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Over the past four months, Convictions has reached hundreds of thousands of readers and contributed a great deal to America's legal conversation. However, we have decided to take a sabbatical. Instead of running Convictions as a continuous blog, we'll call on our excellent roster of contributors when news breaks, and run their exchanges as a multi-part conversation, as we do Dahlia Lithwick and Walter Dellinger's Supreme Court conversation at the end of term.
In addition, I will be taking a leave of absence from Slate to serve as the Obama campaign's national veterans director. I've been grateful for this opportunity to work with such brilliant and engaging contributors, editors and staff, and look forward to rejoining Slate after the election.
Thank you for all of your readership, participation, comments and e-mails over the past four months.
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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.
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Tony Snow was a kind man who enjoyed sparring with his former colleagues in the press.
As well deserved as most of the criticism of the Bush administration has been - on Iraq, on the economy, on the environment, on just about everything except Roberts and Alito -- that criticism also at times exceeds the boundaries of taste or fact. With an ever charitable smile and an offer of friendliness, if not friendship, always behind his eyes, Tony could convey, "I know you can't really mean that" without parallel in the journalistic craft.
Tony saved the Bush presidency from descending into negative approval numbers. [Read here Tony interjecting from eternity: "I know you can't really mean that."]. His two predecessors -- Ari Fleischer and Scott McClellan and his successor - Dana Perino - each possess individual strengths (respectively: intelligence; awkwardness inviting sympathy; attractive unflappability), but all of them read the job description as including defending the Bush indefensible.
Tony didn't -- well, at least not entirely. As the colloquy between Katie Couric and the late Tim Russert (below) on the day of Tony's appointment records, Tony became press secretary to one of the most unpopular presidents in our history in essence "with tenure," by having been honest in past assessment of the administration. While Tony was not given to the negative in either personal or professional life - as manifest in his own cheerfully placed thumb in cancer's relentlessly cancerous pursuit of his vitality - he had the gift of knowing the truth and not being defeated by it. It was as if he was borrowing for his boss the forgiveness of the wrongly accused character in a Tolstoy folktale. Yes, Tony, "God (does) know the truth, but waits."
Tim Russert, welcome your friend Tony home today. You now have a pal to watch the conventions with. God always provides.
Requiescat in Pace.
From the NBC Today Show of April 27, 2006:
Couric: "Let's move on to Snow in April. Tony Snow named new White House Press Secretary. As Kelly mentioned he's been critical of the White House. He has said, called the President quote, 'Something of an embarrasment,' who has quote, 'lost control of the federal budget,' and is the architect of a quote, 'listless domestic policy.' Were you surprised at, at this choice?"
Russert: "Not at all Katie. They had been talking to Tony Snow for about a week or so. He is a polished, articulate, conservative commentator. He is someone that the President wants out front before the American people every morning, every night articulating and making the President's case. His personality is such that he's a pleasant man. They believe that Tony Snow can connect with the American people and help put a positive gloss on the Bush administration policies. That's why he was picked."
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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.
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This week's passage and enactment of the FISA amendments (H.R. 6304) was not without controversy (obviously), but I was particularly struck by an aspect of the story that's received remarkably little attention: Sen. Arlen Specter sponsored an amendment (S.Amdt.5059) to the particularly controversial grant of immunity to telecoms that had worked with NSA; under his amendment, such immunity would have been contingent upon a court's determination that the telecom's activities were "provided in connection with an intelligence activity that violated the Constitution of the United States."
What a spectacle: a United States Senator -- a former prosecutor and the senior Republican on the Senate Judiciary Committee, no less! -- effectively declared himself to be incapable of determining what the Constitution does and does not proscribe. (Of course, Senator Specter was not alone: 37 senators voted for his ill-conceived amendment.)
Specter's attempt to pass the buck on this constitutional question should disturb both proponents and critics of the NSA surveillance activities at issue. That said, and as I've noted previously, Senator Specter's approach to the issue of the constitutionality of NSA surveillance activities is but one example of his tendency to (1) punt controversial issues to the courts, yet (2) loudly chastise the courts for "denigrat[ing] ... congressional authority" when the politics winds suit the change in approach.
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continue reading at Balkinization . . .
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Suppose you think that Congress should have more say over war-making, as James Baker, William Christopher, and their bipartisan commission do, and the president less. Would your new War Powers Consultation Act do this?
Our proposed statute would provide that the president must consult with Congress before ordering a "significant armed conflict" - defined as combat operations that last or are expected to last more than a week. To provide more clarity than the 1973 War Powers Resolution, our statute also defines what types of hostilities would not be considered significant armed conflicts - for example, training exercises, covert operations or missions to protect and rescue Americans abroad. If secrecy or other circumstances precluded prior consultation, then consultation - not just notification - would need to be undertaken within three days.
To guarantee that the president consults with a cross section of Congress, the act would create a joint Congressional committee made up of the leaders of the House and the Senate as well as the chairmen and ranking members of key committees. These are the members of Congress with whom the president would need to personally consult. Almost as important, the act would establish a permanent, bipartisan staff with access to all relevant intelligence and national-security information.
Congress would have obligations, too. Unless it declared war or otherwise expressly authorized a conflict, it would have to vote within 30 days on a resolution of approval. If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval. Such a resolution would have the force of law, however, only if it were passed by both houses and signed by the president or the president's veto were overridden. If the resolution of disapproval did not survive the president's veto, Congress could express its opposition by, for example, using its internal rules to block future spending on the conflict.
It won't work, even in the unlikely event that a president would sign this bill, or Congress overrode a veto. Presidents won't consult; they'll inform, as they always have. If Congress, or members of Congress, try to persuade a court to compel the president to consult, the court will refuse, as courts always have, in such interbranch spats. If a member of Congress proposes a resolution of disapproval, it won't obtain the 2/3 vote necessary to overcome the president's inevitable veto, and even if it does, the president will ignore the resolution, as presidents always have. Congress could express its opposition by blocking future spending, but Congress has always had this option, and almost never used it. As for the permanent committee, the problem has never been that the president doesn't know whom to consult; it's that his judgment and Congress's is different, and Congress has no politically viable tools for preventing the president from taking us to war.
The War Powers Resolution, which this new bill is to supplant, didn't fail because it was unconstitutional. It failed because, over the years, the president has obtained the power to make war. That won't change until the public decides that it won't allow one person to have this power. Only a disaster would cause the public to make such a decision. Is Iraq such a disaster? No; Congress authorized that war, so even if the War Powers Consultation Act had been on the books when that war began, it wouldn't have made a bit of difference.
UPDATE: see Timothy Noah's discussion here. Noah says that Congress wouldn't take the power even if given to it. Maybe that's true, or often true, but there have been some cases -- Clinton's use of force in Kosovo comes to mind -- where Congress stepped to the plate, bravely made its disapproval known on the record for all to see, and -- was ignored.
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As Dahlia noted a couple of weeks ago, Chief Justice Roberts used his dissent in Sprint v. APCC [pdf] as an occasion to quote (or, perhaps, misquote) Bob Dylan. As Alex Long previously explained, however, quoting Bob Dylan in a judicial opinion is hardly novel: Dylan's lyrics have been invoked in dozens of legal opinions and articles.
D.C. Circuit Judge Janice Rogers Brown has taken this trend to a whole new level: Today she opened the court's opinion in K&R Limited Partnership v. Massachusetts Housing Finance Agency [pdf] with a line from ... Jimi Hendrix:
Forty years ago Jimi Hendrix trilled his plaintive query: “Is this love, baby, or is it … [just] confusion?” JIMI HENDRIX, Love or Confusion, on ARE YOU EXPERIENCED (Reprise Records 1967). In this False Claims Act case, we face a similar question involving a mortgage subsidy program initiated in that era: Is this fraud, or is it … just confusion?
I find it hard to believe that any other judge, boomer or otherwise, will be able to top this. So let's hope that good folks of the federal and state benches all have the good sense to stop trying, before this gets out of hand.
Do we really want to head down a road where, forty years from now, we'll see today's music showing up in opinions? Will judges someday quote New Found Glory in tort suits ("slightly bruised and broken from our head on collision")? Maybe a future judge (appointed by President Obama, no doubt) will employ Jay-Z's "99 Problems" to help define to contours of permissible car searches under the Fourth Amendment.
Thanks, but no thanks. In the words of Waylon Jennings, let's hope that "this time will be the last time."
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Jack Balkin and Sandy Levinson are right to probe with hypothetical the dimensions of the newly-minted, or perhaps ancient, right of self-defense, or right to own handguns, in one's home, or maybe outside it, or maybe also to own other weaponry, or maybe not, so firmly established in District of Columbia v. Heller (2008) per those clarifying originalist sources understood by Justice Scalia 5-4.
The Candidates Debate -- well, maybe not
My question relates to this indeterminacy and the politics of discussing this case, and the ultimate effect on political and human liberty. Specifically, is the manifold uncertainty raised by the opinion (and its consequent unsettling of state and local law and disregard of federalism that we conservative types used to care about) going to be challenged (condemned) by John McCain as an invitation to legislate from the bench? Critiqued by Barack Obama? Or, as is more likely not to be talked about by either since McCain's complaints about judicial activism are as meaninglessly one-sided as most everyone else's, and Obama is just happy to not have the NRA energized in his direction - and who could blame him?
No Originalism Left Behind -- well, maybe not
As an under-interpreted provision in the Constitution, the Second Amendment provided an opportunity to test the integrity and utility of the original understanding method of interpretation. It failed. The language to be construed: "a well regulated militia being necessary to the security of a Free State, the right of the people to keep and bear arms shall not be infringed." Prior to the Heller, many thought that the second half of the text was to be construed in reference to its preamble. Justice Scalia concludes instead that the first 13 words of the amendment are "a purpose," but not the purpose.
It's only Natural (Law) to Disagree
Dean John Eastman (a first-rate originalist scholar and the co-editor of our casebook) and I have been batting about the originalist legitimacy of this move by Justice Scalia. I'm skeptical given how the preoccupation with state and private militia by the founders as a counterpoint to government tyranny had fit both the history and the text. It also fit structure as an answer to the threat of abuse of Congress' Article I militia organizing authority. Dean Eastman believes Justice Scalia is informing the text with an appreciation of a natural law right of self-defense perhaps a la the thoughts of Professor Akhil Amar here on Slate some months back.
As for "the right of the people" language, both majority and dissent agreed that this suggests an individually enforceable right, but that tells us nothing about its scope -- specifically whether that scope must have a militia-nexus. Of course, sometimes text, history, context and structure are contradicted by longstanding precedent which, by reason of reliance, merits adherence. But here the interpretation in U.S. v. Miller in 1939 arguably saw the Second Amendment as militia-related, and it was a precedent followed by virtually every lower federal court since it had been decided. Justice Scalia argues that Miller holds only that a short-barreled shotgun was not "ordinary military equipment" because it was not the type men bearing arms would be expected to bring when called to militia service, but so what? How does that free the "right" from the militia nexus?
The dissent saw the opinion as legislating from the bench. Wrote Justice Stevens for the four dissenters quoting Miller, "the signification attributed to the term Militia appears from the debates in the convention, the history and legislation of colonies and states, and the writings of approved commentators.'" In light of that, Justice Stevens concluded: "Until today, it has been understood that legislatures may regulate the civilian use and misuse of firearms so long as they do not interfere with the preservation of a well regulated militia. The court's announcement of a new constitutional right to own and use firearms for private purposes upsets that settled understanding, but leaves for future cases the formidable task of defining the scope of permissible regulations."
But can it be plausibly argued, as Dean Eastman and perhaps Akhil Amar suggest, that there is another view of originalism in play as well? One which heretofore has been championed largely by Justice Thomas but to which Justice Scalia's opinion in Heller now appears to give credence. That view holds, with substantial evidentiary basis in the founding-era debates, that the Bill of Rights merely recognizes (rather than creates) pre-existing natural rights. I concede natural law originalism has always been my preferred view, but given Justice Scalia's past denunciations of it, is it plausible to see him now as among the converted? He does make reference to 19th century case law approving of the perspective. In this regard, the Court makes several references to this "natural law" view of the Second Amendment right, concluding that the Second Amendment necessarily codifies its more expansive right to self-defense, against both private thugs and government tyrants.
But assuming Justice Scalia is in fact now willing to judicially enforce the text of the Constitution only as informed by the natural law, how exactly does he know that the natural law includes a right to possess a handgun for self-defense? As he himself might have been given to point out in other contexts, when the right was linked to "the militia," he could define it in relation to an historical purpose originally understood. If natural law is the new lodestar, then Justice Scalia needs a defensible conception of human nature. And far from the right being new support for abortion as Jack hypothesizes, would not any serious conception of human nature contest, not affirm, that practice? But staying with just born persons, isn't it possible to see more widespread handgun possession as contrary to any natural law basis for the "right" insofar as gun usage has its own inherent dangers or just simply in light of the number of handgun deaths each year in urban areas, including DC?
Go to Hell(er), Federalism!
Does the new gun right apply against the states? Within a week of the ruling in Heller, five lawsuits were filed seeking to apply the newly designed Second Amendment to nullify gun control laws adopted by local governments in California and Illinois. Each of the cases makes the argument that the Second Amendment is applicable to the state and local governments through the Fourteenth Amendment - an issue the Supreme Court has not considered since 1894, when it said the Amendment applied only to the federal government. In note 23 in Heller, the Court declined to reach the incorporation issue.
The Chicago case, NRA, et al., v. City of Chicago, et al. challenges a restriction very much like the DC ban that had been invalidated - namely, a city code provision that requires registration of firearms, but bars registering handguns. Chicago is within the Seventh Circuit which last found that the Second Amendment applied only to the federal government in 1982 relying upon the Presser v. Illinois (1894). The Circuit Court specifically declined to find that Presser had been superseded by the Fourteenth Amendment and its incorporation of most of the Bill of Rights.
Raising the Standard (of Review)
Beyond applicability to the states or not, the standard of review is uncertain for laws that differ from the District of Columbia handgun ban that was nullified. Justice Scalia seems to eliminate rational basis as an insufficient standard, but not much else.
Depending on the standard of review to be named later, it is supposed that we will learn the answers to the questions that bedevil us now, including why carrying a concealed weapon beyond the home and hearth is not protected and also why licensing laws do seem - so long as they are not disguised as prohibitions - not to offend the "right." Similarly, we will know whether switchblades or mace or tazers are beyond "weapons typically possessed by law-abiding citizens for lawful purposes."
Come, Learn from the Master -- or Go Directly to Jail
Finally, the ever dutiful citizenry will be instructed by its judicial masters as to how far, if at all, the right can be taken outside one's home? The front stoop? One's car parked at the curb? The RV parked out back? In the meantime, I suspect it won't be long before a law-abiding Dick Heller-type fella is charged by a local prosecutor for a crime because he used a gun or other weapon beyond the home, in claimed self-defense, only to find upon posting bond that he did not successfully discern the constitutionally acceptable geographic location.
My friend, Bob Levy at CATO brought this case to enhance human liberty. As I see it, only judicial liberty is being advanced. Indeed, to borrow some florid prose from the one-time author of the opinion itself: "The Imperial Judiciary Lives!" Don't expect it to be talked about in those terms by either of the candidates, however, who in one way or the other will have been silenced, well, at the point of a gun.
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continue reading at Balkinization . . .
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Right at this moment, the Supreme Court is not an issue in the campaign, although partisans on both sides will no doubt keep trying to make it one as we get closer to November.
One reason the court is not an issue right now is that the chief justice has done a superb job of lowering the court's profile. It's hard to get the nation worked up over disputed interpretations of the Employment Retirement Income Security Act, for example. The intensity of the gun battle should not obscure the winning Roberts combination of taking fewer cases overall, taking fewer controversial cases in particular, and encouraging the issue of narrowly drawn opinions. That is all to the good, even if it makes it more difficult for Sen. McCain to stoke up an intellectually tired conservative base by raising the hoary specter of judicial activism. He hasn't been successful thus far, in part because activism is not nearly the problem that he describes it to be.
Sen. Obama is both more perplexing and intriguing on the judicial nomination front. Perplexing, because he voted against (mistakenly, in my judgment) two of the most talented jurists on the bench, John Roberts and Sam Alito, even as he conceded they had the intelligence, capability, and proper judicial temperament. Intriguing, because Obama's stated basis of opposition was a suspicion that these nominees were not sufficiently empathetic with the needs of the average person. Sen. Obama himself, of course, has great empathy for those who are often overlooked by the political process, and it will be fascinating to see how that attractive quality can be translated into identifiable and appropriate selection criteria for the men and women he would want serving on the bench.
It is widely speculated that the next nominee of either party will be a female, and that is likely, given the persistent reminders of Justice O'Connor (not to mention speculations about Sen. Clinton). But the inescapable consequences of the actuarial tables—as well as the personal desires of some of the senior members of the court—will probably result in a two or more vacancies in the next presidential term.
So if gender were not a consideration, is there a standout judicial candidate who could reorient the confirmation process away from real or imagined concerns with "activism"—and be acknowledged as superior in quality, temperament, and personal ethic of concern?
Yes: Carter G. Phillips, the managing partner of the Sidley Austin law firm in Washington, D.C., who argued a remarkable five cases this term, bringing his total before the court to 50 in private practice with an additional nine during his service in the SG's office. There is not another advocate in the country who is as respected for his impartial legal judgment, personal integrity, and genuine friendship and assistance to his fellow members of the bar and to his community. There is also not an advocate before the court who wouldn't desire to have work product be so well thought as to merit colloquial reference by the Justices from the bench, as occurred during the Grutter oral argument with their frequent reference to the "Carter Phillips brief." Phillips is also the right age, 56, and with the circumspect demeanor of his mentor, the late Rex Lee, Phillips is one of those rare individuals of stature who could rather remarkably be seen as a nominee of either party.
There are other men and women who could (and should) be thought of: for McCain, Judge Diane Sykes of the 7th Circuit and former SG Paul Clement come readily to mind; for Obama, Kathleen Sullivan or Judge Merrick Garland of the D.C. Circuit would surely be contenders; and I suppose there are even people with gun racks who would appeal to Bob Barr. But if the objective is to transcend political division, there is no one better than Carter Phillips.
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Most of you have probably already seen Linda Greenhouse's articles yesterday and today, reporting that in last week's Kennedy case involving the death penalty for child rape, the court, its clerks, the parties, the several amici, and the solicitor general all somehow overlooked the fact that Congress enacted a statute two years ago that provides a possible penalty of death for U.S. service members convicted of that crime. Apparently the only person who knew anything about it was ... a lowly blogger, civilian Air Force lawyer Dwight Sullivan! (Kudos to Mr. Sullivan.)
We're having a bit of a discussion about it over at the Federalist Society Supreme Court roundup blogfest. Chuck Cooper commented that the omission is "powerful evidence that undercuts, to say the least, the majority's intuitively implausible finding that there is a national consensus against capital punishment for the crime of child rape, no matter how brutal the assault, how young the victim, etc., etc." Mark Tushnet followed up:
I was struck by something a bit different -- a truly stunning failure of advocacy on the part of what has come to be described as an increasingly professional Supreme Court bar. The approach the Court was going to take was clear, and indeed the briefs focused on the kind of survey of legislation that one would expect. How the lawyers (particularly for the state, but also for amici supporting the state) failed to locate an obviously relevant statute -- it's an act of Congress after all, they're not that hard to find -- is truly astonishing. Were this private litigation, I'd advise a client to have a serious discussion with the lawyers about their fees.
I agree with Mark, to this extent: The failure of any of the parties and amici to flag the new statute is rather remarkable, especially since there were very experienced SCOTUS lawyers representing amici on the respondents' side, including Ted Cruz and Chris Landau. Nor is the statute listed on this Web site, which evidently was a principal source that several of the amici relied upon.
More remarkable still: As Linda Greenhouse reports today, no one in the SG's office discovered the law, either. The DoJ Statement is as follows:
We regret that the Department didn't catch the 2006 law when the case of Kennedy v. Louisiana was briefed. It's true that the parties to the case missed it, but it's our responsibility. Yesterday, shortly after learning of the law, we advised the Clerk's office at the Supreme Court. Only parties to a case may petition for rehearing. If a petition for rehearing is filed, the Department will review the petition and consider what steps are appropriate, including possibly seeking leave of the Court to provide our views on the petition for rehearing.
Although no one has been sentenced to death for child rape under the law, we note with regard to the continued constitutionality of the law that the Supreme Court has not resolved the question whether its Eighth Amendment jurisprudence applies with equal force in the context of military capital punishment. Cf. Loving v. United States, 517 U.S. 748, 755 (1996).
Presumably none of the memos to the SG from the components and interested agencies mentioned it—because if they had done so, the SG would undoubtedly have appeared as amicus on behalf of Louisiana. (I suspect no one in the Criminal Division knew about it, and it probably did not occur to the SG's Office to ask DoD for a recommendation. On the other hand, if folks in DoD were aware of the law, presumably they would have sua sponte flagged it for the SG. Hmmm ...)
So, let's assume that the states were unaware of it. And so was the SG's office and the rest of DoJ. And possibly even most or all of the relevant authorities at DoD. And all of the amici. And the court and its numerous clerks. And that this provision was included on the 129th page (in Statutes at Large) of a 420-page omnibus authorization bill. And that the provision was not discussed in the Conference Report (except where the bill language was set out). And that it was not so much as mentioned, let alone debated, by any legislator on the floor of the House or Senate. (My own cursory Westlaw search confirms this!) If all that is true—if virtually none of the legislators who voted for the bill knew about this amendment to the UCMJ, and it received no public attention whatsoever, for almost three years after its appearance in the bill and more than two years since the president approved it, and it was never implemented, and none of the very fine lawyers working on the case in the government or outside it discovered it in their legal research, then is it really the case, in any meaningful sense, that its enactment "undercuts, to say the least," the court's assumption that there is a "national consensus against capital punishment for the crime of child rape," as Chuck suggests?
I should add that, as the DoJ statement suggests and as Orin Kerr stresses, it's also not at all clear how statutes governing the U.S. military bear on, and are governed by, the court's "evolving standards of decency" doctrine.
The court almost certainly will not grant the (expected) petition for rehearing—but I wouldn't be surprised to see a dissent from denial of rehearing in which Justice Scalia pounces on this oversight.
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Marty says, echoing Phil:
That is to say—and as Eric's closing swipe at Congress suggests—Eric believes that war should not be governed by legal standards at all. Which is fine, I suppose. But as Phil has stressed, that's not the view of history and of all Western nations engaged in armed conflicts for centuries; ....
It's not really worthwhile, I think, to debate whether war and law are fundamentally incompatible, because that question was definitively resolved eons ago, and there's no constituency at all for reviving it (outside the academy, that is).
I agree that this debate is not worthwhile, which is why I am not a party to it. I never said that the war should not be governed by legal standards. I said that civilian judges should not administer those standards, at least not for routine decisions such as targeting and detention of enemy soldiers overseas. The debate is about the role of civilian courts in ensuring that the military complies with domestic law and the laws of war, not whether "the war should be governed by legal standards at all." That's why I keep trying to get Phil to tell us how far he wants the courts to go. If they should evaluate detention decisions, what other decisions should they evaluate, and so forth. What are the criteria for determining when civilian courts should be involved or not? What's so different about detention and targeting? My small point here, which has been blown out of proportion in the responses, is just the D.C. Circuit's disagreement with the military doesn't help answer these questions, so lends support to neither side's views with respect to the real, as opposed to nonexistent, debate.
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OK, so perhaps I went a bit overboard with the Ouija board metaphor. No, I do not think that the military's detention of the Uighurs was just random, or whimsical, or the product of consultations with the Easter bunny.
More to the point, I, too, accept Eric's assumption—for how could anyone deny it?—that "the U.S. military is more interested in advancing the security of the United States than that of its geopolitical rivals," and that such considerations are what drive its detention decisions. Of course that is the case. The Chinese haven't "conned" our military. We're doing the Chinese a favor—presumably because the administration believes that will redound to our national interests in the long term. And on top of that, we are incapacitating radicalized folks who just might present a danger to us one day, and/or who just might have some intelligence of value that we could extract if only we can use "enhanced" interrogation techniques on them during incommunicado detention over a long period of time.
From the military's perspective, if there is reasonable supposition that the Uighurs might be dangerous—say, a 1 percent chance—and further suspicion that they might, just might, have some intelligence value (say, another 1 percent chance), and if our favor for the Chinese here might result in a reciprocal favor on our behalf from Beijing ... well, then, why not detain them for six years? If that's all the executive branch had to consider—and if its views would never be subject to any review by any other entity (which was the administration's objective in choosing Guantanamo)—well, then, of course it would err on the side of suppressing virtually every possible threat, no matter how minor or how speculative.
And, if that were the relevant question here, then yes, it would be fairly unnerving to have the federal courts "make an all-things-considered judgment about the wisdom" of the military's decision.
So, it's a good thing that's not what the D.C. Circuit has been instructed to do.
Instead, the judges have been assigned to evaluate whether a preponderance of the evidence demonstrates that these are persons whom Congress has given the president the lawful authority to detain. The judges did not decide that it would not be "wise" to continue the detention—they determined that it would be illegal. If Parhat has not "supported" the ETIM; or if the ETIM is not functionally a part of the Taliban; or if the ETIM has not engaged in hostile action against the United States and its coalition partners; or if (as I've argued) the ETIM and Parhat would have to have a much closer and more direct connection with al-Qaida in order to bring this detention within the authority the AUMF grants ... well, then, in that case the president would not have the legal authority to detain Parhat—indeed, in my view, he'd be acting contrary to an implied limitation that Congress has established.
It was not very difficult, or outside their ordinary judicial function, for this panel of judges to determine that the Pentagon had failed to present any credible evidence on even the two easiest prongs of the Pentagon's own theory of why Parhat was detainable-that the ETIM is functionally a part of the Taliban, and that the ETIM has engaged in hostilities against the United States and its coalition partners.
Eric's view appears to be that such questions, while relevant, should hardly be determinative—that the only pertinent question ought to be whether the United States is better off with the Uighurs in captivity, or better off if we release them, "all things considered." And because judges can't possibly evaluate all the myriad considerations of national security in the way that military officials can, they should reflexively defer, unless they sniff the Easter Bunny lurking. That is to say—and as Eric's closing swipe at Congress suggests—Eric believes that war should not be governed by legal standards at all. Which is fine, I suppose. But as Phil has stressed, that's not the view of history and of all Western nations engaged in armed conflicts for centuries; it's not the considered judgment of virtually every president, military commander, and public official we've ever had, from Washington on down; it's not the view of the courts; it's not Congress's view; hell, it's not even the view of the Bush administration, which conceded to the court that it was legally required, at a minimum, to have sufficient grounds for concluding that the ETIM is functionally a part of the Taliban, and that the ETIM has engaged in hostilities against the United States and its coalition partners.
It's not really worthwhile, I think, to debate whether war and law are fundamentally incompatible, because that question was definitively resolved eons ago, and there's no constituency at all for reviving it (outside the academy, that is).
Once one acknowledges that there is a legal standard that the Bush administration must satisfy in order to detain someone incommunicado for more than six years, it makes perfect sense for Congress (or the Constitution) to authorize federal courts to ask the executive to make at least a plausible showing that it has satisfied that legal test. In the case of the Uighurs, the Bush administration has failed that test miserably—which is "all" that Judges Sentelle, Garland, and Griffith quite understandably concluded.
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David, you're right that the solution of my logic puzzle does not imply that courts should defer to the military; it's equally consistent with the proposition that the courts should make detention decisions and the military should defer to the courts. It's also consistent with the idea that you get to decide whom to detain, and I should defer to you (fine with me)—and vice versa. So, I was making an extremely narrow point, which is that until one can show that one institution is more likely to be superior to another, the mere fact of their disagreement does not tell us which is which. That's the problem with Phil's claim that the D.C. Circuit panel's disagreement with the military in the Parhat case tells us anything new. You're right that Phil has other reasons for thinking that judicial review of military detentions is wise policy, but it wasn't my intention in that post to address those other reasons. My logic puzzle doesn't do much work—you're right!—but it does enough to refute a claim that is very common these days.
Marty does make a good point, however, which I will rephrase as follows. Suppose we learn from judicial review of military detention decisions that military officials rely on theories that are truly alarming. Perhaps they pray to the Easter Bunny for guidance and consult the entrails of slaughtered pigeons for indications of the Bunny's divine will. If this is what is going on, we are in big trouble, and not even the wisdom of the federal judiciary can save us. If the military is guided by the Easter Bunny in its detention decisions, then no doubt the Bunny also determines its targeting decisions, the movement of troops from place to place, the acquisition of new weapons systems, and everything else. So what next? We could place the entire military in receivership under the authority of judges, the way that poorly run prisons are, but so far not even Marty seems to want to do this. (Of course, if the judges tremblingly invoke the sacred name of Punxsutawney Pete, who rages at the military's devotion to a lesser deity, then we are back at square one.)
I can't tell whether Marty thinks that the military is idiotic in the Easter Bunny vein. Perhaps I misinterpret him, but he implies that the Chinese have conned the U.S. military into detaining the Chinese government's political opponents. Until I've heard more, I will continue to assume that the U.S. military is more interested in advancing the security of the United States than that of its geopolitical rivals. If my assumption is accepted, we just can't tell whether the military's reasons for detaining Parhat were too weak or the court's standard for detention was too strong—it all depends on how dangerous a person should be in order for the military to detain him and how much confidence the military should have about this person's dangerousness.
In the end, Marty doesn't rely on the court's view at all, which is why I didn't initially link to his post along with Phil's. He would think the same thing if the court had gone the other way (except he would rage against the judges as well as against the military for their Easter Bunny thinking). Marty thinks he can make an all-things-considered judgment about the wisdom of the military's detention of Parhat based on the facts that have been disclosed. I'm not so sure. Who are we to say whether the Chinese can be trusted in this instance? That said, the question whether judicial review of the operations of the military will improve or worsen decision-making from the perspective of national security and civil liberties can be answered only with—and here, David, I will cite your post contra Marty's—experience, albeit experience that has not yet occurred.
PS: I read the court to be saying that if it were just to accept the military's say-so, then it wouldn't have any role in evaluating detention decisions, which would conflict with Congress's intention to give it a role. That's unobjectionable as far as legal reasoning goes, to which I reply: so much the worse for Congress!
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Eric—I just played your logic game. It's fun. But here's my question: Why do you prefer the M-Box? After all, nothing in logic makes it any better than a C-Box. Both could be accurate, and both could be inaccurate. And yet, I see from your earlier posts that deference to the executive (the M-Box!) is one of your guiding principles. You must have not thought up the C-Box/M-Box game at the time. Or maybe you reached that conclusion because you think there's actually more than logic to this game, and that experience makes the M-Box better than the C-Box. But if that's so, then the M-Box/C-Box game isn't doing much work. There are those, like Phil (and now a majority of the court), who think, when it comes to detention practices, experience indicates there's a value in having courts look over the judgments of executives. And there are, of course, those who draw a different lesson from history. But I don't think it's a confusion over logic that explains the divide.
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Hi, Orin, the Supreme Court's role is modest on some fronts, yes—I agree that deciding that child rapists can't be executed is not of the same order as upholding the death penalty in the first place. Or that outlawing one method of late-term abortion isn't up there with Roe. But in other areas, the court looks bigger to me, and the disagreements worthy. Boumediene is my best recent example: Whether the Guantanamo detainees have the right to go to federal court matters enormously to them, and quite a lot to America's legal tradition and world image, I think. Heller is harder to tell, since it's like an opening bid that invites more challenges to gun restrictions, but it's not every day that a new constitutional right appears in our midst. And the knocking back of the punitive damages award against Exxon seems significant to me, for its own sake and because of the signal Justice Souter's opinion sends about potential limits to state punitive-damages laws. I often wonder if to write about the court is inevitably to hype its importance, and I like your impulse to knock it (and many of us) down a peg. But I'm glad the justices see more than small beans to fight over—Justice Scalia's rhetoric, as usual, being the best evidence of passion stirred.
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It's not a logic game, Eric—it's simply good, old-fashioned judicial review. The role of the "C-Box"—the court—is not to determine whether the detainee (not a "criminal suspect," by the way) is in fact telling the truth, but instead to determine (i) whether the "M-Box" is relying on a valid legal theory to detain the prisoner; and (ii) if so, whether there is any reason to credit the M-Box's conclusion that the detention satisfies that legal standard, even after giving quite a bit of deference to the M-Box-that is to say, to determine whether the M-Box decision is supported by a preponderance of relevant evidence.
You might recognize this—it's what courts do all the time in reviewing executive conduct and what habeas courts have done for time immemorial.
In this case, Phil is right: When there was no prospect of judicial review, the government could detain Uighur prisoners for more than six years, based on a shockingly broad theory of what Congress has authorized, and on flimsy supposition about the facts of the case. But as soon as a court is in the picture—even a court that included David Sentelle and Tom Griffith—and puts the government to the modest burden of, gosh, explaining its decision, it becomes clear very quickly not only that the administration is acting on the highly implausible view that Congress has authorized the indefinite detention of all the world's suspected terrorists (even those whose target might be China), and not only that the military assumes that attending a Uighur training camp makes one a member or supporter of the ETIM, but also that the government's conclusions that the ETIM is part of the Taliban and has engaged in hostilities against the United States are based almost entirely on the government's own say-so (which in turn is likely based on unsupported representations offered by the Chinese, who are more than happy to have the United Statesimprisoning the critics of that government).
I can't do better here than quoting from "the C-Box":
The principal evidence against Parhat regarding the second and third elements of DOD's definition of enemy combatant consists of four government intelligence documents. The documents make assertions-often in haec verba-about activities undertaken by ETIM, and about that organization's relationship to al Qaida and the Taliban. The documents repeatedly describe those activities and relationships as having "reportedly" occurred, as being "said to" or "reported to" have happened, and as things that "may" be true or are "suspected of" having taken place. But in virtually every instance, the documents do not say who "reported" or "said" or "suspected" those things. Nor do they provide any of the underlying reporting upon which the documents' bottom-line assertions are founded, nor any assessment of the reliability of that reporting. Because of those omissions, the [CSRT] could not and this court cannot assess the reliability of the assertions in the documents. And because of this deficiency, those bare assertions cannot sustain the determination that Parhat is an enemy combatant.
The [M-Box] insists that the statements made in the documents are reliable because the State and Defense Departments would not have put them in intelligence documents were that not the case. This comes perilously close to suggesting that whatever the [M-Box] says must be treated as true, thus rendering superfluous both the role of the Tribunal and the role that Congress assigned to this court. We do not in fact know that the [M-Box] regards the statements in those documents as reliable; the repeated insertion of qualifiers indicating that events are "reported" or "said" or "suspected" to have occurred suggests at least some skepticism. Nor do we know whether the [M-Box] relies on those documents for decisionmaking purposes in the form in which they were presented to the Tribunal, or whether they supplement them with backup documentation and reliability assessments before using them to take actions of consequence.
That is to say, the C-Box asked the M-Box to explain its methods, and, after taking a look, concluded that the M-Box is, well, a Ouija board. Now, remind me: Why on earth should we credit the M-Box's conclusions, especially where the liberty of persons detained for more than half a decade is at stake?
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continue reading at Balkinization ...
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Can the president indefinitely detain someone who has no connection to al-Qaida and who has not engaged in any belligerent acts against the United States?
Last week, an ideologically diverse panel (Judges Sentelle, Garland and Griffith) of the United States Court of Appeals for the District of Columbia Circuit ruled that the Bush administration had not established a sufficient foundation for its indefinite military detention of Huzaifa Parhat, who has been imprisoned at Guantanamo for more than six years. Much of the evidence that the court considered is classified, and therefore the court decided that it would publicly release only a redacted version of its opinion. The court released that redacted version on Monday.
Even in its redacted form, this extraordinarily careful and detailed opinion, authored by Judge Garland and joined in full by both of his more conservative colleagues, offers a stark depiction of the most significant problems with the Bush administration's detention policy-namely, that the military has relied upon a breathtakingly broad standard of who can be detained, and then has made particular detention decisions based on very speculative and thin evidence, even under that broad standard. The detention policy in practice, in other words, has been much more indiscriminate than any authority Congress afforded the president in the conflict against al-Qaida.
Within a week after the attacks of Sept. 11, Congress authorized 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, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons."
The administration argues that this Authorization for Use of Military Force authorizes the indefinite detention of Parhat, and several similarly situated detainees, at Guantanamo.
Now, it is undisputed that Parhat had nothing to do with the attacks of 9/11. Indeed, there is no contention that Parhat has ever participated in, or planned, or even supported, any hostile action against the United States or its allies. It is also undisputed that Parhat is not part of any nation or organization that "planned, authorized, committed, or aided" those attacks. In particular, it is undisputed that he is not a member of al-Qaida or of the Taliban. Indeed, the Pentagon's Combatant Status Review Tribunal did not even find him to be "an individual who was part of or supporting Taliban or al Qaida forces." And the CSRT expressly found that he did not engage in hostilities against the United States or the Northern Alliance (an Afghani coalition partner of the United States).
So, who is Parhat, then, and what did he do to warrant indefinite detention at GTMO? He is a Chinese citizen of Uighur heritage (pronounced weegur). The Uighurs hail from the far-western Chinese province of Xinjiang, or East Turkistan, and they claim to have been systematically subjected to "oppression and torture" by the Chinese Government, including "harassment, forced abortions for more than two children, high taxes, the taking away of land, and the banishing of educated people to remote areas." In response to this treatment, Parhat fled China in early 2001, arriving at a Uighur camp in Afghanistan in June 2001. Parhat claims that he went to Afghanistan solely to join the resistance against China, and that he regarded China alone-not the United States-as his enemy.
In mid-October 2001, U.S. aerial strikes destroyed the Afghan camp, after which Parhat and 17 other unarmed Uighurs traveled to Pakistan. Two months later, local villagers handed the Uighurs over to Pakistani officials, who in turn delivered them to the U.S. military. In June 2002, the United States transferred Parhat to the U.S. Naval Base at Guantanamo Bay, Cuba, where he has remained imprisoned for more than six years.
In light of all this-and the utter lack of any connection between Parhat and any hostilities against the United States (let alone the 9/11 attacks)-what is the possible theory under which the Pentagon has purported to detain Parhat for the better half of a decade (with no end in sight)?
Find out at Balkinization.
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An inventor has invented what he calls the M-Box. The M-Box is a lie detector and can be used to determine whether criminal suspects are lying or telling the truth. Unfortunately, the M-Box occasionally errs. Another inventor comes up with what he calls the C-Box. The C-Box is also a lie detector, and everyone understands that the C-Box could err as well. Suppose that someone makes a statement and the M-Box says "lie." Then a recording of that statement is played before the C-Box and the C-Box says "truth." Do we know that the M-Box is inaccurate because the C-Box disagrees with it?
Of course not. All we know is that the two contraptions disagree. We don't know which is correct in this instance, nor do we know which is more accurate in general. This is why Phil is wrong to say the D.C. Circuit opinion reversing the detention decision of a combatant status review tribunal proves that the tribunal is inferior to a court. All we learn from this incident is that the Military-Box and the Court-Box disagree.