Convictions

Prop. 8: Some further Thoughts on Equality by Civil Union; Leave Marriage to Religion

2008-11-16T06:44:00Z

In an essay published Friday in the San Francisco Chronicle, I proposed that the way to settle the Prop.8 lawsuit was for California to withdraw from the marriage business, substituting civil unions prospectively for gay and straight alike. The commentary has received many favorable comments, but also several people have posed a number of practical difficulties. In an effort to answer them, here are just a couple of additional comments to consider:

1. The Governor has an obligation to ensure that the laws of the state are evenhandedly applied; in light of the California Supreme Court holding that sexual orientation is a suspect class, that obligation arguably includes construing the California family code, including any undefined term such as “spouse” in the Registered Domestic Partner (RDP) statute as well as any of the other general family code provisions articulating the importance or significance of the family in a way that does not differentiate on the basis of sexual orientation;

2. It is well settled in the case precedent of the federal and state courts that equality can be ensured by either granting a new right to the deprived class or withdrawing an existing one from a favored one. Thus, equality can be provided either by extending marriage to same-sex couples (this path is, of course, blocked by proposition 8, itself) or withdrawing, prospectively, from “marriage” licensing altogether;

3. Even if the Governor took the most conservative view of his administrative, regulatory authority and found the existing family code insufficient to issue such regulations, at a minimum, the Governor could propose the "civil union for all" idea as a remedial option for the California court to consider through the Attorney General who is required to give his views in briefing; the remedial power of the court to construe existing code provisions is arguably more expansive than the Governor's administrative authority alone; you'll remember that both the Vermont and Massachusetts courts gave the legislature a period of time in which to enact appropriate legislation to bring their respective states into compliance with the equal protection holdings in favor of same-sex couples in those states;

4. Yes, it's true, state civil unions would not confer any federal marriage rights so long as the Defense of Marriage Act (DOMA) was in place; but a California marriage license issued to a same-sex couples would have been equally ineffective to convey federal rights; if federal rights are to be provided, DOMA will need to be modified or repealed;

5. The establishment clause problem is capable of being addressed in the drafting of either administrative regulation or legislation; specifically, regulation and then any confirmatory or validating legislation would provide that going forward civil union status within the state of California substitutes for the past practice of marital licensing issued under the family code;

6. What then is the value of a religiously granted marriage license? the marriage bond and any certificate issued by religious organizations governs status only within the church community; it would have no operative effect in the state or federal secular systems; yet, most people of faith view the preservation of religious freedom to be the heart of the matter. In short, for those of us who believe that marriage is a status authored by God Himself, this is not insignificant even as it has no temporal effect on medicare or other benefits; importantly, separating state granted civil union from religiously granted marriage does avoid the encroachment by the state on private religious belief that was occasioned by the California Supreme Court decision without proposition 8; so too, the proposed separation of function also avoids the imposition of religious belief upon nonbelievers that is implicit in the passage of proposition 8.

Again, thank you for the many thoughtful comments on the civil union compromise. Hopefully, these additional thoughts suggest that the proposal earlier outlined is more tenable than perhaps first thought. In any event, by both these thoughts and those offered initially, I hope do convey the importance of demonstrating respect for the dignity of all Californians and the continuing importance of observing religious freedom in ways that proposition 8 did not successfully address.

Convictions on Sabbatical

2008-07-14T16:52:00Z

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.

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

2008-07-14T16:07:00Z

Karl Rove's assertion of executive privilege should be the straw that breaks the judicial tolerance for assertions of privilege that have no constitutional warrant as a matter of original understanding. Judge Bates should give The White House an opportunity to prove otherwise, and when it likely cannot, enforce the subpoenas. Let's have at least one tip of the hat to the rule of law before the Bush folks saddle up for the ride back to Texas....(read more)

Tony Snow and Tim Russert Together Again

2008-07-12T13:15:00Z

To encounter Tony Snow on the streets of Washington D.C. was encountering a kindness and friendship that is rare in the Nation's capital. Truth be told, Tony told it better than most. Fox usually winks when it self-proclaims itself to be "fair and balanced." When Tony was reporting, the wink was unnecessary....(read more)

The Imperial Presidency Lives!

2008-07-10T19:56:00Z

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.

Arlen Specter: "Read the Constitution? That's a court's job, not a Senator's"

2008-07-10T19:41:00Z

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.

The New FISA Law and the Construction of the National Surveillance State

2008-07-10T12:30:00Z

We have been covering the features of the new FISA act over at Balkinization (here, here, here, and here), and I won't repeat that analysis here. I continue to think that the new procedures in Title I are far more worrisome than Title II, the immunity for telecom companies. But in this post I want to say a few words about the larger meaning of what has happened.

continue reading at Balkinization . . .

War Powers Consultation Act

2008-07-10T04:08:00Z

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.

Janice Rogers Brown Is Experienced

2008-07-08T14:57:00Z

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."

What the Heller? Is Only the Supreme Court's Liberty Enhanced?

2008-07-08T13:00:00Z

So what exactly is the scope of the "gun right" discovered by Justice Scalia in Heller? And why aren't the John McCain and Barack Obama unlikely to say much about it? Has Justice Scalia become a natural law originalist? Be patient, the Justices will instruct us in these matters of liberty or is that a denial of liberty, itself?...(read more)

Heller and The Constitutional Right of Self-Defense

2008-07-08T11:01:00Z

In conversation Sandy Levinson has impressed on me several curious features of the Second Amendment right of self-defense recently recognized in District of Columbia v. Heller. The more I think about this new right the Court has recognized, the more curious it becomes.

continue reading at Balkinization . . .

The Election and the Supreme Court—Possible Vacancies Ahead?

2008-07-07T11:27:00Z

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.

If a Federal Statute Falls in the Forest and No One's Around, Does It Make a Sound (or Undermine What Would Otherwise Be a "National Consensus")?

2008-07-03T14:07:00Z

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.

More on Parhat

2008-07-02T22:02:00Z

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.

Ah, but the Question Is Not Whether It Is "Wise" To Detain the Uighurs, "All Things Considered"

2008-07-02T20:45:00Z

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.

More Fun Logic Puzzles

2008-07-02T20:08:00Z

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!

M-Box/C-Box and the Old Logic vs. Experience Chestnut

2008-07-02T15:37:00Z

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.

Hills of Beans

2008-07-02T15:17:00Z

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.

The "M-Box" Has Got No Clothes!

2008-07-02T13:52:00Z

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?

Is Heller an Original Meaning Decision?

2008-07-02T13:39:00Z

Many commentators, including my good friends Randy Barnett and Larry Solum, have praised Justice Scalia’s opinion in Heller v. District of Columbia as a sparkling example of original meaning originalism. After having read the opinion closely a number of times, I am not so sure.

I do not doubt that Scalia uses original meaning methodology at the beginning of the opinion. Rather, the crucial move that decides the case—and that separates the majority from the dissent—is not an argument from original meaning. Let me explain.

continue reading at Balkinization ...