The whiff of fascism in the air

Sandy Levinson

In tomorrow's New York Times, David Brooks's column is titled (presumably not by him) "From Freedom to Authority." The general thesis is that "we're moving from what you might call loose conservatism to tight conservatism. We're seeing a conservatism that emphasizes freedom give way to a conservatism that emphasizes authority." The most remarkable sentences are the following:

"Middle-class suburbanites understood this shift far more quickly than the professional conservatives in Washington. What people wanted post-9/11 was Giuliani-ism on a global scale — someone who was assertive and decisive enough to assume authority and take situations that seemed ungovernable and make them governable."

As a matter of fact, I think that Ruldoph Guliani behaved quite commendably in the immediate aftermath of September 11. That being said, I think there is little doubt that he was, prior to that date and then again about three months later, the most truly fascistic major political figure in the United States. What Brooks, who,ironically or not, is regarded as a "moderate" and relatively non-ideological conservative (at least by EJ Dionne, his regular interlocutor on NPR), is calling for is an ever more Schmittian authoritarian executive who pays little regard to constitutional niceities. One name for this is fascism.

To be completely candid, I do believe that one of the reasons for such calls is that our constitutional structure makes governance so difficult. As Kim Lane Scheppele and Oren Gross have both recently argued, there are a spate of "emergency powers" laws on the books that presidents often take advantage of, so that, increasingly, "the emergency is the norm," again as Schmitt might have predicted. One reason for the appeal of a Schmittian presidency is the perception that ordinary government has broken down in the perpetual gridlock that appears to be Washington (save for cutting the taxes of the rich). As I have also argued in other venues, Schmitt's writings on the Weimar Parliament are all too relevant these days. It is not good news, when all is said and done, that less than a quarter of the public (22%) approve of Congress or have any real confidence in its own capacity to serve the public interest.

Let me also say a word or two about Marty's response to my earlier posting on Clinton. First, I agree with him completely that Bush is worst than Clinton in almost every conceivable way, though, as a matter of fact, I was never impressed by Clinton's regard for civil liberties. My point in my previous post is that the kind of defense offered by liberals during the impeachment controversy--that Clinton must be guilty of a truly "high crime and misdemeanor" to make impeachment thinkable and that calls for his resignation were feeding the unwise transformation of the American political system from one that depended on fixed-term presidencies to a more parliamentary system--are coming back to bite us now. For a number of months after the initial disclosures about Monica, I believed that Clinton should resign. Then, I was made so angry the the Republican vendetta that I ended up applauding his remaining in office. I now believe I was right the first time. What exactly was the benefit of "three more years" of Bill Clinton between January 1998-2001? Remind me of his accomplishments during those years.

Marty and I absolutely agree that the key to understanding why Clinton got away with very little and Bush with almost everything has to do with partisan control of Congress and, therefore, of the ability to investigate. Even Republicans are becoming embarrassed at the bankruptcy of congressional oversight over this lawless and incompetent Administration. Incidentally, one of my other assertions in my forthcoming book is that Republican professionals had no desire actually to get rid of Clinton--they didn't want an incumbent Al Gore--but, rather, knew that bicameralism + the 2/3 requirement for conviction in the Senate would give House Republicans a "free pass" with regard to their posturing about impeachment. It was all a charade, save for a very few principled Republicans who really were offended, rightly or not, by the absolutely reckless sexual behavior and then lying and, finally, perjury, committed by a man who could indeed have been a great president had he been able to discipline himself more. That is why so many Democrats speak of the "tragedy" of Bill Clinton--a person of enormous ability--whereas almost no one thinks well enough of George Bush to refer to him as a "tragic figure" (unlike, for some, Colin Powell, say).

Have a good weekend.
Posted 9:37 PM by Sandy Levinson [link] (33) comments

Where There's Smoke . . . There's Cheney and Addington

Marty Lederman

It was only a matter of time, right? This can't come as a surprise to anyone by now: The New York Times reports that the idea of engaging in electronic surveillance in violation of FISA was hatched by the Vice President's Office, on the theory that the President has the constitutional authority to run roughshod on piddling technicalities such as laws enacted in conformity with our constitutional design.

The story appears to have been leaked by those sympathetic to the NSA and General Hayden. The thrust of their account is that we should be grateful that the NSA surveillance is not much, much broader than has been; the only reason the program does not extend to surveilling purely domestic calls (rather than "merely" obtaining records of them) is that the NSA pushed back against Cheney and Addington.

It is increasingly clear that if any accurate and instructive histories are ever to be written about the Bush Administration, they will need to be much more focused on the Vice President's Office than previous presidential studies. My sense, and that of others who have been mcuh closer than I to the crucial debates within the Administration, is that there are a lot of people who have stories of Cheney and Addington they are anxious to tell, once there is no further prospect of professional retailiation.

This is an appropriate occasion for a partial response to Sandy Levinson's recent posts. Sandy, there are two reasons why Bush remains in office, and neither of them has anything to do with legal and historical testimony of Cass Sunstein and Sean Wilentz. The first is that the Republican Party controls both houses of Congress. The second is that even if the Democrats controlled both houses, impeachment and conviction of the President would only make matters worse -- much, much worse. See the Twenty-Fifth Amendment, section 1.
Posted 6:51 PM by Marty Lederman [link] (31) comments

Paying the price for defending Clinton

Sandy Levinson

In my last post, I bewailed the fact that we have no workable constitutional mechanism--and, just as much to the point, acceptable and widely shared political rhetoric--for getting rid of an incompetent, rather than a criminal, president. Let me suggest that liberals are now seeing certain chickens coming home to roost because of their highly legalistic defense of Bill Clinton in 1998. Thus many prominent legal academics (I think particularly of Cass Sunstein, but there are certainly others) insisted that Clinton could be impeached only for a high crime and misdemeanor, and neither disgracing his office nor perjury seemed to count. And Sean Wilentz, in testifying before Congress, described the Andrew Johnson impeachment as merely "political." Not only might one proper response be "so what" (though I admit that the language of the Constitution presents certain problems), but it is also the case that Wilentz, in his zeal to save Clinton, utterly ignored the fact, as spelled out by Bruce Ackerman in his pathbreaking work on the constitutional "transformation" during the aftermath of the Civil War, that the impeachment was central to getting the Fourteenth Amendment, among other things. In any event, isn't it clear, in retrospect, that the country would have been far better off had Clinton resigned (and given Gore the advantage of presidential incumbency)? Instead, liberals, like Monica Lewinsky herself, played into Clinton's narcissism--and the rhetorical pull of the fixed-term presidency, which gives presidents an almost feudal-like sense of a property entitlement to the White House. Far better that we adopt a Ross Perot notion of the president as simply our employee, to be bounced whenever he (or in the future she) manifests sufficient incompetence to warrant firing. But that would require a Constitution that gave the employers (We the People) the right to fire their agent (the President) for just cause even if the agent hadn't actually robbed the till. (Shouldn't it be enough if he consistently misplaces the goods and alienates the customers?)
Posted 1:08 PM by Sandy Levinson [link] (40) comments

Tice: Even More Illegal NSA Spying

JB

According to former NSA employee Russell Tice, there's more illegal domestic surveillance that the NSA is engaged in, and President Bush's new nominee for the CIA, General Michael Hayden, knew about it. This from a report by Chris Strohm from CongressDaily (National Journal):

A former intelligence officer for the National Security Agency said he plans to tell Senate staffers next week that unlawful activity occurred at the agency under the supervision of Gen. Michael Hayden beyond what has been publicly reported, while hinting that it might have involved the illegal use of space-based satellites and systems to spy on U.S. citizens.

Russell Tice, who worked on what are known as "special access programs," has wanted to meet in a closed session with members of Congress and their staff since President Bush announced in December that he had secretly authorized the NSA to eavesdrop on U.S. citizens without a court order. In an interview late Thursday, Tice said the Senate Armed Services Committee finally asked him to meet next week in a secure facility on Capitol Hill.

Tice was fired from the NSA last May. He said he plans to tell the committee staffers the NSA conducted illegal and unconstitutional surveillance of U.S. citizens while he was there with the knowledge of Hayden, who has been nominated to become director of the CIA. Tice said one of his co-workers personally informed Hayden that illegal and unconstitutional activity was occurring.

The Senate Intelligence Committee plans to hold Hayden's confirmation hearing next week. "I think the people I talk to next week are going to be shocked when I tell them what I have to tell them. It's pretty hard to believe," Tice said. "I hope that they'll clean up the abuses and have some oversight into these programs, which doesn't exist right now."

Tice originally asked to meet with the Senate and House Intelligence committees, but they did not respond to his request. The NSA did not reply to written questions seeking comment for this story.

Tice said his information is different from the Terrorist Surveillance Program that Bush acknowledged in December and from news accounts this week that the NSA has been secretly collecting phone call records of millions of Americans.

"It's an angle that you haven't heard about yet," he said.

According to an unclassified resume, Tice was a specialist in space operations systems, command and control warfare, advanced technology and all-source collection analysis. During an 18-year career, he worked on some of the most secretive programs in the government.

Tice would not discuss with a reporter the details of his allegations, saying doing so would compromise classified information and put him at risk of going to jail. He said he "will not confirm or deny" if his allegations involve the illegal use of space systems and satellites.

Tice said he would raise concerns that illegal activity was occurring in electronic reports, but that his comments were deleted from those reports.

Posted 9:47 AM by JB [link] (26) comments

Malfeasance and misfeasance

Sandy Levinson

I have mentioned in an earlier posting a forthcoming book, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It), that the Oxford University Press will be publishing in October. Reading Jack Balkin's most recent post--on how George Bush is, in some strange sense, "liberated" by the polls and his lame-duckness to do whatever he wants, however reckless, I want to bring to readers' attention one section of the chapter in the book on Article II and the presidency, titled "On "Malfeasance" and "Misfeasance"; Why Criminal Presidents Present Less of a Threat than "Merely" Incompetnet Ones." In that section, I argue that one of the worst legacies of the framers is a rigid, fixed-term presidency that can be escaped only if a president is indeed sufficiently criminal to meet whatever the "high crimes and misdemeanors" clause of the Impeachment Clause means. Although I am well aware that many people on the left believe that Bush has manifested his criminality by aspects of the war in Iraq, the NSA surveillance, and the like, it is, I believe, a sign of our constitutional pathology that we feel we must label him a criminal, about which there is reasonable debate, rather than a blithering incompetent, which seems more widely accepted across the political spectrum. (And, incidentally, one obvious problem with impeachment, under the current system, is that it would give us Dick Cheney as president, which would be even worse on almost any criteria. So then one must fantasize impeaching Cheney as well, which gives us Dennis Hastert, who no sane person would believe is competent to be president in today's complex world. Next in line is Ted Stevens (ditto).)

The scenario that Jack most ably (and frighteningly) sets out requires as the background condition that we, as a political order, are indeed trapped in what I call the "iron cage" of our constitutional structure. Almost any other political system in the world would be figuring out how to strip an incompetent menace like Bush of his political power. The best we can do is hope for a Democratic takeover of at least one house of Congress so that it can harass him with investigations. But, as Jack notes, there is simply no reason to believe that he will cooperate in any significant investigation. More than ever, we are moving/have moved to a Schmittian presidency, and the Constitution bequeathed us by James Madison and his friends apparently gives us no effective way of responding. George Mason in fact wanted to make "maladministration" impeachable, but Madison disagreed, arguing that would give too much power to Congress, and he thus insisted on a "misfeasance" (criminality) standard for impeachment. In this, as in many other areas, Madison may have been right for his particular time, but disastrous inasmuch as the Madisonian vision continues to smother us 220 years later.
Posted 11:10 PM by Sandy Levinson [link] (35) comments

Bush is just another word for nothing left to lose

JB

Yesterday my colleague Bruce Ackerman pointed out to me that if things continue to go as they have, President Bush is never likely to regain his popularity and his political capital; as a result, he has very little to lose if he engages in even greater risk taking behavior than he demonstrated in his first six years in office. If his gambles pay off, he regains some political capital; if they don't, he can't lose much more popularity than he already has. Moreover, even if the Democrats retake the House and Senate in 2006, the chances of impeaching him are slim and the chances of impeaching him *and* removing him from office are even slimmer.

It's true that a risk taking Bush might screw things up for the Republican Party for the next election cycle or two, but he has already done that quite nicely, thank you. Moreover, he has never been one to put the interests of other politicians ahead of his own, so why should he start now?

Throughout his Presidency Bush has shown a desire to engage in gambling and risk taking behavior. Now that he has gambled himself into a failed presidency, he may well decide that taking even greater risks has considerable upside and very little downside.

What kinds of risks might he be willing to take? Although I do not believe it will happen, the most obvious is a unilateral decision to bomb Iran. Many people think that this is a spectacularly bad idea. But look at it from the perspective of a failed Presidency with two and a half years to go. Right after the bombing starts, there's a good chance that many Americans will rally around the President. If Bush were to preemptively attack Iran, politicians of both parties will be placed in a difficult position. They might gamble that a public, tired of constant war, will react negatively to the strikes. But if they criticize the President without finding out whether the public supports what he is doing, they risk looking soft on national security and bucking a popular upsurge of support. Gambling and picking the wrong side has greater consequences for them than for Bush: They are facing reelection, while the President is not. Hence they will be tempted to take the safer route and support the President. If the expedition turns out badly, they can always criticize him later on. Indeed, if the President goes ahead and bombs Iran, we might see both John McCain and Hillary Clinton falling over themselves to see who can take the toughest stance. Several people have speculated that the President might bomb Iran before the 2006 elections in order to preserve a Republican Congress. The irony is that if the Democrats win one or more Houses, Presidential risk taking is even more likely. And remember, it does not have to be Iran. There are always plenty of other places where the President might think a little bombing might do some good.

But let's put Iran to one side. There are lots of other gambles that a failed President can take with very little downside risk. For example, with a Democratic controlled Congress, he can veto bills left and right (well, mostly from the right); it will be hard to override his veto. He can make more recess appointments. And he can try to stock the courts with even more strongly conservative judges. What does he care if the Democrats can block some of them? Finally, he can stop investigations in their tracks by withholding information on national security and executive privilege grounds, and he can prevent embarrassing criminal investigations by using his pardon power as his father did. He can become increasingly truculent and he can dare the House to impeach him and the Senate to remove him. I mean, what are the chances that two thirds of the Senate will vote to convict and remove? Not very great, even if the Democrats retake the Senate. And even if the risk is, say twenty percent, he might conclude that it's a gamble worth taking.

But, you may object, what about his legacy in history? Won't engaging in even greater risk taking damage what historians will say about him? Well Bush has every reason to believe that if he will be honored at all by later generations, it will be for pursuing aggressive policies following 9-11 that helped keep the country safe and prepared it for a long struggle against terrorism. He may well assume that he will be regarded retrospectively with the same degree of respect and warmth that Harry Truman received many years after he left office. Remember that Truman was also regarded as a stubborn man who got the country embroiled in a frustrating war overseas (Korea), and his approval ratings were just as low. Nevertheless, Truman was eventually remembered as the President who first formulated and implemented the successful policy of containment during the Cold War. In the same way, Bush might reason, he will be remembered not for deficit spending, Katrina and the Iraq debacle but for his policy of muscular responsiveness to the threat of Islamic terrorism, which later Presidents will adopt just as Truman's containment policies were adopted by Presidents of both parties during the Cold War.

And here's the kicker: Bush has every reason to think that the next series of Presidents, whoever they may be, will follow many of his policies in the War on Terror. As Sandy Levinson and I have explained, we are gradually moving from a National Security State to a National Surveillance State, with an increasingly powerful executive acting largely with the blessing of Congress. Given the changing nature of warfare and the threats America faces, we would have done so no matter who took office in 2000. The only difference between the two parties would have been how they finessed the issue of civil liberties, and it's important to remember that the Democrat Bill Clinton was not a great civil libertarian, particularly when it came to national security policy. There is little reason to think that someone like Al Gore or Hillary Clinton would make a fetish out of protecting civil liberties or reducing Presidential power once they took office.

Thus, Bush may reasonably conclude that he will be the Harry Truman of the early 21st century-- he made some mistakes, and he went overboard on civil liberties, but future Presidents will thank him for pushing the envelope on Presidential power because it cleared a wide space for them to use in their Administrations. Perhaps you imagine (or you hope) that future Presidents make it a point to reveal all the bad things that were done during the Bush Administration. You are wrong. Future Presidents will not waste much time or political capital trying to expose what Bush did while in office; quite the contrary, they may try to take advantage of the climate of secrecy and Presidential unilateralism that he created. After all blowing the whistle on what the previous Administration did makes it more difficult for them to do similar things in the future. (Moreover, if future Presidents appear to be even a little less aggressive than Bush, they will seem quite moderate in comparison.) If the various misdeeds of this Administration ever to come to light and come to justice, it will not be because later Presidents expose them out of the goodness of their hearts, but because Congress and the judiciary reassert themselves, and more people risk their careers by leaking information. Without such courage, much of what Bush and his subordinates did in the past several years will never be fully known, and Bush's reputation will be burnished by later Presidents following his example.

Now I don't actually believe that Bush is the second coming of Harry Truman-- I think that history will be far less kind. But from Bush's perspective, it's a plausible legacy to shoot for. If that's so, Bush has no incentive to admit any mistakes or to ask forgiveness for anything he's done in office. Indeed, he has every incentive to be just as risk taking, just as stubborn, and just as bull headed as he has been for the past six years, if not more so.

And that, I am afraid, does not bode well for the future of our country.

Posted 6:54 AM by JB [link] (39) comments

Further Thoughts on the Lawfulness of the Newly Disclosed NSA Program

Marty Lederman

In an earlier post, I offered some preliminary thoughts about the legality of the NSA program by which the NSA has asked telecommunications providers to disclose phone records (but not contents) of millions of domestic calls, presumably so that NSA might look for patterns in such calls indicating possible ties to Al Qaeda. I quoted Orin Kerr as identifying four possible statutes that might prohibit what the NSA and the phone companies are alleged to have done. (Both Orin and I concluded that under current Supreme Court doctrine, this program standing alone probably does not violate the Fourth Amendment. [UPDATE: That Fourth Amendment doctrine is, IMHO, seriously flawed, and has been subject to serious challenge, in part because it could lead to the conclusion that dragnets such as that at issue here are constitutional. See, especially, Patricia Bellia's powerful critique in Surveillance Law Through Cyberlaw's Lens, 72 Geo. Wash. L. Rev. 1375, 1397-1412 (2004), which can be found at pages 24-40 of the document downloadable here.]

After a bit more reflection, and as explained below, I think it's safe to say that at least some of the statutory arguments against the program might not be as strong as they first appeared -- depending on the particular details of the program, which we of course do not know. But at least two other statutory objections appear to remain very formidable.

It would be much easier to evaluate the various legal arguments if the Administration had simply come out and informed the Congress and the public that it was developing a phone-records database, and had offered a legal basis for doing so. Unfortunately, this Administration's modus operandi is to withhold from the public any information at all, even at a very general level, about what the government is doing in the war on terror -- and to keep the vast majority of Congress in the dark, as well. The President and his spokespersons are all over the television today arguing that disclosure of this program is a grevious blow to national security. But I've yet to hear any plausible justification for the secrecy of the program, or any serious argument about why its disclsoure is so dangerous. If, as the New York Times reports, the Administration thinks it's invaluable to have telecom companies provide phone records to the NSA "of most telephone calls in the United States," to be used "for the limited purpose of tracing regular contacts of 'known bad guys,'" and further believes that such a vast program is legal, why can't they simply announce those facts, and publicly make the case for why the program is legal? After all, if it is legal to collect such a database, wouldn't it make perfect sense for the government to do so? Why, if the program is legal, would it come as any surprise at all to Al Qaeda and its affiliates that the government is taking advantage of such a resource?

In any event, here are some further thoughts on the four statutory arguments. These reactions remain tentative. I welcome any corrections and further suggestions:

1. FISA. The phone records almost certainly are "records" of "electronic communications" under FISA. See 50 USC 1801(n). But FISA only restricts "electronic surveillance" of such communications, and it's not obvious that this NSA program involves electronic surveillance by the agency. "Electronic surveillance" is defined as the "acquisition" of such communications "by an electronic, mechanical, or other surveillance device." 50 USC 1801(f). The account in today's paper indicates that the NSA obtained the contents of phone records via simple requests to the phone companies, rather than by use of any "electronic, mechanical, or other surveillance device." If this is the case, then it would appear that this program (unlike the one revealed last December) would not involve "electronic surveillance," and thus would not violate FISA's limitations on such surveillance.

2. The Pen Register Statute. The Pen Register Staute, 18 U.S.C. 3121, bans the use of a "pen register" or "trap and trace device" unless the government obtains a court order, the use is authorized by FISA, or the use falls within an exception to the statute. As Orin indicated, the exceptions in the statute don’t appear to be applicable here. But has the NSA used a pen register or trap-and-trace device -- as those terms are defined in 18 USC 3127(3)-(4) -- to obtain the information? Certainly the phone companies have done so -- and their use is statutorily exempted. But it's not obvious that the government itself used a pen register or trap-and-trace device in order to obtain the infromation, especially if the NSA simply received the information directly from the service providers. To be sure, there are arguments that the NSA violated 3121 -- see the debates in the comment thread of Orin's post here -- but based solely on the words of the statute, the arguments do not appear be very strong.

3. The Stored Communications Act. This is the statute that Kate Martin emphasizes in her post.

18 USC 2702(c) prohibits a provider of electronic communication service from divulging to a governmental entity any "record or other information pertaining to a subscriber to or customer of such service" other than the contents of communications, unless the disclosure comes within one of the exceptions of 2702(c). (Somewhat surprisingly, section 2702 does not prohibit the provider from disclosing such information to non-governmental entities -- although other statutes (such as 47 USC 222, see below) may limit such disclosures.) Most of the 2702(c) exceptions are certainly inapplicable here. [UPDATE: Orin Kerr explains here why the other 2702(c) exceptions are inapposite. It appears that one of those exceptions might be at the heart of the Administration's defense of the program. According to a story in tomorrow's Washington Post, the government might be relying on the exemption found in subsection 2702(c)(2), which permits disclosure "with the lawful consent of the customer or subscriber." The theory is quite alarming:

One government lawyer who has participated in negotiations with telecommunications providers said the Bush administration has argued that a company can turn over its entire database of customer records -- and even the stored content of calls and e-mails -- because customers "have consented to that" when they establish accounts. The fine print of many telephone and Internet service contracts includes catchall provisions, the lawyer said, authorizing the company to disclose such records to protect public safety or national security, or in compliance with a lawful government request. . . . Verizon's customer agreement, for example, acknowledges the company's 'duty under federal law to protect the confidentiality of information about the quantity, technical configuration, type, destination, and amount of your use of our service,' but it provides for exceptions to 'protect the safety of customers, employees or property.' Verizon will disclose confidential records, it says, "as required by law, legal process, or exigent circumstances."

Yeah, that argument is sure to go over well with the public: Turns out that the millions of us have all agreed (in the fine print) to this data-mining program. Orin Kerr is fairly dismissive of this argument, based on the doctrine in the context of the analogous wiretap statute that what is required is not constructive consent but "consent in fact."]

If I'm right about this, then the only possible exception to 2702(c)'s prohibition relevant to the NSA program is found in section 2702(c)(1), which permits any disclosure "authorized in section 2703." And the only conceivably pertinent provision of section 2703, in turn, is subsection 2703(c), which provides as follows:

(1) A governmental entity may require a provider of electronic communication service or remote computing service to disclose a record or other information pertaining to a subscriber to or customer of such service (not including the contents of communications) only when the governmental entity--

(A) obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure by a court with jurisdiction over the offense under investigation or equivalent State warrant;
(B) obtains a court order for such disclosure under subsection (d) of this section;
(C) has the consent of the subscriber or customer to such disclosure;
(D) submits a formal written request relevant to a law enforcement investigation concerning telemarketing fraud for the name, address, and place of business of a subscriber or customer of such provider, which subscriber or customer is engaged in telemarketing (as such term is defined in section 2325 of this title); or
(E) seeks information under paragraph (2).

(2) A provider of electronic communication service or remote computing service shall disclose to a governmental entity the--
(A) name;
(B) address;
(C) local and long distance telephone connection records, or records of session times and durations;
(D) length of service (including start date) and types of service utilized;
(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
(F) means and source of payment for such service (including any credit card or bank account number),

of a subscriber to or customer of such service when the governmental entity uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena or any means available under paragraph (1).

None of the provisions of subsections 2703(c)(1)(A)-(D) is applicable here. Thus, under subsections 2703(c)(1)(E) and (c)(2), the NSA could compel such disclosure only pursuant to "an administrative subpoena authorized by a Federal or State statute." And there appears to have been no such administrative subpoena here. Ergo, the service providers appear to have violated section 2702(c).

[UPDATE: Previous discussion found here on National Security Letters moved to the end of this post.]

4. The Telecommunications Act of 1996. As I noted in my earlier post, 47 USC 222(a) & (c)(1) provide that every telecom carrier has a "duty" to protect the confidentiality of proprietary information of, and relating to, their customers, and that "[e]xcept as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories."

The information disclosed to the NSA would appear to be customers' "proprietary information," defined in section 222(h)(1) as "(A) information that relates to the quantity, . . . destination, location, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and (B) information contained in the bills pertaining to telephone exchange service or telephone toll service received by a customer of a carrier."

Accordingly, and without knowing more, the disclosure of such information to the NSA appears to have violated the Telecom Act of 1996, because it was not "required by law."


* * * *

The upshot of all this is that the NSA appears to have induced certain telecom providers to violate 18 USC 2702(c) and 47 USC 222.

Once again, however, I'm hardly an expert on these statutory questions, and I've spent only a couple of hours on them. Therefore I welcome any and all corrections, clarifications and other suggestions.

[UPDATE: In an earlier iteration of this post, I suggested that perhaps the Administration could have obtained the requisite authorization to require the disclosure under 2703(c)(2), and could have avoided application of 47 USC 222, by use of the so-called "national security letter" provisions of 18 USC 2709. I now have reason to think, however, that this was a mistake: Proper use of section 2709 likely would not permit the wholesale collection of the sort of undifferentiated database of phone records at issue here -- especially not by the NSA.

Section 2709, as amended by the USA PATRIOT Act of 2001, provides that a service provider "shall comply with a request for subscriber information and toll billing records information, or electronic communication transactional records in its custody or possession made by the Director of the Federal Bureau of Investigation," if the FBI Director or his designee certifies in writing "that the name, address, length of service, and toll billing records sought are relevant to an authorized investigation to protect against international terrorism . . . . , provided that such an investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States." (Prior to the PATRIOT Act, the Director had to certify that there was reason to believe either that the information sought pertains to a person or entity that is a foreign power or an agent of a foreign power or that communications facilities registered in the name of that person or entity have been used to communicate with someone engaged in international terrorism or clandestine intelligence activities. The PATRIOT Act eliminated those much more substantial burdens. See also section 215 of the PATRIOT Act, 50 USC 1861, which authorizes the FBI Director, on the basis of a similar sort of certification, to apply for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism.)

In my previous post, I suggested that if only the FBI Director had tendered such a certification (an "NSL") to the service providers here, those providers would have been required to provide the records that they turned over to the NSA, which presumably would have nullified the prohibitions found in sections 2702(c) and 47 USC 222. But I am now led to understand that there are several reasons why that was not an option here. The principal reason is that section 2709 does not contemplate the sort of undifferentiated data-mining requests at issue here; instead, it requires the FBI Director to seek the records of particular persons (hence the requirement of specifying a "name, address, length of service, and toll billing records"). Also, the request must be in the service of an "authorized investigation" -- a term of art that I am told refers to an FBI investigation (not an NSA investigation) that is subject to particular regulations established by Executive Order 12,333, which limits the subject matter of investigations, sets standards for such investigations, requires intenral DOJ oversight, etc. (More along these lines from Kate Martin here.) In addition, any certified FBI investigation emerging from a phone-records database such as this one might well be deemed an "investigation of a United States person . . . conducted solely on the basis of activities protected by the first amendment" (those first amendment activities being phone conversations), which would disqualify it under the plain terms of section 2079 itself. Finally, if the FBI Director were to attempt to use an open-ended NSL for a fishing expedition to obtain from a service provider a vast swath of phone records of multitudes of persons, that might well raise serious Fourth Amendment questions in its own right, because even subpoenas must be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome. See, e.g., Donovan v. Lone Steer, Inc., 464 U.S. 408, 415 (1984). See, for example, Doe v. Ashcroft, 334 F. Supp. 2d 471, 494-506 (S.D.N.Y. 2004) (declaring that an NSL issued pursuant to section 2709 itself violated the Fourth Amendment).]
Posted 10:08 PM by Marty Lederman [link] (16) comments

A Peculiar Fairness Issue Brewing In Law Schools

Brian Tamanaha

An annual rite of spring in law schools is the (quiet) announcement of tuition increases for the new academic year. Tuition goes up every year in law schools around the country, generally in a range between 5% and 10%; sometimes less, sometimes more, but rarely not at all. At my own institution, to offer one example, tuition has about doubled in the past decade.

Deans have plenty of explanations for this: the exploding costs of technology and libraries; the expenses of running clinics, holding conferences, and retaining and attracting big name faculty; increasing scholarships for students; problems with fundraising in hard times; and public schools subjected to budget cuts from legislatures. This is all true (and let's not leave out large increases in Dean salaries).

We might also, in a moment of candor, add that we each increase tuition because every other law school is increasing tuition as well, so why not go with it. And students keep showing up at the door, at least so far.

One has to wonder, however, how long this can continue, as we collectively sprint past $30,000 per year (not counting expenses) and beyond. The economic value of a law degree for graduates from elite law schools, and for top students from non-elite law schools, would seem to handily justify the price. A law degree for these favored individuals is a ticket to $130,000+ starting salaries in corporate law firms, with the prospect of much more down the line.

But what about the overwhelming majority of law graduates (all those not in the favored categories above) for whom a law degree offers a far lower earning potential? There is a large separation in the practicing bar, superbly documented in Heinz, et. al., Urban Lawyers (Chicago 2005). Corporate lawyers are doing well, but, while tuition keeps going up, salaries for the rest of the lawyers out there have decreased in real terms.

This brings me to the fairness issue. A peculiar system has developed in many non-elite institutions, in which the students most likely to make the least money end up subsidizing the legal education of the students most likely to make the most money.

The way "merit" scholarships work, students with high LSAT scores--which law schools covet in the effort to shape their profile for the purposes of U.S. News rankings--get large discounts (with some paying no tuition at all). It is not the case, of course, that high LSAT students always rank at the top of the first year class, or that the lower LSAT students end up at the bottom half of the class. But when it does happen (often enough), the result is that the lowest ranked students pay full price, while the highest ranked students pay much less. And the lowest ranked students get the worst paying jobs (and sometimes no job), while the highest ranked students get the best paying jobs.

This system is understandable--and one can come up with an argument that the lower students benefit from the system as well because maximizing the LSAT profile of the law school enhances the value of their degree (though that does not mean they will make any more money)--but it is also, well, perverse.

Elite schools are off the hook on this, because they don't have the same dynamic, but any law school outside the top twenty will have some version of it.
Posted 4:01 PM by Brian Tamanaha [link] (36) comments

The (Il)legality of the NSA Phone-Records-Interception Program

Marty Lederman

My first reaction on reading the groundbreaking story in USA Today about the NSA's secret phone-records-interception program was that Qwest stock is going to go through the roof. Don't take that as a tip -- I'm woefully unreliable on such matters. But there are at least some customers who know a law-abiding, customer-protective company when they see it. (If you haven't yet read the USA Today story, do youself the favor of at least reading the section toward the end, on the hardball tactics applied to Qwest, and its very admirable resistance.)

My second reaction was to wonder about the legality of the program. It didn't strike me as violative of the Fourth Amendment, at least so long as the Supreme Court's unfortuante "pen register" precedent remains good law. But at first glance, it sure does appear to run up against several statutory restrictions that Congress and the President have enacted in order to protect the privacy of our phone calls and phone records, not least of which is FISA itself, which, for purposes of that statute, defines the "contents" of a communication quite broadly, to include "any information concerning the identity of the parties to such communication or the existence, substance, purport, or meaning of that communication." 50 USC 1801(n).

Also, as the USA Today story noted, 47 USC 222(a) & (c)(1) provide that "Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers, including telecommunication carriers reselling telecommunications services provided by a telecommunications carrier" and that "Except as required by law or with the approval of the customer, a telecommunications carrier that receives or obtains customer proprietary network information by virtue of its provision of a telecommunications service shall only use, disclose, or permit access to individually identifiable customer proprietary network information in its provision of (A) the telecommunications service from which such information is derived, or (B) services necessary to, or used in, the provision of such telecommunications service, including the publishing of directories."

Fortunately for me, my friend Orin Kerr, who knows much more than I about the intricacies of these and other telecommunications statutes, has posted a preliminary review of the legal issues, which he has given me permission to cross-post here. The upshot is as I suspected: No serious constitutional issue (other than, of course, the gross violation of the separation of powers), but several very serious statutory questions. No wonder Qwest balked -- and no wonder NSA was fearful of asking the FISA Court for legal cover.

[UPDATE: To be clear, I have not yet studied these issues closely and therefore do not have a clear sense of which statutes, if any, would apply to the NSA program. This helpful post by Kate Martin suggests that the most serious legal impediment is 18 USC 2702. That argument appears to have some force; but I don't yet know whether the 47 USC 222 objection is more serious -- Kate does not discuss that provision.]

Here's Orin's extremely helpful preliminary take:

Thoughts on the Legality of the Latest NSA Surveillance Program

The USA Today has an important scoop today on a previously secret NSA surveillance program. Assuming the program was described accurately in the USA Today story, is this program legal? Here is a very preliminary run down of the issues. It’s not as complete as I would like, and it’s not something I have thought about as much as I would like before posting. But my grades are due very soon, and unfortunately I can’t spend as much time on this as I would normally like to spend. I hope this post is at least a helpful start.

The legality of the program touches on at least five laws: the Fourth Amendment, the Pen Register statute, the Stored Communications Act, FISA, and the Communications Act.

1) The Fourth Amendment issues are straightforward. It sounds like the program involves only non-content surveillance, which means that it presumably doesn’t implicate the Fourth Amendment under Smith v. Maryland.

2) The legality of the program under FISA is somewhat similar to the legality of the NSA program we learned about a few months ago. The key question is, did the monitoring constitute “electronic surveillance” under FISA, and if so, does the Authorization to Use Military Force allow it? Note that FISA’s definition of “electronic surveillance” goes beyond accessing only content information and extends to some non-content information. If the program did involve “electronic surveillance” under FISA, then we’re right back to the same question that has been raised about the legality of the known NSA domestic surveillance program. If that’s right, your views of the legality of the new NSA program will pretty much coincide with your views of the legality of the NSA program disclosed a few months ago.

3) The next question is, did the monitoring violate the Pen Register statute, and in particular the prohibition of 18 U.S.C. 3121? To boil down a complex area of law into a sentence, federal surveillance law calls any means of surveilling non-content telephone or Internet information a “pen register” or “trap and trace device.” Section 3121 then bans using such a device unless the government has a court order (either through the criminal investigative authorities or national security law authorities) or an exception to the statute applies. The exceptions in the statute don’t seem applicable here: They mostly involve monitoring to provide better service for the telephone company.

The USA Today story suggests that Qwest wanted the government to obtain a court order for the monitoring, and that the government refused because they concluded that the FISA court might not grant the order. The court order they are referring to is probably the FISA pen register order. Under 50 U.S.C. 1842, the Attorney General or his designate needs to approve the request for such an order, and must certify “that the information likely to be obtained . . . is relevant to an ongoing investigation to protect against international terrorism or clandestine intelligence activities, provided that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution.” The order would then need to be renewed every 90 days under 50 U.S.C. 1842(f).

The legal threshold for a FISA pen register order is low: relevance to an ongoing investigation is a pretty easy standard to satisfy. At the same time, obtaining an order for this kind of monitoring would raise an issue that I have wondered about but I don’t think I know how to answer: Does FISA’s pen/trap authority in 50 U.S.C. 1842 permit the government to conduct massive-scale monitoring, or must monitoring be limited to a specific set of persons or accounts? When the USA Today story says that the government didn’t think the order would be granted by the FISA court, I gather they are saying that the FISA court judges didn’t think the FISA pen/trap authority permitted such massive scale monitoring. That sounds like a sensible conclusion: I would guess that the FISA judges wouldn’t interpret the FSIA pen/trap authority as permitting such massive scale monitoring (in that it trumps the need for any individual orders, which would be odd).

4) The next possible statute is the Stored Communications Act (SCA), and in particular the prohibition on disclosing records relating to wire communications to a government entity found in 18 U.S.C. 2702(a)(3). It’s not clear to me that the SCA applies: the SCA was designed to deal with one-time disclosure of stored communications and records, not real-time collection and repeated disclosure. At the same time, the statute doesn’t have an explicit exception for real time collection, so it’s at least plausible that it does apply. If it applies, disclosure is permitted only if an exception to the statute covers this. I don’t think that any of the exceptions apply, though: the emergency exception of 18 U.S.C. 2702(c)(4) seens to be the closest, but this doesn’t sound like there was an “immediate danger” here. This was an ongoing program, not a program responding to a sudden emergency.

5) A fifth possible statute, and one mentioned in the USA Today story, is the Communications Act of 1934, 47 U.S.C. 222. I have generally thought that the statutes discussed above trump this statute, but the USA Today story mentions it. In any event, I don’t know much about this one, as it’s a telecom statute and I don’t normally play in that sandbox. So I’ll punt on this one for now.

To summarize, my very preliminary sense is that there are no Fourth Amendment issues here but a number of statutory problems under statutes such as FISA and the pen register statute. Of course, all of the statutory questions are subject to the possible argument that Article II trumps those statutes. As I have mentioned before, I don’t see the support for the strong Article II argument in existing caselaw, but there is a good chance that the Administration’s legal argument in support of the new law will rely on it.
Posted 12:25 PM by Marty Lederman [link] (45) comments

Tales from the Unitary Executive-- The NSA and Domestic Surveillance

JB

The Bush Administration has used its power to crush any investigation into the legality or the legal ethics of the NSA's domestic surveillance program. The Justice Department has sought to dismiss public interest lawsuits against AT&T for colluding with the government to operate the NSA program illegally, and the New York Times reports that Justice Department's own Office of Professional Responsibility has now ended an inquiry into the NSA program "because the NSA refused to grant Justice Department lawyers the necessary security clearance to probe the matter":

The Justice Department's Office of Professional Responsibility, or OPR, sent a fax to Rep. Maurice Hinchey, D-N.Y., on Wednesday saying they were closing their inquiry because without clearance their lawyers cannot examine Justice lawyers' role in the program.

''We have been unable to make any meaningful progress in our investigation because OPR has been denied security clearances for access to information about the NSA program,'' OPR counsel H. Marshall Jarrett wrote to Hinchey. Hinchey's office shared the letter with The Associated Press.

Jarrett wrote that beginning in January, his office has made a series of requests for the necessary clearances. Those requests were denied Tuesday.

''Without these clearances, we cannot investigate this matter and therefore have closed our investigation,'' wrote Jarrett.

Justice Department spokesman Brian Roehrkasse said the terrorist surveillance program ''has been subject to extensive oversight both in the executive branch and in Congress from the time of its inception.''

Note the irony: While private phone company employees at AT&T and other corporations must have sufficient security clearances to know what is going on in the NSA program- because they are helping to run it-- the Justice Department's own ethics lawyers do not. It's a convenient way to forestall any investigation into wrongdoing.

Meanwhile, USA Today reports that the NSA has been secretly collecting phone call records of tens of millions of Americans, including calls made within the United States. It is important to note that obtaining these phone call records is not the same thing as actual eavesdropping of calls. Nevertheless, the program involves serious invasions of individual privacy, as "the phone numbers the NSA collects can easily be cross-checked with other databases to obtain" customers' names, street addresses and other personal information.

The Bush Administration has been careful to say that it is only eavesdropping on calls bewteen the United States and foreign countries, while refusing to state whether there are any purely domestic intelligence operations currently underway. However, as I've argued previously , the Bush Administration's justifications for the program based on the unitary executive are so strong that the distinction between foreign intelligence surveillance and purely domestic surveillance is irrelevant for purposes of the theory.

Posted 7:47 AM by JB [link] (29) comments

Valuable New Details and Analysis of the BOP Religion-in-Prisons Program(s)

Marty Lederman

In two posts in recent weeks, I've written on the constitutional problems raised by a Bureau of Prisons program designed to facilitate prisoner rehabilitation through religious transformation.

It turns out that there is more than one BOP program at issue, and that the newer (yet-to-be-implemented) program is more constitutionally suspect than the older (existing) program -- although both raise serious concerns. In this extremely informative post at the site of the Roundtable on Religion & Soical Welfare Policy, Professors Chip Lupu and Bob Tuttle provide a great deal of further detail and constitutional analysis of the BOP programs. Highly recommended.

UPDATE: A few specific reactions to the Lupu/Tuttle post:

1. Lupu and Tuttle generally confirm the constitutional analysis I offered earlier. They add one other important constitutional objection: Providers would be entitled to discriminate in favor of prisoner participants of a particular religion. This, too, would be unconstitutional, in violation of the Free Exercise rights of disfavored prisoners.

2. In a transcript of an April 18, 2006, Pre-proposal Conference, a DOJ Official (Steve McFarland) indicates that the contractors would be entitled to choose employees on the basis of faith, as well. As I noted in my first post, these contractors are state actors -- they are administering an entire residential program, within federal facilities, in the service of government objectives, with participants chosen by the BOP. In effect, they are taking over the administration of the prison for a certain subset of inmates. Their religious employment discrimination, therefore, would appear to violate the Religion Clauses, and might also run afoul of Article VI, which provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." (There is virtually no caselaw on what constitutes a "public Trust under the United States" for purposes of Article VI. See note 46 of this memo. But certainly an argument could be made that a contract to, in effect, run a federal prison, and to administer the incarceration of persons imprisoned for having committed federal crimes, creates a "public Trust.")

3. Lupu and Tuttle point out that the various BOP documents and statements have been somewhat unclear, and even contradictory, on the question of whether the new Life Connections program ("LC2") would be limited to single-faith providers, or whether non-religious providers might also be eligible. (Multi-faith or ecumenical providers would not appear to be eligible.) As a result, Lupu and Tuttle conclude that perhaps the recent lawsuit challenging the program might not be ripe -- that it may be necessary to wait and see whether BOP allocates its contracts in a way that discriminates in favor of religious providers. I think they are a bit too generous in concluding that "the LC2 solicitation is not facially discriminatory." The BOP cover letter, and the pre-Solicitation Notice, and the comments at the 4/18 Conference, and the agency's public comments, all indicate that the program is designed for single-faith programs. At the very least, it's fair to assume from what BOP has represented that such single-faith programs will receive the vast majority of contracts. (Otherwise, why bother mentioning single-faith groups at all? Their participation is manifestly the whole point of this new program.)

In any event, the transcript of the Pre-Proposal Conference indicates that BOP will award the contracts by the end of June -- which would presumably moot any ripeness concern.

More importantly, the other constitutional infirmities -- the direct funding of religious activities; the operation of religious programs by state actors; the impermissible government objectives; the discrimination against participants and employees; etc. -- are all ripe for adjudication, because BOP has been forthright about its intent to act in a way that triggers each of these concerns, even if secular programs are eligible for some contracts.

4. Lupu and Tuttle suggest that the existing multi-faith program -- Life Connections 1 (LC1) -- might be constitutional, by analogy to the chaplaincy exception that I discussed in my initial post, because LC1 might be structured so as to facilitate inmates' own chosen form of religious exercise, which has been burdened by the fact of their incarceration. I'm skeptical. BOP does not tout LC1 as a program designed to alleviate burdens that the govenrment has placed on inmates' religious exercise. (Presumably the chaplaincy programs themselves are sufficient for that purpose -- along with provision of opportunity for worship, etc.) As the Request for Proposal Lupu and Tuttle cite indicates, the professed "goal of the Bureau of Prisons Residential Faith-based Program is to provide inmates living in a shared living space with intensive opportunities for holistic life restoration for the purpose of reducing recidivism and enhancing prison management." In other words, the program is in the service of a governmental objective, rather than representing an attempt to alleviate the burdens the government has imposed on inmates' religious freedom. Having said that, I should note that whether LC1 fits within the chaplaincy exception model may depend heavily on how it is being implemented, and therefore whether it is constitutional may depend on the facts.
Posted 10:38 AM by Marty Lederman [link] (25) comments

death squads

Sandy Levinson

The invaluable Dana Priest has an article in today's Wasington Post, "Experts See a Strategy Behind CIA Shuffle: General May Help Intelligence Chief Rein In Rumsfeld and His Military Spy Plans."

The most intriguing paragraph is the following:

Managed by Army Lt. Gen. William G. "Jerry" Boykin, a legendary special operations officer [who is also well known for being the most hard-core Christian zealot in the Pentagon] who now holds the title of deputy undersecretary of defense for intelligence and warfighting support, the Pentagon is demanding that the CIA share its most sensitive databases, that small teams of undercover soldiers be allowed to secretly collect information in friendly countries, and that clandestine teams of military man-hunters be allowed to sneak into countries with which the United States is not at war to kill or capture terrorism suspects.

So my questions are as follows:
1) Isn't the proper name for the "clandestine teams" "death squads" (at least if indeed they "kill . . . terrorism suspects").
2) What, precisely, prevents the Bush Administration from bringing such squads into the US? There are, presumably, two answers, one involving statutes, the other involving the Constitution (something about due process of law). But this is a President who believes that statutes simply do not apply when they limit his powers as "commander-in-chief" of the "global war on terrorists" (and global, of course, includes the US). And, of course, this is a President who reads Article II, including the C-in-C Clause, in a way that overrides any finicky concern for due process and the like where those deemed (by the President and those to whom he has delegated his powers under Article II) "terrorist suspects." Perhaps Jose Padilla should consider himself lucky to be merely detained at O'Hare and then put into solitary, with no ascertainable rights, for a number of years. After all, the same logic would presumably have justified killing him if the Administration thought that desirable.
3. If they are "captured" instead of killed, where are they sent, and by what means? Are we to believe that they would simply be turned over to the intelligence services of the friendly countries within which these operations are taking place? But this would, among other things, presuppose that these countries thought the operation of US death squads was a fine idea. So are they spirited out and sent to CIA camps for interrogation? But what happens after interrogation? It would be very dangerous to let them go if a mistake had been made, wouldn't it, lest the existence of these programs be confirmed (beyond the paragraph in Priest's article).

I hope that this is simply a paranoid posting, since surely the US would not tolerate a President who would even think of turning us into an up-market version of Argentina, Chile, and El Salvador and their own domestic "disappearances" and "death squads." But where is the public debate about our foreign death squads? Will Democrats continue to be so cowed that they will refuse to challenge this latest foray into fascist-style tactics by Rumsfeld and Boykin lest they be charged by the raging bull Karl Rove as "soft on national security" as we enter into the 2006 elections that Rove is determined to win by any means necessary. And if the operation of foreign death squads is tolerated, then why not in the US? Especially, I might add, if the suspect is an alien, legal or otherwise, since so much of the debate about Padilla turns on the fact that he is, after all, a US citizen (and therefore should have at least some rights that the state is bound to respect)?
Posted 2:06 PM by Sandy Levinson [link] (36) comments

Who's Afraid of the Dark?

Ian Ayres

The drive for more transparent democratic institutions continues. But Saul Levmore long ago realized that the "Anonymity Tool" could deter corruption and further other democratic values.

Tony Blair's leadership has been threatened this spring by allegations that "secret political payments were rewarded with seats in the house of Lords." The traditional response is to simply require disclosure, but in a recent oped in the Financial Times, Bruce Ackerman and I argue that mandating anonymous contributions is a more powerful means of insulating the political sphere from uneven distribution of wealth in our economy.

Barry Nalebuff and I in a recent Forbes column argue that the anonymity tool can also help us make progress with CEO compensation consultants. If compensation consultants aren't told which company they are representing, but instead are asked to rank a group of CEOs, it will be a lot harder for them to say that the entire group is above average.

Several people have argued in the campaign finance arena that the costs of anonymity are too great -- especially the cost of depriving citizens of "voting cues." But in a forthcoming University of Chicago Law Review essay, Bruce and I argue that it is feasible to combine elements of disclosure and annomity in a single system. Under what we call "The Secret Refund Booth," contributions are immediately disclosed but contributors have a 5 day cooling off period to request a refund. The public gets a complete and accurate list of everyone who has tried to influence a candidate, but the candidate can't be sure whether any individual contributor actually paid the price.
Posted 9:47 AM by Ian Ayres [link] (25) comments

May the State Promote Faith in Order to Advance Secular Objectives?

Marty Lederman

The other day I posted here about the unconstitutionality of the Bureau of Prisons' religious-rehabilitation funding program.

The Freedom from Religion Foundation has now filed a suit challenging the constitutionality of the program.

Also, Rob Vischer (at Mirror of Justice) and Rick Garnett (at Prawfsblawg) have each posted thoughtful questions about my assertion that the state's interest in promoting religious transformation is an illegitimate (and troubling) governmental objective. Rick writes, for example, the following:

I certainly share Marty's (and Madison's) concern about religious faith being reduced to a convenient means for achieving the government's "secular" ends. That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be "profoundly disturbing" -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that "religious transformation [and] faith" are good (when freely embraced). There are dangers here, absolutely. Still . . . (To be clear: I'm not necessarily endorsing this particular program.)

Also, Marty writes, "[t]he government cannot specifically aim at religious transformation as a means of accomplishing those secular ends." Does this mean, I wonder, that government may (or should) not act with an eye specifically toward protecting, and even creating, the conditions required (in the government's view) for the flourishing of religious faith and freedom?

To which I have posted a response in the Prawfsblawg comments section that includes the following. (I'd very much appreciate reactions on, especially, the fourth and final point):

1. You ask whether my critique means "that government may (or should) not act with an eye specifically toward protecting, and even creating, the conditions required (in the government's view) for the flourishing of religious faith and freedom?"

No, it doesn't entirely mean that. One of the principal objectives of the religion clauses themselves is to encourage or require the government to act so as to eliminate government-created obstacles to the flourishing of religious faith and freedom. So, for example, I favor -- and have worked to enact and defend -- certain religious "accommodation" statutes, such as RFRA and RLUIPA.

However, although the state may advance the view that religious freedom (including the freedom to reject religion) is a civic good in and of itself, it may not advance the view that religious faith is a positive good in and of itself -- or that it's the means to valuable secular ends.

2. The government is simply not capable of determining whether "religious transformation [and] faith" are a "good" thing (when freely embraced) -- that's a question that is beyond the ken of secular authorities, who do not have the (basically theological) tools to make such determinations. Nor should the state try to do so -- that's not the proper role of government. (Or so argues the Madisonian, and modern, view of the Religion Clauses -- and I agree, although I'm very interested in hearing dissenting views.) And so it surely follows that government may not discriminate in favor of religion in the dispersal of funds on the basis of such judgments concerning the value of faith.

3. I think it's also "troubling," and unconstitutional, for the state to conclude that religious transformation or faith is correlated with secular objectives that the state is entitled to promote, such as civic behavior, rehabilitation, cessation of alcohol dependence, etc. For one thing -- and this isn't a constitutional point -- as far as I can tell, it's simply not true: If anything, human history (including, of course, obvious dramatic recent examples) pellucidly demonstrates that religious faith is no guarantee at all of righteousness, lack of cruelty, or law-abiding conduct.

More to the (constitutional) point, there is something profoundly troubling about the state itself adopting any view about the "typical" comparative social behaviors, and human qualities, of believers and nonbelievers.

4. The hard question, I suppose, is this: Assume the state is entirely agnostic as to the value or "truth" of religious transformation and faith, but actually discovers a strong empirical correlation between faith and some other quality that is a proper object of the state's concern. For example, let's say studies show a cause-and-effect correlation between faith and graduation rates, or between religious transformation and resisting drug addiction. (I'm not aware of any such empirical evidence, but I'm willing to assume arguendo . . . .) I don't think this would give the state the power to itself promote religious faith -- after all, in that case the state would be promoting something that it does not believe, which truly is a perversion of religion. But if there is such a correlation, can a government give resources to private groups that do have religious faith, to enable them to transform those individuals who don't?

Can the state, for instance, say: "Look, we really don't know whether faith is true, or valuable, or something to which all citizens should aspire. Those are eternal mysteries that are appropriately left to individuals. And we believe in religious liberty -- so to each their own on questions of faith. But what we do know, from rigorous scientific studies (indulge me the hypo), is that, for whatever reason -- indeed, for reasons that we are incapable of understanding or assessing -- many prisoners who would otherwise become recidivists do not do so if they come to believe in God, and for that reason (and that secular reason alone), we're giving discretionary grants to private religious organizations that can help such prisoners make such transformations. Indeed, the strongest correlation of all is with conversion to Christianity, and so we're going to give our funds primarily to Christian organizations. There's no such evidence with respect to Islam, or Wicca, and so we will not provide money to groups who have applied to encourage faith in those traditions."

Can the state do this? Madison thought not -- and I agree. But, unlike the other questions raised by the BOP program, that truly would be an interesting and difficult question (that is, assuming once again that there were any such evidence).

In response to my assertion that the state cannot and must not act on the conclusion that "religious transformation [and] faith" are a "good" thing (when freely embraced), Rick has replied:

With all respect, I disagree. Putting constitutional doctrine aside, the public authority, charged with promoting and protecting the common good, may decide that "religion" is a basic human good, and that its flourishing -- consistent with the freedom of conscience -- is constitutive of the common good. (See, e.g., Finnis).

Obviously, Rick's view on this fundamental question is very different from mine, and inconsistent with established constitutional doctrine (not that Rick claims otherwise). It strikes me as quite an important issue of contention -- and that, if the doctrine were to begin to reflect Rick's view, it would look very different from what we now see.

What do others think? Please feel free to weigh in here, or on Prawfsblawg.

UPDATE: With respect to the debate between Rick and me, Doug Laycock has written this on a listserv:

I think Marty is clearly right on this fundamental question. The state cannot decide that religion or religious transformation is a good thing, any more than it could decide that religion is a divisive and disruptive force that should be minimized or discouraged.

But a more sensibly designed program of religious rehab in prisons need not assume that religious transformation is a good thing, or even that religious programs would have lower recidivism rates than secular programs. It need only assume that religion works for some people, and that if different people respond to different kinds of programs, religious programs should be among the options.

Among the problems with the proposed federal program, at least as the press described it to me, is that only one religion will be represented, and that there does not appear to be an equivalent secular program.

To which I have offered the following response:

But Doug, assume that the state prison decides that "religion works for some people," and therefore creates a program such as the one you describe: It establishes within the prison a funded series of voluntary rehab programs, some (but not all) of which are devoted to "religious transformation," as a means of lowering recidivism rates. Wouldn't there continue to be at least three constitutional problems with this?:

1. It would be direct funding of religious activity, prohibited by Mitchell, Kendrick, and numerous other cases.

2. It would consist of state actors actually engaged in the practice of promoting religious transformation. (These are, after all, state programs run within the prisons. Cf. West v. Atkins.) Just as public schools could not include a "religious transformation" class as part of a series of "elective" civics classes, in the service of creating upstanding citizens (and based on the same sorts of empirical claims that you invoke), so too for the public prisons . . .

3. Inevitably, each of the religious transformation programs will be sect-specific, i.e., each will involve the state urging prisoners to adopt a specific system of religious beliefs and commitments. This creates a problem within each of the programs, doesn't it? -- not to mention the inevitable problem that no prison will be able to offer "transformation" programs for all of the religions represented in the prison population.

These seem to me as though they are very big constitutional obstacles, even if the program were amended along the lines you propose.

[UPDATE: Steve Shiffrin offers his views here.]
Posted 2:54 PM by Marty Lederman [link] (38) comments

Sitting Here In Limbo: The Exonerated Detainees

David Luban

Yesterday, Reuters reported here that Albania has agreed to accept five Uighur detainees who have been held for years in a nightmarish limbo at Guantanamo. Two weeks ago, another Reuters report indicated that “nearly 30 percent of the Guantanamo detainees have been cleared to leave the prison but remain jailed because the U.S. government has been unable to arrange for their return to their home countries,” according to the Pentagon.

Just how nightmarish the limbo has been became clear in the opinion U.S. District Judge James Robertson issued last December. Hardly concealing his frustration, Robertson detailed incredible duplicity and stonewalling by government lawyers opposing the Center for Constitutional Rights' suit on behalf of the Uighurs. The Uighurs had been wrongly imprisoned for four years, then exonerated -- but the government still insisted on its right to take its good-natured time ("all deliberate speed", anyone?) before releasing them. Displeased though he was, Judge Robertson eventually concluded that the law affords the Uighurs no remedy. They appealed, and the case was about to be argued before the D.C. Circuit; perhaps the timing of the Uighurs' release to Albania is not a coincidence.

These detainees have been trapped by a Catch-22. They faced Combat Status Review Tribunals (CSRTs) – the panels set up by Paul Wolfowitz (under Supreme Court pressure) to determine which of the Guantanamo detainees are actually “enemy combatants” – and were found to be "NLECs" -- No Longer Enemy Combatants. This by itself is noteworthy, because the CSRTs are notoriously slanted against the detainees. In other words, if you’re cleared by a CSRT, you are really cleared. Why, then, are they still in Gitmo?

According to the government, the detainees couldn’t be repatriated because they face the prospect of torture in their home countries. The Uighurs, for example, belong to a Muslim ethnicity in western China that has for years been locked in a violent struggle against the Chinese government. Article 3 of the Convention Against Torture forbids returning, expelling, or extraditing people to countries where they face a substantial likelihood of torture. The United States is, of course, a party to CAT, and a federal statute (the FARR Act, sec. 2242(a), 112 Stat. 2681-822) declares non-return to be a “policy” of the United States government, and instructs federal agencies to come up with regulations implementing it.

Now, one of the oddities of the U.S. refusal to return the Uighurs to China (obviously the right decision if they face torture there) is how wildly inconsistent the rationale is with the U.S. practice of extraordinary rendition. Yesterday, State Department legal advisor John Bellinger appeared before the U.N.’s Committee Against Torture and testified that Article 3 (the non-return clause) doesn’t apply to people captured and held outside of U.S. territory. (The written version is scheduled for release Monday.) Bellinger’s statement made explicit what many had assumed: that this interpretation of Article 3 forms the legal rationale for extraordinary rendition. (See Marty Lederman's post on this blog last August.) If they’re captured outside the United States, and held outside the United States, sending them to another country doesn’t count as “returning” them and doesn't violate the Torture Convention. This is the kind of loophole legalism we have come to know and love in the Bush Adminstration’s detainee policies. However, the FARR act declares non-return of people to face torture to be U.S. policy "regardless of whether the person is physically present in the United States" - a detail that Bellinger ignored. But perhaps he believes that mere "policy" doesn't rise to the level of legal obligation, even when it is written into law.

Given that the administration doesn’t concede a legal obligation not to send extraterritorial detainees back to face torture, their rationale for keeping the Uighurs detained for years after the CSRT cleared them is presumably public relations: it would look bad to send innocent people to their doom at the hands of the Chinese government. And, according to government lawyers, the U.S. could not find any other country willing to accept them, until Albania agreed to do so.

Well, good for Albania (as long as it is truly making a humanitarian gesture, and doesn’t plan to slap them in prison the moment their plane touches down in Tirana). I can’t imagine, though, that a lifetime in Albania – a partially lawless, clannish place where the Uighurs’ appearance will make them stand out like sore thumbs, and where they very likely don’t know the language – is exactly a consolation prize.

In the case of detainees cleared by the CSRTs – who U.S. processes found not to pose a danger to the United States – mere decency requires us to offer them another option: green cards, or at least political asylum, if they want it. We’ve imprisoned them for years “by mistake” – maybe an honest mistake. So why not apologize by giving them the option of immigration to the United States? By now, they probably have picked up at least as much English as many immigrants from non-English-speaking countries. It seems obscene to say, “Well, now we know they aren’t our enemies. If we can't find anyone else who wants them, we’re going to keep them in Gitmo iindefinitely because they would be in danger in their home country. But heck, we sure won't let them into the United States!” They’re good enough for Albania, but not for us: a nice slap in the face to the Albanians.

Maybe the exonerated detainees don’t want to live in the United States. Maybe their all-expenses-paid tropical holiday in Gitmo has not exactly endeared the United States to them. Maybe, just maybe, they want to be as far from the United States as possible. But we owe them the right of refusal.
Posted 1:23 PM by David Luban [link] (28) comments

False confessions without Torture

Ian Ayres

At first, we might think that no rational person would ever confess to a crime she did not comit.

People might confess if they were beaten or inhumanely interrogated. Irrational people might be tricked into confessing. But there seems to be no place in the rational actor model for false confessions.

The granddaddy of all games, however, suggests that rational people might confess to crimes that they did not commit. The prisoner's dilema is at core a story of how prisoner's may be induced to confess -- irrespective of whether or not they are guilty. If you face a high enough prospect of conviction if an alleged codefendant finks, and if you will be given a lower sentence if you confess first, it can be entirely rational to falsely confess.

So here's a testable hypothesis -- a disproportionate number of false confessions will occur when the confessing defendant is alleged to have a codefendant. Indeed a cursory review I did a few years back of cases posted at The Innocence Project suggest that this might in fact be the case.

You can find more information of the tragedy of wrongful convictions at either of these blogs: www.truthaboutfalseconfessions.com (operated by Alan Hirsch) or http://blog.law.northwestern.edu/bluhm/false_confessions (operated by Steve Drizin).
Posted 9:05 AM by Ian Ayres [link] (5) comments

A Day Without Immigrants

Guest Blogger

Cristina Rodriguez

Across the country yesterday, unauthorized immigrants and their allies held a boycott. Early estimates suggest that nearly one million people stayed home from work and school. The soundtrack for the event included Nuestro Himno, a Spanish-language version of the Star Spangled Banner accented by Latin American rhythms and instrumentation. This adaptation of a cherished symbol of American identity, intended by its producers at the New York-based Urban Box Office as an expression of patriotism, did not impress all observers. Yesterday, Lamar Alexander introduced a resolution in the Senate insisting that the anthem be sung in English. . When asked about the translated anthem during last Friday's Rose Garden press conference, President Bush declared: "I think people who want to be a citizen of this country ought to learn English and they ought to learn to sing the national anthem in English."

President Bush has one thing right about what has been happening. Events like the boycott and the rallies held in April underscore immigrants' desire to be considered Americans. These events highlight the considerable roles immigrants (in particular unauthorized immigrants) play in the life of the nation-the fact that immigrants already belong to our communities. The demonstrations also constitute a loud call to Congress not to criminalize unauthorized status and to provide unauthorized immigrants with a path to American citizenship-a path to permanent belonging. The Spanish-language anthem, which will appear on an album exploring the immigrant experience called "Somos Americanos," symbolically expresses this desire to belong.

But the President was off-base in suggesting that singing the national anthem in Spanish diminishes its value, or undermines the anthem's celebration of American identity and unity. Behind the President's statement and the other condemnations of the Spanish-language translation lurks a fear of disloyalty, or the suspicion that translating the symbols of American citizenship implies their rejection. But in the debate over immigration reform, it is crucial to keep one very simple premise in mind. Acts like the translation of the national anthem into Spanish are not rejections of the English language or of American culture. Immigrants, probably without exception, hope to learn and expect their children to learn English. An either/or mentality with respect to language usage has a vise-like grip on American thinking, but learning and using English need not be synonymous with forgetting Spanish, or reserving its use only for private occasions.

In fact, the controversy over the anthem highlights how Spanish-language usage can help inculcate the values of citizenship. The idea of translating the anthem arose when organizers of a rally in the Washington area began distributing the English-language lyrics with phonetic pronunciation guides for demonstrators who did not speak English. For many marchers, then, the translated version transformed a meaningless repetition into an actual engagement with the content of the anthem. More broadly, the Spanish-language media and the use of culturally familiar modes of discourse have helped make the organizational feats of the last month possible, simply by spreading the word. The demonstrations have raised political consciousness, fostered community solidarity, given individuals agency, and inspired peaceful petitioning of government-all important values of citizenship. Ultimately, the demonstrators' chants of "sí, se puede" and the translation of the anthem give immigrants and their allies a personal and meaningful way of expressing their belonging in public life. Far from being a rejection of assimilation, these uses of the Spanish language convey the desire to be seen as full members of American society.

The fact that expressions of belonging sometimes take shape through the Spanish language-in some cases out of necessity, in other cases as the result of preference-underscores another simple point about the process of assimilation. It is a two-way phenomenon. It requires not only the adjustment of the immigrant population to the customs and traditions of the dominant society, but also the adjustment of the dominant society to the realities of the immigrant population. This dimension of assimilation is part of what makes immigration seem culturally destabilizing to some, but without openness to change and willingness to adapt to new circumstances, no society can remain economically and culturally vital.

Posted 10:35 AM by Guest Blogger [link] (66) comments

President Bush: "It's Not Law Unless I Say So (And Even If I Said So)"

JB

Today, May the 1st, is Law Day, celebrating the Rule of Law, which, under this Administration, has been honored more in the breach than the observance. Indeed, this article by Charlie Savage in the Boston Globe points out that

President Bush has quietly claimed the authority to disobey more than 750 laws enacted since he took office, asserting that he has the power to set aside any statute passed by Congress when it conflicts with his interpretation of the Constitution. Among the laws Bush said he can ignore are military rules and regulations, affirmative-action provisions, requirements that Congress be told about immigration services problems, ''whistle-blower" protections for nuclear regulatory officials, and safeguards against political interference in federally funded research.

Savage is pointing to one of the effects of the explosion of Presidential signing statements under the Bush Presidency: Bush's decision-- instead of vetoing legislation-- to state that certain parts of laws that he signs are unconstitutional and will not be enforced or will be applied in very limited ways. One effect of this policy, as I've described here, is that the President may be directing his subordinates to refuse to enforce a wide variety of federal laws in secret, with little or no public accountability, and with no effective way for the courts or Congress to hold him to his duties to enforce the law and "take care that the laws be faithfully executed" under the Constitution.

A second important effect of Bush's policy is that he doesn't have to take the political heat for vetoing statutes that he believes are unconstitutional or unconstitutionally overbroad. Indeed, he has not yet vetoed a single bill sent to him by Congress.

The irony is that, at least in the early years of the Republic, the only time that Presidents tended to use their power of veto was when they believed that a law was unconstitutional. Bush's decision *never* to veto any bills he believes are unconstitutional is in some tension with his duties under the Constitution, at least if his views about unconstitutionality are in good faith. Surely Presidents shouldn't be required to veto every bill that passes their desk that has a constitutional difficulty, especially if the problem is a relatively minor part of a major piece of legislation. However, it is hard to argue that none of the 750 bills he claims are unconstitutional don't deserve a veto if he is serious about the constitutional claims he is making. One suspects that the President is primarily interested in escaping accountability for executive actions rather than having courts determine the constitutionality of provisions the President objects to; this is especially the case in the area of foreign relations, prisoner detention and prisoner interrogation. The Bush Administration didn't want Congress regulating how the it treated prisoners, regarding any such interventions as unconstitutional; at the same time, it didn't want the courts deciding the question of constitutionality either. It simply wanted to be free of legal obligations or responsibilities in this area other than those that it choose for itself.

Bush is not the first President to try this strategy, but he has taken it to new extremes, making it a regular part of his relationship to law, as Savage details in his article. Making this a regular and pervasive practice is constitutionally worrisome, because it allows the President to escape responsibility for enforcing laws that he himself signs into law based on what may be unreasonable claims about constitutionality which are devised primarily to increase his own power. It allows the President to gain many of the advantages of the veto without incurring the political disadvantages, and it allows him, by riddling bills with exceptions in how he will enforce them, to produce what is in effect legislation that Congress never passed. In this way, Bush does an end run around the logic of separation of powers, one of whose central purposes, it should be pointed out, is to restrain the arbitrary exercise of power.

Bush has already adopted President Nixon's view that if the President authorizes something, it isn't illegal, despite what the text of the law says. Now Bush has taken the converse position that if the President doesn't agree with legislation, even legislation that he signs, it isn't law. Together, these two attitudes are deeply corrosive of the Rule of Law and move us down the path to a dictatorial conception of Presidential power-- that is, the conception that the President on his own may dictate what is and what is not law, rather than the President merely being the person in constitutional system entrusted with faithful implementation and enforcement of the law.

Posted 6:53 AM by JB [link] (16) comments

West Wing and the Constitution (II)

Sandy Levinson

Tonight's West Wing lesson in constitutional structure involved choosing a new vice president following the unanticipated death of Leo McGarity. The upstanding president elect refuses simply to "order" the 272 Democratic electors to vote for his choice, the Democratic governor of Pennsylvania, because this would in fact be undemocratic. He will, therefore, apparently wait until after his inauguration to formally nominate him and, therefore, subject him to confirmation by the House and the Senate, as was the case with Gerald Ford and then Nelson Rockefeller. On the other hand, he fears that Republican senators, who hold a majority, will refuse to confirm Baker, not least because he is already the front runner for 2012. So it appears that Santos will not only be inaugurated without there being a vice president, but also that the office might be vacant for at least sesveral weeks, assuming that the Republicans eventually submit to public pressure. Since the House is now Democratic, the person next in line is the Speaker, but an earlier program gave no reason to believe that the new Speaker is remotely fit to be president.

So is this just another stupidity of the Constitution? And, if so, what precisely is the stupidity? Is it having a vice president at all? David Currie, among others, believes that the basic mistake in 1803 (when the 12th Amendment was added to the Constitution to prevent another fiasco like 1800) was retaining the vice presidency at all. Most countries, even with presidential systems, seem able to do without one. (There's a marvelous interview with Carlos Fuentes in today's Times Magazine explaining why Mexico has no vice president.) Or is it that a partisan House or Senate would indeed try to deprive the President of his/her choice? But why SHOULD a president simply be able to pick by fiat his/her successor, unless we do indeed treat the president as a quasi-monarch? Imagine that Dick Chency indeed leaves office, and that Bush decides that the best replacement is Donald Rumsfeld. (Even I can't imagine that he would be so incredibly stupid, but it's my hypothetical.) Surely the Democrats would be under no duty to say "well, it's his choice." We would surely expect them to filibuster on the altogether correct grounds that he is unfit to be President (unlike, say, John McCain).

There would be no need for this discussion were it not for the sad and untimely death of John Spencer, a fine actor who is much missed. And I fear that the replacement for West Wing will not be the only program on TV that has actually integrated into its story line a number of obscure, but highly important, issues of constitutional structure.
Posted 12:22 AM by Sandy Levinson [link] (32) comments