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First, thanks, Dawn, for those way too kind words about the detainees' panel at the ACS Convention. I personally thought the highlight was Alberto Mora's policy case about the huge counterterrorism security problems our recent approach to detention has created. His security-problem "anecdotes" were pretty devastating: Our allies refusing to engage in joint training with us in the Pacific for fear of getting stuck with U.S. detention practices, our allies letting detainees go rather than transferring them to U.S. custody for fear they'd be tortured, the officer in Iraq who told him his No. 1 and 2 concerns about troop safety in Iraq were Abu Ghraib and Guantanamo Bay. Hell of a list. Hope he writes a book.
Second, back to Boumediene, Dahlia correctly points out that Scalia has now written into Supreme Court jurisprudence the canards regularly trotted out about classified information leaked during terrorist trials that have compromised intelligence sources and methods. Relying on a minority report by Republican Sens. Kyl, Sessions, Graham, Cornyn, and Coburn and on a single Washington Post article, Scalia says: (1) in one terrorism prosecution in federal court, trial testimony revealed that the U.S. had been monitoring an al-Qaida satellite phone, leading bin Laden promptly to stop using it and cutting off that source of intelligence; and (2) the 1995 prosecution of Omar Abdel Rahman in federal court led to Osama bin Laden learning the names of the 200 unindicted co-conspirators in the case.
As Human Rights First exposes in its must-read report on the success of terrorism prosecutions in federal court, Claim 1 is demonstrably false, and Claim 2 is at best misleading. (1) The phone records at issue were not introduced into trial evidence until March 20, 2001, almost two and a half years after the satellite phone went dead (nor did defense counsel have access to the records until well after the phone was out of use). (2) Looks like the government didn't even try to keep the names of the unindicted co-conspirators classified. The prosecution certainly could have invoked CIPA or any of the other mechanisms that exist for the protecting classified information at trial. Evidently, they just didn't. As with all such discussions of how well-suited the federal courts are to prosecuting terrorism cases, important to note these are just anecdotes. Can't conclude much one way or another. But it would be nice if folks stopped citing these particular examples in arguments that the federal courts can't possibly deal with terrorism cases.
Which brings me to Ben, Marty, preventive detention, and Capitol Hill. I was heartened to hear Ben say yesterday and in "Convictions" that he thinks legislation this summer in the area would be a disaster - couldn't agree more. I was also somewhat heartened by what I could pick up of convention buzz on the subject, which amounted to this: everyone is afraid that someone will put forward legislation, but no one thinks it's a good idea, and no one thinks the administration has enough allies left on the Hill to do get anything done. My optimism there was tempered somewhat by this morning's NYT piece saying conservatives now see Boumediene as a rallying cry. So stay tuned.
In addition to Marty's fine points, I've got another beef with Ben, as we discussed yesterday. His well-intentioned proposal and others like it let the disaster that is Guantanamo Bay set the standard for U.S. detention policy going forward—they let the proverbial hard case make bad law. There are two separate policy problems the next administration has to face: (1) How are we going to get the truck out of the ditch at Gitmo, and (2) what kind of detention power/policy should we pursue in the interest of counterterrorism. The policy options on (1) are limited by our own past bad acts—denying basic Geneva protections in the first instance, torturing some of the detainees, etc. The policy options on (2) are better and may actually just give us what we need under existing law. In all events, until we've got a sensible (or any) counterterrorism strategy (rather than letting our tactics lead us around by the nose, as Mora eloquently showed), we're in no position to go designing yet another new detention scheme.
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Convictions bloggers Ben Wittes and Deborah Pearlstein just concluded an absolutely terrific panel, "Ensuring Access to Justice for Detainees in the 'War on Terror,' " ably moderated by Judge Marsha Berzon at the American Constitution Society's ongoing annual convention. Deborah Pearlstein's analysis of Boumediene, as well as of Munaf and Omar, just a day after issuance, was breathtakingly comprehensive, clear, and insightful. Ben shared highlights from his forthcoming book, summarizing the existing "imperfect data" on what we know about the Guantanamo detainees. They were joined by Joanne Mariner from Human Rights Watch, who laid out where we can go from here and made a persuasive case for using the federal courts rather than creating a system of preventive detention. (Deborah agreed, and Ben clarified—see Marty's post—that legislation should come only after careful deliberation during the next administration.) And American hero Alberto Mora movingly reminded us that, even putting aside the court's repeated determinations of illegality, the Bush administration's detainee policies have failed miserably, by every measure: fostering detainee abuse and even torture by the U.S. and other nations, creating fertile conditions for the recruitment of terrorists, and undermining the United States' reputation and effectiveness around the world. What a panel!
Earlier today, lunch speaker Sen. Patrick Leahy reminded us what's at stake in the next election and brought the room to thunderous applause when he asked why the Supreme Court upheld the Great Writ of Habeas Corpus by only a vote of 5 to 4.
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Deborah. You are reading me exactly right. ACS has done tremendous work on this front, and I am not slagging legal academics here at all. But between John Roberts' whole "umpire" thing and Scalia's little red bat-phone to the Framers, it seems to me progressives are being badly out-sold. At the risk of yet another wretched baseball metaphor, my problem here is with the pitcher, not the pitch.
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In case you living constitutionalists missed it, Dahlia just threw down the gauntlet at the end of her latest account of the many charms of Justice Scalia on his book tour.
The problem, for those of us admittedly charmed but decidedly not persuaded by Scalia's [originalism] argument, is that Scalia has decided to make his case at a moment when there's no one with his charisma offering an opposing view. Justice Scalia's absolute certainty about his own constitutional worldview has benefited over the years from near radio silence from the court's liberal wing. The fuzzy echoes of Brennan's "living constitutionalism"—the notion that the Constitution evolves with social norms—have become too easy for him to parody. Without a really compelling legal theory from the court's liberals, and with his new willingness to be open and expansive for the cameras, it was virtually guaranteed that once Scalia uncorked his considerable charisma, his constitutional methods would appear to be the most plausible approach, if not the only one.
I admit, Dahlia, my first reaction was, yeah, Justice Scalia is camera-ready for sure, but it's hardly fair to say there's no one offering an opposing view. There's Justice Breyer's book, as you mention. And the highly dynamic American Constitution Society (ACS) exists in significant part just for the purpose of developing charismatic opposition. Indeed, when I dashed over for a quick peek at the ACS Web site to see whether it had something to be invoked in its defense, I quickly came to the collection of papers by con law glitterati (including, inter alia, our own Jack Balkin) from a relatively recent symposium ACS sponsored on just what "living constitutionalism" is all about. One of my favorite sound bites was from Vanderbilt Professor Rebecca Brown, who put it with her usual eloquence:
The key to democratic legitimacy is the Constitution's ability to provide a structure within which the polity can continue to exercise its right to self-government, including giving voice to its own commitments of political morality. Thus, it is imperative that the rights-bearing terms of the Constitution be interpreted in a way that can change and expand with the values of each generation. Not only is a dynamic constitutionalism defensible, therefore, it is absolutely essential in order for the Constitution to maintain its democratic legitimacy.
But then I went back and reread your condemnatory paragraph and realized—your complaint isn't so much about substance, it's about salesmanship. No matter how smart Breyer may be, his "imagine a spherical cow"-type of hypothetical colloquialisms are just too rarified to break through the noise. The liberals have plenty of theories, but none has taken an undisputed place at the top. And the occasional Alan Dershowitz-type notwithstanding, profs are just profs. We need a justice or, say, a presidential candidate who can declare one concrete version of living constitutionalism the winner and wrap it up in a stylish new package that serves a progressive constitutional agenda for the new millennium.
Am I reading you right—is it more the who than the what? And then the biggie—is the only remedy in your view a new face on the bench? Or do you think there's just something about sales that liberals haven't learned?
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John McCain's harsh assessment of the federal judiciary is unworthy of him.
While his praise for the separation of powers and judicial restraint is fine, and unexceptional, Senator McCain's suggestion that there is a flaw in the constitutional design or that the Supreme Court is an unchecked, or renegade body is simply off-base.
There is no flaw, Congress has virtually plenary authority over the Court's appellate docket. Congress can withdraw cases from the Court if it believes matters have been wrongly handled, and perhaps more importantly, it can mandate that the Supreme Court handle a full range of cases so that it has less time and less discretion to find itself tempted to mischief. The fact that the Congress leaves these powers largely untouched may have more to do with what distresses Senator McCain than judicial activism.
Since Congress has it within its authority to keep the constitutional system in balance, it is imprudent and unfair to once again make judges the scapegoat for the constitutional outcomes with which one disagrees. Certainly, it is vast overstatement to claim that there is some "common and systematic abuse of our federal courts by the people we entrust with judicial power." Or that "for decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."
I have just returned from having the privilege with the Solicitor General of discussing with Justice Scalia and the judges of the U.S. Fifth Judicial Circuit the methods of constitutional and statutory interpretation. To a person, every judge present, regardless of the president who appointed him or her, spoke in earnest about faithfully adhering to the rule of law. It is a simple fact that the conventional meanings of language do present issues that are difficult or indeterminant or not fully addressed by the legislative body.
While Senator McCain is to be thanked for the praise given the Chief Justice and Justice Alito, it is unbecoming and two-dimensionally partisan to imply that Justices Breyer and Ginsburg are ipso facto out of the mainstream or that there is some "systemic" disregard of the judicial oath by the men and women who serve their nation in the Third Branch in the lower courts at a salary that is dwarfed by extraordinary levels of work and the burdens of the office.
David Barron is right, Senator Obama should take the opportunity to outline his own understanding of judicial role and philosophy, and it might begin with a more fair and honest assessment of the judiciary. Like Senator McCain, I often concur with the particular constitutional outcomes that John Roberts, Sam Alito (and powerfully intelligent Antonin Scalia who McCain curiously left off his praise list) often determine, though it devalues their service to imply that these jurists are worthy merely because they have arrived at a conservatively happy ending in given case. Because the legal questions presented to the Court are seldom self-evident, these men have disagreed with each other on some not insignificant matters, including federal commerce limitations on state power, and most recently, the Chief Justice had more agreement with Justice Stevens in upholding Indiana's choice to require a government voter ID than his former Reagan administration colleagues.
It is poisonous to the health of the constitutional system to trash the Court as venal politicians. In truth, a general word of thanks from Senator McCain, and his leadership in the Senate to approve a much-needed and long overdue pay increase for federal judges, would be more statesman-like and welcome.
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By way of brief introduction: I am a professor of law, teaching constitutional law at Indiana University-Bloomington School of Law, so will be writing from the Heartland, as they say. I am a New Yorker by birth, but now have a Hoosier husband and two Hoosier sons (who, like Deborah Pearlstein, are Colts fans, but inherited from my family a deep love of the Yankees). I have happily called Bloomington my home for almost 10 years now, and for the previous 10 lived and worked in D.C. (also happily). Currently of note here in Indiana: People are quite excited that their votes in the Democratic presidential primary likely will matter for the first time in memory.
I am new to blogging but grateful to Dahlia Lithwick and Emily Bazelon for prior opportunities to publish for Slate, here and here. Many thanks to Dahlia, Emily, and Phil Carter for the invitation to be part of this project. Anyone who may have interest in my more academic work can check out some articles posted here. Of most current relevance is Faithfully Executing the Laws, a piece from a 2007 UCLA symposium that examines the failure of President Bush and his lawyers to live up to this constitutional command, particularly regarding the use of torture and other extreme interrogation practices.
My scholarship and interests reflect my two principal areas of legal experience before teaching. Most recently, during the Clinton administration, I advised the president and the executive branch on legal matters for five years, including as the acting assistant attorney general heading the Office of Legal Counsel. For the six years before that (1987-1993), I worked to safeguard reproductive rights at a time when they seemed gravely in danger (as they do again today) as legal director of NARAL Pro-Choice America and at the ACLU.
I serve on the board of directors of a wonderfully vital organization, the American Constitution Society for Law and Policy, which seeks to promote progressive legal values through a network of more than a hundred law school chapters and lawyer chapters around the country. ACS sponsors a terrific annual convention, this year June 12 to 14 in Washington, D.C.