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If true, the allegations that Hillary Clinton as a young lawyer assisting the congressional Watergate investigation sought to hide files, and the precedents within them, in order to deny Richard Nixon legal counsel in the context of an anticipated impeachment inquiry are once quaint and deeply troubling. The story is quaint because it is reminiscent of the well-told tales of first law students hiding materials in inappropriate places in the law library during moot court competitions. Neither Hillary's alleged misdeed nor such law school chicanery is ethical, but neither would be modernly possible given the modern electronic nature of how we access materials today, be they books or files. So much for the quaint part.
Hillary's alleged efforts to deny legal counsel to Nixon also conflicts with the position then taken by one of the most notable liberal members of the House, Don Edwards of California. Edwards had a reputation for taking brave stands against the remnants of Joe McCarthy's House Un-American Activities Committee and the FBI abuses that ironically enough would give rise to the Keith case and FISA. Edwards did not see civil liberty with a partisan glint, and he was one of the strongest voices against those in the Democratic party—perhaps we are now learning misadvised by the then Hillary Rodham—advocating the denial of legal counsel to President Nixon in his prospective impeachment trial.
So the troubling part of this swirling story is not just that the revelation may confirm a longer and deeper pattern of prevarication beyond the Bosnian sniper story, but also that it suggests a calculated distortion of the law aimed at adversely affecting both individual right and democratic process. Tonight on the NewsHour, New York Times reporter Eric Lichtbau called the newly released John Yoo memorandum "shoddy." I think that an unfair characterization given the intelligence of Professor Yoo and an insufficiently nuanced characterization given the context of 2003 and the more careful analysis Marty Lederman is supplying on the topic on this site. It is a description that also fails to capture how ill-served the president and the executive branch have been by the unprecedented turnover and number of acting officials at the helm of the once venerable Office of Legal Counsel, which is intended not only to make tough calls that may be politically unpopular, but also to have the good sense to send back rough drafts of legal analysis or at least not circulate them for political acceptability. But however one pieces together the story of Messer's. Bybee, Yoo, Levin, Goldsmith, Bradbury (I know I must be leaving someone out) in the OLC, the claimed offense of Mrs. Clinton is not sloppy, but corrupt, work.
Given the cultural significance of Mrs. Clinton's run for the presidency, I hope the allegation proves false. It is healthier for the body politic for Mrs. Clinton to lose to Sen. Obama on the merits. If she is dispatched on character failing, it will stir up all the justified and unjustified animosities that her husband's impeachment ordeal generates in public discussion.
There is a different account of Hillary's service in the Annual Survey of American Law. There it was written, "In 1974, while she was serving on the Impeachment Inquiry staff of the Judiciary Committee working on the Watergate proceedings, Hillary Rodham was Sara Ehrman's houseguest for nine months." As Ehrman tells it, "She was brilliant, she was a star, she could have done anything in Washington."
It would be most unfortunate were "anything" now to have a much different meaning than what was intended by the Survey's laudatory profile—namely, in fact, she did anything she wanted, including putting herself above the law.
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Plenty of wags have compared Hillary Clinton to a zombie or the Terminator—she claws her way back to her feet and limps on when any mere mortal would be long dead. But the real reanimated corpse of this election is the contemptible question of whether sexism is worse than racism. This crude and divisive inquiry will not die, no matter how many times it is doused with the holy water of common decency and no matter how many times the wooden stake of good sense is driven through its heart. So I’m under no illusions that my attempt here will prove to be a magic bullet.
Judith Shulevitz’s post on "XX Factor" last week was the latest version of this question that I’ve seen (and far from the worst), but this question has become almost obligatory in any race- or gender-conscious discussion of the election. For instance, in her New York Times op ed, Gloria Steinem insists, “I’m not advocating a competition for who has it toughest,” but a scant four paragraphs earlier she declared a winner, asserting that “gender is probably the most restricting force in American life, whether the question is who must be in the kitchen or who could be in the White House.”
I want to convince you that the racism vs. sexism query is one that should never be posed much less dignified with whatever could possibly pass for an answer. It’s conceptualism at its nadir. (It has all of the futility of kids arguing over whether Superman or Spider Man would win in a fight, but with none of the charm.) Worse yet, the question, by its nature, invites the most base form of competition for victim status: Like a bad cultural studies conference where the most subordinated of them all gets to speak first, this question suggests that the people who labor under the more severe type of identity-based oppression somehow, by virtue of their victimization alone, deserve special priority—first question after the keynote, first grab at the coffee and Danish table, maybe even first dibs on our political loyalties.
And while wallowing in the worst of 1990s-style identity politics, it ignores one of the few valuable lessons 1990s identity politics had to teach: namely that social identities are situational and not essential, that how and whether race and gender are important depends on context. Typically when the question has been put, it has evoked some thin one-sided evidence as to why one or the other is worse for Clinton or Obama (Clinton has to put on makeup and worry about the color of her pantsuits/ Obama can’t go on the attack without sounding like a black thug), augmented by a long litany of gender or race grievances that don’t have much to do with the narrow question at hand (slavery, Jim Crow, job discrimination, racial profiling, segregation, the Tuskegee experiment, the Jena 6/ rape, pornography, anti-abortionists, sexual harassment, prostitution, the glass ceiling, lazy and macho husbands, dry cleaners who charge more for blouses than shirts), the sheer tedious length of which is meant to overwhelm all arguments to the contrary, leaving only one conclusion: Sexism (or racism) is worse.
Of course it’s true, as Shulevitz asserts, that “a woman seeking higher office faces obstacles that a man does not face, no matter what the color of her skin.” But this doesn’t suggest that gender is the greater obstacle generally—only that gender poses distinctive obstacles. It’s also true that a black person seeking higher office faces obstacles that a white person doesn’t face, no matter his gender. If (for God knows what reason) we were to take seriously the narrow question—who has it worse, Clinton because of sexism or Obama because of racism?—we’d need to consider all of the racially or gender-specific disadvantages each has experienced and somehow try to compare them.
And there are distinctive advantages to be considered as well: Geraldine Ferraro was right to say that Obama wouldn’t be a front-runner but for his race, but right only in the most banal sense: Candidates for high office are elected, in large part, based on the voter’s perception of their “character,” and that perception is derived in large part from biography; Obama’s includes the fact that he’s black. And of course many people are especially excited about the prospect of a black president. So, too, Hillary Clinton would not be a front-runner but for her gender—plenty of people are excited about her candidacy primarily because of the prospect of a female president. There’s nothing scandalous about this—race and gender are salient in our society, and the symbolism is relevant in a politician. But how could we know “which is worse?” without somehow performing this complex and context-specific cost/benefit analysis? No one has even tried to make such an accounting—and for good reasons—but that’s what one would need to do in order to make any sense of the “which is the greater obstacle” question.
This leads me to suspect that when people ask whether sexism or racism is the greater obstacle in the context of Clinton vs. Obama, what they really care about is whether sexism or racism is the bigger social problem (since the evidence cited so often goes to the latter inquiry and not to the former) and therefore whether it would do more good or be more profound, in some overall cosmic sense of “good” or “profound,” to have a female as opposed to a black president. It’s understandable that someone who has spent her life fighting sexism, like Ms. Steinem or Ms. Ferraro, would find it tempting to pose (and answer) this question. But this is precisely the kind of unresolvable moral question, shot through with self-interest, that epitomizes the worst of late 20th-century identity politics. That kind of question has ruined more potentially successful activist organizations, academic conferences, college seminars, and political movements than all of the agents provocateurs J. Edgar Hoover could have imagined in his soggiest of wet dreams. And it will ruin the Democrats as well if we let it.
One last thing: If it seems that right now the people most insistently posing this unfortunate question are feminists, that’s simply because Hillary Clinton is losing. If Obama were losing, you can be sure you would hear similar carping from racial activists. (Close your eyes, and you can almost hear it now: “The white power structure will always protect its own in the end. …” “Race is still the greatest oppressive force. …” etc., etc.)
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I've now completed reading the March 14th OLC opinion. As you might expect, there is a great deal within it that warrants very careful attention and analysis. There is nothing like it in our long legal history, as far as I know. After all, how often is it that a Department of Justice memo is issued that matter-of-factly argues that the commander in chief can authorize pouring corrosive acid on a detainee—can authorize cutting out a tongue and poking out an eye —nothwithstanding a statute that would prohibit that very conduct?
I think what I'll do is to publish a series of numbered posts (this is No. 4—Numbers 1-3 are at Balkinization), each centering on a discrete topic or portion of the memo. My reactions must, of course, be tentative and preliminary: I have not yet had the time to research most of these questions or to give them the attention (some of them) might deserve. But I hope that by the end of the endeavor, we'll be able to see clearly just how radical and extraordinary this memo was.
Before I start in on the memo itself, however, I'll begin with a handful of posts about process and ramifications rather than the specific substantive issues raised.
Continue reading ...
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Kudos to Berkeley 2L Josh Keesan for rising to the challenge of nominating "law poetry" for the National Poetry Month-long Convictions Poetry Slam announced yesterday. Josh's entry fits neatly within Slam example No. 2, "poems about law or about law's effect on society." It's "Law Like Love," written by W.H. Auden, the poet who was born in England in 1907, became a U.S. citizen after serving in the Spanish Civil War, and died in Vienna in 1973.
The full poem, perhaps a wee bit long for a blog, can be read here (along with a great comment thereafter). Let me proffer a few choice stanzas:
Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.
....
Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.
....
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.
Like love we don't know where or why,
Like love we can't compel or fly,
Like love we often weep,
Like love we seldom keep.
Great stuff, Josh; thanks. The erstwhile-student-of-Sherman-Act-remedies-in-me loves the "treble tongue" metaphor. Now: Who among my fellow Convicted is ready to take from Josh the Poetry Slam baton?
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OK, true, Orin and Jack, lawyerly can mean trussing up bad and thin arguments with questionable analogies from other cases and a horde of citations. (Though an awful lot of the ones in this Yoo memo are to other OLC memos from the same era—the ones Marty wants to see.) And I wouldn't say a thoughtful and responsible weighing of counterarguments is the m.o. here.
Any reactions to how this discussion relates to the excellently timed Vanity Fair piece on Guantanamo and torture interrogation posted today? The article concentrates on the 2002 memos that had previously been disclosed, which Phil has pointed out previewed much of the reasoning in the newly released March 14, 2003, memo. Since I'm the one arguing that the legal reasoning of Yoo and the other torture lawyers is shoddy and unmoored, I am struck by this exchange between the writer, Phillippe Sands, and Doug Feith:
Didn’t the administration’s approach mean that Geneva’s constraints on interrogation couldn’t be invoked by anyone at Guantánamo? "Oh yes, sure," [Feith] shot back. Was that the intended result?, I asked. "Absolutely," he replied. I asked again: Under the Geneva Conventions, no one at Guantánamo was entitled to any protection? "That’s the point," Feith reiterated ... That indeed was the point. The principled legal arguments were a fig leaf.
Yoo of course argues otherwise. I believe Feith. And even if these bald quotes aren't a surprise—apparently to him, they're uncontroversial—what's useful about these moments when new memos drop from DoJ, I think, is that they give us a chance to remember that we should be shocked, even if we no longer can be.
On another note, Nick Rosenkranz points us to this Federalist Society debate over Medillin v. Texas.
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continue reading this post at Balkinization . . .
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After reading the March 2003 memo (NYT and WP), I feel like the youngest kid at Passover dinner, who by tradition asks the question "How is this night different from all other nights?" Except that in this case, I'm left with the question of "How is this torture memo different from all the others we've read so far?"
I agree with Marty that the answer has to do partly with the bureaucratic manner it which it was conceived, authored, published, and classified. It's highly unusual for such a broad statement of administration policy to be issued over the signature of a deputy assistant attorney general—and that such a low-ranking official would basically be speaking for the Justice Department and the White House on these issues through the interagency process to the Pentagon. So, this memo is different to the extent that it didn't come from Alberto Gonzales or Jay Bybee or someone else of significant rank.
It's also different because it appears to have been conceived entirely by the super-secret-squirrel (a military doctrinal term) working group of lawyers that included David Addington, John Yoo, and a handful of others. That cloistered environment facilitated much of the legal reasoning in the memo; it also ensured it would be highly classified and kept from public view for a long time.
But what about the legal reasoning? Is this really any different from other memos we've seen (and written about) so far? It's certainly longer. And as Orin points out, it alternates between solid and shaky analysis. But in general, I think Emily's right that this reflects the same broad, sweeping rhetoric we have seen before in other torture memoranda hatched in the White House, Justice Department, and Pentagon. What makes this memo significant, I think, is the way that Defense Department (and other government agency) personnel relied on this memo to create the detention and interrogation regime at Guantanamo, Abu Ghraib, and Bagram Air Base.
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David, I suspect you're right that the Supreme Court will eventually take one of these cases and overturn their prior precedent, Watts: I think that's one of the results that the Booker/Blakely revolutionaries hoped to change. What are the odds? I'd say about 75 percent.
As for whether acquitted conduct should not be used to enhance sentences, I think the issue is the standard of proof used for enhancements more than the fact that the conduct was acquitted conduct by a jury. If the jury decision is given some sort of res judicata effect but the sentencing standard is still below proof beyond a reasonable doubt, then a smart prosecutor might opt not to bother the jury with the extra stuff. He might get the defendant on the basic charge and then just wait until sentencing to throw in the rest under a lower burden of proof.
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My reaction to the Yoo memo is almost the exact opposite of Emily's: I'm struck by how lawyerly it reads. It cites tons of authority, hedges arguments, discusses counterarguments, and generally reads like a careful lawyer's work. In fact, if it were a Supreme Court opinion rather than an OLC memo, I believe it would be entirely acceptable under Jack Balkin's theory of living constitutionalism. (Or so it seems to me—I remain a bit unsure of what Jack's theory rules in or rules out.) As Jack might say, Let Yoo be Yoo!
Instead, I think the problem with the memo is that the quality of the doctrinal analysis is generally poor. At least that's what I've been struck by in the sections that touch on the areas I teach. Take the discussion of the necessity defense and self-defense. I think it's probably right that in a genuine, real-deal "ticking time bomb" scenario, there could be a necessity defense to torture in some way. But while the memo notes the doctrine is fact-specific, it weirdly does not explain just how narrow those circumstances would have to be for the doctrine to apply. You end up with a chunk of the memo saying there's a possible defense "depending on the facts," but without explaining that those facts would have to be pretty extreme to matter. That's the impression I get from the sections I know well, at least.