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Today comes a bizarre follow-up to Deb's post regarding the Supreme Court's decision to grant cert in a case involving legal accountability for high officials. Over at the Volokh Conspiracy, Orin Kerr points to news that a group of legal academics is planning
to convene a conference to plan the prosecution, trial, and punishment
for senior Bush administration officials. The effort is reportedly
being led by Lawrence Velvel, dean of the Massachusetts School of Law at Andover:
"This is not intended to be a mere discussion of violations of law
that have occurred," said convener Lawrence Velvel, dean and cofounder
of the school. "It is, rather, intended to be a planning
conference at which plans will be laid and necessary organizational
structures set up, to pursue the guilty as long as necessary and, if
need be, to the ends of the Earth."
"We must try to hold Bush administration leaders accountable in
courts of justice," Velvel said. "And we must insist on appropriate
punishments, including, if guilt is found, the hangings visited upon
top German and Japanese war-criminals in the 1940s."
... "For Bush, Richard Cheney, Donald Rumsfeld, and John Yoo to
spend years in jail or go to the gallows for their crimes would be a
powerful lesson to future American leaders," Velvel said.
Somehow, I don't think this is what the Supreme Court had in mind when they granted cert ...
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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.
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I have time only for a quick response to Adam White on Cheney’s assertion that the VP is not part of the executive branch. I did find ludicrous Cheney’s initial claim that he was not part of the executive branch, which he asserted for the purpose of perpetuating his cult of secrecy and avoiding reporting requirements related to classified documents. I continue to think ludicrous is an apt description. Jon Stewart and the rest of the media were absolutely right to have a field day with that one. Consistent with this administration’s utter and indefensible failure to be transparent regarding the legal advice that informs its sometimes-ludicrous positions, Cheney has not provided a detailed account of his legal claim. I found Adam’s discussion interesting, but unpersuasive. Cheney’s filing of the brief seems less ludicrous, in the sense of legally indefensible, but still seems an ugly business designed to send mixed messages to the court and a clear message to his political base.
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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.
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by Dawn Johnsen
For this my inaugural substantive blog I want to pose a question much on my mind: how do we restore our nation's honor, as well as our own?
I am a bit tempted instead to join the fray over VP Cheney's filing of the D.C. guns brief, flatly at odds with the Bush administration's brief, begun by David Barron. Perhaps more later, but I can't resist just a quick response to Adam White's attempt to defend Cheney's consistency by repeating what I personally find a ludicrous argument that the VP is not part of the executive branch. Adam suggests that perhaps "the Office of the Vice President ... is simply sui generis." This suggestion that we can have constitutional entities not squarely in one of the three constitutional boxes simply is not going to fly with unitary-executive types of Cheney's stripe-at least not if they are being principled.
But back to the question weighing on my mind--which I know also concerns many fellow Slate bloggers, because they have eloquently expressed and forcefully addressed it in their work:
[T]he US administration ... not only sanctions the torture of prisoners taken in the so-called wars on terror but is active in every way to subvert laws and conventions proscribing torture. ... [T]he issue for individual Americans becomes a moral one: how, in the face of this shame to which I am subjected, do I behave? How do I save my honour?
These are words I recently read in Nobel-prize winner J. M. Coetzee's new novel Diary of a Bad Year. They hit me hard. What are we Americans to do to, confronted with a government that does not respect the legal and moral bounds of human decency, a government that believes torture is justified whenever the president so decrees and that all views to the contrary, of Congress and the world community, are to be ignored? How do we save our country's honor, and our own?
I felt the sense of shame and responsibility for my government's behavior especially acutely in the summer of 2004, with the leaking of the infamous and outrageous Bush administration Office of Legal Counsel Torture Memo. I served at OLC during the Clinton administration, including as OLC's head from 1997-98. It was a great privilege to serve this country I so love-and a tremendous and painful shock to see the corruption of OLC's work in the torture memo. One response from 17 former OLCers (including Slate bloggers David Barron, Walter Dellinger, and Marty Lederman) was to develop 10 "Principles To Guide the Office of Legal Counsel" (published here and in an appendix to this article). We hoped these principles, if followed, could help prevent future OLC advice that was similarly, in the words of fellow blogger and former OLCer Jack Goldsmith in his must-read The Terror Presidency, "deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President."
The same question, of what we are to do in the face of national dishonor, also occurred to me a few weeks ago, as I listened to President Bush describe his visit to a Rwandan memorial to the 1994 genocide there. Now let me be clear (before "comments" erupt): I am not in any way equating anything the Bush administration has done with the brutal mass murder of 800,000 people. That would be ridiculous. President Bush correctly described the Rwandan genocide as one of the most horrific episodes of the 20th century.
But President Bush spoke there, too, of the power of the reminder the memorial provides and the need to protect against recurrences there, or elsewhere. That brought to mind that whenever any government or people act lawlessly, on whatever scale, questions of atonement and remedy and prevention must be confronted. And fundamental to any meaningful answer is transparency about the wrong committed.
A more comparable incident, in terms of scale and potential to serve as a model, is how the Canadian government dealt with its complicity in the United States' "extraordinary rendition" of Maher Arar. The Bush administration wrongly suspected Arar, a Canadian, of terrorism and seized and "rendered" him to Syria in September 2002, where he was tortured for almost a year. The Canadian government extensively investigated the incident (hampered by the United States' refusal to participate); it ultimately issued a lengthy report and formal apology, compensated Arar with $10 million, and filed a formal protest with the United States. The Bush administration, to the contrary, has refused to apologize and has used claims of national security to keep secret any details, though when pressed in a congressional hearing, Secretary of State Condoleezza Rice finally admitted the United States had mishandled the case.
The question how we restore our nation's honor takes on new urgency and promise as we approach the end of this administration. We must resist Bush administration efforts to hide evidence of its wrongdoing through demands for retroactive immunity, assertions of state privilege, and implausible claims that openness will empower terrorists. Coetzee writes of his fear that "[t]he worst of their deeds we will never know":
The judgment of history is clearly a matter that exercises the minds of the US administration too. History will judge us on the basis of the record we leave behind, they say in public; and over that record, they remind themselves in private, we have an unparalleled degree of control. Of the worst of our crimes let no trace survive, textual or physical. Let the files be shredded, the hard drives smashed, the bodies burned, the ashes scattered. ... On their priority list, security-by which they mean secrecy-comes first, second, and third.
Here is a partial answer to my own question of how should we behave, directed especially to the next president and members of his or her administration but also to all of use who will be relieved by the change: We must avoid any temptation simply to move on. We must instead be honest with ourselves and the world as we condemn our nation's past transgressions and reject Bush's corruption of our American ideals. Our constitutional democracy cannot survive with a government shrouded in secrecy, nor can our nation's honor be restored without full disclosure.
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David I had a little fun with the exploding unitary executive last week as did Marty and I’d give a donut to anyone who can offer insight on what end is served by these attacks from within the administration and without. What point in making Solicitor General Paul Clement look like a wild man on the eve of oral argument? Why was Bob Novak at pains to explain that Alan Gura – who represents the gun owners tomorrow – does not have the confidence of gun owners or any experience at the high court? I get that it has something to do with managing expectations. But this tactic of blaming the lawyers in advance of the argument can’t look good to the justices can it?
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[David Barron]
By noting the Vice President's surprising comfort level with his own independence - as I did in an earlier post on the Binary Executive - I did not mean to argue Cheney was acting illegally by striking out on his own. My point was to highlight the hypocrisy of it all. If even Mr. Unitary Executive is comfortable with asserting his independent authority as a (sometime) member of the executive branch, then shouldn't we question whether a unitary command structure is as imperative as unitarians often claim?
Obviously, the Veep is a complex office. It is truly a mix of the branches. But unitarian doctrine can't handle that kind of complexity.
Consider the puzzles that it raises:
1. How can the Veep play a direct role in making executive war policy? After all, the D.C. Circuit has held that legislative agents can't sit as non-voting ex office members of the Federal Elections Commission. Even that minimal participation, that court has said in a paradigm of Unitarian reasoning, smacks of inappropriate legislative aggrandizement. How much worse, then, for the Senate's President to be telling the CIA what to do!?
2. Why should the Veep get the benefit of the President's constitutional power to make recommendations to Congress, as Cheney argued he should in fine Unitarian fashion in objecting to requests to disclose information concerning his energy task force. After all, as a member of Congress, isn't he supposed to receive recommendations rather than make them?
Suffice it to say, then, that, as Adam says, the Veep is a hybrid and a hybrid that the Constitution tolerates. But isn't that instructive of a more general point about the Constitution?
If our constitutional system can tolerate this kind of complex blending at the very highest levels of the executive branch, then why should we think it seeks to stamp out similar configurations lower down the chain of command. So, 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.
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We already knew that Vice President Cheney was comfortable arguing that his office was not part of the ... well ... the executive branch. In arguing that an executive order covering the executive branch did not apply to the vice president, he seemed to be making an argument that was of a piece with the current chief executive’s penchant for secrecy. But now the veep is at it again, and this time he’s taking his view of independence a bit further. In an amicus brief to the Supreme Court, Vice President Cheney—as president of the Senate—argues for a position in the D.C. gun control case that is at odds with the position taken by the solicitor general on behalf of ... well ... the executive branch. (Suffice it to say, the vice president is somewhat less keen on the constitutionality of gun control measures than is the person representing the United States on behalf of the president). How is it that the man who constantly portrays himself as the keeper of the flame for the unitary executive seems so comfortable with there being a binary one?