Rumsfeld's 'Humane' Doesn't Cut It

Scott Horton

Vice President Cheney and his dwindling number of GOP floor lieutenants continue to demonstrate amazing industry in their efforts to block the McCain Amendment. Today’s effort focuses on a new Department of Defense Directive No. 3115.09, dated November 3, 2005 and issued by Acting Deputy Secretary of Defense Gordon England. House Armed Services Committee Chair Duncan Hunter and others are busily pointing to this Directive and arguing that it resolves the worries that motivated McCain, Warner and Graham. With this Directive, Hunter argues, the concerns about detainee mistreatment are addressed, and the need for the McCain Amendment is eliminated.

No one who has tracked this issue is misled even for a second as to the major goal of this effort: it is to preserve the CIA’s ability to use highly coercive techniques – cruel, inhuman and degrading treatment, and yes, torture – in their intelligence gathering process. But a careful examination of the new directive shows that it is more an effort to entrench current abusive policies than a recognition of criticisms and resolve fairly to answer them. Here are some of the major shortcomings.

Commitment to the Rule of Law and Geneva Conventions
Current directives state that DOD personnel “shall comply with” the Geneva Conventions, and indeed, Field Manual 34-52 has been recognized around the world as a model of scrupulous adherence and implementation of the Conventions. By contrast, this directive starts by disavowing the Conventions. The old directive said that DOD personnel “shall apply” the Geneva Conventions and other applicable law. What was once mandatory, now becomes discretionary: the governing standards “may include the law of war, relevant international law, U.S. law and applicable directives” “unless otherwise authorized” by the Secretary of Defense. In other words, the directive actually contemplates that Secretary Rumsfeld may authorize personnel to disregard binding law. Indeed, he already has, and has publicly acknowledged this fact in the ghost detainees affair. This language comes perilously close to suggesting a repudiation of the rule of law. And it is striking for its refusal to recognize that cruel, inhuman and degrading treatment will not be countenanced. As Senator Lindsey Graham has stated, this point lies at the very heart of the McCain Amendment – and the new DOD directive appears to defy it.

Reading the tealeaves more closely, this passage also gives us some clue about who was and was not involved in drafting this directive. It uses the term "law of war." No uniformed lawyer from the post-Vietnam War era would use such outmoded language. He or she would refer to the "law of armed conflict" (LOAC for short). This phrasing suggests an author who is intimately familiar with the Pentagon as a political appointee, but has never worn a service uniform or fought in a war, and knows precious little about the law of armed conflict. And likely someone who collected his law degree sometime before 1980. Let's see... might that be David S. Addington?

It Depends on What ‘Humane’ Means
Until 2002, Department of Defense policy consistently accorded detainees treatment which matched or exceded the “humane” standard of Common Article 3 of the Geneva Conventions. After 2002, a new understanding of “humane” was introduced under which it was – in Marty Lederman’s formulation – “defined down.” This became clear for the first time in submissions made by Alberto Gonzales to the Senate Judiciary Committee when his appointment as attorney general was reviewed. It was revisited during the ill-fated nomination of Tim Flanigan. The most authoritative discussion of this process is still found in three of Marty’s posts, here, here and here. In essence, the new use of “humane” allows a detainee to be subjected to physical brutality (certainly to brutal “stress techniques”) – as long as you toss him a sandwich and give him a clean place to sleep, the treatment still counts as “humane.” Lt. Gen. Mark Randall Schmidt’s jarring report on the treatment of Guantánamo detainees made this point by repeatedly outlining highly abusive and degrading treatment, but finding that it was “humane” in DOD parlance, and within the scope of FM 34-52 as re-interpreted under Secretary Rumsfeld.

The directive offers no comfort on detainee treatment, because it establishes a predictable standard: treat them “humanely.” (3.1). Until a new standard for “humane” is introduced, that means it sanctions the sort of abusive treatment which seems permanently displayed in the headlines of the nation’s newspapers and is badly tarnishing our reputation around the world.
Nor is there any reason to hope that “humane” will be redefined. The New York Times reports that Matthew Waxman and others moved to restore the traditional DOD understanding of “humane” – the one based on Common Article 3 – and that they were beaten down by Vice President Cheney and David S. Addington, Cheney’s new chief of staff, and Washington’s favorite Keyser Söze.

The Potemkin Directive
This directive is a sham in several respects. First, as Defense Department spokesman Bryan Whitman openly acknowledged yesterday, it can be changed or modified by the Secretary of Defense whenever he likes. Moreover, the SecDef is free to exempt specific operations or personnel from its reach. Is that a wild idea? Hardly. We already know, for instance, that the SecDef suspended FM 34-52, and that he authorized rules of engagement for USSOCOM units (special forces) which are completely irreconcilable with FM 34-52. Before the Abu Ghraib scandal ever errupted into the nation's newspapers, Secretary Rumsfeld had turned the venerable field manual into an enormous Swiss cheese. Second, the directive itself hinges on two other documents - the as yet unreleased new manual and a second directive, currently a bone of contention between military traditionalists and Vice President Cheney and his chief of staff.

Canine Ethics
Curiously, one single abusive practice is ruled out: the use of military dogs to terrify prisoners. (3.4.4.4). But this practice has always been outlawed by DOD rules. The problem is simply that those rules were not applied. Far more troubling practices remain unaddressed: the sweeping use of potentially lethal stress techniques, sexual humiliation practices (which Schmidt taught us have been carefully crafted and introduced since 2002), and an array of techniques designed to show disrespect for the detainee’s religion or to use his religious values to “break” him. Clearly these things could be addressed in the new field manual, but it is appropriate for the directive to reaffirm the existing – indeed two centuries old – military doctrine which precludes religious hazing and degrading treatment.

The Reporting Process
The directive deals with the need to investigate and act on allegations of detainee abuse. It deals with this through a normal command authority approach. What the directive does is unobjectionable. But it is noteworthy that this approach provides no basis for disciplining civilians, whether contract interrogators, CIA operatives, or senior assistants to Secretary Rumsfeld. Investigations to date would suggest that each of these three categories have been heavily involved in largely still uninvestigated misconduct relating to the detainees.

Access to OGA and Contractors
The directive addresses the thorny issue of access to detainees for CIA (“Other Government Agency”) interrogators and civilian contractors. The expansive role granted civilian contractors is not consistent with military tradition and raises profound questions about the use of de facto mercenaries in the intelligence gathering process. The most fundamental question is accountability. The directive suggests that contractors may be bound to DOD standards if contracts provide that, raising the worrisome prospect that contracts would no so provide. There is no legitimate reason for this loophole. The bottom line is that, legally, the DOD bears responsibility for what other interrogators do to its detainees. The DOD should therefore be serious about its rules and not try to play cute with them. The directive suggests an alarming lack of seriousness on this score. (3.4.4.3).

Professional Ethics
A surprisingly large portion of the directive deals with the professional ethics of medical personnel involved in treating or dealing with detainees. But rather than insisting that the high ethical standards of the professional be observed, the focus of the directive is on evading ethical responsibilities. This it does by segregating “behavioral science consultants” from other medical personnel and falsely denying the professional duties they owe to the detainees they work with. Medical professionals should be left free to perform their duties consistent with the ethical and professional standards of their calling. Those standards are clearly articulated by professional oversight boards and associations. To the extent the directive aims to burrow under those standards, it needs to be exposed and challenged.

Detention Operations Issues
The directive says that those responsible for detention operations, like military police personnel, “shall not directly participate in the conduct of interrogations.” (3.4.4) Abu Ghraib offered a stark demonstration of the damage that could be done by eliminating the bright-line distinction between detention operations and interrogation. Saying that military police “shall not directly participate” does nothing to undo this damage. The Abu Ghraib MP’s never “directly participated” in interrogations – they were used to prepare detainees for interrogation. This process exposed young MPs who lacked training in the rules governing interrogations to serious liability. It needs to be reversed, but the directive waffles on a commitment to do that.

Scope of Application
The directive has many curious turns of phrase, some noted here. But it also has a very suspicious structural flaw. It is limited in its scope to detainees under DOD control. (3.4) It is clear that military interrogators have ready access to detainees under the control of other agencies and potentially to those under the control of cooperating foreign powers. The directive should govern the conduct of US personnel and attached civilians engaged in intelligence gathering activities, regardless of who technically exercises custody over the detainee. We have enough experience with Rumsfeld's Pentagon to know that "trust me" is no basis to be reassured on points like this.

The new DOD directive promises no reform or improvement. From the perspective of addressing the outcry over the mistreatment of detainees, it is materially worse than the DOD policies it replaces. The situation would be far better were this directive to be rescinded and the DOD to return to the scrupulous adherence to the standards of Field Manual 34-52 that served the military and the nation well for more than a generation.
Posted 5:12 PM by Scott Horton [link] (19) comments

Balancing the Court

JB

This op-ed by John Manning in the New York Times makes the unexceptional point that the President has no obligation to "select nominees who will leave the court's ideological composition intact." Many past appointments have shifted the Court's ideological balance; indeed that is what Presidents often try to do when they select nominees. And preserving the existing balance exactly is impossible to achieve in any case, as no two individuals have exactly the same views.

But in another sense Manning's op-ed hides the real issue: When people talk about preserving balance they don't really mean that preserving balance is *always* required or that new Justices should be exact replicants of those they replace. When Manning says this he is attacking a straw man. Rather, people who argue for "preserving balance" are making claims about the Court's future direction from a position of relative political weakness.

People who argue for preserving balance on the Court are usually people who stand to lose if the President shifts the balance by appointing Justices with an ideology importantly different from their own. They argue for preserving balance because doing so invokes norms of fairness and representativeness. These norms are not illegitimate or irrelevant to the debate over the Supreme Court. But it is important to recognize that if the very same persons controlled the White House, they would not hesitate to offer nominees that would shift the balance in their preferred direction. Hence demands for preserving balance usually reflect the relative political weakness of persons who make the argument.

The Supreme Court's decisions in a small number of hotly contested areas are strongly influenced by the ideological views of its members. Changing the Court's personnel changes the likely outcomes of these cases because it changes the balance of decisional power on the Court, in particular, by changing who the swing or median Justice is.

Manning adverts to this fact when he attacks the view he attributes to proponents of preserving balance: "that nothing can ever be gained from a change in the perspective, experience or philosophy of any justice." But Manning's plea for fresh ideas and perspectives is somewhat beside the point: People who argue for preserving balance aren't worried about gaining new perspectives in the abstract. They are worried about gaining a new median Justice, with all the changes in the direction of doctrinal development this will bring. That's what the debate about balance is really about.

Unfortunately, Manning avoids engaging the point directly, arguing at the end of his piece that ideology is largely irrelevant and qualifications and temperament are most important: "Even if he turns out to be, by some measure, more conservative than Justice O'Connor, Judge Alito - like Judge Ginsburg - surely has the temperament, intelligence and judicial integrity to merit confirmation to the Supreme Court."

I agree with Manning that Presidents are not required to preserve ideological balance on the Supreme Court. But I also believe that other people have a right to oppose the President if they believe that the new nominee will shift the Court in directions that they believe are bad for the country and inconsistent with the best interpretation of the Constitution. Manning's argument that preserving balance is logically impossible and that qualifications should be paramount refuses to engage with the reality of Supreme Court decisionmaking and with the fact that the confirmation process is a key method for the political process to send signals to the Court and shape its future direction. That is what the debate over "balance" is all about.

Posted 8:21 AM by JB [link] (19) comments

Making Sense of Elections

Mark Graber

Not that anyone noticed, but yesterday was Election Day and for the first time in a while, the Democrats did better than the Republicans. Of course, doing better than the Republicans meant little more than holding on to governorships in Virginia and New Jersey that Democrats already held. Still, a couple of minor good signs for the Dems. Tim Kaine managed to win in Virginia, even though his opponent was clearly able to tar him with being soft on the death penalty. He's a bit more liberal than outgoing governor Mark Warner, but ran equal or slightly ahead of Warner, particularly in Northern Virginia. Moreover, his rival, Jerry Kilgore, clearly got nothing out of a Bush visit on the last day of the campaign. Lessons:

1. Democrats can win elections in the Border and Upper South without imitating Republicans across the board.

2. Moderates in southern suburbs may be turned off by attacks on illegal immigrants and the symbolic politics of the death penalty. As southern suburbs continue growing, a possible moderate Democratic foothold may expand.

3. Nobody north of South Carolina need worry when voting on Alito and other matters that the President may campaign against them. Indeed, a good many northern Democratic challengers might consider paying Bush's expenses if he will campaign in their states.
Posted 2:19 PM by Mark Graber [link] (21) comments

The Last Abortion Clinic

JB

Tonight PBS broadcast Producer Raney Aronson's documentary, The Last Abortion Clinic, which describes the pro-life movement's largely successful campaign to make abortions increasingly hard to obtain following the Supreme Court's 1992 Casey decision. It's very well done and I think it manages to portray both pro-life and pro-choice supporters fairly sympathetically. (The documentary will air again on Sunday the 13th, at 11:30pm EST. You can check your local schedule here). I appear briefly in the documentary talking about the upcoming Supreme Court case, Ayotte v. New Hampshire.

On the Frontline website you can also read excerpts from a much longer interview I gave back in September about the history of abortion regulation and the future of abortion rights in the United States.

Posted 10:35 PM by JB [link] (46) comments

The Return of Carl Schmitt

Scott Horton

"Woe unto him who has no enemy, for at the Last Judgment I shall be his enemy."
- Carl Schmitt, Ex Captivitate Salus (1950)

A recent study points to 108 deaths in detention in the War on Terror, with a substantial part clearly linked to the Bush Administration’s controversial new coercive interrogation practices. Some of the most egregious cases involve the CIA. In this week’s New Yorker, Jane Mayer takes a close look at one case – that of Manadel al-Jamadi. Approximately two years ago, Jamadi died at the infamous Abu Ghraib prison near Baghdad. His death was quickly ruled a homicide, a CIA investigation found clear indicia of criminal wrongdoing, and with that the matter was placed in the hands of Paul McNulty – the U.S. Attorney for the Eastern District of Virginia and now the Bush Administration’s new nominee to serve as Deputy Attorney General. Since that time, from all appearances nothing has been done – the file has languished “in a Justice Department drawer,” in the words of one of Mayer’s informants.

Mayer, whose earlier writings have greatly contributed to the public understanding of the detainee abuse scandal, astutely recognizes the wide-ranging significance of the case. Justice in a homicide case is important enough, but this case raises another and potentially far more troublesome question: Has the Department of Justice been corrupted by its “torture memoranda”? Would a prosecution expose indelible links between the crime and the highest echelons of the Department of Justice? The question is not far-fetched. Indeed, its potential to rock the Bush Administration dwarfs that of the Plamegate scandal. As Marty Lederman established in a lengthy series of posts, the “torture memoranda” served a concrete double function: they overcame Agency objections that certain interrogation techniques violated the law (by furnishing an Attorney General opinion that they were lawful), and they offered effective impunity to CIA agents who uses these techniques. I caution that this is the function they were intended to serve. Whether memoranda of the Office of Legal Counsel can actually shield those who rely on them from prosecution is doubtful.

Let us assume that the techniques employed on Jamadi – including the likely fatal “Palestinian hanging” approach – were within the scope of the torture memoranda. Were charges to be brought against the agent who had custody of Jamadi and used the fatal technique, he would certainly plead the torture memoranda as an affirmative defense. Confronted with such claims, a truly independent prosecutor would have to consider the possibility that the authors of these memoranda counseled the use of lethal and unlawful techniques, and therefore face criminal culpability themselves. That, after all, is the teaching of United States v. Altstötter, the Nuremberg case brought against German Justice Department lawyers whose memoranda crafted the basis for implementation of the infamous “Night and Fog Decree.” Who can imagine Paul McNulty, now nominated to serve as Alberto Gonzales’ deputy, undertaking such an investigation of his boss? Hence, McNulty’s dilemma is understandable, but his failure to act should not be lightly dismissed.

Mayer’s article raises fair and compelling questions about McNulty’s handling of the Jamadi homicide case – and about the role of the Department of Justice in the investigation of detainee homicides generally.

But Mayer’s article is significant for another reason. It sheds new light on one of two of the “torture memoranda” which is not yet in the public domain, but has long been viewed as critical to understanding the inhumane practices that became commonplace in Iraq beginning in the fall of 2003.

A March [14], 2003, classified memo was “breathtaking,” the same source said. The document dismissed virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes, and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. According to the memo, Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated. Another classified Justice Department memo, issued in August, 2002, is said to authorize numerous “enhanced” interrogation techniques for the C.I.A. These two memos sanction such extreme measures that, even if the agency wanted to discipline or prosecute agents who stray beyond its own comfort level, the legal tools to do so may no longer exist. Like the torture memo, these documents are believed to have been signed by Jay Bybee, the former head of the Office of Legal Counsel, but written by a Justice Department lawyer, John Yoo, who is now a professor of law at Berkeley.

As has been noted in this space before, the March 14, 2003 Yoo memorandum has assumed a “Rosetta Stone” quality. It was transmitted to the Department of Defense as advice at a critical juncture – as the Iraq War moved off the drawing boards and into reality, and questions were repeatedly raised about how the Geneva Conventions were to be applied. But that's not all. Mayer's article now suggests the existence of other advice which explicitly addressed the situation in Iraq:

By the summer of 2003, the insurgency against the U.S. occupation of Iraq had grown into a confounding and lethal insurrection, and the Pentagon and the White House were pressing C.I.A. agents and members of the Special Forces to get the kind of intelligence needed to crush it. On orders from Secretary of Defense Donald Rumsfeld, General Geoffrey Miller, who had overseen coercive interrogations of terrorist suspects at Guantánamo, imposed similar methods at Abu Ghraib. In October of that year, however—a month before Jamadi’s death—the Justice Department’s Office of Legal Counsel issued an opinion stating that Iraqi insurgents were covered by the Geneva Conventions, which require the humane treatment of prisoners and forbid coercive interrogations. The ruling reversed an earlier interpretation, which had concluded, erroneously, that Iraqi insurgents were not protected by international law.

Documents which have circulated in connection with the Fay/Jones and Taguba Reports made clear that following the issuance of high-level legal advice outside normal Department of Defense channels, command authorities in Iraq no longer considered the Geneva Conventions to restrain them in their handling of detainees. Internal email traffic among military intelligence units is consistent: Once you label the insurgent detainees as “terrorists,” “they have no rights, Geneva or otherwise.” It seems highly improbable that officers carefully trained in the Geneva rules would suddenly discard them on their own initiative. To the contrary, it is reasonably clear that instructions to that effect were transmitted from a very high source. The Yoo memoranda are critical to understanding what happened, and the March 14, 2003 combined with the initial OLC advice concerning treatment of insurgents in Iraq are likely the most significant pieces of the puzzle not yet in place.

But where exactly did Yoo come up with the analysis that led to the purported conclusions that the Executive was not restrained by the Geneva Conventions and similar international instruments in its conduct of the war in Iraq? Yoo’s public arguments and statements suggest the strong influence of one thinker: Carl Schmitt.

The Friend/Foe Paradigm
Perhaps the most significant German international law scholar of the era between the wars, Schmitt was obsessed with what he viewed as the inherent weakness of liberal democracy. He considered liberalism, particularly as manifested in the Weimar Constitution, to be inadequate to the task of protecting state and society menaced by the great evil of Communism. This led him to ridicule international humanitarian law in a tone and with words almost identical to those recently employed by Yoo and several of his colleagues.

Beyond this, Yoo’s prescription for solving the “dilemma” is also taken straight from the Schmittian playbook. According to Schmitt, the norms of international law respecting armed conflict reflect the romantic illusions of an age of chivalry. They are “unrealistic” as applied to modern ideological warfare against an enemy not constrained by notions of a nation-state, adopting terrorist methods and fighting with irregular formations that hardly equate to traditional armies. (Schmitt is, of course, concerned with the Soviet Union here; he appears prepared to accept that the Geneva and Hague rules would apply on the Western Front in dealing with countries such as Britain and the United States). For Schmitt, the key to successful prosecution of warfare against such a foe is demonization. The enemy must be seen as absolute. He must be stripped of all legal rights, of whatever nature. The Executive must be free to use whatever tools he can find to fight and vanquish this foe. And conversely, the power to prosecute the war must be vested without reservation in the Executive – in the words of Reich Ministerial Director Franz Schlegelberger (eerily echoed in a brief submission by Bush Administration Solicitor General Paul D. Clement), “in time of war, the Executive is constituted the sole leader, sole legislator, sole judge.” (I take the liberty of substituting Yoo’s word, Executive; for Schmitt or Schlegelberger, the word would, of course, have been Führer). In Schmitt’s classic formulation: “a total war calls for a total enemy.” This is not to say that in Schmitt’s view the enemy was somehow “morally evil or aesthetically unpleasing;” it sufficed that he was “the other, the outsider, something different and alien.” These thoughts are developed throughout Schmitt’s work, but particularly in Der Begriff des Politischen (1927), Frieden oder Pazifismus (1933) and Totaler Feind, totaler Krieg, totaler Staat (1937).

A Practical Guide to Evasion of the Geneva Conventions
Given this philosophical predisposition, how was a lawyer then to evade the application of the Geneva and Hague Conventions? Here an answer can be drawn not from Schmitt’s academic works, but from a series of determinations by the German General Staff which quite transparently reflected the influence of the then-Prussian State Councilor Carl Schmitt. A careful review of the original materials shows that the following rationales were advanced for decisions not to apply or to restrict the application of the Geneva Conventions of 1929 and the Hague Convention of 1907 during the Second World War:

(1) Particularly on the Eastern Front, the conflict was a nonconventional sort of warfare being waged against a “barbaric” enemy which engaged in “terrorist” practices, and which itself did not observe the law of armed conflict.
(2) Individual combatants who engaged in “terrorist” practices, or who fought in military formations engaged in such practices, were not entitled to protections under international humanitarian law, and the adjudicatory provisions of the Geneva Conventions could therefore be avoided together with the substantive protections.
(3) The Geneva and Hague Conventions were “obsolete” and ill-suited to the sort of ideologically driven warfare in which the Nazis were engaged on the Eastern Front, though they might have limited application with respect to the Western Allies.
(4) Application of the Geneva Conventions was not in the enlightened self-interest of Germany because its enemies would not reciprocate such conduct by treating German prisoners in a humane fashion.
(5) Construction of international law should be driven in the first instance by a clear understanding of the national interest as determined by the executive. To this end niggling, hypertechnical interpretations of the Conventions that disregarded the plain text, international practice and even Germany’s prior practice in order to justify their nonapplication were entirely appropriate.
(6) In any event, the rules of international law were subordinated to the military interests of the German state and to the law as determined and stated by the German Führer.

The similarity between these rationalizations and those offered by John Yoo in his hitherto published Justice Department memoranda and books and articles is staggering. It is of course possible that John Yoo came upon all of this on his own, like a scholar laboring in some parallel universe unaware of the work of others. Possible. But not probable.

It is more likely that Yoo’s work is a faithful, through crude and occasionally flawed interpretation of Schmitt. I say "crude" principally because Schmitt expresses from the outset the severest moral reservations about his concept of "demonization." It is, he fears, subject to "high political manipulation" which "must at all costs be avoided." The use of this technique, he writes, may only be available when "the survival of the people is at stake." Der Begriff des Politischen, pp. 20-33. Yoo expresses no comparable hesitation, preferring simply to place all confidence in the Executive, and justifying this implausibly in the writings of the Founding Fathers.

But Yoo's conclusions are rendered even more inexplicable by another point. After World War II was over and the full horror of what the Axis Powers had done was apparent, a consensus was reached to overhaul the Geneva Conventions with the express intention of repudiating the German evasions of the Conventions listed above. So, while these positions may have been arguable with respect to the two 1929 Geneva Conventions, they hardly could be invoked with respect to the 1949 Conventions. But Yoo continues to cite them, oblivious to the shifts in text and commentary that occurred in 1949.

So how does Yoo come by the work of Carl Schmitt, and why does he fail to acknowledge it in his publications? Yoo is currently a scholar in residence at the American Enterprise Institute, the center stage of the American Neoconservative movement. That movement traces itself back to Leo Strauss, the political philosopher who lived and taught for many years in Chicago. Though a Jew forced to flee Nazi Germany, Strauss was a lifelong admirer of Carl Schmitt, a scholar and teacher of his works. Moreover, Strauss’ early work in Germany played a key role in development of the Begriff des Politischen, and Schmitt’s intercession helped Strauss obtain a key scholarship that made his escape from Germany possible. Though arrested by the Americans and accused of complicity in Nazi crimes, Schmitt achieved a partial rehabilitation late in his life - thanks in large part to Leo Strauss. Indeed, Schmitt emerged as an essential part of the Neocon canon, and his work – including all the relatively obscure works cited here – were translated into English and published by the University of Chicago Press (also Yoo’s publisher). It is therefore hardly plausible to suggest that Yoo would be unfamiliar with the writings of Carl Schmitt. On the other hand, it is easy to surmise why he would fail to acknowledge his reliance on such a highly stigmatized writer. After all, Schmitt was a notorious antisemite best known for crafting the legal cover for Hitler's Machtergreifung.

Why Carl Schmitt Hates America
Carl Schmitt was a rational man, but he was marked by a hatred of America that bordered on the irrational. He viewed American articulations of international law as fraught with hypocrisy, and saw in American practice in the late nineteenth and early twentieth centuries a menacing new form of imperialism (“this form of imperialism… presents a particular threat to a people forced in a defensive posture, like we Germans; it presents us with the greater threat of military occupation and economic exploitation” he writes in 1932 – at a time of almost unprecedented American isolationism)(Die USA und die völkerrechtlichen Formen des modernen Imperialismus, p. 365). He saw in the peculiarly American notion of consensus-democracy an unsustainable foolishness, and in the Jeffersonian vision of small government with a maximum space for individual freedom a threat to his peculiar Catholic values.

Today, President Bush has again defended his indefensible treatment of detainees and claimed for himself rights that all his predecessors firmly disavowed. As president, he has cast aside the values of George Washington, Abraham Lincoln and Dwight Eisenhower – values on which the country was founded and built – and embraced instead those of Carl Schmitt, the lawyer who prostituted his genius to the cause of Fascism and fervently prayed for America’s destruction. What a great irony.

John Yoo and his colleagues present their critique of international humanitarian law as a validation of the sovereigntist tradition of the American Founding Fathers. That such claims can be taken seriously reflects a failure of critical thought in contemporary America. Yoo’s views on international humanitarian law have absolutely nothing to do with the Founding Fathers. They are a cheap, discredited Middle European import from the twenties and thirties. Viewed this way, it becomes increasingly clear where they would lead us.
Posted 9:13 PM by Scott Horton [link] (2064) comments

Petition for Certiorari Granted in Hamdan

Marty Lederman

The Court granted certiorari this morning in Hamdan. It will likely be argued this Term, and the Chief Justice (who was on the panel below) has recused himself from the case.
Posted 10:23 AM by Marty Lederman [link] (62) comments

A Mutual Fund For Time

Ian Ayres

It may be that almost all of have been missing an opportunity to better diversify our retirement investments across time. In our latest Forbes column, Barry Nalebuff and I show why leveraged stock investments when you're young can actually reduce risk.

It is obvious that you're not well diversified if you invest $100 in one stock,
$200 in another and $300 in a third. You'd have less risk investing $200 in each
of the three stocks. Indeed, spreading risk over stock is what leads people to
buy broad-based index funds.

The same idea of equal investments applies to investments across time. If you have $100 invested in year one, $200 invested in year two, and $300 invested in year three, you have too much exposure to year three and not enough to year one. This is what you get if you put $100 a year into savings and stay fully invested. You could get the same exposure to the market with less risk by owning $200 worth of stock in each of the three years. You could do this by buying on 50% margin in the first year, paying off the debt with your year two savings, then going to 33% cash or bonds in the third year.

That's right -- we should be striving to keep something like a constant real dollar amount invested in stock throughout our lives.

At first the idea of investing a lot in stocks when you're young seems impossible:

You can't have an equal amount invested in all years, because in the early years
you can't invest what you don't have.

But this ignores the possibility of leverage. People invest what they don't have all the time when it comes to real estate. A 5-to-1, 10-to-1, even 20-to-1 leverage is becoming the norm. A person who buys a $600,000 house has a relatively flat exposure to the real estate market. The exposure grows only with house price appreciation and not with increased savings. The key is that your exposure to the real estate market is based on the full value of the house, not just your down payment or your current equity position.

This is more than just a compelling theory. Barry and I have took historical stock-and-bond-return data collected by Robert Shiller and added margin rate information:

Following Shiller's approach, we ran simulations on the returns for 91 cohorts
of workers, those retiring in 1913 through 2004. We calculated the real
investment return (the return above inflation) from an investment strategy that
began with a 2-to-1 leveraged investment in stock at age 25 reducing to an
unleveraged 50% investment in stock at age 65. We found that none of the cohorts
ended up with less than a 2.5% real return on their investment (and only 2 of
the 91 cohorts fell below 3%). In contrast, what would seem to be a much more
conservative strategy of starting with an 85/15 stock/bond split at 25 falling
to a 15/85 stock/bond split at retirement produced 29 cohorts with real returns
that fell short of 3%. Because of the longer investment in equities, the average
real return for the leveraged strategy across the 91 cohorts was more than
double the conservative strategy.

In real estate the most important rule is location. For investments, it's diversification. Investors understand the value of diversifying across domestic stocks and many appreciate the advantage of including international stocks in their portfolio. The big missed opportunity is to do a better job diversifying over time, getting an early (and leveraged) start in stocks. We do this with houses, so why not stocks?

You can play around with an excel spread sheet simulating various strategies by clicking here.

Posted 8:52 AM by Ian Ayres [link] (20) comments

Why It's So Hard to Have a Constitutional Revolution, Part II

JB

All the furor over what Sam Alito did or did not do in the 1991 Pennsylvania abortion case, deflects attention from a far more important fact, which Stephen Labaton explores in Satuday's New York Times. Like Harriet Miers before him, Alito is likely to be strongly pro-business, and businesses are gearing up to spend large amounts of money to ensure that he is confirmed.

Movement conservatives and religious conservatives are for the most part delighted with Alito. But for those conservatives in the movement who want a return to a pre-New Deal Constitution, or one with significantly reduced federal powers, I've got news for you. Samuel Alito ain't your guy. In fact, the only Justice on the Supreme Court who takes such views seriously is Clarence Thomas, and if he had made his views known at his confirmation hearings, he wouldn't be on the Court either. All the signs indicate that Alito will support shifting some power back to the states, perhaps even a bit more than Justice O'Connor. But he's not the revolutionary you've been hoping for. He is, however, like Harriet Miers, what business has been hoping for.

The Supreme Court tends to cooperate with the dominant national political coalition. Even with Republicans in charge of all three branches of government, movement conservatives do not drive that coalition. Business interests do.

Business interests do not want a constitutional revolution in federal state relations. They want a flexible, agile, and supple federal power that will deregulate selectively to allow businesses with the most political clout to do most of what they want, promote their interests with generous (and often unnecessary) tax breaks and subsidies, and employ federal law to preempt state legislation that they believe is unfriendly to them or regulates in conflicting directions.

No doubt most businesses want courts to cut back on environmental and consumer protection, and limit antitrust and labor regulation; but unlike the late 19th century, the most influential business interests in the country want courts to do this with the flexible tools of statutory interpretation and by deferring to administrative agencies run by Republican administrations. The goal most definitely is not to hold vast swaths of federal regulatory law unconstitutional because that would threaten the ability of the Congress and the President to pass national laws (or enact federal administrative regulations) and engage in mercantilist policies that Republican political contributors like.

A return to a federal government of "limited and enumerated powers," or a return to "the original understanding," or to the "Constitution in Exile," or whatever you want to call it, just isn't going to happen, because the national political coalition and its most powerful political constituents don't want it to. Sure, politicians and senators and judges will posture and preen and make noises about returning to the framers' intentions, and strict construction, and not legislating from the bench. But don't believe a word of it. That's not how the system of judicial appointments works. That system produces candidates who broadly reflect the dominant national political coalition's goals, not because they have made corrupt bargains with politicians always to rule in that way, but because people who sincerely think that this is the best interpretation of the Constitution are the most likely to get appointed to the bench in the first place. Those who make clear that they want a full scale revolution may get appointed in dribs and drabs, but they will not get a chance to dominate the bench.

The other day David Bernstein, a very accomplished libertarian scholar and legal historian, complained over at the Volokh Conspiracy that "originalism was in a state of crisis."

If Justice Scalia, originalism's supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn (holding that growing grain on one's own land for consumption on one's own farm can be regulated under Congress' power to regulate "interstate commerce"), then what is left of originalism?

One could say that it's simply "too late" to reconsider sixty-two year old precedents like Wickard. But why sixty-two year-old precedents, and not thirty-two year old precedents (i.e., Roe v. Wade)? Scalia's fainthearted originalism begins to look a lot like, "I got into this business to overturn Warren Court decisions, and I'll use originalism as tool to that end, but I'm not especially interested in reconsidering New Deal precedents.". . .

[S]imply pulling a Scalia, and begging off from the tough issues as distractions from what I beleive he sees as the real task of preventing the liberal elite from enacting its agenda through the judiciary just won't do. Originalism becomes a weapon to be pulled out when convenient, not a consistent theory of interpretation. That's culture war politics, not originalism, and Scalia's failure to identify any theory of originalism that justified his opinion in Raich dramatically lowered my estimation of him as a jurist.

Bernstein concludes by expressing the "hope that [Thomas] succeeds Scalia as the intellectual leader of the conservative majority," and "that Alito and Roberts, as members of Thomas's generation and not Scalia's and Bork's, will not prove to be `fainthearted [originalists].'"

I do not think that David's hope will be realized. If originalism of the sort that movement conservatives seek is in crisis, it's because it was never a serious *practical* theory of constitutional interpretation that real courts could employ across a wide range of constitutional issues, including, most notably, the key questions of federal power and civil rights. Originalism-- by which I mean here an appeal to how the adopters expected the public meaning of the constitutional text to be applied in concrete circumstances-- is at most one permissible modality of constitutional interpretation. It simply will not bear the weight of being made the foundation of constitutional legitimacy, for reasons I've explained elsewhere.

As David's discussion suggests, originalism as used by politicians since the 1960's has been little more than a political slogan, used to curry votes by attacking the liberal Warren Court, and particular decisions of its successors-- decisions that, ironically enough, were increasingly written by Republican appointees. However, movement conservatives, who included many intelligent and serious men and women, believed the hype. They set out to study the Constitution's history in order to produce a coherent and consistent originalist jurisprudence. In so doing they enriched our knowledge of the Constitution and American political institutions immeasurably. But what they produced was a jurisprudence that no national political coalition would ever seriously think of adopting. And the earnest men and women who created this jurisprudence forgot what I believe to be the central lesson of constitutional interpretation over the country's history: what shapes the structure of positive constitutional law over the long run is not clever arguments and dueling quotations from the framers but larger social and historical forces, which shape political coalitions and produce the sort of jurists who reflect the play of political forces at the time of their confirmation. The structural features of the appointments process, combined with the fact that we have a multimember Supreme Court whose views in closely contested cases tend to be dominated by "swing" Justices, means that the Court's opinions, over time, will not reflect any consistent or coherent theory of constitutional interpretation. What they will reflect are the needs and aspirations of the dominant national political coalition. Asking such a Court to adhere to the theories of originalism of movement conservatives is like asking King Canute to hold back the tides, and it is no wonder that movement conservatives, for all their victories in the courts, have found themselves increasingly frustrated.

The Supreme Court is not theirs. Nor will it be in the forseeable future. It is, as it always has been, in the hands of the dominant national political coalition, which currently features a pro-business Administration and a pro-business Congress. That is why we got John Roberts. That is why we are getting Sam Alito.

Posted 7:05 AM by JB [link] (15) comments

Look on the Bright Side -- We May Be Torturing in Eastern European Detention Facilities, But Our Black Sites Aren't as Bad as the Gulag!

Marty Lederman

Torture, schmorture . . . at least we haven't yet stooped as low as the Soviet gulag! (Perhaps even Juan Non-Volokh will concede, however, that it is more than a tad unseemly that we've decided to use former Soviet-era detention facilities for our secret "enhanced interrogations." In light of Abu Ghraib and now this, Rosa Brooks wonders when we'll run out of former torture chambers to use as our own "black sites": "[T]he Marquis de Sade's castle lies in ruins. The Tower of London's dungeons still boast an excellent range of enhanced interrogation equipment, but they attract too many giggling children.")

Note to Juan Non-Volokh: A stray remark in a five-month old Amnesty International report is not "the issue at hand." Trust me, there's no need for you to "underline" your "ultimate position" that "not every mass murder is comparable to the Holocaust" and that "not every secret detention is comparable to the Gulag." We get it. And we agree! See also Kieran Healy.

It sounds to me as if you must be really eager to get in on the torture-related blogging. Come on aboard! But honest-to-goodness, there's no need to resort to recycling of ancient complaints about over-heated Amnesty International rhetoric that you already flogged to death five months ago. There are plenty of stories in the press every day now that would benefit from greater exposure, investigation and analysis in the blogosphere, including on your fine and widely read blog.

Just today, for instance:

-- There's this piece in the Washington Post about how Dick Cheney and David Addington continue to tenaciously fight . . . for the right . . . to waterboard, despite an attrition of their support in the Administration. They actually "recoil" from embracing the language of treaties such as the U.N. Convention Against Torture, because "the president needs nearly unfettered power to deal with terrorists to protect Americans," and "to preserve the president's flexibility, any measure that might impose constraints should be resisted."

-- Then there's this article about the Cheney efforts over in Newsweek, focusing on the once-secretive but now ubiquitous David Addington. I can vouch for the essential veracity of this bon mot: "If you threw the entire U.S. budget into the air, David Addington could read it and mark it up before it ever hit the ground." Amazing . . . but true!

-- And this story, too, about "disappeared" Yemeni detainees, one of whom claims to have been stripped and beaten with sticks by a ring of masked soldiers, made to walk like an animal, and trampled upon, with "their shoes in my mouth." (But don't get me wrong -- it's not as bad as the Gulag!)

-- Or perhaps you'd like to write about the notion, pressed by Pat Roberts yesterday, that we'd be better off jettisoning the rule of law altogether, because "success with detention and interrogation depends on the detainee's fear of the unknown," and actually passing a law setting a modest baseline beneath which we won't go -- namely cruel, inhuman and degrading treatment that would be unconstitutional if conducted here in the U.S. -- "would tell detainees too much about what to expect."

-- Or, best of all (seeing as how you're a law professor), maybe you'd be most helpful blogging about Jane Mayer's terrific piece just out in the New Yorker today, about why CIA murders will likely go unpunished. Among other things, Mayer reveals what I've been speculating for awhile -- namely, that John Yoo's OLC memo of March 14, 2003 "dismissed virtually all national and international laws regulating the treatment of prisoners, including war-crimes and assault statutes, and it was radical in its view that in wartime the President can fight enemies by whatever means he sees fit. According to the memo, Congress has no constitutional right to interfere with the President in his role as Commander-in-Chief, including making laws that limit the ways in which prisoners may be interrogated." What do you think of the merits of such an argument? And what about the Administration's continuing, scandalous refusal -- with no good reason -- to make that memo public, even though it apparently was the impetus for many of the atrocities that occurred between March and December of 2003? (See the tail ends of this post, and this one.)

And that's only what's been published in the past few hours!

Moreover, in case none of those stories interests you, we have over 120 posts on the subject collected here, and we've barely scratched the surface! We'd love follow-ups, or some feedback, or even criticism. Or, you can simply wait until tomorrow's newspapers, and sure enough, there will be plenty of other revelations worth blogging about. And, just to demonstrate that I'm fair-minded, and that I have this whole thing in perspective, I promise that if I come across any stories that mention the words "Dick Cheney" within 100 of "Pol Pot," I'll condemn the hyperbole forthwith, and bring it to your attention. Deal?

[Note to Brian Leiter: Now perhaps it's more understandable why JNV prefers to remain anonymous. (Don't get me wrong: I'm not opposed to -- and I understand the reasoning behind -- blogging anonymity. The problem is that the candor that such anonymity encourages often leads to posts such as the one at issue. On the other hand, perhaps it's better that such posts are published -- they probably reflect what some folks are saying around the proverbial "water cooler," and thereby gives us a glimpse of how a good number of people view this scandal . . . .)]
Posted 6:03 AM by Marty Lederman [link] (34) comments

Intelligence Manipulation from Libby to al-Libi

JB

The New York Times reports

A high Qaeda official in American custody was identified as a likely fabricator months before the Bush administration began to use his statements as the foundation for its claims that Iraq trained Al Qaeda members to use biological and chemical weapons, according to newly declassified portions of a Defense Intelligence Agency document.

The document, an intelligence report from February 2002, said it was probable that the prisoner, Ibn al-Shaykh al-Libi, "was intentionally misleading the debriefers" in making claims about Iraqi support for Al Qaeda's work with illicit weapons.

The document provides the earliest and strongest indication of doubts voiced by American intelligence agencies about Mr. Libi's credibility. Without mentioning him by name, President Bush, Vice President Dick Cheney, Colin L. Powell, then secretary of state, and other administration officials repeatedly cited Mr. Libi's information as "credible" evidence that Iraq was training Al Qaeda members in the use of explosives and illicit weapons.

The DIA report also threw cold water on claims the Administration would later repeatedly make about an Al Qaeda-Hussein connection that justified military action to invade Iraq and overthrow Saddam Hussein:

In an interview on Friday, Mr. Levin also called attention to another portion of the D.I.A. report, which expressed skepticism about the idea of close collaboration between Iraq and Al Qaeda, an idea that was never substantiated by American intelligence agencies but was a pillar of the administration's prewar claims.

"Saddam's regime is intensely secular and is wary of Islamic revolutionary movements," the D.I.A. report said in one of two declassified paragraphs. "Moreover, Baghdad is unlikely to provide assistance to a group it cannot control."

The DIA report is one more piece of evidence of how the Administration mischaracterized the facts in making its case for war. At some point, we will no longer be able to say that the Administration's use of pre-war intelligence was mere negligence; it looks more and more like reckless disregard for the truth. In the words of the Downing Street Memo, "the intelligence and facts were being fixed around the policy."

Posted 7:01 PM by JB [link] (21) comments

Unnatural Disaster: Katrina and Governance

Stephen Griffin

Commentators both here in Louisiana and elsewhere have had a difficult time describing the aftermath of Hurricane Katrina. Is it “the worst natural disaster in the history of the United States?” Or “the worst civil engineering failure in history?” Here is a disaster that left even the media groping for superlatives. The condition of the city immediately after Katrina was so bizarre that titles I seem to remember from fantastic fiction were merely descriptive: “The Lost City,” perhaps, or “The Drowned City.” At the moment, the neighborhoods flooded by the levee breaches resemble descriptions of cities after volcanic explosions. A gray or brown film appears to cover everything. The grass and trees are brown, creating the impression of a lifeless city animated only by memory. It is a sepia photograph you can walk through under a blue sky. Nearby, the mounds of debris are three stories high and rising.

The extensive flooding has caused something much more terrible than physical destruction. What has happened is a cultural and spiritual erasure. People have lost their photographs, wedding dresses, family heirlooms, furniture, books and clothes. The flood acted like an insane Grinch who stole every last vestige of Christmas: the “toys, tags, ribbons, boxes or bags.” Except this Grinch took the beds in which people slept, the food they ate and sometimes their life. Their neighborhoods are silent.

If something like Katrina was caused by a government, we might describe it as a case of “ethnic cleansing.” Ethnic cleansing works by making conditions so bad that the targeted group has to flee and never return. Because more than one ethnicity was affected by Katrina, a better term would be “cultural cleansing.” Of course, the term “cleansing” is ironic, because Katrina’s modus operandi was to soil everything. But African Americans in particular have been horrified at the prospect that their carefully tended neighborhoods have been blown apart permanently. Conspiracy theories about government blowing up the levees to save some other part of town have already taken root.

Ten weeks after Katrina approached the Gulf Coast, things are not looking very well for the city of New Orleans. I have reasonable hopes for Tulane and the other academic institutions in the city. But the city as a whole, especially compared to the city as it used to be, faces a grim future. There is a massive housing shortage and an acute labor shortage. The repopulation of the city is going more slowly than expected. It is estimated that only 75,000 people currently live in the city. That is roughly the population of Lawrence, KS (where I grew up), usually described as a “small college town.” Another 75,000 commute in to work or fix their homes. A working population of 150,000 implies that 330,000 people have left. The likelihood of their return is unknown, although a poll of Houston evacuees done by the Washington Post/Kaiser Foundation/Harvard School of Public Health found that 44 percent wanted to relocate. If anything close to this percentage is true of all evacuees, then many New Orleans neighborhoods will never again come to life.

Recent news accounts have emphasized infighting among the various levels of government and the commissions appointed to study the situation. The story that is not being told by the national media is that all concerned – politicians, business owners, ordinary citizens – have reached consensus on one critical point: New Orleans needs Category 5 storm protection. From the perspective of many, without “Cat 5” protection, discussion of the city’s future and future investment possibilities is pointless. Katrina has been evaluated as a Category 3 storm when it struck Louisiana. Everyone assumes a Category 4 strike is just a matter of time. Category 5 protection is thus an essential precondition for reviving the city. Many of the 330,000 who have not returned are waiting for a sign about future storm protection.

They may be waiting a long time. Neither the Bush Administration nor members of Congress have shown any interest in an increased level of storm protection. The official position of the government is that New Orleans deserves merely a restoration of Category 3 protection. This strikes many residents are nonsensical. Democratic leaders would win themselves the everlasting gratitude of the entire region if they would just endorse Category 5 protection. But nothing has been forthcoming.

This might be just another unfortunate policy mistake but for the emerging evidence that the drowning of New Orleans was guaranteed by blunder after blunder by the government. Only one levee was overtopped by the hurricane, and the protection it afforded had been weakened by a special interest project (the “MR-GO”) funded by the federal government. Three studies underway by the National Science Foundation, the American Society of Civil Engineers and the state of Louisiana are showing severe deficiencies in the way the levees were constructed. It appears New Orleans was never close to Category 3 protection and the protection it did have was undermined, literally and fatally, by government mismanagement and possible corruption.

Katrina is thus shaping up not as a natural disaster primarily, but as a policy disaster, an “unnatural disaster” and one of unparalleled scope. The erasure of an entire city (as it used to be) and region now seems possible, just seven weeks after President Bush promised an extensive reconstruction. So far, there is no sign that anyone in government understands the scale of the problem. I’ve concentrated on one precondition here, but there are others mostly having to do with housing and property rights. I was hoping by now I would be assessing different plans for rebuilding the city. Increasingly, however, it appears this may never happen. Without Category 5 protection and an innovative housing/development plan, the possibility of restoring some semblance of the old New Orleans may wink out as the year ends.
Posted 8:35 PM by Stephen Griffin [link] (23) comments

Hamdan Redux

Oona Hathaway

At tomorrow’s conference, the Supreme Court will consider once again whether to grant certiorari in Hamdan v. Rumsfeld. The revelations this week about the secret prisons that have been operated by the CIA for the last four years will likely weigh on the minds of the Justices as they consider the case. On the surface, the issues raised in the case have little to do with the CIA’s prisons, just as Abu Ghraib had little to do with the triumvirate of detainee cases that the Court decided at the end of OT 2003. But underneath the surface, they are intimately linked. The fact that the Administration has operated a network of secret prisons must lead the Justices to question whether the administration can be trusted to police itself in its operation of the war on terror.

Hamdan offers the Court an opportunity to provide some much-needed oversight. The lower court’s opinion in Hamdan has not been called a “blank check” to the President in the war on terror without reason. It allows the President to convene extra-Constitutional military tribunals to try detainees in the war on terror and prohibits the detainees from enforcing the protections of the Geneva Conventions in federal court. Moreover, the tribunals are stripped of important procedural protections, allowing, for example, the use secret evidence and unsworn statements. Defendants do not even have the right to be present at their own trials. At the very least, the Court should want take a look at this case and decide for itself if this unprecedented grant of authority is warranted.

There has been a great deal of speculation about why the Court has not acted on the case in earlier conferences. A likely reason is that one or more of the Justices were concerned that, if granted, the case would be heard by less than a full Court. Indeed, had Harriet Miers been confirmed for Justice O’Connor’s seat, it is likely that only seven Justices would have sat on the case (Chief Justice Roberts served on the panel that heard the case in the court below and hence cannot sit on the case). At the last conference, Harriet Miers’s nomination had been withdrawn, but a new nominee had not yet been named. This week, of course, we know who the new nominee is—Judge Samuel Alito—and there is no reason to believe that he would not be able to hear the case if confirmed.

Yes, there is no guarantee that Judge Alito will be confirmed. But even if he is not, it is unlikely that his replacement would face a conflict in the case. Moreover, if his nomination does not succeed, Justice O’Connor may very well still be sitting when the opinion in the case is handed down. It is true that the case will still be heard by a less than complete eight-member Court. But that fact alone should not cause the Court to hesitate to grant cert. After all, as I noted here last week, the government’s strongest precedent in the case, Ex parte Quirin, in which the Supreme Court affirmed military tribunals in limited circumstances during World War II, was itself the decision of an eight-Justice Court. As Justice O’Connor recently wrote in a different case, it is “unsound to avoid questions of national importance when they are bound to recur”--as this issue undoubtedly will.
Posted 5:34 PM by Oona Hathaway [link] (44) comments

The Constitutional Trifecta: A Problem of Executive Oversight

JB

The American constitutional system divides national powers into three branches, and then allows each branch to check the others while preserving their independence. The purpose is to diffuse power and allow ambition to counter ambition. If the President becomes too monarchical, Congress or the Courts will oppose him and take him down a notch; if Congress tries to concentrate power, the President can veto legislation and the courts can strike it down or read it narrowly. If the courts get out of line, the President and the Senate can appoint new judges and Justices, or threaten to limit the court's jurisdiction, and so on.

Behind this theory is the assumption that the different branches will have different interests premised on their institutional loyalties. The President will seek to protect and extend executive power, the Congress legislative prerogatives, and the courts judicial authority. As Madison explained in Federalist 51, this was the point: "the interest of the man must be connected with the constitutional rights of the place." Presidents, because they were presidents, would always check a Congress that seemed to encroach on their authority; Congress, because it was Congress, would always have incentives to oversee Presidential malfeasance, first because the President was not doing what Congress wanted, and second, because ambitious Congressmen and Senators could make a name for themselves by exposing executive overreaching and corruption.

There was, alas, a fly in the ointment. The framers did not expect a party system; they opposed political parties, thinking them bad for democracy. As it turned out, they were wrong. Political parties, and in particular mass political parties, became necessary to democracy, because they allowed groups with very different interests to pool resources, make compromises, and push for common agendas; a two party system combined with a first past the post rule in elections tended to push American politics repeatedly toward the center.

Even so, the system of checks and balances was threatened by the party system. If Congress and the President were controlled by the same party, they would tend to work together, and if the same party controlled the courts as well, the courts would be less likely to exercise much supervision. A Congress controlled by the same party as the President would see the President's fortunes as wrapped up with the fortunes of the party and its success in American politics; investigating the President, or embarrassing him, or standing up to his authority would be far less likely. Although the Congress has the power to initiate investigations, and the power of subpoena, that power would be less likely to be used to undermine a President of the same party. And although the courts stood ready to enforce constitutional rights, they were limited in what they could do, and as political scientists repeatedly have shown, they tended to cooperate with the dominant national political coalition rather than oppose it.

Thus,when one party controlled all the branches of government, it won what I call the "constitutional trifecta." All three branches are working more or less together to achieve the party's goals, and the American system begins to approach a parliamentary system in which the executive runs the show with almost no one to stop him (because no one in power wants to stop him).

The constitutional trifecta is relatively rare in American politics because of regular elections, which make it hard for one party to consistently maintain all the levers of power. And even if that occurred, there was still one fail safe: if the President and Congress were controlled by the same party, the party might lack ideological coherence. Parties consist of different groups with different interests who come together for mutual advantage. If the party contains people with very different views, some Congressmen and Senators from the President's party will still have incentives to criticize or oppose the President. Thus, when the Democrats held all levers of power during the New Deal and the 1960's, southerners in their coalition often joined with Republicans to slow down or oppose legislation or Presidential initiatives; conversely, the liberal wing of the Democratic Party joined with a few Republicans in the mid 1960's to oppose America's involvement in the Vietnam War.

So the rise of the party system does not undermine Madison's original vision if there are (1) regular elections that keep control of particular branches of government continually shifting over time or (2) if the parties themselves lack ideological coherence.

And that brings us to the present day.

Redistricting and other features of contemporary politics have made it very difficult to oust most sitting Representatives; the Senate also shifts control relatively slowly, although not as slowly as the House. Perhaps more important, the two major political parties have become increasingly ideologically coherent and increasingly polarized. Parties are no longer pushing American politics toward the center and toward compromise. Instead, the Republican Party now tries to govern largely by amassing majorities of its governing majority, and by shutting out the Democrats from aspects of decisionmaking wherever possible.

Because the Republican party is relatively ideologically coherent, the Republican Congress has been unwilling to investigate or oversee the President's malfeasance and maladministration, and certainly to the same the extent that they would if another party were in power. The Democrats in Congress do not have the power of investigation or the power of subpoena. As a result, they cannot check the President's ambitions or his misuse of power. Madison's vision of ambition counteracting ambition has not been realized. It is not surprising then, that the present Administration has gotten away with a lot that will never see the light of day. And it is not surprising, particularly in a time of war when national security concerns are at their highest, that the President has grabbed for more power and no one has been able to resist him or push back at him.

The decision to go to war, allegations of misuse of intelligence and pressure on intelligence agencies to hype intelligence, the Administration's lack of candor about expenses for the war and about the number of troops needed, the misfeasance and mismanagement of the war and the occupation, cronyism and lack of oversight in the policies regarding government contractors, the use and abuse of the Patriot Act and related law enforcement decisions, and the Administration's detention and interrogation policies, are all areas in which Congress might have used its legislative and investigatory powers to check the Executive and prevent overreaching, incompetence, illegal activity and and bad judgment. But the Republican controlled Congress has not seen this as being in its interest. And so they have let the President get away with a great deal, without holding him accountable.

The press is a possible check on executive power, but its tools are limited. It depends on information becoming available, and all it can do is publicize misconduct and overreaching so that other government officials can take action. When Congress does not wish to counteract the President, this publicity has limited effect, and when Congress cooperates with the President by not bringing misconduct to light, the press is doubly hampered.

These factors suggest why the framers' vision of checks and balances has not operated effectively in our current situation. The framers understood that enlightened men will not always be at the helm; however, as long as there is a check on their ambition, their hubris, and their bad judgment, the system will push them to behave more responsibly or will at least counteract their most serious excesses. But in the past five years, a President unbound, and responsible to no one, has produced a set of disastrous policies (or disastrous implementations of policies) that have wasted our resources, endangered our security, and violated human rights.

With all this in mind I must confess some sympathy for Harry Reid's stunt yesterday: using a parliamentary maneuver to order the Senate closed in order to dramatize Congress's lack of oversight over the President's misuse of intelligence in the run-up to the Iraq war. If the constitutional system were working as designed, this Congress would have repeatedly demanded proof and assurances about the costs of the war, and the justifications for war; it would have repeatedly provided needed oversight when the Executive stumbled in its management of the occupation and in its policies regarding government contractors; it would have exposed corruption, cronyism and malfeasance, and it would have given the Administration abundant incentives to clean up its act and perfect its skills at governing. But the constitutional system is not working as designed. We have a corrupt, crony-filled Administration driven by stubbornness, hubris, and unrealistic ideas, an Administration which disdains good governance and relies on spin, propaganda, and political hardball to push its policies forward heedless of their long term consequences.

Faced with such a state of affairs, and powerless to use the investigative tools of Congress to check Presidential incompetence and venality, the Democrats in the minority did the only thing left to them. They engaged in a public relations stunt to shame the Republican majority in Congress.

In the short run, it seems to have worked. Congress will now move forward with some sort of investigation into the Administration's use of intelligence. (How serious that investigation proves to be remains to be seen.)

But in the long run, these sorts of ploys won't be an effective substitute for a working system of checks and balances.

If Congress won't perform its assigned function of oversight, the only recourse is the American people. Will they become sufficiently engaged to put our constitutional system back in order, and once again let ambition counter ambition?

Posted 11:08 AM by JB [link] (25) comments

The CIA's "Black Sites": Beyond the Rule of Law?

Marty Lederman

Dana Priest of the Washington Post puts it all together, confirming all that we've suspected, and more, in this story in tomorrow's Washington Post.

Among the highlights of Priest's article:

The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement. The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantanamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents. The hidden global internment network is a central element in the CIA's unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA's covert actions. The existence and locations of the facilities -- referred to as "black sites" in classified White House, CIA, Justice Department and congressional documents -- are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.

The CIA and the White House, citing national security concerns and the value of the program, have dissuaded Congress from demanding that the agency answer questions in open testimony about the conditions under which captives are held. Virtually nothing is known about who is kept in the facilities, what interrogation methods are employed with them, or how decisions are made about whether they should be detained or for how long. . . .

Although the CIA will not acknowledge details of its system, intelligence officials defend the agency's approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantanamo Bay. . . .

Since [2001], the arrangement has been increasingly debated within the CIA, where considerable concern lingers about the legality, morality and practicality of holding even unrepentant terrorists in such isolation and secrecy, perhaps for the duration of their lives. . . .

It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA's internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing.

Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA's approved "Enhanced Interrogation Techniques," some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as "waterboarding," in which a prisoner is made to believe he or she is drowning. . . .

Some detainees apprehended by the CIA and transferred to foreign intelligence agencies have alleged after their release that they were tortured, although it is unclear whether CIA personnel played a role in the alleged abuse. . . .

More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources. This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq. The detainees break down roughly into two classes, the sources said. About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category -- in Thailand and on the grounds of the military prison at Guantanamo Bay -- were closed in 2003 and 2004, respectively.

A second tier -- which these sources believe includes more than 70 detainees -- is a group considered less important, with less direct involvement in terrorism and having limited intelligence value. These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as "rendition." While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction. . . .

Most of the facilities were built and are maintained with congressionally appropriated funds, but the White House has refused to allow the CIA to brief anyone except the chairman and vice chairman of the House and Senate intelligence committees on the program's generalities.

The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others -- mainly Russia and organized crime. . . .

The agency set up prisons under its covert action authority. Under U.S. law, only the president can authorize a covert action, by signing a document called a presidential finding. Findings must not break U.S. law and are reviewed and approved by CIA, Justice Department and White House legal advisers.

Six days after the Sept. 11 attacks, President Bush signed a sweeping finding that gave the CIA broad authorization to disrupt terrorist activity, including permission to kill, capture and detain members of al Qaeda anywhere in the world.

As they say, read the whole thing. It raises some very difficult questions about the extent to which intelligence operations can, and should, operate pursuant to a clandestine law, accountable only to four elected legislators, and characterized by practices that would be plainly unlawful -- even as to these high-level suspects -- if they occurred within the United States.

Meanwhile, over at the Pentagon (see below) . . .
Posted 10:41 PM by Marty Lederman [link] (22) comments

Battle Royale at the Pentagon: David Addington v. Common Article 3

Marty Lederman

As I have previously explained, perhaps the single most important turning point in the torture and abuse scandals was the President's determination, on February 7, 2002, that the United States would no longer uniformly abide by the standards prescribed in Common Article 3 of the Geneva Conventions, which provides, inter alia, that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment."

First, the President concluded and decreed that Common Article 3 does not apply by its terms -- as a matter of treaty obligation -- to our conflicts with al Qaeda and the Taliban. A divided court of appeals (with John Roberts as the decisive vote) affirmed this determination in the Hamdan case last summer (the appeal of which the Supreme Court is presently considering). As I've noted, that legal determination about the meaning of the Geneva Conventions was very significant, and it is vigorously contested by many; but, be that as it may, the Executive Branch (rightly or wrongly) has long been of the view -- shared by the State Department -- that Common Article 3 is limited to internal conflicts, such as civil wars, and does not cover conflicts such as the war against Al Qaeda.

Nevertheless, for more than a half-century preceding February 7, 2002, the United States had agreed that Common Article 3 reflects a norm of customary international law, and it was U.S. policy to abide by that norm, even where the treaty provision does not apply of its own accord.

All that changed on February 7, 2002, when the President directed the Armed Services to treat detainees consistent with the "principles" of Geneva (that's code for Common Article 3) only "to the extent appropriate and consistent with military necessity." State Department Legal Advisor Will Taft strongly argued that this was a serious mistake in judgment, and that we should abide by Common Article 3, just as we have purported to do in every other modern conflict, with respect to many other detainees not legally entitled to POW protections (e.g., the Viet Cong).

And the 9/11 Commission agreed. At page 380 of its Report, the Commission recommended that the United States "engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists," and expressly urged the U.S. to "draw upon Article 3 of the Geneva Conventions on the law of armed conflict," which was "specifically designed for those cases in which the usual laws of war did not apply." Common Article 3's minimum standards, reasoned the 9/11 Commission, "are generally accepted throughout the world as customary international law." (I should briefly add here that there are at least two serious arguments that the Executive is legally obliged to abide by Common Article 3, even if it is "only" a law of armed conflict, rather than a treaty obligation: (i) that the President's constitutional Commander-in-Chief authority only extends in the first instance to conduct that is consistent with the laws of armed conflict (a topic on which David Golove of NYU is currently writing); and (ii) the notion, suggested in the Court's Hamdi decision, that Congress's authorizations to the President to used all "necessary and appropriate" force against certain enemies (such as Al Qaeda) implicitly limit the President to using only those forms of force that are consistent with the laws of armed conflict, such as Common Article 3. But I do not dwell on those arguments here, because the Administration obviously rejects them and is not acting in accord with any such notions.)

In a very important story in tomorrow's New York Times, Tim Golden and Eric Schmidt reveal that many officials at the Pentagon, stung and shocked by the military's abuse scandals, have made great strides to implement the 9/11 Commission's recommendation, and to re-adopt the standards of Common Article 3 in a major Pentagon directive on interrogations, and in a new Army interrogations "field manual" that was largely completed months ago.

So far, so good. But then . . .

Enter the ubiquitous David Addington, newly appointed Chief of Staff to the Vice President, accompanied by DoD General Counsel Jim Haynes and Pentagon Under-Secretary Stephen Cambone, and fighting tooth and nail to continue to allow the military to deviate from Common Article 3 and from a half-century of military learning and practice:

A central player in the fight over the directive is David S. Addington, who was the vice president's counsel until he was named on Monday to succeed I. Lewis Libby Jr. as Mr. Cheney's chief of staff. According to several officials, Mr. Addington verbally assailed a Pentagon aide who was called to brief him and Mr. Libby on the draft, objecting to its use of language drawn from Article 3 of the Geneva Conventions. "He left bruised and bloody," one Defense Department official said of the Pentagon aide, Matthew C. Waxman, Mr. Rumsfeld's chief adviser on detainee issues. "He tried to champion Article 3, and Addington just ate him for lunch." Despite his vehemence, Mr. Addington did not necessarily win the argument, officials said. They predicted that it would be settled by Mr. Rumsfeld after consultation with other agencies. . . .

A spokesman for the vice president, Stephen E. Schmidt, said Mr. Addington would have no comment on his reported role in the policy debates. A Defense Department spokesman, Bryan Whitman, also would not discuss Mr. Waxman's role except to say it was 'certainly an exaggeration' to characterize him as having been bloodied by Mr. Addington." . . .

Many officials said Mr. Addington, who helped create the legal framework after 9/11, remains a bulwark in support of those policies, deftly blocking or weakening proposed changes. Nonetheless, the internal politics of those issues have begun to shift in Mr. Bush's second term. Several architects of the original policies have left the government. Some other senior officials, who had challenged aspects of the policy with limited success, have gained stronger voices in new posts.

Condoleezza Rice, who occasionally questioned the Pentagon's management of Guantánamo when she was national security adviser, has called more forcefully for a reconsideration of some detention policies as secretary of state, a stance generally backed by her successor at the White House, Stephen J. Hadley, administration officials said. The new deputy defense secretary, Gordon R. England, has also been an influential advocate for reviewing the detention policies within the Pentagon, officials said.

"The results may not be very different, but the discussions have changed," a senior military lawyer said. "And there are more discussions." . . .

Lawyers at the State Department raised the issue repeatedly, officials said. But because the department opposed the president's original decision to put aside the conventions, the efforts of its lawyers were largely dismissed as attempts to revive a question that had already been decided, they added.

Beginning late last year, Defense Department lawyers took up the issue as they revised Directive 23.10, the "DoD Program for Enemy Prisoners of War and Other Detainees." A roughly 12-page draft of the directive, which began circulating in the Pentagon in mid-September, received strong support from lawyers for the armed services, the military vice chiefs and some civilian defense officials, several officials said.

"The uniformed service lawyers are behind the rewrite because it brings the policy into line with Geneva," one senior defense official said. "Their concern was that we were losing our standing with allies as well as the moral high ground with the rest of the world."

Following one of the recommendations of the Sept. 11 commission, the draft, written by officials in Mr. Waxman's office and military lawyers, lifted directly from Article 3 of the Geneva accords in setting out new rules for the treatment of terrorism suspects, three officials who have reviewed the document said. . . .

The draft Pentagon directive adopted the language of Common Article 3 "as a matter of policy rather than law," one defense official said. Even so, the Geneva reference was opposed by two senior Pentagon officials, Stephen A. Cambone, the under secretary of defense for intelligence policy, and, William J. Haynes, the department's general counsel, defense officials said.

Mr. Addington, who has been a close bureaucratic ally of both defense officials, soon called Mr. Waxman to the Old Executive Office Building to brief him and Mr. Libby on the directive. Two defense officials who were told about the meeting said Mr. Addington objected to phrases taken from Article 3 - which proscribes "cruel treatment and torture," and "outrages upon personal dignity, in particular murder of all kinds, mutilation, humiliating and degrading treatment" - as problematically vague. . . . Another official said Mr. Addington and others also argued that Mr. Bush had specifically rejected the Article 3 standard in 2002, setting out a different one when he ordered that military detainees "be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."

Only when the dispute is resolved, defense officials said, would the Pentagon conclude the drafting of the second directive, known as 31.15, on the interrogation of prisoners including terrorism suspects. That document, in turn, would make possible the publication of a roughly 200-page Army manual for interrogations that was virtually completed last spring, officials said.

"If we don't resolve this soon," one defense official said, referring to the overlapping debate over Senator McCain's proposal, "Congress is going to do it for us."

Meanwhile, over at the CIA (see above) . . .
Posted 10:23 PM by Marty Lederman [link] (22) comments

Your One Stop Shopping Source For All Things Alito

JB

From the University of Michigan Law Library. Biographical information, downloadable opinions, and more.
Posted 11:22 AM by JB [link] (13) comments

What the Alito Nomination Means for Constitutional Law

JB

What effects will an Alito appointment have on Supreme Court doctrine? Fairly significant changes, particularly in the areas that social conservatives most care about.

Assume for the moment that Alito is confirmed by Christmas. The Supreme Court will probably hold over the New Hampshire abortion case, Ayotte, for reargument, if, as expected, the Justices vote 4-4 (excluding Justice O'Connor's vote, which will not count if she retires in December). On the other hand, if Justice Kennedy joins the liberals in Ayotte, Justice O'Connor's vote will not matter and the case will be decided 5-3.

What happens in Ayotte may be a harbinger of things to come. If successful, Alito's nomination will make Anthony Kennedy the median or swing Justice on the U.S. Supreme Court. In the past, Sandra Day O'Connor had held that powerful position, only occasionally displaced by Kennedy. Now it is largely Kennedy's, with occasional displacements by Breyer.

Put another way, to understand what Alito's appointment means for constitutional doctrine, instead of focusing on Alito's views (which one assumes are reliably conservative), one needs to focus on Kennedy's. We know that the new median Justice supports abortion rights claims a little less than O'Connor (Kennedy voted to uphold restrictions on partial birth abortion), supports gay rights claims a bit more than O'Connor (Kennedy wrote the opinion in Lawrence), thinks affirmative action is largely unconstitutional (Kennedy dissented in Grutter), thinks most campaign finance regulation is unconstitutional (Kennedy dissented (in part) in McConnell) and has been more likely to permit government endorsements of religion and state financial support for religion than O'Connor (Kennedy dissented in Mccreary County v. ACLU and joined Mitchell v. Helms). On federalism, it's a mixed bag: Kennedy joined Raich v. Ashcroft but dissented in the two most recent section five cases, Tennesee v. Lane and Hibbs. On Presidential power, the position of the new median justice, interestingly enough, appears to be unchanged. Although Rehnquist and O'Connor and Rehnquist are gone, the Administration would still have lost Hamdi, because its position was opposed by Kennedy, Scalia, Stevens, Breyer, Souter, and Ginsburg.

Thus, Alito (together with Chief Justice Roberts) will cause some pretty significant shifts in Supreme Court doctrine, most notably in areas of religion, abortion, affirmative action, and campaign finance, but not yet in the area of gay rights. Changes in doctrines of federalism and presidential power are a bit less clear. These shifts will come in most of the places that movement conservatives are looking for changes in constitutional doctrine, which is why they will be delighted by an Alito appointment. The greatest irony, perhaps, is that although many movement conservatives now loathe Anthony Kennedy, all the changes in doctrine I've outlined will occur because Kennedy now holds the swing vote.

Finally, if Justice Stevens were to retire in the next few years, and be replaced by a staunch conservative, we would have a full scale constitutional revolution on our hands. For then the median Justices would be none other than John Roberts and Samuel Alito.

Posted 6:14 AM by JB [link] (24) comments