevent the McCain Amendment, even going so far as to threaten a Presidential veto of the Defense Appropriations bill! And then the Administration began to insist on a CIA exemption. This is awfully odd behavior if, in fact, our uniform policy and practice was already to ensure undeviating compliance with the prohibitions in Article 16.

PLenty of Room for Ambiguity (or Duplicity):

Rice's statement leaves "little room for ambiguity"? Well, just look at the mixed messages today alone. The Post reports that, when asked whether her statement was intended to close the loophole the Administration has relied upon to avoid the application of the CIDT prohibition to aliens detained overseas, "[s]he first ducked the question, and then later in the briefing said, 'Our people, wherever they are, are operating under U.S. law and U.S. obligations.'" Not too reassuring, eh? And then there's this: "For two days, her aides declined to clarify whether her comment in the briefing signaled a change from the previous administration position. . . . [E]ven after Rice made her remarks here, her aides were sensitive to suggestions she was breaking new ground. White House spokesman Scott McClellan told reporters in Washington that Rice was repeating existing policy."

In other words, "clarification" is decidedly not what they're aiming for. More like obfuscation, equivocation, double-speak.

So what might Rice's statement mean, and how can it be consistent with the Administration's practice of authorizing the CIA to use "enhanced interrogation techniques"? A few possibilities:

1. First, note carefully what Rice said: that "the United States' obligations under the CAT . . . extend to U.S. personnel wherever they are, whether they are in the United States or outside of the United States." Yes, that's true. But it's uncontroverted. Everyone agrees that CAT article 16 applies outside the U.S. For instance, it certainly protects conduct taken against U.S. citizens in overseas territory "subject to [U.S.] jurisdiction." But the pertinent question is whether the U.S. is committed to avoidance of CIDT as applied to aliens detained everywhere overseas -- and Rice's statement says nothing about that question.

2. One of the Administration's arguments, which I've discussed at length on this blog, is that (i) Article 16 merely incorporates the protections of the Due Process Clause; (ii) the Due Process Clause does not protect aliens overseas; (iii) ergo, neither does Article 16 protect aliens overseas. If they are adhering to this argument, Rice can comfortably say that our obligations under Article 16 apply everywhere, so long as she neglects to note the fact that, in the Administration's view, those obligations do not extend to aliens outside the U.S.

3. Another of the Administration's arguments is that they are applying Article 16 everywhere -- but that Article 16 by its terms only imposes obligations "in any territory under [U.S.] jurisdiction." Perhaps GTMO is within U.S. jurisdiction, on the Administration's view. (Who knows?) But DOJ's view apparently is that the phrase does not encompass most U.S.-operated facilities in other nations, and thus would not apply to the CIA's black sites in foreign jurisdictions, such as Poland. In other words, "We will now abide by Article 16 everywhere" means "We will now abide by Article 16 everywhere in the world that is under U.S. jurisdiction (narrowly defined)."

* * * *

Is this confusing? You bet it is. But the confusion is not inadvertent -- it's intentional. The whole object is to hide the ball and constantly shift and recalibrate the (literal) terms of the debate. As the New York Times reported today, "'[i]t's clear that the text of the [Rice] speech was drafted by lawyers with the intention of misleading an audience,'" Andrew Tyrie, a Conservative member of Parliament, said in an interview. . . . Parsing through the speech, Mr. Tyrie pointed out example after example where, he said, Ms. Rice was using surgically precise language to obfuscate and distract."

As long as the public discussion is focused on abstract labels and vague, general standards the meaning of which is known only to a small cabal within the Administration, it will be impossible to have a meaningful debate about what's permitted and what is not. In order to have any legitimate public debate on these questions, we will first need to see the Administration's legal analysis that explains how the Administration understands the application of the standards as a practical matter. What -- as a practical matter -- does "torture" mean? "Humane" treatment? "Cruel, inhuman and degrading treatment"? "Prolonged mental harm"? "A likelihood of being tortured"? "Policy"? "Subject to its jurisdiction"? "Shocks the conscience"? Etc. There are, of course, slews of court decisions, international adjudications, articles, blogs, etc., that have addressed these questions. But when waterboarding and cold cell are part of our repetoire of interrogation techniques, and yet it's our "policy" not to torture, and to treat all detainees humanely, and to refrain from CIDT, then obviously that's a sign that the law as it's being applied by our government is a far cry from any ordinary, intuitive, or lay understanding of what the law means. (Tom Toles's cartoon today nails it.) The idea of a secret body of law in a democratic society is very disconcerting -- but that's what it's come to here.

The McCain Amendment would eliminate almost all of the Administration's hair-splitting by categorically applying the ban on CIDT to all U.S. personnel, with respect to all detainees, wherever they are found. (Unfortunately, it won't eliminate all the ambiguities, because we do not know how the CIDT standard -- the "shocks the conscience" test of the Due Process Clause -- would apply to the interrogation of high-level terrorism suspects who may have valuable intelligence. But it would eliminate most of the absurd geographic distinctions that currently plague us. After the McCain Amendment is enacted, the rules for interrogation in South Carolina will be the same as the rules at GTMO, which will be the same (for domestic law purposes) as the rules at a "black site." We may not know precisely what those rules are . . . but it's a start.)

* * * *

A word about the Secretary's words about renditions:

Secretary Rice was quoted as saying yesterday: "The United States has not transported anyone, and will not transport anyone, to a country when we believe he will be tortured. Where appropriate, the United States seeks assurances that transferred persons will not be tortured."

I've already attempted to demonstrate why this is a very empty assurance. The basic gist of it is this (more detail in the preceding link):

1. The U.S. view is that detainees can be rendered to a nation so long as there's not a 50% likelihood that they will be tortured.

2. We've adopted an incredibly narrow, and counterintuitive, definition of "torture," so that it doesn't cover waterboarding, cold cell, etc.

3. Even with respect to a nation that has an egregious record of torture, we conclude that the 50% threshhold is not met if we receive an "assurance" from the nation that it will not "torture."

4. What's more, there's strong indication that the U.S. doesn't think the CAT even applies with respect to renditions from one foreign land to another -- that in the Administration's view, the rendition restriction is limited to renditions from the U.S.
Posted 5:26 PM by Marty Lederman [link] (11) comments

John Dewey on Liberty as Efficiency and Law as Force

Brian Tamanaha

Every now and then I read something that makes me sit up and want to tell others that they have to take a look at it (hence this blog posting). That was my experience with a now mostly forgotten essay on law by John Dewey, "Force and Coercion," 26 Int. J. of Ethics, 359-367 (1916). The final two paragraphs of this startling essay, set forth below (with brief comments), provide a flavor of the piece:

In other words, the question of the limits of individual powers, or liberties, or rights, is finally a question of the most efficient use of means for ends. That at a certain period liberty should have been set up as something antecedently sacred per se is natural enough. Such liberty represented an important factor which had been overlooked. But it is as an efficiency factor that its value must ultimately be assessed. Experience justifies the contention that liberty forms such a central element in efficiency that, for example, our present methods of capitalist production are highly inefficient because, as respects the great body of laborers, they are so coercive. Efficiency requires methods which will enlist greater individual interest and attention, greater emotional and intellectual liberty. With respect to such a liberation of energies, older and coarser forms of liberty may be obstructive; efficiency may then require the use of coercive power to abrogate their exercise.

This passage should be understood in the aftermath of Lochner (about which lots is now being written by academics), and more immediately in the context of battles over the use of labor injunctions to halt strikes. In the above passage Dewey transforms legal rights into questions of efficiency for social ends (ala Posner?). In an earlier passage, Dewey suggests that illegal means--striking--may be justified when that is a more efficient way to achieve social ends.

The final paragraph should be understood in the broader context of ongoing debates over US participation in World War I (Dewey departed from his pacifist friends to support participation):

The propositions of this paper may then be summed up as follows: First, since the attainment of ends requires the use of means, law is essentially a formulation of the use of force. Secondly, the only question which can be raised about the justification of force is that of comparative efficiency and economy in its use. Thirdly, what is justly objected to as violence or undue coercion is a reliance upon wasteful and destructive means of accomplishing results. Fourthly, there is always a possibility that what passes as a legitimate use of force may be so wasteful as to be really a use of violence; and per contra that measures condemned as recourse to mere violence may, under the given circumstances, represent an intelligent utilization of energy. In no case, can antecendent or a priori principles be appealed to as more than presumptive: the point at issue is concrete utilization of means for ends.

Now that's a clear-eyed (cold, calculated) view of the law.
Posted 11:21 AM by Brian Tamanaha [link] (23) comments