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.