Being
it is probably unwise to post anything at all, but I’m so happy with the quality of the free wireless link in at the waag here in Amsterdam, provided by the waag society, I can’t resist joining in to the debate over Eugene Volokh’s suggestion
Say that we’re fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments. (You’ll see in a moment why this proviso is important). We capture 50,000 alleged enemy soldiers, partly because some of the enemy forces have surrendered en masse; apparently we had captured millions that way towards the end of World War II. The allied countries don’t have strong enough militaries to effectively detain these people themselves (think France in early 1945), so we detain them instead. This is actually quite normal for large-scale wars, consider again World War II, except that the war is a modern war against insurgents and not a traditional war against governments.
Now, the detainees file 50,000 petitions for habeas corpus, all claiming that they aren’t actually enemy soldiers. This means civilian courts would have to process all those cases, and the military would have to respond to all the petitions, and get affidavits or even live testimony from various soldiers in the field whose testimony is relevant for this purpose.
Would this tactic be allowed? Well, let’s consider this under the four elements (see below) that the Court pointed to when it distinguished the Guantanamo detainees (who get their habeas petitions considered) from the German detainees in Johnson v. Eisentrager (who didn’t get their petitions considered).
Like the detainees at Guantanamo, our hypothetical detainees (1) “are not nationals of countries at war with the United States” — our war isn’t with their countries, but with insurgencies in those countries. They (2) “deny that they have engaged in or plotted acts of aggression against the United States”; it costs them nothing to deny that. They (3) haven’t “been afforded access to any tribunal, much less charged with and convicted of wrongdoing,” partly because there’s nothing to charge them with or convict them — we just want to detain them as enemy combatants, not try them for unlawful combat. They are held (4) “in territory over which the United States exercises exclusive jurisdiction and control” — imagine that for security reasons, we need to keep them at a base that’s at least as controlled by us as Guantanamo is.
It sounds like they’ll probably get to file their petitions, strain our courts, impose more burdens on our soldiers, and possibly even risk the disclosure of secret material.
Litigation will become a tactic of warfare.
First off, the hypo is highly unrealistic. The opinions do not say that foreign soldiers being held as POWs have a right to habeas relief. To my reading, they don’t say anything about classic POWs. POWs’ rights during a conflict are covered by the Geneva Conventions, and I do not see anything in the current court’s opinions that would require additional judicial intervention during the war with the possible exception of a violation of jus cogens (eg. torture)…although that’s just my gloss on it, since of course the opinions don’t deal with that issue. Indeed, that is one of the critical distinction between the current cases and past ones. [I’m hazier on what happens after the war ends. Could a POW bring a claim alleging unduly delayed repatriation? To answer that I’d need to know how post-war repatriation usually works.]
What this week’s opinions say that people whom the administration alleges are connected with hostilities but nonetheless LACK Geneva Convention rights (i.e. the so-called “enemy combatants”), and whom it then wishes to lock up without process or recourse, have a right to some kind of hearing to adjudicate their status and in which they can make the claim that they are being held wrongly. This seems to me like an essential element of basic deceny: if the Red Cross is not there to ensure humane treatment, someone, the courts, has to be. Given recent events, I’m somewhat mystified that this even needs to be said.
It seems to me there is so much less here than meets the eye. As Eugene notes in his third response to his own hypo, in most cases involving people who are not being held either as POWs or as criminal in conformity with the law of the jurisdiction in which they were captured (a class the should include most people who actually commit a violent act), the requirement of a hearing will be met by a military tribunal holding the very status hearing required by the Geneva Conventions themselves, hearings that the Administration has, inexplicably to my mind, refused to hold for the Guantanamo detainees. Once this tribunal reaches a result, we can deal with subsequent attempts to litigate much like we deal with prisoner habeas today—and that’s not real friendly to the petitioners.
The US routinely held in-the-field initial hearings during both the Vietnam War and the first Iraqi war, and I have yet to read a single suggestion that doing so impacted the war effort. These hearings were not held in Iraq II, presumably because the muscular Bush faction didn’t want any of that namby-pamby lawyer stuff. That was an error.
Congress has a role here too. In the unlikely event that a future administration feels a need to hold 50,000 people as “enemy combatants” and we think that this alone isn’t a sign that the executive has gone nuts, then Congress can provide a system by which any cases they might bring will be adjudicated.
Last, although I hate making this argument, I have to note that the Mathews test that the Supreme Court relied in the Hamdi case itself supplies an inelegant answer to the mass-litigation-as-war-tactic hypo. The Mathews test explicitly considers the cost of providing additional process. If there is a danger that there will be mass recourse, swamping the hearing-provider, this itself weighs against the additional process. (Which is why Mathews has no place being used to define the extent of human rights — it’s too weighted by its nature in favor of the government interest, too willing to buy into the idea that “the government” has independent interests other than its role as agent of “We, the People”, and that those government interests can be asserted against the People, but that’s a different debate…).
I trust if the beer and the time shift has addled my wits, the wonderful commenters who have recently frequented this blog will set things straight.
Our home remodelling project is advancing, but slowly. This week they put on the doors and windows in the new part of the house (we are still in Phase I: build new part; Phase II is ‘rehab old part’; we were supposed to be finished with it all by now.) The plumbing and electric is mostly done and the ducting. If all goes well, the network guy is coming Real Soon Now to wire the home network…
Meanwhile I have to spec out the equipment. We settled on structured cat 5e cable that will handle phones and the network. I think I’ve picked a router and a switch, although I haven’t ordered either. The old wireless router and switch will be relegated to serving as a mere access point and run off a different part of the network.
I ordered patch panels and also a wall mount for them as I still don’t have a clear idea of what sort of rack or other platform I need to hold the gear. Something pint-sized compared to the professional gear, I’d imagine. Maybe this?
The gear is going to live wedged in a very wide closet about 26”deep, with the patch panel living on the 26” wall. In the fullness of time it may hold more switches, a server or two, some phone gear, and who knows what. I think I want a rack with wheels rather than the kind you screw into the floor and (9’) ceiling, but beyond that there seem to be a bewildering number of choices, all of which need accessories to hold anything.
Of course, I won’t get to use any of this stuff until that side of the house has the electricity turned on and is ready to move into. I just hope that installing the new network doesn’t require pulling the plug on the existing, temporary, DSL connection. If it does, I may have to try pointing a Pringles can at the University.
The Supreme Court finished out its term by Throwing Out a Human Rights Lawsuit, and sending the Child Porn statute back for more consideration of its chilling effects (or not) in light of improvements in filtering technology.
Full text:
Judging only from the press reports, these are both ominous: It’s not good that our government can kidnap people with no fear of civil liability. It’s true that there is a diplomatic protest system, but it’s very hard for foreign nations to get much from a superpower. Our courts are a greater constraint on our government than diplomats (note: this is only a claim as to relative efficacy, no more).
The Ashcroft v. ACLU 5-4 is going to put a lot of pressure on people to mandate internet architectures that are filtering-friendly. Although they don’t have to be privacy-destroying technologies, they tend to be. And that could be quite ugly.
I wish I had time to write more about these decisions (and finish part III of my discussion of yesterday’s trifecta), but I have a lot of preparing to do for my Amsterdam trip. I’m sure that the SCOTUS Blog will have lots of info.
If I get very organized, which is dubious, I may queue up an item or two to go online while I’m en route, but generally speaking it’s possible blogging may be sparse for the rest of this week. It’s certain to be less than the recent furious pace.
Meanwhile I’m waiting for someone to call this court’s ducking of some major issues, and picking its shots on others, an exercise of the (I thought discredited?) Bickelian ‘Passive Virtues’.
David Sklar, Justice Department’s Fragile Read-Never Database. This must surely be a candidate for the dumbest FOIA excuse ever:
The Center for Public Integrity filed a Freedom of Information request to get a copy of the Foreign Agent Registration database, which includes information on activities by registered lobbyists on behalf on foreign governments.
The Justice Department said that it couldn’t provide a copy of the entire database because doing so could destroy the database.
Meanwhile, you can go to the appropriate office in Washington DC and pay fifty cents a page to make copies of documents. The information is available in (expensive) page-by-page drips, but not as a whole.
I am curious to learn about the quantum database software in use that could subject the data to changes by reading it. Or perhaps the 8 inch floppies that the data is stored on would get too hot and melt if they had to spin so fast to copy entire files?
It’s hard to imagine what’s behind this. Terminal incompetence? Cussed desire to undermine FOIA? Halliburton provided the equipment?
Or could it be a Rovian fear that someone will cross-index the database with, say, the lists of donors to the Bush campaign?
“What is presently at stake is only whether the federal courts have jurisdiction to determine the legality of the Executive’s potentially indefinite detention of individuals who claim to be wholly innocent of wrongdoing.” And the answer to that question is “affirmative.”
So Guantanamo is not like the Antarctic, a place with no law (cf. Smith v. US). I strongly think this is the right result, but I’m not entirely happy with how the majority got there.
I would have relied on the treaty, the US’s perpetual control over the territory, and the ousting of any relevant foreign power other than the mythical quality called “sovereignty” which the Cuban government retains—little more than a first right of reversion if the US leaves. The Court mentions this, but an awfully big chunk of its decision relies on domestic habeas jurisdiction, predicated on the district court’s assertion of power over the detainees’ custodian, the Secretary of Defense. (The dissent has a field day with this duality.)
To get to where it wants to go, the majority plays a little fast and loose with precedent, arguing the leading case of Eisentrager was overruled in 1973, a dubious claim. I won’t go into the details—inside baseball for lawyers—except to say that I think Justice Kennedy’s concurrence is much more elegant, and avoids the troubles pointed out by the dissent. Kennedy’s view would not reform the law as much, but it would do what needed doing. Kennedy would grasp the bull of the leading precedent, Eisentrager by the horns, and limit it much more closely to its facts than the government wanted:
The facts here are distinguishable from those in Eisentrager in two critical ways, leading to the conclusion that a federal court may entertain the petitions. First, Guantanamo Bay is in every practical respect a United States territory, and it is one far removed from any hostilities. The opinion of the Court well explains the history of its possession by the United States. In a formal sense, the United States leases the Bay; the 1903 lease agreement states that Cuba retains “ultimate sovereignty” over it. Lease of Lands for Coaling and Naval Stations, Feb. 23, 1903, U. S.-Cuba, Art. III, T. S. No. 418. At the same time, this lease is no ordinary lease. Its term is indefinite and at the discretion of the United States. What matters is the unchallenged and indefinite control that the United States has long exercised over Guantanamo Bay. From a practical perspective, the indefinite lease of Guantanamo Bay has produced a place that belongs to the United States, extending the “implied protection” of the United States to it. Eisentrager, supra, at 777–778.
The second critical set of facts is that the detainees at Guantanamo Bay are being held indefinitely, benefit of any legal proceeding to determine their status. In Eisentrager, the prisoners were tried and convicted by a military commission of violating the laws of war and were sentenced to prison terms. Having already been subject to procedures establishing their status, they could not justify “a limited opening of our courts” to show that they were “of friendly personal disposition” and not enemy aliens. 339 U. S., at 778. Indefinite detention without trial or other proceeding presents altogether different considerations.
Justice Scalia responds to these arguments in footnote four of his dissent but I do not find this part of his argument very persuasive:
JUSTICE KENNEDY recognizes that Eisentrager controls, ante, at 1 (opinion concurring in judgment), but misconstrues that opinion. He thinks it makes jurisdiction under the habeas statute turn on the circumstances of the detainees’ confinement—including, apparently, the availability of legal proceedings and the length of detention, see ante, at 3–4. The Eisentrager Court mentioned those circumstances, however, only in the course of its constitutional analysis, and not in its application of the statute. It is quite impossible to read §2241 as conditioning its geographic scope upon them. Among the consequences of making jurisdiction turn upon circumstances of confinement are (1) that courts would always have authority to inquire into circumstances of confinement, and (2) that the Executive would be unable to know with certainty that any given prisoner-of-war camp is immune from writs of habeas corpus. And among the questions this approach raises: When does definite detention become indefinite? How much process will suffice to stave off jurisdiction? If there is a terrorist attack at Guantanamo Bay, will the area suddenly fall outside the habeas statute because it is no longer “far removed from any hostilities,” ante, at 3? JUSTICE KENNEDY’s approach provides enticing law-school-exam imponderables in an area where certainty is called for.
Scalia claims Kennedy mis-reads Eisentrager, confusing the constitutional and statutory parts of the case. I don’t think that’s right—the existence of the constitutional right implies that the statues must be read in conformity with it if possible, for reasons Scalia explains earlier in his own opinion. While the parade of horribles Scalia presents do indeed deserve a home on an exam, the advanced course would ask students to discuss the way in which a purportedly formalist judge uses pragmatic arguments when it suits him…and whether the distinction really means that much any more in this age of judicial opportunism.
The dissent (Scalia, with Rehnquist and Thomas) has two points: First, Eisentrager (as they read it) controls, and that’s just fine, so there’s no hearing despite the many differences noted by Kennedy. Second, if Congress wants to change this, it could. That’s actually an under-appreciated truth: this whole litigation would have been unnecessary if Congress had the guts to legislate decency. But then, this whole series of cases would have been unnecessary if Congress had had the guts not to vote Bush the authority to start a war whenever he liked.
Scalia also kindly gives us the short version of what this case stands for:
Today’s opinion, and today’s opinion alone, overrules Eisentrager; today’s opinion, and today’s opinion alone, extends the habeas statute, for the first time, to aliens held beyond the sovereign territory of the United States and beyond the territorial jurisdiction of its courts. No reasons are given for this result; no acknowledgment of its consequences made. By spurious reliance on Braden the Court evades explaining why stare decisis can be disregarded, and why Eisentrager was wrong. Normally, we consider the interests of those who have relied on our decisions. Today, the Court springs a trap on the Executive, subjecting Guantanamo Bay to the over-sight of the federal courts even though it has never before been thought to be within their jurisdiction—and thus making it a foolish place to have housed alien wartime detainees.
One odd part of the debate between the two sides has to do with what if anything we learn from pre-revolutionary English practice. The majority notes that prerogative writs, such as habeas corpus, ran to the “excluded jurisdictions”—even where ordinary statutes did not. The dissent replies that those precedents shouldn’t apply to foreign territory, but it goes off the rails when it says, “All of the dominions in the cases the Court cites—and all of the territories Blackstone lists as dominions, see 1 Blackstone *93–*106—are the sovereign territory of the Crown: colonies, acquisitions and conquests, and so on. It is an enormous extension of the term to apply it to installations merely leased for a particular use from another nation that still retains ultimate sovereignty.”
Personally, I cannot see how given the realities of the situation this is anything but at most a minute extension. And to see even the minute part you have to think that “sovereignty” empty of content still matters, a theory only a formalist could love.
Although neither side mentions this, I think that to the extent that the dissent might be correct in saying that the older (or even newer, as in early or mid-20th century) English cases suggest in dicta or otherwise that once “abroad” habeas might be available to citizens but might not be available to detained indigenes, I think the majority was on firm ground in ignoring that aspect of those cases. It is indisputable that the older cases were driven by deep racist assumptions about local peoples that permeated both the British colonial and the British domestic judiciary. This country is right to take the spirit of those decisions and lose the dross.
The dissent gets another thing right, more of less, noting the peculiarity of a ruling that,
confers upon wartime prisoners greater habeas rights than domestic detainees. The latter must challenge their present physical confinement in the district of their confinement, see Rumsfeld v. Padilla, ante, whereas under today’s strange holding Guantanamo Bay detainees can petition in any of the 94 federal judicial districts. The fact that extraterritorially located detainees lack the district of detention that the statute requires has been converted from a factor that precludes their ability to bring a petition at all into a factor that frees them to petition wherever they wish—and, as a result, to forum shop.
That is an odd result. But it is less odd and disturbing than one that left detainees no recourse in our courts even if they were being tortured. Not that torture could ever happen, of course.
Aaron Swartz, the man who brought blogdom NYT permalinks and cool tools for finding them, presents, When can I keep an enemy combatant?.
This is a lot easier to follow than the pure text kind of analysis.
Now that I’ve sorta figured out what I think, other takes on today’s decisions:
Like Gaul—or, more the the point, gall—the detainee mess is divided into three parts. One division is the obvious one: Hamdi (PDF, 822kb), Padilla (PDF, 517kb), and Rasul (PDF, 520kb). That’s certainly the way the three decisions will be divided in the media. However, there is a much more logical and important division into three parts: civil procedure, government power, and military necessity. Just to be different, that’s how I’m dividing things. I also think it gives some interesting perspectives on exactly what was going on.
Lots at SCOTUS Blog
Greg Goelzhauser, Did Congress authorize indefinite detention?
What happens to Hamdi himself — and what sort of rules exist for future cases of this sort — will now be heavily dependent on what kind of procedure is implemented below. Four members of the Court explicitly left the door open to military tribunals (see p. 31), and Thomas could probably be relied upon to provide a fifth vote. But the government is on notice that four members of the Court — and possibly more, depending on the views of those who joined O’Connor’s opinion — are not going to be deferential.
Legal Theory Blog has a round-up of the votes and other comments.
Update: Read Balkin
Meanwhile, back at torture… USATODAY.com - Memo lists acceptable ‘aggressive’ interrogation methods. In an as yet-unreleased August 2002 legal memo, the administration approved the CIA repeatedly dunking detainees under water, for periods long enough to make them think they might drown, in order to make them talk:
The techniques discussed were “aggressive” but “lawful,” the former official said. A current Justice official who knows the memo’s contents said it specifically authorized the CIA to use “waterboarding,” in which a prisoner is made to believe he is suffocating.
…
Initially, the Office of Legal Counsel was assigned the task of approving specific interrogation techniques, but high-ranking Justice Department officials intercepted the CIA request, and the matter was handled by top officials in the deputy attorney general’s office and Justice’s criminal division.
…
White House counsel Alberto Gonzales said the thrust of the publicly released documents was that President Bush insisted on humane treatment of all prisoners, even though legal opinions from Justice and the Pentagon said there was wide latitude in wartime within the limits of anti-torture laws and treaties.
Well if the way Bush governs is “compassionate” I guess it is no less Orwellian to call repeated near-drowning “humane”.
A vote for Bush is a vote for waterboarding.
It’s safe to say that today’s trifecta of opinions wasn’t predicted by anyone. Bottom line: It’s still a free country. And this is still a formalist court, which (like anti-formalism) has its virtues and vices.
Full texts of opinions:
Although Padilla seemed to raise the most critical issues, the court ducked them, so (at first glance) by far the most important opinion of the Hamdi-Padilla-Guantanamo trilogy turned out to be Hamdi. Click “more” for a long, first-impressions, post on Hamdi. I’ll post subsequently, and more briefly, about the other two. Updated
Executive Summary: Hamdi wins 8-1, but under three different theories, none of which command a majority. The plurality opinion offers some guidance as to the minimal requirements for the hearing it orders be held, but other justices would give more, or not do it all. The district court will have its work cut out for it figuring out just what sort of hearing it should hold.
O’Connor’s opinion for the court (the plurality commands only three other justices — Rehnquist, Kennedy and Breyer — plus four others who concur in the judgment in various ways) does not decide whether the President’s inherent powers allow the detention of alleged enemy combatants. [Although it does say on .p 29, “we necessarily reject the Government’s assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances.”] Instead it holds that the authority was provided by Congress in the Authorization for Use of Military Force, 115 Stat. 224, which it says provides this power to detain US citizen combatants during the duration of hostilities (a very important caveat) implicitly when Congress authorized the use of “all necessary and appropriate force” against those responsible for 9/11. It’s striking that much of the justification for this claim put forward in the opinion is drawn from cases in which the detainee was held as a POW. [Justice Thomas agrees with this analysis of the significance of the Authorization for Use of Military Force in his dissent, so I guess that counts as a holding of the court, more’s the pity.] [update: for a more correct statement see below]
The court further emphasizes that this “War on Terror” could last for ever, and that under the government’s theory of the cases, Hamdi thus has a real chance of never getting out alive; it fixes the end date when “active combat operations against Taliban fighters” cease in Afghanistan. (Slip at 13), and says he be held for that duration only— once it’s determined he’s in fact an enemy combatant.
So we reach the key issue: what procedure is due under the Due Process clause and the Habeas Clause given that Hamdi does not conceed he is an enemy combattant and wishes to be heard to challenge that determination. The government argued that its “Mobbs Declaration” — unsupported, conclusory, hearsay, sufficed and indeed was binding on the courts. The plurality, indeed the majority, rejects that, and good thing too.
Unfortunately, the plurality relies on Matthews v. Eldridge, a case originally about ‘new property’ rights (social security disability benefits) but since imported by Justice O’Conner to infect ordinary due process analysis even for liberty interests. Matthews requires that the court ‘balance’ interests, keeping in mind the costs of providing more procedural protections, an view that comes perilously close to the view that no right is really a “right” — not inalienable, just an interest to be traded off against others, with no clear rules to guide any judge. And into the thicket of balancing we go. On the one hand is the plaintiff’s life; on the other the government’s claim that the entire war effort will be undermined.
On Hamdi’s side is his liberty interest, one in no way reduced ex ante by allegations raised about his affiliations: “Nor is the weight on this side of the Mathews scale offset by the circumstances of war or the accusation of treasonous behavior.” And, in words that have implications for the Padilla case, “History and common sense teach us that an unchecked system of detention carries the potential to become a means for oppression and abuse of others who do not present that sort of threat.”
As for the government, it’s fighting a war, and it gets to do that. That’s important and weighty too. [Justice Thomas notes in his dissent that really using the Mathews test would weigh this interest so heavily that Hamdi would lose, which is indeed how I read Mathews. Justice O’Conner would answer that since she concludes the cost/harm of additional process is so low in this case, the balance tilts to Hamdi.]
So O’Conner tries to split the baby starting at page 25. ‘No process’ is too little process, but the District Court proposed too much. The plurality’s answer (query: how much is “the Court’s”?) to the ‘some kind of hearing’ required on these facts is (p. 26):
Justices Souter and Ginsburg concur in the judgment, but otherwise dissent in part. They begin with the fact that the government denied Hamdi counsel for a year and half, and since then allowed it only on a grace and favor basis, all the while contesting its obligation to do so.
But its main point is that the plurality is wrong to find that if Hamdi is in fact an enemy combatant his detention, even for the duration, was authorized by Congress. Absent Congressional authorization for his detention, even on the government’s version of the facts, Hamdi should be released pursuant to the Non-Detention Act, 18 USC § 4001(a): “No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress”.
The opinion contains a devastating explanation of why just about every ordinary rule of statutory and constitutional construction except the one that says ‘war changes everything’ demands this conclusion. And the fact that the statute was passed in 1971—during the Vietnam War—obviates the last argument. I am completely persuaded by this opinion that only a clearer statement by Congress that it meant to allow such detentions should suffice to overcome the very clear and precise command of the Non-Detention Act. Why at least Justice Breyer was not is something of a mystery.
The Souter opinion also makes the nice point that if the government’s arguments are correct, then Hamdi, like other Taliban soldiers, should be entitled to the protections of the Third Geneva Convention. The conditions of his confinement are much more restrictive than that convention provides, and he doesn’t get Red Cross visits. And even if the government is right that Taliban fighers shouldn’t get 3rd Geneva status, that requires a military hearing, and Hamdi hasn’t had that either.
As further support, Souter cites the PATRIOT Act. Passed just a little over a month after the Authorization for Use of Military Force, the Patriot Act says a suspected alien terrorist could only be held for seven days without trial or deportation; it would be weird indeed to read the Authorization for Use of Military Force as allowing so much worse treatment of a US citizen enemy combatant.
Souter makes a point of saying that on remand he would find a right to counsel, but “does not mean to imply agreement” with the plurality’s assertion that the government might enjoy an evidentiary presumption in its favor.
Justice Scalia, joined by Stevens (!!) writes a brilliant formalist opinion. It’s very persuasive, perhaps because it’s so simple and tidy. Reading the Constitution you find two ways by which our government can deal with citizens (as opposed to aliens — they are POWs or perhaps enemy combatants) who war against it. One requires the suspension of the writ of habeas corpus, as Lincoln did in the Civil War.1 That has NOT happened since. The other is also specified in the Constitution: charge the offender with treason.
Scalia does a long analysis of the motivations for the Suspension Clause, showing how in the absence of suspension the powers the government claims over Hamdi (and Padilla one must assume!) are completely illegitimate. Furthermore, Scalia notes, there’s no way to read the Authorization for Use of Military Force as a suspension either.
Then Scalia — former professor of administrative law — nails the key flaws in the plurality’s conclusion:
It should not be thought, however, that the plurality’s evisceration of the Suspension Clause augments, principally, the power of Congress. As usual, the major effect of its constitutional improvisation is to increase the power of the Court. Having found a congressional authorization for detention of citizens where none clearly exists; and having discarded the categorical procedural protection of the Suspension Clause; the plurality then proceeds, under the guise of the Due Process Clause, to prescribe what proce-dural protections it thinks appropriate. It “weigh[s] the private interest … against the Government’s asserted interest,” ante, at 22 (internal quotation marks omitted), and—just as though writing a new Constitution—comes up with an unheard-of system in which the citizen rather than the Government bears the burden of proof, testimony is by hearsay rather than live witnesses, and the presiding officer may well be a “neutral” military officer rather than judge and jury. See ante, at 26–27. It claims authority to engage in this sort of “judicious balancing” from Mathews v. Eldridge, 424 U. S. 319 (1976), a case involving … the withdrawal of disability benefits! Whatever the merits of this technique when newly recognized property rights are at issue (and even there they are questionable), it has no place where the Constitution and the common law already supply an answer.
To which I can only shout “YES!”
Then we get a classic piece of Scalia biting invective.
There is a certain harmony of approach in the plurality’s making up for Congress’s failure to invoke the Suspension Clause and its making up for the Executive’s failure to apply what it says are needed procedures—an approach that reflects what might be called a Mr. Fix-it Mentality. The plurality seems to view it as its mission to Make Everything Come Out Right, rather than merely to decree the consequences, as far as individual rights are con-cerned, of the other two branches’ actions and omissions. Has the Legislature failed to suspend the writ in the current dire emergency? Well, we will remedy that failure by prescribing the reasonable conditions that a suspension should have included. And has the Executive failed to live up to those reasonable conditions? Well, we will ourselves make that failure good, so that this dangerous fellow (if he is dangerous) need not be set free. The problem with this approach is not only that it steps out of the courts’ modest and limited role in a democratic society; but that by re-peatedly doing what it thinks the political branches ought to do it encourages their lassitude and saps the vitality of government by the people.
And darned if Scalia isn’t right about that too.
Scalia, unlike the previous two opinions, addresses Padilla:
Several limitations give my views in this matter a rela-tively narrow compass. They apply only to citizens, accused of being enemy combatants, who are detained within the territorial jurisdiction of a federal court. This is not likely to be a numerous group; currently we know of only two, Hamdi and Jose Padilla. Where the citizen is captured outside and held outside the United States, the constitutional requirements may be different. Cf. Johnson v. Eisentrager, 339 U. S. 763, 769–771 (1950); Reid v. Covert, 354 U. S. 1, 74–75 (1957) (Harlan, J., concurring in result); Rasul v. Bush, ante, at 15–17 (SCALIA, J., dissenting). Moreover, even within the United States, the accused citizen-enemy combatant may lawfully be detained once prosecution is in progress or in contemplation.
And, the last paragraph will undoubtedly be in casebooks too,
Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitu-tion designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. Because the Court has proceeded to meet the current emergency in a manner the Constitution does not envi-sion, I respectfully dissent.
Justice Thomas, dissenting, takes a very different tack, well summarized in his introductory paragraph:
The Executive Branch, acting pursuant to the powers vested in the President by the Constitution and with explicit congressional approval, has determined that Yaser Hamdi is an enemy combatant and should be detained. This detention falls squarely within the Federal Government’s war powers, and we lack the expertise and capacity to second-guess that decision. As such, petitioners’ habeas challenge should fail, and there is no reason to remand the case. The plurality reaches a contrary conclusion by failing adequately to consider basic principles of the constitutional structure as it relates to national security and foreign affairs and by using the balancing scheme of Mathews v. Eldridge, 424 U. S. 319 (1976). I do not think that the Federal Government’s war powers can be balanced away by this Court. Arguably, Congress could provide for additional procedural protections, but until it does, we have no right to insist upon them. But even if I were to agree with the general approach the plurality takes, I could not accept the particulars. The plurality utterly fails to account for the Government’s compelling interests and for our own institutional inability to weigh competing concerns correctly.
Thomas grudgingly admits that Congress might be able to “interfere” with the President’s holding of detainees under the exercise of the war power—making even Thomas less Royalist than the OLC lawyers and the Vice-President in this administration—but his main point is that the courts in principle have no role.
But wait. The Courts do have a role after all, since they have to decide if Hamdi’s detention is lawful. But somehow that determination doesn’t extend to deciding any facts at issue. This pushes Thomas to make the following weird claim:
… although it is appropriate for the Court to determine the judicial question whether the President has the asserted authority, see, e.g., Ex parte Endo, supra, we lack the information and expertise to question whether Hamdi is actually an enemy combatant, a question the resolution of which is committed to other branches.
The “other branches” turns out to mean the “virtually conclusive” decision of the executive branch. Indeed, Thomas later writes that “due process requires noting more than a good-faith executive determination”—and then takes back the “good-faith” limitation in footnote 3! Even worse than that, in Thomas’s view the duration of the conflict is whatever the President says it is. No checks, no balances. How depressing.
That said, Thomas is right about how Mathews balancing would work in this case if it had been followed strictly. First, he says it’s the wrong test. But if one used it, the balance would surely swing to the government, since the interest in national survival, or victory, is greater than any single person’s liberty interest. (Which is why I think Mathews is such a bad case — the individual almost always loses.)
Thomas also has a sort of point when in an attempt at reductio absurdum he notes that the plurality’s view ought to require notice and hearing before military murders such as the CIA’s firing a Predator missile at a vehicle that carried a US citizen in Yemen. There are distinctions (the CIA may not have known there was a US citizen in the car; it was abroad, Hamdi is here; the government of Yemen authorized the act on its territory so arguably the CIA acted as the agent of Yemen). But in fact why would be odd to have a rule that our government can’t murder US citizens abroad? The rule wouldn’t apply to battlefields or even behind-enemy-lines in wartime, but ought well to apply in neutral countries — why not? (Imagine Nixon toying with the idea of getting Hanoi Jane while she was vacationing in Cannes….)
In summary, eight members of the Court think Hamdi (and, by implication, Padilla) is at least entitled to a hearing, with four saying he should be sprung straight away, albeit two on statutory and two on constitutional grounds. The poor district court doesn’t get very clear directions about what process is due on remand. Four Justices in plurality say it should be a uniquely crabbed process. Two others would give more, two don’t really address it. One says no process is due. And, the plurality’s views are a floor, not a ceiling, and the opinion admits more process if the circumstances and dictates of witness availability and national security permit.
It could be a procedural donnybrook below…
UPDATE: Mark Tushnet points out in correspondence that
In Part IV of his opinion, Souter says that he “join[s] with the plurality in ordering remand on terms closest to those I would impose.” So, on the due process issue, there’s a majority holding on what process is required.
He’s right. So the plurality rule is a floor, but the district court in theory has discretion to give more process if it believes circumstances warrant and permit it.
Update 2 on Aug 7, 2004: The Bush Administration appears to have decided to resist the application of this decision in every way it can.
1 Scalia endorses Story and Taney’s view that Lincoln’s unilateral suspension of habeas corpus was illegal, as he should have gone to Congress for authorization!
Padilla loses on what will to many seem to be a technicality: his lawyer filed in New York when he should have filed in Charleston, SC. The majority does not reach the merits.
That is consistent with long-standing rules of habeas jurisdiction, but it’s a darn shame the Court couldn’t find it in itself to go the merits when they are so clear; the majoritydoesn’t consider this case exceptional enough for an exception to the “custodian” rule, while the dissenters do.
Two of the five justices in the majority write a concurrence noting that if the government had been moving the detainee around to make jurisdiction hard, they would make an exception, but that this isn’t that case — he’s been stationary.
The appropriate district court will now have consider Padillia’s case in light of the ruling in Hamdi, which ought to put him in a better position than he was the last time his case went to district court.
Four justices dissent, reaching the merits. More when I’ve read it all.
The main opinion is by Stevens. The whole LONG thing is here (.pdf). I’m reproducing the syllabus in the jump.
RASUL ET AL. v. BUSH, PRESIDENT OF THE UNITED STATES, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMIBA CIRCUIT
No. 03–334. Argued April 20, 2004—Decided June 28, 2004*
Pursuant to Congress’ joint resolution authorizing the use of necessary and appropriate force against nations, organizations, or persons that planned, authorized, committed, or aided in the September 11, 2001, al Qaeda terrorist attacks, the President sent Armed Forces into Af-ghanistan to wage a military campaign against al Qaeda and the Taliban regime that had supported it. Petitioners, 2 Australians and 12 Kuwaitis captured abroad during the hostilities, are being held in military custody at the Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba’s ultimate sovereignty, but giving this country complete juris-diction and control for so long as it does not abandon the leased ar-eas. Petitioners filed suits under federal law challenging the legality of their detention, alleging that they had never been combatants against the United States or engaged in terrorist acts, and that they have never been charged with wrongdoing, permitted to consult counsel, or provided access to courts or other tribunals. The District Court construed the suits as habeas petitions and dismissed them for want of jurisdiction, holding that, under Johnson v. Eisentrager, 339 U. S. 763, aliens detained outside United States sovereign territory may not invoke habeas relief. The Court of Appeals affirmed.
Held: United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantanamo Bay. Pp. 4–17.
(a) The District Court has jurisdiction to hear petitioners’ habeas challenges under 28 U. S. C. §2241, which authorizes district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held “in custody in violation of the … laws … of the United States,” §§2241(a), ©(3). Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not “ultimate sovereignty.” Pp. 4–16.
(1) The Court rejects respondents’ primary submission that these cases are controlled by Eisentrager’s holding that a District Court lacked authority to grant habeas relief to German citizens captured by U. S. forces in China, tried and convicted of war crimes by an American military commission headquartered in Nanking, and incar-cerated in occupied Germany. Reversing a Court of Appeals judg-ment finding jurisdiction, the Eisentrager Court found six critical facts: The German prisoners were (a) enemy aliens who (b) had never been or resided in the United States, © were captured outside U. S. territory and there held in military custody, (d) were there tried and convicted by the military (e) for offenses committed there, and (f) were imprisoned there at all times. 339 U. S., at 777. Petitioners here differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against this country; they have never been afforded access to any tri-bunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control. The Eisentrager Court also made clear that all six of the noted criti-cal facts were relevant only to the question of the prisoners’ constitu-tional entitlement to habeas review. Ibid. The Court’s only state-ment on their statutory entitlement was a passing reference to its absence. Id., at 768. This cursory treatment is explained by the Court’s then-recent decision in Ahrens v. Clark, 335 U. S. 188, in which it held that the District Court for the District of Columbia lacked juris-diction to entertain the habeas claims of aliens detained at Ellis Island because the habeas statute’s phrase “within their respective jurisdic-tions” required the petitioners’ presence within the court’s territorial ju-risdiction, id., at 192. However, the Court later held, in Braden v. 30th Judicial Circuit Court of Ky., 410 U. S. 484, 494–495, that such presence is not “an invariable prerequisite” to the exercise of §2241 jurisdiction because habeas acts upon the person holding the pris-oner, not the prisoner himself, so that the court acts “within [its] spective jurisdiction” if the custodian can be reached by service of process. Because Braden overruled the statutory predicate to Eisen-trager’s holding, Eisentrager does not preclude the exercise of §2241 jurisdiction over petitioners’ claims. Pp. 6–11.
(2) Also rejected is respondents’ contention that §2241 is limited by the principle that legislation is presumed not to have extraterrito-rial application unless Congress clearly manifests such an intent, EEOC v. Arabian American Oil Co., 499 U. S. 244, 248. That presump-tion has no application to the operation of the habeas statute with re-spect to persons detained within “the [United States’] territorial juris-diction.” Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285. By the express terms of its agreements with Cuba, the United States exercises com-plete jurisdiction and control over the Guantanamo Base, and may con-tinue to do so permanently if it chooses. Respondents concede that the habeas statute would create federal-court jurisdiction over the claims of an American citizen held at the base. Considering that §2241 draws no distinction between Americans and aliens held in federal custody, there is little reason to think that Congress intended the statute’s geographi-cal coverage to vary depending on the detainee’s citizenship. Aliens held at the base, like American citizens, are entitled to invoke the fed-eral courts’ §2241 authority. Pp. 12–15.
(3) Petitioners contend that they are being held in federal cus-tody in violation of United States laws, and the District Court’s juris-diction over petitioners’ custodians is unquestioned, cf. Braden, 410 U. S., at 495. Section 2241 requires nothing more and therefore con-fers jurisdiction on the District Court. Pp. 15–16.
(b) The District Court also has jurisdiction to hear the Al Odah pe-titioners’ complaint invoking 28 U. S. C. §1331, the federal question statute, and §1350, the Alien Tort Statute. The Court of Appeals, again relying on Eisentrager, held that the District Court correctly dismissed these claims for want of jurisdiction because the petitioners lacked the privilege of litigation in U. S. courts. Nothing in Eisentrager or any other of the Court’s cases categorically excludes aliens de-tained in military custody outside the United States from that privi-lege. United States courts have traditionally been open to nonresi-dent aliens. Cf. Disconto Gesellschaft v. Umbreit, 208 U. S. 570, 578. And indeed, §1350 explicitly confers the privilege of suing for an ac-tionable “tort … committed in violation of the law of nations or a treaty of the United States” on aliens alone. The fact that petitioners are being held in military custody is immaterial. Pp. 16–17.
(c ) Whether and what further proceedings may become necessary after respondents respond to the merits of petitioners’ claims are not here addressed. P. 17.
321 F. 3d 1134, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which O’CONNOR, SOUTER, GINSBURG, and BREYER, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment. SCALIA, J., filed a dissenting opinion, in which REHNQUIST, C. J., and THOMAS, J., joined.
Enemy Combatants Can Challenge Detentions. Reuters (via Washington post) reports:
The Supreme Court ruled Monday that an American captured overseas in President Bush’s war on terrorism cannot be held indefinitely in a U.S. military jail without a chance to contest the detention.
Key points from the summary (the opinion isn’t online yet):
But there’s no substitute for reading the opinions; they should be available soon.
Update: The New York Times has a totally different spin saying “Supreme Court Partially Sides With Bush on American Detainee Case” with the majority opinion by O’Connor with Rehnquist and Breyer; with Souter and Ginsburg writing the concurrence. That would be 5-4? Only it’s hard to imagine Stevens not siding for the detainee if Rehnquist and Breyer did. (But see flag burning…)
Most of the big cases I mentioned last week remain to be decided. That means they will be decided this week, maybe today.
I think that the Padilla case is so important that I almost titled this item “Supreme Court to decide if this is still a free country”. I am an optimist about big things, although not always about small, and something of a patriot, so I persist in the belief that the Supreme Court will get this one right. Just about all the lawyers I talk to agree, although no one thinks it will be the 9-0 vote that it deserves to be. Estimates cluster at 6-3 or 7-2.
If we’re wrong in our predictions, and it goes badly, it’s time to raise hell, or we will be remembered as the generation that let the American Experiment go sour.
Michael Moore’s movie is a box office smash: The Political ‘Fahrenheit’ Sets Record at Box Office. Preaching to the choir, or a signal about the election?
Now go back and reconsider this exchange in front of the Supreme Court, two years later, on April 28th, 2004 in this light:when Justice Ruth Bader Ginsburg asked Deputy Solicitor General Paul Clement
in the Hamdi cases whether judicial review should be foreclosed even in
cases of alleged torture, Clement dodged the question. “Our executive,”
he insisted, doesn’t engage in torture. “Judicial micromanagement” was
inappropriate in wartime; “you have to trust the executive.”
Meanwhile the unnamed leakers are out in force complaining that their hands are tied by ‘uncertainty’ about how much pain they can inflict, and as a result that torrent of intelligence we were previously enjoying is now just a little trickle. Given the very high quality of recent intelligence (something that the NYT’s article on its Officially Sanctioned Leak just somehow neglects to mention), I am very very sceptical indeed about this planted story.
You know, it’s getting to the point where I’m actually wondering why I subscribe to the New York Times…
Dana Priest has so many scoops in one story, there’s a danger some may get lost:
First, the CIA is getting nervous and has decided to stop doing whatever undisclosed things its has been doing to its prisoners in its series of secret camps in undisclosed foreign locations, pending legal review:
The “enhanced interrogation techniques,” as the CIA calls them, include feigned drowning and refusal of pain medication for injuries. The tactics have been used to elicit intelligence from al Qaeda leaders such as Abu Zubaida and Khalid Sheik Mohammed.
…
“Everything’s on hold,” said a former senior CIA official aware of the agency’s decision. “The whole thing has been stopped until we sort out whether we are sure we’re on legal ground.” A CIA spokesman declined to comment on the issue.
CIA interrogations will continue but without the suspended techniques, which include feigning suffocation, “stress positions,” light and noise bombardment, sleep deprivation, and making captives think they are being interrogated by another government.
Meanwhile, back in Washington D.C. the coverup over the Torture Memos continues to unravel. Let’s start with the Bybee Memo — which was approved all the way up to the top (Cheney’s office):
Although the White House repudiated the memo Tuesday as the work of a small group of lawyers at the Justice Department, administration officials now confirm it was vetted by a larger number of officials, including lawyers at the National Security Council, the White House counsel’s office and Vice President Cheney’s office.
And that royalism stuff about how if the President says it’s legal people who rely on that shouldn’t’ be prosecuted, and how Congress, even when approving or implementing treaties (“the supreme Law of the Land” - US Constitution) has no ability to in any way limit the full, plenary, unstoppable power of the President when acting as Commander in Chief? Well, all that was not just approved but demanded and applauded from the top:
A Justice Department official said Tuesday at a briefing that the [OLC] went “beyond what was asked for,” but other lawyers and administration officials said the memo was approved by the department’s criminal division and by the office of Attorney General John D. Ashcroft.
In addition, Timothy E. Flanigan — then deputy White House counsel — discussed a draft of the document with lawyers at the Office of Legal Counsel before it was finalized, the officials said. David S. Addington, Cheney’s counsel, also weighed in with remarks during at least one meeting he held with Justice lawyers involved with writing the opinion. He was particularly concerned, sources said, that the opinion include a clear-cut section on the president’s authority.
What did all this mean on the ground? Tell me this isn’t a form of torture:
Abu Zubaida was shot in the groin during his apprehension in Pakistan. U.S. national security officials have suggested that painkillers were used selectively in the beginning of his captivity until he agreed to cooperate more fully
That’s not the view of the self-satisfied armchair warrior cadre in DC, however. They don’t see any torture here:
At the same time, the former official said, “we never had a situation where we said, ‘You can do anything you want to.’ We never, ever did that. We were aggressive, but our people were very scholarly and lawyerlike.”
“Scholarly”? “Lawyerlike”? Sorry, but the “selective” use of painkillers for someone shot in the groin isn’t like any Socratic Method I recognize.
Confused about all the memos and the timeline? See this handy New York Times Guide to the Memos on Torture.
And stop a minute to think that we have sunk so low, under the weight of so many memos about torture, that we need a guide to them.
I leave for Amsterdam on Tuesday evening, for what promises to be a really interesting conference at the IViR, the Institute for Information Law of the University of Amsterdam, this time in co-production with Tilberg University. (The joint venture between Amsterdam and Tilburg has produced a genuine Internet studies powerhouse.) The IViR could be my favorite place to go for conferences, as I always meet interesting people, and it has a lovely setting. My job is to comment on a great paper by Ronald Leenes and Bert-Japp Koops of Tilberg.
Even though I booked the tickets a while ago, the transatlantic airfares were unusually high. It turned out that I could lower the price from insane to painful by returning a day late, so in addition to my arrival day spent in a jet-lagged haze, I’m also going to have Saturday, July 3 (by which time I’ll be over jet lag), free to actually tourist around Amsterdam, one of my favorite cities. As best I can recall, this is the first time in at least a decade, maybe more, that I have an entire extra day just to tourist as part of a conference trip unless I was traveling with the family. Usually when I’m on my own I book myself for fairly tight schedules, even for the transatlantic events, in order to minimize the time away from home. If all goes well, I’ll be home in time for the July 4 fireworks, assuming I can stay up that late.
I spent a very happy week in Amsterdam while a grad student, so I have a pretty good idea of which museums I’d like to revisit, and just how much fun it is to walk around Amsterdam in the sunshine. But if anyone has advice on where to eat, or especially where to find WiFi hotspots I would be most grateful. Last time I went to Amsterdam I took a long list of alleged hotspots with me that I’d collated from several internet sites, and only one of them actually worked, and that was in a nice cafe but somewhat far from my hotel. And yes, it’s the same infuriating hotel they booked me into last time.
One of the minor mysteries troubling lawyers who care about such things was why the Bybee memo was such a lousy piece of craft. The OLC is traditionally drawn from the elite of the profession, even if its head sometimes has to pass an ideological litmus test. One would expect an advisory memo on a major issue like torture to at least present both sides. If the key to a major part of the argument is an expansive view of separation of powers that has in the past been championed by Justice Scalia but has been repeatedly rejected by the Supreme Court as a whole (or, if you prefer, never adopted), one would expect to see a caveat or two somewhere as to the operational realities. But, just like there is a chilling absence of morality, there’s also this puzzling disconnect with the state of the law (as I’ve also noted elsewhere, the crim law types have similar complaints).
One plausible explanation for these mysteries appears now on the New York Times web site and will presumably be in tomorrow’s paper, Aides Say Memo Backed Coercion for Qaeda Cases: the Bybee memo was not written in a vacuum, nor (perhaps) due to some order from on high motivated by a desire to squeeze more info from detainees who were not coughing up the locations of weapons of mass destruction. No, what the NYT suggests is that the memo was written after the CIA had already done something — presumably excessive — to one of the detainees. Thus, it seems likely the White House was scrambling to find some legal cover for abuses that had already happened:
The legal memo was prepared after an internal debate within the government about the methods used to extract information from Abu Zubaydah, one of Osama bin Laden’s top aides, after his capture in April 2002, the officials said. The memo provided a legal basis for coercive techniques used later against other high-ranking detainees, like Khalid Shaikh Mohammed, the chief architect of the attacks of Sept. 11, 2001, who was captured in early 2003.
…
It has been known that the methods used on Mr. Zubaydah and other senior Qaeda operatives stirred controversy in government counterterrorism circles. But until now, it was not been clear that the memo was written in response to the Central Intelligence Agency’s efforts to extract information from high-ranking Qaeda suspects, and was unrelated to questions about handling detainees at Guantánamo Bay or in Iraq.
…
The full extent of the tactics used during his interrogation are still not publicly known, but the methods provoked controversy within the C.I.A. and prompted concerns about whether agency employees might be held liable for violating the federal torture law.
Does the provision of this context mean that the attacks on Bybee have been unfair? No. Being asked to come up with justifications for the CIA’s behavior might mean that he was in a much tougher spot than if he was just engaging in a theoretical exercise, but his moral and professional obligations — and the need to provide quality, balanced advice not a one-sided and ultimately unpersuasive screed — were every bit as strong if not stronger.
Furthermore, and perhaps because of this memo (the NYT does not claim direct causation), whatever happened to Abu Zubaydah was not unique:
It is known that some Qaeda leaders were deprived of sleep and food and were threatened with beatings. In one instance a gun was waved near a prisoner, and in another a noose was hung close to a detainee.
Mr. Mohammed was “waterboarded” — strapped to a board and immersed in water — a technique used to make the subject believe that he might be drowned, officials said.
In the end, administration officials considered Mr. Zubaydah’s interrogation an example of the successful use of harsh interrogation techniques.
Some things just are not legal, and you have to say so.
Some Background:
Update: Jack Balkin on the role of the government lawyer.
The Vice President is going around saying things like he’s not sure if he really swore at a Senator, but he felt better afterwards (huh?), and Yes, that’s not the kind of language I ordinarily use.
Consider the following to be totally unsupported hearsay: Yesterday I received an email from a reader of this blog who said he used to be in and out of Cheney’s office before he was the Veep (the email was specific, I’m being vague), and that Cheney regularly used language that was not just salty but downright radioactive.
Not that swearing matters much in my book, but lying does.
If said reader wishes to say more s/he knows how to do so, although I can understand why one view of professional obligations might counsel against it.
I read an awful lot of blogs via an aggregator, which means that I only get exposed to the comments if I do some clicking. I know from the feedburner logs that a substantial fraction of the readers of this blog do the same thing. That’s certainly fine—that’s what the feed is for. But I thought I ought to mention to long-time readers that in the past couple of weeks the comments have heated up, and that overall the discussion on some of the more active threads has been both meaty and (with minor exceptions) breathtakingly respectful. I’m impressed, and you might be too.
So far I have had no need to revise my comments policy although of course I’m always open to suggestions on that or anything else. (The one exception may be “would you add this blog I just found to the blogroll” — I blogroll only the sites I read or scan via the aggregator. I’m certainly happy to hear about new sites, but rarely list them until I decide if I’m going to be a daily reader.)
I should also mention that I have closed the comments on a very small number of ancient posts because they were being repeatedly targeted by comment spammers. They must all be in cahoots.
If anything persuades me to buy a TV, it’s going to be the Daily Show.
Via Over/Spun, a link to Stewart acting as a one-man truth squad.
How come the respectable media tip-toes around this stuff?
Item 12 on 21 Rules of Thumb – How Microsoft develops its Software, a Microsoft developer’s list of rules of great software design:
“Portability is for canoes.”
Figures. Indeed, verges on abuse of a dominant position?
It’s also sort of interesting to compare this list to legal task organization, for example large-team litigation. Some of the rules work perfectly, some are irrelevant.
The first rule should certainly be engraved on every lawyer’s heart, and is something I always make a point of telling my students in every class I teach:
It is essential not to profess to know, or seem to know, or accept that someone else knows, that which is unknown. Almost without exception, the things that end up coming back to haunt you are things you pretended to understand but didn’t early on.
Scrivener’s Error has a very lawyerly analysis of the Cheney decision.
Legal Scholars Criticize Torture Memos notes a general consensus among expert readers that the Torture Memos were so one-sided as to be incompetent, misstated basic concepts of criminal law, and misread our international obligations.
But don’t worry, one of the lead authors is a court of appeals judge, and all the others still have their jobs! (At least until January.)
If you want to know what I sound like, you can hear a Real Audio or MP3 of an interview on CounterSpin: The Radio Show of Fairness. The show is also being broadcast on 130+ stations around the country at various times in the next week. (Update: more stations.) The family can hear it on WPFW / 89.3 FM next Thurs. at 11:00 am. Alas, there’s no station playing it here in Miami…
Guess what really prompted this: CNN.com - Cheney curses senator over Halliburton criticism. (The curse was what kids call the ‘F-word’.)
A) Cheney has seen latest GOP tracking polls and things look bleak. (Maybe like this)
B) Ill health.
C) Plame investigation heats up is about to result indictments of Cheney aide or aides.
D) Aides in Plame investigation not as loyal as hoped.
E) Boss is auditioning a replacement after impending resignation for ill health.
F) Senator Leahy is on to something.
G) Cheney always talks like that, but in the undisclosed location there’s no one to tell the press.
Update: There were so many typos in this one, it reminded me why I don’t offer bounties
Joho at Hyperorg has the full text of Al Gore’s latest speech. It’s a wow.
The Supreme Court held today in Cheney v. U.S. District Court that the Court of Appeals erred when it said the Vice President Cheney had to either assert executive privilege or cough up documents about his meetings with energy lobbyists. Those are the meetings in which, it is widely believed, he and the lobbyists drew up US energy policies — and may even have discussed the disposition of Iraq’s oil, many months before even 9/11, much less the administration’s public talk of any invasion. The case produced an unusual constellation of coalitions and opinions:
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, O’Connor, and Breyer, JJ., joined, and in which Scalia and Thomas, JJ., joined as to Parts I, II, III, and IV. Stevens, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in part and dissenting in part, in which Scalia, J., joined. Ginsburg, J., filed a dissenting opinion, in which Souter, J., joined.
No matter what happens next, any disclosures will happen after the election. In that sense, it’s a big win for Cheney.
In the long run, though, the most significant part of this ruling may be somethng more announced than justified in this decision: the almost automatic equation, with no real explanation as to why, of the Vice President’s prerogatives in civil litigation with the President’s. It’s long been agreed that, as Chief Justice Marshall once put it (while sitting as a trial judge), “In no case … would a court be required to proceed against the president as against an ordinary individual.” Today, the Supreme Court held that in civil as opposed to criminal cases, courts should in effect bend over backwards to be as solicitous of the Vice President’s need for confidentiality and freedom of action as for the President. I leaned a little to the view that the Veep should be treated for this purpose as just another top aide, but thought there were valid arguments on both sides. It was an open issue—but not any more.
Thus, while civil discovery requests are not forbidden, the Court sent strong signals that judges should police them to avoid the sort of fishing expedition that constitutes routine civil discovery when applied to most everyone else. Even so, this sentence mus surely rate high in the irony sweepstakes: “Special considerations control when the Executive’s interests in maintaining its autonomy and safeguarding its communications’ confidentiality are implicated. See, e.g., Clinton v. Jones, 520 U.S. 681, 707.”
Working from this basis, the Court in effect sent the case back to the Court of Appeals, also ruling that given the importance of the executive interest in not being unduly bothered with discovery fishing requests, the Ninth Circuit had erred when it stated that it lacked the power to craft an immediate and interlocutory order restraining the District Court’s approval of wide discovery. But the Court did not say that narrowly tailored discovery should be prohibited. Indeed, it did even come right out and say that the Court of Appeals should in no circumstances approve the wide discovery ordered by the district court. Rather, having found that the court of appeals had taken narrow a view of its own powers and thus failed to engage the substance of the matter, the Supreme Court sent it back to them for consideration:
we decline petitioners’ invitation to direct the Court of Appeals to issue the writ against the District Court. Moreover, this is not a case where, after having considered the issues, the Court of Appeals abused its discretion by failing to issue the writ. Instead, the Court of Appeals, relying on its mistaken reading of United States v. Nixon, prematurely terminated its inquiry after the Government refused to assert privilege and did so without even reaching the weighty separation-of-powers objections raised in the case, much less exercised its discretion to determine whether “the writ is appropriate under the circumstances.” Ante, at 10. Because the issuance of the writ is a matter vested in the discretion of the court to which the petition is made, and because this Court is not presented with an original writ of mandamus, see, e.g., Ex parte Peru, 318 U.S., at 586, we leave to the Court of Appeals to address the parties’ arguments with respect to the challenge to AAPS and the discovery orders. Other matters bearing on whether the writ of mandamus should issue should also be addressed, in the first instance, by the Court of Appeals after considering any additional briefs and arguments as it deems appropriate. We note only that all courts should be mindful of the burdens imposed on the Executive Branch in any future proceedings. Special considerations applicable to the President and the Vice President suggest that the courts should be sensitive to requests by the Government for interlocutory appeals to reexamine, for example, whether the statute embodies the de facto membership doctrine.
Which is nonetheless a strong hint that the discovery request should be at least severely narrowed if not tossed out entirely. Justice Steven’s concurrence suggests helpfully that,
A few interrogatories or depositions might have determined, for example, whether any non-Government employees voted on NEPDG recommendations or drafted portions of the committee’s report. In my view, only substantive participation of this nature would even arguably be sufficient to warrant classifying a non-Government employee as a de facto committee member.
Justice Ginsburg’s dissent makes the devastating pleading point — one of limited relevance to the harsh realities of Supreme Court decisionmaking — that the relief ordered by the Court’s decision bears no relation to what Cheney asked for. Indeed, despite many invitations and opportunities to do so, the government refused to discuss how the request might be narrowed in both the District Court and the Court of Appeals, preferring in each case to was asked to kill the discovery request. Under the circumstances, since the Court majority rejects the government’s sole assertion that it need provide nothing under any circumstances, the proper thing to do would be to send the case back to the District Court for further proceedings, not to the Court of Appeals with instructions to review and probably reign in the District Court.
One objective of the Bush Administration’s modified limited hangout on the Torture Memos and the accompanying partial data dump, has been to sell the voter, and the chattering classes, the story that while some lower-down officials were having philosophical discussions about torture, none of this was ever reflected in the actual orders given by higher ups.
There are a large number of reasons to be more than a little wary about this spin on the story.
First, there are the obvious gaps in the story provided by the Administration — less and less information about the orders given by higher-ups as we get closer to the present day, the period in which administration desperation about events in Iraq could only have increased.
Second, there is the absence of any information about the instructions to the CIA at any time.
Third, there is the bureaucratic reality that the vast number of memos and working groups were not the result of spontaneous organizational combustion. People very close to the top asked for those. We know Rumsfeld and Gonzales did; we don’t know how much they consulted with their boss, and he’s having memory problems on the subject of torture.
Fourth, we know that the proponents of torture were not just philosophizing, or casting about for policy options, or presenting balanced options to their bosses, but rather were so intent on getting their way that they ruthlessly cut their bureaucratic opponents out of the loop.
According to today’s Washington Post, in January 2002, the State Department Legal Advisor — one of the higher ranking lawyers in government, and traditionally an authoritative interpreter of existing treaties within the executive branch — opined that the Justice Department approach to the torture issue and to the Geneva Conventions was
“seriously flawed” and its reasoning was “incorrect as well as incomplete.” Justice’s arguments were “contrary to the official position of the United States, the United Nations and all other states that have considered the issue,” Taft said.
That letter somehow didn’t get into this week’s data dump. Nor did the reaction from Justice and Defense: they started trying to exclude the weak-livered folk from State from meeetings.
One result of the rancorous debate, according to participants, was that Yoo, Attorney General John D. Ashcroft and senior civilians at the Pentagon no longer sought to include the State Department or the Joint Staff in deliberations about the precise protections afforded to detainees by the Geneva Conventions.
For example, the officials said, a 50-page Justice Department memo in August 2002 about the meaning of various anti-torture laws and treaties was not discussed or shared with the Joint Chiefs or the State Department. It was drafted by Justice for the CIA and sent directly to the White House.
(I happened to be talking to a mid-level foreign service officer, who is not a lawyer, last week and he expressed his disgust that the US government had, for the first time, interpreted treaties without even consulting the state department.)
These actions are consistent with a picture of an administration that sought a way to use, and intended to use, violence to question people. It is not airtight proof, and one hopes they pulled back from the brink…but at the very least there are many questions left to answered.
Talk about timely scholarship! Prof. Oren Gross of U. Minn. Law has just published Are Torture Warrants Warranted? Pragmatic Absolutism and Official Disobedience, 88 Minn. L. Rev. 1481 (2004).
Here (minus the footnotes) is his conclusion to a long and complex argument, a conclusion which resembles my views, right down to citing Charles L. Black, Jr. approvingly, but ultimately come out somewhat more accepting of the idea that although torture should always be prohibited in order to discourage resort to it in any but the most extreme circumstances, there exist sets of real-life circumstances were torture might be morally justified, and thus would and should be publically pardoned or praised after that fact:
… the official disobedience model imposes a significant burden on public officials. They must act in the face of great uncertainty. At the same time the model does not completely bar the possibility that interrogational torture will be used by officials and later ratified by the public. It simply makes it extremely costly to resort to such drastic measures, limiting their use to exceptional exigencies. As Sanford Kadish notes, “Would not the burden on the official be so great that it would require circumstances of a perfectly extraordinary character to induce the individual to take the risk of acting? The answer is of course yes, that’s the point.”
…
I support an absolute legal ban on torture while simultaneously suggesting that in catastrophic cases public officials may choose to act outside the legal order, at times even violate the otherwise entrenched absolute prohibition on torture.
Some may charge me with trying to have my cake and eat it too, that is, supporting an absolute legal ban on torture precisely on the ground that it will not function as absolute in real life. Perhaps this is true. Guido Calabresi notes that subterfuges often accompany tragic choices. “We look for solutions which seek to cover the difficulty and thereby permit us to assert that we are cleaving to both beliefs in conflict.” To be sure, my proposal attempts to cling to both sets of values involved in assessing torture in general, and preventive interrogational torture in particular. However, rather than cover up the difficulty I seek to expose it and ensure that it is dealt with in as transparent, open, and public manner as possible. This desire for visibility, accountability, openness, candor, and responsibility is shared by proponents of ex ante torture warrants and of ex post public ratification alike.
But is public and open debate about torture, in and of itself, desirable? Or is it better to treat the absolute ban on torture as axiomatic and avoid attempts to prove its desirability or usefulness? Does merely engaging in debate on torture reflect “loose professionalism”? …
… the alternative to no open debate over the use of torture (or, indeed, to discussion that merely replicates the mantra that torture is absolutely prohibited) is not the disappearance of the practice of torture. While we abhor the detailed medieval codes and procedures on torture, we also ought to recognize that the practice remains. By refusing to discuss torture, we do not make it go away; we drive it underground. Moreover, by refusing to acknowledge that the notion of torture is more complex than many supporters of the “torture-is-banned-and-that-is-all-there-is-to-it” approach would have us believe, we run the risk of having the general public perceive the legal system as either utopian or hypocritical. After all, most of us believe that most, if not all, government agents, when faced with a genuinely catastrophic case, are likely to resort to whatever means they can wield—including preventive interrogational torture—to overcome the particular grave danger that is involved. And I believe that most of us hope they will do so.
It’s that last line which worries me.
Jurist reports
Government watchdog group Project on Government Oversight (POG0) filed suit against Attorney General John Ashcroft Wednesday over the reclassification of documents relating to a whistleblower’s claims of security lapses in the FBI’s translator program. POGO argues that reclassifying documents that were previously in the public domain is illegal and unconstitutional. During testimony before the Senate Judiciary Committee earlier this month, Ashcroft took responsibility for the decision to classify the documents, citing US national interests. AP has the full story. POGO provides background on the retroactive classification.
I had thought the question of classifying public domain information was settled long ago in the ‘classified at birth’ debate, when the government climbed down from its assertion that some scientific discoveries with military implications (e.g. strong cryptography or strong decryption methods) could be classified even if derived entirely from non-classified sources by persons unaffiliated with the government.
The seemingly technical question of the government’s ability to classify public information is in fact very important. If Ashcroft were to get his way, the government would have the ability to shut down debate on a set of public policy issues by waving a classified stamp. That would take us another (not-so-little?) step in the direction of authoritarian government.
The Bush administration has made an offer to North Korea on the nuclear issue that sounds suspiciously, no exactly, like the offers they derided Clinton for making. See The Poor Man: Steady Leadership Watch for details, necessary flip-flop comments, general and earned snark.
I want to highlight a slightly different aspect of this development. The Bush offer is likely to be seen by N. Korea — more importantly, by other US adversaries (think, “militant Iraqis”) — as a sign of weakness: the Bush administration, sagging in the polls, goes shopping for foreign policy deals that can be marketed domestically as “victories’.
A foreign perception of a weak, anxious, maybe desperate, Administration eager to make deals for short term political gain means that our adversaries will drive the hardest bargains they can, thinking that the deals on offer will never be this good again. As a general matter, that’s bad for the US whether this foreign perception is right or not, as we’ll either have to give up more, or won’t be able to come to agreement.
It’s not just strong Presidents who are dangerous; weak Presidents are dangerous too, just in different ways.
Today is our 15th wedding anniversary. We’ve known each other 20 years, more than half our recalled lives.
According to the Chicago Public Library, for the 15th, if I wanted to follow convention that would require either crystal (traditional) or watches (modern).
Nope. Not want I wanted to get or give.
So much for herd behavior.
Actually, the more I look a the whole list of traditional and so-called modern traditional gifts, the more repulsive (and arbitrary) it seems. “Furniture”? “Silver holloware”? (I had to look it up.)
Where do these silly lists come from anyway? Department stores?
Just spotted in the Washington Post, Document On Prison Tactics Disavowed :
In a highly unusual repudiation of its department’s own work, a senior Justice official and two other high-ranking lawyers said that all legal advice rendered by the department’s Office of Legal Counsel on the subject of interrogations will be reviewed.
Guess that means those old legal opinions are inoperative now. It’s about time. (Don’t suppose Judge Bybee will be asked to resign do you? Nah.)
It’s unclear from the Post article whether the royalist theory of Presidential power, endorsed by Bush himself, is also being disavowed, but I’d say it going to remain part of Administration doctrine or they wouldn’t have released a memo Bush signed approving of it.
Also,
Gonzales … refused to comment on techniques used by the CIA, beyond saying that they “are lawful and do not constitute torture.” He also would not discuss the president’s involvement in the deliberations.
A separate Post article notes that,
In December 2002, as Pentagon officials were trying to get detainees to offer more useful information about al Qaeda, Rumsfeld approved a variety of techniques, such as stripping prisoners to humiliate them, using dogs to scare them and employing stress positions to wear them down, the documents show. The tactics also included using light and sound assaults, shaving facial and head hair and taking away religious items.
Pentagon officials say most of the techniques were never used, and a Pentagon working group recommended that Rumsfeld roll back these methods. In a memo to the defense secretary in March 2003, the group wrote: “When assessing exceptional interrogation techniques, consideration should be given to the possible adverse affects on U.S. Armed Forces culture and self-image, which at times in the past may have suffered due to perceived law of war violations.”
A third Post article, which sounds awfully like White House talking points, suggests that liability concerns about the Torture Act, and especially the fear that anything less than a Presidential permission slip might open the door to prosecutions, drove Ashcroft to urge Bush to allow more violence than State or military lawyers wanted. Why Ashcroft didn’t trust the troops to obey the law, and wasn’t willing to see the bad apples tried, is not made clear in this recitation of talking points.
Are we really expected to believe the Iraq atrocities, and the Administration climate which circumstantially appears to have enabled it, was caused by….an absence of tort reform?
(Actually, on reflection, that’s unfair: the legal action would have been criminal prosecution, not civil. So it was a real fear of US Attorneys?)
This evening the White House released the text of an order signed by President Bush on Feb. 7, 2002, regarding the treatment of al-Qaida and Taliban detainees.
This Bush order applies to the Afghanistan Taliban, and to alleged al-Qaida members in Iraq and worldwide; it says they don’t have rights, but doesn’t say that they should be tortured; rather it says they should be treated “humanely” and that they should be given Geneva-like privileges when not too inconvenient to do so.
The order accepts the Royalist theory of Presidential power, but says it declines to apply it: “I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time.”
al-Qaida and Taliban fighters are claimed to all be outside the Geneva 3 framework (POWs) regardless of citizenship or circumstances. [And presumably it’s possible to tell who is al-Qaida and who isn’t just by looking at them?]
al-Qaida members are claimed be outside Geneva 4 (protection of civilians) regardless of citizenship beause they are “armed combatants” (even when not carrying weapons?).
The key command: “As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.”
On its own, this reads as an instruction to be humane at all times, and to follow Geneva when not too inconvenient. Whether this complies with international law or not, it does not read as a license to torture, which is presumably why the White House is releasing it. Note, however, that this order would, for example, be a license to create “ghost” detainees from among the Taliban and al-Qaida (but not other Iraqis).
Note also what’s not there. For example, nothing in this memo seems directed to the CIA, just to the military. I wonder if there’s a separate order for the CIA with more … flexibility?
It’s also important to keep the confusing timeline straight. The OLC torture memo was delivered in August 2002, i.e. several months after this order. Thus, it is clear that this command, in Feb. 2002, to be “humane” was not the last word on the subject in the minds of all policy makers, including the President’s closest advisors such as his Legal Counsel. And we know that the Walker Group was still chewing on the torture question in March 2003, although we don’t know what if anything came of it.
In short, we don’t know if this memo was ever countermanded, or amended, whether it applied to the CIA, or indeed what if anything ultimately resulted from subsequent advice to Bush that he could allow great physical pain to be applied during questioning of detainees. We do know, however, that as early as February 2002, in this memo, Bush had signed on to the dangerous theory of nearly unlimited Presidential power that informed the torture memos. We also know that in those months after this memo issued, many people around Bush were recommending, or prepared to recommend, that inhumane conduct was legal and justified.
UPDATE: The New York Times reports
White House counsel, Alberto R. Gonzales, told reporters on Tuesday that Mr. Bush never considered more aggressive options set out by administration lawyers, including those in an August 2002 Justice Department memo that appeared to offer a permissive definition of torture.
Full text of the Feb. 7, 2002 Bush order below.
1. Our recent extensive discussions regarding the status of al-Qaida and Taliban detainees confirm that the application of Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, (Geneva) to the conflict with al-Qaida and the Taliban involves complex legal questions. By its terms, Geneva applies to conflicts involving “High Contracting Parties,” which can only be states. Moreover, it assumes the existence of “regular” armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our nation recognizes that this new paradigm — ushered in not by us, but by terrorists — requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.
2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:
a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.
b. I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise the authority in this or future conflicts.
c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to “armed conflict not of an international character.”
d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.
3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
4. The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.
5. I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.
PS. It’s just a minor point, but AFAIK the text of this memo was released after the evening news, and late for tomorrow’s papers. Was this an attempt to lessen coverage? Or maybe an attempt to get the papers to rely on whatever spin points were being leaked this afternoon?
Update: Judging from the stories in tomorrow’s newspapers, it made their deadlines!
The Decembrist: The Many Presidencies of Bill Clinton contains further thoughts on my tactical disagreement with Brad DeLong.
There are many points, but the most interesting of all is this one:
I agree that I don’t want to concede all of this in July of the election year. That’s why making McCain the VP probably wouldn’t have made sense. A candidate cannot put forth a persuasive agenda for renewal and simultaneously acknowledge how much of it he will have to compromise on. But, by the same token, I want to avoid the cycle of disappointment when Kerry faces the recognition that his power to implement an agenda depends on his finding a working relationship with Congress.
To which I replied in the comments,
As for the danger of raising expectations, there is simply no choice. You don’t get elected dogcatcher by beeing gloomy and without offering a vision that makes people hopeful.
It’s no accident that he word the Bush campaign most uses about Kerry these days, even more than flip-flop, is “pessimistic”. I bet the focus groups tested wild in favor of “optimism”—and it’s so easy to claim that any suggestion that the administration is incompetent and things are going badly as “pessimism”. The reporters write it right down…
AP suing the Pentagon to get 100% of GW Bush’s service records. It has always seemed odd to me that (1) Bush did not in fact ever make all his records available, and indeed reneged on his pledge to do so; (2) requests for the records now go through the White House; (3) there are things missing that have no right to be missing, notably the discharge papers with their separation codes; (4) no one in the press seemed to care about the loose ends in the story.
Is it a coincidence that this law suit comes just after Bush starts falling in the polls? I would hate to think the press corps was so craven that they only dare ask hard questions when they smell blood. But how else to explain the timing?
Inspired by Saul Steinberg’s View of the World from 9th Avenue Ernest Miller has produced a graphic depiction of The Constitution According to Bush (.pdf).
Just thought I should mention that last week I signed the Law Professor’s Iraq Letter. Its concluding paragraphs ask Congress to:
(1) assess responsibility for the abuses that have taken place, identifying the officials at all levels who must be held accountable for enabling these abuses to occur and for the failure to investigate them, and determining what sanctions, including impeachment and removal from office of any civil officer of the United States responsible, may be appropriate;
(2) decide whether the U.S. should have an official policy of coercion in connection with interrogation, and if so what form it should take as well as what safeguards it should include to protect against abuses in violation of the policy.
There were about 500 signatories, almost all law professors. I’m sure they would have had more if there had been more time to organize signatures or if were not the summer vacation season.
Will someone with a Wall St. Journal account please read this Talkleft item, New Guantanamo Rules Not Much Better Than Old Rules, follow it to the WSJ link, and then tell me how the so-called “alternate procedure” (described there as a contingency plan if the Supreme Court rules against the current prison regime) differs in any notable particulars from the series of one-sided hearings the Pentagon announced it planned anyway way back in February.
From the short description they sound very much alike.
Since it is Clinton nostalgia week in the US, join me in a little game. (Before tenure we called these “thought experiments”.) Imagine how the press would have played it if this story had broken during the Clinton administration:
How secure is the Department of Homeland Security?:
The policy director for the Department of Homeland Security’s intelligence division was briefly removed from his job in March when the Federal Bureau of Investigation discovered he had failed to disclose his association with Abdurahman Alamoudi, a jailed American Muslim leader. Alamoudi was indicted last year on terrorism-related money-laundering charges and now claims to have been part of a plot to assassinate Saudi Arabia’s Crown Prince Abdullah.
After a flurry of interagency meetings, however, Homeland Security decided to leave the policy director, Faisal Gill, in place, according to two government officials with knowledge of the Alamoudi investigation. A White House political appointee with close ties to Republican power broker Grover Norquist and no apparent background in intelligence, Gill has access to top-secret information on the vulnerability of America’s seaports, aviation facilities and nuclear power plants to terrorist attacks.
I bet the rest is good too, but you have to register or watch ads or something to read it.
Mark Schmitt, the Decembrist (a blog I like a lot) has advice for John Kerry about Negotiating With the Republicans, which amounts to, ‘be a centrist, divide the Republican party’.
Brad DeLong, thinking like a smart White House staffer, thinks it is Good Advice. I beg to differ: it may be good January 2005 advice but it is rotten June 2004 advice.
I suspect that Brad’s political reflexes were fixed by his service in the Clinton administration. Clinton never governed like he had a mandate (arguably, because he didn’t have much of one the first time). He triangulated. He fogged about. He appointed Republicans as judges, and many Democrats who might as well have been Republicans. But that’s a rotten way to govern if you have a choice when the other side uses a different play book. And Presidents early in their terms often do have a choice—even if they don’t have a majority in either or both houses—so long as they can persuade Congress that they have a mandate, or create political conditions such that Congresspeople are unwilling to cross the President (think about why so many Democrats voted for Bush tax cuts).
Clinton exposed the mushiness of his political spine and his inability to use what political capital he had in the first days of his Presidency when he backed down on gay rights in the military. The signal to Congress was clear—if the guys who have a legal duty to salute and obey their commander in chief could roll the guy, there was no reason at all to give him an inch. He reaped the reward in the health care debate (OK, there were other good reasons [can you say “IRA”?] why it died, too). Clinton rarely if ever punished his enemies in Congress. He wasn’t good enough at rewarding his friends, either. But that doesn’t have to be the script for Kerry.
Suppose Kerry wins by a landslide — it could happen. Suppose he runs a campaign which is about restoring honor and decency to the White House, about repudiation of torture, sleaze, special interests, and, say, his limited health care plan. There’s no reason to compromise on whatever he makes his signature issues. Certainly there’s no reason to surrender preemptively now, before the votes are counted. Plenty of time for compromises later.
That said, if there issues where Kerry genuinely has a wedge in the Republican party, such as deficit reduction, by all means campaign on it and use it. But don’t give up stuff we care about—until January at the earliest.
Hiibel lost today, 5-4, but on narrower grounds than you’d guess from reading the case summary which says baldly that he lost on both 4th and 5th Amendment grounds. It’s pretty much a disaster on the 4th, but the 5th is only a part disaster. Most importantly, the Court punted on the issue of whether the 5th Amendment would apply if the suspect really had something to hide. Justice Kennedy’s majority opinion says that since Hiibel had not only nothing to hide but no reason to think he did, he can’t take the 5th.
Of course there’s a catch-22 there: if you can only assert the 5th when you are guilty, or near guilty, or reasonably fearful you are guilty, that suggests the cops ought to be investigating you, which pretty much undermines the privilege.
But at least the issue survives, however mangled, for another day.
The dissents are here and here.
One down, six to go….
Update: I forgot to mention that although the media will say the case states that “police can require IDs” what it actually states is that legislatures can require suspects to tell police their names (not ‘show ID’—the majority states that the statute at issue is satisfied by an oral statement) when the police have a reasonable suspicion that a crime has been committed, the person is relevant, and are investigating it. The distinction will undoubtedly be lost on the ground, and erased by subsequent cases, but it’s there for now.
As is commonly the case, the Supreme Court has left most of its major decisions for the end of the term. This year, however there are a greater number of important cases, with more major consequences, than usual. Some will likely be decided today or tomorrow.
There are seven cases I’m watching with particular interest.
1. Cheney v. U.S. District Court has to do with the Congress’s powers to force disclosure by the Executive, in this case who attended Vice President’s Cheney’s secret meetings with oil executives in which they mapped out US energy policy. A finding for the Executive would advance the Royalist vision of the executive; a finding for Congress would preserve the status quo, or maybe eliminate some doubt about whether Congress really has the authority it has claimed for at least a generation. There are also many ways to split the baby. [Decided 6/24]
2. Ashcroft v. ACLU is a First Amendment challenge to the Child Online Protection Act. There’s some justice on both sides, but were the court to rule that web publishers must require their readers to prove their age before being allowing them to view any web pages that might infringe the vague “harmful to minors” standard, it would transform the Internet into gated communities…or drive web sites abroad. Again, there are ways the court could punt, too, and I wouldn’t be shocked by yet another remand in this torturous case. Unfortunately, the Supreme Court has a tendency to lose patience at some point with cases that bounce up and down and try to decide them. That could be ugly.
3. I’ve written previously about Hiibel v. 6th Judicial Dist. Court of Nevada, calling it a case to watch. I’m watching this one with particular interest, since it will have so much impact on any potential US law on national ID cards. [Decided 6/21]
The biggest cases, however, have to do with four wars: the War on Drugs, the War on Terror, the War in Afghanistan and the War in Iraq.
Of these cases, three will help define how decent a country we are. But one, the most important of all, will decide whether or not we are still a free country. Sound melodramatic? I wish it were.
4. If the US invades a foreign country, kidnaps a foreign national, drags him back to the US to try him on charges of aiding the murder of a US DEA agent, but it’s all a ghastly mistake and he’s acquitted for lack of evidence, can he sue for damages and false imprisonment? If the relevant statute applies to domestic conduct only, do we look to where the kidnaping happened (Mexico) or where it was planned (Washington) as the relevant place for deciding if the statute applies? Those are some of the questions in Sosa v. Alvarez-Machain and U.S. v. Alvarez-Machain. Another is the Royalist claim that Congress lacks the authority to make rules restricting the Executive Branch’s kidnaping of foreigners abroad on the theory that this would infringe the President’s foreign affairs powers, and harm the War on Terrorism.
5. Rasul v. Bush and Al Odah v. U.S put the decency and Presidential power issues in starker terms, as they challenge the claim that our government can create an anything-goes zone in Guantanamo Bay, free from any judicial interference or review—even a writ of habeas corpus—a writ which can only be suspended in wartime, and which has not been suspended since the Civil War. An underlying issue is the extent to which the US Navy station in Guantanamo is inside or outside US jurisdiction given that Cuba retains formal sovereignty—but not other power or control whatsoever so long as the US uses the territory for a naval base. Prior relevant posts on these cases in my Guantanamo section, especially these:
6. Then there’s the odd case of Hamdi v. Rumsfeld. Hamdi is a US citizen captured in Afghanistan, some disputed distance from if not actually on the field of battle. Our government labeled him an “enemy combatant,” said he had neither the rights of a US citizen nor of a POW, and has him on ice in solitary, in a military prison. It has not charged him with a crime, and claims no duty to do so. Here there’s no question about jurisdiction for the a writ of habeas corpus since Hamdi is now in the US. What’s at issue is whether the government’s uncorroborated statement that Hamdi was “affiliated with a Taliban military unit and received weapons training” (note: not even ‘took up arms against the US’!) is unquestionable and final, or if Hamdi gets a day in court. Again, the case raises question about the extent of executive power in “wartime”—especially since the War on Terror is a “war” that likely has no ending point.
I think all the cases above matter a great deal. A bad decision in any of them — and given this court one has to expect some bad decisions in some of them — will make this country less free, less self-governing, or less decent. But none of these would be fatal to our democracy. The harms Hiibel might do could be undone by legislation; Hamdi perhaps less so, but at least the untrammeled hunting license it would create would only apply to US citizens abroad in, one hopes, battlefield or near-battlefield conditions. But Padilla is different.
7. I don’t think the public really understands how much is at stake in Rumsfeld v. Padilla. I’ve written about it many times, but only recently worked out that the issue is even graver than I previously understood.
The basic question in Padilla is very simple: can the federal government grab a citizen off the street and hold them in a military prison without charging them with a crime, without giving them a hearing or a trial, without access to lawyers, family, friends. And, can it do it indefinitely. If the answer is yes it can, then our citizenship is devalued to nothing better than that of the citizens of Argentina during their military dictatorship, a period in which thousands disappeared into military jails, many never to emerge.
Does that sound over-wrought, given there’s only one person so far, and he hasn’t by all accounts, been tortured (other than being confined in solitary with no prospect of emerging) or killed? I don’t think so for two reasons.
First, we don’t call them “precedents” for nothing. If we set the precedent that people can be grabbed off the street, next time Ashcroft, or some future Ashcroft, or some horrible cross between Nixon, John Adams and Burr, won’t bother going through the civilian justice system at all (which is how Padilla’s case got attention — he was first held as an ordinary criminal, and it was only when the government realized it didn’t have the evidence to try him that they decided to reclassify him as an enemy of the state illegal combatant, and put him in the brig). Next time, whenever that is, the victim will just vanish.
That’s bad enough. But I don’t think I understood how much was a stake until I read the Torture Memos. Those memos claim the right to legally inflict hideous intentional pain — what I and most people would call torture — on enemy combatants. That’s right—on people whom this administration considers equivalent to Padilla. So the US government is not only asserting the right to Disappear people, but to torture them in secret as well.
It seems government lawyers have been having cold feet about the likelihood that the Supreme Court will endorse this argument. (Law clerks blabbing? Lawyers realizing how evil their arguments are? Cynics thinking the Justices will be influenced by the Iraq torture headlines?) And well they should, as it is despicable. It deserves to lose 9-0, although no one I know is bold enough to predict that will actually happen, myself included. Yet any vote in favor of the government’s arguments is a vote for authoritarian government at best, and a blow to our freedom greater than anything even all the other cases above together could manage.
Were Padilla to lose, it would blow a hole in the Constitution, one that would take a constitutional amendment to fix. I am confident the Supreme Court will not take us there, but if I’m wrong about that, it’s the start of a long, long fight.
Now that the Supreme Court is getting ready to rule any day now on a case in which a key part of the US case is the incredible military value of the Guantánamo Detainees, what do we learn…what we suspected…U.S. Said to Overstate Value of Guantánamo Detainees:
… an examination by The New York Times has found that government and military officials have repeatedly exaggerated both the danger the detainees posed and the intelligence they have provided. …
The problems of collecting information about the detainees have also hampered their screening for possible release. As a result, some of the men are being held apparently as much for what officials do not know about them as for what they do.
Officials said they had cautiously vetted the 146 detainees who have been freed, including the 16 who had been transferred to the custody of their home governments. Even so, at least a handful of serious mistakes have already been made.
New accounts from officials in Afghanistan and the United States indicate that at least 5 of the 57 Afghan detainees released have returned to the battlefield as Taliban commanders or fighters. Some of the five have been involved in new attacks on Americans, officials in southern Afghanistan said, including a notorious Taliban commander, Mullah Shahzada, who was reportedly killed in a recent accident.
American and foreign officials have also grown increasingly concerned about the prospect that detainees who arrived at Guantánamo representing little threat to the United States may have since been radicalized by the conditions of their imprisonment and others held with them. …
Senior military officials now readily acknowledge that many members of the intelligence team initially sent to Guantánamo were poorly prepared to sort through the captives. During the first half of 2002, they said, almost none of the Army interrogators had any substantial background in terrorism, Al Qaeda or other relevant subjects.
One Army intelligence reservist had previously been managing a Dunkin’ Donuts. Many younger Army interrogators had never questioned a real prisoner before. As in Afghanistan, interrogators at Guantánamo asked the same basic questions again and again, many former detainees recalled. …
Oh, just read the whole thing.
I happen to think the bar exam is a little silly. I happen to think that the division of the Union into 54 or more jurisdictions that keep out lawyers from elsewhere is anti-competitive. I also understand the rules we have are formalities I better take seriously or I am in trouble, and make sure to renew my NY and DC bar memberships as soon as the notices come in — just to make sure I don’t misplace them.
Looks like DC Circuit nominee Thomas B. Griffith didn’t get that last part, leading the Washington Post to report that Judicial Nominee Practiced Law Without License in Utah.
Fundamentally, this is just careless. But it’s the sort of carelessness in a lawyer, given our existing rules, that rises to pretty serious negligence. It suggests corner-cutting, or an attitude of being above the rules, or just general disorganization … any of which I think is sufficient reason to reject even an otherwise qualified nominee. Furthermore, practicing law without a license is usually a fairly serious offense in most states. In this case, though, there may be a dispute about the extent to which Mr. Griffith actually engaged in authorized practice or instead managed to cover himself with local counsel.
Unauthorized practice is a subject near and dear to my heart, as I practiced international law for three years in the London office of a US firm, without an English law degree and without being either a solicitor or barrister. Unlike the US, the UK allows that — the offense there is holding yourself out as something you are not. But even so, to the great amusement of my English colleagues, I refused to sign any letters that contained opinions on English law, even if I had done all the research and drafted them. My English supervisors signed them, laughing all the while at my American formalism and punctilio.
Of course, Republicans, who preached so much about the need for exacting regard for state formalies during the recount period in the last Presidential election, will undoubtedly be the first to take a similar approach, and to say that this nomination should not go forward.
(And I have a bridge to sell you.)
One thing I hear a fair amount1 is people saying that since the Iraqis/Arabs/whatevers are so inhuman to “us”, it’s ok, indeed both just and desirable, for “us” to do “whatever it takes” or “give them what they deserve”. I take that to mean that because there are some vicious Islamic terrorist groups out there, and because some Arab governments repress their own peoples, it follows that the citizen-soldiers of our democracy should regress to bestiality either for retribution or deterrence. Neither one of which I find either persuasive or even palatable.
Our country’s history offers a better lesson, documented in a wonderful New York Times story in today’s paper, Enemies in the Heat of Battle, Friends for 60 Years.
The campaign to get the Japanese out of their caves on the islands near Japan was as brutal and vicious as any in the second world war. The Japanese were considered by many to be exceptionally vicious fighters who didn’t always obey the laws of war (albeit more so in other theaters, those in which they had held the upper hand). Everything being said about Iraqis or Al Qaeda today was said about the Japanese sixty years ago, and worse.
Takeo Sato, then a Japanese officer, was part of the Japanese effort to defend Saipan, captured when part of his cave fell in due to naval shelling. He became the prisoner of Marine Lt. John Rich, who ultimately befriended his captive. When fortune found a demobilized Mr. Rich in Japan a few months after the war, he went to the homes of six POWs it had been his job to question, and told their families their sons were still alive. From this sprang an improbable but enduring friendship. Now Rich and his former prisoner, both in their eighties, are revisiting Saipan with their extended families.
It’s hard to imagine that we’ll be reading any stories like this about Iraq in our dotage. And therein lies part of the problem…
1 [Update: Here’s Trent Lott in today’s NYT Magazine:
You recently created a stir when you defended the interrogation techniques at Abu Ghraib.
Most of the people in Mississippi came up to me and said: “Thank Goodness. America comes first.” Interrogation is not a Sunday-school class. You don’t get information that will save American lives by withholding pancakes.
But unleashing killer dogs on naked Iraqis is not the same as withholding pancakes.
I was amazed that people reacted like that. Did the dogs bite them? Did the dogs assault them? How are you going to get people to give information that will lead to the saving of lives?
Charming. (Incidentally the answers to the questions about the dogs are yes and yes.)]
Billmon reports that not only is he back to snark hunting full time, but that there is plenty of snark to go around. (And if there isn’t we can always throw money at the problem.)
Link to great epic poem
Link to snarky software
Link to academic write-up of snark hunting
Link to Hi-test snark
Snark dating??? Must be a joke…
Via Majikthise (nice blog), I find Interviewing with the National Security Agency, which purports to be an inside account of the lengthy process required to get hired by the NSA.
While my opinion of the CIA is pretyy low, my opinion of the NSA is much higher. It’s not just that they have good taste in lawyers or that the folks they send to meetings seem smart and sensible, but that from what one hears their work contributes to US security, and maybe even world peace. (Unlike the CIA, for which I have my doubts about both.)
It isn’t often I agree with Lynn Nofziger, but today is one of those days. Well, mostly. Nofziger muses,
I keep wondering. Was it constitutionally proper for Vice President Cheney to order Air Force jets to shoot down high-jacked passenger planes? Or was he exercising authority that belongs solely to the president.
Yes, the president apparently gave him permission to issue the order. But how did the Air Force generals know? The fact is, they didn’t. they had to accept Cheney’s word.
In this instance and under those particular circumstances it was probably all right. But it seems to me that this sets a dangerous precedent.
In the future what is to prevent an overly ambitious vice president or one who is at odds with the president from picking up the phone and issuing orders which, if carried out could result in the death of the president.
Not possible, you say. Who would have thought the events of nine/eleven were possible? Not likely is better. But not likely events occur every day.
It seems to me that the person who should have issued the order was the commander in chief, President George W. Bush. If he could talk to Cheney he could talk directly to the military, leaving no doubt who was in charge.
I think that was the voice of inexperience at work. I don’t think it will happen again.
The last paragraph strikes me as too charitable, but otherwise, I pretty much agree.
Shorter Eric Soskin, Harvard Federalist Society, writing in Ex Parte:
Given that Iraq had nothing to do with 9/11, Bush’s official statement to Congress (a certification required by law as a precondition for force), that invading Iraq was “consistent with” a resolution that authorized force against “international terrorists and terrorist organizations, including those nations, organizations, or persons who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001” wasn’t “unambiguously false” but just legalistic and misleading—so why is everyone getting so worked up about it?
I think the guy has a future in the OLC if Bush is re-elected.
[Update (6/22): A read writes to complaint about the "re-". Point taken.]
Phil Carter points out that the Patriot Act usefully expands US criminal law jurisdiction to sweep in “crimes committed by or against any U.S. national on lands or facilities designated for use by the United States government”:
Sure enough, Sec. 804 of the USA PATRIOT Act … amends 18 U.S.C. 7, also known as the “special maritime and territorial jurisdiction” statute of federal criminal law, to include U.S. military bases and embassies outside of the U.S. Here’s the relevant text of 18 U.S.C. 7
Of course, this is of no great value to parties wishing to file civil law suits, and the odds that a US Attorney is going to start investigating Guantanamo seem pretty low. Prosecutions at Abu Ghrabi are firmly in the hands of the military justice system, and it’s too soon to tell whether the military honor reflex or the military cover-up reflex will dominate.
But, as noted on Intel Dump, this amendment has borne fruit in the prosecution of a civilian contractor in Iraq for an assault that lead to the death of a CIA detainee. Update: Washiington Post explains the background to the prosecution.
By The Power of Stipulation: I Have The Power!: Belle Warring at Crooked Timber’s demolition of the TABNY scenario is much more enthusiastic than mine.
I am sick and tired of hearing about that ticking nuclear bomb in Manhattan. You know the one. Why? Because, if you let me put my thumb on the utilitarian scales, I can get you to agree that you have an affirmative moral duty to torture a three-year-old child to death.
I will utilitze my mighty powers of stipulation, thusly: the earth is invaded by a race of super-intelligent, but malevolent beings.
Go read the rest.
Brad DeLong has been doing a very very good line in posts directed at “Republican Grownups”. Although something of an endangered species, recent events prove that they are not in fact mythical beasts.
But Brad’s latest, It’s Not too Late for the Grownup Republicans demonstrates why, while he’s a great economist, he’d be miscast as a political scientist:
It's not too late for the grownup Republicans to act. There's still time for the House and Senate Republican caucuses to go to Bush and force his and Cheney's resignations. Then Hastert and Stevens can decline the job, and the presidential succession passes to Colin Powell.
This then gets us a president who:
- is a Republican.
- certainly does not have a smaller chance of winning in November than George W. Bush.
- would in all probability be good at the job.
It's what would have already happened to any political leader in a parliamentary system. It's what the grownup Republicans owe the country. And it may well be to the partisan political advantage of the Republican Party to close down the current Clown Show as quickly as possible.
On the one hand, yes, this would be an optimal solution for the nation, and probably for the Republicans (if you believe as I do that they look increasingly doooooooooooomed in the next election…although ‘a week is a long time in politics’ and the election is not next week).
On the other hand, while Brad’s plan is good for the nation, it is so Not Going To Happen.
1. W is not a listening kind of guy. Any grownup who gets an audience with him will get the Wrath of W, not an attentive audience. And the Bush clan remembers its grudges.
2. Even if W goes, and even if Cheney passes up the chance to have the trappings of power as well as its reality, the chances that the hyper-ideological duo of Hastert and Stevens would (a) swallow all their personal ambition and (b) step aside for Traitor Powell (as they must surely see him) is so small we need a new number to describe it.
Of course, Brad knows this, so I suppose he’s mostly jesting (and the part that isn’t jest is wishful thinking), and by so doing demonstrating what a bind the dwindling band of mostly elderly Republican grownups find themselves in. Their choices are to sit back and do nothing, which is nearly criminal, or to commit party treason for which they will never be forgiven in their lifetimes.
Where are the Republican grownups? Mostly still in hiding.
PS. Why do I say this post shows why Brad isn’t a political scientist? Because he bows in the direction of a parliamentary system. In fact, Parliamentary systems are like Republican-dominated government all the time. No checks and balances even on the good days. Yes, they can depose the irrational leader (e.g. the takedown of Thatcher). But that actually takes a very long time to happen. And parties in those systems often run awful leaders in elections (Michael Foot, William Hague, for example).
Meanwhile, the party majority votes in lockstep for fear of loss of preferment (poll tax!). No thanks.
UPDATE: Drezner has ideas, but they won’t lead to results either…
Back in May we learned of allegations of excessive violence in a CIA-run secret prison and about the CIA’s successful move to exempt itself from any restraints on questioning methods that might apply to the armed forces. (Then we learned about the various Torture Memos, which cast doubt on whether those restraints existed….)
Just yesterday we learned about one, then another, Rumsfeld-approved ‘ghost’ detainee, unpersons, hidden from the Red Cross, in violation of the 4th Geneva Convention. Oh, wait, it’s today now, make that 13 ghost detainees.
It remains unclear how many of CIA prisons exist, how many prisoners they hold or have held, what the casualty rate is, and whether it’s a one-way trip or if people are ever released from them. Until now I had not seen an attempt to list the military prisons either.
Thanks to a report released yesterday, we now have a start on some numbers.
In Ending Secret Detention (.pdf), Human Rights First (formerly the Lawyers’ Committee for Human Rights), compile a list of the US world-wide prison empire, a list dominated by military-run camps in Iraq and Afghanistan.
Consider it a first approximation. It’s still a long list:
AFGHANISTAN
Disclosed
- Collection Center at the U.S. Air Force Base in Bagram.
- Detention facility in Kandahar (an "intermediate" site, where detainees await transport to Bagram).
- Approximately 20 "outlying transient sites" (used to hold detainees until they may be evacuated either to Kandahar or Bagram).
Suspected
Detention facilities in:
- Asadabad*
- Kabul*
- Jalalabad*
- Gardez*
- Khost*
- CIA interrogation facility at Bagram
- CIA interrogation facility in Kabul (known as "the Pit")
*These sites may be part of the approximately 20 "outlying transient sites."
GUANTANAMO BAY, CUBA
Disclosed
- U.S. Naval Base at Guantanamo Bay
IRAQ
Disclosed
- Abu Ghraib (near Baghdad)
- Camp Cropper (near the Baghdad Airport)
- Camp Bucca (near Basra)
- Nine facilities under division or brigade command
Facilities run by military divisions:- 1st Infantry Division DIF (Tikrit)
- 1st Marine Expeditionary Force DIF (Al Fallujah)
- 1st Cavalry Division DIF (Baghdad)
- 1st Armored Division DIF (Baghdad)
- Multi-National Division-South East (Az Zubayr)
Facilities run by military brigades:
- Dayyarah West (Multi-National Brigade - North)
- Tal Afar (Multi-National Brigade - North)
- Al Hillah (Multi-National Division - Center South)
- Wasit (Multi-National Division - Center South)
In addition, there are a number of "brigade holding areas in division sectors" where detainees may be held up to 72 hours before transfer to Division facilities.
Ashraf Camp. Ashraf Camp is a detention facility for Mujahideen-E-Khalq (MEK), an Iraqi based organization seeking to overthrow the government in Iran. Ashraf Camp was disclosed as a detention site for MEK detainees in February 2004, but as of June 11, 2004, the Coalition Press Information Center (CPIC) refused to discuss the status or location of the MEK detainees.
PAKISTAN
Suspected
- Kohat (near the border of Afghanistan) Alizai
DIEGO GARCIA
Suspected
- United States and United Kingdom officials deny repeated news reports indicating that at least some individuals are being detained on the British possession of Diego Garcia, including, at one time, the leader of the Jemaah Islamiyah, Hambali (Riduan Isamuddin).
JORDAN
Suspected
- Al Jafr Prison (CIA interrogation facility)
UNITED STATES
Disclosed
- Naval Consolidated Brig (Charleston, South Carolina). This facility is where the U.S. Government is detaining at least three individuals as "enemy combatants": two U.S. citizens, Jose Padilla and Yaser Hamdi, as well as a Qatari national residing in the United States, Ali Saleh Kahlah al-Marri.
Suspected
- U.S. Naval Ships: USS Bataan and USS Peleliu.
The Report — which is really excellent by the way — also takes a stab at estimating how many people are being detained in these camps. Big numbers in Iraq, Guantanamo, and several hundreds here and there as well.
The Report concludes with some sensible recommendations to the Administration, although there’s not a bat’s chance in hell it will adopt them:
Human Rights First … calls on the Bush Administration to take the following critical steps:
1. Disclose to Congress and the ICRC the location of all U.S.-controlled detention facilities worldwide, and provide a regular accounting of: the number of detainees, their, nationality, and the legal basis on which they are being held.
2. Order a thorough, comprehensive, and independent investigation of all U.S.- controlled detention facilities, and submit the findings of the investigation to Congress.
3. Take all necessary steps to inform the immediate families of those detained of their loved ones’ capture, location, legal status, and condition of health.
4. Immediately grant the ICRC unrestricted access to all detainees being held by the United States in the course of the global “war on terrorism.”
5. Publicly reject assertions by administration lawyers that domestic and international prohibitions on torture and cruelty do not apply to the President in the exercise of his commander-in-chief authority.
6. Investigate and prosecute all those who carried out acts of torture and other cruel, inhuman or degrading treatment in violation of U.S. and international law, as well as those officials who ordered, approved or tolerated these acts.
7. Publicly disclose the status of all pending investigations into allegations of mistreatment of detainees and detainee deaths in custody.
(News account of the report spotted via the Yin blog.)
Bruce Schneier is one of life’s cool people and the author of Applied Cryptography, the book that introduced me to serious crypto. It took me almost a week to work through it, but I was hooked.
Bruce also does a newsletter on crypto and security more generally. The current issue of the Crypto-Gram has an intriguing item on the mystery of Chalabi and the Iraninan codes. Recall that the US is suppposed to have learned somehow that Chalabi told the Iranians we’d broken their code, possibly because the Iranians themselves mentioned this (disinfo??) in a communication they may have known the US could read:
So now the NSA’s secret is out. The Iranians have undoubtedly changed their encryption machines, and the NSA has lost its source of Iranian secrets. But little else is known. Who told Chalabi? Only a few people would know this important U.S. secret, and the snitch is certainly guilty of treason. Maybe Chalabi never knew, and never told the Iranians. Maybe the Iranians figured it out some other way, and they are pretending that Chalabi told them in order to protect some other intelligence source of theirs.
…
If the Iranians knew that the U.S. knew, why didn’t they pretend not to know and feed the U.S. false information? Or maybe they’ve been doing that for years, and the U.S. finally figured out that the Iranians knew. Maybe the U.S. knew that the Iranians knew, and are using the fact to discredit Chalabi.
The really weird twist to this story is that the U.S. has already been accused of doing that to Iran. In 1992, Iran arrested Hans Buehler, a Crypto AG employee, on suspicion that Crypto AG had installed back doors in the encryption machines it sold to Iran — at the request of the NSA. He proclaimed his innocence through repeated interrogations, and was finally released nine months later in 1993 when Crypto AG paid a million dollars for his freedom — then promptly fired him and billed him for the release money. At this point Buehler started asking inconvenient questions about the relationship between Crypto AG and the NSA.
So maybe Chalabi’s information is from 1992, and the Iranians changed their encryption machines a decade ago.
Or maybe the NSA never broke the Iranian intelligence code, and this is all one huge bluff.
In this shadowy world of cat-and-mouse, it’s hard to be sure of anything.
Cryptographers are often great people. Counter-intelligence people tend to be professional paranoids, and some are quite mad, because even they can’t be sure…
Balkinization today:
The torture memos, I firmly believe, show the corrupting influence of power, and the desire to advance one’s political career by casting aside professional pride and telling one’s superiors that they can do whatever they like, no matter how base or unjust it may be. In the Bush Administration, ambition and syncophancy have trimphed over professionalism, sound judgement and moral seriousness. The corruptions of power have brought us to a sorry spectacle in which intelligent lawyers, many with impeccable credentials, have argued vigorously for an Imperial Presidency that is above the law and for the right to abuse and torture fellow human beings. This failure of moral imagination and professional scruple makes the participants unfit for judicial office, and no one should hesitate in saying so. Put another way, if the torture memos have made these very bright and talented lawyers radioactive, it couldn’t have happened to a nicer bunch of guys.
It’s probably too late to do anything about Bybee, alas. There seems to be a pretty strong tradition that after-confirmation discoveries of anything that isn’t prosecuted don’t count. See, e.g., Rehnquist .
On balance, and even though I don’t like how it works here, I regret that I think this political stare decisis may be a good rule—do we want every litigant, or disappointed litigant doing oppo research on the judge? Furthermore, I think it unlikely that non-criminal pre-confirmation misdeeds meet the high bar set by the Constitutional impeachment requirement of “High crimes and misdemeanors.” (Perjury during a confirmation hearing would count because that’s criminal, but there’s no reason to believe Bybee would lie about it had anyone asked.)
I think that during his confirmation hearings, Bybee legitimately claimed that the content of his legal advice were covered by privilege. But I think his personal views were fair game. Unfortunately he dodged the few questions about this stuff during his confirmation hearings.
In a comment to my earlier item, The Disappeared, Cecil Turner asks why I called the ‘ghost’ detainee in question a ‘confirmed POW’. And, re-reading the article I have to say that he’s basically right. The New York Times didn’t tell us much about the conditions under which the unnamed prisoner was captured, or what his citizenship was, so it seems I jumped to conclusions. And, in fact, I just found this recent Reuters article, Rumsfeld Acknowledges Hiding Iraqi Prisoner which says the detainee is an Iraqi civilian, not a POW.
That doesn’t change the bottom line as much as you might think, however. As a civilian internee, he has rights too, under the Fourth Geneva convention, which also don’t appear to have been observed. The best case for the US might be Art. 5 of 4th Geneva:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with security of State or Occupying Power as case may be.
While this might justify stopping letters home, it doesn’t justify hiding the detainee’s existence from the Red Cross, or failing to give him an ID number, or deporting him (cf. 4th Geneva, Art. 76: “Art. 76. Protected persons accused of offences shall be detained in the occupied country.”). Also, it would be surprising to hear the US argue that the security situation in Iraq, which we’re usually told is so greatly improved, remains so bad as that the security situation would be undermined by letting the Red Cross visit him. Art. 143 says, “Such visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure. Their duration and frequency shall not be restricted.” — have things been that bad all along?.
Of course, for its purposes the administration may have put him into the black hole category of “unlawful combatant,” but I personally do not accept that this category can be used to remove nationals of Geneva Convention signatory states from the reach of those very encompassing agreements on the unilateral say-so of an administration official. I also remain very highly dubious that this can be done even after a military hearing; in any event in this case there appears to have been no such hearing, not to mention none of the follow-on hearings that might be required if the detainee is classed as civilian being held in special circumstances out of extreme military necessity.
I simply do not accept the assertion that membership, much less suspected or reputed membership, in an international criminal organization like al Qaeda, negates a detainees citizenship and its privileges. And if you think about it, that’s not a precedent we’d like to set for our enemies to use against us.
[Several other commentators have asked why in my original post I called this a ‘technical’ war crime. That’s not a term of art; I just meant by that to suggest that although I believe this conduct is seriously wrong, and violates the US’s international obligations, and might in theory be classed as a war crime, it doesn’t seem to me personally be as evil as, say, raping and killing and frankly it’s hard to imagine that it would form the centerpiece of any very hypothetical international prosecution if the subject emerges unhurt. In the highly unlikely event that any of the US’s conduct towards its prisoners ever were to come before an international body — a procedure limited for the gravest and most serious offenses — it will be because of a substantial pattern of serious violence, injuries, or deaths, not just what is reported so far in the case of this particular ‘ghost detainee’.]
The school’s email is working better today, but I’m wary. Very wary.
Gmail seems like one possible solution to my email woes. I was sent an offer to join a few weeks ago, but dithered so long over choosing a screen name that the offer lapsed. Now I’m re-motivated, and Constantin Basturea kindly sent me a URL to activate an account. But now there’s a new problem: I just read the license terms.
If you read the program policies to which assent is required (along with the privacy policy and terms of use), you find in there a representation that I do not think I can make in good conscience. I’m asked to agree that I will not,
Reformat or frame any portion of the web pages that are part of the Gmail Service
The trouble is, like everyone else I would plan to view my gmail through a browser. Sometimes it’s in a small window. Sometimes it shows text only and no graphics, sometimes all sorts of odd things happent to my desktop, some of them even intentional. Sometimes I have small text, sometimes bigger. And let’s not even talk about the ad blocker…
If this were a prohibition on publishing Gmail content to others in a transformed form, that might be less of a problem, although you have to wonder what this means if I forward the text of an email—do I have to include the ads? What if I only quote a paragraph in a paper I’m writing? But the text quoted above reads as a limit on how I display it to myself, and one which it may be impossible for me to comply with since all browsers “reformat” web pages according to my and the programmer’s instructions.
I would communicate this concern directly to Gmail, indeed in further correspondence no-good-deed-goes-unpunished Constantin Basturea even gave me a URL to use to submit the query…but it requires you have a gmail account to write to them.
Today’s bombshell is in the New York Times, Prison Abuse: Rumsfeld Issued an Order to Hide Detainee in Iraq.
Let’s count the shockers (we can still be shocked, can’t we?) and estimate the fallout.
Shockers:
1. Rumsfeld (at the CIA’s request—we’ll get to that), ordered what seems at least a technical war crime: putting a confirmed POW in solitary and hiding him from the Red Cross. [Update (6/17): Oops. Not a confirmed POW, a civilian detainee — see Cecil Turner Has A Point.]
2. It’s not a unique case; there is/was a class of “ghost detainees”—disappeared people. This from a country that (with some justice) tied itself up in knots over the fate of its own POWs and MIAs in Vietnam.
3. In addition to being immoral (we knew that), our leaders are not just partially (we knew that) but totally incompetent: having put this guy on ice because he was too important to expose to the Red Cross and so desperately needed to be softened up, the system forgot all about him:
Seven months later, however, the detainee - a reputed senior officer of Ansar al-Islam, a group the United States has linked to Al Qaeda and blames for some attacks in Iraq - is still languishing at the prison but has only been questioned once while in detention, in what government officials acknowledged was an extraordinary lapse.
“Once he was placed in military custody, people lost track of him,” a senior intelligence official conceded Wednesday night. “The normal review processes that would keep track of him didn’t.”
The detainee was described by the official as someone “who was actively planning operations specifically targeting U.S. forces and interests both inside and outside of Iraq.”
But once he was placed into custody at Camp Cropper, where about 100 detainees deemed to have the highest intelligence value are held, he received only one cursory arrival interrogation from military officers and was never again questioned by any other military or intelligence officers, according to Pentagon and intelligence officials.
Things we know already, and that this incident reminds us:
4. Abu Ghraib may be the tip of an iceberg. There are a lot of other military prisons to worry about both in and out of Iraq. One is Camp Cropper, at or near the Baghdad Airport.
5. Even worse is a network of secret CIA prisons in various undisclosed locations, run by people who take the view that none of the rules apply to them. We have no idea how many of these prisons exist, how many prisoners they hold or have held, what the casualty rate is, and whether it’s a one-way trip or if people are ever released from them.
Fallout
I. You would think that Rumsfeld would have to resign unless somehow they can make Tenet the fall guy for this. But I am dubious. Yes, this is much more direct and personal authorization — a real smoking gun — than what has come out so far in the torture cases, although there’s serious circumstantial evidence accumulating there too. On the other hand, while putting ‘ghost’ detainees in secret solitary is illegal, and technically a war crime, the effect on the detainees not nearly as horrible as what seems to have happened at Abu Ghraib.
II. People like me, who have been highly dubious about the US acceding to the jurisdiction of the International Criminal Court due to the real and troubling encroachment on our traditional conception of national sovereignty are really going to have to think long and hard about changing sides on this one, or at least accepting jurisdiction with regards to some of our treaty obligations. The last few months argue strongly that the US cannot always be relied on to observe its international law obligations as much as I would have thought and hoped.
III. At some point some of this stuff has to stick to Rumsfeld’s boss. Are we there yet?
Talkleft, which just has tons of good stuff every week, has two links of particular interest.
First, Iraqi Top General Complains About Confinement Conditions, a link to a Washington Post story which lays out facts tending to prove that the US is holding a top Iraqi general, and admitted POW, in conditions that violate the Geneva Conventions. The speculation is that the General wouldn’t give the answers sought about Iraqi WMD’s which, after all, we know are out there somewhere.
The second link is to a nice piece of of torture-related surrealism by ex-Phythonian Terry Jones, writing in the Guardian about how This won’t hurt much.
Turns out it hurts even when I don’t laugh.
I’ve been a fan of Molly Ivins for many years, but in yesterday’s column she subtly misquotes me and gets the name of my employer wrong. Should I care? And, living in a blogger’s glass house, dare I care?
Here’s what happened. Salon.com recently ran an item by Geraldine Sealey in its “War Room” which said, in part,
On his excellent blog, University of Miami law professor Michael Froomkin analyzes the Pentagon torture memo, or at least the redacted version published on Wall Street Journal Online. His reaction: “If anyone in the higher levels of government acted in reliance on this advice, those persons should be impeached. If they authorized torture, it may be that they have committed, and should be tried for, war crimes. And, as we learned at Nuremberg, ‘I was just following orders’ is NOT (and should not be) a defense.”
And, in my item on the Bybee Memo I wrote,
the lawyers who wrote this memo were guilty of a lack of moral sense, and extreme tunnel vision fueled by a national panic. The people who asked them to write it, who read it, and especially any who may have acted on it — they’re people who really have the most to answer for.
Somehow, by the time Ms. Ivins was done with it, this became,
As Professor Michael Froomkin, of Miami University, told Salon magazine: “The lawyers who wrote it are guilty. The people who asked them to write it, who read it and who may have acted on it, they’re the people who really have to answer for it.”
So there are three mistakes packed in there:
OK, none of these is that big a deal, although the journalists I know best would (I think) set themselves a higher standard of accuracy. Nor, I suppose, would this sort of transformation be unheard of in the blog world, although we have hyperlinks to keep us more faithful to sources.
But in the academic legal publishing world we footnote everything and try real, real hard to get it just right (and even there, being human, fail sometimes). We do, however, have the luxury of time, and often the additional luxury of various forms of smart and somewhat-trained student research assistants and editors. The absence of time for detailed checking and reflection (not to mention the absence of smart assistance) is one reason why it’s hard sometimes to feel comfortable about blogging about current legal events except the narrowest subset of things I know best—it’s writing without the safety net of time and reflection. Timeliness has a value, but to the academic in me that hurrying sometimes feels dangerous and wrong. And it means the odds are much greater (approaching certainty?) that I will be wrong sometimes when blogging in ways I would never be in academic writing.
Glass house indeed.
Even judges get fan sites? Well, at least one witty, intelligent, highly readable, and arch-conservative judge does: The Unofficial Judge Alex Kozinski Site (spotted via Tim Bishop)
What’s next, a fan club?
Oh, wait, maybe there is one.
My blogreader is a server-side program called Feed on Feeds which makes up in power (a lot) what it lacks in elegance (there isn’t much). The other day up popped an announcement of version 0.1.4, and I was planning to upgrade from 0.1.3. But now comes an announcement of version 0.1.5 with what Steve Munutillo, the programmer, says is has a feature that I suppose got left out of 0.1.4: “it works”. You should forget that 0.1.4 ever happened, and use 0.1.5..
Maybe I’ll put off the upgrade a couple more days.
My e-mail account at work, to which all other email is funneled, is very seriously messed up.
Three facts:
1. A student tells me she’s been ‘e-mailing me all semester’ and justifiably complains that I didn’t answer. I try to answer student email as top priority, but have no recollection of any of the email. Nor is any of it in my extensive saved mail file.
2. An invitation to a major conference I’d really like to go to was e-mailed to me several weeks ago, I never got it, and they assumed I was not interested. I heard about it by accident yesterday.
3. Today, email both to and from me is taking random numbers of extra hours to turn up, sometimes in double digits. If it does turn up.
Some Observations:
● Numbers one and two may be due to my roll-your-own procmail spam filters. But I’m getting well over a thousand spams a day and have to do something. I’ve asked the law school to upgrade the Unix box to a version of Perl that’s less than four years old so I can install something like Spam Assassin, and they are working on it. No ETA, and if experience is any guide they’ll roll it out about a week before (or after) it’s obsolete.
● Number three, the random delays, is new. Here is a fragment from a sample header: