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Emily, apart from what you think of Chief Justice Roberts, what do you think of the current role of the Supreme Court in American society as a whole?
It seems to me that the Supreme Court today has a smaller role in shaping the public policy agenda of the United States than it has had in recent memory. The court takes very few cases. For the most part, it takes cases only when lower courts disagree on the preexisting state of the law. And its decisions have tended to be really narrow: Even opinions that play out rhetorical battles have tended to have relatively small stakes. The court clearly has a role—no one disagrees with that—and of course there is disagreement as to what that role should be in hotly contested cases. But in general that role is a modest one, and the level of disagreement is small beans.
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Over at Slate's "Breakfast Table," Walter Dellinger and Jack Goldsmith have credited the composition of the docket for explaining why, for a time this term, the court looked like it had gone moderate on us and forgotten its 5-4 habits. (Give Tom Goldstein points for predicting much of this back in September.) Now that the term is over, of course, we know that it ended in familiar 5-4 fashion in the big-bang cases (Gitmo, child rape, guns). We know from the stat masters at Scotusblog that 17 percent of cases split 5-4 this year—a lot less than last year, which is the outlier at 33 percent, and between somewhat and a bit less than the previous several terms. After Scotusblog factored in the rarity of 9-0 decisions, it called this term "the most divided in recent history.”
That may not be how most of us will remember it, but in the NYT, Linda Greenhouse makes the same point in singling out as the term’s main theme the enduring influence of Justice Kennedy. Jeffrey Rosen, on the other hand, in TNR sees the term as a lesson in division minimized and writes another love letter to Chief Justice John Roberts in which he calls my much more skeptical judgment of Roberts “premature.” I do give Roberts props for a vote this term—he was in the majority in the 7-2 decision that found a right to sue for retaliation in the Reconstruction-era law written to give former slaves equal rights to make contracts. In that case, Roberts went with precedent over textualist upheaval. But one vote doesn’t a uniter make; in the biggest rulings of the term, Roberts was on his usual side of the ideological split. My feeling about the chief justice continues to be that he’s powerful precisely because he’s smoother than Scalia and Thomas. He doesn’t alienate his colleagues with inflammatory rhetoric like Scalia or bulldoze precedent like Scalia and Thomas. He is more careful. That means he’ll need more time to bring about major shifts in the law, on some fronts, but his votes continue to suggest that he will move the court to the right when he can. I still don’t see the case for supporting Roberts’ nomination and opposing Alito’s, or simply for heralding Roberts as a bullet that liberals dodged, as Rosen puts it. He sees Roberts’ narrow opinion writing as “the only thing standing between them and a Court eager to roll back progressive reforms.” Isn’t there more evidence, again this term, for that thing being Justice Kennedy?
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Revolutionary ideologies always look good until they prevail; then their latent seeds of destruction sprout and conflagrate. Such is the case with originalism, and Heller provides an opportunity to see this process in action. To see why, imagine that, to the surprise of everyone, Clarence Thomas retires from the court next year and President Obama replaces him with a moderately liberal lawyer whom I will call X. In X's first term, another Second Amendment case reaches the Supreme Court. X reads the majority and dissenting opinions of Heller and decides that Justice Stevens' dissent makes the better originalist case. He writes a new majority opinion that adopts Stevens' dissent and overturns Heller.
What is the Heller-supporting originalist to say about this behavior? He can argue until blue in his face that Scalia was right and Stevens was wrong, but Stevens' account was plausible enough to obtain the support of three other justices and various knowledgeable commentators. What he can't plausibly argue is that X should have respected the Heller precedent. After all, if originalism means anything, it must be that precedents should be given no, or little, weight. This idea is the source of originalism's power and radical nature, but it also ensures that originalist opinions will, as precedents themselves, be short-lived. And because the constitutional text is ambiguous and the contemporary setting is remote from our understanding, it will always be as easy for liberals as for conservatives to generate whatever results they want in the originalist idiom, which guarantees that the triumph of originalism, if that is what Heller represents, will have no particular political implications for American government that cannot be traced to the ideological leanings of whoever happens to sit on the Supreme Court. Policy and political judgments will continue as before muffled underneath a new blanket of rhetoric. That faint sound you hear is laughter echoing in the tombs of the legal realists.
Justice Scalia, aware of this problem, calls himself a "faint-hearted" originalist and acknowledges that certain precedents must be obeyed. But which? Why should his Heller opinion constrain a future liberal justice who thinks that its originalist interpretation is wrong? If the answer is that this justice should follow it just because Scalia was there first, then it is inevitable that, as precedents reflecting good-faith but erroneous interpretations of original sources or bad-faith manipulations of them pile up, doctrine will eventually diverge from origin, and originalism will become moot. If the answer is that he shouldn't, then precedents will last only as long as the current majority on the Supreme Court, and the Heller precedent, too. Either way, originalism cannot last.
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Justice Samuel Alito, for example, who blew a cool $500 million for his fellow Exxon shareholders—at least, if conventional wisdom is correct that Alito would have broken a 4-4 tie and deprived the Exxon plaintiffs of punitive damages if he had not recused himself because of his Exxon stock holdings. You would think there would be room for a bargain here. Exxon should have paid Alito a small sum of money—say, $1 million—to sell his stock, so that Alito could have cast a vote for Exxon without violating the code of judicial ethics. After all, Exxon would not be paying Alito to vote for Exxon; it would be paying Alito to cast an impartial vote after shedding his Exxon stock and thus his pecuniary interest in an Exxon victory. The plaintiffs would lose their punitive damages, of course, but they cannot reasonably argue that their case be heard by eight impartial justices rather than nine. Aside from the plaintiffs, there would be gains all around. Alito's paltry salary would be supplemented, Exxon's shareholders would be up $499 million, and the public's interest in the impartial adjudication of legal disputes by the nation's highest court would be served.
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Jack—You really should not be required to repeat yourself, and so I apoligize for making you go through it all again. But at last, I get it! It's not the justices who are acting strategically, only the presidents who appoints them. Once they appoint them, justices do as they do. Which is why Reagan appointed Kennedy—he knew he passed the reverse litmus test on Roe. The theory is working great. After all, a nonstratgegic Republican president would have appointed someone like Scalia. Or, even dumber, Bork! Oh, wait ... OK, maybe Reagan's not such a strategic figure. It's not like Bush pere would have appointed someone who thinks Roe should be overruled, like, say, Clarence Thomas. Oh, wait, again ...
It's a problem for a theory, I think, when neither of the actors in a position to act in accord with it (that is, the presidents or the justices) seem to be ... reliably acting in accord with it. And while the Roe right in some form thus far survives, some think that has more to do with the Senate refusing to do what the prez wanted (see Bork above) than with the prez faking everybody out.
But why should we care about this debate? One reason might be that it would warn supporters of the Roe right from taking false comfort in the political-calculation theory's prediction that it will survive a long line of Republican administrations—just as it would encourage Roe's opponents to take heart!
In short, it's my contention that elections matter more for constitutional development than, paradoxically, for the super-sophisticated theory of electoral-jurisprudence theory (with its assumption of canny presidents—and maybe even justices—always seeking out some clever equilibrium) indicates.
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At least one leading conservative believes the court fell down on the job in Heller if it views its job as making decisions in ways that create political debates sure to help Republicans, adding further support for my view that the claims by some that the court's approach to Roe (bend it, don't break it) thus far is best explained by a desire to keep that precedent alive for the purpose of ensuring Democrats lose. Jack?
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"Democracy dies behind closed doors," Judge Damon Keith wrote in an opinion for the 6th Circuit Court of Appeals regarding media and public access to terrorism cases.
Our theory of government also dies in hearings like this one, featuring David Addington and John Yoo—memorably described by Dana Milbank and Emily Bazelon in a pair of columns for the Post and Slate, respectively. Calling Addington and Yoo hostile witnesses doesn't begin to describe the level of their contempt for Congress, the hearing, and the democratic processes that brought them to testify by way of a subpoena.
Check out this exchange:
Could the president ever be justified in breaking the law? "I'm not going to answer a legal opinion on every imaginable set of facts any human being could think of," Addington growled. Did he consult Congress when interpreting torture laws? "That's irrelevant," he barked. Would it be legal to torture a detainee's child? "I'm not here to render legal advice to your committee," he snarled. "You do have attorneys of your own."
He had the grace of Gollum as he quarreled with his questioners. In response to one of the chairman's questions, he neither looked up nor spoke before finishing a note he was writing to himself. When Rep. Debbie Wasserman Schultz, D-Fla., questioned his failure to remember conversations about interrogation techniques, he only looked at her and asked: "Is there a question pending, ma'am?" Finally, at the end of the hearing, Addington was asked whether he would meet privately to discuss classified matters. "You have my number," he said. "If you issue a subpoena, we'll go through this again."
Crikey. No wonder they kept Addington in the shadows; public advocacy is clearly not his gig.
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If I had to describe the major theme of the October 2007 term, it would be the court as a minimalist court with no surprises. There were no major revolutions this term. Even the big cases were narrow and interstitial. The court mostly took baby steps. It may not seem that way this week, with big cases like Boumediene, Heller, and Kennedy v. Louisiana. But step back a bit. Even these big cases were actually really narrow. Boumediene went where the court very strongly hinted it was going in Rasul v. Bush back in 2004: The court's reasoning was limited to the few hundred detainees at Guantanamo Bay and did not order anyone's release. Kennedy v. Louisiana filled in a detail hinted at in Coker v. Georgia. The court's opinion deals only with child-rape capital cases, of which Kennedy's own case was (as far as I know) the only conviction. And Heller establishes an individual right without answering the degree of scrutiny or incorporation, and while indicating that traditional gun-control laws are all constitutional. This isn't to say that there were no important cases this term. But on a historical scale, the 2007 term is revealing a minimalist court: It intervenes rarely, doesn't say much when it speaks, and leaves most battles for another day.
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C'mon, Orin, you don't give us enough credit with your non-Volokh post. There are plenty of truck-ownin', tobacco-usin', gun-shootin' folks here at Slate. Admittedly, we're a bit of a discrete and insular minority within the Slate family, but I don't think your Heller discussions are unwelcome here.
I'm going through the opinion now, and one thing that leaped out at me was the limiting language that Justice Antonin Scalia chose to use in his opinion. He carves out two very important limitations on the Second Amendment right—so big that they encompass nearly all gun control in existence today, save those most extreme bans like that in DC:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. ... Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” [cites omitted]
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
So, if I understand this right, Scalia's got no beef with "felon in possession" statutes like those at the heart of the Justice Department's Project Safe Neighborhoods strategy. And he's got no beef with states banning assault rifles, machine guns, rocket-propelled grenades, and other instruments of violence that are firearms but may be just a tad bit dangerous for you or me to keep and bear. And I think Scalia's also cool with background checks, registration, and waiting periods If I'm adding up the scorecard right, that means most federal, state, and local gun control in America survives Heller.
What do you think?
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In case some readers here may have tried to visit the Volokh Conspiracy today, we're, um, having problems due to incoming traffic. The site is not letting any of us bloggers log in to post, so although we have a ton of posts we want to write about Heller, we can't actually log in. I may post some stuff here instead, although posting on a Second Amendment case here at Slate instead of at Volokh is kinda like talking about adjusting your carburetor in a Harvard Square bookstore instead of in a sports bar.
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Adam, do you mean to tell me I still can't hunt in Rock Creek Park? And I can't go on homosexual romps there, either? What's the point of having a Constitution if it's not going to give me any rights? So, fine, if I run down a deer, I'm keeping my venison for myself. Scalia can't have any. Neither can you.
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Yesterday, in Giles v. California, Justice Scalia, true to the originalist method, kept to the text of the Constitution and enforced the Confrontation Clause for the benefit of a criminal defendant complaining that his conviction was wrongful because he did not have the ability to cross-examine the out of court testimony of his girl-friend about the defendant's pattern of violent abuse by reason of the fact that, well, he killed her.
Powerful concerns about domestic violence argued to let the testimony into court in Giles, but the Justice held fast even as he was sympathetic to the need to address domestic abuse. The words of the Constitution matter, he said in Giles, and "It is not the role of courts to extrapolate from the words of the Sixth Amendment to the values behind it, and then to enforce its guarantees only to the extent they serve (in the courts' views) those underlying values. The Sixth Amendment seeks fairness indeed -- but seeks it through very specific means (one of which is confrontation) that were the trial rights of Englishmen."
Giles is hard to explain to the average citizen, but it's principled.
Today, Justice Scalia takes the Second Amendment which so unmistakeably by text and context -- not to mention legions of lower court precedent -- protects the right of the people in the States to maintain a well-regulated militia, as against the threat of tyranny represented by a standing army and Congress' Article I power over militias, and by various linguistic tortures, switches round the phraseology until the Amendment advances the contemporary interest of those citizens who favor possessing arms for self-defense within the home. As a matter of human liberty, the right found by Justice Scalia may well advance the values lying behind the words of the Constitution in 2008, they just aren't the Constitution as it was originally understood.
More than once, I have enjoyed the lectures of the erudite and witty Justice Scalia on the importance and legitimacy of original understanding and fidelity thereto. I just hope Justice Stevens is up to carrying on the lecture tour.
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But if you really do want to go hunting, Rosa, I hope your first kill is the deer that ran out in front of my truck in the Northern Virginia suburbs on Sunday!
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Now, Rosa, before we get all indignant or sarcastic (and I certainly hope you were being sarcastic), let's not allow ourselves to fall prey to exaggerated readings of today's gun decision. For example, let's not overlook Pages 54-55 of the court's opinion:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ... Although we do not undertake anexhaustive historical analysis today of the full scope of theSecond Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
There a lot to digest in these lengthy opinions. (And I certainly won't get through them anytime soon, at least not during working hours.) But to suggest that this case opens the door to hunting in Rock Creek Park is a bit like suggesting that Lawrence v. Texas legalized homosexual romps in Rock Creek Park. Let's all agree to take a few deep breaths before we go around the bend.
And besides, there are more important decision to attend to, like Morgan Stanley ...
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... in Rock Creek Park! At last! (See the Supreme Court's decision in District of Columbia v. Heller, striking down the D.C. ban on handguns.) When I bag my first D.C. deer with my handgun, I will send a shoulder of venison to Justice Scalia in grateful admiration. If I manage to take out any muggers—or bystanders caught in the crossfire—I will send him their carcasses as well.
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I spent an hour yesterday debating Boumediene with David Frum on Bloggingheads TV. As is always the case in these debates, we finished and then I thought of all the things I forgot to say. Maybe some of you will go watch the "diavlog" and add to the debate yourselves. (I'm talking to you, Marty Lederman!)
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Phil, we agree that there is a place for law in war, and the reasons you give are excellent ones; but there are a series of complicated line-drawing puzzles, and I'd like to hear where you draw the lines. Let's consider two cases:
1. a) A tank commander must decide whether to fire into a mosque where enemy soldiers have taken cover. Or b) an Air Force officer must decide whether to order an air strike against an al-Qaida safe house in a crowded neighborhood in Baghdad.
2. a) A squad of American soldiers must decide whether to detain an Afghan villager who local witnesses say has transferred weapons to al-Qaida fighters. b) Months later, military officials must decide whether to release this person or continue to hold him.
Both sets of decisions are governed by international and domestic law—and I don't dispute the claim that it may well be in the interests of the United States to comply with international law (though I think this claim is more complicated than others do).
Let's now compare case 1b and 2b. As I understand it, currently the military vets bombing targets with military lawyers. Do you agree that this is a sensible practice? If so, why not use military judges rather than military lawyers? Wouldn't judges be more credible? And then why not civilian judges rather than military judges? Wouldn't civilian judges have more credibility still (and, according to Deborah, wouldn't they do a better job because they are so good with facts and law)? Now let me ask this question from the other direction. If you think that civilian judges should review the detention decision in case 2b, why not have civilian judges involved in the bombing decision of 1b (or civilian federal magistrates, if you want, who could issue kill warrants in the same way that they currently issue search warrants)?
Let's return to 1a and 2a. If we think civilian judges should be involved in cases 1b and 2b, or even just 2b, why not have them involved in the two (a) cases? True, we wouldn't expect them to ride on the tanks or set up shop at air bases. But we could easily have them review the cases after the fact. Indeed, a soldier who blows up a mosque for no reason or for a bad reason could be tried by a military judge for violating the laws of war. But if we prefer to have civilian judges review detention decisions, why not have a civilian judge conduct the trial of the soldier who destroys the mosque? After all, we don't trust the military, do we? Isn't this distrust of the military, or at least of the executive that controls it, the entire basis of Boumediene?* Why not require that targeting decisions—of all kinds, even at the rifle level—be reviewed by civilian judges after the fact, allowing the civilian judges to convict soldiers of violations of the law of war or domestic law?
And, as my air-strike example is supposed to illustrate, I think the distinction between operational and post hoc breaks down. If I am a soldier and I know that I can be put in jail for blowing up a mosque, then I will want operational legal advice for ambiguous cases, even if I don't need a warrant. The Army currently supplies operational advice to air commanders but not to tank commanders. Why does this make sense, exactly? Or does it?
Now, one could make the "this is a new kind of war" or "this is not a war at all" argument, and say that the United States can't detain people without civilian-judge level due process, indefinitely, in a nontraditional war with no foreseeable end without destroying its reputation for caring about the rule of law. But if this argument is correct, it applies equally to the targeting decision. It is, after all, even worse to drop bombs on houses and blow up mosques than to detain people indefinitely, and so if civilian judges are necessary to establish credibility for detentions, then they should be necessary to establish credibility for targeting. The arguments that various people have made in favor of Boumediene's result does not offer any principled basis for giving military judges or lawyers any role at all, in any type of "military" decision in our current nontraditional quasi-war, except to the extent where logistics require an on-site, in the midst-of-hostilities legal determination, and even then subsequent civilian judicial oversight should remain available after the fact.
Perhaps your view is that civilian judges can handle military detentions because they handle civilian detentions all the time. But civilian judges also handle civilian killings all the time (for example, police killings). The relevant consideration is not the act itself but the reasons for it: Can civilian judges handle military judgments as to the necessity of detaining one person and killing another? Does their experience with law enforcement prepare them to evaluate the political and national security reasons for detaining one person and killing another?
*Correction, June 25, 2008: This post originally misspelled Boumediene. Apologies to those who thought that the post concerned the former president of Algeria.
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Eric, your last post regarding judges on tanks made me chuckle. In my mind's eye, I pictured one of the judges I know (or maybe Convictions' own Judge Nancy Gertner) sitting in the loader's seat of an M1A2 Abrams tank, riding along next to the tank commander, offering targeting and other advice while in combat. Of course, it's a silly image for many reasons, not least because those flowing black robes just wouldn't work well inside of a tank.
Seriously, though, your argument is something I hear a lot from lawyers and scholars who criticize the role of law and lawyers in war (and I consider you to be one of the most thoughtful and sophisticated critics in this area). The argument goes that if we let law run amok, then we will soon force our soldiers at the very tip of the spear to consult lawyers before they squeeze the trigger. As you rightly point out, this just won't work. Decisions in combat must often be made in an instant, under very difficult and stressful conditions, with life or death consequences. There is little room for legal consultation.
But that is not to say that there's no role for law in combat, nor in post-combat decisions such as whether to hold a particular detainee. Law plays an incredibly important and valuable role in warfare—especially the kinds of wars we are fighting in Iraq and Afghanistan, what retired British Gen. Sir Rupert Smith calls "wars amongst the people." In this kind of conflict, the people are the prize. Law plays a key role by conferring legitimacy on military operations, helping to earn the support of the people. By accepting legal restraints on combat operations, commanders enhance their effectiveness, even while limiting what they can do with force. It's a counterintuitive lesson, particularly for those steeped in realpolitik where power matters above all else. But it is an important strategic concept recently codified in the military's new counterinsurgency manual and proven in Iraq and Afghanistan every day.
But I don't think the argument is over operational decisions, Eric. The argument here is whether we should allow judges to participate in post hoc combat decision-making: weighing the evidence against particular detainees and deciding whether their detention is lawful. And here we differ. I think this is precisely what judges do, and what the judicial institution is most competent to do, and what all its rules and procedures are designed to do. Of course, this will have some effect on military operations, just as judicial decisions affect what cops do in the field. But on balance, I think those effects will be positive, given the important role that law now plays in war.
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Suppose that we simplify the court's Eighth Amendment jurisprudence greatly and pretend that a "national consensus" against a certain type of punishment exists when 10 states or fewer authorize that punishment and not otherwise; and that when a national consensus against a punishment comes into existence, the courts will strike down that punishment in any remaining state that continues to use it or any state that introduces it.
This rule acts as a ratchet. When a punishment falls to the 10-state threshold, it ceases to be permissible. If people in the various states change their minds and come to believe that the punishment is justified, legislatures will not be able to enact the punishment without violating the Constitution. It seems likely that they will therefore not bother, and so a new consensus in the other direction cannot get started. Perhaps, in the rare instances when a national consensus will develop quickly, dozens of states will enact the law even though it violates the Constitution, and courts will recognize a change in the consensus. But this is likely to be rare, and it loads the dice against national consensuses developing in favor of harsher punishments.
If the Eighth Amendment is just about national consensus or some such thing, why can't a consensus emerge in favor of a punishment that previously had been barred? The dissent in Kennedy v. Louisiana makes this argument, which is acknowledged but rejected (without any attempt at justification, as far as I can tell) by the majority.
Is there any justification in political, constitutional, or moral theory for such a ratchet? I don't see one. There is an old, simple-minded Whig view that human history reflects progressive moral development, and perhaps the idea is that courts can prevent temporary backsliding caused by public overreaction to ephemeral events—and such rhetoric about society "maturing" can be found in Justice Kennedy's majority opinion. But this view took a hit in the 1930s and has never recovered. And even if it were correct, a society might "mature" by introducing new harsh punishments against behavior—such as spousal and child abuse, or, say, honor killings of daughters—that earlier generations found unobjectionable. Current Eighth Amendment jurisprudence, or at least the logic behind it, would block such moral evolution.
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Since we may have a few more minutes before the big news from the last days of the Supreme Court term, I had probably better offer at least a brief response to Eric's last post. As much as I love the imagery of Scalia astride a tank, that's of course not particularly what I was saying.
But as I am generally a fan of the idea of agency expertise, let me pick up on that point. In the administrative-law context, it might not be too overly broad to say that courts "defer" to an extent to some kinds of executive-agency decisions for two main reasons: (1) because agencies indeed often have invaluable expertise, and more critical here (2) because the agency has followed a meaningful, credible (not to mention highly regulated) process consistent with the Constitution and laws. For reasons the Boumediene decision describes, an agency process like the CSRTs wasn't worthy of any kind of deference. This case was made perhaps most powerfully by all of the military experts who told the court, the press, and anyone else they could find that the process should not be trusted.
The far more disturbing part of Eric's post, though, is this: "[N]o one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance." This isn't a statement about the relative competence of different institutions. It's a statement, at least as I read it, that there are a set of things the U.S. government has to do that simply can't be described, defined, or constrained by the rule of law. If that's a fair account of the point, Eric, we'll just have to agree to disagree.
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Dr. Jim Dobson is a likeable man of wit and intelligence whom I have long admired for his support for the family.
Recently, however, he—and his national political director, Tom Minnery—undertook on Dobson's nationally syndicated radio program to engage in a hypercritical distortion of an influential and powerful presentation on faith (a "Call to Renewal") by Sen. Obama in 2006.
The radio criticism of Obama has a number of facets to it: Dr. Dobson apparently believes the United States is a Christian nation rather than a nation of many faiths. Historically and today, there are indeed more Christians in America than believers from other faith traditions, but what follows from this? Sen. Obama would suggest respect and appreciation for the influence of Christianity while also appreciating that there are people of other faiths, and of no faith, who are not to be treated as second-class citizens. Surely Dr. Dobson agrees, right? So what's the point?
Sen. Obama also quoted a number of Old and New Testament passages, including some dietary laws that governed the Israelites (like not eating shellfish) to make the obvious point that even if one strictly followed this dietary restriction as a matter of faith in one's own life, it could not simply be codified to bind people of other faith traditions—at least not without majority approval and a lot of angry shellfish eaters.
Dr. Dobson thinks this mocks the Bible, but it is merely underscoring that we have an obligation in the public square to speak in universal or accessible terms.
Obama also said Jesus' Sermon on the Mount is "a passage that is so radical that it's doubtful that our own Defense Department would survive its application." OK, I guess we could ask whether or not Jesus would think the purveyors of preemptive war to be "peacemakers," but again Dr. Dobson's point is more than a little obscure. And to assert that Obama "is dragging biblical understanding through the gutter," more than a little absurd.
Dr. Dobson also attacks Obama for his support for abortion rights. Like Dobson, I disagree with Sen. Obama here as well. But Dobson has mischaracterized the senator's view. Obama believes the woman herself must decide the abortion question. The senator acknowledges the decision to be a "profoundly moral one" and one he would advise a mother to make in favor of life and only after talking with her clergyman. In a meeting with me and other faith leaders a week or so ago, the senator reiterated that he is not "pro-abortion," and that he wants to "discourage" the practice by encouraging personal responsibility as well as enhancing adoption and comprehensive education that would reduce the number of unwanted pregnancies.
Could the senator do more? Sure, and he is open to reasoned argument. Dr. Dobson should make one. The senator's point: All of us as we speak across religious lines need arguments beyond what we accept as doctrinal teaching in our particular faith tradition. How Dr. Dobson misinterprets this to suggest that either Dobson or my religious view would be excluded from the public debate or that "we have no right to fight for what we believe" is a mystery.
There is nothing in Sen. Obama's speech to suggest any denigration of faith generally, Christianity specifically, or Dr. Dobson personally. Far from it. Indeed, the tone, content, and purpose of the speech were all quite the opposite and obviously so.
In Sen. Obama's speeches, it's not surprising to hear references to Lincoln and Martin Luther King and Frederick Douglass. Sen. Obama regularly touches my Catholic soul as well by showing a genuine knowledge of the work of Dorothy Day. In this, Obama tells his audiences that it is an "absurdity" to insist that morality be kept separate from public policy.
Don't misunderstand. Sen. Obama is not the equivalent of a televangelist, nor should he be. Having urged his liberal colleagues to see how much of American life is grounded in the Judeo-Christian tradition, Sen. Obama makes a request of conservatives like myself—namely, try to fully understand the liberal perspective on the separation of church and state. Not the infamous "wall of separation" that bizarrely mandates affirmative secularity disguised as neutrality, but the perspective, according to Obama, that separation more readily protects church from state than the opposite.
This sentiment, unlike the exclusionary view invented by the late Justice Hugo Black in the late 1940s, is as old and wise as Alexis de Tocqueville, who cautioned churches against aligning too closely with the state for fear of sacrificing "the future for the present." "By gaining a power to which it has no claim," Tocqueville observed, "[the church] risks its legitimate authority."
Sen. Obama's approach to faith is strong, but it is not exclusionary. He genuinely seeks to have his efforts bridge the religious and ideological divides on issues ranging from abortion to the importance of the American family to health care that respects the objections of conscientious religious believers to AIDS, climate change, and human rights.
Like all Americans, Dr. Dobson has every right to advocate public policy informed by his abiding Christian faith. I will be counting on him to continue to do so, but he will improve his chances of success by not pretending to lack the most basic understanding of democracy, which we all know he has, or by misreading and mischaracterizing the views of one of the country's most eloquent defenders of the importance of faith—maybe since George Washington opined that it was indispensable to the prosperity of the nation.
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Deborah thinks that federal judges are in a better position than military officials to determine whether a person who has been detained on the battlefield should be released or not:
For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or not, whether (for sentencing purposes) a detainee poses a likelihood of future dangerousness, whether a detainee is mentally competent to stand trial, may be a flight risk, likely poses a risk to himself or the community (for purposes of civil commitment), and whether and to what extent information they consider in all of this is probative or reliable.
Which is just to say that judges are capable of finding facts and applying the law. But the American legal system is shot through with institutions and doctrines that recognize that judges lack the competence to evaluate the decisions of specialized agencies that are charged with particular missions and that develop for that purpose qualified personnel, procedures, institutional memories, and all the other things that distinguish one institution from another. In such cases, judges defer. Judges defer to the fact-finding, policymaking, and legal interpretation of regulatory agencies, for example. They defer to the foreign policy judgments of the executive branch. And they have historically deferred to the judgments of the military—and no doubt will continue to do so, Boumediene or no Boumediene.
Orin thinks that the problem is one of fact-finding, but that is only one issue, and not the most important. The deeper problem is that no one has a clear idea about the appropriate degree of dangerousness—including the tolerable risk of dangerousness—that justifies continued detention, so that a legally enforceable rule could be stated in advance. This has to be determined in incremental fashion, as events unfold, and only the military, with political guidance, is capable of making this judgment—a judgment about policy, security policy in particular.
The relevant question is whether a particular detainee would, if released, pose further danger to soldiers, civilians, and others, such that the benefits of continued detention exceed the many costs—including the financial cost, diplomatic pressure from foreign countries, harm to America's reputation (if any), and the harm to the individual in question. The answer in particular cases will turn on the particular terror-making talents of the detainee in question, his leadership abilities, the depth of his radicalism, the type of country to which he is to be returned (including whether authorities can keep tabs on him), the military's current logistical capacities, the current overall threat level, and much more. Note that given all these costs of detention, the release of someone who turns out to be dangerous is not necessarily an error—the judgment that the military is incompetent because it has released people who have gone back to fight is too hasty.
In any event, weighing all these factors is in the nature of a discretionary, administrative task, like that of deciding when and where to drop a bomb; judges are in no position to answer them. (I doubt that Congress is capable of, or willing to, answer them either; it would require candor that is politically inexpedient and a degree of foresight that no one possesses.) If we were to accept the implicit worldview in Deborah's post, one that does not take seriously the distinction between the judiciary and other institutions other than insisting that judges are superior, we ought to sheath judges in Kevlar robes and mount them on tanks, where they could find facts, develop a common law of national security, and enjoin soldiers to hold fire until they make the proper demonstration that a potential target poses a military threat and that destroying it will not violate the laws of war.
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Deb, I had the late great James Vorenberg for criminal procedure. He was a wonderful teacher and mentor; I was sad that he passed away before I became a criminal-procedure professor myself. I'm not sure why you think the identity of my criminal-procedure professor back in law school might be relevant. But for what it's worth, I had Vorenberg.
On the substance, I understand your argument to be that judges are as good as anyone to decide such questions. That is, even if judges are going to have a hard time with such issues, no one else is likely to be better. To reach this conclusion, though, I would think we need to make two assumptions. The first assumption is that familiarity with a military campaign and expertise in intelligence operations does not create any institutional advantage in identifying who is a terrorist. That is, identifying terrorists is a general skill; a generalist judge with no background or experience is at no disadvantage relative to those with more subject matter expertise. Second, we need to assume that the expertise and abilities of the judiciary as a whole are shared by each individual member of the judiciary. In your post, you treat "the judges" as a collective entity and discuss what "judges" can do and have done. But individual determinations are not made by the judiciary as a whole but rather by individual judges of varied experience, intelligence, and temperament.
Are these assumptions two valid? I assume you believe so, but I am not so sure. In any event, now that Boumediene has given this job to the courts, I trust you and I both hope that judges will do the best job they can with the difficult task ahead. No matter how good or bad they are at the job, that job is now theirs.
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Orin, thanks. Your latest post helps me understand better why you think judges aren't well-suited to determining whether someone belongs somewhere like Gitmo. Unfortunately, now I disagree even more.
Your core argument seems to be that regular judges will be freaked out, scared off, or just generally flummoxed by the kind of evidence you think likely to be at issue in a Gitmo status decision, evidence you describe as "likely to be based on the impressions of agents about the reliability of third parties or fourth parties known years ago and not seen in ages, major parts of which will be classified." Let's take this in two steps. First, the "classified" part isn't obviously a problem for judges. Especially since 9/11 but well before that as well, judges have reviewed classified evidence regularly to determine whether it was properly classified and how (under the federal law passed in 1980 for just this purpose) it should be properly redacted or otherwise addressed for trial. Dealing with classified information can be tricky, but judges have nearly 30 years worth of experience doing just that.
As for the nature of the evidence itself, I don't know anyone—military or civilian—who knows exactly what to do with 6-year-old, four-witness-removed hearsay. (That's why the Army regulations in place in 2001, promulgated under those pesky Geneva Conventions, provided for administrative hearings that would be held on the battlefield as close to the actual events and witnesses as possible. Woulda coulda shoulda for Gitmo, I guess.) So I can see that given where we are now, there'll have to be some tough calls about whether and to what extent folks' recollections are to be credited. But the claim that deciding how to handle hearsay evidence of dubious reliability is unfamiliar to Article III judges? Guess we must have had different profs for criminal procedure.
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Via the Washington Post and the military's press shop in Baghdad, I learned this morning that the first military prosecution of a civilian contractor in Iraq has ended in a guilty plea. According to today's story:
Also Monday, the U.S. military announced that a Canadian man working as an interpreter for the U.S. military in Iraq was sentenced to five months of confinement after pleading guilty in the stabbing of a colleague in February.
The contractor, Alaa "Alex" Mohammad Ali, was the first civilian prosecuted since a 2006 amendment to the Uniform Code of Military Justice allowed the military to court-martial civilian contractors.
According to the military, Ali stabbed another contractor with a knife at a military facility on Feb. 23 near Hit, in western Iraq. A judge dropped the most serious charge filed against him, aggravated assault, after Ali agreed to plead guilty to obtaining a knife without permission, disposing of the weapon after the assault and lying to military investigators.
The prosecution marked the first time that the military's justice system was used to prosecute a civilian contractor on the battlefield since at least 1968. The change came about because of a 2006 amendment to the Uniform Code of Military Justice, inserted at the last minute by Sen. Lindsay Graham, which expanded the UCMJ's jurisdiction to cover civilians during "contingency operations" (like Iraq and Afghanistan) in addition to times of declared war.
The change generated a great deal of legal commentary and raised many thorny legal questions as to whether it was constitutional to apply military law to civilians. The best precedent on the matter is the Supreme Court's decision in Reid vs. Covert, in which the court strongly hinted in a footnote that it would bless such prosecutions in an area of active hostility. Add that to the Supreme Court's favorable view of military justice, as seen in the recent Guantanamo cases, and it's likely that this conviction would have been affirmed.
But, of course, this case ended in a plea bargain, so we likely won't get the chance to see any of those questions resolved on appeal. I predict that the military will continue to use its UCMJ authority to prosecute contractors—but only in those rare cases where both the Justice Department and local authorities refuse to act.
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Deborah asks an excellent question: "What is it in particular about Gitmo that courts can't handle?"
I don't expect judges to be very good at knowing who is or is not a terrorist because I doubt the evidence the government has resembles the kind of evidence judges are used to seeing. Judges are used to seeing particular kinds of evidence in particular kinds of hearings. They generally hear live testimony from live witnesses, evidence in sworn affidavits, and the like, and they apply familiar legal standards to the facts to reach a decision. Of course they make errors in those proceedings, but at least the type of evidence and the context is part of the familiar day-to-day experience of litigators and judges.
My sense is that the detainees were mostly seized in battle or were handed over based on hearsay by allied forces. In that setting, hard and clear evidence of the sort that judges are used to working with is likely to be relatively light, regardless of whether an individual is a hardened al-Qaida terrorist or just some unfortunate fellow who was in the wrong place at the wrong time. Instead, the evidence is likely to be based on the impressions of agents about the reliability of third parties or fourth parties known years ago and not seen in ages, major parts of which will be classified. Judges are smart people, but I would think that this evidence is likely to seem pretty foreign and unfamiliar to judges used to run-of-the-mill competency hearings, probable cause hearings, sentencings, and the like.
Now, one response would be that if the government doesn't have the kind of strong evidence that the law usually requires to hold a person, then the detainees should be released. And if the judges end up releasing bad people who were held on very weak evidence, then that is the executive's fault rather than the court's. Maybe that's right. But if it's right, it's an argument about what the standard of judicial review should be, not whether judicial review is likely to lead to the release of bad people.
To be clear, I'm not saying that I think the institutional competence question should govern the issue. As I see it, whether the writ extends is distinct from whether judges are good at this stuff: Scalia's point about American lives being lost may or may not be right, but it shouldn't be relevant to the question of whether the habeas writ must extend to Guantanamo (although presumably it will be relevant to the subsequent determination of the proper standard of review down the road).
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As I wrote a few weeks back, there are some pretty serious factual flaws in Justice Scalia's Boumediene rant. Is the 30 men "returned to the battlefield" one of them? Phil says yes. Orin says no. Eric says everyone makes mistakes, but the military makes less than the rest of us (more on that below).
We may well never know about these particular 30. On the face of it, there are plenty of reasons not to take a Pentagon claim to the 30-detainees effect at face value. DoD hasn't exactly established an unblemished record of credibility on detention matters. And the data DoD have released leaves one wondering. For example, among the 30 DoD says it's counting are the five Uighurs who were released to Albania—these are the ethnic Muslim Chinese detainees who couldn't be sent back to China given the high likelihood they'd be tortured there and were instead taken in by the Albanians. As best one can discern, their only post-release "offense" to date seems to be having talked (from the comfort of their Albanian U.N. refugee facility) to Tim Golden at the New York Times about their time at Gitmo. Asymmetric warfare, I take it. One could go on. Or just read more about it in places like here or here. In any case, as I thought the recent McClatchy study of released Gitmo detainees helped show, Eric, it does looks like at least some of the folks who left Gitmo and then worked against the United States were indeed radicalized there—so they weren't particularly going "back" to the "battlefield;" they were joining it for the first time.
Bigger picture, it seems to me Phil is right to point out that the military is the one who made the decision to let these particular guys out—presumably demonstrating that the existing detainee status-review process is not only rights-abusing but error-prone in every direction (keeping those who should be released, releasing those who perhaps should be still detained). On the other hand, is it possible that some former Gitmo detainees were let go and then did bad things? Yes. All the more reason to figure out how/whether we can do Gitmo better.
So who better to do it? Here's where Orin and Eric lose me. Why assume, as Orin puts it, that because "[j]udges don't have a lot of experience in figuring out which detainees are real terrorists and which aren't," judges are likely to do a worse job in making these status determinations than the military? I admit, that seems awfully counterintuitive to me. For a long, uninterrupted period of time now, nonmilitary judges have been making daily decisions about, for example, whether an individual committed a bad act or not, whether (for sentencing purposes) a detainee poses a likelihood of future dangerousness, whether a detainee is mentally competent to stand trial, may be a flight risk, likely poses a risk to himself or the community (for purposes of civil commitment), and whether and to what extent information they consider in all of this is probative or reliable.
On the military side, there's some parallel experience to be found in the often very good military justice system and, to an extent, in the services' criminal investigative divisions, although of course we all know the military has engaged neither at Gitmo (either with respect to status hearings or to trial). Indeed, often in the institutional military equivalent of a status hearing—administrative, investigative-type proceedings in wartime—the first-order "judges" are just whomever the relevant field commander appoints (experience or indeed any relevant training not necessarily required, as I understand it). With respect to "mere" detainee status determinations in particular, the last time before 9/11 the U.S. military was involved in any major detention operation was the 1991 Iraq war—long enough ago for plenty of those folks with any actual hands-on experience in such ops to have left the service. And for those who remain, the 1991 cases turned out not to offer particularly relevant experience anyway, as it was made clear to the military they should not follow the same procedures this time around as it did then.
The military houses plenty of smart people, of course, but is it an institution obviously better suited to deciding who's a terrorist and who's not? Eric says the reason it is has to do with comparative incentives: a military "judge" has a more immediate interest in getting the judgment right than a civilian judge. I dunno. Eric's point a) is speculative (most judges I know aren't crazy about terrorists either), b) assumes the military decisions aren't complicated by political guidance that skews their decision-making (not our recent experience), c) also wrongly assumes the military isn't thwarted by other federal government agencies with other incentives (like the CIA's apparent refusal to share evidence with the CSRTs), and d) assumes that these folks with the best interests at heart have the training and resources they need to make an informed decision (hasn't looked that way either). One could go on here, too.
In the meantime, I'm left with an impression: The courts have done pretty well with who's-who judgments and with far less of the devastatingly adverse strategic security consequences than our current Gitmo approach. And they have the power, at least in theory, by constitutional structure, judicial order, and institutional competence, to escape failings b), c), and d). So lemme try again: What is it in particular about Gitmo that courts can't handle?
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Orin is right to criticize Phil's canard-crushing post. Either Boumediene will result in substantive review of the military's detention decisions, or it will not. If not, then nothing has changed. If so, then courts will sometimes correctly overturn mistaken decisions to detain and will sometimes incorrectly overturn correct decisions to detain. (The contrary view—that courts make no mistakes—is not worth addressing.) The first type of outcome will result in nondangerous people going free; the second type of outcome will result in dangerous people going free. We already know that the military has set free dangerous people, and we also know that it has detained nondangerous people for a significant amount of time. As Orin points out, courts can't stop the military from releasing nondangerous people; the courts will focus only on the people that the military seeks to detain. Unless courts defer to the military's judgment, judges will release some of these people—and if judges make errors, as they do, they will release some dangerous people in addition to releasing some nondangerous people.
Many people talk as though the military would like nothing better than to incarcerate the entire populations of Afghanistan and Iraq. In fact, the military faces enormous logistic costs and gains nothing by detaining people who are not dangerous. So the military already has incentives to release the nondangerous and to detain the dangerous. Whether these incentives are adequate is impossible to say. It might be that the military doesn't put enough weight on the moral harm of detaining the nondangerous. It is possible that civilian judges will take that harm more seriously. It is also possible that civilian judges will overweight that harm, demanding an excessively high standard that results in the release of too many dangerous people. This is Scalia's concern; he overstates his case, but it is perfectly reasonable.
Finally, Phil conjectures that Gitmo radicalizes detainees, making them more likely to engage in terrorism if they are released. He seems to have in mind people who are not already radical but who are picked up incorrectly, yet people who are sufficiently inclined to violence that unfair treatment will push them over the edge. I suspect that if there are people in this category, they are not going to be mollified much by having a habeas proceeding. Once you start detaining and releasing people, you run the risk that they will be radicalized; this is just one of many costs—one suspects a pretty trivial one, next to the others that the detention regime creates. Ordinary law enforcement accepts this cost—we don't have a zero error rate for incarceration of suspected criminals even though we know that some people might be radicalized in prison. It is a cost that the military itself has every reason to take account of, without the need of habeas proceedings.
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Phil, I find myself in the awkward position of disagreeing both with Scalia's comments about Boumediene and your critique of them.
You offer three reasons why Scalia's comments are wrong. Your first point, that we are really at war with "a very diverse constellation of [radical Islamist] groups" rather that "radical Islamists" generally, sounds correct to me. But I'm not sure why it is relevant to Scalia's argument. Scalia's shorthand may have been imprecise, but I don't see that as such a critical error to the extent it was one at all.
Your second point, that we might release fewer bad terrorists with court fact-findings than military ones, seems unlikely to me. Presumably the availability of habeas relief only expands the group of people that may be released; I'm not sure how it would limit it. And while the military may make mistakes in releasing people who are dangerous, I would imagine judges will make more. Judges don't have a lot of experience in figuring out which detainees are real terrorists and which aren't. The Constitution may require them to do it, but that doesn't mean they'll be good at it.
Your third point, that extending habeas jurisdiction to potential terrorists may lessen the threat the detainees pose by impressing them with our commitment to due process, also seems unlikely. The detainees have been held for six years, and any legal process will take a few more years; I doubt a detainee who gets out after a decade or so in Gitmo will think well of the United States for its judicial process.
To be clear, I'm not saying I agree with Justice Scalia's argument or the fact he made it. I don't. To begin with, I doubt Boumediene will have much practical effect. I predict it will prove to be a largely symbolic opinion, rather than one that will make a major difference in the real world.
Second, and more important, I think it's quite troublesome when Supreme Court justices devote large chunks of dissents (or worse yet, time in TV appearances) to decrying the practical impact of majority opinions. That only leaves the impression that the dissenting justice based his own vote on policy rather than law. I would rather judges apply the law as they see it and save the sound bites for the elected branches. But with that said, I'm not sure your post "crushed" Scalia's "canards" in quite the way you hoped.
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While deducing from the calendar who is likely to write an opinion from any given sitting is a matter of considerable speculation, there is reason to believe that Justice Scalia may be writing D.C. v. Heller. Should that prove to be true, it is worth recalling Justice Scalia's own definition of originalism, and his particular "originalist" understanding of the Second Amendment, at the time of the oral argument?
First, the general theory:
"The theory of originalism," explains Justice Scalia, "treats a constitution like a statute, and gives it the meaning that its words were understood to bear at the time they were promulgated. ... I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words. I take the words as they were promulgated to the people of the United States, and what is the fairly understood meaning of those words."
Next, the particular:
Observed Justice Scalia, at the oral argument, "I don't see how there's any, any contradiction between reading the second clause as a personal guarantee and reading the first one as assuring the existence of a militia, not necessarily a State-managed militia because the militia that resisted the British was not State-managed. But why isn't it perfectly plausible, indeed reasonable, to assume that since the framers knew that the way militias were destroyed by tyrants in the past was not by passing a law against militias, but by taking away the people's weapons—that was the way militias were destroyed. The two clauses go together beautifully: Since we need a militia, the right of the people to keep and bear arms shall not be infringed.
"[Without the Second Amendment] so long as it was up to the Federal Government to regulate the militia and to assure that they were armed, the Federal Government could disband the State militias."
What does this mean for Heller? At the very least, if originalism matters, it should mean that the gun-possession right—whether thought to be individually held or collectively held—is at the very least militia-related. Because:
1. As understood at the time of ratification, the purpose and meaning of the Second Amendment was as a federalist check upon the feared abuse of Congress' Article I militia power as well as the historical risks associated with a standing army. The Second Amendment—like the original understanding of the Establishment Clause in the First Amendment, and the unenumerated rights retained by the Ninth, or the power reserved in the Tenth—is as a protection of the state, or the people within a state, as against the federal government. The Second Amendment has no application to the laws and ordinances of the District of Columbia, which are promulgated pursuant to the plenary power of Congress as delegated to the District.
2. Were the District a state, the Second Amendment would limit the ability of the federal Congress to interfere with the right described therein. What the scope of that right may be is not before the court, however, in this case. While, as indicated, militias at the time of the ratification of the Second Amendment were not all state-managed or -directed, all existing militias nevertheless did depend upon militia-eligible individuals possessing weapons in their homes that would then be made available for purpose of militia service.
3. Besides not residing in a state, Mr. Heller is beyond the militia-eligible age as it was understood at the time of ratification, and so he lacks standing to raise a claim in which the court is called upon to define the scope of the Second Amendment.
4. The court also should not address the question prematurely because the claim presents a difficult issue of constitutional obsolescence. There is no modern equivalent to the state or other militias that existed at the time of the founding where it was either required, or at least expected, that an individual would bring a personal weapon for use during militia service.
5. The court should if possible write consistently with the court's prior decision in Miller and the overwhelming body of case precedent that has assessed the Second Amendment right in terms of whether a militia-eligible person was asserting a right with respect to a class of weapons that would be useful or reasonably expected to be supplied by an individual for militia service.
6. The opinion should also be written consistently with Justice Scalia's longstanding admonition that where the court is called upon to enforce implied rights, or describe the contours of a right inferred from the more general or ambiguous language of constitutional text, that it be stated at the most specific level of generality. Said Scalia: "We must always start from the proposition that "the asserted liberty interest [must] be rooted in history and tradition," and then assess a claim from "the most specific level at which a relevant tradition protecting, or denying protection to, the asserted right can be identified."
Will this judicially restrained result actually be the opinion? Consider one last colloquy:
JUSTICE BREYER [to Heller's lawyer, Alan Gura]: But does that make it unreasonable for a city with a very high crime rate, assuming that the objective is what the military people say, to keep us ready for the draft, if necessary, is it unreasonable for a city with that high crime rate to say no handguns here?
JUSTICE SCALIA [to Heller's lawyer]: You want to say "yes." That's your answer.
This is clever oral argument banter, but, of course, unless history is rewritten, the founders cannot be supposed to have justified individual gun possession in support for draft-readiness for a draft that would not exist until the Civil War. And since the historical justification for gun possession bears no relevance to any modern analogue of the actual founding justification (the support of a "well-regulated militia") that cannot really be Justice Scalia's answer, can it?
Why?
Again, let Justice Scalia speak in his own voice: "Originalism does not aggravate the principal weakness of the system, for it establishes a historical criterion that is conceptually quite separate from the preferences of the judge himself. Scalia, 57 U. Cin. L. Rev. 849, 864 (.1989).
That's all the American people ask for Heller, a judicial result and an opinion faithful to text and history that is "conceptually quite separate from the preferences of the judge himself."
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I'm glad Dahlia chose to open her "Breakfast Table" discussion with Walter Dellinger, Jack Goldsmith, and Cliff Sloan with a note about Boumediene—and Justice Antonin Scalia's absurd sky-is-falling dissent arguing that detainees will exit the habeas process to fight us again on the battlefield. Ever the public intellectual, Scalia took to the Charlie Rose show to offer this apocalyptic prediction:
Something like 30 of the people that the military have released from Guantanamo have returned to the battlefield and killed Americans and others. Do you expect that number to be reduced when judges are making the decision who know less than the military?" He reiterated that "the result of that answer is more people, more Americans will be killed. I think that's almost for sure.
Scalia's wrong, and his canards must be crushed.
First, it should be noted that Justice Scalia conflates and mischaracterizes the enemy in his dissent. In his third paragraph, he lumps together the actions of diametrically opposed terrorist groups, including the 1983 Hezbollah attack on a Marine barracks in Beirut and several al-Qaida attacks since then, to make a grand argument that "America is at war with radical Islamists."
In fact, different groups coming from very different traditions launched the attacks he lists in staccato fashion. It's wrong to list Hezbollah, a Shiite group supported by Iran, and al-Qaida, an extremist Sunni group aided over the course of its history by Pakistan and Saudi Arabia, in the same breath. We are not fighting a monolithic Islamist threat. Rather, we are engaged in a struggle against a very diverse constellation of groups. These groups' diversity creates tactical and strategic opportunities. (See, for e.g., the successful military diplomacy in Iraq which split Sunni moderates from Sunni extremists affiliated with al-Qaida in Iraq.) This may seem like a minor footnote to Justice Scalia. But it is a strategic error of grand proportions. And it's the same kind of strategic glaucoma the White House shows when it visualizes and describes America's global war on terrorism.
Second, there's the point about detainees returning to the battlefield. As I wrote for Slate in October 2004, this, too, is a myth that obscures the real problems at the heart of our Guantanamo regime. The 30 detainees Scalia refers to effectively bulls---ted their way out of Gitmo. The military bought their stories and released them. Scalia sets up a false dichotomy by saying that judges will be to blame for more cases like these 30, unless we keep the military in charge. But the military is responsible for releasing these 30!!! At least with habeas corpus proceedings, or something like them, we might get a better factual inquiry than the sham tribunals being run by the Pentagon at Gitmo today.
But what's most absurd is this: Justice Scalia totally ignores the way Gitmo itself (and the lack of meaningful legal process there) radicalizes the detainee population. The real problem is not that we are now giving some modicum of due process (how much remains to be seen) to detainees. Rather, the problem is that we've created an extra-legal detention and interrogation regime and that this regime's output is a person more radical and prone to violence against the United States than when he entered Gitmo. If anything, the habeas proceedings will mitigate this by providing one small measure of justice to the detainees at Gitmo.
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continue reading at Balkinization . . .
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I simply cannot allow the opening lines of this morning's D.C. Circuit decision in Johnson v. D.C. go without comment:
Juan Johnson is a police officer whose off-duty act of kindness to a stranger in distress landed him in the middle of a drug bust in which he was repeatedly kicked in the groin by a police officer who mistook him for a criminal.
I look forward to Mike Myers's cinematic adaptation.
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Hey a question: Why is Obama silent on the FISA agreement (unless I missed something)? He has spoken out about Guantanamo, most recently in favor of the Supreme Court's decision this month allowing the detainees there to file habeas appeals. So he's not utterly unwilling to talk about difficult questions of law and national security. Is the problem this time that the deal is being styled as a bipartisan agreement, and he doesn't want to step on it by saying otherwise? Plus just not worth the political capital? Any other less obvious explanations, or thoughts about what he should do?
UPDATE: Obama just put out a statement calling the bill "a marked improvement over last year's Protect America Act." More:
"Under this compromise legislation, an important tool in the fight against terrorism will continue, but the President's illegal program of warrantless surveillance will be over. It restores FISA and existing criminal wiretap statutes as the exclusive means to conduct surveillance – making it clear that the President cannot circumvent the law and disregard the civil liberties of the American people. It also firmly re-establishes basic judicial oversight over all domestic surveillance in the future. It does, however, grant retroactive immunity, and I will work in the Senate to remove this provision so that we can seek full accountability for past offenses...
"It is not all that I would want. But given the legitimate threats we face, providing effective intelligence collection tools with appropriate safeguards is too important to delay..."
So yes, bipartisan agreement, best we can do for now. Etc.
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Dahlia, you ask with reference to the new FISA agreement: "Someone help me understand why it’s a good deal when one side gets everything it wants and the other side gets what it thought it had in the first place?"
Looking at this agreement, it seems to me that both sides got something, and both sides gave up something. Indeed, it looks like an ordinary civil-suit out-of-court settlement:
The Bush administration thought that its surveillance activities were lawful under the Constitution, the AUMG, and FISA itself, yet it agreed to bind itself to these new FISA procedures in order to eliminate the inter-branch equivalent of litigation risk. The president gave up discretion and gained certainty.
Similarly, Congress thought that its reading of FISA's applicability was the better one, yet it settled in order to eliminate the same "litigation risk." Congress got the president to commit to following these procedures, in order to maintain some degree of legislative and judicial involvement in the process.
Thus, in the end, both sides gave up something in the hopes of settling a dispute and reducing uncertainty.
Is it perfect? I suspect that neither side would say so. Is either party's compliance assured? No, because the president (Bush or his successors) may abandon the deal, or Congress (in this term or the future) may unilaterally amend the statute further.
But to say that the Bush administration "got everything it wants" and that Congress "got what it thought it had in the first place" is to wash a way a lot of the details and interests at stake.
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According to David, the Bush administration's past defense of surveillance outside of the FISA process involved "Rube Goldberg-esque theories of statutory interpretation."
Really? Looking back at the DoJ's January 2006 White Paper (pdf) on the subject, the arguments look pretty straightforward:
1. The president's inherent authority under Article II allows him, as executive and commander-in-chief, to disregard congressional regulation of those surveillance activities. (Pages 6-10)
2. The September 2001 AUMF authorized those activities, by authorizing the president "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001"; such surveillance activities are a well-recognized incident to such a war effort. (Pages 10-17)
3. FISA itself allows for the possibility of subsequent statutory grants of authority on the subject (Pages 17-28), and if that statutory provision is ambiguous, then the president should receive the benefit of the interpretative doubt because the canons of construction call for FISA to be interpreted in a manner consistent with Article II (see Point 1 above) and in harmony with other statutes (see Point 2 above) (Pages 28-36).
Now, David, let's call a spade a spade: Those are not complicated arguments. The Bush administration may be right or wrong on the merits (and I think I know where you stand on that point), but if those arguments are "Rube Goldberg-esque," then Rube Goldberg really has lost his edge.
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David, I had precisely the same reaction to the jubilant op-ed in the Washington Post today—the one that crowed about the “sensible balance” struck by lawmakers who, in order to “avert another end run around FISA,” have now made it “clear that all intelligence surveillance is governed by FISA.” Mr. President, as punishment for your decision to break the surveillance law and mislead others so they could assist you in breaking the surveillance law, we are demanding … nay, we are insisting ... that this time the law really is the law. Someone help me understand why it’s a good deal when one side gets everything it wants and the other side gets what it thought it had in the first place?
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Can the House really believe the new FISA bill means that it has reined the president in? The New York Times reports, "yes." And here's why:
Perhaps the most important concession that Democratic leaders claimed was an affirmation that the intelligence restrictions were the "exclusive" means for the executive branch to conduct wiretapping operations in terrorism and espionage cases. Speaker Nancy Pelosi had insisted on that element, and Democratic staff members asserted that the language would prevent Mr. Bush, or any future president, from circumventing the law. The proposal asserts "that the law is the exclusive authority and not the whim of the president of the United States," Ms. Pelosi said.
That was the New York Times, by the way. Not the Onion.
As everyone knows, the last version of FISA said it also was the exclusive means. In fact, it was that language that led so many to think the president's actions were plainly in violation of law, no matter what Rube Goldberg-esque theories of statutory interpretation the administration offered. So, how does immunizing that prior lawbreaking enable anyone to take seriously the claim that this new legislation is now super-duper exclusive?
Someone should ask the president whether he is now conceding that he has no constitutional authority to act in violation of this statute. And someone should ask whether he will commit to not issuing a signing statement asserting a reserved power to do what this exclusive legislation forbids. But, of course, even if he said "yes' to both questions, it would not matter. Presidents can no more bind themselves than they can bind their successors. What actually binds them is a combination of informal and formal checks, such as the specter of intensive congressional oversight, legal liability, or judicial review-checks that this bill diminishes.
Looking back at this whole affair, if this legislation passes, would you think this new statute is really super-duper exclusive, in fact, or more like kinda-sorta exclusive?
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continue reading at Balkinization ...
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The 9th Circuit handed down a very important decision today in Quon v. Arch Wireless Operating Co. holding that users of text-messaging services ordinarily have a Fourth Amendment reasonable expectation of privacy in the contents of the text messages stored on the service provider's network. Judge Wardlaw wrote the opinion, joined by Judge Pregerson and District Judge Ronald Leighton. It's a bit of a surprise that the panel decided the issue so squarely, given that it was only lightly covered at oral argument, but it's a noteworthy holding that I think is correct and very important.
(continued over at the Volokh Conspiracy)
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Yesterday, the Senate armed services committee released a 63-page set of documents that illuminates how the Pentagon developed, selected, and approved its list of coercive interrogation techniques for Guantanamo Bay.
As Joby Warrick reports in today's Post, the documents clarify the role that the CIA (and senior government officials such as DoD General Counsel William "Jim" Haynes) played. "If the detainee dies, you're doing it wrong," CIA lawyer Jonathan Friedman proclaimed in a working group meeting that led to the development of this DoD memo on approved interrogation techniques.
Even more significant, the documents show how the military's Joint Personnel Recovery Agency helped develop interrogation techniques, borrowing extensively from the military's Survival, Evasion, Resistance, and Escape courses. (Mark Benjamin provides a detailed timeline in Salon for precisely how this unfolded.) These techniques—which include water-boarding, confinement to small boxes, and stress positions, among others—were developed to mimic the interrogation practices of our worst enemies, such as the North Koreans and the North Vietnamese. It speaks volumes that they were adopted by the United States at Gitmo.
Several things struck me while reading the documents last night:
Tabs 2 and 3 confirm Jane Mayer's reporting on the use of SERE practices as an interrogation template—both at Guantanamo and elsewhere by the CIA. There wasn't a lot of hard evidence to support this narrative, though, and many chalked up the similarities between the Guantanamo and SERE techniques to coincidence or chance. For instance, in Philippe Sands' new book, retired JAG officer Diane Beaver and retired Maj. Gen. Michael Dunlavey recount a somewhat hazy process by which tactics made their way into memo form. Both hint that personnel from the CIA and other agencies were placed at Guantanamo to seed ideas. The memos released yesterday, however, indicate that there was a much more deliberate effort to share the SERE/JPRA community's tactics, techniques, and procedures (TTPs, in military parlance) with the interrogation community at Guantanamo. (Tab 16 shows this link, too.)
Tab 4 discusses the military's psychological assessment of personnel during SERE training. Taken by itself, this is a sign that the military cares about its personnel and wants to avoid "crushing the spirit of the students." But in the interrogation context, this memo reads uncomfortably like Mengele or Cold War-era research on torture.
In the October 2002 meeting described in Tab 7, FBI agents report talk of "wet towel" treatment during interrogations, despite the fact that water-boarding was explicitly not authorized by Haynes and Rumsfeld at that point. So, it appears that DoD personnel at Guantanamo took the initiative to use SERE techniques before they were approved by higher HQ. These meeting notes also confirm the presence and role of CIA personnel. And they strongly suggest that the Justice Department memoranda authored in Washington—but previously thought to have not reached Guantanamo—were probably shared with Guantanamo lawyers and intelligence personnel in some manner. This connects those memoranda with the one that then-Lt. Col. Beaver authored, which ultimately made its way to Rumsfeld's desk in December 2002.
Tab 19 further documents the relationship between SERE training and the interrogation practices at Guantanamo. But at some point, probably around the time of Abu Ghraib and the post-scandal investigations of all Defense Department detention and interrogation operations, there comes a break. Tab 24 contains a memo by the head of the Joint Personnel Recovery Agency that comes pretty darn close to refusing any future orders to participate in interrogations. The uniformed military seems to be trying to correct its course—insisting that SERE techniques could only be used for "defensive" use (i.e., training pilots, special forces, etc.), not for "offensive" use (interrogating enemy fighters).
But by that point, three years had passed, and it may have been too late to undo the damage wrought by the Pentagon's torture policies.
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Last night at the National Constitution Center in Philadelphia, it was my pleasure to moderate the Sixth Annual Templeton Lecture on Economic Liberty. The lecture endowed by Dr. John Templeton was one of the first endowed programs of this magnificent center, and it has become one of Philadelphia's most looked-for events. Consequently, it is now a considerable distinction to be selected as a Templeton lecturer or respondent. The quality of the scholars who have been selected speaks for itself: Bruce Ackerman, Richard Epstein, Thomas Merrill, and Walter Dellinger, to name only a few. Moreover, because the Templeton understands "economic liberty" in the same broad manner as Madison defined "property"-"as a man is said to have a right to his property, he may be equally said to have a property in his rights"-the Templeton platform has been devoted to topics ranging from campaign finance reform and free speech, to immigration and human work, to eminent domain and the domain of human liberty, to, last evening, health care and its responsible management.
Somewhat unusually, the recent program consisted of two public figures, former HHS Secretary Tommy Thompson, now Akin, Gump's health care expert, and former Senate Majority Leader Tom Daschle who is in a similar spot for Alston & Bird. Both men know their stuff. The program give-and-take was lively, as this summary in Daily Kos suggests, and the intelligent audience-a good portion from co-sponsor AARP-had many questions, including about the respective positions of Sens. McCain and Obama, for whom Thompson and Daschle became unofficial stand-ins (Daschle is, in fact, national co-chair of the Obama campaign).
McCain's idea of separating health insurance from the employment relationship in favor of individually acquired coverage is controversial. It is intended to impose cost discipline through consumer bargaining, though as pointed out last evening, it represents a sharp break from the status quo and might well leave families paying more out of pocket. (Thompson challenged that premise, but earlier in the program, it had been recited without dispute that the average annual health cost for a family of four-insurance, co-pays, etc.-ranges from $8,200 to $11,500 per year, which is significantly more than McCain's proposed tax credit of $5,000. In any event, Thompson thought the McCain plan needed to incorporate insurance pools to really net competitive pricing from insurance companies.) By contrast, Obama's program relies heavily on Internet technology efficiencies and a government accountability model mandating sufficient levels of coverage and the inclusion of uninsured children and those with pre-existing conditions.
Whatever the theoretical merits of McCain's or Obama's models, it rather quickly became clear that the audience's dissatisfaction with the existing health care system was framing the response. Americans like to proclaim or think they have the best health care system in the world, but the life expectancy, preventable disease, and infant mortality stats do not bear that out. Americans endure higher costs than any other comparable industrialized nation and lower quality by WHO standards-lower, at least, than the 36 countries that rank above the United States. This poor report card seemed to work more against the McCain position, at least last evening. Not even the energetic presentation of Tommy Thompson could rescue it-in part, one suspects, because McCain's plan leaves the uninsured, well, uninsured and those with pre-existing conditions uninsured (absent some government guarantee that is not well-explained).
McCain no doubt wants desperately to separate himself from the incumbent, but the missed opportunities of the Bush administration were clearly being visited upon his ideas. Both presenters portrayed an infirm health system, the symptoms of which were hardly a surprise, such as the long-standing, but now impending, Medicare bankruptcy. And in the private sector, Thompson illustrated the ripple effect of uncontrolled costs emphasizing how the cost of health care undermined the market positions of major U.S. industries. For example, Thompson compared GM's $1,725 per car health care burden with Toyota's $225.
While many difficult questions were answered, there seemed to be no answer for what accounted for the lack of accomplishment during the Bush years, and the nominee of his party is just stuck with it. It seems the sitting president did little to take up, for example, Thompson's own innovative wellness and electronic prescription ideas when he was HHS secretary, let alone contemplate the progressive measures being suggested by Daschle and Obama for portable and readily accessible health records and an elimination of the paperwork of a highly fractionated insurance market that allows providers to charge wildly different prices for the same procedure.
Daschle and Thompson were in strong agreement on the need to build wellness into schools and businesses, but they pointed out, if one eats in virtually any public school cafeteria today, you will be served the food groups that feed obesity and diabetes and other diseases. Aristotle's conception of a healthy body and a healthy mind, it's not. And in another obvious category of improving health and lowering costs, Thompson at one point also wondered aloud why nicotine was not regulated by the FDA.
The lecture underscored that economic liberty depends upon more than a free market when the market is ill-informed or shaped by policies more in defense of the economic preserves of the well-fixed-be they drug, tobacco, or health insurance companies-than the average family. Whatever accounts for the failed legacy of the incumbent, everyone is now paying through health care costs that are rising four times faster than wages.
Despite all this, few left the evening without hope, since onstage was tangible proof of good minds, freed of partisan label and special interests, working together to address a nettlesome problem. It was a reminder of the plaque that the Gipper used to regularly point to on his desk: "There is no limit to what a man can do or where he can go, if he doesn't mind who gets the credit."
That was indeed a healthy reminder.
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For what it's worth, Bill Kristol was on Fox News Sunday claiming that "very soon," Sens. McCain and Graham would introduce national security court legislation in the wake of Boumediene. Kristol, of course, may be trying to create facts on the ground. All the same, Think Progress has a partial transcript and video. Here's the key passage.
KRISTOL: [Habeas for detainees] is totally uncharted waters. It's utterly unmanageable. And I think what it means is Congress has to step in now and specify, OK, if the court's going to make us do this, we need to set up a system of a national security court that can handle these trials. And this has been proposed by Andrew McCarthy, the former federal prosecutor who tried the blind sheik in New York and has a very good book out on the problems of trying to do this through the federal legal system. ...
Senator Lindsey Graham is working on this. And I think you will see Senator Graham, accompanied by Senator McCain, come to the floor of the Senate very soon, like next week, and say, We cannot let chaos obtain here. We can't let 200 different federal district judges on their own whim call this CIA agent here, say, ‘I don't believe this soldier here who said this guy was doing this,' you have to release someone,' or, ‘Let's build up—let's compromise sources and methods with a bunch of trials. I mean, it's ridiculous.
So Congress has to act. Senator Graham and Senator McCain are going to insist on action. It will be interesting to see what Senator Obama's response is if the serious legislative proposal is introduced to set up a way of doing this consistent with the Supreme Court decision.
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Guess I'm missing something, Phil, but what's the connection you see between the Iqbal grant and the prosecution-planning conference?
Ashcroft v. Iqbal concerns the resort by an individual plaintiff to federal court to seek civil damages against high-ranking federal officials. In so doing, he followed a decades-old path: In Bivens v. Six Unknown Federal Narcotics Agents (1971) the court, by a 6-3 margin, had established such actions as a corollary to 42 U.S.C. § 1983, that portion of the Civil Rights Act of 1871 authorizing suits against state officials alleged to have committed deprivations of civil rights. In contrast, the conference appears to be an effort by private persons to develop a criminal case against high-ranking U.S. officials.
The first case ought to be routine. Deborah's post thus is spot-on in assuming an unfriendly grant of review. The loser below was a high-ranking U.S. official, challenged on account of his actions post-9/11, by means of a litigation vehicle, the Bivens action, that has drawn conservative ire since its inception.
The second instance is quite different. It is true that, in many countries adhering to a continental legal tradition, private persons may act as parties civiles who develop a criminal case and present it to public prosecutors for further investigation, prosecution, and punishment. The procedure's been invoked a number of times—to date unsuccessfully—in efforts to use courts in Germany and elsewhere as forums for criminal actions against U.S. officials like former Defense Secretary Donald Rumsfeld for post-9/11 policies. But there exists no such mechanism in the United States by which the "planning conference" might bear fruit. In any event, there's an apples-and-oranges difference between civil-damages suits and criminal prosecutions ending in imprisonment.
So what's the link?
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Find out at Balkinization.
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Today comes a bizarre follow-up to Deb's post regarding the Supreme Court's decision to grant cert in a case involving legal accountability for high officials. Over at the Volokh Conspiracy, Orin Kerr points to news that a group of legal academics is planning
to convene a conference to plan the prosecution, trial, and punishment
for senior Bush administration officials. The effort is reportedly
being led by Lawrence Velvel, dean of the Massachusetts School of Law at Andover:
"This is not intended to be a mere discussion of violations of law
that have occurred," said convener Lawrence Velvel, dean and cofounder
of the school. "It is, rather, intended to be a planning
conference at which plans will be laid and necessary organizational
structures set up, to pursue the guilty as long as necessary and, if
need be, to the ends of the Earth."
"We must try to hold Bush administration leaders accountable in
courts of justice," Velvel said. "And we must insist on appropriate
punishments, including, if guilt is found, the hangings visited upon
top German and Japanese war-criminals in the 1940s."
... "For Bush, Richard Cheney, Donald Rumsfeld, and John Yoo to
spend years in jail or go to the gallows for their crimes would be a
powerful lesson to future American leaders," Velvel said.
Somehow, I don't think this is what the Supreme Court had in mind when they granted cert ...
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The court just granted cert in a case in which plaintiff—a detainee who had been held here in the United States in pretrial detention shortly after the 9/11 attacks—is seeking damages against former Attorney General John Ashcroft and FBI Director Robert Mueller (among others) based on claims that his treatment in detention violated his constitutional rights. The government's petition for review in Ashcroft v. Iqbal is here.
Guess Justice Kennedy wasn't kidding when he suggested in Boumediene a few days ago that the court might have to get more engaged in deciding "war on terror"-related cases.
Mr. Iqbal alleged that he was beaten and denied medical care, deprived of food (losing 40 pounds during his detention), subjected to extreme hot and cold temperatures, left in solitary confinement, often shackled, repeatedly subjected to strip and body-cavity searches, and subjected to racial ethnic and religious discrimination of various kinds. The 2nd Circuit rejected the defendants' motion to dismiss the case, and the Justice Department sought review.
On its face, the grant of cert doesn't look good for Mr. Iqbal (who has since been deported to his native Pakistan). It takes only four to grant cert, and I'm going out on a limb in guessing that Scalia, Thomas, Alito, and Roberts aren't huge fans of the Bivens doctrine (affording individuals a right to sue government officials who violate the Constitution). Then there's the conventional wisdom that the court doesn't grant cert to affirm. The 2nd Circuit allowed the case to go forward to permit limited discovery in the case, including the possible deposition of Mssrs. Ashcroft and Mueller on post-9/11 decisions about detainee treatment. If the court had no problem with that outcome, it could easily have waited until the case reached the merits before weighing in. But a lot of the justices have expressed concern about the burden of such discovery on government officials.
Apart from wondering where Justice Kennedy sits on these issues, it seems like a key question is whether the court will stick with its own precedent and recognize that it has to address the substantive validity of Mr. Iqbal's constitutional claims—were his Fifth Amendment rights violated?—before determining whether those rights were "clearly established" enough for a reasonable officer to have known better. (If the law wasn't clear enough for officials to have known better, the officials can invoke "qualified immunity" and stop the suit in its tracks.) Whatever the court decides about the qualified immunity defense, a holding by the Supreme Court on the merits that the Constitution bars this kind of treatment of detainees would be huge (and welcome) news.
And under it all there'll be the great question of whether Justice Scalia should recuse himself from consideration. He did, after all, just recently announce to the international press that he didn't particularly think torture amounted to punishment prohibited by the Eighth Amendment and that the constitutionality of detainee abuse depended on the circumstances (like, say, the days just after 9/11?). Here's betting there's a motion for recusal—and that Scalia stays in.
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Picking up where my last post left off. ... The policy goal is clear: The U.S. government need a detention scheme that protects as many innocent Americans as possible from becoming victims of terrorist attacks.
It seems to me there are at least four kinds of people we want to think about detaining. (By putting them in categories, I don't mean to suggest there's no overlap between them. I'm betting folks often fall into more than one category at once. I'm just trying to, as Ben would say, "game out" the possibilities. I'm keen to know what this first cut leaves out.) (1) Anyone who's been involved in an al-Qaida plot and anyone who's taken any steps to be involved in such a plot. (2) If we go to war in a country like, say, Afghanistan, we'll want to keep as many of "them" out of combat as possible so we can win and get our own folks home as quickly and as safely as possible. (3) There might be folks in New York or Iowa or Zimbabwe we want to pick up and question. They haven't done anything wrong. But they might know someone who has. (4) And there's Joe Schmo, who walks into a bar and says, "Hi. I'm from al-Qaida. Can't wait to kill some of you innocent Americans." And then he sits down for a drink with some of his pals.
Can we detain these people? To me, there's little question that the power (and procedural requirements) for detaining (1) and (2) exist under current law domestic and international law (circa 2001 and more so today). Category (1) especially goes pretty far. All a would-be detainee has to do is offer anything that looks like "material support" to anyone thinking about a plot. And he doesn't even have to do it in the United States. These days, there are a host of federal criminal laws with broad extraterritorial scope (including a ban on terrorist training, broadly defined). And Category (2)—covered by the existing law of war and international human rights law (where the law of war leaves gaps)—addresses both "international" (in the sense of state-vs.-state) and "noninternational" (in the sense of nonstate-actor involvement) armed conflicts. Is the exact scope of these laws clear? No. But there's a pretty broad area of agreement about what they cover at a minimum. And it undoubtedly includes anyone we find in, say, Afghanistan after we invade.
Now it gets trickier. Can we detain someone purely for the purpose of asking them questions? Well, we can ask anything we want of anyone otherwise properly detained under the criminal law or the law of war (or immigration detention laws or civil commitment laws or material witness laws or pretrial detention laws). And especially if we don't alienate neighborhoods where we might find informants, we can talk to anyone who'll talk to us voluntarily. Beyond that, though, we'd need (at a minimum—since international law has unfavorable things to say about such detentions) a new law passed by Congress. And existing constitutional jurisprudence makes it clear any new "interrogative detention" regime would at a minimum have to come within some pretty strict procedural limits and even then is almost certain to be challenged in the courts. It would have to be time-limited (the state has a plausible interest in questioning folks, but there are enormous individual liberty interests that must be taken into account on the other side). For the same reasons, it would have to afford any detainee at a minimum speedy access to counsel and to review, some sort of hearing giving each side a chance to present evidence, and some kind of evidentiary burden on the government to show why there's any reason it should want to detain this particular individual. The scheme will have to apply equally to citizens and noncitizens (so we don't run afoul of equal protection). And of course, of course, we can't treat anyone cruelly.
So let's ask the FBI and CIA if, under these conditions, they think such a scheme would help. Based on my offline (and admittedly nonscientific and nonexhaustive) conversations with interrogators, I think they'd say that anyone who wants to talk with us will talk—and would've talked voluntarily without custody. And anyone who doesn't want to talk with us won't—and still won't after 48, 72, or 96 hours in custody. Especially without the threat of, say, prosecution and life imprisonment hanging over their heads. In the meantime, we'd better start working hard to develop a real human intelligence capacity—one that doesn't rely on custodial interrogation but rather on good old fashioned Arabic-speaking spycraft. That's my guess; I could be wrong about what's needed to be helpful. So I'd welcome further insight here.
And now the doozy—the al-Qaida who walks into a bar. Can we detain someone who says he's al-Qaida but hasn't apparently done anything about it? Circa Sept. 11, 2001, no. Anyone in this country at least has a First Amendment (among others) right to say anything. As long as they're not inciting imminent lawless action, not much to be done except (and this shouldn't be discounted) watch them (lawfully) like a hawk. And I don't believe the president's inherent authority extends so far as to entitle him, in the absence of an armed conflict, to swoop in anywhere in the world and detain anyone he wants. Circa today, there's the Authorization for the Use of Military Force passed by Congress. And as I pointed out in the last post, we're likely to find out via the Gitmo habeas proceedings whether the AUMF authorizes the detention of any old al-Qaida member. My suspicion is that some combination of the Constitution and international law forecloses a reading of the AUMF that would authorize the detention anytime, anywhere, of anyone who does no more (more or less) than say he's a member of al-Qaida. Marty may disagree.
But let's imagine the law already permits or could be revised so as to authorize the detention of self-described al-Qaida members. Would such a detention scheme—assuming a scheme with sterling procedural protections—help on balance to prevent more terrorist attacks? I find this question a very tough call. Here's why. So we've had this al-Qaida bar guy in "preventive" detention subject to periodic review for a period of years. He hasn't changed his tune; and we haven't found anything to charge him with. We've got two options: Release him or continue to detain. Releasing him might allow intelligence to track him and gain otherwise unavailable information about any plot he might undertake. Detaining him, on the other hand, might prevent him from participating in any particular plot. But if security analyses of the nature of al-Qaida and associated threats are to be believed, the whole problem is that men like this grow on the proverbial trees. He is replaceable. Worse, if we detain too many such men, or detain the wrong men, or detain men under a system of effectively indefinite detention believed (therefore) to be illegitimate, we trade his particular incapacitation for the need to incapacitate many more. This approach to detention thus fails ultimately to prevent an attack, but it succeeds in enhancing terrorist recruiting efforts overall. I need a fair bit more persuasion before I'm convinced to go down this road.
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Last week, David Brooks wrote
that current patterns of borrowing and consumption reflect the moral
decline of the American people. This argument raises several
interesting questions. First, has there ever been a time when opinion
leaders did not fuss about moral decline among the masses?
Second, if those leaders have been right, does that not mean that the
moral fiber of the community has been steadily declining since caveman
times? I don't want to denigrate our remote ancestors, who were no
doubt good people in many ways. But they would need to have been
pelt-wearing, credit-card avoiding saints, if the Brooks-style moral
critics were all correct.
Third, if morals have not steadily declined since caveman
times, which seems highly likely, why is it that opinion leaders never
seem to celebrate an improvement in morality? After all, if we are no
worse than the cavemen (which seems likely), and there have been moral
declines in certain periods (which is possible), then there must have
been moral improvements to bring us back up to caveman level as well.
Even when indicators such as out-of-wedlock births or drug usage or
crime improve, as they do from time to time, opinion leaders never
attribute the improvement in behavior to moral betterment. If credit
card use increases, it is because of a decline in morals; but if credit
card use declines, it is because of an improvement in the law or the
spread of information or some such thing untainted by moralistic talk.
Why this asymmetry?
I can't think of any good reasons. Perhaps opinion leaders have
short memories. Brooks has forgotten about such epochs as the Gilded
Age; indeed, his condemnation of greedy financiers is even creakier and
more archaic than his condemnation of the feckless masses they have
swindled. Maybe these opinion leaders have trouble thinking of things
to say, and warnings about moral decline receive more attention than
celebrations of moral renewal. Or perhaps morality has never declined;
what happens is that moral rules change from time to time, and people
who like the old way think that morally neutral changes in social norms
must be symptoms of moral disintegration. Did caveman make the same
mistake and reminisce nostalgically about the moral integrity of their
monkey ancestors?
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Ben's very useful post throws the preventive-detention gauntlet right back at me—and that's fair enough. I'd suggested his approach conflates two separate problems: (1) getting the truck out of the detention ditch at Gitmo (its own unique mess), and (2) figuring out what kind of detention policy and laws the United States needs going forward to effectively address the terrorist threat (a threat I don't for a moment deny). Herewith, the first of two posts in response. This one proposes a getting-the-truck-out plan. The next will talk about trying to avoid the next mess.
I take our collective starting point at Gitmo to be a consensus that it's time to shut it down (given a host of ill effects I could detail, but I think we're all now onboard here). Best I can tell, at Gitmo today there are three broad categories of detainees whose situations needs resolution: folks who've done something wrong who should be tried; folks who the current administration has cleared for release but who have no place suitable to go (because, for example, they face torture in their home country or because their home country won't take them back); and folks who haven't demonstrably (or at all) done anything wrong but who we're understandably loathe to release because, for example, they've said, "I'm a member of al-Qaida and I can't wait to get back to the jihad."
For folks needing trial, I've recommended either courts martial or federal prosecution. The current military commissions are hopelessly (and rightly) tarnished as illegitimate, and any effort to revise or fix them will (a) take even more time (in no one's interest) and (b) not likely succeed in overcoming legitimacy problems. Will courts martial and/or federal prosecution face special challenges in these cases, like protecting classified information? No doubt, but for reasons I've alluded to in previous posts like this one or this one, I think these existing institutions far more accustomed, better suited, and demonstrably able to handle such questions. Might there be acquittals at such trials? Yes. Might KSM be acquitted? Ben, I'll up the ante and buy you a steak (or high-priced vegetarian) dinner of your choice if he is.
The folks who should be free but haven't yet been released (the Yemenis, the Uighurs, etc.) pose fundamentally a diplomatic problem. The existing law is clear on our obligation not to return them to places they're likely to be tortured. So we and our allies must find a suitable alternative home. I do not wish to undersell the difficulty and complexity here by calling it a "diplomatic" problem. I also would not wish to let the administration and its advocates believe that our treatment of our allies (and the rest of the world) in the past seven years has not made the resolution of this task substantially more difficult than it would/should have been. Because of the latter point, I think it is reasonable to expect we might see some diplomatic movement in any next administration—particularly a next administration that is visibly taking a series of real, unilateral steps to restore our credibility on matters of the rule of law, our interest in and respect for international partnerships, and our recognition that we can't combat terrorism without the help of our friends. Some of our allies have been talking a good human rights game; come January 2009, it'll be time for them to pony up. At least that's where I'd start. And while everyone's chatting it through (speaking of concrete, unilateral steps), I'd take these folks (and the folks I'm about to discuss) out of Gitmo and house them in a high-security military prison in the continental United States.
And what about the toughest group: those who have said they despise us but haven't yet demonstrably done anything about it (or anything that was prosecutable at the time they were captured)? Ben is right to note that classification of information—and, I would add, chronic unreliability of information from Gitmo that has been released—makes it impossible to identify from the outside how large a group this is. But let's assume it is not a null set. Here's why past acts matter. Had we given these folks Article 5 hearings in the first instance under the law of war, and kept them in Afghanistan (for those among this set who were captured thereabouts), I believe we could have lawfully continued to hold them in Afghanistan with modest periodic review until the conclusion of that conflict (which, contrary to part of the International Committee of the Red Cross' position, I believe can be understood to continue as a matter of U.S. and international law). I'm not crazy about how much leeway for lengthy detention the law of war provides here, but that's my reading of the law, at least with respect to those caught up in the armed conflict in/with Afghanistan.
But we didn't do that. And we've also now made Gitmo an international clearinghouse for (at least a handful of) folks we've picked up all over the world, like the Boumediene petitioners themselves, who are at best only arguably involved in an armed conflict within the meaning of international law and at best only arguably covered (sorry, Marty) by Congress' own AUMF. And most of all, we now have a ruling of the U.S. Supreme Court saying the Constitution entitles these people to petition for a writ of habeas corpus. Unless the next administration comes in and, upon actually reviewing the evidence, concludes some of these people should simply be released or (lawfully) transferred elsewhere for continued detention (and to me there is every incentive for a new administration to look at these cases closely and as publicly as possible), habeas must go forward. The government will put forward its best evidence. The detainees, represented by counsel, will put forward theirs. And the courts will decide in each case as a matter of substantive law (right, Ben?) whether their particular detention was authorized under U.S. and/or international law. The courts are best suited to this, in my view, because there was applicable law on the books at the time these men were detained, Congress has had two (unsuccessful) shots at constitutionally clarifying it, and the courts, in keeping with their constitutional charge, are accustomed to saying what the law is every day.
It seems as likely as not that many of those who care most deeply about human rights will be disappointed in the ultimate outcome of at least some of these cases. The AUMF as defined by extant international humanitarian and human rights laws, and as limited by constitutional due process, leaves room for a fair bit of detention (as even the ICRC understands). But I'd bet something even more than a steak dinner that if we do all this, we'll be (rightly) taking a lot less flack from the international community. We'll hang onto those who are really and truly dangerous (and might even have time to think about whether a little more investigation might help build a criminal case against them). And we'll have a clearer path to designing a vastly more sensible plan going forward.
So that's where I'm at today. But as ever, I'd be pleased to be learn more.
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There’s a lot of meat in Deborah’s and Marty’s posts to which I should respond. I’ll take on, first, Marty’s suggestion that habeas offers a good procedural device for resolving detention cases and then Deborah’s more fundamental suggestion that we shouldn’t let the bad case of Guantanamo make bad law on detentions more generally.
I am less sanguine than Marty is about the smoothness with which we can expect these habeas cases to proceed. But I tend to agree with him that the procedural problems are, on their own, manageable. That is, I don’t think the most difficult questions—the ones that will divide district courts and require yet another round of Supreme Court litigation to resolve—are procedural in nature. They are substantive. If we treat these detentions under the laws of war, we pose profound questions about (a) the scope of the detention authority under the laws of war, (b) the evidentiary threshold necessary to hold people, and (c) the duration of the detention authority in the context of the current conflict. (We also face profound questions in light of Boumediene about what substantive rights detainees have at Guantanamo, though the courts would confront this question in the context of a statutory detention regime as well.) The range of possible judicial holdings on each of these questions is enormous, and I really don’t see why it is preferable to leave their resolution—and the consequent parameters of our ultimate detention regime—to litigation, rather than to a considered legislative process.
It is important to understand how much common ground Marty and I really have here. We both believe that it is permissible to detain the enemy outside of the criminal justice system. We both believe that such detentions should be subject to meaningful judicial review. And we have broad, though not perfect, agreement over the general parameters of procedures to test the legality of detentions.
We disagree, as best as I can tell, largely over the proper source of the legal authority for these detentions. He believes, as does the administration (sorry for the low blow), that we should understand these detentions as a feature of the state of war that exists between the United States and al-Qaida. I believe, by contrast, that wartime detention power is a bad fit for many war on terror detainees and that we should therefore carve something new. Partly as a consequence of this difference and partly because of our different attitudes toward judicial power, Marty is content to resolve the contours of the current system through litigation, while I am keen to have Congress design a fresh detention system tailored for the problems at hand.
Deborah’s argument is, as I noted at the outset, more fundamental: She objects that in suggesting a preventive detention apparatus of any kind, I would “let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward.” My sympathy for this objection would be greater if I could muster the remotest confidence that an alternative really exists. I have, alas, no such confidence either with respect to the current detainee population at Gitmo or with respect to future captures of people against whom warrants are neither extant nor plausibly imminent. Nobody knows exactly how many current detainees are both too dangerous to set free and, for one reason or another, not amenable to trial. Without access to large volumes of classified information neither Deborah nor I has seen, we can only guess. For my part, I suspect that the number is pretty substantial. But one of the reasons I believe the legislation I support should wait for the next administration is that the Bush administration has zero credibility to make the case for this crucial proposition.
So let’s game out what happens in January if, say, Barack Obama wins the election. If his new administration comes in and declares that it believes that the United States can satisfy its baseline security interests by prosecuting those detainees against whom it can prove crimes, sending the rest home, and eschewing any preventive detention for non-battlefield captures or transfers in the future, I’ll concede that I jumped the gun in Law and the Long War and presupposed the necessity of a detention scheme that a reasonable executive branch turned out not to need. And Deborah, I will be so thrilled to be wrong that with joy in my heart, I would buy you lunch at a restaurant of your choice when you come to Washington in deserved intellectual and moral triumph over my panic.
But what if Obama comes into office and, like Marty and I, takes the position that—under one legal rubric or another—the executive needs some authority to detain al-Qaida people outside of the four corners of the criminal justice system? What if he declares that, as I suspect, about 100 to 125 people at Gitmo cannot plausibly face indictment but are too damn scary to send home and that, as president, he cannot assume the risk to American interests and civilians that they pose if set free? What if he comes in and declares that senior al-Qaida figures and major operatives—alleged 9/11 conspirator Mohammed Al-Khatani, for example—could never be tried in federal court or even military commissions because of the ugly circumstances of their interrogations, the interrogations of others, or more innocent deficiencies in certain evidence against them?
If you respond to this scenario by insisting upon the release of such people anyway and insisting in addition on not detaining such people in the future, then there is an unbridgeable divide between us. If, however, your answer to these questions is that you would, under those circumstances, be willing to contemplate the sort of regime I am talking about, I am happy to wait until January and let the facts be our guide.
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First, thanks, Dawn, for those way too kind words about the detainees' panel at the ACS Convention. I personally thought the highlight was Alberto Mora's policy case about the huge counterterrorism security problems our recent approach to detention has created. His security-problem "anecdotes" were pretty devastating: Our allies refusing to engage in joint training with us in the Pacific for fear of getting stuck with U.S. detention practices, our allies letting detainees go rather than transferring them to U.S. custody for fear they'd be tortured, the officer in Iraq who told him his No. 1 and 2 concerns about troop safety in Iraq were Abu Ghraib and Guantanamo Bay. Hell of a list. Hope he writes a book.
Second, back to Boumediene, Dahlia correctly points out that Scalia has now written into Supreme Court jurisprudence the canards regularly trotted out about classified information leaked during terrorist trials that have compromised intelligence sources and methods. Relying on a minority report by Republican Sens. Kyl, Sessions, Graham, Cornyn, and Coburn and on a single Washington Post article, Scalia says: (1) in one terrorism prosecution in federal court, trial testimony revealed that the U.S. had been monitoring an al-Qaida satellite phone, leading bin Laden promptly to stop using it and cutting off that source of intelligence; and (2) the 1995 prosecution of Omar Abdel Rahman in federal court led to Osama bin Laden learning the names of the 200 unindicted co-conspirators in the case.
As Human Rights First exposes in its must-read report on the success of terrorism prosecutions in federal court, Claim 1 is demonstrably false, and Claim 2 is at best misleading. (1) The phone records at issue were not introduced into trial evidence until March 20, 2001, almost two and a half years after the satellite phone went dead (nor did defense counsel have access to the records until well after the phone was out of use). (2) Looks like the government didn't even try to keep the names of the unindicted co-conspirators classified. The prosecution certainly could have invoked CIPA or any of the other mechanisms that exist for the protecting classified information at trial. Evidently, they just didn't. As with all such discussions of how well-suited the federal courts are to prosecuting terrorism cases, important to note these are just anecdotes. Can't conclude much one way or another. But it would be nice if folks stopped citing these particular examples in arguments that the federal courts can't possibly deal with terrorism cases.
Which brings me to Ben, Marty, preventive detention, and Capitol Hill. I was heartened to hear Ben say yesterday and in "Convictions" that he thinks legislation this summer in the area would be a disaster - couldn't agree more. I was also somewhat heartened by what I could pick up of convention buzz on the subject, which amounted to this: everyone is afraid that someone will put forward legislation, but no one thinks it's a good idea, and no one thinks the administration has enough allies left on the Hill to do get anything done. My optimism there was tempered somewhat by this morning's NYT piece saying conservatives now see Boumediene as a rallying cry. So stay tuned.
In addition to Marty's fine points, I've got another beef with Ben, as we discussed yesterday. His well-intentioned proposal and others like it let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward—they let the proverbial hard case make bad law. There are two separate policy problems the next administration has to face: (1) How are we going to get the truck out of the ditch at Gitmo, and (2) what kind of detention power/policy should we pursue in the interest of counterterrorism. The policy options on (1) are limited by our own past bad acts—denying basic Geneva protections in the first instance, torturing some of the detainees, etc. The policy options on (2) are better and may actually just give us what we need under existing law. In all events, until we've got a sensible (or any) counterterrorism strategy (rather than letting our tactics lead us around by the nose, as Mora eloquently showed), we're in no position to go designing yet another new detention scheme.
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I was on Meet the Press only once. Paired with Mario Cuomo, for whom Tim once worked, other lesser hosts might be expected to favor their old boss. Not Tim. Tim was indeed a partisan—for truth as best as it could be ascertained by the human mind in the exploration of opposing points of view.
On that Sunday, it was my task to defend the proposition that it was improper to deny John Roberts' nomination to the court on the basis of his Catholic faith. Prominent scholars and senators had argued that Roberts was unsuitable for the bench given his Catholicism and the church's well-known opposition to abortion. This line of questioning was contrary to the prohibition of religious-test oaths and the spirit of the free exercise clause, I argued. Moreover, I contended, Catholic teaching treated those who stand for judicial post differently from legislators and the executive. Gov. Cuomo insisted that the questioning was both proper and that the church made no such distinction, with highly conservative prelates even insisting that Catholic public figures be denied communion if they didn't toe the church line.
Several things were immediately apparent: Tim likely knew as much or more about the topic than either of his guests, and he was not about to let either of us dodge the more difficult nuances of the question. Indeed, somewhat ironically now, in light of my own recent denial of communion for endorsing Sen. Obama, Tim would ask us about such threatened refusals of the sacrament. The colloquy went like this:
MR. RUSSERT: Professor, many Catholic politicians are faced with the following prospect, that individual bishops in different dioceses can refuse them Communion if they are seen as proponents of abortion. If, in fact, as you said, the Supreme Court in effect formulated the law in Roe vs. Wade, if a Catholic justice of the Court doesn't take assertive steps to undo that law, could they be denied Communion in respective dioceses and is that an appropriate pressure from the Catholic Church?
PROF. KMIEC: ... Cardinal McCarrick here in Washington said it the best. This is a question of pastoral counseling. It's not something that really should be dealt with at the Communion rail. ... The sacraments shouldn't be used as a weapon. ... But again, the Supreme Court of the United States really needs to [re-] examine [abortion] as a matter of law ... not as a matter of Catholic faith ... not as a matter of any other personal philosophy. It's a question of whether abortion ... can be found in the text and history and structure of the Constitution.
At that point, I decided to interject a bit of Kmiec interpretive theory on the Constitution that is not presently shared by the court itself: namely that constitutional text ought to be interpreted in light of the declared "self-evident truth" of the Declaration of Independence that we are "created equal" with an "unalienable right to life."
"There's no conflict between John Roberts' faith and this constitutional system," I argued, "because this constitutional system is premised upon the dignity of the human person." As a matter of his own Catholic faith, I speculated that Tim would let my advocacy pass without rebuttal. Silly me. Of course, Tim would not personally inject his Catholic view. Rather, in fidelity to the high standards of journalism that by disciplined mind and hard work became part of Tim when he left politics, he adroitly questioned the governor, illustrating that the way Catholic jurists like Justice Scalia avoid an irreconcilable conflict between faith and law is not with my fancy professorial theory but simply by sticking to the text of the Constitution, which says nothing about the subject.
Cuomo affirmed the Scalia position, and in one masterful move, Tim brought the conversation back to its original focus, illustrating in a unique way some common ground. Whether Cuomo realized it or not, his affirmation of Scalia underscored my original contention that if judges follow their intended role, they have no moral complicity in the laws they interpret. But it also allowed Cuomo an opening to reaffirm his longstanding view that Catholics cannot just impose their doctrine on their non-Catholic American neighbors—at least without extended and respectful argument in the democratic process (or, I might add, persuading jurists that the Constitution has an intended and inescapable natural law foundation).
One thing I know for sure, St. Peter is in no position to give Tim a hard time at the gate. If there is any delay whatsoever, look for Tim to sit the onetime fishermen and early church organizer down at the table and with that smiling but tenaciously prepared look ask, as heavenly PowerPoint goes up on the screen of judgment: "Isn't it true, Peter, that earlier on the night before he died, you denied him three times, and yet here you are today the keeper of the gate of the kingdom. How do you explain that?" Like so many other guests on Meet the Press when confronted with the thoroughness of Tim's preparations revealing an undeniable inconsistency of their own words, I suspect Peter might be tempted to bob and weave his way to some sort of answer. Advice to the first pontiff: Don't try it. Just wave Tim on through—he more than deserves it.
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I am heartened by Ben's agreement that any legislative initiatives should await the next administration and should not be driven by election-year pressures (as the MCA was). Such delay would also have the virtue of allowing the legislature to see just how the habeas system is working here and what might be needed to supplement the district court's handiwork.
As for whether such a statutory supplement will be beneficial or necessary come June 2009: I doubt it. Not a very extensive amendment, anyway.
Ben argues that the habeas proceedings will now occur "with few known rules and procedures." I don't quite understand this. It's not as if this is the first time that habeas courts will ever have considered allegations of unlawful executive detention. There are plenty of rules and procedures. Indeed, there are hardly any sets of rules and procedures more well-established in our law than those that apply to habeas corpus proceedings. When asked at oral argument what would happen in such proceedings, Seth Waxman's response was (appropriately) as boilerplate as it gets:
[In] the cases in front of Judge Green ... the government has filed its factual return under the procedures, under the long-established habeas procedures under [section] 2243. [T]he burden is now on us. She has already ruled that with respect to secret information or classified information, [t]here are the safeguards that will govern. And it is simply on us now to adduce and present evidence to try ... to shoulder the burden we have.
If I'm not mistaken, when Ben writes of "few known rules and procedures," I think he is referring primarily to the fairly discrete question of how classified information should be treated in these proceedings. I agree that this is an important question but one that is not unknown to trial court judges in habeas and other contexts.
Although I (like Justice Kennedy) am fairly confident that Judge Lamberth and his colleagues will handle classified information in a fair and careful manner (indeed, probably with too much deference to the government—Kennedy's citation to Reynolds was decidedly not my favorite part of the opinion)—I would certainly be receptive to thoughtful legislative consideration of just how classified information should be handled in these cases. For example, I've repeatedly argued—see, e.g., here, here and here—that there is no justification for the executive to have classified the facts about how we have interrogated the detainees, particularly since that information is known to the detainees themselves, and they are (in theory) free to share it with the world. I would welcome a law clarifying that what our government does to detainees in its custody is not classified information.
In his dissent, the chief justice also mentioned questions of access to military officers overseas who might have relevant information. I'll bet habeas courts could easily deal with such issues—but if they fail, sure, a discrete statute specifying how to deal with that question might be in order, too.
Apart from these fairly specific questions, however, are there other "rules of the road" that are undefined in the ordinary habeas procedures and that Congress should thus prescribe? I can't think of many. And so while perhaps there are some discrete areas that could benefit from tailored legislative specifications, the basic framework of habeas corpus law should be more than adequate to the task.
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Many thanks to Marty for the kind words and thoughtful critique of my proposal. Two thoughts in initial response (I will probably have more later):
First, I did not mean my op-ed to suggest that Congress should act precipitously in the run-up to the election. While I do feel a sense of urgency about legislation in this area, it is far more important at this stage for any legislation to reflect the considered judgment of Congress and to emerge from a relationship of trust between Congress and the executive branch than for it to happen in the next six months. I hate quoting myself, but I really can’t say it better than I did in the conclusion of my book:
It is too late for the Bush administration. It has no trust on Capitol Hill, and it has no time. And even at this late date, it has too much ambivalence about the project—too much residual insistence that it has all the power it needs. ... Bush also has too much baggage. Locked in a death grip with its critics, his administration can at most speak credibly to a fraction of the country. For presidential leadership in this arena, America will have to await Bush’s successor.
So, yes, Marty, I’m happy to spend the summer relaxing and talking about legislation—instead of actually seeing Congress pass legislation. And I’m delighted that you and I have so much common ground on the ultimate substance of that legislation.
Second, in my previous post, I outlined a set of practical reasons why I believe a legislative detention regime that places robust review of detentions at the front end makes more sense than simply treating all detainees as “enemy combatants” who challenge their status eventually in habeas corpus proceedings. These practical reasons, in my judgment, involve advantages both for detainees (innocent ones, at least) and for the government.
But there’s another reason as well for my support of a legislative approach, one on which I suspect Marty and I disagree pretty fundamentally: While I have always supported robust judicial review of detentions, I don’t want the rules of the road in counterterrorism written and defined by judges.
This point has both practical dimensions and philosophical (almost spiritual) dimensions as well. The practical argument is simple: Right now, we are going to face something like 200 habeas cases litigated with few known rules and procedures—and no agreed-upon substantive law. These questions are not interstitial legislative matters. They are foundational questions of the law of counterterrorism. And unless Congress gets involved, their answers will be defined by district judges (and later by appellate judges) in a process that will look pretty chaotic, that will take years, and that may or may not at day’s end produce a system that properly balances the myriad weighty interests at stake. More likely than not, the result will be constitutional rulings that the political system will be unable to amend to the extent they prove ill-advised. I can’t see how that process is preferable to a comprehensive consideration of the appropriate standards, evidentiary burdens, and procedures by the Congress.
On a philosophical level, I confess myself utterly offended by the notion that a coordinate branch of government in this democracy—to wit, the legislative branch—would cede such a profound lawmaking exercise to common-law dialogue between the executive branch, the judiciary, and a group of habeas petitioners. We can all pretend that current law answers the most basic questions here, but it most emphatically does not. And we therefore face a basic choice of which branch of government we wish would design what, one way or another, will be a new system of law to govern a set of problems we have not confronted before. I don’t think you have to be Justice Scalia to object to the notion of delegating that power to unelected judges. In a very fifth-grade-civics kind of way, I believe it is the burden of the legislature to answer the foundational questions we face. And I'm not willing to see either Congress slough off that burden on the courts or the courts relieve Congress of it.
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In a new Slate "Jurisprudence" essay, former U.S. Attorney David Iglesias criticizes the White House's invocation of the executive privilege to protect certain communications among the president's advisers. He argues that the Bush administration has stretched privilege beyond the limits of the law. His argument, however, is squarely at odds with the case law on the point.
Iglesias specifically criticizes a June 2007 letter (PDF) from the White House to Sen. Leahy and Rep. Conyers, chairmen of the Senate and House judiciary committees. In that letter, the White House refused to produce documents of Harriet Miers', former counsel to the president, and Sara Taylor's, former deputy assistant to the president and director of political affairs, or to allow them to testify. Instead, the White House invoked executive privilege:
[T]he President was not willing to provide your Committees with documents revealing internal White House communications or to accede to your desire for senior advisors to testify at public hearings. ... [F]or the President to perform his constitutional duties, it is imperative that he receive candid and unfettered advice and that free and open discussions and deliberations occur among his advisors and between those advisors and others within and outside the Executive Branch.
Citing the seminal Supreme Court decision on the subject, U.S. v. Nixon, Iglesias responds:
So now, the qualified privilege carved out in the Nixon decision is supposed to cover discussions among advisors that never even speak to the president, and then beyond that to cover even "others ... outside the Executive Branch"?
To be blunt, the answer is, "Yes, at least since 1997."
The U.S. Court of Appeals for the D.C. Circuit squarely decided this issue over a decade ago, in In re Sealed Case (1997). The court held that the executive privilege covered many communications among the president's advisers, even when the president was not a party to the communication, and even when the advisers communicated with non-White House advisers:
[T]he public interest is best served by holding that communications made by presidential advisors in the course of preparing advice for the President come under the presidential communications privilege, even when these communications are not made directly to the President.
Given the need to provide sufficient elbow room for advisors to obtain information from all knowledgeable sources, the privilege must apply both to communications which these advisors solicited and received from others as well as those they authored themselves.
The privilege must also extend to communications authored or received in response to a solicitation by members of a presidential advisor's staff, since in many instances advisors must rely on their staff to investigate an issue and formulate the advice to be given to the President.
As for non-White-House advisers:
In particular, the privilege should not extend to staff outside the White House in executive branch agencies. Instead, the privilege should apply only to communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigating and formulating the advice to be given the President on the particular matter to which the communications relate.
Thus, contrary to Iglesias' protest, the White House broke no new ground by asserting executive privilege with respect to communications and documents among the president's advisers, even non-White-House advisers. So long as those communications fall within the standards set by Nixon, In re Sealed Case, and progeny, they're protected by the privilege.
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to Boumediene, and it's pretty much like Bush yesterday, only more condemnatory but less direct in raising the possibility of a legislative response that would seek to prevent the protections the court has ordered—absent a valid suspension—from going into effect. Should we start boning up on articles like this one?
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Convictions bloggers Ben Wittes and Deborah Pearlstein just concluded an absolutely terrific panel, "Ensuring Access to Justice for Detainees in the 'War on Terror,' " ably moderated by Judge Marsha Berzon at the American Constitution Society's ongoing annual convention. Deborah Pearlstein's analysis of Boumediene, as well as of Munaf and Omar, just a day after issuance, was breathtakingly comprehensive, clear, and insightful. Ben shared highlights from his forthcoming book, summarizing the existing "imperfect data" on what we know about the Guantanamo detainees. They were joined by Joanne Mariner from Human Rights Watch, who laid out where we can go from here and made a persuasive case for using the federal courts rather than creating a system of preventive detention. (Deborah agreed, and Ben clarified—see Marty's post—that legislation should come only after careful deliberation during the next administration.) And American hero Alberto Mora movingly reminded us that, even putting aside the court's repeated determinations of illegality, the Bush administration's detainee policies have failed miserably, by every measure: fostering detainee abuse and even torture by the U.S. and other nations, creating fertile conditions for the recruitment of terrorists, and undermining the United States' reputation and effectiveness around the world. What a panel!
Earlier today, lunch speaker Sen. Patrick Leahy reminded us what's at stake in the next election and brought the room to thunderous applause when he asked why the Supreme Court upheld the Great Writ of Habeas Corpus by only a vote of 5 to 4.
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continue reading at Balkinization ...
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Both before and after the court's decision yesterday in Boumediene, I wrote that if the Guantanamo detainees are afforded habeas rights, there would be (and is) little reason to consider any legislative response: "B (As David Barron and others have noted, Congress could, of course, try to actually suspend the writ as to a category of detainees, but I'm assuming that there would be little political support in Congress for such a law.)
There are many prominent voices in the current debate, however, that continue to insist that a new statutory framework for detention policy legislative action is imperative—see, for example, the ubiquitous calls for creation of a new "national security court."
One of the most thoughtful such proponents is my co-blogger Ben Wittes, whose forthcoming book is a very well-written, carefully reasoned, and impassioned plea for Congress to step up to the plate, especially on the question of long-term detention.
Similarly, in today's Washington Post, Ben takes stock of Boumediene and comes away with this reaction: "Congress and the executive branch—whether the Bush administration or its successor—desperately need to enact a comprehensive legislative solution to the problem of detentions in the war against terrorism. ... Congress cannot afford to shirk [its] burden any longer."
I must confess (as I have discussed with Ben) that I just don't understand the urgency. It seems to me that, based solely on Ben's own (quite compelling) account of the problems under the Bush detention system of the past six years, Boumediene is a dream come true—an answer to Ben's prayers, a decision that in one fell swoop provides most (but not quite all) of what Ben would have the legislature do.
Let's review check Ben's bill of particulars:
Continue reading at Balkinization ...
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I've not much to say about yesterday's Boumediene decision that hasn't been said elsewhere. But let me add one small point:
Critics of the Bush administration's prosecution of the war on terror often argue that the president's interpretation of the law (either on his own, or with Congress) cannot be left unreviewed by the federal courts. Too often such critics have invoked, preposterously, the specter of King George III.
Justice Kennedy's opinion does not embrace the tone or rhetoric of the Bush administration's more breathless critics, but it does echo (at pp. 35-36) the basic theme that the "political" branches' interpretation of the Constitution cannot be left unreviewed by the courts. The court invokes Marbury v. Madison for the proposition that to defer to the executive or legislative branch's interpretation of the Constitution in this case would give rise to "a striking anomaly in our tripartite system of government."
Indeed, the court goes so far as to suggest (erroneously) that, absent habeas jurisdiction over Gitmo, "it would be possible for the political branches to govern without legal constraint."
Such challenges to the unfettered discretion of the other branches are quite ironic: After all, in Boumediene, the Supreme Court defined—without "check" or "balance" by the other branches—the scope of its own constitutional power to issue the writ of habeas corpus to noncitizens imprisoned in Cuba.
Of course, it's hardly novel for the court to determine the scope of its own power: Article III courts make such determinations quite regularly, by reference not merely to the jurisdictional statutes but also to the constitutional doctrines of standing, ripeness, and the like. Yet, so often since 2001, the same groups criticizing the president's assertion of unreviewed discretion with respect to, say, surveillance or detention issues in the current war are the very same groups that applaud the Supreme Court's assertion of unreviewed discretion with respect to the jurisdictional aspects of, say, Massachusetts v. EPA. (To say nothing of the hell they raise when members of Congress propose to limit the court's jurisdiction by statute.)
Simply put, why do some people applaud the Supreme Court when it asserts unchecked power to define the scope of its own power while they denounce the president (who, unlike the court, is checked by the ballot box, as well as impeachment and the power of the purse) when he attempts to put into effect his definition of the scope of his power under Article II?
Of course, I'm not saying that the court acts improperly when it defines, without a check by the other branches, the scope of its power under Article III or the habeas clause. Hardly. But I'm quite comfortable with the other two branches (or, as the court called them yesterday, repeatedly, "the political branches") giving effect to their own interpretations of the Constitution, too—especially when those two branches are subject to review at the polls.
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My first thoughts in response to the decision can be found here, but I have a few additional observations, largely in response to prior posts.
Marty and Emily are quite right to raise the question of whether the decision yesterday moots the need for legislation on detention. After all, the court has given detainees much of the process I and others have been arguing that Congress should give—at least on the surface. But there are key differences between the new nonstatutory regime and the type of system I would like to see enacted in law. And these differences are, in my judgment, all important.
The most significant difference is that habeas—even under Justice Kennedy's ruling—is a back-end process. While we can expect that in the future it won't take seven years for detainees to get hearings, it will still take a long time; just ask any state court inmate who has litigated a federal habeas case challenging his conviction. Moreover, because the habeas process follows and evaluates the intake review procedure for detention, its density and seriousness—as Justice Kennedy made abundantly clear—depends to a great degree on the integrity of those procedures. Anemic CSRT review will lead to more intense habeas review. Something serious upfront, by contrast, will lead to more deferential habeas review. Again, just ask that state court inmate, for whom the federal courts have developed layer upon layer of doctrinal deference to the procedures that put him away.
The idea of a national security court—at least as I envision it—is to place a serious review mechanism right up front. This would have three very significant benefits both for detainees and for the government over the CSRT-leading-to-habeas scheme that, as of yesterday, is now our national law. The first is that it would allow the innocent detainee a much earlier crack at a neutral tribunal. Instead of waiting around for the government's review mechanisms and then challenging them in court, the court proceeding would become the review mechanism itself. Ask yourself this: Would Murat Kurnaz (or some other probably innocent detainee) have preferred that his CSRT have had reasonable rules and that Judge Joyce Hens Green—who in his habeas case much later raised serious questions about its integrity—have decided as an initial matter whether he was an enemy combatant or not? I think a reasonable detainee caught in a big misunderstanding would prefer a rigorous initial screening.
Second, because the government in my scheme would have gone through a rigorous process upfront, habeas courts—which the government is now constitutionally required to face—would have a serious record to which to defer. So the system would give a lot more certainty to the government regarding what standards, substantive and procedural, it has to meet for a detention to be kosher. Finally, a reasonable legislative scheme would have the court's jurisdiction persist as long as the detention itself persists—something that habeas review does not do. Once a detainee loses his habeas case and appeals, it's over for him—potentially forever. I believe the government should have an affirmative obligation to argue periodically for continued detention. Human rights groups have described proposals for such a detention regime as radical because they contemplate acknowledging in law the obvious fact that America preventively detains people on the basis of dangerousness. As a practical matter, however, what I'm advocating would be generous procedurally even compared with the regime Justice Kennedy has demanded.
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After Abu Ghraib, a whole bunch of fits and starts with military commissions, not to mention too loudly the disastrously wrong-headed, deadly, and costly occupation of Iraq, Boumediene will make perfect sense to most of the world that will be mercifully saved from reading the opinion.
The decision in Boumediene will no doubt be heralded as a victory for civil liberty and a further rejection of the foreign policy, including the conduct of the "war on terror," (if you believe there is such a war) of George W. Bush. The court, of course, did not repudiate either the president or his foreign policy in so many words, but that's what the opinion effectively does—that, and express the view that since we're not sure we're at war, holding people without formal charge or trial who may or may not be associated with the war we're not sure we're fighting for more than six years is not good.
Spurning the president's foreign policy is now commonplace. It is being done every day in offices, schools, and homes across the country; there's no reason the court can't get into the act, too. So, despite its soaring rhetoric that "security subsists in fidelity to freedom's first principles," the opinion might be summarized as: Our security was breached on 9/11; we are unsure of the scope of the continuing threat, but we're feeling safe now. Because that is the case, Guantanamo will be treated as functionally part of the United States, and alien detainees who are within it will be given access to the federal district courts by means of the writ of habeas corpus. It is just not proper to keep noncitizens in custody for six years with no regular, Article III judicial determination that we caught the real enemy.
Putting aside the disregard of precedent, the fact that the history of extending the writ beyond sovereign territory was at best a draw, and that once again the high court left it up to the district courts to figure out what now, it's a fine opinion. It is too facile to say the only losers are the detainees who have the writ but no real certainty that it means much of anything in particular. I bet more than a few petitions for release will be forthcoming with or without great specification of procedure. The chief justice's dissent admirably illustrates the empty suit character of the majority. I'm not prepared to join Justice Scalia's anticipation of military doom, though this much is true: The opinion disregards the wisdom of Justice Jackson, not in leaving an opinion lying around like a "loaded weapon" but by discharging and leaving a mess of anything that used to make sense in the jurisprudence of warfare and foreign affairs.
Next time, issue a press release. They are shorter and easier to read.
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A sign of what's to come?
Here's the president's statement in response to Boumediene, courtesy of CNN:
President Bush, who is traveling in Europe, said he disagreed with the Guantanamo ruling but promised to abide by it.
"Congress and the administration worked very carefully on a piece of legislation that set the appropriate procedures in place as to how to deal with the detainees," he said. "We'll study this opinion, and we'll do so with this in mind to determine whether or not additional legislation might be appropriate so that we can safely say, truly say to the American people. 'We are doing everything we can to protect you.' "
Notice the president focuses on deciding whether there needs to be a legislative response to ensure "we are doing everything we can to protect you" rather than to correct the procedural deficiencies in the current legislation that led the court to conclude that it failed to provide the habeas right the Constitution guarantees in the absence of a valid suspension. In other words, it does not sound like the legislation he has in mind would be what we ordinarily think of as a legislative "fix."
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The second question presented by the Boumediene petitioners was the substantive question—one that the trial judges will now consider on habeas—of who, exactly, the president is authorized to indefinitely detain in the conflict against al-Qaida. (I have much more to say about the merits of this question, and its application to the Bosnian Boumediene petitioners, in my posts in this Federalist Society debate.)
Not surprisingly, the court emphasized that it was not resolving that question now. Two sentences in the court's opinion, however, are relevant and (potentially) quite important on this question.
First is this one, on Page 59: "Whether the President has such authority [to detain petitioners indefinitely] turns on whether the AUMF authorizes—and the Constitution permits—the indefinite detention of 'enemy combatants' as the Department of Defense defines that term."
Two things interesting about this. The first is that the court appears to agree with the petitioners that the scope of detention authority is a matter of congressional intent as reflected in the AUMF (which the court in Hamdi properly construed to incorporate the laws of war)—with no mention of any additional constitutional detention authority, as argued by the SG.
Second, and more important, the court very conspicuously indicates that there might be constitutional limits on the power of even the Congress to authorize indefinite detention. That's a very fascinating, and important, suggestion that is sure to be much discussed now that the court has held that the detainees are entitled to at least some constitutional protections.
The second sentence is this one, on Page 68:
The law must accord the Executive substantial authority to apprehend and detain those who pose a real danger to our security.
I am reluctant to read too much into this sentence, which was not included in a discussion about the scope of detention authority. But it does at least hint at the same point that Justice O'Connor made in her plurality opinion in Hamdi, namely, that dangerousness—i.e., actual combatancy or threat of terrorist activity—is the touchstone for indefinite detention, and that perhaps the military lacks the authority, which the Bush administration has asserted and exercised, to indefinitely detain persons either because they have "aided" al-Qaida or affiliated terrorist groups, and/or because of their intelligence value (see discussion here).
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Though the opinion in Munaf and Omar should give us all some pause, I'm still thinking that today's Boumediene opinion comes as close as I've seen the court come to sounding the death knell for broad judicial deference to the executive on matters of national security.
The majority opinion doesn't just embrace a functional approach to resolving questions of the scope of the Constitution's applicability abroad. (When constitutional lawyers talk about functional approaches, they generally mean something that takes into account the practical effects of a particular outcome in resolving questions of constitutional power). In announcing the practical considerations that matter, Justice Kennedy's opinion gives executive claims of security necessity (that is, the executive's view of what's practical) at Guantanamo the back of his judicial hand.
What does matter in determining whether the Constitution (here, the Suspension Clause) constrains U.S. actions outside the territorial United States? Kennedy says three things: 1) citizenship and status of detainee; 2) the nature of the site of the detainee's apprehension and detention; and (3) practical obstacles inherent in resolving entitlement to writ. What about the practical obstacle the administration's been touting all along—that full habeas hearings with consideration of all evidence and so forth would compromise U.S. national security? According to Kennedy: "The Government presents no credible arguments that the military mission at Guantanamo would be compromised if habeas corpus courts had jurisdiction to hear the detainees' claims." Ouch.
Marty's right that today's decision leaves open the critical next question of what about the habeas petitioners today held at the United States base in Bagram, Afghanistan. But that's a pretty strong shot across the bow of the executive branch all the same.
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In holding that the reach of the Constitution is to be measured functionally, not formally, a majority in
Boumediene resolves a question previously muddled by plurality opinions.
Whether U.S. agents must adhere to the U.S. Constitution when acting outside U.S. territory is a question various courts have answered in different ways. As I'd outlined
here when
Rasul was pending (Pages 295-99), a line of splintered decisions that I've called "maximalist" indicated that the Constitution always constrained agents abroad. A "minimalist" line indicated the opposite, and neither expressly overruled the other.
A close reader of Justice Anthony M. Kennedy's concurrence in one of the latter cases,
United States v. Verdugo-Urquidez (1990), might have expected that when give the chance, he would reconcile the two lines with a midway approach; that is, by taking the lead of Justice John Marshall Harlan in
Reid v. Covert (1956) (concurrence) and hold that whether the Constitution applied in a particular extraterritorial instance required careful reviews of all the circumstances.
And today, that is exactly what Kennedy did as he wrote for the court that "practical considerations" compelled extension of the constitutional privilege of habeas corpus to noncitizens detainees held at Guantanamo.
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As I noted in my previous post, the two most important questions the court did not answer are:
1) Would habeas rights extend to alien detainees held in foreign locations other than Guantanamo (such as Bagram)?
and
2) What is the substantive standard for who may be indefinitely detained?
The court was not, however, completely silent on these questions; it provided hints about how they might be resolved. In this post and the next, I'll try to identify those hints. Please note: I am not suggesting that the court issued any holdings or that the hints are determinative of how the court will ultimately resolve the questions. They're merely tea leaves, albeit very carefully considered tea leaves that government officials, lower court judges, lawyers, and presidential candidates would be advised to parse carefully.
So, as for the first question: Would habeas rights extend to alien detainees held in foreign locations other than Guantanamo? That is to say, can the military avoid the impact of Boumediene simply by detaining or transferring all alleged alien enemy combatants to a different facility, such as at Bagram?
Short answer: No.
But that doesn't mean that habeas will be available wherever and whenever the military detains alleged combatants.
It will not be available, for instance, in the first few days or weeks of detention at a facility close to a field of battle or in "an active theater of war." The military must be given deference to utilize "reasonable screening and initial detention," even if only "under lawful and proper conditions of confinement and treatment and "for a reasonable period of time."
More broadly, the court suggests that habeas rights will be circumscribed, perhaps even denied, if and where the government demonstrates that such proceedings would "divert the attention of military personnel from other pressing tasks," or where the government presents "credible" arguments that the proceedings would "compromise[]" a "military mission." Moreover, the court suggests that habeas rights would be more limited or dubious where adjudicating the petition "would cause friction with the host government."
In all of these cases, Justice Kennedy emphasizes, a "relevant consideration in determining courts' role" is "whether there are suitable alternative processes in place to protect against the arbitrary exercise of governmental power." Where there are no such adequate alternative protections against arbitrary governmental power, habeas rights will not be denied simply because of the foreign location: "[C]ivilian courts and the Armed Forces," after all, "have functioned along side each other at various points in our history."
Most importantly, the court strongly implies that if, as in this case, the government chooses a foreign detention facility for the very purpose of avoiding judicial review (or perhaps even if the military retains a prisoner at a battlefield locale for the same reason), the court will not look kindly upon such efforts. As I noted below, I believe the single most important sentence in the opinion might be this one:
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David, you're right: Kennedy's opinion in Boumediene calls Congress out. Hey, you want to suspend habeas, go ahead, but we're not going to let you back into it by mumbling about jurisdiction-stripping. Which makes it striking that in the opening of his dissent, Chief Justice Roberts attacks by asserting that "this decision is not really about the detainees at all, but about control of fedreal policy regarding enemy combatants." This is the classic accusation that the court is overstepping itself in a spat among the branches. And yet in his opinion, Kennedy keeps the court on a pretty narrow path, defining the right of habeas corpus (much weighty historical analysis on this front) and explaining why, because of its constitutional significance, Congress can't wish away habeas with a lot of indirection.
Roberts is right that the big question is what happens next. But what he calls "a set of shapeless procedures to be defined by federal courts at some future date" is the Supreme Court sending this case back to the lower courts to fill in the contours of exactly the sort of due process to which the detainees are entitled. That's standard operating procedure—if the majority had filled in all the blanks itself, wouldn't the dissenters have accused them of overreaching? And Kennedy offers pretty specific guidance. He wants a habeas or habeaslike process that has "the means to correct errors" in the initial procedure, in this case, the Combatant Status Review Tribunal. And he wants the detainees to be able to offer their own "relevant exculpatory evidence." The shortcoming of the CSRT is the "considerable risk of error in the tribunal's finding of fact," that's what habeas is designed to protect against, and since we're holding these detainees over the long haul (yes, six years already, as Deborah points out), they're entitled to that protection, too.
What about Marty's key question: Should Congress respond now to the court? I'm curious about others' reactions, especially Ben's, since this cuts close to his book. My own initial reaction is that the decision today is evidence that the courts are doing their best to sort through the incredibly difficult dilemma that the Guantanamo detentions pose. I know we've waited six years already, but I'm willing to wait more to see what they come up with. On the other hand, we're nowhere near the cliff's edge of deciding whether any of these guys should or could be released. And given how dicey that question is, legislative involvement would help the court a lot, politically speaking. That is, if we could ever trust Congress to get it right.
One more question: How does this decision play out in the presidential campaign? Does it give McCain fodder and make Obama defensive? Or can the Democrats figure out a way to harness it ito the deep misgivings about Guantanamo that by now are widely shared?
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While there's much, much more to be said on the Supreme Court's blockbuster decision today in Boumediene, the not-quite-companion case involving U.S. citizens held by the Americans in Iraq also came down today—and the news there is hardly pro-detainee.
In a unanimous decision, the court ruled that while the U.S. federal courts have jurisdiction to hear the habeas petitions of Munaf and Omar (the U.S. citizen detainees), Munaf and Omar would lose on the merits of their habeas claims—and there's therefore no justification for blocking their transfer to the Iraqi authorities for criminal prosecution.
The detainees' key claim was that they were likely to face torture if transferred to the Iraqis for prosecution. The court concludes that this claim is "of concern," but that it is primarily up to Congress and the executive to determine how to handle it. Since the State Department has determined here that the Iraqi detention facilities are good enough, the court decides it is in no position to challenge that determination.
Souter, Ginsburg, and Breyer concur separately in an attempt to limit the scope of the decision—emphasizing that the court is reserving judgment on whether the outcome would be the same in the "extreme case in which the Executive has determined that a detainee [in U.S. custody] is likely to be tortured but decides to transfer him anyway." But given the briefing the court had before it in this case, including this amicus brief detailing all the reasons why torture was likely in this case, it's a little hard to imagine just what kind of exceptional circumstances they have in mind. Among other things, the same State Department had said in its most recent country report that Iraqi jails have "significant human rights problems," including "torture and other cruel, inhuman, or degrading punishment" and "[a]busive interrogation practices" including "rape, torture and abuse, sometimes leading to death."
I'm not sure which is more remarkable about the decision—the fact that it was unanimous or the fact that the court decided to reach the merits of the habeas claims that the men were being held in violation of their rights under U.S. law. I'll say it was the decision to reach out and decide the merits—of a piece, one might note, with Justice Kennedy's paean to the role of the federal courts in such matters in Boumediene itself: "Because our Nation's past military conflicts have been of limited duration, it has been possible to leave the outer boundaries of war powers undefined. If, as some fear, terrorism continues to pose dangerous threats to us for years to come, the Court might not have this luxury." Read: We've been holding back. We're no longer so inclined.
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There’s much fulminating in the dissents about the court usurping the judgment of the political branches, accompanied with the contention (particularly forcefully asserted in Scalia's dissent) that the court’s recognition of habeas rights creates a grave security threat to the nation. But it’s worth recalling one basic fact about this whole litigation: The government of the United States (neither the president nor the Congress) has never argued that the writ of habeas corpus should actually be suspended, something the Constitution permits so long as the constitutional standard for doing so is met. As the Constitution says, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Instead, the government has argued only that habeas does not apply to these detainees because of who and where they are and that, even if habeas does apply, the current statutes provide an adequate substitute for it. The court, of course, has now rejected both of those arguments. But if, in the view of the political branches, the public safety really precludes the modest increment of additional process that constitutional habeas now requires in the eyes of the court, nothing prevents the political branches from arguing that the writ should actually be suspended and then passing legislation to suspend it. That the political branches have not to this point seen fit to do so—and that there is not and has not yet been the political support in Congress for such a suspension (putting aside the separate question whether the court would conclude that such a statutory suspension meets the constitutional requirements for suspension)—goes some distance in my view in undermining the contention that the court has somehow usurped the power of the political branches to protect the public safety. All we now know is that the political branches have consistently avoided claiming a power to suspend, concluding instead, wrongly, that habeas did not apply to these detainees and that the newly constructed process for reviewing their detentions would be enough to satsify the constitutional guarantee of habeas.
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The much-anticipated Boumediene decision by the Supreme Court is out—and on first, very quick read looks like a large victory for the Guantanamo detainees. Among other things, the court seems to conclude full habeas corpus hearings in the federal district court should proceed without delay. Here's one key excerpt (and more enlightened discussion no doubt to follow).
The Government argues petitioners must seek review of their CSRT determinations in the Court of Appeals before they can proceed with their habeas corpus actions in the District Court. As noted earlier, in other contexts and for prudential reasons this Court has required exhaustion of alternative remedies before a prisoner can seek federal habeas relief. ... The cases before us, however, do not involve detainees who have been held for a short period of time. ... Were that the case, or were it probable that the Court of Appeals could complete a prompt review of their applications, the case for requiring temporary abstention or exhaustion of alternative remedies would be much stronger. These qualifications no longer pertain here. In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens that it cannot respond to habeas corpus actions. To require these detainees to complete [MCA] review before proceeding with their habeas corpus actions would be to require additional months, if not years, of delay. The first [MCA] review applications were filed over a year ago, but no decisions on the merits have been issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas corpus hearing.
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The Court held 5-4, in an opinion by Justice Kennedy, that the petitioners at Gitmo have a constitutional right to petition for habeas corpus and that the DTA/MCA process of D.C. Circuit review from CSRT decisions is not an adequate alternative to habeas. Thus, the petitioners will be able to have habeas petitions considered in district court.
That's very, very big news. But as far as I can tell just yet, the court did not reach the two even more important questions:
1. Whether the Constitution applies to detainees held outside Gitmo; and
2. What the substantive standard for detention is: "It bears repeating that our opinion does not address the content of the law that governs petitioners’ detention. That is a matter yet to be determined."
At first glance, it would appear that although the decision is momentous, there are other important things that it does not do:
It does not speak to whether Gitmo should be closed (although it basically undermines the administration's principal reason for using Gitmo in the first place, which was to keep the courts from reviewing the legality of the executive's conduct).
Nor does it affect, in any dramatic sense, possible military commission trials—with the important exception that it invites the defendants in those trials to raise constitutional defenses, such as under the Ex Post Facto Clause.
Moreover, as I wrote here last week:
"I do not see any serious impetus for congressional action before the election. Why?
Well, for one thing, the Court's decision will almost certainly not affect the MCA military commissions themselves—the trials of a small percentage of the GTMO detainees for alleged war crimes violations—and therefore there will be no call for a new 'special court' process to replace the commissions. ([Because the Court holds that the Constitution applies at GTMO, that might enhance some of the defendants' specific claims and defenses in those trials, such as under the Ex Post Facto Clause (the argument that the conduct they are alleged to have engaged in was not a crime at the time of its commission)—but that would not in and of itself call into question the very existence of the commissions or precipitate an overhaul of the commission process.)
What about a new detention statute, not for those detainees to be tried for violations of the laws of war, but for the vast majority of detainees being held indefinitely as 'enemy combatants'? Well, [because] the Court holds that such detainees are entitled to habeas, and that the D.C. Circuit scheme is not an adequate substitute, then any new replacement regime Congress might legislate would have to effectively recapitulate the protections of habeas—and why should Congress bother with that, once habeas proceedings have commenced?"
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This just in via SCOTUSblog—the Supreme Court decided today in a 5-4 opinion that detainees at Guantanamo Bay could bring petitions for habeas corpus in federal district court. As Jeff Toobin just said on CNN, this marks the third time (more if you count each individual opinion) that the Supreme Court has taken the Bush administration to the woodshed over its detention and interrogation regime. More analysis to follow ...
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Over at XX Factor they’re having an interesting discussion about whether Democrats who now say they’re going to vote for McCain are racists. As someone who wrote a whole book about why it’s a bad idea to make this particular accusation lightly, I have to agree with Melinda Henneberger that “supporting Hillary, or now McCain, over Obama does not a racist make.” But there’s a big distinction to be made between liberals who supported Clinton over Obama and those who support McCain over Obama. For a liberal to support Clinton over Obama suggests nothing about his or her attitudes on race because Clinton’s policy positions are liberal. Of course, it might be that support for Clinton was due to racism, just as it might be that support for Obama was due to sexism, but there is really no reason to assume this—it’s not even evidence of racism, much less proof. But when a liberal supports McCain over Obama, that does call for some explanation. Why reject the candidate whose policy positions are in line with your own? This is still is far from proof of racism, but it makes you go hmmn, as Arsenio Hall would put it.
Of course there are a lot of explanations that don’t involve racism. Maybe some Democrats for McCain really buy into the experience line; maybe some voted for Clinton mainly due to gender solidarity and actually prefer many of McCain’s policy positions. Personally, I suspect most Democrats for McCain are driven not by racism but a much more widespread, simpler, and more primal motivation: spite.
I suspect a lot of the reason Obama supporters want to tar every Democrat gone over to McCain as a racist is that they suspect that some unsavory motivation underlies this strange shift in political alliances and jump to the most uncharitable conclusion: racism. Juries are apt to do this in discrimination cases, too: If the employer is acting out of favoritism, vindictiveness, or spite, they figure he’s probably a racist, too. But in fact the likelihood of another unsavory motivation, sufficient in itself to explain the decision, cuts against the inference of racism: If Clintonites could be motivated to support McCain by spite alone, then we have less of a reason to suspect them of racism.
Oh, by the way, before the hate mail from Clinton supporters pours in: I have no doubt that many Obama supporters would have succumbed to a spiteful solidarity with McCain had Obama lost to Clinton. (Oh, oh: Is that just going to get me more hate mail?) Crushing disappointment and a resultant spiteful backlash has been a real risk in this primary of potential “historic firsts”: Someone had to come in second, and some profound symbolic triumph over bigotry and oppression had to be delayed. That’s hard to take, and we can expect the McCain campaign to try to capitalize on the resentment of the losing faction. I think Obama could probably win the election without the racist vote, but he may have a hard time winning without the spiteful vote. Let's hope those liberals for McCain decide they like their faces enough not separate them from their noses.
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The problem with being a judge who loves to shock is that you're a flashy barracuda in a school of plain tuna, and you risk careening off into the high seas that are the province of public officials who are just too out there for their own good. Such is my thought after reading that Judge Alex Kozinksi posted porn on a web site he thought was private but wasn't. The material included "a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal," we learn from the los Angeles Times. We can't judge for ourselves anymore, because the site has been wiped clean, but if Judge Kozinski says that he found the porn funny, I bet he did—and it was probably offensive, too. Herein lies the Kozinski challenge. He is a transgessor, a flouter of boundaries, a man of many appetites. When he wrote a weeklong diary for Slate in 1996, he told us all about going to a lingerie and pajama party. ("The Location: Gatsby's Rendezvous by the Sea, 'the house that all of Malibu deems the scandalous haven of sleepless nights.' ") When I profiled him in 2004, the art for the piece depicted him as a circus master—and he liked it enough to ask for a copy. Plenty of other examples could be inserted here, and Phil has plenty of company in appreciating Judge K's quirks. Lots of reporters and court watchers have urged him onward with our appreciation. And now that we know that among the many things he appreciates are women painted to look like cows, how can we go all schoolmarmish? I know, I know, judges are supposed to be beyond reproach, and this is the opposite of that. And yes, being outed for semi-public porn-sharing while trying an obscenity case is pretty rich. It's the sort of plot twist Judge Kozinski would write into a screen play. Maybe that's the answer: Toss the bench and move to Hollywood.
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When I read the news today about Judge Alex Kozinski's posting of inappropriate material on the Internet, it jogged my memory about Judge K's long history of advocacy on Internet use and privacy.
Back in 2001, Kozinski led an effort by 9th Circuit judges to circumvent, disable, and overturn a computer-monitoring system put in place by the Administrative Office of the U.S. Courts. Kozinski wrote several long memoranda to his colleagues on the bench and the Administrative Office, excoriating the monitoring system and the bureaucratic leaders who imposed it. In one New York Times article about Kozinski, the reporter (perhaps with Kozinski's urging) compared the monitoring to what he experienced as a child behind the Iron Curtain. And in an op-ed for the Wall Street Journal, Kozinski himself wrote that "according to a policy that is up for a vote by the U.S. Judicial Conference, we may soon start treating the 30,000 employees of the judiciary pretty much the way we treat prison inmates." Clearly incensed, he later called the monitoring scheme a "pure, bureaucratic power grab."
Don't get me wrong—I really like Judge Kozinski and his quirks, and have admired him since I first interviewed him in 1996. But I think he erred in this case. And in light of today's news, he probably leaned too far forward in his fight against the Internet-monitoring scheme in 2001.
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In
seeking to defend the call for a novel means to prosecute persons suspected of terrorism, Ben deploys phrases like "viable trial regime" and "what we want as a society" and "another legitimate system." He contends that absent adoption of this new-fangled mechanism, "we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe." Packed in that single paragraph are myriad assumptions. But the notions that due-process-lite tribunals can be "legitimate," and that without them "we ... as a society" will have to resort to an "administrative detention apparatus," demand debate, not positing as base-line assumptions.
A final question:
If a new form of criminal trial and/or administrative detention are the only options, how have we, as a society whose Constitution is 228 years old, survived without them?
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In an interesting new article in the Green Bag, Stephen Vladeck offers a creative solution to what he (and Justice Scalia, in INS v. St. Cyr) refer to as the "one-way ratchet" of habeas corpus.
To summarize Vladeck's point in the briefest of terms: He observes that the fight over congressional tightening of statutory habeas relief is complicated by federal prisoners's inability to pursue the common law writ of habeas corpus in federal district court or state courts:
Taking Bollman at face value, the common-law writ of habeas corpus is a remedy that the Article III courts are constitutionally powerless to provide. Taking Tarble at face value, such a remedy is also one that state courts are constitutionally powerless to provide against federal officers.
Vladeck's solution: allow the local D.C. courts to entertain habeas petitions. They aren't Article III courts subject to Bollman, yet they aren't state courts subject to Tarble. To do so, he notes, would require the rescission of D.C. Code Section 16-1901(b), which prohibits the filing of petitions for writs of habeas corpus against federal officers in the local D.C. courts.
But is Section 16-1901(b) really the only roadblock? Unless I'm mistaken, Vladeck completely ignores the problem of assigning habes petition jurisdiction to an Article I tribunal. In Palmore v. United States (1973), the Supreme Court explained that the local D.C. courts were Article I courts, not Article III courts. As the court recognized in Northern Pipeline Construction v. Marathon Pipe Line Co. (1982), Congress cannot assign to an Article I court jurisdiction over matters that are "inherently ... judicial."
I am no expert in the nuances of this corner of the law, but my initial reaction is that habeas corpus proceedings are nothing if not "inherently judicial." As the court recognized in Rasul, habeas corpus is “a writ antecedent to statute … throwing its root deep into the genius of our common law.” Indeed, the Constitution's protection of the writ of habeas corpus against improper executive or legislative interference seems to make all the clearer the writ's roots in the courts, and not in legislative or executive tribunals.
Perhaps those more knowledgable on the point can correct me: Have federal habeas petitions ever been the province of executive or legislative tribunals?
Update (6/14/08): Steve Vladeck let me know that the next draft of his paper (not yet published on SSRN) does does with the Article I courts issue.
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Seeing my own words in print again, Ben, you're right, my question about criminal trials in federal courts came out a bit more gauntlet-y than I intended. Chalk it up to accumulated Guantanamo exhaustion. You've nonetheless given a good, thoughtful response, so let me offer a few quick reactions here (and figure we'll continue the discussion if not sooner at the American Constitution Society fiesta later this week).
On what existing options we have—your response seems to assume we've got federal courts or military commissions or nothing. That excludes the good old-fashioned court-martial, which I think many of us thought (at least I did and some JAGs I know) would have been just fine in cases where we needed to prosecute those picked up in Afghanistan or thereabouts. I'd still take the court-martial over the current military commissions any day: settled procedure (with room for discretion), trained participants, fair process, experienced in handling classified information, appeal to an established independent tribunal. You could perhaps still persuade me that despite all the water under the bridge, they might still work for a number of those we need to try at Guantanamo. You don't see the court-martial as an option at least for some?
On assessing how the federal courts have performed—you're quite right that simply saying they're better than the Guantanamo commissions is low praise, indeed. Too low, especially given the rather extraordinary degree of success prosecutors have had there. Instead, you say in response: It doesn't matter how well the courts have done in cases actually brought to trial, what really matters is how they would handle the whole universe of people we might ever want to detain—a universe you acknowledge is not well-defined but about which you are certain the federal courts aren't suited. Well, it would be great indeed if the administration would see fit to disclose a bit more about that whole universe of cases. In the meantime, it's hard to see how we can draw any conclusions about the federal courts' skills in that realm one way or another as long as, as you say, we don't actually have a handle on it.
More directly to your point, though, I do not argue that "the criminal law [is] the sole source of authority to detain people in the war on terrorism." Hard to know where to begin in citing my past comments on this, but you might take a look at a few of my briefs/writings here or here. The federal government has tons of detention authority beyond the (increasingly broad but still largely constitutional) criminal law—from immigration and civil commitment and material witness laws to, yes, battlefield detention under Congress' post-9/11 authorization for the use of force. Could be we disagree about the scope of the current "war," or the procedural limits the law of war imposes on executive power, but I'd be (and have been) the last to say the federal government shouldn't use its full range of lawful authority, all instruments of national power, etc., etc. in addressing the terrorist threat.
What I have suggested is that somewhere in all that existing detention power (all of which is currently supervised by existing judicial and administrative institutions), we might just already have what the detention universe demands. Now if I'm wrong about that, and the federal government needs more detention authority than it currently has, what we need isn't just (or particularly) a new court—we need a new statute authorizing the detention of some specific-enough-to-be-legal definition of others needing to be detained. But until the "new court" folks get down and dirty about who else, exactly, they want to detain, for how long, under what conditions, and why—then I can't figure how we know what kind of institution we need.
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Deborah has thrown down a gauntlet to me: "Any court we pick-commissions, courts martial, federal courts, some new system-is going to have to grapple in prosecutions with tough questions of classified evidence, confrontation rights, and (because of this particular administration's own past bad acts) the treatment of the accused. I'd say there's no current institution that has the tools, experience, and legitimacy to do this balancing better than the federal criminal courts. Ben, do you disagree?"
And I am going to cop out: yes and no.
Deborah's question is a fair one-and at least for me, it has no simple answer. Here's a sketch of my complicated answer, which I flesh out more fully in my forthcoming book, Law and the Long War: The Future of Justice in the Age of Terror.
I agree that there is no current institution better prepared than the federal judiciary to try terrorism cases, but this is low praise indeed for the federal judiciary, and it does not imply that the federal judiciary is well-prepared for the job. To say that an institution is better prepared than the military commissions-which have to date convicted exactly one person, and him through a plea bargain-is hardly a commendation. If the question is whether I regard the federal courts as the optimal environment for trying terrorist cases, the answer is no. This is why I believe that we need a hybrid institution, mixing the prestige of the federal courts with some of the flexibility of military commissions on rules of evidence and handling of classified information. Call it a national security court or call it something else. But it looks exactly like neither of the systems we have today, though it draws on elements of both.
To cite the group of cases the government has actually prosecuted in federal court as evidence that the federal courts are up to the job is to stack the deck in the debate. Nobody doubts that the federal courts are up to the job in some cases, not even the Bush administration. To look only at the universe of cases prosecuted in American courts is to study a preselected sample of cases carefully chosen by prosecutors for their amenability to trial in U.S. federal courts. This is, in other words, an expression with the wrong denominator. The right denominator-much harder to get a handle on-is the universe of cases in which the government would reasonably seek to use the criminal law to neutralize or punish a detainee. The evidence that the federal courts are up to this task is, in my view, decidedly unimpressive-particularly if, as Deborah also advocates, we're going to rely on the criminal law as the sole source of authority to detain people in the war on terrorism.
The failure to establish a viable trial regime for terrorism cases has been one of the current administration's most startling failures. If our answer to that failure, however, is a singular reliance on federal court trials, I make the following prediction: We will see very few trials compared with both what we want as a society and what we could get in another legitimate system. And we will consequently put a huge amount of weight on whatever administrative detention apparatus we use as our fail-safe.
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I am confused. The New York Times first reports that John McCain now agrees with the Bush administration that the president has the constitutional power to disregard FISA. Now, today it publishes a story saying Bush is alarmed he'll lose the statutory authority Congress recently gave that permits him to get around the old FISA framework. But wait-I thought Bush said he could not be bound by legislation in this area in the first place, so great were his powers as commander in chief. So, why then is he worried about whether Congress does or does not renew the temporary legislation permitting him to get around FISA? Can't he just disregard FISA no matter what Congress does or does not do? And isn't that just the legal position that McCain was supposedly signing on to a couple of days ago?
Of course, one possibility is that the administration actually won't comply with FISA even if Congress fails to reauthorize the current Terrorist Surveillance Program. Sure, it says it will be required to do so, but that's just part of an effort to pressure Congress into granting new powers. When push comes to shove, the administration will do what it did when no one knew what it was up to: just defy the laws on the books by claiming preclusive constitutional powers. But let's assume the administration is serious when it says that if negotiations on the Hill fail to result in a reauthorization, they'll be stuck with the old regime. What has changed that now makes them feel so stuck?
Is it:
1) Lawyers within the Justice Department have rejected the argument that the Constitution gives the president the power to disregard FISA and also concluded that recent legislative developments have rendered illegitimate the controversial claim that the initial Authorization To Use Military Force from 2001 superseded the old FISA regime? If so, that's a big deal, and it would be good to know how this internal legal shift came about.
2) Lawyers for the telecoms have finally balked and are no longer willing to participate in a program that is based solely on the administration's claims of commander-in-chief override power or the AUMF-supersedes-it theory. If so, it would be good to know what has caused the telecom lawyers to feel obliged to say, "No."
3) The FISA court has basically made it clear that it will make even the old regime useless so long as the administration also relies on a parallel, supersecret non-FISA surveillance program that has not been separately approved by Congress, presumably by deeming even requests under FISA fatally tainted. If so, it would be nice to know just what theory of law the FISA court is using and why the Bush administration feels the need to rely on the FISA process for some things in the first place such that it would lose something significant if it lost access to the old regime.
4) The politics of the moment have changed now that the whole supposedly secret program has been made so public that the debate over its legal underpinnings has become a campaign issue. So, even though the administration believes it has the legal power to disregard FISA and the telecom lawyers would comply with requests to do so, it simply no longer feels it can act on what it believes to be correct understanding of the law as a practical matter. But if so, what is it about present politics that are now so different?
For what it's worth, (1), (3), and (4) all seem like weak explanations to me, but this being a state secret and all, I have no idea. What I am interested in is the underlying puzzle: On the one hand, the administration is claiming preclusive constitutional authority, and we are debating the extent to which the Republican nominee shares that same constitutional philosophy. On the other, the administration is bemoaning the fact that Congress is forcing it to comply with an outdated statutory framework. How can both things be true? And if both are, what is the dynamic that makes the administration feel unable to break a law that it believes it has the legal right to break and that it has disregarded in the past?
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Like many corporate law and business law decisions, yesterday's Supreme Court decision in Allison Engine Co. v. United States ex rel. Sanders was virtually ignored by the media and blogosphere. Neither the New York Times, Washington Post, nor even the Wall Street Journal even mentioned it in their daily dispatches, choosing to focus instead on other opinions handed down yesterday. But for my government contracts practice, and my clients, this decision was of monumental importance.
The case arose out of the False Claims Act, a Civil War-era statute that provides civil liability and penalties for anyone who, among other things, "knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government." Notably, the statute contains a qui tam provision that allows individuals (called "relators") to sue on behalf of the U.S. government if they learn of such fraud and entitles these whistleblowers to a percentage of the recovery if the suit is successful. This provision was originally inserted to counterbalance a recalcitrant Justice Department that was unwilling to go after fraud. It has since launched a large and active plaintiff's bar in this area, and a great deal of litigation, too.
Yesterday, the Supreme Court narrowed two important parts of this statute considerably, by raising the bar for what a plaintiff must prove in court about a contractor's (or subcontractor's) intent, and the materiality of their statements. This is so significant because most False Claims Act cases don't involve clear-cut cases of fraud or deception. Rather, they typically turn on very granular facts. Many cases involve compliance certifications on one form or document, and requests for payments on another document, or sometimes only an "implied certification" of compliance. It would be a massive understatement to say there are thorny issues of proof in these cases.
With its decision in Sanders, the Supreme Court is making it much tougher for qui tam plaintiffs to prove contractor violations of the False Claims Act. Given the size and scope of the government contracts industry, and the amount of litigation involving these questions, yesterday's decision will likely have an effect far beyond its publicity.
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Apropos of Marty's recent FISA post, and following up on a discussion I had with Orin and Deborah a while back, I've written a newThe essay 1) describes the National Surveillance State; 2) shows how it is a special case of the Informational State—; 3) explains how the National Surveillance State arose organically out of the Administrative and Welfare State and National Security States; and 4) describes some the key constitutional challenges lie ahead.
I don't think there's any doubt that we are moving into both an Informational State and a National Surveillance State. Both major political parties have been participating—and will continue to participate—in its construction. The real question is what kind of state we will have.
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Joan Biskupic has a story today about how "much of [Justice O'Connor's] legal signature already is fading from the court." Joan generously cites me as someone "who has been tracking the fate of O'Connor precedents since she retired." She is referring to a post of mine to SCOTUSblog back in July 2005, listing almost three dozen precedents that were the most vulnerable in the wake of Justice O'Connor's retirement.
Last year, in a comment to a post by Michael Dorf on 5-4 decisions that might have come out differently if Justice Alito had not replaced Justice O'Connor, and in a post here, I republished a slightly updated list, which is limited to cases decided in O'Connor's final decade on the Court. I reiterated there that there were five high-profile constitutional areas where overruling was a serious possibility—and the court has already taken big bites out of the O'Connor precedents in three of those areas:
1. Abortion, where the court in Gonzales v. Carhart effectively overruled the standard for facial challenges in abortion cases, established in Stenberg v. Carhart (2000).
2. Race-conscious assignments and affirmative action. In last term's decisions in the Seattle and Louisville race-conscious student-assignment cases, the court severely compromised the impact of the court's 2003 decision in Grutter v. Bollinger.
3. Campaign Finance Regulation. In the Wisconsin Right To Life case, the court in effect invalidated the 60-year-old requirement that corporations and unions must use separate designated accounts (PACs), rather than general treasury funds, to finance election-related expenditures. The court, in an opinion co-authored by Justices Stevens and O'Connor, had just recently upheld that restriction by a 5-4 vote in McConnell v. FEC (2004). In future years, the court might also reconsider the basic Buckley v. Valeo/McConnell precedents that permit reasonable restrictions on campaign contributions.
4. Establishment Clause. In particular, the court could depart from Justice O'Connor's "middle-ground" position on state displays of religious expression (see, e.g., McCreary County v. ACLU (2005) (Ten Commandments displays)); and, more importantly, the court could retreat from nearly 40 years of precedents prohibiting the provision of "direct" financial aid (as opposed to vouchers) from government to religious schools and institutions. Justice O'Connor's concurrence in Mitchell v. Helms (1999) is currently the governing precedent.
5. Congress's powers to remedy discrimination under the Reconstruction Amendments, such as Section 5 of the 14th Amendment. See Tennessee v. Lane (2004).
I also noted that "[b]ecause most Justices consider stare decisis a more serious obstacle to overruling in cases of statutory construction (rather than constitutional interpretation), precedents below involving statutory construction (e.g., the Davis and Jackson decisions on title IX of the Education Act Amendments (sex discrimination)) might be more secure than many of the constitutional precedents, even if Justice Alito would not have voted the same way as Justice O'Connor as a matter of first impression."
Sure enough, last week's decisions in the two retaliation cases basically reaffirmed Justice O'Connor's decision in Jackson—and did so expressly on the basis of a strong stare decisis presumption.
Anyway, that list, again, is available over at Balkinization.
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Come this August, some of the electronic surveillance orders that were approved pursuant to the 2007 Protect America Act will begin to expire. As of now, there is no consensus in Congress on a replacement statute; therefore, as the New York Times reports tomorrow, "Congressional and intelligence officials are bracing for the possibility that the government might have to revert to the old rules of terrorist surveillance, a situation that some officials predict could leave worrisome gaps in intelligence. ... [O]fficials have been preparing classified briefings for Congress on the intelligence 'degradation' they say could occur if there is no deal in place by August."
What are these "old rules," anyway—the ones that would be back in play if there is no amendment enacted by August, and that would cause such an intel "degradation"? That would be FISA, of course—a statute that was amended at the behest of the executive many times since its enactment in 1978 and used effectively by the NSA for more than two decades. The attorney general is quoted as saying that a return to the FISA legal regime would be "unthinkable." But why?
Continue reading at Balkinization ...
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I'd just finished reading the spate of e-mails and articles about last week's opening proceedings in the military commission trials of KSM, et al. down at Guantanamo when I came upon the link to Ben and Dahlia's discussion of the matter (among other things) over at Bloggingheads.tv. The contrast between what I'd been reading in the news and what I think I heard to be Ben's take on the commissions-vs.-criminal-trials issue was pretty striking.
Here's what I just read. Story No. 1 in (take your pick) Newsweek, Time, the NGO trial blogs noted the rather stunning decision by someone at DoD to let the five "high value" defendants accused of direct involvement in 9/11 hang out together in the same room before the commissions began. Commentary seems uniform in concluding that the effect of this chat was to convince some of the defendants who had been planning on participating in the trial to boycott. Writes Newsweek:
Maj. Jon Jackson flew repeatedly to Guantánamo Bay, Cuba, in the past month trying to build a rapport with his client. The veteran military lawyer had been assigned to represent Mustafa Ahmed Hawsawi, a 39-year-old Saudi who is one of five alleged co-conspirators in the attacks of September 11. Jackson says he thought he'd gained Hawsawi's trust during eight meetings-despite his Army uniform. ... But Hawsawi's demeanor changed when he sat in the same Gitmo courtroom with Khalid Sheikh Mohammed, the accused architect of 9/11. At their arraignment last week, Mohammed, sporting a bushy white and gray beard and a white tunic, held a menacing sway over the other four detainees, instructing and even reprimanding them. Hawsawi had indicated he was ready to accept Jackson as his lawyer-but backtracked when Mohammed taunted him: "What, are you in the American Army now?" Jackson says his client was visibly intimidated. "He was shaking," he tells Newsweek.
The ACLU's Hina Shamsi adds: "Every one of the highly-experienced military and civilian criminal defense counsel we talked to today (together, they have decades of experience) said that it was unprecedented for alleged co-conspirators to be permitted to mingle and talk in this fashion." I'd never found it hard to understand why.
Story No. 2 I actually haven't seen reported anywhere, but you can get the opinion here. Ever heard of Ahmed Omar Abu Ali? Surprisingly few have. He's an American citizen (valedictorian of his Virginia high school) who was arrested in Saudi Arabia and charged with various material support and conspiracy offense based on his involvement with al-Qaida. Despite allegations (that look pretty credible) he was tortured while in Saudi custody (he has argued with the knowledge of U.S. officials), the 4th Circuit just upheld his criminal conviction (in a panel decision that split 2-1 on some issues). Beginning a detailed, thoughtful 98-page opinion, the court writes:
Persons of good will may disagree over the precise extent to which the formal criminal justice process must be utilized when those suspected of participation in terrorist cells and networks are involved. There should be no disagreement, however, that the criminal justice system does retain an important place in the ongoing effort to deter and punish terrorist acts without the sacrifice of American constitutional norms and bedrock values. As will be apparent herein, the criminal justice system is not without those attributes of adaptation that will permit it to function in the post-9/11 world. These adaptations, however, need not and must not come at the expense of the requirement that an accused receive a fundamentally fair trial. In this case, we are satisfied that Abu Ali received a fair trial, though not a perfect one, and that the criminal justice system performed those functions which the Constitution envisioned for it. The three of us unanimously express our conviction that this is so in this opinion, which we have jointly authored.
Hell of a case to go largely unremarked. It's not that I agree with every aspect of the panel's decision. But there's no one questioning the court's legitimacy. And Abu Ali—as has Zacarias Moussaoui—will now basically head unremarkably into an American prison for a lengthy term of years. Any court we pick—commissions, courts martial, federal courts, some new system—is going to have to grapple in prosecutions with tough questions of classified evidence, confrontation rights, and (because of this particular administration's own past bad acts) the treatment of the accused. I'd say there's no current institution that has the tools, experience, and legitimacy to do this balancing better than the federal criminal courts. Ben, do you disagree?
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The Urtext of Rick's pseudo-anti-intellectual anti-pseudo-intellectualism is, as he notes, Orwell's famous essay "Politics and the English Language," possibly the worst thing Orwell ever wrote, which, depending on how you read it (it's not very well written), argues:
1. People should write clearly rather than badly. —Thanks for that.
2. Bad writing conceals bad ideas. —Perhaps, but if so, it is self-limiting. No one who starts reading the five examples of bad writing provided by Orwell could possibly finish them; so, what have their authors accomplished? We should instead condemn people who by writing excellent prose make bad ideas sound good. The prototype here is Leni Riefenstahl, not Harold Laski. People with bad ideas who can't express themselves persuasively also can't have any influence.
3. People will support brutal military actions and other acts of injustice if the government uses bureaucratese ("a pacification campaign") rather than plain language ("slaughter of innocents") to refer to it. —The trick here is to insist that governments that believe they have good reasons to choose a policy that is regrettably but unavoidably brutal speak as if they are delighted by the brutality. This has nothing to do with clarity in the use of language, nor would any reasonable government engage in such self-defeating conduct.
Jargon, stale metaphors, empty rhetoric—all serve important purposes even if they can be misused. Politicians can rarely speak clearly because they must keep together diverse coalitions in a heterogeneous society. They avoid certain words and redefine others to avoid legal categories or moral taboos that interfere with good policy. Government officials, academics, and other specialists improve communication among themselves by using technical words with stable definitions. That these words, through repetition, lose their emotional impact is hardly surprising and probably beneficial, for it allows experts to maintain emotional distance when pondering sensitive issues of great complexity.
If politicians, bureaucrats, and intellectuals always spoke plainly, would the world be a better place? Would we all choose wiser policies if we said fetus-killing for abortion, war against radical Muslims for war on terror, and employment advantages for minorities for affirmative action? I doubt it. The contrary view depends on a sentimental, un-Orwellian (not in that sense of Orwellian) assumption that we'd all agree on everything if we just spoke plainly. Not until the revolution! Bad writing is bad, and bad politics is bad, and someone who puts bad writing to the service of bad politics commits a double offense against ethics and taste, nothing more than that. And they should at least get points for weakening the force of their own arguments.
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There has been a spate of stories in recent days endlessly recounting, parsing, and debating a long series of statements by Sen. McCain and his campaign about the extremely important question of whether the NSA's domestic surveillance program was unlawful or whether, instead, the president has the constitutional authority to disregard limits on electronic surveillance that Congress imposed in the Foreign Intelligence Surveillance Act (FISA). See, for example, Glenn Greenwald's, Charlie Savage's, and Orin Kerr's accounts.
The whole sordid timeline is provided in this Jake Tapper blog post, appending the McCain campaign's latest, even-more-ambiguous flip-flop.
Personally, I don't think the great debate about what McCain really thinks about the question is worth the candle. If one examines the entire series of statements, it soon becomes evident either that the senator and his staff have no earthly idea what they're talking about or (more likely) that they are quite deliberately being as ambiguous, equivocal, and contradictory as possible so that they can embrace whichever view is politically expedient at any given time and with any given audience. ...
... continue reading at Balkinization.
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Today's Wall Street Journal carries an interesting article ($) about the string of senior corporate officials recently detained while entering the United States. European officials are upset over what they perceive to be a broadening of American police powers in the context of the war on terrorism—and the use of these powers against European citizens. The Journal reports:
In what has become a longstanding charge that the U.S. isn't upholding European privacy standards in trans-Atlantic matters, European civil-liberties groups and government officials have expressed misgivings over rules instituted after the Sept. 11, 2001, terror attacks that require airlines to submit the names of passengers heading to the U.S.
The names are checked against watch lists maintained by government-security agencies. The process was enhanced to prevent terrorists from entering the country, but also aids law-enforcement agents working on criminal investigations. Federal agents who want to question a traveler can use government databases to learn when a potential target is entering the country.
Fears about the U.S. use of this data were rekindled in recent weeks after executives and employees from defense contractor BAE Systems PLC and Swiss bank UBS AG, were briefly detained by federal investigators related to separate bribery and tax probes.
... Stewart Baker, the DHS's assistant secretary for policy, defends U.S. privacy protections and in particular its collection of passenger data. "It is unfair to assume that this information originally was gathered only for antiterrorism purposes, or that it is being misused if it is used in criminal investigations," he said.
I had two reactions to this story and the earlier news about these corporate arrests. The first was that the system seems to be working. According to the 9/11 Commission report, various U.S. databases contained negative information on roughly half of the 9/11 hijackers—yet all were allowed to fly. Today, one agency conducting an investigation is able to coordinate with another agency and flag a specific individual for detention and/or questioning. Setting aside all of the many problems with false positives, overreaching investigations, and the other important issues of due process here, I think this represents a quantum leap forward for law enforcement.
Second, and more broadly, I think this illustrates the extent of what Jack and others call the "national surveillance state" and the total inability of a citizen to avoid the state's surveillance if he/she wants to live a modern life. If you want to travel, use mass transit, enter a public building, use a public road, or use global communications, then you effectively must submit to some level of state surveillance. In practical terms, Fourth Amendment carve-outs like the "regulatory exception" and the "consent exception" now swallow the rule, because no modern person can live without submitting to this regime.
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Rick Hills has certainly read his Orwell more recently than I, and he is quite right to insist that Orwell attacked intellectuals frequently. I didn’t mean to suggest otherwise—only that his main targets in his best and most prominent work were politicians and bureaucrats. It’s true, as Hills reminds me, that Politics and the English Language begins with examples of bad English written by professors.But its heart (at least in my opinion) is here:
When one watches some tired hack on the platform mechanically repeating the same familiar phrases—bestial atrocities, iron heel, blood-strained tyranny, freepeoples of the world—one has the curious feeling that one is not watching a live human being but some kind of dummy. … A speaker who uses that kind of phraseology has gone some distance towards turning himself into a machine. …In our time, political speech and writing are largely in defence of the indefensible. Things like the continuance of British rule in India, the Russian purges and deportations, the dropping of the atom bomb on Japan can indeed be defended, but only by arguments that are too brutal for most people to face. ... Thus political language has to consist largely of euphemism, question-begging and sheer cloudy vagueness. Defenseless villages are bombarded from the air, the inhabitants driven into the countryside, the cattle machine gunned, the huts set on fire with incendiary bullets: this is called pacification. …
I think it’s clear at this point that poor old Professor Laski, who Orwell deftly skewers at the beginning of the essay, is small potatoes: Orwell’s main gripe here is with political—not academic—writing. He ends with a powerful attack on “pamphlets, leading articles, manifestos, White Papers and the Speeches of Under Secretaries.” Some of these are no doubt written by intellectuals and pseudo-intellectuals, but the worst abuses were and are from politicians, bureaucrats, and activists, both left and right, for whom Orwell expressed well-deserved contempt.
The type of obscurity Orwell condemns here is not the same as the type of obscurity we find in the work of, say, Judith Butler or Jacques Lacan or G.W.F. Hegel, for that matter (though Hills is right to insist Orwell expressed contempt for this kind of obscurity as well). Butler and Lacan are obviously and, in a sense, honestly obscure—even if their obscurity clothes some mundane insights in the garb of the profound, it’s obvious from the start that this is difficult writing that will require work to make heads or tails of—you know what you’re in for when you start in on Bodies That Matter* or Aggressivity in Psychoanalysis. What’s worse than even the most needlessly obscure pseudo-intellectualism (and before I get more hate mail than I’m due, I don’t say that Butler or Lacan fall into this category, but we all know of some work that does) is the type of jargon Orwell attacks at the end of Politics: dying metaphors, hackneyed phrases, wooden jargon, which seem to everyone to mean something but actually mean nothing.
The problem here isn’t that we’re being bamboozled by something that pretends to depth and profundity but is in fact shallow or banal. The evil here is jargon and political doublespeak that is so familiar that we think the speaker is saying something plain and straightforward when in fact they’re just bullshitting (or what they’re actually saying is monstrous). It’s not the phrases that are conspicuously obscure but instead the meaningless phrases that become rote, so the sentences seem to write themselves. It’s not writing that requires more effort than it’s worth; it’s writing that doesn’t require any effort to read, or to write, for that matter, because it’s just a bunch of canned phrases taped together with some punctuation and some conjunctions. This is worse than obscure intellectualism, which is conspicuous and unfamiliar; instead it’s insidious and ubiquitous. So when the citizens of the Empire demand to know what their army is doing in India and why it is doing it, they get very easily digestible but empty jargon and slogans—“We’re fighting to help the free peoples of the world shake off the iron heel of a blood-stained tyranny guilty of bestial atrocities”—rather than a straight answer. Now I ask you, does that sound more like Judith Butler on gender identity or more like the Bush administration on Iraq? (And I take Orwell’s main point to be that this kind of blather is remarkably widespread—almost everyone is guilty of it: to be fair, my preferred candidate for the presidency, Barack Obama, is, at his worst, full of a similar kind of hot air.)
* Correction, June 9, 2008: This post originally misstated the title of Bodies That Matter.
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I know I am not an American citizen in the eyes of the powers that be.
With these words the story of a historic New Orleans neighborhood comes full circle.
It was in this neighborhood that even before the Civil War hommes de couleur libré—free people of color—led lives of style and culture. It was in this neighborhood that fiery journalists published periodicals calling for equal citizenship. Prompted by their calls, a man of African and European ancestry, Homère Patris Plessy, dared on this day in 1892 to defy a new segregation law by sitting in a "white" car. As posted here, his test case ended when the Supreme Court held 8-1 in Plessy v. Ferguson (1896) that the Constitution permitted state-mandated segregation as long as facilities were "'equal but separate." That decision held sway until Brown v. Board of Education (1954); Plessy's New Orleans home nonetheless continued to thrive as "the oldest black neighborhood in America, the birthplace of the Civil Rights movement in the South and the home of jazz."
Plessy's story is the story of this neighborhood, just as this neighborhood's story is Plessy's. Both are told beautifully in a just-released film that bears the neighborhood's name,Faubourg Tremé. I saw Tremé, subtitled The Untold Story of Black New Orleans at the San Francisco International Film Festival, where it won a much-deserved Golden Gate Award for Best Bay Area Documentary. The film is screening in the same city again today and elsewhere in the United States in the next months and is available as well on DVD.
Producers Lucie Faulknor, Dawn Logsdon, and Lolis Eric Elie began Tremé well before August 29, 2005, the date when water surging in the wake of Hurricane Katrina broke levees and flooded much of New Orleans. The damage done to Tremé and its people thus forms an unsettling frame around the picture the producers initially set out to paint. In pre-Katrina footage neighbors are upbeat, proud of their home. After Katrina they are sapped of spirit. Some leave for good. The grief of those who stay is palpable. One is Louisiana Poet Laureate Brenda Marie Osbey. Another is Glen David Andrews, who speaks of how music saved him from a rough life on the street. He is jubilant as he plays his trombone for the neighborhood. But that is early on. An interview with Andrews soon after Katrina shows that the government's failure to protect him and those close to him left him utterly at a loss. It is he who says:
I know I am not an American citizen in the eyes of the powers that be.
In Andrews' words one hears an eerie echo of how Plessy must have felt on reading the Supreme Court's ruling 112 years ago.
(Cross-posted at IntLawGrrls blog, home today to a Presidential Puzzler)
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Here's an interesting post laying out a quite troubling scenario (at least to me): McCain loses the popular vote by more than 1 millon, but wins the election due to the electoral college. Perish the thought. But what if?
Obviously, one solution for the future is to scrap the electoral college altogether, something Senator Nelson of Florida proposed today.
But as it happens, I came across this news while reading Arthur Schlesinger's updated version of The Imperial Presidency. There, he sets forth a plan for avoiding such a problem that seems to have been lost to history (or at least, came as news to me) and that seems preferable to dispensing with the electoral college altogether.
Schlesinger calls it "The National Bonus" plan. The idea is to keep the electoral college, but then augment it with additional "electors" for the winner of the popular vote. His proposal was to award a total of 101 bonus electors to the winner of the popular vote, which strikes me as at least 50 too many. After all, if the bonus is too big, the college gets wiped out for all practical purposes; candidates need not really compete very hard outside their natural bases of support. The arguments for keeping the college -- many of them are actually laid out nicely by Schlesinger himself -- seem compelling. But so too does the concern about general elections repeatedly trumping the popular will. If the bonus is sized right, however, then the popular vote becomes another swing state, and probably a decisive one so long as the canddiate wins enough other swingers. In other words, we keep a system that ensures state by state competition without risking outcomes in which the popular vote and the electoral college are likely to diverge.
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Over at Bloggingheads.tv, Convictions contributors Dahlia Lithwick and Ben Wittes spar over executive power, Ben's new book "Law and the Long War," and many other things. Check it out.
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Yesterday evening I had occasion to participate in what the Chicago lawyers' chapter of the Federalist Society calls a "tavern debate," which as best as I remember is a cross between the Yale or Oxford Union and some version of Chris Matthews' Hardball. It was raucous and fun. It was also a surprise unless I didn't read the e-mail invitation closely. I was under the impression that I had been invited to speak on the topic "Gays Have Every Right To Marry." Now, given my brief-writing, this would have been, as they say, "off-brief," but I thought that was the challenge, and I was prepared to defend the California Supreme Court, or at least four of the members thereof, with zeal. Instead, to my surprise I learned shortly before, though after some delightful merlot, that I was instead to defend the negative of the proposition against my friend and truly gifted constitutional law colleague Dale Carpenter, who holds the Julius Davis professorship at the University of Minnesota.
It is apparently in the tradition of the tavern debate to keep the tavern open throughout, which I admit does seem to give everyone's argument a greater power and salience than more, well, sober settings. And it is perhaps for that reason, when it came time to have the house divide to determine the prevailing position, a majority of those present and still able to walk came to my side. In short, I won-that is, the side in opposition to the resolve "gays have every right to marry."
Beyond the bottle and my bombast, there may be many reasons for my "triumph" (I am a native Chicagoan, Northwestern grad, and, of course, Cub fan), but as I see it, professor Carpenter had the better case and deserved the prize or the fern or whatever it was we had decided to carry away from the Tower Club in remembrance.
Seriously, Dale made his usual eloquent and poignant plea for-and here is where it hooks into the provocative Yoshino-Gerken-Tribe dialogue on liberty vs. equality-the acknowledgement of same-sex marriage. Anticipating his audience far better than I even grasped the format, he made what he called a Burkean case for same-sex marriage-the case that including persons of gay, lesbian, bisexual, and transgender orientations is preservative of the essence of culture, including those aspects of it that depend upon the channeling of sexual intimacy for purposes of civil order and the raising and upbringing of children. Dale's case is more powerful than the lengthy opinion of the California Supreme Court because he deliberately chose to eschew legalisms, and he speaks with the heartfelt and earnest poignancy of a gay man.
Bracketing the legal arguments also was a strategic debate move since it was an attempt (unsuccessful) to deprive me of the separation of powers argument which is of natural appeal to us Federalistas, which is what we were calling ourselves upon adjourning to the post-tavern debate tavern across North Wacker Drive (no pun intended).
My own tack was to argue strongly in favor of the recognition of LGBT as within the humanity created equal in the Declaration challenging the overly narrow conception of originalism most often associated with Justice Scalia, while insisting the true Burkean would preserve traditional marriage to maintain the linkage between marriage and procreation, avoid the uncertainties of single gender effects on child rearing, and taking respectful and realistic account of the innumerable, and undiscussed by the California Supremes, difficulties of accommodating religious freedom subsequent to the legal and cultural acceptance of same-sex marriage.
Dale made the appropriate reply challenging the connection between a recognition of same-sex marriage and either the national or global decline in fertility-which threatens the economies of Europe and even our own if it was not more directly threatened by the fiscally irresponsible and unjustifiable war-related expenditures of our incumbent president. Here, Dale drew upon Gerken's equality argument with a gift of words that succinctly came down to "what else would you do with us?" Professor Carpenter made, as I say, what should have been, as a matter of justice, the winning summation and argument.
Except that, I made reference to Eric Posner's earlier post responding to my lawyer daughter's earlier expressed suggestion that the U.S. subsidize child-having and -rearing more akin to that of France. Eric (perhaps merely for the sake of intellectual sparring) labeled our insistence that marriage and procreation stay linked and honored as "a stodgy bourgeois construct designed to channel the revolutionary energy of sexuality into diaper changing and car pooling." Such talk, even with the benefit of spirit-based enhancement, does not sit well with a Midwestern crowd, and the reason I believe is because it attempts to transform the equality claim into a far more troubling and problematic liberty claim a la Kenji.
It dawns on the most inebriated assembly that while in absolute numbers acknowledging same-sex marriage does not account for the global population deficit, it does-if thought of in liberty terms-stand as precedent for the separation of marriage from natural procreation. Asexual procreation at present seems merely benign since it exists as an expensive and cumbersome (and far from uniformly successful) practice, but the literature on artificial wombs and the genetic manipulation of intelligence shoots right through academic debates on liberty vs. equality because it conjures up all manner of not unthinkable (unfortunately) scenarios of the wealthy acquisition of unnatural reproductive means to advance the interests of elites through a libertarian exercise that would destroy all hope of democratic equality.
One sure way for Dale's winning equality argument to lose its footing would be to take up the defense of a liberty to engage in the genetic engineering of children. That move would take him from his own created humanity worthy of the greatest respect to the crass eugenic observation of Oliver Wendell Holmes that "three generations of imbeciles are enough" in Buck v. Bell sustaining the forced sterilization of the mentally handicapped.
In a depopulating world, some predict that there will be an alliance of feminism and eugenics to resist any pressure to sustain an aging and dying culture. Stanley Kurtz makes note that "alarmed by the relative decline of the elites, Teddy Roosevelt urged upper-class women to have more children." Even progressives at that point started to question women's rights. The same, I suggest, is the fate of same-sex equality if it allies itself with the "genetic engineering and use of modified gametes," as John Howard commenting on the earlier liberty-equality colloquy put it in the Fray. Roosevelt's population concerns were blunted by birth-control pioneer Margaret Sanger who prescribed, like Holmes, not that the elite get pregnant, but the suppression of the births of the unfit, or as she described the mentally disabled, "the insane and the blemished."
My friend Larry Tribe writes that "the very things about the language of universalism that makes the ‘liberty' strategy appealing to some (like [him]) no doubt makes it frightening to others." You bet, but that doesn't mean that some things aren't worth being frightened about-and a universal right to access to genetically engineered children is to me, and all lovers of created equality I would think, in that very category. I share with professor Tribe the audacious hope of President Obama pursuing greater claims of equality when the distinctions of the past have been shown to lack reason and to indulge the language of rights when such is universally appealing. I respectfully suggest that any thinking out there-which I know professor Tribe would separate himself from-that is conjuring up a new superman should universally repulse, rather than appeal.
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Poor Robert Samuelson received a lot of abuse from bloggers for arguing that a greenhouse-gas cap-and-trade system, such as the one under consideration by the Senate, would be inferior to a carbon tax. Samuelson argues that cap-and-trade advocates pretend that cap and trade would not impose (short-term) economic costs on people, when in fact it would—just as a carbon tax would—by raising the cost of greenhouse-gas-emitting energy sources. Samuelson also argues that a tax system would be less vulnerable to lobbying and congressional misspending than a cap-and-trade system would:
Unless we find cost-effective ways of reducing the role of fossil fuels, a cap-and-trade system will ultimately break down. It wouldn't permit satisfactory economic growth. But if we're going to try to stimulate new technologies through price, let's do it honestly. A straightforward tax on carbon would favor alternative fuels and conservation just as much as cap-and-trade but without the rigid emission limits. A tax is more visible and understandable. If environmentalists still prefer an allowance system, let's call it by its proper name: cap-and-tax.
The critics pounce on Samuelson for the second point. As Ryan Avent puts it (to an approving blogospheric chorus):
Yowza. As any economist worth his or her salt will tell you, a cap and trade plan with auctioned permits is essentially identical to a carbon tax. That also happens to be exactly what Barack Obama is proposing. So, another way for Samuelson to have written this column would have been to title it, "Barack Obama has a good plan to reduce carbon emissions."
Samuelson is definitely confused: He argues that a cap-and-trade system is inferior to a carbon tax and that the two systems are the same. But his main point—that people don't want to call a tax a tax—is right. Don't believe me? Remember this exchange?
GIBSON: I'm sort of sorry Chris Dodd isn't here because he's talked a lot about a carbon tax in this election. Al Gore favors a carbon tax.
None of you have favored a carbon tax. Is it a bad idea, or is it just so politically unpalatable that you guys don't want to propose it?
RICHARDSON: Can I answer?
You know, I was energy secretary. It's a bad idea. Because, when you have a carbon tax, first of all, it's not a mandate. What you want is a mandate on polluters, on coal companies, on those that pollute, to reduce greenhouse gas emissions by a certain target. ...
Furthermore, a carbon tax, that's passed on to consumers, that's passed on to the average person, that's money you take out of the economy.
So it's a bad idea. ...
GIBSON: Senator Obama?
OBAMA: Well, I agree with Bill that I think a cap-and-trade system makes more sense. That's why I proposed it: because you can be very specific in terms of how we're going to reduce the greenhouse gases by a particular level.
Now, what you have to do is you have to combine it with a 100 percent auction. In other words, every little bit of pollution that is sent up into the atmosphere, that polluter is getting charged for it.
Not only does that ensure that they don't game the system, but you're also generating billions of dollars that can be invested in solar and wind and biodiesel.
I do disagree with one thing, though, that Bill said, and that is that on a carbon tax, the cost will be passed on to consumers, and that won't happen with a cap-and-trade.
Under a cap-and-trade, there will be a cost. Plants are going to have to retrofit their equipment. And that's going to cost money, and they will pass it onto consumers.
So here's Bill Richardson—the former secretary of energy!—implying that a cap-and-trade system, unlike carbon tax, doesn't pass on any costs to a consumer. Obama, to his credit, corrects this error. But Obama surely knows, like Ryan Avent, that his cap-and-trade system is equivalent to a carbon tax. So why does Obama say otherwise?
Whatever else one might say about Samuelson's column (which I mostly disagree with), his main point is that politicians are trying to hide the short-term costs of a climate law by avoiding the "tax" word. (Whether or not "environmentalists" are, or not, I'm not so sure.) Perhaps, the best that can be said is that the public will be confused whether politicians use the term "tax" or "emissions permit." The public understands neither of these terms—at least, not in the context of climate regulation—and won't receive much help from their leaders anytime soon.
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The Boxer-Lieberman-Warner climate bill is being debated in the Senate: This is important stuff—the first real attempt in the United States to regulate greenhouse-gas emissions. Does the bill make sense?
Its main purpose is to create a cap-and-trade system, and there has been a recent debate in the blogosphere about whether a cap-and-trade system is better or worse than a carbon tax. The issue is probably moot: For no doubt political reasons, a cap-and-trade system is the only system on the table. But it is worth understanding the difference between the two.
Imagine that there are only 10 people who engage in activities that cause greenhouse-gas emissions; perhaps they each burn one gallon of gas per year in their factories. We decide that, from the standpoint of the climate, it would be better if a total of nine, rather than 10, gallons of gas are burned per year.
We could achieve this goal in two ways. Under a cap-and-trade system, we issue nine permits to burn one gallon of gas. You have to own a permit in order to obtain a gallon of gas. Voilà: We have solved our problem. Only nine gallons of gas will be consumed.
Under a tax system, we make anyone who buys a gallon of gas pay a tax. Suppose that each of our 10 people is willing to pay different amounts for a gallon of gas—because they gain more or less from burning that gallon. For example, one person is willing to pay $4, one person is willing to pay $4.20, the third person is willing to pay $4.30, and so on. Suppose the untaxed price of gas is $4 per gallon. To ensure that only nine gallons are consumed, we set the tax at 10 cents. Now the $4-person won't buy any gas; the others will. Our goal is achieved.
So, the two approaches have the same effect on the climate. One involves setting a price floor; the other involves setting a quantity ceiling. Most economists prefer the tax approach, however, because if you get the tax slightly wrong, the social costs are likely to be lower than if you get the quantity limit slightly wrong. To see why, suppose that there is an emergency and it suddenly becomes important for all 10 people to have a gallon of gas. Under the tax system, the lowest-value user can simply pay the tax; under the permit system, one person is out of luck. (The story is a bit more complicated than this; see here; and anyway, a cap-and-trade system can be given safety valves that perform the same function.)
Brad DeLong thinks that the two systems have different distributive effects. But we can distribute however we want to. For the cap-and-trade system, we could auction off the permits, charge a low price, charge a high price, or give them away for free. If we sell them, we can give the revenue to whomever we want to give it to. We could even give the money back to the buyers minus the tax that they would pay under the tax system, in which case the distributive effect would be the same as that of the tax system that I described above. Similarly, under the tax system, we could take the revenue we collect and give it back to everyone we taxed except for the 10th guy who refrained from buying the gas—and we'd have the same distributive effect as that of the initial cap-and-trade approach.
Everyone seems to fear that under the bill's cap-and-trade system, Congress will give away the revenue to people who don't deserve it. Maybe so, but Congress could do the same thing if it imposed a carbon tax. Revenues from the tax have to go somewhere, after all. Some people want Congress to give away the permits for free so that it doesn't obtain revenues that it would then squander. But if the cap-and-trade system means anything, it means not everyone will get a permit who would like one. That means Congress will have to pick and choose among those to whom it gives permits, and again we have the same risk of abuse, including lobbying and favoritism.
If the permits are auctioned off, what should be done with the trillions of dollars that are raised? Lieberman would invest it in research into clean energy. That's a bad idea: The government has no insight into where the research dollars should go. The whole point of a cap-and-trade system or (equivalently) a tax in the first place is to get industry to make those research decisions so that the government does not have to. If it won't do enough, then fewer permits should be issued, which will increase the pressure to find alternative sources of energy. Robert Reich says give the money back pro rata to American citizens. But why do that? The government gets revenue in all kinds of ways-say, by auctioning off the spectrum or by licensing lands for grazing or by charging fees for green cards-and no one thinks that the money should be returned to taxpayers pro rata. People think that Congress should spend this money or, if spending is already adequate, tax people less. The cap-and-trade money should go into the Treasury with all these other sources of revenue. Taxes can be lowered, debt retired, or ordinary spending increased. Congress can misspend our money, but that is true whether it gets our money from incomes taxes or permit auctions. There is no reason to treat the revenues from these two sources any differently.
Aside from the uncertainty issue, which favors the tax system, there is no reason to favor one system over the other. They have the same environmental effects for (roughly) the same cost to the economy. We can redistribute wealth however we want, as we always can, system or no system; and whenever Congress acts, it can misbehave if it chooses to, and lobbyists will be involved, regardless of the type of law Congress ends up enacting. So why the enthusiasm for the cap-and-trade system? Something about the absence of the word tax in its name?
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Thanks to D.C.-based "Convictions" reader Mark I. Levy for sending this late entry to last month's Recusal Quiz:
In answer to our question on seminal cases in which one more recusal would have compelled the Supreme Court to affirm without opinion—as it did last month in an Alien Tort Statute case—Mark points us to Chevron v. National Resources Defense Council (1984). Establishing a principle of deferring to administrative agencies known to this day as "Chevron deference," a unanimous court reversed the opinion below. That unanimity came in the form of a 6-0 vote; Justices Thurgood Marshall, Sandra Day O'Connor, and William H. Rehnquist did not take part. Thus, in Chevron as in the Shelley case cited a few days ago, one more recusal would have led to a far different result.
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I've always admired Rick Hills' facility with some rather dense intellectual material, so I hesitate to attack him for anti-intellectualism, even though he applies the label to himself. Maybe it's because I've just come back from three weeks in Germany and France, but I want to defend what Hill's derides as obscure intellectualism. I'd agree that sometimes difficult prose is deliberately obscure in the sense Orwell described in Politics and the English Language. (But wasn't Orwell more concerned with the jargon of bureaucrats and politicians than of philosophers and literary critics? His closest modern analogue is not Martha Nussbaum on Judith Butler but rather Harry Frankfurt's On Bullshit.)
But I think it's wrong to suggest that any writing that is not easily accessible must be in some sense dishonest. I can't claim to have fully grasped (OK, or fully read) Bodies That Matter-a notoriously difficult book. But I do think that difficult prose can have its virtues, even when I don't have the stamina to find them. Michel Foucault, for instance, changed the way a generation thinks about the relationship between knowledge, science, and power; Jean Paul Sartre offered a challenging account of the relationship between alienated modern society and individual integrity and responsibility. Their texts aren't for everyone, nor were they written to be. But why dismiss them as dishonest simply because most people don't have the taste or the patience for them? I don't care much for Free Jazz or the atonal compositions of Arnold Schoenberg, perhaps in part because I haven't taken the time to try to understand them (life is short, as Hills points out, and Miles Davis and Mozart offer layers of complexity in a more compelling aural package), but would it be fair to conclude that Ornette Coleman couldn't play the sax or Schoenberg was tone deaf? I'd say that difficult prose is a style, which offers a different experience than the popular essay; that unless we think we can easily sever content from style, the same ideas could not be expressed otherwise; that like popular writing, difficult academic writing can be both well and badly done; and that unless I've made the effort to read the text on its own terms, I'm not well positioned to know which is which.
I sympathize with Hill's frustration with needlessly obscure work, and there's no doubt that the legal academy produces its share. But we must not exaggerate the harm even the worst of it causes, as Hills does when he writes: "It takes the convoluted abstractions of a Carl Schmitt or a Heidegger to offer apologetics for Hitler; a Sartre, to temporize about Stalin; a Foucault, to defend Khomeini. In this respect, I stand with George Orwell who spent the 1930s and 1940s denouncing the obscurity of intellectuals' prose as a cloak for tyranny." But tragically Hitler did not need Martin Heidegger because he had Joseph Gobbels as well as plenty of other less obscure apologists in Germany, elsewhere on the continent, and for quite a while in England and the United States. And let's not forget that today it is not intellectual obscurantism that has managed to defend torture and indefinite detention without trial but rather conventional legalese, familiar political jargon, and some deceptively homespun abstractions. I think John Yoo and his ilk would be Orwell's target were he writing today-not Judith Butler or the students of Foucault.
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In the course of explaining why he is an "anti-intellectual," Rick Hills invokes Martha Nussbaum, Immanuel Kant, Carl Schmitt, Martin Heidegger, Jean-Paul Sartre, Michel Foucault, George Orwell, Pierre Bourdieu, and Socrates—all in a short blog post!—which raises the old question of whether there are certain positions that cannot be refuted without self-contradiction. (In a subsequent post, Hills cites Edmund Burke, Adam Smith, Samuel Johnson, Hannah More, William Godwin, Gouvernour Morris, Hegel, Heidegger, Searle, Quine, Derrida, Hamilton, Jefferson, Sartre, Kojeve, Putnam, Kripke, Davidson, Pirandello, Claudel, and Arendt.) Only an intellectual can understand the arguments of intellectuals, and so one cannot criticize intellectuals without destroying the basis of one's own credibility—like the Cretan who says "all Cretans are liars." Hills is really attacking a certain type of intellectual (the deliberate obscurantist) but confusing a subset of the class (to which he does not belong) with the class itself (to which he does belong). Then it becomes clear that Hills, an intellectual, is attacking a certain different type of intellectual: one who deliberately writes in an obscure way in order to conceal the weakness of one's argument while intimidating potential critics. We need a term for his error: how about (for lack of any other) synecdochic literalism—mistaking the part for the whole.
This error is common. People resent lawyers, politicians, and doctors because some lawyers, politicians, and doctors act badly. But self-refutation occurs only when the speaker belongs to the class that he confuses with the subset. Consider Obama, Clinton, and McCain—all members of the elite—claiming to be anti-elitist, in much the same way that Hills claims to be an anti-intellectual. Indeed, intellectuals belong to the elite. These synecdochic literalists can't be anti-elite without being anti-themselves. But they can oppose a type of elite, the type who uses financial, social, or (like the type of intellectual Hills criticizes) intellectual resources to shore up his position while claiming to speak for the masses that he secretly despises. So, why don't they just say this rather than making themselves vulnerable to charges of hypocrisy?
It's not so simple. In America, you can't claim to be a member of the elite—even the "good," public-spirited elite—without instantly losing all credibility, even though it is as plain as day that there is a tiny elite class that calls the shots within the very broad constraints imposed by the system of popular elections. (A zillion years ago this problem was debated by John Dewey and Walter Lippman.) Everyone wants to belong to that class, but no one wants to admit it, for it is a class that one can join only by denying that one belongs to it. It is this strange little fiction that keeps our democracy from falling apart. Rule by the people really means a kind of civility on the part of the elites.
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Eric, thanks for your post on the "natural disasters" op-ed. (Can it really be that someone surnamed Blow is the Times' new storm reporter?) It leaves this takeaway:
As often as not, so-called "natural disasters" owe the latter word as much to acts of human agency as anything else. Floods and wildfires and mudslides do seem worse than ever because there are more people and buildings on flood plains, mountains, and hillsides than ever. That answer should mark the beginning, not the end, of discussion.
It's easy to understand why a profit-seeking developer would build in fragile areas. Easy, too, to understand why someone would buy there—it seems every California wildfire story includes an interview with a homeowner who'd been attracted by the relatively lower prices of new houses far from city center and who knew nothing of the fragility of the area. What's not easy to understand is why policymakers permit ever more construction in such areas; that's a question deserving more examination in this country.
As for countries outside the United States, the problem often is more acute. Regions threatened by the expected consequences of climate change include places like the densely populated Mekong Delta. Putting into place policies that will avert disaster there is an act that human agents ought now to undertake.
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A scary graph appeared on the New York Times op-ed page on Sunday. It seems to show a profound acceleration in the rate of natural disaster in the United States and the world. In the words of its author, Charles Blow:
According to the Center for Research on the Epidemiology of Disasters, there have been more than four times as many weather-related disasters in the last 30 years than in the previous 75 years. The United States has experienced more of those disasters than any other country.
Blow continues:
Who do we have to thank for all this? Probably ourselves.
Last year, the Intergovernmental Panel on Climate Change issued reports concluding that "human influences" (read greenhouse-gas emissions) have "more likely than not" contributed to this increase. The United States is one of the biggest producers of greenhouse-gas emissions.
However, his source—the Centre for Research on the Epidemiology of Disasters—states the obvious problem with Blow's figures, one that Blow neglects to mention to his readers: that reporting has greatly improved over the decades. As one of its reports notes, the annual number of earthquakes appears to have increased over the decades, but no one thinks that earthquakes are caused by climate change. What has changed is the quality of earthquake-monitoring systems, the reliability of government records, and so forth. (While it is true that the incidence of hurricanes has increased over the last few decades, there remains a great deal of scientific controversy about whether this trend will continue.) The pre-1970 data, which are responsible for most of the dramatic rise in the graph, are probably worthless.
There is another data artifact that drives Blow's graph, one that is also well-known in the scientific community. The main reason for the increase in the number and costliness of natural disasters in the United States, and probably in other countries as well, is that people have been moving to the most vulnerable areas—the coasts (especially Florida and California)—and building expensive structures there. CRED defines a natural disaster as an event where 10 or more people are reported killed, 100 people or more are reported affected, a declaration of a state of emergency occurs, or a call for international assistance is made. Obviously, all these criteria are more likely to be met when a hurricane, earthquake, or other natural disaster occurs in a highly populated area than when it occurs in a sparsely populated area.
This is not to deny that some extreme weather events—droughts and flooding, for example—may be connected to climate change. It's just to point out that there is a difference between reporting the facts and scaring people with misleading statistics. Blow is right to worry about climate change and to urge the United States to join international efforts to curb greenhouse-gas emissions. But he misuses the data to make this point—despite CRED's repeated warnings about reporting and data problems—and as a result, he misses the main implication of the data: that the United States and state governments should regulate construction in coastal and other vulnerable areas more strictly. This is much more important in the short run than a climate treaty, as the benefits of a reduction in greenhouse-gas emissions won't be felt for decades. As CRED says in the report cited above, "Disaster data—handle with care!"
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Marty as usual offers an elucidating post in response to my question about whether Congress is likely to wade back into terrorism detention issues this coming summer. But I gotta say, Marty, I'm closer to David on the key point. Just because a court decision in Boumediene might leave no serious reason why Congress should act before the election, doesn't mean Congress won't.
Though I'm well out of my depth in political punditry, I've tended to view the odds of major terrorism legislation pre-election as slim—the administration is too weak, the substantive and electoral stakes too high, and the members' political interests too diverse to get something passed this time around, especially something as mammoth as a new court, or administrative detention scheme. That said, Sen. Leahy this week is hosting a Senate judiciary committee hearing on how well the federal courts handle terrorism cases, featuring several witnesses who think (for deeply well-informed reasons) the federal courts do better than any plausible alternative. Someone felt the need to push back against some brewing detention storm. My hope remains they're just whistling in the wind.
On Marty's particular point that Congress is unlikely to think about a trial system because Boumediene isn't actually about the military commission/war crimes trials at Guantanamo. Quite right, Boumediene is directly about the far less elaborate process for determining whether someone is properly detained as a "combatant" (problematically defined), whether or not they've actually committed a crime under U.S. or international law. But while that distinction appropriately matters a lot to the court, it's not at all clear Congress wouldn't want to try to deal with both matters at once (as it did the last time it legislated on the topic in 2006). Indeed, the security court proposals I've seen floating around are geared toward putting these two decisions institutionally together, merging the terrorism trial function and indefinite detention supervision function (through something like periodic review) under the control of a single body, abandoning the federal courts for criminal terrorism trials and codifying a more formalized system of preventive detention going forward. The no-doubt attractive idea is to fix the Guantanamo mess in one fell swoop.
But here's the thing, and with apologies to Justice Holmes—the security court idea lets the hard case of Guantanamo make terrible law for counterterrorism detention going forward. The options for fixing Guantanamo are now grossly limited and badly skewed by the consequences of a series of years-old decisions to torture some of the detainees, and to delay any serious inquiry into all of the detainees' status until time and distance from evidence about the circumstances of their capture have made a meaningful hearing all but impossible. Courts-martial or criminal trials are far more difficult now since evidence obtained under coercion is inadmissible. Administrative hearings that might have been sufficient under the Geneva Conventions if conducted upon capture are now plainly inadequate. At this stage, none of the options are ideal. And none is a promising base line from which to design all detention policy going forward.
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Imagine if, during the O.J. Simpson murder trial, Judge Lance Ito ordered the district attorney's office to hand over DNA samples and logs of O.J.'s stay in county jail after his arrest. Then imagine that the prosecutors refused to do so. And that, instead of being fined for contempt of court (or thrown in jail themselves), these same prosecutors somehow got their boss to get Ito tossed off the bench. And then the D.A.'s office worked behind the scenes to replace Ito with a more, shall we say, compliant judge.
Wouldn't happen. Couldn't happen. Never in a million years. Not even in California.
Well, Cuba isn't California, and Guantanamo Bay is further still.
Continue Reading ...
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Marty nicely games out the various approaches the court might take in the upcoming Guantanamo cases. He indicates which outcomes would be likely to require congressional responses and which would leave the status quo on firm enough legal grounds as to make it legally unnecessary for Congress to respond. But there's another possibility that is worth considering. Even if the court reaches a holding that leaves everything that is currently in place in such a state that there is no legal need for Congress to act in response, it is entirely possible that a justice or two will write a dissenting or concurring opinion that will signal approval of various proposed legislative reforms, including the proposal for there to be a National Security Court. And if that happens, look for proponents of such measures to quickly spin such judicial dicta as being tantamount to calls by the court for a legislative response. I think that, in this context, such musing would be quite inappropriate, but even still, it might have the effect of galvanizing political support for a proposal that, as Deborah suggests, should engender lots of skepticism. Neal Katyal has elsewhere written about the role of judges as advice-givers (see his 1998 article in the Stanford Law Review, which, alas, I can find no link for). And it's definitely one way in which judges sometimes can work to shape the political process, prohibitions against advisory opinion notwithstanding. I'll be watching to see if the court—or, more likely, any of its members—see fit to assume that problematic role here.
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While much of the country trains its eyes on South Dakota and Montana tomorrow, California voters also will go to the polls.
According to my 23-page "Official Voter Information Guide" and my 40-page "Sample Ballot and Voter Information Pamphlet," I'm to choose candidates for four partisan offices (ranging from Congress to county committee) and two nonpartisan offices (judge and county supervisor). Then I'm to ponder two competing state ballot propositions (Ban eminent domain? Or not?), and one county ballot measure (Taxes, anyone?). Missing, for the first quadrennial year in memory, is a choice among candidates for president. It's thus as good a time as any to ask whether moving the presidential primary up to Feb. 5 was a good idea.
For the GOP, it might've been a smart political move. Sen. John McCain trounced his competitors in California that day, and he clinched the nomination not long afterward. The Democrats are another story. Sen. Hillary Clinton won by eight points, but victory in California did not deliver her the nomination. What's more, in the interim four months, Californians changed their mind: Were the election held now, polling indicates, Sen. Barack Obama would carry California by 13 points. For Democrats at least, California's primary once again seems not to matter.
But forget politics for a moment. It cost at least $51 million to hold that early, extra primary. How many California taxpayers do you suppose would say it was worth the expense?
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OK, if you insist, Deborah, a few predictions ... with the caveat that my track record on these matters has been decidedly mixed of late.
First, what will the court do? In Boumediene—unlike in Hamdan, Hamdi, and Rasul—Justice Kennedy almost certainly was assigned to write the "lead" opinion. After oral argument, my prediction was that he was writing for two separate five-justice majorities: (i) For one majority, an opinion holding that Article I's Suspension Clause (and perhaps the Due Process Clause, too) applies to the detainees at Guantanamo; but (ii) for a different majority, holding that the MCA/DTA provision for D.C. Circuit review of CSRT decisions is an "adequate alternative" to habeas, thereby sustaining the constitutionality of the MCA/DTA review system. (In its cert. grant, the court virtually invited the D.C. Circuit to demonstrate that its review of the Pentagon's decisions would be robust; and at oral argument, Justice Kennedy focused on the question of why the D.C. Circuit could not itself ensure compliance with constitutional and statutory standards.)
But then, after Boumediene was argued, the D.C. Circuit issued its en banc opinions in the Bismullah case, which were followed by the Bush administration's own petition to the Supreme Court in that case. Those opinions and that petition demonstrated ...
... continue reading at Balkinization.
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I had the pleasure of spending a few hours late last week at the tail end of what looked to have been a terrific seminar series on current challenges in the law of war. The lectures were aimed at an audience of mostly Capitol Hill staffers and delivered by experts brought in by the seminar hosts at the U.S. military's JAG school, UVA Law School, and the International Committee of the Red Cross. You can find the agenda here.
Among other rumors buzzing about was discussion about the odds Congress would come back and legislate in a hurry after the Supreme Court hands the administration an expected loss on the question of habeas corpus for Guantanamo Bay detainees some time before the current term ends in the next month or so. (Dahlia wrote last December about oral arguments in the relevant cases, Boumediene v. Bush and Al Odah v. United States here. I'm with most Supreme Court-watching pundits, including Dahlia, in suspecting the government is not going to win entirely in its argument that the detainees there are only entitled to what they get under the current review scheme.) The speculated administration thought: Force the Democrats into a politically disadvantageous vote right before the election and kick the Gitmo can into the next administration with a vengeance.
Among other legislative peanuts already rumored to be "in the hopper"—a new national security court scheme favored (although hardly agreed on in detail) by my friends Neal Katyal and Jack Goldsmith. Coming off the delightful past seven years of experimentation in our last "new court" enterprise down at Gitmo, Neal and Jack, I know, can appreciate my deep skepticism of the likely success of another such venture (even one more thoughtfully conceived).
So, before I go on at length about why I think a new court is the wrong way to go (and any proponents must read the new Human Rights First report about how terrorism cases have worked reasonably well in the good old-fashioned criminal courts), any of my fellow bloggers care to weigh in on the odds we'll see Congress back in the detention business before the summer is out?
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The solution—"technology"—seems not to have occurred to anyone else. See here:
The science and technology of genetic engineering are not yet ripe for large-scale use. We do not understand the language of the genome well enough to read and write it fluently. But the science is advancing rapidly, and the technology of reading and writing genomes is advancing even more rapidly. I consider it likely that we shall have "genetically engineered carbon-eating trees" within twenty years, and almost certainly within fifty years.
Carbon-eating trees could convert most of the carbon that they absorb from the atmosphere into some chemically stable form and bury it underground. Or they could convert the carbon into liquid fuels and other useful chemicals. Biotechnology is enormously powerful, capable of burying or transforming any molecule of carbon dioxide that comes into its grasp. Keeling's wiggles prove that a big fraction of the carbon dioxide in the atmosphere comes within the grasp of biotechnology every decade. If one quarter of the world's forests were replanted with carbon-eating varieties of the same species, the forests would be preserved as ecological resources and as habitats for wildlife, and the carbon dioxide in the atmosphere would be reduced by half in about fifty years.
Climate scientists and other spoilsports predictably charge Dyson with bad science—as though it were such a big deal to replace a forest half the size of the United States with carbon-eating, liquid-fuel excreting trees that haven't yet been invented. (Perhaps the trees could also be designed so that they can give directions to lost hikers.) Rather than carping about the details, the critics should stop and ponder the implications of Dyson's optimism about technology for all the other problems that the world has not yet been able to solve.
If we think of all the complex, expensive, and not very effective treaty regimes that already exist for solving multiple problems—nuclear proliferation, the depletion of ocean fisheries, the destruction of the ozone layer, war, international terrorism, trade protectionism, etc.—we immediately see that all of these problems, like global warming, could be more easily addressed with a technological advance than with regulation. Why, for example, should we try to improve treaties that govern fisheries when it would be simpler and easier to await biotechnological advances? We have already glimpsed the future in Woody Allen's prescient movie Sleeper, which shows gigantic bananas—able to feed entire villages!—being grown on a farm. If gigantic bananas, why not gigantic fish? It ought to be easier to catch a single 1,000-foot-long tuna than hundreds of small tunas. If the gigantic tuna could be genetically engineered so that it can breathe air, it could be grown organically on carbon-neutral farms; perhaps it could graze on carbon-eating grasses and be endowed (unlike cows) with a greenhouse-gas-neutral digestive process. Oceans, meanwhile, would be left undisturbed. We could also invent nuclear weapons that can't cross borders without presidential authorization, chemicals to fix the ozone hole, and an army of genetically engineered humanoid fighters to kill terrorists and other bad guys. All we need is technology—the more, the better!
Meanwhile, we could solve virtually all of our environmental problems though the simple expedient of genetically engineering human beings to be 4 inches tall. "Biotechnology is enormously powerful," says Dyson, so why not? Four-inch-tall people would consume fewer of the world's resources, ensuring sustainable development for the benefit of our tiny descendants living thousands or even millions of year in the future. Four-inch-tall people would need much smaller automobiles, which would have correspondingly higher fuel efficiency. Because of the smaller mass of automobiles, collisions will have less destructive effect, and thousands of lives per year would be saved. To be sure, the reduction in mortality would put a strain on our planet's resources—fewer traffic deaths mean more people eat more food and consume more fossil fuels—but people could be engineered to have a reasonable, sustainable lifespan and to have no more (tiny!) children than necessary to keep the size of the population constant. If Dyson is right that technology will solve the problem of climate change, why stop there? Technology ought to be able to solve all our less serious problems as well—no need to adopt regulations in treaty or domestic law.
Sourpusses think that every new technology just creates new problems for which regulations are needed. Isn't the coal-fired power plant just a kind of technology? However, if I understand the logic of Dyson's argument correctly, we should expect still-newer technology to solve whatever problems that soon-to-be-old new technology creates. If carbon-eating, liquid-fuel excreting trees self-combust, causing the world's largest forest fire, we can try again with carbon-eating, liquid-fuel excreting trees that incorporate miniature sprinkler systems.
Here's a prediction. One hundred thousand years from now, a wise and prosperous race of 4-inch-tall, carbon-neutral people, whose atmosphere has been scrubbed clean by forests of carbon-eating, liquid-fuel-excreting, fireproof trees that give directions to lost hikers, will look back at us with bemusement and pity, wondering why we troubled with climate treaties, lawsuits, cap-and-trade programs, and other expensive, unnecessary sacrifices, all for their benefit, when we could have lived it up and left technology to clean up our mess.
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While flying home after a week of vacation, I read this brief in the International Herald Tribune, via the Associated Press:
ZAGREB, Croatia—A court convicted a retired Croatian general of war crimes Friday for failing to stop his soldiers from torturing and killing Serbs in a wartime operation once deplored by UN peacekeepers as a "scorched earth" campaign.
General Mirko Norac condoned crimes committed by those under his command, the Zagreb district court judge Marin Mrcela said in the ruling. He sentenced Norac to seven years in prison.
The judge acquitted another retired general, Rahim Ademi, in the case.
Of course, the important thing here is the crime with which Norac was charged. Norac did not stand accused of personally torturing and killing Serbs. Or even directly ordering those acts. Rather, the court convicted him of "condoning" such crimes under his command. In reaching this verdict, the court relied on a principle deeply ingrained within the law of war: that of command responsibility. Simply stated, the rule makes a commander responsible for all his unit does, either where he knew of the conduct or should have known of the conduct, although scholars and jurists continue to debate this knowledge requirement. In a famous WWII case, the Supreme Court affirmed a war crimes conviction for Tomoyuki Yamshita, a Japanese field commander charged with "unlawfully disregarding and failing to discharge his duty as a commander to control the acts of members of his command by permitting them to commit war crimes."
In this case, it appears that Norac did indeed know of his troops' crimes, making this an easier case in some respects. Nonetheless, this decision reaffirms the general rule, and it should remind senior military commanders everywhere of their duty to heed the law of war. "It was his duty to prevent" the crimes, the judge wrote in his ruling, continuing that "by not taking legal actions against the soldiers after learning that they committed war crimes, a commander (Norac) in fact provided a pattern on how soldiers should behave."