Convictions: Slate's blog on legal issues

Executive (Over)Privileged -- Must the Abuse Continue?

Today on Findlaw, I explore the problematic misuse of executive privilege in the Bush administration.

That misuse continued late last week when former White House Chief of Staff Karl Rove refuse to honor the subpoena of a House subcommittee looking into whether or not wrongful pressure was brought upon US attorneys in the prosecution of a former Democratic governor of Arkansas.  The subcommittee had subpoenaed Rove in May to explore what, if any role, he played in the prosecution of former Alabama Governor Don Siegelman or in the unexplained dismissal of US Attorneys.  In spurning the subpoena, Rove indicated that he was following the instruction of the White House not to appear before the committee on the grounds that this would interfere with the president's internal communications.  The full committee and ultimately the full House must now decide whether to hold Mr. Rove in contempt.

Late last month, in a related inquiry being litigated in the District Court in Washington, D.C., Judge John D. Bates heard vigorous argument from the Bush White House in defense of its refusal to supply documents to Congress or to allow the Congressional testimony of former White House Counsel Harriet Miers and Chief of Staff Joshua Bolten regarding the controversial dismissal of a series of U.S. Attorneys.   Here too, Congress is investigating based on suspicion that the dismissals were politically-motivated; and, as in the case of Mr. Rove, the Bush Administration has blocked its inquiry by asserting executive privilege.

It is smugly assumed by the Bush administration that the awkwardness and difficulty of resolving an inter-branch dispute over executive privilege will mean that the case will linger past the national election and next January when the matter can be declared moot.   The rule of law deserves better.

Judge Bates who has charge of the Miers/Bolten matter should put the burden on The White House to establish -- as a matter of original understanding -- the constitutional basis for the privilege beyond national security and the protection from outside interference of an on-going federal prosecution.  The historical compilation of privilege claims was undertaken some years ago in the Office of Legal Counsel by the venerable Herman Marcuse whose service in OLC goes clear back to Humphrey's Executor if not before.  Marcuse found what Archibald Cox found:

"Over a period of a century and a half thirteen Presidents found a total of twenty occasions on which to refuse to turn over information demanded by an arm of Congress. . . .If  one looks at what was done and confines the words to the events, nothing appears which even approaches a solid historical practice of recognizing claims of executive privilege based upon an undifferentiated need for preserving the secrecy of internal communications within the Executive Branch."

Allowing Rove, Miers and Bolten to stiff arm Congress in the present matter where the heart of the inquiry is prosecutorial abuse, itself, stands the purpose of the privilege on its head.  

If the court turns away the Administration's overly-broad claim of executive privilege here, it jeopardizes no national security interest or ongoing investigation. The question presented is simply whether existing laws are adequate to avert the apparent or actual politicization of major charging and subsidiary prosecutorial judgments by the mid-term dismissals of U.S. Attorneys  and to ensure going forward that the dismissal of presidential appointees is not fobbed off on unaccountable staff assistants.  In the present matter, neither the President nor the then-Attorney General claimed to have supervised the dismissals closely or at all. Perhaps the administration wishes to argue that is "merely" near-impeachable maladministration, but alternatively, it could well be a systemic failure of the law.  Either way, the Congress has a fully legitimate legislative interest.

Finally, even  if  Judge  Bates  is  reluctant to re-examine the scope of executive  privilege, there is a simple and well-established principle that should foreclose a successful privilege claim: the dismissals represent past, not ongoing, decision-making.  The late Attorney General William French Smith reflected that legislative  oversight  "can  almost  always  be  properly conducted  with  reference  to  information  concerning decisions which the Executive Branch has already reached."

Indeed, the historic defender of the presidential  office,  the  Office  of  Legal  Counsel, has written that "[t]he courts  have  held  that the ‘deliberative process' privilege does not protect documents which reflect final opinions, statements of reasons supplying the bases  for  decisions,  or  policies  actually  adopted,  or documents that otherwise constitute the 'working law' of the agency."

For these reasons, the subpoenas for Rove's, Miers's and Bolten's testimony, as well as for relevant documents, should be enforced.  Better yet, the President should take the high ground and send his one-time aides to the Hill with their relevant papers without compulsory process.  Doing so would affirm that cooperating with legislative objectives can be, in the American Republic, another way to defend and enhance the body politic's respect for the office of the Presidency.

And on an unrelated -- but grateful (yet bittersweet) -- note, so long to Convictions as we have known it.  The short experiment into the blog world has been fun.  I look forward to participating in the new format, and this now blog-homeless-writer welcomes offers of blog-shelter from those who may have interest in the honest application of conservative principles to, well, even conservatives.

The Imperial Presidency Lives!

Jack,

I want to add a small addendum to your post.  There is a big difference between the president asking for a power and Congress granting it to him, and the president claiming a power for himself and Congress acquiescing.  Critics of the Bush administration argue that Bush shot himself in the foot by failing, in the immediate aftermath of 9/11, to ask Congress for powers that it would have been happy enough to give him.  Bush (or Cheney or Addington or whoever) supposedly refused to take this step because he (or they) didn't just want to obtain additional powers for counterterrorism activity; they also wanted to establish a precedent that the executive had the inherent or constitutional power to engage in these activities, at least in wartime, without congressional authorization.  This would give the executive the power and flexibility it would need to address future threats, including and especially those not foreseen by Congress and hence not anticipated in existing law, and help restore the imperial presidency that was lost after Watergate.

The recent FISA amendment bill vindicates this strategy.  Henceforth, presidents who contemplate law-breaking for national security purposes will look back to the Bush administration and see that the president got away with these activities, and indeed received the blessing of Congress-even in the most unpropitious political atmosphere imaginable.  Private actors such as telephone companies will also in future look to this precedent, when they weigh the risks of defying the president versus the risks of defying Congress.

To be sure, Congress does not explicitly acknowledge the president's small-c constitutional new powers, and Congress tries to anticipate this behavior by providing in the new bill that the FISA procedure will be the "exclusive" means for surveillance.  However, this is akin to stating that a precedent is not a precedent.  Looking forward, presidents and private actors should anticipate the following, if they again break the surveillance law.  (1) A great deal of political noise.  (2) A bill that implicitly excuses them for what they have done.  (3) And, in that same bill, a provision that further tells them not to do it again.  I think they can live with that.

The critics, careful lawyers that they are, understood that Bush would have a stronger legal case for his counterterrorism policies if they had congressional imprimatur.  But the critics simply did not share his other goal-which was to strengthen presidential power, which requires the president to defy Congress and then face it down.  This, Bush has done.  And it may be his most important legacy-a grand success for Cheney, Addington, Yoo, and the other presidential-power supporters in the administration.

Marty Asks, What's Law Got To Do With It?

I'll get back to the substance of our legal debate on presidential authority in a sec, but first a response to Marty's two more general points. 

Does anyone care what the Somalia air strikes tell us about the current legal status of the "war on terror"? Doesn't look like it, Marty says. Quite right, Marty. Though I'm wondering if/whether the story would've played differently if all eyes hadn't been riveted to the rather gripping Democratic primary battle right here in the territorial United States. 

But even if it weren't for the availability of better blog fodder elsewhere, Marty asks, does anyone think law has anything to do with any question of war, foreign affairs, and/or military force? Great, and big, question. My quick take: Folks often don't, but they should. There are all kinds of reasons why there are differences between the laws governing, say, the military and the laws governing, say, health care. But a country of laws is a country of laws. I've never been able to see why it seems so easy for so many to see security as something altogether outside that framework. In any case, the law in, about, and of war has been with us for a long time. And as I've noted elsewhere, it has more than once in our history been the military at the forefront of making sure it's here to stay.

Back to Somalia. I'm confident Marty is right that the current administration (and likely most other executives) would assert that the president has the constitutional power to pursue a strike like this without going to Congress for prior authorization first. But what I think this administration would say about its power here in particular is that this strike was the latest salvo in the ongoing "war on terror" (or whatever they call it these days). That is, they'd say it is part of the president's commander-in-chief power to direct the use of the armed forces in an ongoing conflict. So for them it's not, as Diane suggests, a question of what legal authorization is required to start a war (Somalia, after all, seemed to consent to this attack), but what legal limits there are on how a war is carried out. It's in that respect, I think, that what the AUMF says about "necessary and appropriate" matters. Whether or not the president needed to go to Congress in the first instance for authorization to pursue a global "war on terror," Congress has now spoken on that subject. 

Most folks (I include myself) think the AUMF surely contemplated the invasion of Afghanistan in 2001. Did it also contemplate, say, targeted killing in Somalia in 2008? Because Diane and I agree the law of war might shed some light on the scope of Congress' thinking here. I'd be interested to know whether jus in bello (the law during war, like the Geneva Conventions) would put this within the bounds of conduct in this case (assuming, Diane, that we're in the administration's particular world of war).

Not Defending the Indefensible

Marty, you sure read a lot into my post, which was meant as a critique of Sands' view that American lawyers should be prosecuted in foreign courts if they give legal advice that results in international law violations, not as a defense of the torture memo.  I certainly am not going to defend the memo.  With the benefit of hindsight, it is clear that this memo and the other legal memos issued by the Bush administration were a failed effort in living constitutionalism.  The Bush lawyers apparently believed that the political establishment would accept their expansive theories of presidential power-that they could take further steps forward on behalf of the executive branch, which has been accumulating power for hundreds of years, as a result of changing attitudes caused by the 9/11 attacks.  It is clear that they were wrong, and now they are paying the price.  It is possible that the failure was due to the legal-craft defects in the memos.  More likely, the lawyers simply misjudged the response of Congress, the public, and the media.  After all, all efforts at constitutional change outside the formal amendment process necessarily involve aggressive readings of the law, which lawyers recognize as legal-craft failures but which may nonetheless succeed.  It is an important example for Jack's theory, which needs an account as to why some efforts to entrench the preferences of temporally extended majorities succeed and others fail.

It is equally clear, I think, that the Kosovo decision did exactly what the torture decision failed to do: it effected a change in the law.  Whereas before the Kosovo intervention it was clear that a non-defensive invasion of a foreign country without Security Council authorization violated international law, after the intervention all kinds of people-international lawyers, diplomats, politicians-claimed that there was an implicit exception for humanitarian intervention.  The intervention had other implications for international law that are being felt to this day.  Whether this quite obviously illegal act had a good or bad effect on international law is a political and moral question.  This was exactly my point: is this the sort of question that should be answered by foreign courts, as Sands would have it?  If you think that the effect on international law of that decision has has been a good one, then you cannot agree with Sands's view, unless you believe that it is right for trial judges in European countries to set the rules for nations in the course of adjudicating criminal trials of American and other foreign lawyers.

As for your claim that my view is cynical, I was actually more afraid that someone like Jack would say that it is trite.  Jack, after all, accused Dahlia of literocrisy when she said that she was appalled by the influence of politics on supreme court decisionmaking.  I'm "shocked, shocked," says Jack, to see the political views of supreme court justices influencing their decisions, and he won't be a bit surprised, he continues, if the court recognizes gun rights on the basis of an incorrect reading of the Constitution.  Your reaction to me was, in substance if not in tone, exactly the same as Dahlia's reaction to Jack.  How can you be so "insouciant," she said (actually she didn't use that word), about the justices inventing gun rights?  His response is that he does care but he is interested in a different question, the question of how constitutional change occurs.  Jack's vision of constitutional change is court-centered; in my own work I have focused on how constitutional change occurs through struggles among the three branches as well, and so a further question is how the executive branch effects constitutional change.  You see, and how many times am I going to quote this line from Jack?, the purpose of judicial review is "to represent and protect (in as legally principled a way as possible) the constitutional values of temporally extended majorities."  This prescription assumes, correctly in my view, that legal-craft error is not just the result of incompetence or bad faith or evil; it has to happen if we are to have a living constitution.  And it will be done by all three branches, not just the courts, in the course of advancing substantive views about their constitutional roles.  So the whole question boils down to the issue of who gets to determine whether a craft-error was a mere error or constitutional change.  Jack would say, "social movements."  I would say, "politics."  Sands would say, "judges."  But why should judges make such essential political-constitutional decisions?  They are not the arbiters of the living constitution, as Jack has so painstakingly demonstrated.

I am sorry that my teasing of Philippe Sands (who is made of sterner stuff than you might think) led you to believe that I think that there is nothing of moral significance in this debate, or that your (or his) indignation was feigned.  If you still don't understand the source of our miscommunication, read again Dahlia's post to Jack, and his response to her.  I don't think anything could be clearer, and I feel that we have already tested our readers' patience.

More Yoo

In a modest attempt to allow equal time, I note that Esquire magazine has posted what it calls the first interview with John Yoo since this week's release of the latest memo. You can find it here. Not that the interview sheds much light, but my favorite excerpt is when the interviewer presses Yoo on his decision to extract the pain-associated-with-organ-failure-or-death standard from an unrelated statute as a means of fleshing out the definition of the federal crime of torture.

Esquire: But at the same time, you as a human being writing that phrase -- this is not legal theory anymore. We're in the real world and its going to have a body count.

Yoo: This is unpleasant. Don't interpret what I'm saying as though I was happy to do this or eager, or I felt some satisfaction. Mainly because I had read what the British and the Israelis had gone through—they had their own struggle with this issue and they had their own judicial decisions—and I had read all kinds of articles and books about this issue. I mean, it's a difficult issue. You have to draw the line. What the government is doing is unpleasant. It's the use of violence. I don't disagree with that. But I also think that part of the job unfortunately of being a lawyer sometimes is you have to draw those lines. I think I could have written it in a much more—we could have written it in a much more palatable way, but it would have been vague.

Can't tell from this whether the greater unpleasantness for Yoo is in the topic or in the interview.

Is an Objective Appraisal of John Yoo's Work Possible?

While there has been a feeding frenzy of criticism directed toward his recently released 2003 memorandum, and some of that criticism is deserved or understandable, some frankly is over-the-top, and insufficiently appreciative of the law and the facts as Professor Yoo confronted them.

Geneva Conventions

First, on the Geneva Conventions applicability to al Qaeda there was virtually no one in any part of the government, presidential appointment or career public servant, who thought this Convention applied to these unlawful combatants. Justice Stevens thought differently about Common Article 3 in Hamdan, but his interpretation was hardly accepted wisdom. That makes sense then and now. Individuals who observe no dignity of human life and who, contrary to every law of war, target civilian populations have been since the time of Bracton or before outside the protections of civil society. There was some discussion, nevertheless, of whether as a policy matter the Conventions should have been extended to al Qaeda and there was considerable disagreement about how the Conventions applied to the Afghanistan and the Taliban.  Here there is reason to believe that the administration in not opting to apply the Convention committed error.  But, of course, this is wonderfully clear hindsight.  Functionally, the administration proclaimed itself to be extending equivalent humane treatment, and perhaps in the main, it did, but the photos of Abu Ghraib would leave an indelible refutation.

Better to Put It in Writing

There is reason to believe that Professor Yoo presented both sides of these difficult questions in his oral briefings to his superiors.  It is unfortunate this more balanced appraisal was not memorialized.  Recently, in Esquire, the Professor stated:  "these were not easy questions. Whether it was a war or not, the question of whether Geneva Conventions applied to al Qaeda was a straightforward question, at least to me. The policy question is much more difficult, whether they should apply to them as a matter of policy."  Professor Yoo here shows a keen appreciation for the fact that what is legally permitted is not necessarily what should be prudently done.  He shows an extraordinary appreciation for not misleading his military clients, which is somewhat remarkable, given the later, more sweeping nature of the memorandum.  Nevertheless, the Professor reports that he was concerned about the "balance" of the advice giving, asking "Is this going to degrade military discipline? Is it going to give us a bad image versus does it produce gains in security? Is it part of the message that terrorists are not going to be given the same status as people who follow the rules? It's a very difficult trade off. And then it's harder and harder because there's the question that if you don't give them full Geneva Convention protection, what are you going to give them? That's a hard question, too. I think the legal questions are much easier than those fine hard-grained policy issues. I think those are very hard questions. It's not my job to say what they should do."

Not His Job

The last point - that it was not OLC's job to set policy is very important to remember.  One wonders if the decision-makers remembered this, or if OLC should have even more strenuously than usual given emphasis to this point that is virtually a uniform recital in OLC advice giving.   It may be convenient for the fingers to be pointed at Professor Yoo, but it is not beyond reason to think that there was a fundamental confusion in the White House between what was "legal" and what was "right."  To be sure, Professor Yoo cannot be fully excused here because it is OLC's job to both make that plain and also not to overstate what is "legal" as an advocate would, and unfortunately, the memos are not the ideal on either score.

If You Can Do Better, Why Didn't You?

Professor Yoo's work has been called "slapdash" by Professor Goldsmith.  Professor Goldsmith has written an important book on his very short tenure in OLC (nine months).  I have reviewed and complimented the book in part in the forthcoming issue of the Harvard Journal of Law & Public Policy, but in fairness, Professor Goldsmith did his nation a disservice by "dropping into" the OLC role for such a short period.  He is an able lawyer, but allowing himself to use government service in this pivotal spot between two academic appointments added more than he may fully appreciate to the ill-considered advice going to the White House from DOJ generally.  Professor Yoo was Jack Goldsmith's mentor and supporter, and it is hard for him to comment beyond saying that some of his criticism is "unfair."  It is "because Goldsmith never issued an opinion of his own. He's certainly free to criticize. It goes back to unless you've actually made the hard decision yourself, then you don't really know how you think it through, what you would do. So he says "slapdash opinion," but we have no idea what he would have done, because he left."

Nobody Home

Professor Yoo relies also on the "normal" review process in the Department, but in truth, that did not exist both because of the abnormal times, the extraordinary turnover in the Office, and the strength of John's talent.  To say that the Attorney General signed off is simply not to say a great deal since those selected for even that post in this administration were more likely "friends," or saw themselves as answerable to the White House rather than the keepers of the integrity of the executive and the law.

In his book, Professor Goldsmith dwells on the statute Professor Yoo borrowed by analogy to give meaning to the often vaguely worded provisions against torture.  He does not say what source he would have used and why it was more analogous.  The phraseology "organ failure or death," was at least specific, and had been written into law by Congress.  Professor Yoo concedes that it is fair to criticize his legal analogy, but then, one has to supply something else to make things specific.  Of course, once having chosen this phraseology, with all of its attendant harshness, it should have brought home to the Professor and those who he was advising that the United States was sailing into very troubled waters.  It would likely be accused of besting the terrorists at their own awful game - of disregarding the sanctity of the human person.  It is not at all clear this was grasped that what the government was proposing to do in interrogation practice was not just "unpleasant" as the Professor put it, but except in the most extraordinary of circumstances (ticking bombs about to take out millions), unthinkable and wrong.

Law Is Not Morality

When Esquire asks if he had "any moral qualms," of course he says yes, but reverts to the law, saying "again, just because the statute says -- that doesn't mean you have to do it. You're right, there's still the moral question -- after you've answered the legal question -- whether you should do it at all."  John was relying on the usually narrow role of OLC to convey that or the balance of his memorandum, but having written in a style contrary to the usual OLC role, could that really be grasped?  As it turned out, it was not.

The Totality of the Circumstances 

The Fourth Amendment portions of the Yoo memorandum are likewise subject to misreading for similar reasons.  Again, I think it fair to note that any memorandum written within a few weeks of the fall of the twin towers would naturally view the nation as under attack and at war.  Soldiers on a foreign field of battle do not have Fourth Amendment limits on their operations.  It was logical to think that was true for domestic military action aimed at enemies or belligerents within the United States as well.  The passage of the AUMF was then, and is now, viewed as a legislative endorsement of making war on those who executed the attack against us as well as those who aided and abetted them.  What is remarkable is that two years later in 2003 the same proposition seems to have become doctrine even as the context was different.

It is also possible to fault Professor Yoo for not writing more narrowly given what he likely knew was the anticipated audience.  Statements like "Our office recently concluded that the Fourth Amendment had no application to domestic military operations," without qualification were certain to mislead non-lawyers receiving the document. In the legal context of foreign affairs which our founders painted with fine point brush in hazy gray to deliberately allow for the unforeseen, it is seldom prudent to spray paint in black and white.

The Professor relies upon Verdugo-Urquidez, as well as the Supreme Court's treatment of the destruction of property for the purposes of military necessity.  This is plausible, but should also have been acknowledged to be scant precedent derived from considerably different facts. U.S.v Verdugo-Urquidez involved a search of the property of a foreign national that was conducted in Mexico with the authorization of the Mexican government. Obviously, there is nothing domestic about that. 

To his credit, Professor Yoo did caution that his analysis "should not be confused with a theory that the Constitution somehow does not "apply" during wartime."  But this again warranted greater explanation, since his point of reference is the civil war case of Ex parte Milligan, 1866), which had it been fully explained would have been a reminder that the Bill of Rights is fully applicable domestically in wartime to U.S. Citizens.

Of course, the Justice Department has since disavowed both memoranda, properly noting that "Whether a particular search or seizure is reasonable under the Fourth Amendment requires consideration of the particular context and circumstances of the search."

When the administration gave its legal reasons for the Terrorist Surveillance Program in January 2006, it gave a far more nuanced appraisal of the Fourth Amendment, focusing on special needs exceptions and the like.

What Have We Learned?

What is the importance, then, of the recently released 2003 memorandum?  In part, it illustrates that the nation was in crisis in 2001, and the crisis mentality shaped the legal analysis being given.  What is remarkable is that this attitude continued right through 2003.  When facing what was perceived to be a profound threat of uncertain dimension with the fear of even more devastating attack, I am not prepared to say that -- in the 2001 memorandum that has yet to be released -- the legal statement and reasoning should have been more carefully given, but two years later, when the circumstances could have been more objectively assessed, the standard arguably should have been different. 

Again, I am reasonably confident that thoughtful appraisers of executive branch lawyering like Professors Dawn Johnsen and Marty Lederman share my regret that the president never staffed OLC with individuals, who could have brought to bear a longer, more mature institutional memory that would have given him the full benefit of legal advice.  It was important for a Deputy like John Yoo, with his strong conception of presidential power to be present, but it was also important to have a senior counsel heading OLC who was not in the president's usual orbit of hand-picked friends or advocates and who would have ensured that the Professor's advice was juxtaposed and tested by the diplomatic and practical thinking of the Legal Advisor at State and the General Counsels of the military branches.  Of course, it would have been especially handy if there had been a steady hand in the front office capable of synthesizing the contradictory views of this complex area and withstanding the kind of internal political skepticism directed at the OLC lawyer in the room who raises a note of caution.

It seems unlikely that a lawyer attempting to preserve the objective, non-advocacy role of the OLC tradition would have concluded without qualification on the basis of little or no direct precedent that:

"Even if these statutes were [construed] to apply to persons acting at the direction of the President during the conduct of war, the Department of  Justice could not enforce this law or any of the other crirninal statutes applicable to the special maritime and territorial jurisdiction against federal officials acting pursuant to the President's constitutional authority to direct a war. Even if an interrogation method arguably were to violate a criminal statute, the Justice Department could not bring a prosecution because the statute w6uld be unconstitutional as applied in this context."

No doubt that is what the CIA wanted to hear, but given all the legal and policy imponderables that Professor Yoo has since acknowledged, that could not be said.

Stuck on Yoo

Because of the secret nature of al Qaeda's operations, obtaining advance information about the identity of al Qaeda operatives and their plans may prove to be the only way to prevent direct attacks on the United States. Interrogation of captured al Qaeda operatives could provide that information; indeed, in many cases interrogation may be the only method to obtain it. Memo, p.4 (emphasis added).

No citation to authority. No offer of any logical or factual support for the claim. No reference to administration policy documents, security analyses, military or intelligence risk assessments, or any particularly evident basis for the statements of any kind. Just Yoo.

Hard to say what bothers me most here. One possibility is just the painful internal contradiction. John Yoo (among others) has devoted so much time to trumpeting the importance of judicial deference to executive expertise. Too bad it turns out that the only "executive" expertise evident here is Yoo's own take on what might be effective in preventing future attacks. Can't particularly think of anything other than torturing captured detainees. So that must be the only way.                         

Maybe it's that the passage appears not in some foreign policy article or popular op-ed, in which citation to any supporting basis for such assertions wouldn't be expected—but rather in a legal memo, as part of a legal analysis of the president's powers as commander in chief—to which any first-year law firm associate would respond by just hitting the Alt-F8 macro demanding the author "state the basis" of the claim. Or maybe it's the entirely illusory nature of the proposition. We "may be" all about to explode. Or not. Just wanted to throw that out there as a possibility as the reader contemplates whether to buy into the otherwise, uh, unusual, legal analysis that follows.

Or maybe it's just how painfully ill-informed it sounds in the face of the actually voluminous body of pre- and post-9/11 security policy assessments (9/11 Commission Report included) listing the hundreds of ways other than custodial interrogation one might go about preventing the next attack. Or in the face of the recognition of the U.S. Intelligence Science Board that "knowledge of behavioral indicators that might assist in the detection of deception is very limited and provides little reliable information that could assist intelligence collection ... [with] current populations of interest." That is, it is entirely unclear based on present knowledge how to secure the revelation of accurate information from an individual.

At a minimum, there's no way this paragraph should do any legal work. Yet this paragraph is in no small part how Yoo gets around to defending the legality of torture. And it's part of how he gets around to saying torture should be up to the executive branch alone. So maybe what scares me most is that counterterrorism is indeed serious business—and I would really, really like to think someone other than John Yoo was minding the store.

The Times, They Are aChangin'

But it strikes me that the conversation so far (involving you, Marty, Orin, David, Dawn) is less about a disagreement over journalistic practices and more about this larger problem of who makes decisions on questions of legality and national security.  I take it that you don't think the press should exercise much independent judgment here but rather substantially defer to the executive on questions of effectiveness (though I vigorously join Marty in rejecting your reasons why). But I was perhaps most startled by your suggestion that "in an ideal world," it would be "better for a judge, rather than a newspaper editor, to decide whether a national security program should be compromised because of doubts about its value or legality."

Setting aside all kinds of important First Amendment issues here, I'd love to hear your case for why the judiciary has comparatively greater institutional competence than the media in making such an assessment.  If I hadn't read any of your previous work, I might read you as here arguing for an expanded judicial role in reviewing the national security secrecy views of the executive.  But it can't possibly be so, can it?

Constitutional, Yes, but a Really Bad Idea

Two thoughts in response to Marty's provocative questions:

First, I think having a relatively independent DNI probably is manageable constitutionally. We already have, after all, an FBI director who is appointed for a term of years that does not coincide with that of the appointing president. While the DNI is higher up the food chain, I suspect the office could be structured so as to look pretty similar. The more formal one makes the DNI's independence—in other words, the harder his removal is for the president to effectuate—the more difficult the question becomes. But at a minimum, it should be possible to create an office with a term of years and a strong norm against removal for reasons other than misconduct.

All of which seems to me a perfectly dreadful idea, and I'm frankly a little bewildered by its attraction for the people most offended by the intelligence policies of the current administration. After all, having a long-term occupant of that office would ensure continuity across administrations in an area in which there is simply no political consensus as to the proper posture of the executive branch. If you imagine it existing now, it would allow Bush to appoint Obama's DNI. The reason the FBI director's term of years is defensible is that Americans basically agree on the apolitical nature of the investigative function and want to insulate it from the shifting political winds. A similar consensus,  I suppose, exists for much intelligence collection and analysis. But no such consensus exists for a lot of intelligence policy over which the DNI has charge. Would we really want Bush to appoint Obama's point person on warrantless wiretapping, renditions, and interrogation? 

An Obama administration would presumably handle a lot of things within the DNI's purview differently from a Bush administration. And the Republican who runs against Obama four years from now, should Obama win in the fall, would presumably criticize and promise to change Obama's intelligence policies. If we make the DNI's position apolitical, we greatly reduce the capacity for political debate over and change in intelligence policy.

A New Writ: Please Detain Me!

Suppose that U.S. troops are on patrol in country X. Perhaps they are engaging in joint maneuvers with that country's armed forces; perhaps they are there for some other reason. Some soldiers out on maneuvers run across a person whose face is on a "wanted" poster that they have seen. In violation of their own orders, U.S. law, and local law, they decide to arrest that person, reasoning that he is dangerous and that they are doing everyone a favor. A scandal ensues; the soldiers are disciplined.

Meanwhile, however, the government of country X asks the U.S. military, which has taken custody of the person in question, to hand him over to the government. The government understandably prefers that a wanted criminal not go free. The U.S. military is about to make the transfer when it learns that a U.S. district court has issued a preliminary injunction against turning this person over to the foreign government. This person, who happens to be an American citizen, although concededly under the criminal jurisdiction of country X where his alleged crimes occurred, has some relatives back in the U.S. who have filed a habeas petition on his behalf.

Normally, a habeas petition asks a court to order the U.S. government to release the person in custody. Fine, says the government; we will release him to the government of X. He is a wanted criminal, after all. No, says the court; you have to hold onto him. After we have a habeas hearing, then you can release him. Release him to the government of X? We'll decide later, says the court. Well, what are the other possibilities? Release him secretly so that he can continue to roam at large in country X? Ship him back to the United States and set him free there?  Why would we want to do that?

Deborah, isn't this the Omar case (except that I have assumed, for the sake of argument, that U.S. custody of Omar is clearly illegal when it might well not have been)? Why would it be hypocritical or in any other way wrong for the United States government to release Omar to the custody of Iraqi law enforcement authorities? I'm sure Iraqi criminal justice is not fantastic, but it's what everyone else there has to put up with. As best I can tell, the majority of the appellate panel thinks that detaining Omar for a while longer might do him a favor because the Iraqi authorities could change their minds about arresting him and charging him with crimes, perhaps in light of evidence disclosed in the hearing. In effect, the court is anticipating that Omar's remedy for being illegally (if that is the case) detained is that he will be detained even longer. Odd.

To see why this is so odd, suppose that the preliminary injunction were out of the picture. Omar is picked up, and a habeas hearing is held instantaneously. If he wins (the court holds that the detention was illegal), then he is kept in detention (for how long?) in the hope that the Iraqis will change their minds. If he loses (the court holds that the detention was legal), then he is released immediately into the waiting arms of the Iraqi police. Do you think that a wanted criminal in Iraq should be shipped back to the United States for a trial here, even though the alleged crime was committed on Iraqi soil?

If I were a Supreme Court justice, I would ask Omar's counsel what relief he ultimately hoped to obtain (after the hearing is held). I find it hard to believe that the counsel could answer this question without sounding ridiculous. Anyone have any ideas?

Munaf and Omar Go to White Castle

Of all the striking things about the consolidated cases the Supreme Court is set to hear this Tuesday—presenting the question whether U.S. citizens held by the U.S. military in Iraq can seek habeas review of their detention in the U.S. federal courts—the most striking to me has got to be how little anyone seems to care.

I should say I'm not one to raise the specter of public inattention lightly. Indeed, it always drove me a little bit nuts how often (viz. invariably) I'd get the question at public panels devoted to post-9/11 law and security issues (usually with respect to torture): "Why doesn't anyone seem to care about this?" First, a huge number of people demonstrably care (including the hosts of the forum and everyone attending). Congress has legislated now repeatedly on the topic. Foundations and nonprofits have devoted comparatively enormous quantities of time and resources to advancing (to greater or lesser degrees of success) their views. Academic and popular publications have proliferated on this like copies of Thriller c. 1983. And as far as I can tell, pretty much everyone in the press has covered it (torture in particular) at one time or another in recent years. Not, of course, that there's anything wrong with that.  Second, I'm a lawyer, not a public opinion pollster. To the extent one hasn't encountered one's preferred level of rioting in the streets on a particular issue, I'd as soon defer on the "why" question to political scientists, clergy members, and marketing analysts (not necessarily in that order). Third, on what actual basis is anyone asserting there isn't "anyone" who cares? Their own polling? The issue's relative absence on the cover of People magazine?

Now where was I? Ah, being slightly more careful lest I be rightly accused of self-contradiction. Trying again—I've heard comparatively little about this case at the listservs, blogs, conferences, columns, amicus briefs, etc. folks in my field frequent. Maybe I just don't get out enough. Whatever the case, I think Geren v. Omar and Munaf v. Geren have the potential to be at least as important as Hamdi, Rasul, and Hamdan—the banner Supreme Court cases post-9/11 dealing (mostly favorably) with individual rights in the face of executive power. 

While I'm hoping/guessing Dahlia will help fill the relative vacuum with her usual fabulous account of oral arguments on Tuesday, here are some questions I'd be most interested in hearing my fellow bloggers address in the meantime: 1) Anyone think this case is not likely to take another chunk out of the idea that the executive acting on security matters abroad is entitled to total deference by the courts? 2) On the foreign affairs and the U.S. Constitution front (if not the hypocrisy front), what do folks make of the administration's argument here that the source of executive power to detain Americans abroad in Iraq may be found (effectively) in international law?

Cheney is Not a JAG

I'm not inclined to defend Cheney's freelancing in Heller, but I do think David's being a little too facile when he says in this post that "the next time a unitarian tells you the JAGs in the military, civil rights lawyers in Justice, or scientists throughout the government have no right to assert their independence, remember-they're only following Cheney's lead."

The argument for the executive's tolerating a certain measure of independent action from each of the groups David names is different, and in all of these cases, the argument is totally different from the unique case of the office of the Vice President. We expect a measure of independence from the JAGs in order to protect their ability to represent clients in the context of a justice system that exists within an executive department. We expect government scientists to be insulated from politics because scientific truths are not supposed to change with party control over the executive branch. Civil Rights Division lawyers in the Justice Department, by contrast, are not and should not be independent of their agency's positions; as lawyers representing the United States, they are arms of it. Each of these cases represents a different weighing of the relative benefits of unity versus diversity in viewpoint, the executive's ability to formulate and promulgate its policies versus its interest in preserving such goods as the right to trial or free scientific inquiry. In none of these cases is independent action by lower executive officials built into the constitutional design.

The vice president, by contrast, has a measure of independence for a unique reason: Because the Constitution makes him at once president of the Senate and first in line to the presidency-both a creature of the administration and a sometimes-meaningful part of the legislature. In Cheney's case, the vice president is also perhaps the president's closest aide and the strongest voice within his administration for a unitarian conception of the executive. These facts make his involvement in Heller hypocritical, as David suggests, but they do not alter the reality that he-unlike almost all other executive branch officials-legitimately wears more than one hat. His ability to switch hats is a function of the same constitutional design as the unitary executive he belligerently champions.

War and democracy

I'd like to add to the Cheney discussion that Adam, Jack, Eric and Dawn have been having with a note about his comments today on the war, because I think they illuminate further his views on executive power.

ABC News' Martha Raddatz sat down with Vice President Dick Cheney to get his views on the Iraq war for a segment airing today, the fifth anniversary of the U.S. invasion of Iraq.  Not surprisingly, Cheney remains an aggressive supporter of the Iraq war, defying anyone who questions the raison d'etre for the invasion.  However, today, he went a step further, dismissing the American people themselves as irrelevant:

MS. RADDITZ:  Tell me what you said to the Iraqi leadership and how far you're willing to push them.

VICE PRES. CHENEY:  On the security front, I think there's a general consensus that we've made major progress -- that the surge has worked.  That's been a major success.

MS. RADDITZ:  Two-thirds of Americans say it's not worth fighting.

VICE PRES. CHENEY:  So?

MS. RADDITZ:  So?  You're not -- you don't care what the American people think?

VICE PRES. CHENEY:  No, I think you cannot be blown off course by the fluctuations in the public opinion polls.  There has, in fact, been fundamental change and transformation, and improvement for the better.  That's a huge accomplishment.

Well, at least we know where he stands.  This statement goes beyond mere stubborn belief in his own policies, or disdain for opinion polling.  He's effectively saying the people's views are irrelevant -- and that the White House will decide the course of the nation, irrespective of what the people say.  I understand that we only elect a President and Vice President every four years, and that strictly speaking, public opinion isn't directly relevant to his actions on a day-to-day basis.  But this is war, not some minor matter of policy.  It is the people who must ultimately shoulder the burden of this war, whether through taxes or military service.  Their views ought to count for something; something more than Cheney's remarks suggest.

I'm curious to hear what my Convictions colleagues think about Cheney's comments -- particularly those of you who have served in the Justice Department as attorneys and advisers to presidents in the past.