Discourse.net

The Supreme Court Has Spoken

Quick summary of the theory underlying Citizens United v. FEC summarized in one photo:

Thus, just like a person's independent expenditures on politics can't be regulated, so too with a corporation's.

This is partly Daniel Webster's fault. And partly a power grab.

Law on the Ground

Getting rights on paper is only the first round of an endless battle.

Here is the experience of a qualified bidder on a local government contract trying to photograph potential job sites which happen to be Miami-Dade Metro stations:

Transit Miami, Wacken-“Nuts”, Reflections on the First Amendment.

At the first station I had no problem doing my work, I took my photographs and moved on. As I walked up to the second station I was greeted by two power-tripping guards that quickly welcomed me into the reality of the horrors of governmental and private company unions and their inane bureaucracies. To be clear, at all times I had in my possession the plans and contract book from Miami-Dade County stating the job description, locations, and purpose. I also identified myself and my intentions at every stop. It was at this stop where the debate and discussion on one’s constitutional right to photograph in public blossomed. I spent about one hour trying to get into the station to photograph the area, which I was not allowed to do.

…

At subsequent stations I already knew what to expect. Once again, I approached the station and introduced myself and explained myself. This guard appeared to be calm and wise, at least I thought based on his calm, non-emotional, respectful tone of voice. All that changed after he began talking about his “interpretations” on the law.

At this point, I was just so amazed and shocked that I wanted to hear more on his rationale. This guard had some of the best quotes of the day. Some of them are: “Miami-Dade Transit is not Public,” “The Constitution does not apply on Miami-Dade Transit grounds,” “The County Ordinances supersede the Constitution,” and the best justification for those lovers of the expansion of the police state…”9/11,” yes he said, “Now, after 9/11 your constitutional rights are different.” At this point, I was in shock that a Wackenhut Security Guard was stating this was the policy of the county and Wackenhut. He spoke with so much confidence and belief in the absurdities he was uttering that I said to myself, “This country is doomed.”

No, but maybe we need more lawyers?

The GOP Has Troubles With Reality

Mike Stark has turned his talent for ambush journalism to Republican Congressmen. He asked them if they personally believed that Barack Obama is legally entitled to be President of the United States. Almost none of them would affirm this belief on camera. Watch Birthers on the Hill and be amazed, disgusted, or worried, depending on your emotional fortitude.

Incidentally, anyone who is unaware of the literal incoherence of the Birther arguments need look no further than this appearance of Birther spokesperson, right-wing radio host, and former Watergate conspirator and felon G. Gordon Liddy on Hardball:

Chris Matthews's best move here wasn't confronting Liddy with documentary evidence he is wrong — mere documents failed to move him, as they failed to move so many of the crazies in the Birther cult — but rather his spinning the Birther view to its logical conclusion: If, as they argue, President Obama was born abroad, not only is he ineligible to be President as he's not a 'natural born citizen' but the President is an illegal alien who should be deported since he's never been naturalized and doesn't have a visa. Liddy swallowed that, but this is so crazy that it's going to turn the press — except maybe Lou Dobbs who conceivably might lose his job over this — against them.

Note also that Liddy's reference to a “deposition” is a fiction — the actual source of this canard is a mistranslation in an interview.

More here and here if you need it.

Back when I lived in England, both sherry-drinking and beer-drinking intellectuals in the UK used to deride the British Tory part as “the stupid party”. Today British intellectuals boast that whatever their Tories may be, they're not as crazy as the US Republican party. They don't give people with burglary convictions radio shows in the UK either.

Defending the Constitutional Right to Be Anonymous

Today through Thursday I'm participating in an online symposium at Concurring Opinions in which a whole list of us have been asked to comment on Danielle Citron's article Cyber Civil Rights.

There are already a large number of interesting contributions there, and I've just added mine: CCR Symposium: The Right to Remain Anonymous Matters. It may be controversial.

Lessons from the Identity Trail Published Today

Lessons from the Identity Trail (Ian Kerr, Valerie Steeves & Carole Lucock, eds.), a whale of a book, is being published today.

During the past decade, rapid developments in information and communications technology have transformed key social, commercial, and political realities. Within that same time period, working at something less than Internet speed, much of the academic and policy debate arising from these new and emerging technologies has been fragmented. There have been few examples of interdisciplinary dialogue about the importance and impact of anonymity and privacy in a networked society. Lessons from the Identity Trail: Anonymity, Privacy and Identity in a Networked Society fills that gap, and examines key questions about anonymity, privacy, and identity in an environment that increasingly automates the collection of personal information and relies upon surveillance to promote private and public sector goals.

This book has been informed by the results of a multi-million dollar research project that has brought together a distinguished array of philosophers, ethicists, feminists, cognitive scientists, lawyers, cryptographers, engineers, policy analysts, government policy makers, and privacy experts. Working collaboratively over a four-year period and participating in an iterative process designed to maximize the potential for interdisciplinary discussion and feedback through a series of workshops and peer review, the authors have integrated crucial public policy themes with the most recent research outcomes.

The book is available for download under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 Canada License by chapter. Hard copies are available for purchase at Amazon & at Oxford University Press.

I've got two chapters in it, Identity Cards and Identity Romanticism and Anonymity and the Law in the United States. And I'm very pleased to be in such wonderful company — it was a valuable conference full of interesting people and the materials collected here are going to be of interest to people in many of the cross-cutting fields around the world. And the chapters are (painfully) short.

The full Table of Contents, with links to the online versions of the chapters is below. Some chapters won't be released for a few weeks, so keep an eye on the main site for updates.

About this Book
Acknowledgements
Contributors
The Strange Return of Gyges’ Ring : An Introduction

I. Privacy

Introduction to Part I

Chapter 1. Soft Surveillance, Hard Consent: The Law and Psychology of Engineering Consent
by IAN KERR, JENNIFER BARRIGAR, JACQUELYN BURKELL, AND KATIE BLACK

Chapter 2. Approaches to Consent in Canadian Data Protection Law 23
by PHILIPPA LAWSON AND MARY O'DONOGHUE

Chapter 3. Learning from Data Protection Law at the Nexus of Copyright and Privacy
by ALEX CAMERON

Chapter 4. A Heuristics Approach to Understanding Privacy-Protecting Behaviors in Digital Social Environments 187.21 Kb
by ROBERT CAREY AND JACQUELYN BURKELL

Chapter 5. Ubiquitous Computing and Spatial Privacy (available April 22nd)
by ANNE UTECK

Chapter 6. Core Privacy: A Problem for Predictive Data Mining (available April 22nd)
by JASON MILLAR

Chapter 7. Privacy Versus National Security: Clarifying the Trade-Off (available April 22nd)
by JENNIFER CHANDLER

Chapter 8. Privacy’s Second Home: Building a New Home for Privacy Under Section 15 of the Charter (available April 22nd)
by DAPHNE GILBERT

Chapter 9. What Have You Done for Me Lately? Reflections on Redeeming Privacy for Battered Women (available May 6th)
by JENA MCGILL

Chapter 10. Genetic Technologies and Medicine: Privacy, Identity, and Informed Consent (available May 6th)
by MARSHA HANEN

Chapter 11. Reclaiming the Social Value of Privacy (available May 6th)
by VALERIE STEEVES

II. IDENTITY

Introduction to Part II

Chapter 12. A Conceptual Analysis of Identity 154.83 Kb
by STEVEN DAVIS

Chapter 13. Identity: Difference and Categorization 202.97 Kb
by CHARLES D. RAAB

Chapter 14. Identity Cards and Identity Romanticism 341.48 Kb
by A. MICHAEL FROOMKIN

Chapter 15. What’s in a Name? Who Benefits from the Publication Ban in Sexual Assault Trials? 215.82 Kb
by JANE DOE

Chapter 16. Life in the Fish Bowl: Feminist Interrogations of Webcamming (available April 22nd)
by JANE BAILEY

Chapter 17. Ubiquitous Computing, Spatiality, and the Construction of Identity: Directions for Policy Response (available April 22nd)
by DAVID J. PHILLIPS

Chapter 18. Dignity and Selective Self-Presentation (available April 22nd)
by DAVID MATHESON

Chapter 19. The Internet of People? Reflections on the Future Regulation of Human-Implantable Radio Frequency Identification (available April 22nd)
by IAN KERR

Chapter 20. Using Biometrics to Revisualize the Canada–U.S. Border (available May 6th)
by SHOSHANA MAGNET

Chapter 21. Soul Train: The New Surveillance in Popular Music (available May 6th)
by GARY T. MARX

Chapter 22. Exit Node Repudiation for Anonymity Networks (available May 6th)
by JEREMY CLARK, PHILIPPE GAUVIN, AND CARLISLE ADAMS

Chapter 23. TrackMeNot: Resisting Surveillance in Web Search (available May 6th)
by DANIEL C. HOWE AND HELEN NISSENBAUM

III. ANONYMITY

Introduction to Part III

Chapter 24. Anonymity and the Law in the United States
by A. MICHAEL FROOMKIN

Chapter 25. Anonymity and the Law in Canada
by CAROLE LUCOCK AND KATIE BLACK

Chapter 26. Anonymity and the Law in the United Kingdom (available April 22nd)
by IAN LLOYD

Chapter 27. Anonymity and the Law in the Netherlands (available May 6th)
by SIMONE VAN DER HOF, BERT JAAP KOOPS, AND RONALD LEENES

Chapter 28. Anonymity and the Law in Italy (available May 6th)
by GIUSELLA FINOCCHIARO

Amar on Bush v. Gore et al.

Yale Prof. Akhil Amar will be giving a webcasted lecture on "Bush, Gore, Florida and the Constitution" at 10:00am today, sponsored by UF Law.

A Win for the Constitution

Overruled, Rule of Law Returns

The ACLU just announced that Ali Saleh Kahlah al-Marri, the only Bush-era “enemy combatant” being held in military detention on U.S. soil, will be charged as a criminal terrorist and tried for his alleged crimes by the Obama Administration. This is a really big deal, both because it marks a major step by the new Administration to demonstrate that national security does not require us to abandon the Constitution, and also because it gives meaning to President Obama's previous decision to close Gitmo. If the Gitmo detainees were merely transferred from Cuba to U.S. soil, but were then detained here without trail, the President's promise to close Gitmo would have been meaningless.

One more Bush-era cesspool being drained. Plenty left.

Eleventh Circuit Says Miami-Dade Schools May Pull ¡Vamos a Cuba! from the Library Shelves

A three-judge panel of the Eleventh Circuit has today overturned an injunction blocking the Miami-Dade School Board from removing a children's book ¡Vamos a Cuba! from elementary and middle school libraries. The case below was ACLU of Fla, Inc. v. Miami-Dade County Sch. Bd., 439 F. Supp. 2d 1242 (S.D. Fla. 2006).

The district court found, for the purposes of the preliminary injunction, that “the majority of the Miami-Dade County School Board members intended by their removal of the books to deny schoolchildren access to ideas or points-of-view with which the school officials disagreed, and that this intent was the decisive factor in their removal decision.” The court also found “that the School Board’s claim of ‘inaccuracies’ is a guise and pretext for ‘political orthodoxy.’” (52)

The Court of Appeals disagreed. To get to that result required deciding a fairly technical point of law in a highly disputable way, followed by a judgment call on the merits that is perhaps less disputable, but still open to real doubt.

For those who came in late, ¡Vamos a Cuba! (the Spanish version of “A Visit To Cuba”) is a pretty lousy cut and paste of a children's book, aimed at beginning readers ages 4-8. It's one in a series of formulaic picture books about life in foreign countries, and not, apparently, one of the best in this rather unexciting series. (Other countries in this lets-market-to-libraries series include Puerto Rico, Costa Rica, Colombia, Brazil, Cambodia, Egypt, the United Kingdom (plus separate books on England, Northern Ireland, Scotland, and Wales), Canada, Vietnam, Australia, China, Japan, Mexico, Italy, Israel, Ireland, India, Greece, Germany, and France.)

A parent complained about the book presenting a sanitized vision of life in Cuba – it doesn't mention any hardships, communism, or even poverty, as do some other books about Cambodia or Vietnam. The school system conducted a four-level review, each of which recommended keeping the book despite some pretty dumb factual errors such as misidentifying some '60s cave paintings as one of Cuba's 1000-year-old ones.

The Superintendent agreed the book shouldn't be pulled, but proposed putting a sticker in the book that would say

ATTENTION STUDENTS AND PARENTS

This book was purchased by your school as part of a series of books on many foreign countries. Some of the information provided in this book about life in Cuba under that nation’s communist dictatorship is incorrect or incomplete enough to be inaccurate. For an accurate depiction of life in Cuba, Miami-Dade County Public Schools recommends the following books that can be found in this school’s library.

• Cuba for Kids by Ismael Roque-Velasco

The final level of review was the (elected, political) School Board itself. It voted 6-3 to take the series off the shelf. Anyone who lived through that moment here knows that emotions ran high, that some Board members said they felt personally at risk to their safety if they voted “wrong” and that the decision was conducted in charged, political atmosphere. That doesn't mean I can read the Board members' minds – but from contemporary accounts, the circumstantial evidence seemed fairly strong.

The District Court, aware of all this, enjoined the removal on the grounds that the Board's motives were not book quality, but politics, which would be a First Amendment violation. The District Court said:

While the debate was couched in terms of “inaccuracies” contained in the Cuba Books, the real issue was that the Cuba Books were content-neutral and scrupulously apolitical, and did not reflect, as viewed by the majority of the School Board members, the true evil of Castro's government and the oppression of the Cuban people. Thus, the majority was significantly motivated to remove the books because of their disagreement with the content-neutral views expressed in the Cuba Books, essentially the view that “People in Cuba eat, play and go to school like you.”

439 F. Supp. 2d at 1283.

The Eleventh Circuit, 2-1, reversed.

The critical legal move in the decision relates to the standard of review for factual determinations concerning motive.

Ordinarily, motive is a question of fact, found by the trier of fact, and reviewed deferentially under a “clear error” standard by the Court of Appeals – in contrast to legal issues which that court decides de novo. But in this case, the majority argued that it should review the motive question de novo because it decides the case,

“Unlike the question of motive in retaliation cases, motive in this case is not just a preliminary issue. Instead, discerning the nature of the Board’s motive will, under the standard we are assuming applies, determine the plaintiffs’ First Amendment claim.

(Slip. Op, Page 56)

The Court of Appeal majority argued that to defer would be to in effect surrender its appellate power. The substantive legal test on school library book removals (tracing back to Board Of Education v. Pico, 457 U.S. 853 (1982)) is whether School Board “disliked the ideas contained in it and by removal of the book sought to prescribe political orthodoxy or other matters of opinion.” Thus, the Eleventh Circuit is right to say that the motive question more or less decides this case. What's less clear is whether it follows that it gets to reopen the issue. It's an issue that just might make the decision get the Supreme Court's attention were a cert petition to be filed.

Having decided that the standard was de novo review of the motive question, the court then re-examined the (in)accuracy question de novo, and decided that the were enough factual inaccuracies to justify what the School Board did, and that these inaccuracies were in fact the Board's actual motive. In my opinion, the first point is more plausible than the second.

There's a more subtle, but equally important, issue lurking in this decision, although one that is not as cleanly presented as it might be and thus somewhat less likely to get the Supreme Court's attention. For those who see the Board's decision as justified – or justifiable – by the inaccuracies in the book, the critical inaccuracies are not the various small dumb mistakes in this cut and paste of a book. The Court of Appeals majority said,

Whatever else it prohibits, the First Amendment does not forbid a school board from removing a book because it contains factual inaccuracies, whether they be of commission or omission. There is no constitutional right to have books containing misstatements of objective facts shelved in a school library. (51)

Is that quite so obvious? The critical sins in this book are – and the Board was forthright about this – sins of omission. By focusing only on things about life in Cuba that would be familiar to Americans – people eat and go to school – the book left out that which is abnormal in Cuba – rationing, communism, tourist/native economic apartheid and so on.

Can a School Board constitutionally remove a book from library shelves because it thinks it's too one-sided? Presumably not if the one-sidedness is presented as opinion. But what if the claim is that the presentation of the facts is slanted by omission? That, I think is both a hard question and (until now) an open one.

The majority's argument is well summed up in one of its examples,

And what about a book about life in the antebellum South that asserted: “People in the old South ate, worked, and went to school like you do,” neglecting to mention anything about slavery and the millions of human beings who lived and died in bondage? [Board Br. 11] Would we describe that book as “apolitical”? Would a school board be forbidden from removing the book from its library shelves because the book’s distortions were through omissions, or because it went against “politically orthodox views”? Would removal of the book be prohibited on the ground that it was motivated by the book’s failure to contain enough “negative political information” about the pre-Civil War South?

I really do think this is a close question once the book is on the shelf. Pulling it for leaving out important facts undoubtedly available in other books is perilously close to the evil identified by the 4-Justice Supreme Court plurality in Pico: “local school boards may not remove books from school library shelves simply because they dislike the ideas contained in those books and seek by their removal to 'prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.'” Pico, 457 U.S. at 872.

The world is not coming to an end because the School Board is able to get rid of a pretty crummy book. It would be nice, however, not to set a precedent that encourages our School Board – far from a paragon of civic virtue – to get into the book reviewing business.

[Note: this is a very long decision — 177 pages! — and I may amend the preliminary thoughts above once I've had a chance to read it more carefully.]

Take Three As An Amendment to Reason About

In When Is a Search Not a Search? When It’s a Quarter: The Third Amendment, Originalism, and NSA Wiretapping, Josh Dugan has written the most interesting article I've ever read on the Third Amendment to the US Constitution.

OK, it is in fact the only article I've ever read on the Third Amendment, and that alone made it interesting. But there's more.

Here's the key part of the conclusion:

… the Amendment prescribes practical rules for limiting the enforcement power of the most coercive and dangerous organ of government power: the military. The Amendment’s proscription against military enforcement of civilian law is evident in the founding debates and documents and is the best explanation for the Amendment in the larger constitutional scheme. This explanation also frees the Third Amendment from offering a redundant protection already contained in the Fourth Amendment. Far from being irrelevant to contemporary constitutional law, the Third Amendment could have an enormous role to play in today’s constitutional schema. As the military establishment grows and its role confronting terrorism expands within the United States, the Third Amendment provides the proper backdrop against which to analyze those military actions which intrude on an individual’s life and constitute traditional law enforcement functions, such as wiretapping. This test would categorically bar the military from enforcing the law against civilians during peacetime but would allow the military to do so without any further conditions, so long as the activities were approved by Congress, during time of war.

While the structural argument based on comparing the Third Amendment to the Fourth Amendment is on first glance plausible, it's new to me and I have to think about it more before I'm willing to commit myself to accepting it.

I do have to wonder about the history. I don't know enough to form a view as to how accurate it is, and would like to know a lot more about how, if the argument that the Third Amendment's ban on “quartering” was seen as addressing something general about military-civilian enforcement relationships rather than something fairly specific about military intrusion into the home, this reading got so quickly forgotten. Certainly the article's account of Story's position didn't seem to me to support the author's account nearly as much as he seemed to think it did…

But despite these doubts, it's a fun read for constitutional law mavens.

A Footnote on the Oath

I see that President Obama had the Chief Justice re-administer the oath of office (correctly) this time in an 'abundance of caution' following the imperfect recitation of the oath the first time (due to mis-prompting by the Chief during the Inaugural).

I don't think there are in fact four federal judges in the country who would have held that Obama was not in fact the President at all relevant times were the issue to have gone to trial. Even so, I agree that the re-administration of the oath of office was a fairly costless way for Team Obama to pacify the wingnuts and ultra-orthodox strict constructionists who might have been baying at the moon on this issue.

I post now, after it's (almost) all over only to make two points:

• Those commentators (not naming names, sorry) who said the entire issue could never be decided on the merits due to the lack of probable plaintiffs with standing were in my humble opinion simply wrong. Any bill signed by the purported President would not in fact be law if the person signing it were not the office-holder. Ditto for any official act by anyone nominated by a non-President. There would have been armies of people with standing. Which makes me wonder whether Obama, in a further excess of caution, re-signed any first-day documents (such as the Cabinet nominations) post-re-administration of the Oath. In for a penny, in for a pound, I say.

• Other than the fact that it would have cast an unwelcome and unnecessary cloud on a Presidency that has enough to worry about already, it actually would have been a fun case to watch. Since I believe every judge would have been results-oriented on this one, the process of getting to that result might have produced some interesting anti-formalist doctrine that might have had knock-on effects in other areas.

Update (1/22): From Political Animal,

Just for the record, Obama really was president after the first oath, and everything he did yesterday was legit. In 1789, George Washington was president for seven weeks before he'd taken the oath, but he still had all the authority of the office.

That sounds like contemporaneous construction to me.

Cabinet Confirmation Mechanics

I don't usually like to throw questions out to the lazyweb, but this is the first week of classes which is always busy.

So here's my question: the Senate has started a whole round of confirmation hearings for Cabinet and other top appointments by president-elect Barack Obama. But as far as the Constitution is concerned, only the President, not the President-elect, can make nominations to government jobs. The Senate is of course free to hold hearings about whatever it wants, and there is no constitutional requirement for a committee to do anything prior to the full Senate's exercise of its 'advice and consent' power. But I don't see how the full Senate could vote on a nomination without there being an actual official nomination.

Legally, I can see two ways for this to work. Either the incumbent has already made a courtesy nomination, which I think is highly unlikely, or the Senate is front-running on the actual nomination, which will come as soon as Mr. Obama is inaugurated. In the first version, the full Senate can vote any time; in the second version the Senate can't actually vote until January 20, after the nomination officially happens. (There is of course at least one more possibility, which is that the niceties are not being observed. Yet even if there were a transitional statute that applied I don't see how it could trump the Constitutional provisions governing appointments of the leading Officers of the United States.)

NPR, at least, reports that,

Kerry has said he plans to hold a committee vote before week's end, setting up a scenario where the Senate could confirm [Sen.] Clinton before Obama is sworn in Jan. 20, and a new senator named to fill her New York seat.

If that's right, my second scenario is wrong. But then again, maybe that's not right.

Anyone know the actual facts?

Pardon Update (Updated)

Seems like I may have wasted my time writing that pardon post (Bush “Revokes” A Pardon (When Do Pardons Vest?))… The New York Times has a statement from the White House on the pardon revocation:

Based on information that has subsequently come to light, the president has directed the pardon attorney not to execute and deliver a grant of clemency to Mr. Toussie. The pardon attorney has not provided a recommendation on Mr. Toussie’s case because it was filed less than five years from completion of his sentence. The president believes that the pardon attorney should have an opportunity to review this case before a decision on clemency is made.

If we can believe what the Bush administration says (can we?) this suggests pretty strongly that we were at what I called “step one” — nothing had been signed or sealed. In which case, legally, it's a non-issue.

Update (12/26): Brian Kalt argues, with some reason, that maybe I gave up too easy. The key fact — as I suggested half-heartedly above, but couldn't quite bring myself to believe — is that the White House may have been misleading us about whether a formal pardon was actually executed. Here's part of what Prof. Kalt writes,

The anonymous fourth commenter on my original post makes some points that are helpful for untangling all of this. Because pardons are typically issued in big clumps, current practice is for the president to sign a master warrant with all of the names on it, then send it to the OPA, which prepares and delivers individual warrants for the people on the list. But (as the DOJ press release reflected) the master warrant doesn't purport to be an order to the OPA to execute and issue pardons. It purports to be a legal act by the president. As the excellent Pardon Power blog reports, from the NYT, the master warrant begins: “After considering the applications for executive clemency of the following named persons, I hereby grant full and unconditional pardons to the following named persons.” That sounds like an official act to me. My commenter reports that a former pardon attorney testified that, indeed, the master warrant is the legally significant act here. Perhaps that is what underlies the understated comment from former Pardon Attorney Margaret Love (the person who, I think, knows more about presidential pardons than anyone now alive) here, that “it’s not clear to me that [revocation is] as easy to do as all that.”

Enter the statement of the press secretary, introducing the notion that the pardon had not been executed. But the statement doesn't hold up.

Could this be another example of what Brad DeLong says: “The Bush Administration: Worse than You Can Imagine Even Though You Know It Is Worse than You Can Imagine”?

Bush "Revokes" A Pardon (When Do Pardons Vest?)

Extraordinary (in the sense of rare and nearly unprecedented) piece of news today: Bush withdraws 1 of 19 pardons he issued Tuesday.

To a Constitutional lawyer, the interesting question is whether it is even possible to revoke a pardon once it is given. It is long-established that in the eyes of the law, a full pardon makes it as if the offense — not just the conviction — never happened. The Supreme Court said 125 years ago that “the pardon not merely releases the offender from the punishment prescribed for the offence, but that it obliterates in legal contemplation the offence itself.” Carlisle v. United States, 83 U.S. (16 Wall.) 147, 151 (1873). [Note, however, that some courts hold, controversially, that a pardon does not preclude the imposition of attorney discipline based on the underlying conduct, because a pardon “cannot work such moral changes as to warrant the assertion that a pardoned convict is just as reliable as one who has constantly maintained the character of a good citizen.”]

So, pretty clearly, once a full pardon is signed, sealed, delivered, and accepted by the recipient, that's it: you can't take it back. (So called-conditional pardons, which may have a condition precedent are a different animal, but that's not what we're talking about here.)

The AP's story is very scanty on the legally significant facts, saying only that Bush “revoked” a pardon, and then discussing the reasons for the sudden turnaround. That could mean almost anything.

If Bush had not formally signed a pardon document, then there's no legal issue: what's been revoked is an intention to pardon, and the public announcement doesn't create any legal obligation to actually do so. The cases are clear on that point.

But if the President actually signed a pardon, then changes his mind, all of a sudden we're in interesting territory, reminiscent of Marbury v. Madison but involving a completely contrary opinion by Chief Justice Marshall.

Logically there are four steps in a regular (as opposed either a general or conditional) pardon:

1. The President makes a decision.

2. The President signs a pardon, and (perhaps) it is sealed to show it's official.

3. The pardon is delivered to the beneficiary.

4. The beneficiary accepts it.

Everyone agrees that after step four under US law the pardon is unassailable.

It seems to me also that there's basically no debate that by then end of step three, the pardon is final and cannot be revoked, even if the beneficiary hasn't yet decided whether to accept it or not. And, as noted above, after step one, there's nothing to revoke except a legally meaningless promise.

The interesting case — which may or may not exist here, we don't yet know — is whether a pardon can be revoked after its signed (and sealed), but before it's delivered. It doesn't happen very often, but it's not unheard of.

I'd argue that the answer to that question ought to be no — once a pardon is signed and sealed, that's it, the thing is done forever unless the recipient of the pardon rejects it. Here's why: First, persons can be pardoned in absentia, by general proclamation, or even posthumously, in situations where delivery is impossible, or at least unnecessary. (On the other hand, as discussed further below, no one is obligated to accept a pardon; some might see it as an admission of guilt, or in the case of conditional pardons might find the conditions unpalatable.) Second, it would be bad to create a now-you-see-it-now-you-don't pardon that some future President Blagojevich could sign but not deliver, tricking someone into acts of reliance to their detriment.

There is, however, some weighty precedent for the proposition that at least a garden-variety pardon is not complete until delivered. This line of argument originates in this statement of Chief Justice Marshall's in U.S. v. Wilson, 32 U.S. 150, 161 (1833). Marshall, famously, had earlier decided in Marbury v. Madison that an official's commission was valid without delivery, and hence must be delivered even if the President did not want the appointment to go through. But pardons, he argued, were different:

A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him. It may be supposed, that no being condemned to death would reject a pardon; but the rule must be the same in capital cases and in misdemeanors. A pardon may be conditional; and the condition may be more objectionable than the punishment inflicted by the judgment. The pardon may possibly apply to a different person, or a different crime. It may be absolute or conditional. It may be controverted by the prosecutor, and must be expounded by the court. These circumstances combine to show, that this, like any other deed, ought to be brought ‘judicially before the court, by plea, motion or otherwise.’

Similarly, the District Court decision in In re De Puy, 7 F. Cas. 506, 510-11 (S.D.N.Y. 1869) (No. 3814), described in Harold J. Krent, Conditioning the President's Conditional Pardon Power, 89 Cal. L. Rev. 1665, 1704 (2001) as involving:

President Andrew Johnson's offer of a pardon to Jacob DePuy, who had been convicted and incarcerated for violating the revenue laws. President Johnson predicated the pardon on DePuy's agreement to pay a fine. When President Grant assumed the reins of power, he revoked the pardon, and the Court upheld the revocation because the paperwork had yet to reach DePuy even though the warden had the papers in his possession at the time President Grant revoked the offer. … Indeed, President George W. Bush's administration reportedly studied the feasibility of revoking the Marc Rich pardon, and it was not clear whether the Clinton administration had completed all of the paperwork at the time Bush took office.

So, depending on the facts and especially how advanced the paperwork was, Robert Toussie of Brooklyn, N.Y. may have an interesting case, or he may have nothing.

Incidentally, according to Jack M. Beermann, Presidential Power in Transitions, 83 B.U. L. Rev. 947, 979 n.105 (2003), Bush decided to let Clinton's pardon of Marc Rich go through, despite doubts as to whether the paperwork was final: “President Bush considered the possibility of revoking this pardon but decided against it “to protect that privilege, not only for me but for future presidents, as well.” (citing John Riley, Bush Won't Revoke Pardon of Financier, Newsday, at A14 (Jan. 30, 2001)).

It's interesting that Bush's concern eight years ago “to protect [the pardon] privilege, not only for me but for future presidents” seems to have attenuated. What would Cheney say?

Law on the Sharp End

Under the Supreme Court's decision in Tinker v. Des Moines Independent Community School Dist., students in public schools are allowed to wear political statements to school (the case concerned black armbands protesting the Vietnam war, back when we had student protests against wars), so long as they are not “disruptive”.

The application of this standard has caused considerable angst over the years, with school Principals sometimes allowing what to my eye is a 'heckler's veto' when they forbid some controversial statements because it could cause trouble. The cases as a group don't make a whole lot of sense to me (e.g. no to a T-shirt with a gun, yes to a pro-gay rights shirt, no (mostly) to the confederate flag, and so on). But that's not the point of this story.

One of my sons goes to public school. We were talking this morning on the way in, and we got around to whether people wore Obama or McCain buttons to school.

“We're not allowed to do that,” he said.

My lawyer brain lit up with a big blinking TINKER! sign.

“Why not?” I asked very calmly. (LAWSUIT! LAWSUIT! I'm thinking.)

“Because we're not allowed to have anything sharp, and the buttons have sharp parts [pins] on the back. Teachers can wear them, but we can't.”

“Oh. Would you be allowed to wear a sticker?”

“Sure.”

We often hear that law on the sharp end is different from law in the books. Here's a content-neutral prohibition — part of a general zero-tolerance policy on weapons and the like — that I imagine the school could successfully defend as a safety issue in almost any court. And yet it shuts down a whole range of political speech.

Is McCain a "Natural Born Citizen"?

Any naturalized citizen can run for any office in the land — except for President and Vice-President. They have to have been citizens at time of birth. That, at least, is how I and almost everyone reasonable reads the relevant Constitutional clause — it's not about Caesarians.

Everyone agrees that persons born in the USA are natural born citizens. Almost everyone agrees that persons born outside the US who qualify for birth citizenship pursuant to a statute are also “natural born citizens” and eligible to be President. That's certainly my view. A few people have argued that only persons born here are “natural born” citizens, and that other class of birthright citizens are not sufficiently “natural”, but I think that's a losing argument, and it hasn't gained much traction.

John McCain was famously born in the Canal Zone — not in the US. But both his parents were citizens, so that's no problem, right?

Not so fast.

From Adam Liptak's latest, A Citizen, but “Natural Born”? McCain's Eligibility to Be President Is Disputed by Professor, we learn of a serious argument against McCain's eligibility.

The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain's eligibility to be president. The law conferred citizenship on children of American parents born in the Canal Zone after 1904, and it made John McCain a citizen just before his first birthday. But the law came too late, Professor Chin argued, to make Mr. McCain a natural-born citizen.

What about citizenship by descent? There was a glitch.

At the time of Mr. McCain’s birth, the relevant law granted citizenship to any child born to an American parent “out of the limits and jurisdiction of the United States.” Professor Chin said the term “limits and jurisdiction” left a crucial gap. The Canal Zone was beyond the limits of the United States but not beyond its jurisdiction, and thus the law did not apply to Mr. McCain.

Which is why the 1937 law was needed in the first place.

The Supreme Court has relied on far less pettifogging distinctions to deny the right to sue to whole classes of workers. Surely a 'strict constructionist' court would read the law this way too? (The counter-argument is the sort of purpositive reading of law that conservatives usually claim to eschew, namely that this is a crazy result that Congress couldn't have meant in the earlier law, and the '37 act was just housecleaning.)

Mr. Liptak suggests we'll never know, as (despite there having been a suit on this issue filed in New Hampshire) there is probably no one with standing to sue, a legal term that approximates the concept of direct, palpable or probable, person injury of a kind not shared equally with all citizens. Prof. Chin suggests that if McCain is elected, the Vice President-elect will have standing, but is unlikely to sue.

I think the standing argument is probably right. Even so, it would be nice to think that the issue could get into court, but not to throw McCain out of the election, which would be a travesty. As Prof. Chin rightly says, “Presidential candidates who obtained their citizenship after birth are no more likely to be disloyal than those born citizens, and the People of the United States should be allowed to elect whomever they choose.” (Insert “shortly” before “after birth” if it makes you feel better.)

No, the reason to wish this would get into court is that it would provide a strong excuse for knocking the stuffing out of the largely pernicious Insular Cases which form the basis for the argument of McCain's ineligibility. The Insular Cases are the basis for the argument — wrong in my opinion — that most of the Constitution stops at the water's edge. I believe that the Constitution applies to the officials whose offices exist under it whereever they act. I don't think non-US citizens abroad have constitutional rights like US citizens at home or abroad do, but I don't think that government officials lose the shackles of law when they cross the border. Too often — think Guantanamo — our officials act as if they do, and their lawyers try to justify it in court.

Judge Quit FISA Court in Protest Three Years Ago

Via Pogo Was Right, FISA Court Judge Quit Over White House's Refusal to Legally Obtain Spy Warrants, comes this story which, while it speaks very well for Judge Robertson, carries the troubling implication that the judges with a strong view of the bill of rights may self-select off the FISA court.

FISA Court Judge Quit Over White House's Refusal to Legally Obtain Spy Warrants

Three years ago, US District Court Judge James Robertson sent a letter to Chief Justice John G. Roberts Jr., notifying him of his resignation from a secret intelligence court set up to monitor the federal government's domestic surveillance activities.

Robertson's abrupt departure came on the heels of a December 2005 report in The New York Times that first exposed the White House's warrantless wiretapping program President Bush had authorized shortly after 9/11. Robertson, who was appointed to the Federal Intelligence Surveillance Court by the late Chief Justice William H. Rehnquist, told colleagues that President Bush's unilateral decision to spy on Americans suspected of links to terrorists, without first seeking approval from the 11 judges assigned to the FISA court, was legally questionable and his resignation should be interpreted as a sign of protest.

This week the Senate will vote to allow this corrupt administration to wiretap Americans for up to a week without a warrant, and to remove the check of liability on telcos that enable past (and by implication future) illegal wiretaps.

Parlous times.

Republicans For Obama

What makes Republicans into Obama supporters? Unqualified Offerings explains:

It's all about too much power in the executive branch, which is a conservative principle. Because of the war in Iraq and partisan division, Bush and Cheney convinced Republicans that this is something you should be for. But guys who went to law school know better than that.

So do gals.

Would Telco Immunity Be a Takings Clause Violation?

Prof. Anthony Sebok has a really interesting article up at Findlaw: in Is It Constitutional for the Senate to Retroactively Immunize From Civil Liability the Telecoms That Provided the Government with Information About Customers' Communications? he argues that the proposal to give retroactive immunity to telecom companies who illegally wiretapped their customers may be an unconstitutional uncompensated taking as regards plaintiffs in currently pending claims.

Without doing some research, I don't know the law well enough in this area to form an opinion, but it's intriguing and I'd welcome comments from those who know the area.

NYT Does Encryption and the 5th Amendment

Adam Liptak, who has been on a roll lately, has another great “Sidebar” in today's NYT entitled, If Your Hard Drive Could Testify …. The article quotes me and Orin Kerr as if we were opposed; oddly, although I think Orin and I do have disagreements about what the law on encryption should be, I suspect Orin and I agree with each other on the points for which we're actually quoted.

Although the article does a great job of describing some recent cases and issues, the academic in me wishes that every time anyone writes about this stuff they'd have the space and time to provide what I see as some critical context for the debate as to when a person can be forced to hand over the key to a cryptosystem.

There are plenty of technical issues here (what happens if you really have forgotten your password? or if someone has put random gunk on your hard drive, making it look like there's crypto there?), but even more important fundamental ones. In particular, the current debate over the extent to which the 5th Amendment protects encrypted messages matters so much because our understanding of the 4th Amendment has changed. A hundred years ago, the Supreme Court thought it was obvious that asking a person to turn over his private papers was a constitutional violation. Even 30 years ago the Court thought that the 4th Amendment protected some zone of private papers such as a diary from demands that they be turned over. (Note that there can be an important difference between finding something in a search and demanding that the subject of the search find it for you.) Today, although the Supreme Court has never actually decided the diary issue, it's pretty clear that no other writing — and probably not the diary either — is protected from such demands.

It's the evisceration of the 4th that puts such pressure on the 5th. It may be that as a society we really don't want to allow any zone of privacy beyond what you can keep in your head. But as devices record more of our lives, and as we rely increasingly on what some of us only half-jokingly call our prosthetic memories, I think that it is increasingly unrealistic to exclude at least some bits from the intimate zone of privacy if we wish to remain true to the purposes of the 5th (and 4th) Amendments.

Coral Gables's Mysterious Nativity Scene

This elaborate nativity scene is prominently displayed in downtown Coral Gables near the corner of Ponce De Leon and Alhambra, on a little circle of land that might be public, or might be an amenity belonging to a nearby office building. It has no sign on it saying who erected it or how it got to be there.

Google Maps actually has a good image of it:

I've never taught or litigated an Establishment Clause case, but I was under the impression that if this is public land, there has to be a sign on such a display explaining who paid for it, lest it appear to be a city-purchased religious display. Then again, it might be private land. Indeed, one of my colleagues tells me that there used to be a church where the building next to the circle now stands (the tall thin building in the image above), and speculates that when they sold the land they held on to this piece (or kept an easement) just for this purpose. Could be: but why no sign claiming credit?

Passphrases and the Fifth Amendment

Declan has the scoop, Judge: Man can't be forced to divulge encryption passphrase:

A federal judge in Vermont has ruled that prosecutors can't force a criminal defendant accused of having illegal images on his hard drive to divulge his PGP (Pretty Good Privacy) passphrase.

U.S. Magistrate Judge Jerome Niedermeier ruled that a man charged with transporting child pornography on his laptop across the Canadian border has a Fifth Amendment right not to turn over the passphrase to prosecutors. The Fifth Amendment protects the right to avoid self-incrimination.

Niedermeier tossed out a grand jury's subpoena that directed Sebastien Boucher to provide “any passwords” used with his Alienware laptop. “Compelling Boucher to enter the password forces him to produce evidence that could be used to incriminate him,” the judge wrote in an order dated November 29 that went unnoticed until this week. “Producing the password, as if it were a key to a locked container, forces Boucher to produce the contents of his laptop.”

Full text of the decision in In Re Boucher, 2007 WL 4246473 (D. Vermont, Nov. 29, 2009).

Long ago I wrote a lot about encryption keys, and touched on this issue. You can read the articles at The Metaphor is the Key: Cryptography, the Clipper Chip and the Constitution, 143 U. Penn. L. Rev. 709 (1995) and especially It Came From Planet Clipper, 1996 U. Chi. L. Forum 15.

The heart of the argument is that things in your head are not like objects in your possession: the core value of the Fifth Amendment is that you can’t be made to speak in ways that indicate your guilt. Giving up a passphrase to an encrypted message ties you to the encrypted information; if the info is, say, child porn, it creates a very strong inference that you knew what the data were and that you possessed them (there are exceptions, including email some else sent to you that is decryptable with you private key, but ignore those scenarios for now).

Other people, notably the redoubtable Orin Kerr, who argue that there is no Fifth Amendment issue here tend to focus on the analogy of possession of a physical key to a physical lock. The law is pretty clear that you can’t stop the cops from taking a physical key on the grounds that the stuff inside that safe will tend to incriminate you.

But the law is also clear that the Fifth Amendment protects you from having to make an oral or written disclosure which is “testimonial” – that, is, whose content might tend to tie you to crime. (Note that “content” means “informational content” – you can be forced to give a meaningless writing sample for handwriting comparison purposes.) This is why the cops are not able to force suspects to take them to the dead body.

It seems to me that the pure compelled disclosure case is not that hard, and that this Magistrate Judge got it right. Note, however, that this decision, emanating from the lowest-level official in the federal court system, is not precedential for other courts; and since it is pretty brief its persuasive power may not be all that great either.

Nor do I think that making a defendant decrypt something without divulging the key would in any way solve the problem, as it still ties the defendant to the content.

The hard case for me would be if the police provided limited “use immunity”: they would promise not to make the fact that your key decrypted the info any part of the prosecution. Thus, for example, the indictment would just say the information was on your hard drive, without mentioning that you had the only key to decrypt it. I think, given the current state of doctrine, that courts might well hold this to be consistent with the Fifth Amendment, making the underlying provision little more than a fairly cumbersome technicality. Doctrinally, that is not such a hard result to foresee, but it is not as simple to explain why this would apply to a coded message and not a dead body.

The flip side of the hard case is when the government provides use immunity and the suspect/defendant claims he doesn't know or has forgotten the passphrase. Then what?

In fact, I do have one ancient PGP key for which I seem to have forgotten the passphrase, so I know it can happen. But in most cases the police are likely to view this sort of memory malfunction as unduly convenient.

Congress Rediscovers the Power of the Purse

Secrecy News, Intelligence Oversight Flexes One New Muscle, is sort of a good-news, bad-news item.

The good news is that the Senate Intelligence Committee has reported out language that makes expenditures conditional on every member of the committee being briefed on a specific intelligence issue.

The bad news is that the committee apparently wasn't able to figure this out for itself: it had to have the idea explained to it by by former Rep. Lee Hamilton.

If I had any boggle left in my mind this week, that would use it up.

Senators and Representatives Could Have Spoken Out On Waterboarding: the Constitution Protects Their Right to Speak Out Without Fear of Legal Consequences

A number of the best internet commentators are discussing today’s news that a few of the leading Congressional Democrats may have been – probably were – briefed about the administration’s plans to torture (waterboard, and maybe more) suspected terrorists being held in secret CIA facilities abroad. There’s confusion about the facts, with few of the people allegedly briefed confirming the story. Notably, however, it appears that of those briefed, only Rep. Jane Harman objected. (Note that we're still at an early spin stage here — more facts about who said what to whom are likely to come out.)

The emerging consensus in the blogosphere seems to be that even if they had the presence of mind to object, the Representatives and Senators who were briefed were in a bind: as members of the Intelligence Committees or the leadership, they signed various secrecy pledges which stopped them from going public. To go public, it seems to be agreed, was to “jeopardize their careers and risk jail” as Kevin Drum put it; even so, Matthew Yglesias suggests that this called for civil disobedience, and that the representatives should have dared the administration to arrest them.

All this misses a critical aspect of our constitutional structure. Thanks to the Speech and Debate Clause there was a way for any Senator or Representative who wanted to blow the whistle to do so in a way that involved no risk of jail or fines – at worst they might have lost their security clearances (and even there the law is a little murky).

Article I, section 6 of the Constitution reads as follows,

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

The Speech and Debate clause has been interpreted to extend beyond floor speeches, e.g. to committee statements, but it unquestionably applies to floor statements. Thus, it would have been possible for Rep. Harman, or Senator Rockefeller, or the others allegedly briefed to go to the floor, either during the times when members may speak on topics of their choice, or under one of the extraordinary mechanism for privileged statements, and denounce the Bush administration’s determinate to torture helpless captives in secret offshore detention facilities.

I’m not saying this would be easy or politically painless. The political risks are obvious – and recall the Congress was being briefed not all that long after 9/11. But even without the national security angle or the political frenzy angle, there were also counterveilling issues of fundamental personal ethics As Rep. Harman noted,

“When you serve on intelligence committee you sign a second oath — one of secrecy,” she said. “I was briefed, but the information was closely held to just the Gang of Four. I was not free to disclose anything.”

Serious people take oaths like this seriously and are right to do so; but before they took that second oath, they took a first one upon taking office in which they promised to “preserve and defend the Constitution of the United States.” To the extent that the second oath allows the executive to muzzle members of Congress, it is unconstitutional under any theory, including not only the Speech and Debate clause, but also the Incompatibility Clause (which forbids members of congress from serving in the executive branch; a converse conclusion is that this clause forbids the executive branch from turning members of Congress into subordinates).

Although apparently too easily forgotten, the Speech and Debate Clause is, as Justice Harlan said in United States v. Johnson, 383 U.S. 169, 178 (1966),

the culmination of a long struggle for parliamentary supremacy. Behind these simple phrases lies a history of conflict between the Commons and the Tudor and Stuart monarchs during which successive monarchs utilized the criminal and civil law to suppress and intimidate critical legislators. Since the Glorious Revolution in Britain, and throughout United States history, the privilege has been recognized as an important protection of the independence and integrity of the legislature.

The Supreme Court has limited the reach of the Speech and Debate Clause in some relevant respects. In Doe v. McMillan, 412 U.S. 306 (1973), the Court distinguished statements on the floor (or in committee) – which are and remain completely privileged – and their republication elsewhere. In that case a committee print of one of its reports, issued in a routine manner by the Public Printer, contained allegedly defamatory statements about private citizens. They sued for an injunction to prevent further publication, dissemination, and distribution of the report until the objectionable material was deleted, and sought damages. The Court held that the Members of Congress and their staffs could not be sued due to the Speech and Debate Clause, since their actions had all been part of the ordinary legislative process. But the Court also held the Superintendent of Documents and the Public Printer could be sued because they had no broader immunity than Members of Congress would have and their actions in publically disseminating the report outside Congress were not legislative acts, unlike voting, speaking on the floor or in committee, which are protected.

More troubling for third parties, however, is Gravel v. United States, 408 U.S. 606 (1972). Senator Gravel read key parts of the Pentagon Papers at a committee hearing, and then placed the full text of the 47 volumes of it into the public record. That act, the Supreme Court held, was privileged, an argument it called “incontrovertible.” But the Court refused to assume that once the material was in the public record it automatically followed that arrangements to republish them were inevitably legal, nor did at accept that Senator Gravel’s attempts to find a publisher (or his aide’s, which they took to be the same thing for these purposes), fell under the Speech and Debate Clause.

Combine this holding with the administration’s more recent and aggressive re-interpretations of the Espionage Act, which seek to extend it to reach the conduct of parties not holding clearances who share information that they acquire from someone who has one, and you begin to wonder whether newspapers that republished the floor speech might not face some legal attacks from the Justice Department. Although I personally think that the First Amendment must protect a newspaper that republishes a member of Congress’s statements on the floor, it is clear that the current administration has taken positions that would allow it to argue the contrary; more to the point, although I think the newspapers would win such a case, even the main Pentagon Papers case, much less the Gravel case noted above, don’t conclusively foreclose the government from arguing the contrary.

The question of security clearances is the murkiest part of the story. The Bush administration has consistently taken the extreme position that it never has any legal duty to tell Congress anything. It claims the power to ignore subpoenas. It says that the President is the only judge of what he has to do, and any attempt to compel him is unconstitutional. As early as 2001 the administration unilaterally revoked the security clearances of 91 Senators, arguing as GW Bush put it “it’s not in the nation’s interest” that they have access to information they could leak.

I believe that Congress could Constitutionally legislate to preserve the security clearances of members who disclose classified information on the floor. As far as I know (please correct me if I’m wrong), Congress has never passed such a rule, and in its absence, I think it is within the power of the executive to choose to deny clearances to whistle blowing members of Congress. That is a forward-looking loss of privilege rather than a legal disability of the sort that the Speech and Debate Clause protects against. But legally, that’s it. A member of Congress who learned of torture plans and chose to tell the nation about them would face no other legitimate legal risk; (there was, with the Gonzales gang, the not inconsiderable possibility of an improper prosecution, but many of the key events here were when Ashcroft was Attorney General) .

It would have taken great courage, and carried political risk, but our Constitution does provide a channel by which members of Congress can stand up and call the executive to account on its plans to torture someone in a secret CIA prison. At the end of the day it was that courage, not the legal avenue to expose wrongdoing, which was in too short supply in Congress.

(I’ve written the above in something of a hurry and think of it as a very preliminary attempt to explain the role of the Speech and Debate clause. I welcome correction and amplification from those who may know more than I; I would be particularly grateful for any insights regarding the granting and withholding of security clearances for members of Congress, a subject I am sure I have much to learn about.)

Senator Biden Ought to Read the Constitution

My brother's column today, Is Bush Ready to Talk Pullout?, contains the following pointer:

Adam Leech writes in the Portsmouth (Maine) Herald: “Presidential hopeful Delaware Sen. Joe Biden stated unequivocally that he will move to impeach President Bush if he bombs Iran without Congressional approval.

“Biden spoke in front of a crowd of approximately 100 at a Seacoast Media Group forum Thursday, which focused on the Iraq War and foreign policy. When an audience member expressed fear of another war with Iran, he said he does not typically engage in threats, but had no qualms about issuing a direct warning to the oval office.

“'The President has no authority to unilaterally attack Iran and if he does, as foreign relations committee chairman, I will move to impeach,' said Biden, which was followed by a raucous applause.

“Biden said he is in the process of meeting with constitutional law experts to prepare a legal memorandum saying as much, and intends to send it to the President.”

Small problem. The Senate doesn't initiate impeachments. Those have to come from the House of Representatives; the Senate's role is then to judge the merits of the impeachment.

Art. I, Sec. 2, Clause 5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Art. I, Sec. 3, Clause 6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Doesn't Biden — a long-serving Senator, and veteran of impeachment trials — know that by now? Was he misquoted, or is he stupid, or does he think we are?

Blastocytes and Legal Logic

The author at SquareState.net:: Anchor Blastocysts has got a good legal argument that I hadn't heard before regarding the movement to classify a fetus as a legal person from the moment of conception. The purpose of the rule is of course to make abortion legally murder. But there will be unanticipated consequences.

If the “Blastocysts are people too!” ballot measure passes in Colorado, the moment any undocumented worker gets pregnant, not only is that Blastocyst a person—it's also an American Citizen!

Aside from the not-so-small point that citizenship is a federal issue and it is not clear from first principles whether the federal rule should or would follow the state rule, there's obviously something powerful about this logic especially if the Colorado model were ever to be adopted on a national basis.

In that case, if a noncitizen female conceives a child in the US, presumably it would be wrong to deport the blastocyte or fetus. And that means we can't deport the mother either. At least until the kid is born after which we are, as news reports from all over show, perfectly willing to deport mothers of small citizens if the mothers lack proper documentation.

I should add that, while powerful, this logic is not inevitable. Anglo-American law has in the past been able to make various distinctions about the unborn. Although not persons for most purposes, the inheritance laws, for example, extended to children “en ventre sa mère” (the absence of the “de” is not a typo; this is Law French, not the real thing). So it remains possible that the same people who deport nursing parents, leaving the citizens to fend for themselves, would have little trouble finding a theory to deport the unborn citizens as well. Pointing to the problems of proving domestic conception (the mind boggles) is only a first step….

Guy Fawkes Day Musings

Guy Fawkes Day is a good time to say that people in this country take the rule of law too much for granted.

Police Battle Lawyers in Pakistan: Police armed with tear gas and clubs attacked thousands of protesting lawyers in the city of Lahore today, and rounded up lawyers in other cities as the government of the Pakistani president, Gen. Pervez Musharraf, faced the first signs of concerted resistance to the imposition of emergency rule.

Life is better for everyone when lawyers battle in court.

We have many of the good things we have because people have some basic faith in the system — or, even if they don't, most figure that the deal they are getting is not-bad enough (or the expected value of the future deal is good enough), that it's not worth rocking the boat.

The election of 2000 challenged that faith for many. I, for one, have avoided teaching constitutional law in part because I don't know how to teach Bush v. Gore in a way that wouldn't produce a dangerous cynicism in my students.

Cynicism about the rule of law is especially dangerous for beginning law students because it too-easily becomes an excuse to avoid learning the close textual work that good lawyering requires. Told that there's nothing going on but the Realist story, too many will conclude that, if 'it's all politics,' why bother? I do believe that the law retains some substantial autonomy, and thus we have the rule of law — much of the time. If, however, I believed that it was in fact the case that all cases were political, I would accept that I have a duty to tell my students that truth at all relevant times. That isn't what I believe. But it is politics sometimes, and if that happens too often, we pay for it.

Underpinning much of the elite and popular faith in the rule of law is some belief in democracy. Democratic legitimacy underwrites acceptance of the use of force that is sometimes needed to keep the peace. It is why people pay their taxes. That legitimacy is under stress at present (and, not coincidentally, voluntary tax compliance rates are in decline).

Almost two-thirds of the nation wants the US involvement in Iraq's civil war to end soon (or at least within a year) and the number keeps climbing. Yet, the narrative in DC is not about the complex mechanics of getting our soldiers out in one piece and taking the Iraqi people who've helped us out of danger, but instead about invading Iran, a sure sign that something deep is broken somewhere.

Which explains, even if it doesn't necessarily justify, signs of rising civil disobedience.

And that takes me to Crane Brinton's Anatomy of Revolution. My copy is missing, but what I remember most clearly is that among the patterns he distilled from his study of disparate revolutions is first that “revolutions occur during times of rising expectations” and second that a regime tends to fall when its contradictions become intolerable for the intellectuals and functionaries who support it. (If you're not familiar with this very readable classic, here's a link to one denatured online summary.)

We're not exactly in a period of rising expectations — 74% of those polled say the country is 'headed in the wrong direction'. And the clerks are not as yet treasonous, although even some of the most loyal refuse to go to Iraq.

Indeed, if anything, too many intellectuals are still in the tank, in a manner reminiscent of the original La Trahison des Clercs (1927). Recall Julien Benda's argument: he critiques a 19th and early 20th century world in which intellectuals become apologists for the crass nationalism and warmongering of militaristic regimes. That, of course, bears no comparison with current circumstances in which our national commentariate and our leading national media figures speak so dispassionately about political and military matters.

Is the Fourth Amendment Precatory?

US Attorney General nominee Michael Mukasey has written a very lawyerly letter to the Senate Judiciary committee. The letter fails to use the word “waterboarding” although the acceptance of a cast-iron prohibition on “torture and cruel, inhuman and degrading treatment” might fairly be seen to cover banning it. The letter might be enough to peel off a few votes on the torture issue.

If you read the letter with any care, however, you will see that it very carefully refuses to say that — even in the face of the FISA legislation occupying the field — the the law can place any limits on a President who decides to wiretap US citizens, in the US, without a warrant, so long as he decides he wants to and is willing to wave the bloody shirt of national security.

This is a strikingly odd position to take in this letter, as the case against those wiretaps is based on both constitutional text and a statute, elements which sufficed to get Mukasey to unbend enough to say that both torture and not-quite-torture are illegal.

If the Senate confirms him after this, they're complicit in undermining the Constitution. Again.

The letter may, however, represent a fine-grained political judgment that there's no way for the administration to win on torture (and this is the most graceful way to lose) but that there's political capital to be had by being seen to be 'tough' on 'terror' — and that almost no one really cares about the Fourth Amendment anyway.

Under-Standing (In) Yesterday's Patriot Act Case

Orin Kerr has a thoughtful analysis of yesterday's decision in Mayfield v. United States.

I think Orin has a very strong take on the standing issue — the issue bothered me when I read the decision, and he crystallized what bothered me. I don't know enough about the criminal justice system to know to what extent if any this case differs from the (IMHO wrongly decided) Los Angeles v. Lyons case, but unless the plaintiff's lawyers can do a better job explaining why than the judge did, I think the government stands a good chance of winning on this issue at whichever higher court hears the case last.

And that's a shame. Orin sees the merits as a murky issue given the precedents, especially the Keith case, which is a fair point. Nonetheless, I see this as a pretty clear case given the underlying Constitutional principles. And I have to wonder what set of reasonably likely facts would ever give a plaintiff standing to make these claims in a post-Lyons world.

Being the sort of person who believes that in a constitutional system of government there is no legal right without a remedy (the very idea of 'right' being synonymous to me with 'claim to a remedy' and being disjoint from any issue of natural right which is an utterly separate issue), I am not at all comfortable — indeed gravely dislike — legal doctrines which shield alleged intrusions on our rights from judicial determination. Even if the court were to rule against my view on the merits, I think that's better than ducking behind ahistorical and unjustified standing rules.

There's maybe just enough in the facts here to let a court that wanted to make some new exception to existing standing rules — which are already not that coherent. But I don't see Justice Kennedy as a likely person to do that.

Judge Rules Two Parts of Patriot Act Violate Fourth Amendment

U.S. District Judge Ann Aiken of Oregon ruled that 50 U.S.C. §§ 1804 and 1823, as amended by the Patriot Act, are unconstitutional because they allow search warrants to be issued without probable cause.

Full 44-page opinion in Mayfield v. United States for those who want their news unfiltered.

(Thanks to JST for the tip.)

Limits on Acting

Further to my musings on constitutional limits on “acting” officials, a self-professed “Very Unimportant Government Lawyer With Nothing Better To Do” draws my attention to 5 USC 3346, which imposes a statutory limit of 210 days or so in which an official can be “acting” in the absence of a nomination to a post.

The statute doesn't explain who takes over if the 210+ day period lapses — I presume it's the next in line for the job, (unless the President designates someone else).

(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office -

(1) for no longer than 210 days beginning on the date the vacancy occurs; or (2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.

(b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.

(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve -

(A) until the second nomination is confirmed; or (B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned.

(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.

Hard-core separation of powers dorks will want to take a look at Doolin Security Savings Bank v. Office of Thrift Supervision 139 F.3d 203 & 156 F.3d 190, wherein among other fascinating things, a diverse panel of the DC Circuit agrees unanimously that the head of the Office of Thrift Supervision is an “Officer of the United States” and that the 210 day clock starts when an acting person starts in on his job and not when the vacancy occurs.

(Adlaw mavens may be startled at the discussion of harmless error in a separation of powers case. I was.)

The Constitution and Acting

Someone asks,

Suppose Bush were to decide that a confirmation fight (or even just a hearing) over Gonzales's successor would be too painful, and a recess appointment too controversial. Does he have to nominate anyone? Or can he go through the rest of his Administration with Solicitor General Clement as an interim AG? Are there any powers that a confirmed Attorney General has that an interim Attorney General doesn't? Are there any steps that the Senate or anyone else can take in the event of that eventuality?

As far as I know, an acting Attorney General has all the powers of a confirmed Attorney General; the difference is political, not legal.

Although there is no way that Congress can force the President to exercise his appointment power, I suppose it would be possible for Congress to condition the exercise certain powers of the Attorney General on there being a confirmed holder of the office. I don't think it would be good policy — in fact I think it would be very bad policy to leave the country unable to do things that need doing — but offhand I can't see a constitutional obstacle to such a statute.

There is also a very weird Constitutional argument that might be brought into play but I think it would —- and should — fail. But here it is anyway:

The Solicitor General is appointed by the President by and with the consent of the Senate, as is the Attorney General. But under Article II, Section 2, paragraph two of the Constitution, there are (at least) two kinds of major Presidential appointees: “Officers of the United States” and “Inferior Officers”. The full “Officers” require Senate confirmation; Congress can waive the confirmation requirement for the “inferior” kind. If Senate confirmation has been waived, then only the President, or courts, or “Heads of Department” (usually understood to mean Officers) can appoint “inferior officers”. Let's assume that the Attorney General appoints an “inferior officer” who then makes a decision altering the rights, duties, or responsibilities of someone willing to sue (thus solving the standing issue).

The aggrieved person could argue that the Solicitor General is only a mere “inferior officer” himself — one for whom, as it happened, Congress had not waived the confirmation requirement, but for whom it could if it so chose. If this were correct, any “inferior officer” appointed by the acting Attorney General (himself an inferior officer) held that office illegally and his decisions are null and void.

But is this a good argument? I'm somewhat dubious.

First, one would have to argue that even if the Solicitor General were an inferior officer ordinarily, his being the acting Head of Department didn't give him the necessary appointing power for constitutional purposes by virtue of his acting status. This part of the argument takes us to unchartered waters. Some formalists would argue that a department head is a department head. Other formalists would argue that status comes at the time of appointment. A structuralist would worry that if the President could place non-officers into officer positions in this manner it would undermine the separation of powers. Traditionalists might say that we've often let acting officials run things, and we should be mindful of the need to have a working government would likely carry the day. Being a structuralist at heart, I think the argument here isn't bad — but it all depends on the Solicitor General being “inferior” in the first place.

And this second part of the argument seems much more doubtful. One would also have to convince a court that the Solicitor General wasn't an “officer of the United States” in his own right. That's far from obvious.

There is no bright line between the two types of appointees. We do know that Cabinet officers like the Attorney General are unquestionably “Officers” and that the Special Prosecutor under the now-lapsed statute authorizing them was — barely — an “inferior officer”.

The argument that the Solicitor General is only “inferior,” relies on the facts that he reports to the AG, and is actually the number four official in the DoJ pecking order. No court has ever held that reporting to someone rather than directly to the President is a necessary element of “officerness” but then again no court has ever held otherwise, so the argument remains open. Plus, since the Attorney General is only #4, calling him an “officer” would suggest very strongly that there are four “officers” in the DoJ, and several in every other cabinet department as well; that sounds like a lot.

But given the long history and tradition of the office of Solicitor General, I don't think most courts would find it very difficult to say that the Solicitor General was an “officer”. The Solicitor General has important powers and responsibilities over litigation, including the power to “confess judgment” — throw in the towel on appeal before the Supreme Court for a case the government won below. The office of Solicitor General dates back to 1870, and has a long and generally admirable tradition of independence, so much so that the Solicitor General is sometimes called the “tenth Justice”. I think the Solicitor General is probably an “officer” in his own right, and regardless of what I think, I'm pretty sure most courts and Justices would see it that way.

In short, no, I think there's no legal reason the Solicitor General can't be acting Attorney General for a long, long time. Even so, I predict that the he won't be.

Interesting State Secrets Decision

Secrecy News brings word of a really interesting state secrets decision from the DC Circuit:

In an unusual move that may signal a new, more discriminating judicial view of the state secrets privilege, a federal appeals court has reinstated (pdf) a lawsuit which a lower court had dismissed after the government invoked the state secrets privilege.

The lawsuit was originally filed in 1994 by former Drug Enforcement Administration official Richard Horn who alleged that the State Department and the Central Intelligence Agency had unlawfully eavesdropped on his communications while he was stationed in Rangoon, Burma.

The government asserted the state secrets privilege in 2000 and moved for dismissal of the case. The government motion was granted by the D.C. district court (pdf) in 2004.

But in a June 29, 2007 decision (that was unsealed on July 20), the D.C. Circuit Court of Appeals overturned the dismissal. The Court did not dispute the government's invocation of the state secrets privilege, but concluded that there was sufficient unprivileged evidence on the record to permit the plaintiff to argue his case.

“In many state secrets cases, a plaintiff has no prospects of evidence to support the assertions in his complaint and this lack of evidence requires dismissal. Here, however, Horn [the plaintiff] is not without evidence,” the Court said.

The Court presented its ruling as a straightforward application of established principles, including fairness to the parties.

But in a sharply dissenting opinion, one conservative member of the Court said that the decision to reinstate the lawsuit could fundamentally alter the use of the state secrets privilege.

“The majority's reversal of the district court's decision,” wrote Judge Janice Rogers Brown, “pushes this circuit's state secrets jurisprudence in a new and troubling direction — one at odds with all other circuits that have considered the issue.”

The case was remanded to the district court level for further deliberation.

See the unsealed Appeals Court ruling “In Re: Sealed Case,” June 29, 2007.

Note that Janice Rogers Brown is on every short list of Republicans whom the Administration might seek to promote if a Supreme Court seats opens up. And that she's seriously extreme.

A Simple Way to Improve Constitutional Literacy

I have a modest proposal that will go a long way to stopping idiocies like this and this, in which Congresspersons and reporters covering national politics demonstrate a basic ignorance of the Constitution.

Please don't laugh, because I am serious about this: the full text of the Constitution should be printed in every US passport.

The US Passport was recently re-designed. What had once had a certain classic simplicity was tarted up with moderately kitschy pictures of “American Icons” and embellished with “inspirational quotes”:

The new passport comes with its own name: “American Icon.” It’s hard to think of one that was left out. The inside cover sports an engraving of the battle scene that inspired “The Star Spangled Banner.” A couple of lines of the anthem, starting with, “O say, does that star-spangled banner yet wave,” are scrawled in what the State Department says is Francis Scott Key’s own cursive.

The short, 28-page version of the passport comes with 13 inspirational quotes, including six from United States presidents and one from a Mohawk Thanksgiving speech. The pages, done in a pink-grey-blue palate, are rife with portraits of Americana ranging from a clipper ship to Mount Rushmore to a long-horn cattle drive.

You can see an animation of the whole design at the State Department's website.

My plan is simple: remove the kitsch, replace it with the Declaration of Independence and the Constitution. (Or, as a fallback, keep the kitsch and at least add the Declaration and the Constitution.)

Travel these days involves a great deal of waiting in line, not least at security and immigration, times when a passport is often in hand and Americans might find themselves studying the Constitution if they have nothing else to read.

In the Constitution they might find all sorts of concealed gems, ranging from the clause providing for the impeachment of all “civil officers,” to the (long) list of Congressional powers and the (much shorter) list of Presidential powers, to that interesting Fourth Amendment — good reading while you are waiting to be frisked at the airport.

More than 74 million Americans have a passport, and the number grows every year. The passport is a great opportunity for a real civics lesson based on the things that make this country great — our real American Icons: the Declaration of Independence and the Constitution of the United States of America.

Bedtime Reading

Secrecy News points us to this important document:

A major new report (pdf) from the Congressional Research Service examines the congressional contempt power.

“Congress’s contempt power is the means by which Congress responds to certain acts that in its view obstruct the legislative process. Contempt may be used either to coerce compliance (inherent contempt), punish the contemnor (criminal contempt), and/or to remove the obstruction (civil contempt).”

“Although arguably any action that directly obstructs the effort of Congress to exercise its constitutional powers may constitute a contempt, in the last seventy years the contempt power (primarily through the criminal contempt process) has generally been employed only in instances of refusals of witnesses to appear before committees, to respond to questions, or to produce documents.”

“This report examines the source of the contempt power, reviews the historical development of the early case law, outlines the statutory and common law basis for Congress’s contempt power, and analyzes the procedures associated with each of the three different types of contempt proceedings. In addition, the report discusses limitations both nonconstitutional and constitutionally based on the power.”

See “Congress’s Contempt Power: Law, History, Practice, and Procedure,” July 24, 2007.

Not a Simple Case of Greed

South of the Suwannee has a comment on what looks like an interesting constitutional issue. Because I think the posting understandably kinda misses a key point, I'm going to take the liberty of quoting the whole thing:

Why Lawyers Have a Bad Image

Sheldon Schlesinger is a 77-year-old Fort Lauderdale attorney who has had a lucrative career in the personal injury field.

That's fine, someone has to represent the injured.

In fact, his firm's website proclaims, “Through all of the work we have done, our personal injury lawyers have never lost sight of what is most important — the health of our clients.”

Not many people are going to be sympathetic to him, however, when he froze payments to a paralyzed girl in order to collect more than his $1,000,000+ fee authorized by the State Legislature.

Schlesinger wants another $677,000 (which I doubt will change his lifestyle nor put his law firm in danger of unprofitability) and obviously he thinks he deserves it.

And it seems he's willing to let the real victim continue to suffer to get his payoff.

I'm sure that is how most people would see this story. But not me — and not because I belong to the lawyers' mutual protection society either.

Although the linked-to story is a bit thin, what seems to have happened is this:

• Minouche Noel (now 19 years old) suffers terrible injuries as an infant at the hands of a state entity and is paralyzed as a result;
• Noel (client) and Sheldon Schlesinger (lawyer) sign a contingency fee agreement. We don't know the details, but state law caps contingency fees in these cases at 25% for legal fees and 6% for lobbying fees. One report says his contract provided for 20% of the recovery;
• Lawyer wins $8.5-million award from a jury in 1999 against state of Florida;
• Florida law prohibits payouts over $200,000 for negligence by government officials unless the legislature votes the money;
• Seven years of lobbying, including work by lobbyists hired by lawyer, finally result in legislation funding the payment;
• But the bill caps the lawyer's own fees at $1,074,667, and the lobbyist's fee at $85,000. That's well below the statutory limit, and, lawyer says, less than was agreed.
• Via the Miami Herald, we learn that “Court records show that the Schlesinger law firm earlier this month filed a lien against Noel and her parents, who now live in Brevard County after moving from Fort Lauderdale.” The Noels on July 9 agree to pay $546,000 to the law firm and another $120,000 for lobbying expenses.

Bottom line: Since the lawyer never agreed to the compensation limit in the bill, he filed a lien against the payment. It may be that the July 9 agreement satisfied the lien, in which case the issue is resolved legally. South of the Suwannee says the filing of the lien was horrible and greedy since it threatened to delay (or actually delayed?) the payout to the victim. And from a quick online scan of the press, the newspapers all seem to agree that this is a simple case of lawyerly greed.

Assuming the facts above are correct, however, I think that this instant conventional wisdom is wrong: this isn't a case of greed, and it isn't simple.

Section. 10. No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

Second, and simpler, I think it could fairly be argued that Mr. Schlesinger is not being simply greedy, or that even if he were being greedy then his greed serves a public purpose. It seems to have taken enormous perseverance — almost twenty years — to first win the case and then obtain this payment for his client. If the state legislature is free after the fact to fix payment at whatever it pleases, ignoring its own statutes that set reasonable bounds on what contingency fees can be, this will further reduce the incentive for people to take on the arduous and risky job of suing the state for its negligence. In short, victims will have a lot more trouble finding lawyers who won't demand money up front. And a system that required a lawyer to lobby for her fee as well as for her client's payment is a bad system — it creates a built-in conflict of interest between lawyer and client, one that might require hiring yet another lawyer to manage the lobbying process (at further expense to the client).

Having set the ground rules for contingency fees by statute, and running a rigged game in which it is so very, very hard for persons hurt by Florida state entities' negligence to recover, the state legislature should not also be able to pull the rug out from under the agreements that make those recoveries possible.

I don't know if there was some means other than the lien by which Mr. Schlesinger could have preserved his rights and the legal position. If there was one that wouldn't delay payments to the victim, he should have taken it. But even that's not a simple question: I wonder if declaratory judgment, for example, might have run the risk that a court would have declared the entire bill void, leaving his client with nothing. Which would be an even worse result.

As the Herald article notes, “Bruce Rogow, the lawyer who filed the lien on behalf of Schlesinger, said the law firm was following the letter of the law. Rogow said the wording of the claims bill, HB 593, limited what the attorneys could be paid out of Minouche Noel's portion, but it did not limit what Jean and Flora Noel could pay the attorneys.”

On 'Outrageous' Government Conduct

I read the news that Judge Lewis A. Kaplan dismissed the criminal tax case against 13 KPMG defendants with a little bit of bemusement.

Judge Kaplan has a reputation as a fine judge, and I have no reason to question his decision…but it does make for an odd juxtaposition with the Padilla case, in which Judge Cooke denied Jose Padilla’s motion to dismiss for outrageous government conduct.

Here's a snippet on the KPMG decision:

A judge threw out charges Monday against 13 former KPMG employees who were accused of participating in a fraud that helped the wealthy escape $2.5 billion in taxes. The ruling essentially guts what the government once called the largest criminal tax case in U.S. history.

U.S. District Judge Lewis A. Kaplan said he dismissed the charges because prosecutors blocked the defendants from putting on a defense. He said the government coerced KPMG to limit and then cut off its payment of the employees' legal fees, meaning the defendants were effectively stripped of their constitutional right to legal representation in what was sure to be a long, expensive trial.

The harshly worded decision also amounted to a stinging rebuke of the Justice Department in its prosecution of KPMG, a global tax firm.

“Their deliberate interference with the defendants' rights was outrageous and shocking in the constitutional sense because it was fundamentally at odds with two of our most basic constitutional values - the right to counsel and the right to fair criminal proceedings,” Kaplan wrote.

Sounds plausible. And not having followed the case with great care, I'm prepared to accept this ruling until someone explains to me what is wrong with it.

But it sure seems odd that denying the lawyer of their choice to bunch of rich professionals is outrageous government conduct sufficient to get a criminal charge dismissed, but the same does not apply to holding a guy in solitary for years under conditions that may amount to torture.

I am sure someone will reply that in the KPMG case the government action directly impacted the trial, while in the Padilla case the judge has ruled that nothing learned during his confinement in a military brig can be introduced at trial. Furthermore, government experts testified that despite the years of isolation and sensory deprivation Padilla is competent to stand trial. But — based only on the news reports of the KPMG decision — that misses the point of comparison. The KPMG defendants had access to lawyers, just not the very most expensive ones they wanted. (And in case you had doubts, there's some evidence that those public defenders are pretty good…) Padilla may be functional, maybe, but does anyone seriously believe he is unscathed and as able to participate in his defense as he would have been but for the government's conduct? If so, I have a portfolio of bridges to sell you…tax free…

(I'm always a bit nervous posting about cases based only on news reports. If there's something in the text of the KPMG decision which explains this disjunction, I will welcome corrections and amplifications.)

Habeas Restoration Bill Hangs By a Vote

According to the reliable folks at Firedoglake, the habeas restoration bill is within a vote or two of passage.

If you are represented by any of the following fence-sitters,

Sen. Joe Lieberman (I-CT)
Sen. Ben Nelson (D-NE)
Sen. Chuck Hagel (R-NE)
Sen. Richard Lugar (R-IN)
Sen. Larry Craig (R-ID)
Sen. Susan Collins (R-ME)
Sen. Olympia Snowe (R-ME)
Sen. Norm Coleman (R-MN)
Sen. George Voinavich (R-OH)
Sen. John Sununu (R-NH)
Sen. Mary Landrieu (D-LA)
Sen. Gordon Smith (R-OR)
Sen. Lamar Alexander (R-TN)

please give them a call and encourage them to remove this blot on the rule of law. (Phone numbers and multiple arguments are here.)

A Very Informative Review of How Congress Enforces the Subpoena Power

TalkLeft, The Congressional Subpoena Power: How It Is Enforced

As the Congress and the Executive Branch move inexorably towards a clash regarding the Executive Branch's refusal to accede to information requests from the Congress and the resulting subpoenas that have been issued, it is worthwhile to review the powers of the Congress in this regard. Fortunately, in 2003, the Congressional Research Service produced a handy report on the subject:

…

This post is intended to provide some factual background on this subject as there has been much bad information bandied about on this subject. I will be writing a subsequent post on the question of Congressional oversight powers related to its subpoena and information gathering powers.

Desegregation: Don't Panic

Daily Kos not only says the glass is empty, but that we're entering the desert, SCOTUS: Segregation Now, Segregation Forever?.

It appears that what Seattle was really after was not “diversity,” but ensuring that no school would be excessively non-white. Perhaps there is a case to be made that compelling benefits flow from having adequate numbers of white students in all of a district's schools (as distinguished from the benefits that flow from true “diversity.”) But I don't think the school district made that case — and in any event, I'm pretty skeptical of the claim.

One reading of today’s decision in the race cases is that the Supreme Court has outlawed programs that seek to increase racial diversity in the schools. Justice Kennedy’s concurrence does not adopt that view, however. And because his is the fifth vote, it is controlling. The better view, I think, is that the Court today has come close to extending the Grutter model to the lower school context, holding that school districts may account for race as one factor among many in student placement.

I haven't had a chance to read the opinion with the necessary care, but this feels correct. The sky has not (yet) fallen.

Democracy and Free Speech 1

Pat Gudridge:

Chief Justice Roberts is not succeeding, so far anyway, in engineering a spirit of unanimity in the Supreme Court — 5-4 Monday is proof of that. No one could have seriously thought, however, that there was some magic charm Roberts might wield capable of transforming his seven srong-willed senior colleagues into cheerful followers. Roberts, though, is plainly trying to develop his own lines of thinking independent, often enough, of the established positions of Justices Scalia, Kennedy, and Thomas — at some point he may persuade one or more of them to follow his lead, maybe even in an important case. At minimum, it's good practice: Roberts is likely to continue as Chief Justice well into the era after Scalia and Kennedy, at least, have left the Court. He may, someday, overawe their successors.

Wisconsin Right to Life — the campaign finance case — was not, however, Roberts's most immediately successful effort. Scalia, Thomas, and Kennedy refused to join his attempt to define, as a matter of constitutional law, the difference between candidate advocacy and issue advocacy, and thus treat the enforcement of the federal statutory ban on candidate advocacy 30 days before primary election day as wrong given the facts of the particular case before the Supreme Court, but not wrong in principle. Justice Alito did join Roberts, but evidently rattled by Justice Scalia's needling (“faux minimalism”), Alito also added a waffling opinion of his own (thereby supplying Scalia with a second target.) Was Roberts wrong? Ironically, he might be thought to have been not minimalist enough. Wisconsin Senator Feingold was running unopposed in the Democractic primary. The WRTL advertisement discussed the then-pertinent filibuster against several of President Bush's judicial nominees, opposed such delaying tactics, and urged its audience to contact Senator Feingold and also Senator Kohl (for whom the election was irrelevant.) The federal statute keyed its ban to advertisements that referred to candidates. Feingold was a candidate — but he was also a sitting Senator (along with Kohl). Why not read the statute as not covering this case, especially since the primary was — in Feingold's case — [AMF edit: not] a contested election? Roberts (like Scalia et al. and also the parties to the case) supposes that because Feingold is, among other things, a candidate therefore the statute covers the WRTL advertisement.

Why didn't Chief Justice Roberts treat the case as a statutory matter rather than a constitutional matter as such? Maybe because the statute — the McCain Feingold Act — seemed to rest on a strong assumption that's easy to accept: Election campaigning is what's really important; issue advertising like that undertaken by WRTL in the case at hand really is backdoor candidate attack advertising (or support advertising), whatever its literal message appears to be. It's easy to understand why Senators and Representatives would think like this (“it's all about us”) — it's their job, after all, to judge everything around them as potentially affecting their reelection prospects and to respond appropriately: that's what, most of the time, democratic representative government entails.

But that's not the only pertinent perspective. Why would WRTL spend its money, after all, to campaign against Feingold if he was running unopposed? Why would WRTL focus on filibustering as wrong — what does this have to do with protecting the lives of the unborn? To be sure, the judicial nominees who were denied quick votes were, in all likelihood, individuals who as judges would vote in ways that WRTL would support. But why not spend money on direct efforts to build support for the right to life? We know the answers: (1) Maybe WRTL was trying to build a coalition, to add support (sometimes, anyway) of individuals not strongly engaged regarding abortion etc., but strongly committed to straightforward legislative processes. There are such people (maybe quite a few, maybe especially in Wiisconsin, for all we know.) (2) Or maybe WRTL was trying to demonstrate that it has access to resources so rich that it can move beyond its core concerns and therefore needs to be treated, in the real business of legislative bargaining, as a real player. Feingold, on either hypothesis, is a prop, a faux target of the advertisements. Candidates may be secondary concerns even in election seasons.

This is a subversive suggestion, maybe: within our politics, who is elected may not matter as much as what those of us who are not candidates think about “our” own thinking — the views of each other with respect to the issues we all think matters. Election seasons are occasions for “real” politics — voter-to-voter argument, discussion, posturing, etc. Election results are sideshows. This conclusion, we know, is sometimes wrong “big time” (to quote Vice President Cheney)!!!!!! But it's not always wrong — and, as a constitutional matter, we might want to treat free speech protection as more important insofar as it addresses the speech of those of us who are not running for office — maybe popular sovereignty suggests this bias. If so, whatever officeholders or their would be successors think, maybe statutes should be read, where possible, in ways consistent with this bias.

To be fair: Chief Justice Roberts did emphasize the distinction between candidate advocacy and issue advocacy. Indeed, he wanted to treat the distinction as part of constitutonal law. But he had a hard time explaining why. He thought that free speech protection requires bright lines. That's a superficially attractive idea. But the enormous mass of Supreme Court free speech opinions yield very few bright lines. The greatest opinions, however, do try to link free speech protection to even more basic premises. See Brandeis in Whitney or Brennan in New York Times or Harlan in NAACP v Alabama etc etc. WRTL was an occasion for thinking about deep premises — and also a chance to articulate constitutional norms not as rules broken or followed, but as guides to interpreting congressional or other government efforts. Roberts had the change to be both maximal and minimal in the same opinion. Great opinions seize that opportunity.

Is That All There Is?

Pat Gudridge:

Davenport v. Washington Education Association, decided on June 14, is another case that the Supreme Court seems to have seen as easy work. In Washington, public sector unions represent not only members but other employees included within a pertinent bargaining unit. Only members pay dues, but as a matter of law unions are authorized to charge nonmembers “agency fees” equivalent to dues to cover expenses incurred in representation. Unions often use funds — generated by both dues and fees — to support candidates for public office who union officials think will act in ways furthering the interests of the individuals that the unions represent (both members and nonmembers). Some individuals who are represented — maybe especially those who are not union members — may disagree with union political judgments. The Supreme Court has held that state laws that authorize unions to collect agency fees operate unconstitutionally if they do not recognize the right of objecting individuals to withhold the fraction of their agency fees used for political action with which they disagree.

Voters in the State of Washington went one step further a few years ago: They approved an initiative measure requiring public sector unions to require affirmative agreement by nonmembers to use of their fees for purposes of political action. (The ordinary practice — usually thought to be constitutionally sufficient — involves unions sending notice to fee-payers of their right to object and the duty of the unions, once objection is made, to then adjust fees accordingly.) The effect of the initiative may well have been substantial: Even if only a few nonmembers had strong views about union political agendas, more might be indifferent, happy to save some money on agency fees, and in any event not prepared to go to the trouble of supplying affirmative authorization. Some individuals might even give up union membership in order to get the benefit of lower cost fees.

So the WEA (the politically powerful teachers union — maybe even the principal target of the initiative in the first place) challenged the constitutionality of the initiative, claiming that it violated the free speech rights of the union itself. The Supreme Court was not persuaded — Justice Scalia writing for the majority (with Justice Breyer — joined by Chief Justice Roberts and Justice Alito concurring, but noting their view that Scalia didn't really need to write so much.)

Justice Scalia takes free speech quite seriously — as he understands it — and so his opinion warrants careful reading. He argued that “unions have no constitutional entitlement to the fees of nonmember-employees.” The fees were not union property (even if in union possession), but rather funds in union possession because of an “extraordinary state entitlement to acquire and spend other people's money.” Why shouldn't the state be free to set conditions on this “extraordinary” authorization? Scalia recognized that even in the absence of some constitutional property right, the union could object to conditions that violated free speech principles. And he acknowledged that the condition at issue split off political action expenditures from other representational expenditures in terms that necessarily turned on the content of the ideas the union was pushing (vote for x vs. pay workers y, for example). But government regulation triggered by communicative content, Scalia thought, was not especially troubling if it was not tied to viewpoint (don't spend money to support Republicans, for example), and was otherwise an apparently reasonable response to an apparently real worry (election integrity in this instance).

Is any of this interesting?

Everything Justice Scalia writes is right within limits: It's hard to describe the fees that the union receives as “its” property — the union holds the money in trust, we might say: owes a duty to those who pay the fees to use the money for proper purposes. Spending money to support candidates is not an improper purpose (Scalia does not suggest that it is): It's one way to advance employee interests, sometimes anyway. Of course, objecting individuals have free speech rights not to have their money spent in ways contrary to their own views. But the union, as an association of individuals, has a free speech right to press its own views. Justice Scalia doesn't really disagree with that either. He just thinks, in this opinion anyway, that free speech rights begin and end with protection against viewpoint discrimination. The Washington rule provides individual fee payers with plenty of protection against forced support of viewpoints they resist in fact, but puts no limit as such on whatever viewpoints unions want to assert (so long as they sign up fee payers in advance). No problem — if viewpoint regulation is all free speech law should worry about.

But notice what's missing: The free speech interest of fee payers who object to union viewpoints is already plainly protected by the usual rule — the rule that Washington voters replaced — that requires unions to adjust fees of nonmembers who notify unions of their objections. There is no added free speech protection, we may think, owing to the Washington “advance approval” requirement. But the Washington approach plainly runs the risk of reducing resources for union speech over and above the constitutionally necessary limit set by the need to acknowledge dissenters. So there is likely a real free speech cost. Shouldn't we try to think about “election integrity” or whatever other reason Washington has — think about how plausible it is, at least on the off chance that the point of the measure might have been precisely to reduce WEA clout vis a vis other interest groups?

In ancient times — in the bad old days of the Warren Court — Supreme Court justices often thought that these latter questions needed to be taken seriously too. What should we make of the fact that not one of “our nine now” thought that this case was in any way hard?

President for a Day

Cute piece of Senate trivia: President for a Day:

Until the 1930s, presidential and congressional terms began at noon on March 4. In 1849, that date fell on a Sunday, causing President Zachary Taylor to delay his inauguration until the next day. For some, this raised the question of who was president from noon of March 4 to noon of March 5. Of course, we now know that Taylor automatically became president on the fourth and could have begun to execute the duties of his office after taking the oath privately, a day before the public inauguration.

In 1849, the Senate president pro tempore immediately followed the vice president in line of presidential succession. That era's ever-present threat of sudden death made it essential to keep an unbroken order of succession. To ensure that there was a president pro tempore in office during adjournment periods, the vice president customarily left the Senate chamber in an annual session's final days so that the Senate could elect this constitutional officer. Accordingly, the Senate duly elected Atchison on March 2, 1849. His supporters, to the present day, claim that the expiration of the outgoing president's and vice president's terms at noon on March 4 left Atchison with clear title to the job.

Unfortunately for Atchison's shaky claim, his Senate term also expired at noon on March 4, thereby denying him the chance to become president. When the Senate of the new Congress convened the following day to allow new senators and the vice president to take the oath of office, with no president pro tempore, the secretary of the Senate called members to order.

No one planning to attend Taylor's March fifth inauguration seems to have realized that there had been a “President Atchison” in charge. Nonetheless, for the rest of his life, Atchison enjoyed polishing this story, describing his “presidency” as “the honestest administration this country ever had.”

[I'm in Italy until late Wednesday, so I queued up a few posts to cover while I'm away. This is one of them.]

The Case for Pyjamas

As of today, the police have a right to make you jump out of bed naked if they have a valid warrant — even if it's pretty clearly for someone else, and even if the someone else sold you the house you are living in three months earlier.

Meet Los Angeles County v. Rettele:

Deputies of the Los Angeles County Sheriff's Department obtained a valid warrant to search a house, but they were unaware that the suspects being sought had moved out three months earlier. When the deputies searched the house, they found in a bedroom two residents who were of a different race than the suspects. The deputies ordered these innocent residents, who had been sleeping unclothed, out of bed. The deputies required them to stand for a few minutes before allowing them to dress.

The residents brought suit under Rev. Stat. §1979, 42 U. S. C. §1983, naming the deputies and other parties and accusing them of violating the Fourth Amendment right to be free from unreasonable searches and seizures. The District Court granted summary judgment to all named defendants. The Court of Appeals for the Ninth Circuit reversed, concluding both that the deputies violated the Fourth Amendment and that they were not entitled to qualified immunity because a reasonable deputy would have stopped the search upon discovering that respondents were of a different race than the suspects and because a reasonable deputy would not have ordered respondents from their bed. We grant the petition for certiorari and reverse the judgment of the Court of Appeals by this summary disposition.

Incidentally, Justice Stevens's concurrence takes a much more sensible position, avoiding the constitutional question, although one that non-lawyers may find a bit technical.

Navy VA Hospital Accused of Pervasive Religious Bias

The Navy Times has an odd and disturbing report, Navy vet: Chaplains tried converting me:

Navy veteran David Miller said that when he checked into the Veterans Affairs Medical Center in Iowa City, he didn't realize he would get a hard sell for Christian fundamentalism along with treatment for his kidney stones.

Miller, 46, an Orthodox Jew, said he was repeatedly proselytized by hospital chaplains and staff in attempts to convert him to Christianity during three hospitalizations over the past two years.

He said he went hungry each time because the hospital wouldn't serve him kosher food, and the staff refused to contact his rabbi, who could have brought him something to eat.

…

He described the Iowa City facility as an institution permeated by government sponsorship of fundamentalist Christianity and unconstitutional discrimination against Jews.

There have been a disturbing number of stories during this administration of religious zealotry gone wild in the Army (Lt. Gen. Boykin), Air Force (the the Air Force Academy scandal), and now the Navy version. I can't recall hearing nearly as much of this in any prior administration.

Antidisestablishmentarianism at the Department of Defense

It seems that the 'the USA is a Christian nation' types have been helping the Defense Dept. write textbooks for Junior Reserve Officers Training Corps (JROTC). So at least argues Talk To Action | Reclaiming Citizenship, History, and Faith, The Department of Defense — Bringing Historical Revisionism to a High School Near You.

It sounds convincing, although I haven't sought to do original research to check it out. [Update: I should add that the part about Jefferson is consistent with what I've read elsewhere — it's the DoD part that I'm taking on faith.]

(And, yes, I know that “antidisestablishmentarianism” originally referred to the reaction against British proposals to disestablish the Church of England, not to the disestablishment of the churches in colonial and post-revolutionary America, but I'm assured it now has a more general meaning also.)

The 'Unitary Executive' Theory of Presidential Royalism Reappears to Justify Warantless Wiretapping (Purely Theoretical of Course)

Buried deep in today's print edition, nowhere to be found on the front of the web page, is this little jem gem from the New York Times: Administration Pulls Back on Surveillance Agreement:

Senior Bush administration officials told Congress on Tuesday that they could not pledge that the administration would continue to seek warrants from a secret court for a domestic wiretapping program, as it agreed to do in January.

Rather, they argued that the president had the constitutional authority to decide for himself whether to conduct surveillance without warrants.

…

During a hearing Tuesday of the Senate Intelligence Committee, Mr. McConnell was asked by Senator Russ Feingold, Democrat of Wisconsin, whether he could promise that the administration would no longer sidestep the court when seeking warrants.

“Sir, the president’s authority under Article II is in the Constitution,” Mr. McConnell said. “So if the president chose to exercise Article II authority, that would be the president’s call.”

So I guess the previous promise is now inoperative?

It seems to me that when confronted by this kind of aggressive nonsense, a wise Senator would at least extract a promise from the bureaucrat testifying that he'd resign if it ever happened. That should, at minimum, figure in the confirmation hearings of every Justice Department official from now on.

And we may be having a number of those hearings.

Recall that at the heart of all this is the far-far-right claim that the Constitution gives the President the powers of a King. It's really as extreme as that. I wrote an article about this a long time ago, The Imperial Presidency's New Vestments, 88 Nw. L. Rev. 1346 (1994), if you want to know more.

Is the Special Counsel Constitutional? Only Probably.

The Office of the Special Counsel that I wrote about in Office of Special Counsel Stirs from its Torpor is an independent agency headed by an official appointed according to 5 USC § 1211(b):

The Special Counsel shall be appointed by the President, by and with the advice and consent of the Senate, for a term of 5 years. The Special Counsel may continue to serve beyond the expiration of the term until a successor is appointed and has qualified, except that the Special Counsel may not continue to serve for more than one year after the date on which the term of the Special Counsel would otherwise expire under this subsection. The Special Counsel shall be an attorney who, by demonstrated ability, background, training, or experience, is especially qualified to carry out the functions of the position. A Special Counsel appointed to fill a vacancy occurring before the end of a term of office of the Special Counsel’s predecessor serves for the remainder of the term. The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office. The Special Counsel may not hold another office or position in the Government of the United States, except as otherwise provided by law or at the direction of the President.

There's some question as to whether this statute is constitutional; if it isn't, then the whole office is unconstitutional and all its acts could be declared void.

In Morrison v. Olson, 487 US 654 (1988), the Supreme Court considered the office of the other special counsel — the special prosecutors we no longer have because the statute sunsetted and was not renewed. That office differed from this one in two important ways.

First, the old special prosecutor was located in the Justice Department, and nominally responsible to the Attorney General. That fact allowed the Supreme Court to classify the Special Prosecutor as an “inferior officer of the United States” (who if Congress so chooses can be appointed by a court, or by the President alone, or by an Officer of the United States), as opposed to a more important official, like a Cabinet Secretary who, being an “Officer of the United States”, can only be appointed by the President, by and with the consent of the Senate. There's little doubt that the Special Counsel here, the head of a free-standing agency, would count as an “Officer of the United States” — and that since he's appointed in conformity with the Appointments Clause, that's not a Morrison problem.

Rather, the potential problem is the second difference: the two removal clauses.

The Special Counsel may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.

Contrast this to the removal provision approved (for an inferior officer) in Morrison:

An independent counsel appointed under this chapter may be removed from office, other than by impeachment and conviction, only by the personal action of the Attorney General and only for good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties.

(The statute also contemplated possible removal proceedings by the same judicial panel that appointed the Special Prosecutor, but the Supreme Court in Morrison chose to read that power very narrowly — limited to recognizing when others informed it that the job was done — to avoid what the Court thought would otherwise be probable violations of the separation of powers.)

In approving the second removal provision in Morrison, the Supreme Court explained the factors it found relevant:

the real question is whether the removal restrictions are of such a nature that they impede the President's ability to perform his constitutional duty, and the functions of the officials in question must be analyzed in that light.

Considering for the moment the “good cause” removal provision in isolation from the other parts of the Act at issue in this case, we cannot say that the imposition of a “good cause” standard for removal by itself unduly trammels on executive authority. There is no real dispute that the functions performed by the independent counsel are “executive” in the sense that they are law enforcement functions that typically have been undertaken by officials within the Executive Branch. As we noted above, however, the independent counsel is an inferior officer under the Appointments Clause, with limited jurisdiction and tenure and lacking policymaking or significant administrative authority. Although the counsel exercises no small amount of discretion and judgment in deciding how to carry out his or her duties under the Act, we simply do not see how the President's need to control the exercise of that discretion is so central to the functioning of the Executive Branch as to require as a matter of constitutional law that the counsel be terminable at will by the President.[FN31]

[FN31. We note by way of comparison that various federal agencies whose officers are covered by “good cause” removal restrictions exercise civil enforcement powers that are analogous to the prosecutorial powers wielded by an independent counsel. See, e.g., 15 U.S.C. § 45(m) (giving the FTC the authority to bring civil actions to recover civil penalties for the violations of rules respecting unfair competition); 15 U.S.C. §§ 2061, 2071, 2076(b)(7)(A) (giving the Consumer Product Safety Commission the authority to obtain injunctions and apply for seizure of hazardous products).]

Nor do we think that the “good cause” removal provision at issue here impermissibly burdens the President's power to control or supervise the independent counsel, as an executive official, in the execution of his or her duties under the Act. This is not a case in which the power to remove an executive official has been completely stripped from the President, thus providing no means for the President to ensure the “faithful execution” of the laws. Rather, because the independent counsel may be terminated for “good cause,” the Executive, through the Attorney General, retains ample authority to assure that the counsel is competently performing his or her statutory responsibilities in a manner that comports with the provisions of the Act.

In addition to what it called the limited scope, duration, and discretion of the Special Prosecutor, the Court also pointed to two other factors:

…this case does not involve an attempt by Congress to increase its own powers at the expense of the Executive Branch.

…we do not think that the Act works any judicial usurpation of properly executive functions

How does the removal provision for this Special Counsel stack up to the Morrison test?

I'm going to take it as given that this special counsel's function is no greater an usurpation of the President's powers than that of the special prosecutor in Morrison (without taking a position on how big an usurpation that is — Justice Scalia's Morrison dissent argues passionately that it is enormous). The only argument that I can see for the proposition that the current Special Counsel is a greater threat to the President's powers is that the office is permanent; the Supreme Court noted that the special prosecutor was only temporary. In hindsight, given that Special Prosecutor David Barrett's investigation of Henry Cisneros consumed $21 million dollars and more than ten years' investigation but produced only a misdemeanor conviction (later pardoned), the distinction may seem academic at best. Indeed, the Special Counsel only has a five year term, arguably making his tenure more limited…)

On the one hand, since the Special Counsel is an “Officer,” rather than an “inferior officer” like the Special Prosecutor, the stakes are higher, and the requirement for Presidential control might be higher too. It follows that any removal provision that reduces the President's powers below that which the Attorney General enjoyed in Morrison are very likely to be unconstitutional; indeed even a removal provision as limited as that in Morrison might limit the President's removal power too severely for the Court unless footnote 31 quoted above is seen as controlling approval in dicta. And of course, given how reluctant the court seemed in Morrison, it is hard to imagine that a much a narrower removal provision would pass muster.

So which of these two statutes gives the removing authority less power:

• removal for “good cause, physical disability, mental incapacity, or any other condition that substantially impairs the performance of such independent counsel's duties,” or
• removal “for inefficiency, neglect of duty, or malfeasance in office.”

If you think the top statute, Morrison's, gives more removal power than the second one, then the Special Counsel law is almost certainly unconstitutional. If you think they are about the same, it's a hard call given the different nature of the jobs, but the Special Counsel might be OK. If you think that the second list more greatly empowers the removing authority (i.e. applies to a broader set of circumstances) than the top, then there's probably nothing for the Special Counsel to worry about.

My own view is that the difference between “good cause” and “inefficiency, neglect of duty, or malfeasance in office” is not very great. Thus, given the case law to date, this seems like a hard case to me, but one where the Special Counsel might squeak through on the strength of footnote 31's approving dicta. On the other hand, were the Supreme Court to decide in light of experience that Justice Scalia was right in Morrison — which after Ken Starr and David Barrett is a view now shared by many — this statute (and several others which create independent agencies) might just be for the chop.

Times Update (& More About the Belknap Case)

Well, the NYT has silently corrected the online version of the Stolberg story I complained about this morning in my posting “Times Reporter Forgets That Gonzales is Impeachable”. When I correct stuff here (more than five minutes after posting it), I indicate the changes with strikeout or “update”. The online NYT seems to operate by different rules. Something to keep in mind when citing it.

The old version can (for the moment at least) be viewed at the International Herald Tribune.

Meanwhile, I've found an interesting article by John Dean which discusses the (hitherto unknown to me) details of the impeachment of Secretary of War William Belknap,

Impeachment of Secretary of War William Belknap, in the aftermath of the Civil War, is the only precedent for using these proceedings against subordinate executive officers. Belknap was said to be involved in a kickback scheme involving military contracts. Just hours before the House was to vote to impeach him, Belknap resigned. Nonetheless, on March 2, 1876, the House impeached the former cabinet officer, and the five articles of impeachment were presented to the Senate.

The Senate trial lasted five months. (Today, such a trial would likely be handled by a trial committee of twelve senators, with a final debate and vote by the full Senate.) A central issue in the Belknap case was whether his resignation had terminated the jurisdiction of the Congress, and whether impeachment was still appropriate when his removal was no longer at issue. The Chairman of the House Judiciary Committee, Representative J. Proctor Knott, who was trying the case before the Senate, explained the controversy as follows:

“Was the only purpose of this disqualification simply to preserve the Government from the danger to be apprehended from the single convicted criminal?” Knott rhetorically asked. “Very far from it, sir. That in reality constituted but a very small part of the design. The great object, after all, was that his infamy might be rendered conspicuous, historic, eternal, in order to prevent the occurrence of like offenses in the future. The purpose was not simply to harass, to persecute, to wantonly degrade, or take vengeance upon a single individual; but it was that other officials through all time might profit by his punishment, might be warned by his political ostracism, by the ever-lasting stigma fixed upon his name by the most august tribunal on earth, to avoid the dangers upon which he wrecked, and withstand the temptations under which he fell; to teach them that if they should fall under like temptations they will fall, like Lucifer, never to rise again.”

By two votes, Belknap escaped conviction in the Senate. Had he not resigned, however, there is little question he would have been found guilty, removed and disqualified. Belknap's proceedings are a clear precedent for impeaching and disqualifying “civil officers,” but the case has not resolved the issue of merely disqualifying an official who has resigned from holding future office.

There's lots of other interesting stuff about the politics of impeachment in Dean's Findlaw article too.

Times Reporter Forgets That Gonzales is Impeachable

I spotted a real howler in this morning's NY Times, and emailed the following request for a correction:

In “On a Very Hot Seat With Little Cover and Less Support” Sheryl Gay Stolberg writes,

“Congress has no power to remove the attorney general”

[URL]

This is not accurate. The Constitution provides a mechanism by which all civil officers of the United States can be removed by Congress. It is called impeachment. Article II, Section 4 of the Constitution specifies that “The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”

The Congress has only used this power against a Cabinet member once — William W. Belknap, secretary of war, was impeached by the House but acquitted by the Senate in 1876 — but the power unquestionably exists.

While this may seem a small matter, to a law professor, and I'd imagine any lawyer, it's a pretty big one. It may even matter politically.

Please run a correction in the print edition (I spotted the error in the print version) and append a fix to the online version.

Thank you.

Don't reporters who cover the federal government have to know the Constitution?

Oh well, Stollberg is still better than Elisabeth Bumiller whom Stollberg replaced on the White House beat.

Random Thought About Presidential Term Limits

Why not amend the Constitution to allow Presidents to serve any number of terms -- but no more than two consecutive ones?

Not only would this make Bill Clinton a possible candidate again, but it would keep the virtues of the current term-limit rule -- forcing a degree of regime change -- while reducing both of the worst effects of lame-duck status: the pointless Presidency and the lack of constraint on politicians who know they need never face the voters again.

Not that it would do any good with the current office-holder, who is a lame duck no matter what as the electorate has (finally) soured on him, but you can't have everything. (The cure to the current problem is already found in the Constitution.)

Amicus Brief Compares Bush Detention of Arab and Muslim Aliens in US to Japanese Internment

My friend Eric Muller has filed an amicus curiae brief on behalf of Karen Korematsu-Haigh, Jay Hirabayashi, and Holly Yasui in the pending 2nd Circuit case of Turkmen v. Ashcroft.

Eric's blog entry is Today I Am Filing An Amicus Curiae Brief Challenging Post-9/11 Racial Detention. The brief is available for download, and there's also an article in today's New York Times, Relatives of Interned Japanese-Americans Side With Muslims. As the article notes,

In recent years, many scholars have drawn parallels and contrasts between the internment of Japanese-Americans after the attack on Pearl Harbor, and the treatment of hundreds of Muslim noncitizens who were swept up in the weeks after the 2001 terror attacks, then held for months before they were cleared of links to terrorism and deported.

But the brief being filed today is a rare case of members of a third generation stepping up to defend legal protections that were lost to their grandparents, and that their parents devoted their lives to reclaiming.

“I feel that racial profiling is absolutely wrong and unjustifiable,” Ms. Yasui, 53, wrote in an e-mail message from San Miguel de Allende, Mexico, where she works as a writer and graphic designer. “That my grandmother was treated by the U.S. government as a ‘dangerous enemy alien’ was a travesty. And it killed my grandfather.”

…

Professor Muller said he drafted the brief on behalf of the three grandchildren to try to persuade the Second Circuit to reject what he considers the needless breadth of Judge Gleeson’s opinion. “Judge Gleeson’s decision paints with such a broad brush, there isn’t really any stopping point,” he said.

The judge held that under immigration law, “the executive is free to single out ‘nationals of a particular country.’ ” And because so little was known about the 9/11 hijackers, he ruled, singling out Arab Muslims for detention to investigate possible ties to terrorism, though “crude,” was not “so irrational or outrageous as to warrant judicial intrusion into an area in which courts have little experience and less expertise.”

The brief counters that the ruling “overlooks the nearly 20-year-old declaration by the United States Congress and the president of the United States that the racially selective detention of Japanese aliens during World War II was a ‘fundamental injustice’ warranting an apology and the payment of reparations.”

And, it adds, the district court’s deference to the government “ignores the tragic consequences of such deference” for 120,000 people of Japanese ancestry during World War II.

Bravo Eric (& his team)!

A Good Question

Steve Vlakeck would like to know How many U.S. citizens are being detained by the U.S. military in Iraq?.

It's a good question. Actually, Steve has a whole raft of them up at Niemanwatchdog.org.

Jim Webb Strikes Again

Jim Webb: a Senator who won't take no answer for an answer.

It feels like watching an updated Mr. Smith Goes to Washington.

We're In Trouble

We're in big trouble.

Have a look at The Washington Note, whose latest begins like this:

Washington intelligence, military and foreign policy circles are abuzz today with speculation that the President, yesterday or in recent days, sent a secret Executive Order to the Secretary of Defense and to the Director of the CIA to launch military operations against Syria and Iran.

The President may have started a new secret, informal war against Syria and Iran without the consent of Congress or any broad discussion with the country.

If this is true, we're in very big trouble. Or, if the rumor was sparked by an order 'only' authorizing clandestine operations (or, worse, bombardment) as a form of provocation, this is serious stuff. But even if it's not at all true in any way, we're in pretty big trouble, as the spread of this rumor means we've reached a point in our politics when sober, quite moderate, people like Steve Clemons are starting at shadows.

I can only remember one time that felt like this: when Nixon was in the last weeks of his Presidency, and people -- including the then-Secretary of Defense-- got worried that Nixon might try to start a war to distract the country from his troubles, or even stage some sort of coup. People in DC even began to speculate as to what military forces could be assembled as a counterweight in the event that Nixon, rumored to be drunk and unstable, chose to subvert the Constitution.

According to reports published after Nixon resigned, Defense Secretary James Schlesinger even went as far to tell some of the highest-ranking military officers to inform him if any 'extraordinary orders' went out from the White House and to refrain from carrying out any orders which came from the White House outside the normal military channels. (An action, incidentally, of dubious formal legality on the part of both James Schlesinger and his generals.)

Those were not good times.

Any time there is serious speculation by ordinarily sober people that the President has launched a secret war against one -- or two! -- countries, well, those are not good times either.

I think this is true whoever you think is at fault -- the administration for being Hell-bent for lunacy, or the DC Democrats (or if you prefer the DC Establishment), for being a bunch of strategic cowards. Whenever the level of trust within the governing class has so broken down, we are in for hard times indeed.

And if, as Clemons's article suggests, the White House is launching a new secret war (or two), then we're far worse off than we were in 1974, for who in the modern White House would cast him or herself as our modern James Schlesinger?

Rightous Wrath

Ok, I think this guy is a little angry. And with good reason.

Major Ruling (Partly) Limiting Abusive Presidential Power

Judge strikes down part of Bush anti-terror order.

A federal judge in Los Angeles, who previously struck down sections of the Patriot Act, has ruled that provisions of an anti-terrorism order issued by President George W. Bush after September 11 are unconstitutional.

U.S. District Judge Audrey Collins found that part of the law, signed by Bush on September 23, 2001 and used to freeze the assets of terrorist organizations, violated the Constitution because it put no apparent limit on the president's powers to place groups on that list.

...

"This law gave the president unfettered authority to create blacklists, an authority president Bush then used to empower the Secretary of the Treasury to impose guilt by association," said David Cole of the Washington-based Center for Constitutional Rights.

Interestingly, the judge's preliminary observations on the case, several months ago and prior to an additional round of briefing, indicated a leaning towards upholding the statute.

Oy Vey

Horrible, simply horrible.

Time to exhume my "Experts Agree: Ed Meese is a Pig" T-Shirt.

Judge Rules Warrantless Domestic Wiretaps Are Unconstitutional

AP: Judge nixes warrantless surveillance

A federal judge ruled Thursday that the government's warrantless wiretapping program is unconstitutional and ordered an immediate halt to it.

U.S. District Judge Anna Diggs Taylor in Detroit became the first judge to strike down the National Security Agency's program, which she says violates the rights to free speech and privacy.

Alas, I haven't time right now to read the opinion [PDF] and judgment and permanent injunction order [PDF].

UPDATE: Jack Balkin read it and isn't impressed by the quality of the reasoning.

Only Kinda Joking

America's Finest News Source has the full details on the latest constitutional moves emanating from the White House --

Bush Grants Self Permission To Grant More Power To Self: WASHINGTON, DC--In a decisive 1-0 decision Monday, President Bush voted to grant the president the constitutional power to grant himself additional powers.

...

The Presidential Empowerment Act, which the president hand-drafted on his own Oval Office stationery and promptly signed into law, provides Bush with full authority to permit himself to authorize increased jurisdiction over the three branches of the federal government, provided that the president considers it in his best interest to do so.

...

Senior administration officials lauded Bush's decision, saying that current presidential powers over presidential power were "far too limited."

An Excellent Explanation of Why Bush's Policy on 'Signing Statements' is So Rotten

Seven former OLC members, including Walter Dellinger and Marty Lederman have jointly authored, Untangling the Debate on Signing Statements. It's a great explanation of the issues and why the Bush position on them is so troubling, and I'm in very substantial agreement with it.

Like the authors, I don't for a second dispute the right, indeed duty, of the President to instruct the members of the executive branch in how to do their jobs -- absent contrary congressional commands anyway. And Presidents have the right to say whatever they want when signing legislation. Like the authors, I don't think this has much relevance to what a court should do if asked to decide the constitutionality of the statute. It's certainly not on a par with legislative history -- really nothing more than an argument in a brief. But there's no harm in that.

And I accept that modern practice has for many years accepted that Presidents can sign a bill that they believe contains an unconstitutional provision then seek to have that part severed from the bill via court action -- although the purist in me would prefer that the President veto the whole thing on constitutional grounds: Judicial severing of parts of legislation is not a particularly principled process and seems to be one that, for all its pragmatic short-run virtues, in the long run we might well be better-off without.

It's no small matter when a President fails to execute or observe a statute -- although constitutional grounds and subsequent court approval have in rare cases justified this stance. And the problem is more than doubled when -- as is the case with the current administration -- a President fails to observe the law in a manner which is designed to hide the ball, rather than make clear to the public and the courts that the President believes there's a serious constitutional problem. It's not ironic but deadly serious that this administration considers the statute requiring it to report when it fails to observe a law to be one of the many laws it doesn't actually have to follow.

The other problem, of course, is that this administration has abused the 'constitutional objection' card beyond all credibility. Claiming that there are hundreds of bills that require executive correction betrays a worldview which says the President is a king, with fully and plenary powers not subject to legislative constraint and indeed has more-than-royal power to rewrite legislation at will.

A healthy democracy would have antibodies to this sort of thing. Ours seem very slow to swing into action. A big chunk of the blame lies in Congress, which has taken so much of this lying down for so long. And to be fair, part of it lies with the American people who voted this crew back into office in 2004. I hope 2006 will be a different story.

Hamdan Analysis

They do it, so I don't have to (besides, they do it better):

• Steve Vladeck, After Hamdan: Reclaiming Congressional War Power
• Marty Lederman, Legislative Supremacy, The Laws of War, and the Geneva Holding
• Jack Balkin, Hamdan as a Democracy-Forcing Decision

In Which I Announce My Candidacy for Public Office

The Carpetbagger reports that Constitutional convention talk refuses to go away:

some of the less-sane members of the GOP base are openly considering a constitutional convention because of the Senate's failure to pass an amendment banning gay marriage. Unfortunately, talk of such a ridiculous idea seems to be increasing, not decreasing.

A second Constitutional Convention is actually far more likely than it should be: Over the decades, arguably as many as 32 states have passed resolutions calling for a Constitutional Convention, just two shy of the 34 needed. I say "arguably" because some of these were a long time ago, and Dillon v. Gloss (1921) (!) tells us that changes in the Constitution should be the result of a "contemporaneous consensus." Nevertheless, there is a contrary body of opinion, exemplified by the ratification of the 27th Amendment that these calls do not have a 'use-by' date -- they remain in force at least until rescinded by the legislatures which issued them. (Some people even argue that since the Constitution doesn't mention taking back a call for a convention, even a rescinded call for a Convention remains in effect!)

On the other hand, many of the petitions states have voted in the past are plausibly dismissed as technically deficient, as they purport to request that a convention be called for a particular purpose (e.g. to consider a given amendment), while the Constitution quite clearly contemplates only an open-ended procedure. It's not at all clear what weight to give those resolutions.

Working on a worst-case hypothesis, as best I can tell the 32 states that have called for a new Constitutional Convention in some form or other are:

Alaska, Arizona, Arkansas, Delaware, Colorado, Georgia, Idaho, Iowa, Kansas, Maryland, Mississippi, Missouri, Nebraska , New Hampshire, New Mexico , North Carolina, North Dakota, Oklahoma, Oregon, Pennsylvania , South Carolina, South Dakota, Tennessee, Texas, Utah , Wyoming

Alabama, Florida and Louisiana each subsequently rescinded their calls. As if in counterbalance, South Carolina and Tennessee passed their resolutions twice and Louisiana did it three times.

One house of the bicameral Nevada legislature also purported to "purge" its resolution, but as the call had been voted by both houses, it's hard to see this as legally effective.

So the bottom line is...confusing. If the calls for a limited convention count as calls for an unlimited convention, and the rescissions don't work, then we could be as little as two states away. If the three rescissions are legally effective -- and I think they should be -- we could be as little as five states away. On the other hand if only knowing and general calls for a convention work (which, on balance, I think should be the right answer) then we are very far away, although I don't know what the exact number is; similarly, if the courts were to craft some sort of time limit for the validity of a call for a Convention, then we could be almost at square one, depending on what the line was.

Even if a Convention were to meet and to report out a new document, or changes to the old one, any revisions would have to be ratified by the states. I am sure that I don't need to spell out how dramatic the potential changes could be -- for ill, or even for good.

So, you heard it here first: If the call for a Second Constitutional convention happens, and if it survives its trip through the courts, then I'm going to be running to be a delegate. (Assuming we even get to elect our delegates, of course.)

A Word on the Rep. McKinney Matter

Orrin Kerr speculates plausibly that if Rep. McKinney is charged with an offense relating to her much-disputed altercation with the Capitol Police, it will be a simple misdemeanor, but that it won't happen

Will the U.S. Attorney’s Office charge McKinney with a federal crime? If she is charged, I gather the offense would be a misdemeanor simple assault under 18 U.S.C. 111(a) or 18 U.S.C. 113(a)(5). I don’t know who makes these sorts of calls within the U.S. Attorney’s Office, or what kinds of cases the U.S. Attorney’s Office in D.C. tends to pursue. As a result, I can only offer amateurish speculation. My amateurish speculation, for what it’s worth, is that the U.S. Attorney’s Office will decline prosecution. Three major reasons: First, McKinney was apparently on official business as a member of Congress at the time, and was well within her rights to enter the building without passing through the metal detectors. Second, the officer apparently wasn't hurt. Third, the story is already a media circus, and will only become much more of a circus if McKinney is charged.

All that makes sense, but I see it differently: I think it's a felony or nothing. Why? Art. I, sec. 6 of the Constitution privileges Representatives' and Senators' access to the chamber:

They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

It's true that grabbing hold of McKinney was not an "arrest" in the most common modern sense of "you are going to jail" but it was an "arrest" in the sense of "halting your progress". (For what little it's worth, the first OED entry for the noun form of arrest is "The act of standing still, halting, or stopping; stoppage, stop, halt, delay.") And it's clear to me that the goal of this Constitutional provision is unimpeded access for our lawmakers -- allowing the police to block entry to the Capitol without actually dragging Congresspersons off to the hoosegow would gut this important guarantee that the the executive may not prevent the legislature from meeting.

PS. Might you call it "breach of the peace"? I don't think so - it's undisputed that she didn't start it, and if the cops can stop a Representative who in protesting becomes a "breach of the peace"....

The Legal Equivalent of a 'Hail Mary' Pass

I haven't the energy to go into any detail this evening, but I thought I would just mention that at least based on the news reports, the latest argument to emerge from Scooter Libby's lawyers, Libby's Lawyers Say Prosecutor Acted Unconstitutionally, smacks of desperation.

I'd have to read the actual brief to be sure, but the general legal area in which arguments of this sort fall is territory I teach and write in. The Supreme Court held in 1988, in Morrison v. Olson, that a special prosecutor with far more independence than Fitzgerald -- one appointed under the old special prosecutor law which has since lapsed -- was not an unconstitutional actor. That 7-1 decision has been criticized in hindsight, and only two Justices who participated remain on the Court, including Scalia who wrote a fiery dissent, which may be what prompted this challenge. The trouble is that -- unless of course there's a surprise in the brief -- in order for this argument to work you'd not only have to get the Supreme Court to overturn the Morrison decision, which is conceivable if unlikely, but then also get that revised logic to apply to a set of facts that amount to a much, much weaker case for a separation of powers violation -- which I think is just not gonna happen.

Update: Fuller Washington Post story.

For Federal Jurisdiction Mavens

Constitutional law and federal jurisdiction mavens (but not too many others?) will definitely want to read Steve Vladeck's latest post on the Rooker-Feldman doctrine, inspired by a special concurrence in the 11th Circuit's consideration of the Schiavo case.

Ordinarily, I'd worry about junior faculty pouring out so much smarts into 'mere' blog posts, but Steve has so much to spare....

A Constitutional Law Scavenger Hunt With A Serious Purpose

Around the country, law students who study Constitutional Law in the Fall sone will be studying for their finals; not long afterwards, those who study it in Spring will start up their course. So it's as good a time as any to list the questions that, back in the days I used teach Constitutional Law I, I used to ask my students during the first week of class.

Some of these questions are very easy (although even in those cases, the answers may surprise you); some only appear to be. Others are inspired by real and difficult cases; a few illustrate doctrines of constitutional interpretation, some more controversial than others. And perhaps one or two don't have answers, or at least not answers that everyone agrees to. Which is remarkably odd given the simplicity of most of these questions....

Read The US Constitution, and the Amendments then take the quiz...

1. What clause, if any, of the Constitution permits Congress to establish an air force?

   See Why the Air Force is Not Unconstitutional

2. Could Congress constitutionally abolish the entire armed
   forces and the Pentagon, leaving the nation defenseless?

3. May Congress pass secret laws? If so, may (must?) the courts enforce
   them?
4. Can Congress pass valid laws which criminalize past conduct? Which
   impose taxes on past conduct? Which impose costs on the future results
   of past conduct?
5. Is there anything in the first seven articles of the Constitution that
   prevents the federal government from taking your house for $1?
6. Is there anything in the first seven articles of the Constitution that
   prevents the federal government from awarding you a $1 million personal
   bonus?
7. What is "corruption of blood," and why do we care? (you did
   look it up, didn't you?)
8. What is a "bill of attainder," and why do we care?
9. Can a person simultaneously be a Member of the House of Representatives
   and hold office in the Cabinet?
10. Can a person simultaneously be a Senator and hold office in the Cabinet?
    
11. Is there anything in the federal constitution that would prevent Congress
    from being chosen by a lottery among all registered voters?
12. Can Generals be impeached?
13. What is the minimum number of justices constitutionally required to
    form a Supreme Court?
14. Who decides how many justices actually sit on the Supreme Court?
15. Can a person simultaneously be a Supreme Court Justice and hold Cabinet
    office (e.g. be Secretary of State or Attorney General)?
16. Where, if anywhere, does the Constitution give the Supreme Court the
    authority to overrule itself?
17. Can Congress limit the jurisdiction of the federal courts to cases
    involving at least $ 200,000,000 ?
18. Could Congress validly give the Chief Justice the power to appoint
    the Attorney General?
19. What happens if the President signs a bill that, due to a typographical
    accident, lacks a sentence that was present in the versions passed by both
    houses of Congress?
20. What happens if the President neither signs nor vetoes a bill while
    Congress is not in session?
21. Can Congress vote the President a bonus if they feel the President
    is doing a particularly good job?
22. If Congress sets out to minimize the President's powers, what are the
    minimum powers guaranteed to him by the Constitution?
23. If Congress sets out to minimize the President's powers, can it abolish
    his entire staff? Evict him from the White House?
24. Is there anything in the federal Constitution that would prevent a
    state from choosing its legislature by a lottery among all registered voters?
    
25. What if anything happens at the federal level if due to allegations
    of voting irregularities, a state has two different groups purporting to
    be the legitimate state government?

A Vote for Unreviewable Injustice

The Senate did a bad thing yesterday, voting for the so-called Graham Amendment, 49-42 (with McCain voting for it), which would eliminate the statutory right of habeas corpus for alien detainees held by the Department of Defense at Guantanamo. The point of this amendment is to undermine the Supreme Court's June 2004 decision in Rasul v. Bush.

For an explanation of the issues see Marty Lederman at SCOTUS Blog and then see Steve Vladeck for the advanced course in the horrible and complex federal courts and constitutional law implications.

Amazingly, the proposal has a (tentative) academic supporter, Julian Ku, at Opinio Juris.

Circuit Justice Roberts's Eleven-and-a-Half-Day-Gap

Did Chief Justice Roberts accidentally create grounds for reopening (and even rearguing) Banner v. United States?

Here’s the argument:

This case is an appeal decided today [Hat Tip to How Appealing for the link] by a panel consisting of Chief Justice Roberts, sitting as a Circuit Justice, and D.C. Circuit Judges Edwards and Rogers. Chief Justice Roberts is the judge formerly known as "Circuit Judge Roberts," who was originally assigned to hear the appeal in that capacity, along with Edwards and Rogers.

On September 29, 2005, Circuit Judge Roberts took the oath of office as Chief Justice of the United States. And we can only presume that at that point, if not before, he effectively resigned his commission as U.S. Circuit Judge for the District of Columbia Circuit. Indeed, the Federal Judicial Center website states, in its entry for "Circuit Judge Roberts," that Roberts’s "[s]ervice terminated on September 29, 2005, due to appointment to another judicial position."

On October 11, 2005, the Supreme Court issued an order assigning Chief Justice Roberts to be Circuit Justice for the D.C. Circuit. Under 28 U.S.C. § 43(b), "Each Court of Appeals shall consist of the circuit judges of the circuit in regular active service. The circuit justice and justices or judges designated or assigned shall be competent to sit as judges of the court." So, in plain English, Chief Justice Roberts was a member of the circuit at the time of the opinion—i.e., today.

The problem, however, is that Roberts does not appear to have been a member of the circuit, either as a circuit judge or as a circuit Justice, between the date he left the court (September 29) and the date of the circuit Justice assignment order (October 11). What’s more, it’s not clear how, when he "rejoined" the court, he also rejoined the panel. After all, the normal procedure on most circuits (and, we presume, the D.C. Circuit) when a vacancy arises is either to leave the third seat vacant since the two remaining judges constitute a quorum, or to randomly assign a third judge.

This may seem like pedantry, but it was this very kind of punctilio that forced the Supreme Court to vacate a whole slew of criminal convictions affirmed by an "improperly constituted" Ninth Circuit panel in Nguyen v. United States in 2003. In Nguyen, the Court held that the presence of a judge who was not a duly constituted member of the court was grounds to invalidate any decision in which he participated, even when the remaining two judges would have constituted a quorum and would have chosen the same outcome.

It is certainly possible that the proper order reassigning Circuit Justice Roberts to the original panel does exist, and was filed by the Clerk of the D.C. Circuit. We have been able to find no such order, however, on the D.C. Circuit’s website, and a cursory search of the PACER docket summary for Banner reveals none. If there was indeed no such order, it certainly appears as if the losing party has a good claim that the panel decision is voidable under Nguyen.

In a subsequent post (which we hope never to write), we’ll explain whether Chief Justice Roberts would have to recuse from the cert. petition from the reargument, since he would no longer be a member of the panel below.

[Co-authored by Michael Froomkin and Steve Vladeck for cross-posting on PrawfsBlawg and Discourse.net, as an unfortunate result of our offices being close together.]

A War Powers Amendment?

Stirling Newberry, whose ideas I often like, has penned an odd one. I think I sort of like the idea behind it, but the execution leaves the lawyer in me very unsatisfied. Here's his proposal for a War Powers Amendment:

Article 1

It shall require a three fifths vote of the whole of both houses to declare war, or authorize the use of war powers. Congress may revoke a declaration of war, or of any specific war power, by three fifths vote of the whole of both houses, to take effect not less than 30 days from the date of the vote.

Article 2

The authorization for the use of war powers shall expire thirty days from the beginning of a new Congress, unless reauthorized by a majority of the whole of both houses.

Article 3

Should the President use force or fraud directed at the Congress for the purpose of attaining a declaration of war or war powers, he shall be removed following a vote of a three fifths of the Senate, if impeached by the House. The President may appeal this removal to the Supreme Court.

Well.

Art. 1 runs into the problem that we have lots of non-war wars. Also "war powers" - while there is an overly-vague war powers resolution, "war powers" is not a term with a constitutional definition. Are you going to trust courts to define it? Endless wrangles, and always while bullets and worse are flying. The executive will win.

Art. 2 is to me the most interesting, but would only work with a much more robust definition of what uses of force are war powers and what are not (is UN peacekeeping 'war powers'? Responding to a security council request for troops? Emergency rescue of US citizens in a war zone? Shipping supplies to an ally engaged in a fight? Spying?)

But whatever one thinks of 1 & 2 the third article is a big mistake. Any time you have two procedures for something you have the possibility of people getting into procedural wrangles about which applies, how they differ, etc. If we want to impeach a President, better to have him out than have wrangles and pretenders to the throne. Second, you shouldn't give the Supreme Court a standardless power of review. According to what standard is this review - de novo? abuse of discretion? What sorts of claims lie - denial of due process? ex parte communications? And having original jurisdiction in the Supreme Court creates some (surmountable but real) difficulties if there is a need to take testimony; the absence of a process for that might lead some to think the review was deferential, like the review of an administrative agency on its own record, or even more deferential than that.

Trying to stop things like the Tonkin Gulf Resolution or the even more open-ended and disasterous Iraq resolution is certainly a good idea, maybe even a great idea. But count this as just a first draft of a long drafting process.

Someone Knows The Answer to This Question About the Koso Statutory Rape Prosecution

Law professors tend to specialize. As a result, there are lots of legal things I don't know much about, and I try not to write about them. And there are lots of legal things I think I know something about, but I usually feel I don't know them well enough to opine publicly. And on those few subjects I think I know best, I tend to want to write fairly long and detailed articles, not blog posts. As a consequence, I don't tend to post legal (as opposed to political) commentary on this blog. The major exception so far has been the torture issue, which so offended me that I studied up on it to the point where I felt able to write about it, even though I don't currently have plans to publish on it in law journals.

But here's an exception to my rule, this time on a subject I know I don't know well: family law (and its criminal law counterpart). It's just that I'm curious about it.

The New York Times ran a story yesterday about a statutory rape charge being filed in Nebraska against one Matthew Koso, who is part of a couple (he: age 22, she: age 14) legally married in Kansas. The article doesn't mention the constitutional implications at all, nor it seems does much of the blog commentary, and I'd like to know why. (Just keep in mind as you read this that I'm prepared to be told that any of the following assertions is wrong.)

I would have thought that it was settled that under the privacy jurisprudence in the Griswold line of cases (striking down a state rule banning sales of contraceptives to married persons) no state could criminalize sex between consenting married adults, even due to their ages. I presume therefore that Nebraska law doesn't recognize the validity of the Kansas marriage, but I would have thought that this failure to recognize would violate the full faith and credit clause of the constitution:

"Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof."

In the so-called "Defense of Marriage Act" Congress purported to exercise its authority under the Full Faith and Credit Clause...to allow states to deny any credit to out-of-state marriages between same-sex couples. But--even assuming that this statute conforms to the Full Faith and Credit Clause (I'm dubious)--it's clear that the DOMA doesn't apply here. So what is Nebraska's authority for denying the validity of the Kansas marriage? Is it 'public policy'? Can that suffice to void a constitutionally protected relationship? Or is it some idea that minors don't have the same constitutional right to marry as adults, and this trumps the adult's right not to be prosecuted for marital sex?

I'm presume there's some good reason why the couple's defenders, including their lawyer, are not making these constitutional arguments. Alternately, they might be making them but it's not getting reported. Or, perhaps the prosecution iis to be based on a res ipsa loquitor claim regarding pre-marital sex?

Like I said, family law is not my field, and the facts are not utterly clear here, but I bet someone reading this either knows the answer or knows where it can be found.

Appeals court strikes down "partial-birth" abortion law -- for now

The first appellate court decision concerning a federal law called the Partial-Birth Abortion Ban Act of 2003 came down on Friday. In it, the Court of Appeals for the Eighth Circuit struck down the law as unconstitutional.

Here's the story: Five years ago, in a case called Stenberg v. Carhart, the Supreme Court invalidated a Nebraska law banning all so-called “partial birth” abortions. In a situation where a woman has the constitutional right to seek an abortion, the Supreme Court majority reasoned, a state may not regulate the method of her abortion in a way that endangers her health. Specifically, “where a significant body of medical opinion believes [an abortion] procedure may bring with it greater safety for some patients,” the state may not ban that procedure unless the ban incorporates an exception to cover those cases in which, medically, the banned procedure is the best approach. The Court canvassed the views of medical groups. It didn't find a consensus among doctors that, as plaintiffs argued, the banned procedures would be the safest for some patients. It didn't find a consensus the other way either, though: There was no consensus that the banned procedures couldn't sometimes be the safest approach for a pregnant woman. Bottom line: doctors disagreed. That risk that the state might be banning a sometimes-medically-necessary procedure, said the Court, was enough to require the state to write a exception into the law — and it hadn't, so the law was unconstitutional. Chief Justice Rehnquist and Justices Kennedy, Scalia and Thomas dissented.

Congress responded by enacting a new, nationwide ban. It explained in the statute that there was a “moral, medical, and ethical consensus” that the covered procedures were not only “gruesome and inhumane,” but indeed “never medically necessary.” The Stenberg v. Carhart decision, Congressional leaders explained, was irrelevant: The Court had announced legal consequences following from its medical uncertainty, but in fact there was no uncertainty. The Court's understanding about the possible medical desirability of the procedure had been superseded by Congress' declaration that the procedure was never medically in the interests of any patient.

The Eighth Circuit, on Friday, disagreed. The Supreme Court's earlier decision, it said, had dispositively established that there was a dispute among doctors over whether the procedure was sometimes medically desirable. Congress couldn't change that simply by announcing a consensus.

There's a bunch going on here that's interesting. The Court in Stenberg v. Carhart had responded to uncertainty by insisting that Indiana could not take the risk of banning a treatment that might (it didn't know) in some cases prove to be the safest choice. Congress responded that it didn't see the matter as at all uncertain, and that its own sureness should govern. For now, though, the most important thing to say about the Eighth Circuit's decision is that it's probably really short-lived. Only four of the Justices who voted with the Stenberg v. Carhart majority are still there. Justice O'Connor, of course, was the fifth.

Wickard Lives!

Federal Authorities May Prosecute Medical Use of Marijuana.

Forced to choose between its anti-federalism jurisprudence and the War On (Some) Drugs™, the Supreme Court has chosen to re-affirm Wickard v. Filburn's expansive view of federal regulatory power over the national economy. As a result, less of what I taught students in Con Law I ten years ago is obsolete than I might have guessed.

Full text of decisions in Ashcroft v. Raich.

Much as I'm not wild about the specific outcome as social policy, I think this decision is fully consistent with Chief Justice Marshall's view of the evolving Constitution. But it's flatly inconsistent with the modern Federalist Society view. Academic fireworks will now ensue.

The Thorn in the Rose

At first blush, the proposal at davidshcess.com [seen via Ascription is an Anathema to any Enthusiasm] sounds so sensible: Tired of originalists like Justice Scalia going on about how the Eighth Amendment only prohibits punishments that were cruel and unusual in 1791, and hence the death penalty (and maybe chopping off ears, and certainly stockading) are constitutional today? Want to do something about them? Just introduce a new constitutional amendment re-enacting the Eighth. No one would dare vote against it (are you for cruel and unusual punishment?) and it would re-set the clock to modern times (are you for cutting off ears?).

But in fact, it's a rotten idea. It surrenders a key point of principle. I am, in the main, relatively sympathetic to at least a weak form of originalism. If words don't have meanings that we can collectively ascribe to them, with some consistency over time, then constitutional government is a bit of a farce. I'd like to avoid that, for all that Senators Frist and Santorum are determined to make it difficult.

But in the originalist constitution I read, there's not only play in the joints, but in some cases an invitation to evolve. It's not everywhere. The requirement that the President be 35 isn't a requirement that s/he have the relative wisdom and maturity of a 35 year old in 1783, or have lived an equivalent fraction of the average life expectancy. It's that the person be 35. On the other hand, some parts of the Constitution do read like invitations to change with the times. ('It is a Constitution we are expounding here' after all.) And the cruel and unusual clause is definitely one of them. So there's no need to re-set the clock on cruelty — it's always ticking. And it would be wrong to provide such luscious ammunition to those who suggest otherwise.

Questions the Veep Should Answeer

Paul Gowder Horwitz has a very interesting set of comments at PrawfsBlawg: The Filibuster, the Constitution Outside the Courts, and the Press's Failure. A taste:

What is disappointing is that Cheney has, essentially, been allowed to maintain near perfect silence on the question of whether and why it is unconstitutional to filibuster judicial nominees.  Nor, for reasons I hope I have demonstrated, is it enough to stop there?  What constitutional conclusions has he reached on all these other questions?  The failure of the press to push for answers on these questions is really disappointing — inexcusable, in fact.  It is also disappointing that the Democratic Senate caucus has not pressed him, or anyone, on these points in a sustained and public way.

What accounts for this silence?  I don't think it is simply that this level of detail is reserved for law geeks.  I think it says something about how we think about the Constitution as applied outside the courts.  The prevailing assumption from day one, I think, has been that the Vice President would simply come to the aid of his party.  Thus, the Majority Leader assumed the rule change could happen, the press assumed the same thing, and the Democrats didn't fight hard on the constitutional point but focused instead on the nucelar option specter.

But a vote by the presiding officer of the Senate (who, it is generally assumed, will also be the Vice President) is not a political vote.  At least it is not supposed to be.  It decides a constitutional question — and one that, at that, would likely be insulated from judicial review.  The Vice President, along with the members of the Senate, takes an oath to “support this Constitution,” and we ought to assume he takes it seriously.  That means that, finally, only his views will matter — not those of Senator Frist, or his lawyers, or the public, or even the President.  Whether liberal or conservative, most lawyers (and citizens) assume that a judge who cast a vote on a constitutional question purely as a matter of expediency would be dishonoring his office: that judge must decide what the Constitution means, and vote accordingly, without regard to his personal preferences.  Is the same any less true of any other government officer faced with the duty of interpreting the Constitution?  In short, the failure to press Cheney for a principled explanation of his position on the constitutionality of the filibuster of judicial nominees, and of all other filibusters, is inexcusable.

Bolton: It's a Constitutional Crisis Now

The Bolton Affair, which until now was just an engrossing political slug-fest in which the Vice-President gambled his boss's political future has suddenly lurched into a Constitutional crisis.

The administration has put so many chips on the table for this one that losing would not only dent, but actually detonate, its image of invulnerability. Once blood is in the water the legislative sharks start to circle, and the administration's ability to cram legislation down congress's throat becomes reduced or non-existent. So far, that's just politics as usual. (Clinton's moment of defeat was the first week of his first Presidency, when he went back on his promise to let gays serve openly in the military. Everyone on the Hill understood that if Clinton would back down on a campaign promise when confronted by people sworn to obey him, he could be rolled like a drunk when it came to dealing with legislators with their own agendas. Health care died in the Oval Office before the Clinton administration was two weeks old.)

What is not politics as usual is that the Bush administration has suddenly escalated the Bolton stakes yet again — this time to a constitutional crisis level. Bolton is suspected of using NSA intercepts to spy on his colleagues or to undermine then-Secretary of State Powell. Nothing has been proved. The chair of the Foreign Relations Committee and Democratic Senators have asked to see copies of the same NSA intercepts that Bolton (a mid level appointee) was allowed to see, in order for the Senate to weigh those charges.

Now the administration has said Senators with a constitutional advise and consent duty can't have the same access to NSA intercepts that third-level state department people get. As Steve Clemons says, that changes everything.

It's possible there may be nothing in the intercepts. It would be classic Rove to build them up in the hopes that they become the sole issue — distracting everyone from the out-of-control maniac who allegedly ran down a Moscow hotel room chasing a low-level bureaucrat for the crime of being honest, banging her door and howling like a loon, and then later spending days trying to destroy her career. Build the intercepts up as the only issue, then give in, say that the administration went the 'extra mile' and see! Bolton has been 'cleared'! That would be classic Rove indeed.

So it's important not to let the intercepts become the entire show in this three-ring circus. But it's also important that the Senate not set a precedent that it can be treated like a potted plant.

Is That Legal? No It Is Not!

It is time, again, to praise Is That Legal?

Eric Muller is a public intellectual in the best sense: engaged with real things. I especially recommend the series of posts on under-the-radar Christian propaganda in public schools that not-very-subtly attacks other religions — and is required (or extra credit) reading. The stuff is published and promoted by the Renaissance Learning company, and adopted by schools either because they share the worldview or, more likely, because it comes with convenient little tests that the elementary students can take. I hope Eric will organize these posts onto a separate, easily indexed free-standing page, but until then, if you have a child in public school, or care about the separation of church and state, see Part 1, Part 2, and Part 3.

And watch out for “Escape from Egypt” or “Journey to Japan” in your elementary school library.

PS. Eric's more recent series of posts attempting to correct rapidly propagating untruths about an element of the the new Pope's biography are good too.

11th Circuit Will Not Order Schiavo TRO

Eleventh Circuit decision refusing on a 2-1 vote to overturn the district court's denial of a TRO.

New Schiavo Complaint

SCOTUSblog has the details, Further Updates on Schiavo Case — CTA11 Decision and Amended Complaint,

Meanwhile, back in the district court, the parents have filed an amended complaint in which they have added claims under the Americans with Disabilities Act, the Rehabilitation Act, the Eighth Amendment, and (in Count Eight) what might be called a “converse Cruzan” claim, i.e., a claim that (i) there is no clear and convincing evidence that Ms. Schiavo would have wished that nutrition be withdrawn, and therefore (ii) Florida denied Schiavo due process by permitting Schiavo's legal guardian to withdraw food and water from a patient in a persistent vegetative state. (In Cruzan itself, the holding was that the state does not violate due process by prohibiting the withdrawal of life-saving interventions absent such clear and convincing evidence. The Court did not hold, however, that a state is constitutionally obligated to prevent the guardian from choosing such withdrawal in the absence of the clear and convincing evidence of the patient's desire to withdraw treatment. Indeed, Cruzan did not suggest any minimum level of protection a state must give to the interest in life (against the interest in bodily integrity)—that decision merely says that the state doesn't exceed the maximum allowable level of state-law restriction when it demands clear and convincing evidence that the individual would have preferred death to indefinite prolongation of the permanent vegetative state. Does anyone know of any such “converse Cruzan” claim in another case?)

What It Means to Be A Government of Laws

In the comments to my prior Schiavo-related post a reader asks,

would like your opinion on the standard the judge applied regarding whether to grant the TRO. Clearly this would be the standard applied in any “normal” federal request for a tro. However, I am not so sure that Congress' silence on the standard to apply for such a request should have necessarily been a reason to assume that the normal federal standard should apply. This was not a normal situation, and not a normal statute. I think Congress intended for the parents to get their day in court to fully litigate the due process issues. If you look at the motions and their sparse discussion of these issues, its clear that although the judge was fairly logical, the legal issues have really not gotten “their day in court”. By applying the “likely to prevail” standard, I think the judge stymied what the true (albeit unarticulated) intent of Congress really was. I think Congress intended a much lower standard, probably that the claims are merely non-frivolous. well, silence is golden, and as the judge wrote the constitutionality of the new statute is questionable. but would like your thoughts.

OK. Here are my thoughts:

I think every decent federal district judge in the nation would have done the same thing with this complaint. We can all speculate about what “Congress” — a multi-member body — “thought”, but we can all agree on what the statute says. And it is jurisdictional only. That means the ordinary standards for everything else MUST apply.

To reason otherwise is to open Pandora's Box, minus Hope. (“This anti-terrorism case is so important that Congress would surely want us to lock up the accused without trial.”) Recall Robert Bolt's version of Sir Thomas More in A Man For All Seasons:

MORE. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal.

ROPER. Then you set Man's law above God's!

MORE. No far below; but let me draw your attention to a fact—I'm not God. The currents and eddies of right and wrong, which you find such plain-sailing, I can't navigate, I'm no voyager. But in the thickets of the law, oh there I'm a forester. I doubt if there's a man alive who could follow me there, thank God.

ALICE. While you talk, he's gone!

MORE. And go he should if he was the devil himself until he broke the law!

ROPER. So now you'd give the Devil benefit of law!

MORE. Yes. What would you do? Cut a great road through the law to get after the Devil?

ROPER. I'd cut down every law in England to do that!

MORE. Oh? And when the last law was down, and the Devil turned round on you—where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast—Man's laws, not God's—and if you cut them down—and you're just the man to do it—d'you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

I don't agree, by the way, that the “issues” haven't gotten their “day in court”: The “issues” as (IMHO properly) framed by the court were legal issues and the plaintiffs were unable to make even a proffer of evidence that would have suggested they could meet the relevant standards needed to make out a constitutional violation. Just saying they don't like the outcome won't cut it: The Constitution does not require accurate decisions in all cases; it requires due process and fair procedures. And note that here the facts which are relevant to the complaint are facts about the quality of the state judicial process. The complaint does not (and given the need to find a federal cause of action IMHO could not) state any issues about Ms. Schiavo's actual condition.

There's no doubt that the not-very-hidden agenda behind this bill was to re-litigate the actual issues of Ms. Schiavo's medical condition (and failing that to get a judge to issue a TRO pending whatever happened later). But the bill that actually passed Congress doesn't open the door to reopening the medical testimony, only to constitutional and federal statutory claims. And the complaint — the matter before the court — attacks only the process in counts 1-3. To the extent it attacks the outcome in counts 4-5 it is pretty silly.

Every situation is abnormal in some way. But if the rule of law means anything, then this was the right way to go: apply the usual rules of civil procedure, the usual rules for TROs, the usual rules for everything. You don't get a TRO because you ask for one. The courts have told us time and again you have to meet the regular standards even if an entire species is about to be destroyed forever. So that's what your “day in court” consists of — the same court rules we all get all the time.

Could Congress have lowered the standard for a TRO for this case? Maybe; at some point though this sort of tinkering would degenerate into telling the court how to rule, and that's not allowed. Anyway, would the complaint have met even a perponderance standard? I really doubt it.

Could Congress have directly ordered the tube be put back in pending a full trial on the merits? I honestly don't know, but I suspect that would violate Ms. Schiavo's right to bodily integrity under the Fifth Amendment. (To the extent someone else had to pay for it, it might also be a Taking, but that's minor.) Recall that the current state of play is a state judicial finding that her wish would have been not to linger in this fashion. I can imagine Congress making it an offense to fail to feed the hungry, but I have doubt that Congress could make it an offense to fail to eat. Which is closer to these facts, given the state court's findings that removing the tube is what Ms. Schiavo would have wanted?

Could Congress pass a general rule that X/Y/Z would have to be done before a feeding tube is removed? I think it could. Could it make that law retroactive? I am more dubious, but unsure. But one thing we do know: that's not what Congress did.

It's one thing — and a very proper thing — to interpret language that might be vague so it makes sense given the purpose of a statute. It's another thing — and a much riskier proposition — to read a statute to be the contrary of what it appears to say in order to make it serve its purpose. (I have serious doubts about the wisdom of the approach in Holy Trinity Church.) But making stuff up out of whole cloth? No thanks.

Schiavo Latest

Early this morning, Judge Whittemore denied Theresa Schiavo's parents' motion for a TRO. Here is Michael Schiavo's Brief in Opposition to the Motion for an Injunction. Earlier I linked to the Schiavo complaint.

Update: I've now read Judge Whitmore's careful opinion. My Schiavo predictions last night were right on target, except that the judge takes an even stronger stance: he pretty much finds all five counts to be without merit.

Update 2: If these medical facts are accurate, they paint a compelling picture.

Update 3 (3/23): Here's a contrary medical analysis of the above.

Schiavo in Federal District Court - Tentative Thoughts and Guesses

I am not a federal courts scholar, although I'm interested enough in related issues to at least keep an eye on the subject. Ditto for federalism. And I've had the advantage of following some pretty high-powered exchanges on various email lists devoted to constitutional law. So here are some partly-informed thoughts, first on the constitutionality of the Schiavo bill, Public Law No: 109-3 (full text below), and second on what the federal court is likely to do with the case. If you are a regular reader of this blog, you may find some of my views surprising. (Note: Before reading further, you might wish to go visit the comprehensive factual account of the progress of the Schiavo case at Abstract Appeal.)

As I blogged on Sunday, my first somewhat knee-jerk reaction was that the Schiavo bill was incompatible with the Republican vision of strong federalism, a view that generally argues in principle (if so rarely in practice) for limited Congressional power over traditionally state domains of regulation, and which has enthusiastically greeted a set of Supreme Court decisions that restrict Congress's commerce clause power. I still think that's true. And it's a deserved shot, not a cheap one.

But so it's easy to point at others' hypocrisy, and only a little helpful at best. What about if the Schiavo Bill is held up to the view of federalism I hold? Does it pass muster? I think, at the end of the day, it does – although as I'll explain below I think, amazingly, the court will not actually need to address this question.

The first thing to understand is what the Schiavo Bill does and doesn't do. The bill as passed does not actually set rules of decision; it's purely jurisdictional: it creates a federal forum to hear claims of “the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.” The statute does not create any new rights at all other than access to federal court. (“Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.”) And most importantly, the bill does not direct the court to reach any particular verdict.

The bill can be criticized for being overly particular, but in fact that's not a terribly powerful legal as opposed to political critique. As they told me in law school, “the Constitution doesn't have a 'Givings Clause'”; if the Congress wants to award me a private pension, it can do that, even if you deserve it more. (And it's not a bill of attainder because it doesn't on its face create a legal disability, although it does of course work some hardship on Mr. Michael Schiavo.)

The bill can be criticized for in effect reopening a concluded proceeding, and thus inviting the federal court to overturn a settled court judgment. I think this is the strongest claim against it doctrinally. But again, I'm not at all sure this works. In our dual court system we're accustomed to parallel and potentially contradictory outcomes. Indeed 18 USC § 1983, which makes it a federal issue to deny someone their constitutional rights 'under color of state law', positively invites them.

One might ask, and at first I surely did, where Congress gets the authority to create this jurisdiction, or where the federal courts get the authority to hear this case. But on reflection for someone like me who takes a relatively expansive view of the power of both Congress and the courts to enforce the Constitution, this doesn't actually seem so hard after all – the authority comes for the Constitution (and the 14th Amendment). And why shouldn't Congress act to empower federal courts to protect individual constitutional rights?

Interesting as all this is, I think at the end of the day very little of it matters. I say this, because I've had a look at the Schiavo complaint and it looks fairly lame. I think any judge faced with this case will take the obvious way out: assume the constitutionality of the Schiavo bill, and rule against the plaintiffs on the (de)merits of their complaint.

Here's why.

Under these circumstances, the two parties, as adversaries, present their evidence to the trial court. The trial court determines whether the evidence is sufficient to allow it to make the decision for the ward to discontinue life support. In this context, the trial court essentially serves as the ward's guardian. Although we do not rule out the occasional need for a guardian in this type of proceeding, a guardian ad litem would tend to duplicate the function of the judge, would add little of value to this process, and might cause the process to be influenced by hearsay or matters outside the record. Accordingly, we affirm the trial court's discretionary decision in this case to proceed without a guardian ad litem.

Count two is the same claim, but couched as a deprivation of a procedural due process right to life, liberty or property.

Count three claims a violation of a right to equal protection on the grounds that Florida's substituted judgment rules are unconstitutional.

Count four argues that since Ms. Schiavo is Catholic, removing her feeding tube “in a manner disapproved of by the highest ecclesiastical authority of her Catholic church imposes a substantial burden on Terri's free exercise of religion” in violation of the federal religious land use and institutionalized persons act. Yes, that's really what it says. Read paragraph 67 for yourself. Incidentally, RLUIPA is a statute primarily about “zoning and landmarking laws that substantially burden the religious exercise of churches or other religious assemblies or institutions absent the least restrictive means of furthering a compelling governmental interest.”

Count five is like count four, except it alleges that “defendants” (none of whom are state actors other than the Florida judge) “have a constitutional duty” to “accommodate” Ms. Schiavo's religious beliefs. And the order to remove the feeding tube “on its face” is “specifically targeting religion for special disabilities without a compelling state interest”. As the “special disabilities” here appears to be not treating what the Catholic church says Ms. Schiavo's caregivers should do as dispositive, I have to say that this count appears as unlikely as the fourth.

Of these counts, four and five seem at first glance to be quite lame. I'm not competent to say with any certainty, but I strongly suspect that count three is also a dead loser if only because if it were not the issue would have arisen by now. That leaves the fundamental argument in counts one and two – a claim of a giant defect in the state procedure.

Undoubtedly, the First/GOP strategy was to go to the feds, throw up a lot of dust, and hope that the district court would issue a stay, buying time for a year or three of federal appeals. After all, the easy way out for the federal district court would have seemed to be to keep everything in place for the pendency of the litigation.

But I don't think this complaint has what it takes to get the average district judge with an ordinary backbone to do that. The Schiavo case was heard in state court by Judge Greer, and I think the judges fraternity thinks he's handled a real hard case very well. I know from my clerkship with a federal district court judge that federal trial judges, who after all live in the same legal community as the state court judges, are often quite concerned to be and to seem respectful of their state court colleagues. Slapping on a stay without something that looks like a good argument on the merits would be slapping Judge Greer in the face for no reason. And I don't think most federal judges would be at all keen to do that. And in any attempt to sort out who gets to decide what – who has legal right to speak for Ms. Schiavo – the federal court will be bound by state law; indeed, given that this complaint argues only that the state court erred in (1) not having a guardian ad litem and (2) the ultimate merits, I'd think a federal court might find itself bound by state court decisions as to status

One final point: All bets are off in the Court of Appeal, though. They might well issue an emergency stay when the case reaches them. Even if my guess above about where this is going is correct, I couldn't hazard a guess without reading the trial court's opinion, and maybe not even then.

AN ACT

For the relief of the parents of Theresa Marie Schiavo.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. RELIEF OF THE PARENTS OF THERESA MARIE SCHIAVO.

The United States District Court for the Middle District of Florida shall have jurisdiction to hear, determine, and render judgment on a suit or claim by or on behalf of Theresa Marie Schiavo for the alleged violation of any right of Theresa Marie Schiavo under the Constitution or laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 2. PROCEDURE.

Any parent of Theresa Marie Schiavo shall have standing to bring a suit under this Act. The suit may be brought against any other person who was a party to State court proceedings relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the life of Theresa Marie Schiavo, or who may act pursuant to a State court order authorizing or directing the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life. In such a suit, the District Court shall determine de novo any claim of a violation of any right of Theresa Marie Schiavo within the scope of this Act, notwithstanding any prior State court determination and regardless of whether such a claim has previously been raised, considered, or decided in State court proceedings. The District Court shall entertain and determine the suit without any delay or abstention in favor of State court proceedings, and regardless of whether remedies available in the State courts have been exhausted.

SEC. 3. RELIEF.

After a determination of the merits of a suit brought under this Act, the District Court shall issue such declaratory and injunctive relief as may be necessary to protect the rights of Theresa Marie Schiavo under the Constitution and laws of the United States relating to the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain her life.

SEC. 4. TIME FOR FILING.

Notwithstanding any other time limitation, any suit or claim under this Act shall be timely if filed within 30 days after the date of enactment of this Act.

SEC. 5. NO CHANGE OF SUBSTANTIVE RIGHTS.

Nothing in this Act shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.

SEC. 6. NO EFFECT ON ASSISTING SUICIDE.

Nothing in this Act shall be construed to confer additional jurisdiction on any court to consider any claim related—

(1) to assisting suicide, or

(2) a State law regarding assisting suicide.

SEC. 7. NO PRECEDENT FOR FUTURE LEGISLATION.

Nothing in this Act shall constitute a precedent with respect to future legislation, including the provision of private relief bills.

SEC. 8. NO AFFECT ON THE PATIENT SELF-DETERMINATION ACT OF 1990.

Nothing in this Act shall affect the rights of any person under the Patient Self-Determination Act of 1990.

SEC. 9. SENSE OF THE CONGRESS.

It is the Sense of Congress that the 109th Congress should consider policies regarding the status and legal rights of incapacitated individuals who are incapable of making decisions concerning the provision, withholding, or withdrawal of foods, fluid, or medical care.

The Amazing Reappearing Statute

Both Howard Bashman and Orin Kerr ask what happens to a statute that is declared unconstitutional if and when the Supreme Court later reverses itself on the same issue. This is a very relevant question regarding the future of abortion bans given the likelihood of more anti-Roe v. Wade Justices in the near future.

First principles could be invoked for either side.

Ideas of (small-r) republicanism and popular sovereignty suggest that the statute must be re-passed by the legislature before it can take effect. The court's first decision striking down the law short-circuited any political activity that might have been directed towards repeal — why bother repealing a dead letter?

On the other hand, a formalist view — and we don't in our law recognize desuetude, so we have a somewhat formalist tendency — would suggest that every statute on the books is in force except those blocked by court action. Remove the block, the statute springs back into action. In other words, the second decision erases the first as if it never was (and then only due process prevents charges filed for any violations of the rule during the period it was thought invalid?).

Orin asks if there are any cases on this, and indeed there is one, although somewhat aged, leading case, that of Jawish v. Morlet, 86 A.2d 96 (D.C. App. 1952), heard by what was then the Municipal Court of Appeals for the District of Columbia.

I've reproduced the full text below, but the thrust of it is captured in this sentence: “And since the [first supreme court case] never was the law, its only effect, to use the language of Justice Vinson in the Warring case, was 'that just about everybody was fooled.'” As a result, the old law springs back into bindingness.

As a decision by the D.C. local courts is not binding precedent anywhere else, the issue appears open at the federal level. It seems to me that this sort of thing is actually arguable either way but that the length of time between the two decisions is highly relevant. The longer the gap, the stronger the argument for not reinstating the decisions by fiat, for the stronger the argument that but for the first court decision coalitions would have formed to demand repeal.

UPDATE: Stuart Buck weighs in with more formalist arguments as to why Jawish provides the correct answer:

One thing to clear up right off the bat, however, is the common misconception that federal courts have the power to “strike” down a law. We usually imagine that a statute, once declared unconstitutional, “is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as thought it had never been passed.”191 But this is not technically accurate. Despite such language used by courts and commentators, there is no such thing as “striking down.” A federal court has no power to erase a statute from a state's lawbooks.192 As one prominent scholar said, “No matter what language is used in a judicial opinion, a federal court cannot repeal a duly enacted statute of any legislative authority.”

To which I can can only say, “well, maybe.” The argument that a court doesn't void a statute, just puts it into a species of legal hibernation is strengthened by the observation that legislatures sometimes repeal statutes held to be unconstitutional, and if the statute were a total nullity, that would be a useless act. But then again, legislatures do useless acts sometimes, so what exactly does that prove, especially since there's no one with standing to challenge the repeal.

It seems to me that on this one, like many hard constitutional questions, how you come out on this one depends on what you consider relevant inputs to the issue. Is it the nature of democracy? A structural view of separation of powers? The underlying goal(s) of the Constitution (whatever you think that is, e.g. liberty)?

Update 2: See also Marty Lederman's excellent comments (broadly agreeing with Stuart Buck), and the interesting remarks of The Greedy Clerk (arguing that for state statutes the answer depends on state rules of decision).

Before CAYTON, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

In 1918 Congress enacted a law fixing minimum wages for women and children in the District of Columbia. In 1923 the Supreme Court, in Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785, held the law unconstitutional. In 1937 the Supreme Court, in West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, held a similar law of the State of Washington to be constitutional and expressly overruled the Adkins case. President Roosevelt then requested the opinion of the Attorney General as to the status of the District of Columbia law, and in reply the Attorney General stated:

'The decisions are practically in accord in holding that the courts have no power to repeal or abolish a statute, and that notwithstanding a decision holding it unconstitutional a statute continues to remain on the statute books; and that if a statute be declared unconstitutional and the decision so declaring it be subsequently overruled the statute will then be held valid from the date it became effective.

'It is, therefore, my opinion that the District of Columbia minimum wage law is now a valid act of the Congress and may be administered in accordance with its terms.' 39 Op.Attys.Gen. 22.

Congress never re-enacted the law but did enact amendments to it in 1938, 1941 and 1944. The 1940 District of Columbia Code (unofficial) contains the law, § 36-401 et seq., with the following note of the annotator: 'On the theory that the lastmentioned case (West Coast Hotel case) revitalized the District of Columbia Minimum Wage Law, it is incorporated in this Code.' Enforcement of the law was resumed after the issuance of the opinion of the Attorney General and has continued to the present time.

This action was brought by a woman employee against her employer to recover the difference between the wages she had been paid and the minimum wages fixed under the minimum wage law for such employment. The only defense raised by the employer was that no minimum wage law exists in the District of Columbia. The trial court ruled against this contention and awarded judgment for the employee. The employer has appealed.

The contention of the employer is that the District of Columbia statute was held unconstitutional in the Adkins case, that the effect of that ruling was to make the statute null and void, that the West Coast Hotel case did not operate to revive the statute, and that without re-enactment by Congress no such statute today exists.

Since the days of Marbury v. Madison, 1 Cr. 137, 180, 2 L.Ed. 60, when Chief Justice Marshall, speaking for the Court, declared that 'a law repugnant to the constitution is void,' courts have frequently referred to unconstitutional laws as void, of no force and effect, and as inoperative as if never passed. 'Yet a realistic approach is eroding this doctrine. * * * When a statute is declared unconstitutional it falls because it must yield to the basic, superior law. There is much more reason to argue that the unconstitutional statute never was the law. Yet today even such a statute is an operative fact and decisions made under its color have the blessing of res judicata.' Warring v. Colpoys, 74 App.D.C. 303, 307, 122 F.2d 642, 646, 136 A.L.R. 1025, certiorari denied, 314 U.S. 678, 62 S.Ct. 184, 86 L.Ed. 543, per Vinson, J., now Chief Justice of the United States, citing Chicot County Drainage District v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329.

There are comparatively few cases dealing squarely with the question before us, but they are unanimous in holding that a law once declared unconstitutional and later held to be constitutional does not require re-enactment by the legislature in order to restore its operative force. They proceed on the principle that a statute declared unconstitutional is void in the sense that it is inoperative or unenforceable, but not void in the sense that it is repealed or abolished; that so long as the decision stands the statute is dormant but not dead; and that if the decision is reversed the statute is valid from its first effective date. See State ex rel. Badgett v. Lee, 156 Fla. 291, 22 So.2d 804; Pierce v. Pierce, 46 Ind. 86; McCollum v. McConaughy, 141 Iowa 172, 119 N.W. 539; Allison v. Corker, 67 N.J.L. 596, 52 A. 362, 60 L.R.A. 564; Shephard v. City of Wheeling, 30 W.Va. 479, 4 S.E. 635.

This principle is in accord with the principle 'that a decision of a court of appellate jurisdiction overruling a former decision is retrospective in its operation, and the effect is not that the former decision is bad law but that it never was the law.' Ruppert v. Ruppert, 77 U.S.App.D.C. 65, 68, 134 F.2d 497, 500.

If the effect to the West Coast Hotel decision is that the decision in the Adkins case never was the law, it follows that the District of Columbia Minimum Wage law never was unconstitutional. And since the Adkins case never was the law, its only effect, to use the language of Justice Vinson in the Warring case, was 'that just about everybody was fooled.' Our conclusion is that the Adkins case did not repeal or abolish the District of Columbia Minimum Wage law and when the effect of the Adkins case was removed by the West Coast Hotel case, the law was effective without re-enactment by Congress.

Affirmed.

A Reader Writes In About Yoo and Torture

A reader writes in to say,

You MUST read Jane Mayer's “Outsourcing Torture” in the New Yorker. Get a load of what Yoo's saying now:

Yoo also argued that the Constitution granted the President plenary powers to override the U.N. Convention Against Torture when he is acting in the nation¡'s defense—a position that has drawn dissent from many scholars. As Yoo saw it, Congress doesn't have the power to “tie the President's hands in regard to torture as an interrogation technique.” He continued, “It's the core of the Commander-in-Chief function. They can't prevent the President from ordering torture.” If the President were to abuse his powers as Commander-in-Chief, Yoo said, the constitutional remedy was impeachment. He went on to suggest that President Bush's victory in the 2004 election, along with the relatively mild challenge to Gonzales mounted by the Democrats in Congress, was “proof that the debate is over.” He said, “The issue is dying out. The public has had its referendum.”

In other words, “a vote for Bush is a vote for torture.” Jesus H. Christ, he actually SAID it.

As Constitutional doctrine it's not just offensive, it's also fairly silly. Congress has several Article I powers, not least the power to regulate the armed forces, which make it clear that it has the power to prevent torture. And then there's the power to implement treaties, which the Constitution itself says are the highest law, equivalent to the Constitution itself….

(Note to fellow lawprofs — who ever thought the right wing would be embracing Ackerman's theory of amendment via 'constitutional moments' so quickly?)

Never Trusted Those Voting Machines Anyway

Peter Shane has a cautionary article in today's Washington Post. In Usurping the Voters, Prof. Shane conjures up a scary hypo based on a close reading of Bush v. Gore,

Under that decision, there is no guarantee that the electors who are decisive in choosing the next president of the United States will themselves be selected by the people of the United States. That's because the justices ruled in that case that state legislatures have unlimited authority to determine whether citizens in their respective states shall be allowed to vote for president at all.

“The individual citizen has no federal constitutional right to vote for electors for the President of the United States,” the court said, “unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.”

Imagine, now, a state in which the same party controls both houses of the legislature and the governor's office. There would presumably be no partisan impediment to the state legislature, with the governor's approval, deciding that the majority party in state government shall control the state's electoral vote, regardless of any popular vote in the state. If the Supreme Court's declaration is an accurate statement of the law, there would not be any legal impediment either.

The impedement of course is, as he notes, “outrage” but look how far that's gotten us in the last four years…

Eric Muller on the Difference Between Books and Precedents

Eric Muller, back from what looks like a great vacation, has some interesting things to say about how the Guantanamo, Hamdi, and Padilla cases amount to a repudiation of the basic thesis of Chief Justice Rehnquist's book on civil liberties in wartime, All the Laws But One.

Annoying Filter Update

Since the supreme court cares about the quality of blocking and filtering software, it may be appropriate to report that SiteCoach, the blocking software used on the internet kiosks in the lobby of the Amsterdam hotel I am staying in blocks Atrios for using the f-word, and the Volokh Conspiracy for “Forbidden Keyword free sox”. Actually, the “o” in that last should be an “e”—I'd post it more clearely, but that would just ensure I couldnt access my own blog any more.

Porn Fight To Continue; Kidnapping Suit Stopped

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:

• SOSA v. ALVAREZ-MACHAIN
• ASHCROFT v. ACLU

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'.

Today's Trifecta--What Does it All Mean? (Pt. II: Guantanamo)

“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.

'When can I keep an enemy combatant?' The Color Chart Version

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.

Other Voices On Today's Decisions

Now that I've sorta figured out what I think, other takes on today's decisions:

Scrivener's Error,

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?

Marstonalia on Hamdi

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

Today's Trifecta--What Does it All Mean? (Pt. I: Hamdi)

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:

• Rasul v. Bush, Nos. 03-334 & 03-343
• Rumsfeld v. Padilla, No. 03-1027
• Hamdi v. Rumsfeld, No. 03-6696

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

Hamdi

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):

• pre-hearing notice of the factual basis of the government's claim that he is an enemy combatant.
• “a fair opportunity to rebut the Government's factual assertions before a neutral decisionmaker” * Does that mean cross-examination or not? It apparently depends on the circumstances, as the court holding the hearing can accept hearsay.
• Evilly, “the Constitution would not be offended by a presumption in favor of the Government's evidence, so long as that presumption remained a rebuttable one and fair opportunity for rebuttal were provided.” This seems to mean that once the government makes its case, “the onus could shift to the petitioner to rebut that evidence with more persuasive evidence” — no mean feat when you are locked up, the government controls the availability of its witnesses, and your are either dead or very far away. In this light the comment that “We think it unlikely that this basic process will have … dire impact on the central functions of warmaking” (p. 27) may be world-class understatement. [The Souter opinion takes this on, see below.]
• The opinion is also surprisingly coy on the right to counsel issue, noting only that Hamdi has a lawyer now, and “unquestionably has the right to access to counsel in connection with proceedings on remand”. [Souter takes this as “affirmation of Hamdi's right to counsel”.]

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 ... For Now

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.

Guantanamo is NOT a Lawless Place

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.

Law, Lawyering and the Cheney Case

Scrivener's Error has a very lawyerly analysis of the Cheney decision.

Cheney Wins -- For Now, Maybe Forever

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.

Bush Ordered "Humane" Treatment in Feb. 2002. Then What?

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!

GW Bush's Constitution: A Graphic Depiction

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).

Supreme Court To Decide Major Cases Soon

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.

Freedom and Republican Government

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.

Decency

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:

• Guantanamo: Our Collective Shame
• Even If US Courts Don't Have Jurisdiction Over Guantanamo, There Is No Recourse to Cuban Courts
• US Jurisdiction in Guantanamo — Some Complexities
• What Motivated the Cert Grant In Guantanamo Case? Linda Greenhouse Thinks She Knows
• Not As Hypothetical As I'd Like
• 'Senior Defense Official' Plans to Hold Guantanamo Detainees Pretty Much Forever

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.

The Big One

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.

Torture: Wrong Yesterday, Wrong Today, Wrong Tomorrow

In nothing new under the sun, the Curmudgeonly Clerk notes accurately that many prior administrations have done quite horrible things in wartime. He notes the firebombing of Dresden and Tokyo, and the Japanese internments as examples of FDR's wartime moral failings. To which one might of course add the general conduct of the anti-insurgency campaigns in the Philippines after the Spanish-American War, the bombing of Cambodia, most of the century-long campaign against Native American tribes, just to name a few.

From this basis, he concludes I was wrong to approvingly quote Kevin Drum saying that “Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong.”

As Mr. Clerk puts it,

My purpose is neither to justify the conduct of the present administration nor condemn the current president's predecessors. As I indicated during my last stint as a guest contributor at Crescat Sententia, I find wartime torture to be deeply troubling. I do not wish to minimize the moral significance of the events at Abu Ghraib or the decisions that purportedly led to those abuses. But Drum and Froomkin are incredibly mistaken in maintaining that the Bush administration's alleged wartime moral failings are unprecedented or unique.

That excesses and moral failings in wartime are not new, no reasonable person could dispute. That the US has been guilty of some in its history is not seriously in doubt, despite the 'my country right or wrong' crew. But there are important differences about this case which I think make it especially bad.

The first is that we are in a post-Nuremberg age. We profess and affirm a renewed and specific commitment to the rule of law even in wartime, one that labels some (but not all) excesses as war crimes, anathema. Torture falls squarely into that zone.

The second is that the norm against torture is especially well-established, and long-established, in both our domestic (cf. the Eighth Amendment) and international legal traditions, and in world-wide morality. (For a historic example, consider the post-Civil War case of Andersonville, where the mistreatment of prisoners was strongly condemned.) The prohibition is not a new post-Nuremberg idea, even if the clear deliniation of personal responsibility for adhering to the prohibitory norm may be. The attempt to justify cruel and unusual acts as legal thus is particularly hard to accept and particularly deserving of condemnation.

In summary, I am not arguing that inter-temporal relativism excuses past evils. Rather, I am arguing that,

1. The fact that there is a history of many evils in wartime should not blunt our condemnation of other evils, such as systematic torture of prisoners, that even those in the past might have blanched at, and

2. We can, we should, we do, hold ourselves and our government to a higher standard than the lowest common denominator of history. Indeed, it is precisely because we have the benefit of that history that we know we should do better.

I admit that the above is somewhat different from Kevin Drum's lines that I quoted, so I'm grateful to Mr. Clerk for making me be clearer.

Apologia Pro Tormento: Analyzing the First 56 Pages of the Walker Working Group Report (aka the Torture Memo)

I have read a redacted copy of the first 56 pages of the Torture Memo (alternate source). The memo — or at least the approximately half of it we have — sets out a view as to how to make legal justifications for the torture of detainees unilaterally labeled by the government as “unlawful combatants”, including (but not limited to?) al Qaida and Taliban detainees in Guantanamo.

Here are my initial comments on some of the main points, especially those regarding Presidential powers and international law. I've concentrated on those parts because those are the relevant issues I think I know the most about; in contrast, I say little here about the direct criminal law issues. I wrote this in a hurry, so please treat these as tentative remarks. I look forward to discussion with other readers, and will post amendments and corrections when they are brought to my attention.

1. The memo begins by noting, accurately, that our international obligations include a commitment to refrain from actions that would be 'cruel and unusual punishment' under the Constitution. This acknowledgment does not, however, infuse much of what follows.

2. The memo notes that Justice Department opined in a separate memo dated January 22, 2002, Re: Application of Treaties and Laws to al-Queda and Taliban Detainees, that customary international law “cannot bind the Executive Branch under the Constitution because it is not federal law” and in particular clear executive decisions would be “controlling” law that would trump customary international law. [Note: The Jan. 22 memo cited here seems related to the Gonzales memo of Jan 25, but to be a separate document — is a copy available anywhere?]

In my opinion, the first part of this statement about customary international law is directly contrary to the Restatement (3rd) of Foreign Relations Law of the United States § 111(1) — although I suppose a reasonable person might conceivably disagree. The second part is simply weasel wording: Compliance with customary law is an international obligation of the US, but not always a domestic obligation. It's agreed that Congress can constitutionally legislate in a way that would violate our international obligations, although as a matter of construction courts presume it has not done so unless the Congressional intent to violate international law is explicit. It's not generally agreed the President can do this unilaterally, especially since the Supreme Court declared that “international law is part of our law” in The Paquete Habana (1900).

3. As previously noted by the WSJ, the memo argues (accurately, in my opinion) that the Torture statute, 18 USC § 2340, applies only to conduct outside the US, then it argues (plausibly) that Guantanamo is inside the US for jurisdictional purposes, hence not within the zone covered by § 2340. As I noted previously, this analysis conflicts with the position the US government took regarding Guantanamo before the Supreme Court. (But I actually think the memo has it right, and the US litigation posture wrong.) The memo argues that the two positions can be reconciled, which again is technically correct—they can be read that way—but I think it would be wrong to read them that way, and it's certainly not compelled.

4. Then there's a long discussion of what is or isn't torture, with much fine parsing of the torturer's intentions, all of which seems designed to bend over backwards to suggest that hurting people a whole lot to the point of damage is fine if you do it with the right spirit. I cannot bear to summarize all this; it is too painful. I have never seen a better demonstration of the first part of the saying that “the letter killeth, but the spirit giveth life,” an ironic property given the identity of the lead author.

5. The discussion of Presidential powers begins (page 20) with the observation that in the exercise of the commander-in-chief function, and in particular in the conduct of operations against hostile forces, the President enjoys “complete discretion”. That the President's powers are at their greatest in these circumstances cannot be disputed. But while the discretion is indeed very great, I do not see how it could possibly be read to include the authority to commit war crimes, even pre-Nuremburg. And today it clearly cannot include that authority, at least without explicit Congressional authorization. Thus, the entire discussion of Presidential power is based on a premise so false that any student who has taken introductory International Law should be able to recognize its error. And as any logician will tell you, when you begin with an erroneous premise, you are in trouble.

6. A similar error infuses the paper's discussion of the application of the Torture statute, 18 USC § 2340, to actions on the field of battle or activities ancillary to battle. On p. 21 the paper states that the President's military authority to run a campaign means that the Torture statute “must be construed as inapplicable to interrogations undertaken pursuant to his Commander-in-Chief authority” (i.e. all military interrogations in wartime) because — I am not making this up, they are — “Congress lacks the authority to under Article I to set the terms and conditions under which the President may exercise his authority as Commander-in-Chief to control the conduct of operations during a war.” In short, according to this memo, on the field of battle the President's authority is absolute (recall that the English commander-in-chief was an official who reported to George III). “Congress may no more regulate the President's authority … to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield.”

This is clearly wrong on the Constitutional level, and quite probably a bad analogy. It is clearly wrong to suggest that Congress exceeds its authority when it implements an international treaty obligation against torture, even if this has the result of reducing otherwise extant Presidential power. This is because under Article VI of the Constitution, international treaties “shall be the supreme Law of the Land”. We've known that this means what it says since at least Missouri v. Holland, if not long long before.

It is generally agreed — and I certainly believe — that Congress has no role in dictating battlefield troop movements, or the choice of field commanders (as opposed to its constitutional role in approving promotions). Conversely, under the Constitution, if not always in real life, Congress does get to choose who we attack. And Congress does have a say in the methods by which we wage war, both via the spending power and via its constitutionally prescribed role in setting the rules of military justice. If Congress passes a law that says it's a criminal act for a soldier to thumb his nose at a prisoner, or carry a type of weapon, that's a valid law, and the Commander in Chief authority cannot trump it. To argue otherwise is to say that were Congress to decide that we should not make a neutron bomb, as it did, the President could nonetheless decide to make one, and use it on the battlefield. Similarly, were Congress to pass a law that said nuclear weapons could only be used if certain conditions had been met, under the Constitution the President would not have the authority to ignore that limitation.

But that's all beside the point. Even if we were to accept that the President has unlimited authority over the battlefield, it in no way follows that this authority extends to Guantanamo, which is far removed from it. The memo treats this as given. It is anything but given.

Page 23 really goes off the rails, making an argument popular with the Federalist Society, but not taken seriously by mainstream academics, for unlimited, uncontainable, Presidential power. The so-called “unitary executive” argument is set out most clearly in a Harvard Law Review article, Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1155 (1992). My explanation as to why this article is profoundly wrong and dangerous can be found at A. Michael Froomkin, The Imperial Presidency's New Vestments, 88 Nw. L. Rev. 1346 (1994), which in turn sparked separate and not entirely consistent answers from each of the two authors of the Structural Constitution article. My rebuttal article Still Naked After All These Words, 88 Nw. L. Rev. 1420 (1994) is also online.

On pages 22-23 the Walker Working Group Report sets out a view of an unlimited Presidential power to do anything he wants with “enemy combatants”. The bill of rights is nowhere mentioned. There is no principle suggested which limits this purported authority to non-citizens, or to the battlefield. Under this reasoning, it would be perfectly proper to grab any one of us and torture us if the President determined that the war effort required it. I cannot exaggerate how pernicious this argument is, and how incompatible it is with a free society. The Constitution does not make the President a King. This memo does.

7. The draft returns to the theme of cruel and unusual punishment around page 35, grudgingly noting that although Gitmo detainees have no constitutional rights since they are foreigners, the US nonetheless can't subject to them to acts that would be 'cruel and unusual' due to our obligations under the Convention Against Torture. Having said that, the memo notes that what is cruel and unusual is not a hard and fast rule (I'd add “in all cases”, since I think some things are per se cruel and unusual), and what is forbidden may depend on the circumstances. Having constructed this loophole — which to the extent it exists is not designed to allow coercive questioning — the memo then tries to squeeze through it, noting in its Eight Amendment analysis that the “government interest here is of the highest magnitude” (p. 38) and hence things that might be excessive force in other circumstances might not be here. But it doesn't come to any specific conclusions about what's in and what's out.

8. There's an extensive discussion of various criminal and civil statutes that might land a torturer in hot water, but I'm going to skip over those. Similarly, I'm not going to discuss the UCMJ provisions cited on pages 47-51, except to note that the UCMJ is a congressional enactment, pursuant to its constitutional powers. Indeed, as the memo notes, “even in war limits to the use of force exist” and these are enforced by the military justice system.

The memo is ambiguous as to whether it argues that the UCMJ is an infringement of the President's supposed plenary power of the military. Failing to make this argument would expose the flaws in its own reasoning that the President is subject to no legal constraint in his prosecution of a war and in any ancillary activities relating to it. On the other hand, arguing the UCMJ is invalid is obviously nuts. Here's what the memo says on the subject of the President unilaterally overruling the UCMJ (p. 53):

“Legal doctrines could render specific conduct, otherwise criminal not unlawful.

See discussion of Commander-in-Chief Authority, supra.

Oddly, there's no mention of the Constitutionally proper means by which a President could in fact overrule the UCMJ — by exercising the Pardon power. (Perhaps it's not so odd — unitary executive partisans don't want to admit that the Pardon power is how the President balances Congress's lawmaking power; they'd rather have the President in effect legislate.)

9. The final section of the 56 pages in the version posted online (there's obviously lots of the memo left to be found), discusses the very reasonable rules in fact used heretofore by the US armed forces. Unlike the authors of this memo, the folks on the sharp end eschew physical torture, preferring interrogation techniques that sound a lot like what the cops do down at the station.

10. This memo is labeled “draft”. Even so, if the second half is like the first, then everyone who wrote or signed it strikes me as morally unfit to serve the United States.

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.

[Note: I have corrected the paragraph numbering and a number of typos. 6/9/04 10am]

Basic Evil

While we lawyers get all het up about how people with a JD and a basic knowledge of the Constitution could sign a torturer's charter, and whether this is a banal evil or virulent evil, or both, Kevin Drum has his eye on the basics:

But put aside the technical analysis and ask yourself: Why has torture been such a hot topic since 9/11? The United States has fought many wars over the past half century, and in each of them our causes were just as important as today's, information from prisoners would have been just as helpful, and we were every bit as determined to win as we are now. But we still didn't authorize torture of prisoners. FDR, Truman, Eisenhower, LBJ, Reagan — all of them knew it wasn't right, and the rest of us knew it as well.

So what's different this time? Only one thing: the name of the man in the White House. Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong. It's time to reclaim it.

And just imagine what those guys will do if they don't have to worry about re-election.

Small World. Good Radio.

How absolutely amazing to find that two of the more interesting people I know from such different parts of my life are almost related. It turns out that Ed Hasbrouk, the Practical Nomad, whom I know virtually and from conference calls, is partnered with the cousin of Eric Muller, a law school classmate and now fellow law prof. The occasion for this discovery is that both of them are participants in a great NPR segment called Making Contact.

The show is not being played on either of the NPR stations I can get on my radio, but Ed notes that it can be heard online “from the National Radio Project. You can listen to streaming Real Audio or download a high or low bandwidth MP3.”

For the very interesting details as to how Ed and Eric met, and what they have in common and what they argue about, see Eric's blog entry and Ed's.

Scalia's Actions Speak Louder than Words

Two Reporters Told to Erase Scalia Tapes. Justice Scalia gave a speech today in which he said “The Constitution of the United States is extraordinary and amazing. People just don't revere it like they used to.” Meanwhile, a federal Marshal was ordering two reporters to erase tapes of the speech, even though there had been no notice of a no-taping policy. In one case she went so far as to grab a digital recorder from a reporter who, unfortunately, whimped out:

The reporter initially resisted, but later showed the deputy how to erase the digital recording after the officer took the device from her hands. The exchange occurred in the front row of the auditorium while Scalia delivered his speech about the Constitution.

I'm curious as to what law authorizes a federal marshall — or any police officer — to enforce such a policy at a Justice's request (as opposed to the property owner's, where it might in some states be a form of trespass) outside federal property anyway. (There may well be one, but not doing criminal law, I don't know of it.)

As an administrative lawyer I'd especially like to know how formalist Scalia would explain that when he fails to give proper notice, his new no-taping policy (an addition to his longstanding no-cameras policy) is nonetheless binding on all present. I'm certain he would not apply this nunc pro tunc reading to most other contracts. Indeed, Justice Scalia is the Justice most strongly identified with questioning the government's right to take any retroactive decisions that harm well-founded expectations, e.g. in his concurrence in Bowen v. Georgetown University Hospital.

And, oh yes, since this is a (small) Takings, it's a Fifth as well as a First Amendment violation, isn't it?

Yes, it's a lovely Constitution. Could its current disrepute have anything to do with the nature and quality of its custodians?

Thoughts on the Pledge

Rare it is that I am in substantial agreement with any Volokh Conspirator. But with the exception of the next-to-last paragraph, I think Jacob Levy's item on the Pledge captures my feelings pretty well. Where we part company is the idea that the government could reasonably request, much less demand, a citizenship oath at 18.

That said, I guess I have to admit that we already a de facto oath requirement at majority in most states—for those who wish to vote. I've had to swear to preserve and protect not just the Constitution of the USA, but that of two different states in order to exercise my franchise. Is that in keeping with a vision of the Republic that situtates sovereignty in 'We the People?' I can see arguments on both sides of that one.

And since, as it happens, I think that state and federal constitutions are a Good Thing, even when imperfect, I'm certainly not about to make an issue of it.

Crytpo Wars Starting New Round

For a good roundup of the current state of play on crypto tech & politics, see The Importance of…: A Race the FBI Can't Win: The Increasingly Asymmetric Costs of Wiretap Surveillance vs. Wiretap Avoidance. I'd write more on this — I used to write very long articles about it, but I have to run off ot the airport to catch my plane back to Miami….

Scalia Channels Justice Black and Kicks the Feet Out from Under Constitutional Balancing

The following words, written by Justice Scalia for seven members of the Supreme Court in today's Crawford v. Washington decision, will — if taken seriously — lob a hand grenade into many regions of Constitutional interpretation. As one who believes that balancing tests are indeed swallowing the Constitution (this is deep into the territory where left libertarian-leaning people meet right-libertarian leading people — a zone I only frequent rather than residing in) I think this has the potential to be a wonderful and transformative tonic for much of what ails constitutional doctrine:

By replacing categorical constitutional guarantees with open-ended balancing tests, we do violence to their design. Vague standards are manipulable, and, while that might be a small concern in run-of-the-mill assault prosecutions like this one, the Framers had an eye toward politically charged cases like Raleigh’s—great state trials where the impartiality of even those at the highest levels of the judiciary might not be so clear.

Of course, it could also lead to disaster if the bright lines get drawn in the wrong places…

It will be absolutely fascinating to see whether and how this principle is applied in all the upcomong cases in which the government claims various exceptions to ordinary rules of criminal and constitutional procedure in order to fight the War on Terror. (I can already imagine an out for the monarchist tendency on the Court, however: treat something as an 'exception' or a 'special case' and it's not a 'balancing' issue.)

Incidentally, the underlying decision in Crawford — that the Confrontation Clause should be interpreted strictly and thus should exclude most types of hearsay — is pretty incendiary too, as it overrules almost 25 years of contrary Supreme Court precedent, if not more.

Plain Meaning

Oh, I love this: Kieran Healy of Crooked Timber has an idea — “High Concept for a Horror movie: The Constitution really is a living document.”

Bet you someone actually does this as a short.

10th Circuit Blesses 'Do Not Call' Program

Longtime (in internet years) readers will recall my interest in the validity of the 'do-not-call' registry. The 10th Circuit, having vacated the lower court's injunction, has now issued its ruling on the merits, and it upholds the registry. A quick look suggests this case doesn't break new ground. It doesn't try to untangle the confused Supreme Court jurisprudence on content discrimination. Rather, it just says that what the government did here is reasonable (and more likely to be effective than the rule struck down in Hudson Valley, the newsracks case) and that the action is permitted by the statute.

Earlier links:

• Big Win for FTC on Do-Not-Call
• One Last (?) Thought About the Do-Not-Call Decision
• Yet More About the Do-Not-Call-List
• Lots more about the Do-Not-Call List
• Democracy In Action

Michigan Supreme Court Might Overturn Its Infamous Poletown Decision

Ilya Somin of George Mason University School of Law has an op-ed in the Detroit News about the possibility that the Michigan Supreme Court might overturn the infamous Poletown decision. Michigan should alter property grab rules.

In Poletown the court allowed Detroit to seize the homes of more than 4,200 people under its power of eminent domain. This time-hallowed power lets the state seize property for public use. Although the state must pay market value, there's no way to monetize the value of the destruction of a neighborhood, its churuches, and its vanished sense of community. 'Public use' had been thought to mean something the government does for all of us, but in Poletown the purpose of the seizure was to give the land to General Motors so it could build a factory. (The idea was that the new jobs would benefit the public; in the event, far fewer jobs were created than promised and Prof. Somin argues that the project was a net economic loss to the community.)

I recall being outraged by this case when I read about it in the papers, and being outraged again when I read it in law school. Here's hoping…

Safire On Why 'Anti-Privacy' Applies to Cheney's Energy Task Force

Whatever his other peculiarities, William Safire has always been good on privacy — having been wiretapped himself by Nixon he understands how intrusive it is to have the government recording you. Today he shows he's good on anti-privacy too, that is the freedom of information: Behind Closed Doors. Of course, working in a profession which depends on access to public information may have helped inform this view.

The Bush administration's position in the Cheney energy task force case is maximalist. If there were a term beyond “extreme” I'd use it. Deciding in its favor would tilt the separation of powers much further towards the White House; deciding against it only preserves the status quo.

Note, however, the actual court of appeal decision is on a narrow ground of standing, not the merits, suggesting that this need not necessarily be anything more than another step in what's proving to be an effective delaying tactic. Alas, the dissent relies on a fire-breathing version of separation of powers which, were the Supreme Court to adopt it, would not only gut the Federal Advisory Committee Act, but would take us another step towards a Royalist model of government.

See also John Dean (yes, that John Dean), GAO's Final Energy Task Force Report Reveals that the Vice President Made A False Statement to Congress

Colorado Supreme Court Strikes Down Mid-Decade Redistricting

Yahoo! News - Court Says Redistricting Unconstitutional

DENVER - In a decision that could have national implications, the Colorado Supreme Court threw out the state's new congressional districts Monday because the GOP-led Legislature redrew the maps in violation of the constitution.

The General Assembly is required to redraw the maps only after each census and before the ensuing general election — not at any other time, the court said in a closely watched decision. A similar court battle is being waged in Texas.

Under the ruling, Colorado's seven congressional districts revert to boundaries drawn up by a Denver judge last year after lawmakers failed to agree.

The issue before the court was whether the redistricting map pushed through the Legislature by Republicans this year was illegal. Colorado's constitution calls for redistricting only once a decade and Democrats contended the task was completed by the judge.

I look forward to reading this decision. I'm more than prepared to believe that there may be state Constitutional law issues here; but much as I think mid-term redistricting is despicable, it will take something substantial to convince me that there is a federal constitutional law violation here. (Although I can imagine what some of those arguments might look like.)

The relevant constitutional text reads, “The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct.”

That text suggests Congress may have control here — and perhaps in the face of a long tradition of decenial redistricting, its authorization is needed for more frequent changes? Which means I need to find the relevant legislation…

As should be clear from this rambling, this is not a clause I've ever thought deeply about. It's not the clearest either, so I am persuadable. The Colorado case doesn't seem to be online yet though, and I think I'll put off research until I read it.

Declan Gets It

Internet journalist (and nice guy) Declan McCullagh received a remarkable letter recently from FBI Supervisory Special Agent Howard Leadbetter II. The letter demanded that Declan “preserve all records and other evidence” relating to interviews of a computer hacker. According to The Reporters Committee for Freedom of the Press other journalists have received similar letters too.

It seems that the FBI's New York field office has decided that internet journalists are really ISPs and thus subject to § 2703(f) of the Electronic Communication Transactional Records Act”:

(f) Requirement to preserve evidence.—

(1) In general.—A provider of wire or electronic communication services or a remote computing service, upon the request of a governmental entity, shall take all necessary steps to preserve records and other evidence in its possession pending the issuance of a court order or other process.

(2) Period of retention.—Records referred to in paragraph (1) shall be retained for a period of 90 days, which shall be extended for an additional 90-day period upon a renewed request by the governmental entity.

Appropriately, Declan responded, “Leadbetter needs to be thwacked with a legal clue stick.”

He added,

Last I checked, electronically filing this column to my editors does not make me a provider of “electronic communication services.” Nor does tapping text messages into my cell phone transform me into a “remote computing service,” as much as I may feel like one sometimes.

Perhaps I'd be immune from the FBI's demands if I used an Underwood No. 5 typewriter instead.

This is obviously an absurd request, and is clearly not a permissible construction of the statute. If it is, then every person who makes a web page is covered by this statute. The words “provider of wire or electronic communications services” do not mean “internet content provider”. I hope the FBI climbs down on this one before provoking litigation. But if they do, they'll lose.

(The Justice Dept. has a sample § 2703(f) letter online.)

Big Win for FTC on Do-Not-Call

The 10th Circuit decision in FTC v. Mainstream Marketing Serv is a huge win for the FTC. The court not only vacated the injunction blocking implementation of the do-not-call list, but said that it thinks the FTC is very likely to win on the merits.

The key to the panel's decision is that it finds in the agency's deliberative records, and in the original statute's legislative history, reasons why one could believe that commercial calls are (a) more annoying to consumers than non-commercial calls and (b) why the risk of fraud and other harms is greater from commercial calls than from non-commercial calls:

• Consumers find non-commercial calls less intrusive. [huh?-ed] And there are fewer of them.
• Non-commercial callers are less likely to commit financial fraud because often they want to talk you into something not sell you something, and also because they want you to love them, so they won't tend to do things that make you mad. [This probably meets the plausibility test, even if I'm not sure I buy it personally.]
• The FTC had reason to believe that company-specific lists didn't work to stop commercial telemarketers, but had no evidence about the effectiveness of such lists for non-commercial callers. It was thus reasonable for the FTC to proceed to solve the part of the problem it understood best: just because “the FTC did not yet have a record as to the need to include charitable callers on a national do-not-call list does not mean that it could not at least address the problem as to which it did have an adequate record–that the more limited company-specific do-not-call list was ineffective to prevent invasions of privacy and abusive practices among commercial solicitors. United States v. Edge Broad. Co., 509 U.S. at 434 (noting the government is not required 'to make progress on every front before it can make progress on any front')”).”

This is not the world's most overwhelmingly persuasive reasoning, but it's good enough to be getting on with: it supplies the reasons needed to overcome the First Amdment presumptions against non-viewpoint-based content discrimination (see my earlier discussion and followup).

Bottom line: Look forward to a more peaceful dinnertime. Except during election season.

Do-Not-Call Lives Again

The 10th Circuit has just issued an order reviving the do-not-call list. I have to go teach a class, but I'll try to write up something about it late tonight.

Structural Failings in the California Election: The Case for STV Now More Than Ever

California is voting today. As a supporter of democratic institutions to the maximum extent compatible with broadly republican government – in other words, as someone who is predisposed to like the institutions of ballot initiatives and petitions, and who thinks that recalls do have a place in a well-run representative democracy, I take away two and a half lessons from the California fiasco: The two main lessons are that the bar for a recall needs to be somewhat higher, but not too high, and that if ever there was on object lesson on the virtues of single transferable vote, this is it. (The half lesson is that I need to rethink the virtues and vices of postal voting.)

The first lesson is obvious and has been noted often: it's dangerous to set the bar for recall (and perhaps for petitions) too low. In California, the state currently requires a minimum of 897,158 signatures of registered California voters to recall a Governor, that being 12% of the of the votes cast for Governor in the most recent election. I think this experience shows that this number is too low. Only 36.1 percent of the 21.5 million eligible voters in California voted in the November 2002 election. If the requirement for a recall were 12% of registered voters, that would almost have tripled the number of signatures needed. California's total population is about 35 million so ten percent of that would require 3.5 million registered voters to sign, or about four times as much as currently required.

The second lesson also seems obvious to me, but strangely got little traction. Many people have pointed out the danger that comes (if the incumbent is recalled) of allowing the replacement to be selected by a mere plurality. It's entirely conceivable, for example that 49% of the voters might choose to retain Gov. Davis, but that his replacement might have the support of only, say, 25% of the electorate. That is not a result that serves the state well.

The traditional US approach to this problem—when we deal with it at all—is to require a run-off election between the two top vote getters when no one has a majority. That would be better than what California is doing now, but I'd like to suggest that it is nowhere near the best system.

The state of California was badly served by the conduct and structure of the replacement campaign. The special election brought forth 125 135 candidates. I thought that was great. Yes, some of them were jokes—the bar to getting on the ballot was set too low—but others were real people who ought not to have been dismissed quite so quickly as possible candidates. It would be wonderful if we lived in a world in which you didn't need to be a professional politician and have millions of dollars in order to get the media to pay attention to you when running for office, a world in which you would at least get one chance to make an impact on the quality of your person and your ideas.

The solution to both the problem of the candidate with a tiny plurality and the problem of over-rapid media-driven winnowing of candidates is to have the ballot be by single transferable vote

The Single Transferable Vote is a system of proportional representation that allows voters to vote for individual candidates (as opposed to party lists) in order of preference. Voters rank the candidates in order of preference; first preference votes are the first to be looked at, and the votes are then transferred if necessary from candidates who have either been comfortably elected or who have done so badly that they are eliminated from the election.

In Googling for this item, I was pleased to discover the Center for Voting and Democracy, a group that promotes STV under the name of Instant Runoff Voting . They have a good FAQ.

STV is obviously much fairer than first-past-the-post, plurality-take-all for elections with multiple candidates and no runoffs. It produces a winner who has more real support, more visibly, and thus more legitimacy—which makes it easier for the victor to govern effectively.

I'd argue that STV is also usually superior to first-past-the-post elections with runoffs. For example, suppose there are three candidates. A and B each have their passionate supporters representing 40% of the electorate. C has 20% support but is the second choice of a substantial majority of A and B's supporters. In an STV system, C wins. In a first-past the post system with runoff he doesn't even make the final cut. [This is was a really lousy example; see the comments. A better example is this one: A is a candidate with a strong following among a minority of the electorate. He gets 30% of the first choice votes, which is more than any other single candidate, but everyone else hates him. B, C, D split the rest of the vote. As each gets eliminated their votes are redistributed to everyone except A; eventually one of them gets over 50%.] It's true that one can craft other hypothetical preference distributions in which an STV system is less likely to produce a compromise candidate. STV might in some cases reduce the pressure on candidates and parties to moderate their views to appeal the marginal swing voter, but I think European experience shows that this tends not to be the case in single-member districts. (There is something to this criticism when the elections are for candidates in multi-member districts, or for national electoral lists. But we basically don't have elections like that in the US, so for us this is a red herring.)

Many people will spin the results in California as democracy gone wild, or 'oh those nutty Californians'. For me, though, it's mostly a state let down by its electoral architecture.

Kim Lane Scheppele on the Dangers of Rushing the Iraqi Constitution

A transfer of sovereignty to a functioning Iraqi government is a prerequisite to an orderly US departure.

The official US policy is that the Iraqi constitution must be drafted before the US can transfer sovereignty back to the Iraqis:

Bush administration officials contend that if they transfer sovereignty before a constitution is drafted and a democratically elected government is seated, the interim political authority could prolong or subvert the process. “If a constitution has to be drafted before there can be a government, you bet we’ll get a constitution.”

Indeed, The US has a lot riding on getting the Iraqis to draft a new constitution quickly. So long as there is no Constitution, and no interim government either, bodies such as the IMF may not recognize the local authorities as a government to which they can give funds. And, so long as the US (or, if you prefer, the “coalition”) remains an occupying power, it has various obligations arising from International law.

Last week Colin Powell optimistically suggested the constitutional drafting might be completed within six months. That idea seems unlikely to survive its encounter with the reality of an Iraqi political scene that is divided and fractious.

Kim Lane Scheppele, Professor of Law and Sociology at the University of Pennsylvania, an expert in comparative constitutional law, is worried about the rush to design an Iraqi constitution, and she's graciously allowed me to reproduce a listserv contribution of hers on the subject:

having observed some constitutional drafting processes at close range and participated in a couple, it seems to me that it's important to start with the history of the place and the specifics of the culture and legal system. Toward that end, I've found the following sources helpful.

The Public International Law and Policy Group and the Century Foundation has produced a sobering report on the major issues involved in drafting a constitution for Iraq. The report can be found at:

http://www.tcf.org/Publications/iraq_report.pdf

The Iraqi constitution of 1990:

http://www.oefre.unibe.ch/law/icl/iz00t___.html

And the Iraqi constitution of 1925 can be found at:

http://www.geocities.com/dagtho/ iraqiconst19250321.html

(For those interested in constitutional borrowing, the 1925 Constitution begins, “We, the King …”

What seems to me most troubling about a future Iraqi constitution is that the country is a cobbled together collection of people and places without a common sense of history or (as far as I can tell) a common sense of the future. Iraq's own brief constitutional history (seen in the documents above) is not particularly promising as a place to start. By contrast, the Afghan constitution started with far more inspiring raw materials — in particular, a 1964 constitution that was a perfectly respectable modern constitution that actually functioned for nearly a decade. As a result, when the war ended in Afghanistan, the 1964 constitution could be restored and used as a starting point for the new drafters. Just where one starts to get a grip on constitutional issues in Iraq will be much harder because there is no such prior text that could provide a point of common reference if the drafting process produces deadlocks. This is one tough place to write a constitution.

Nation-building is hard work. Isn't it good that we have an Administration so fully committed to the project?

One Last (?) Thought About the Do-Not-Call Decision

As noted by a poster, and others, I should really have noted the extent to which the Judge Nottingham's decision relies not just on the R.A.V. decision, but also on the more closely apposite Cincinnati v. Discovery Network decision. That case struck down an attempt by the city to ban newsracks with commercial handbills, but not those with newspapers (which included both commercial and political speech), on the grounds it would help beautify the city. The case is distinguishable: the Court found the rule didn't materially aid the city's objective, since the handbill racks were only about 3% of the city's total. In the do-no-call case we're looking at about 50%, so as Judge Nottingham observed if the issue were only “numerical underinclusiveness” then the do-no-call rule survives. But, the Judge held,

In Discovery Network, the Supreme Court recognized content discrimination as the primary flaw in the city's regulation of news racks. The city's regulation failed under the First Amendment because the regulation distinguished between commercial and noncommercial speech, despite the fact that there was no evidence that the commercial use of news racks was more harmful to city beautification than other uses of news racks. When a regulatory regime is pierced by content-based exemptions and inconsistencies in the government's explanation as to how the regime advances a substantial interest, it must fail under the First Amendment. Simply stated, the government's practice cannot be at odds with the asserted government interest. The regulation cannot distinguish among the indistinct, permitting a variety of speech that entails the same harm as the speech which the government has attempted to limit. Here, plaintiffs argue that the registry does not materially advance the FTC's interest because the FTC has made a content-based distinction between commercial and charitable solicitations for reasons unrelated to its interest in privacy.

… Realizing that its interest in privacy does not justify the distinction between commercial and noncommercial speech, the FI'C attempts to justify the distinction by advancing several other arguments. First, the FTC argues that nonprofit corporations and political fund-raisers are less likely than for-profit entities to engage in abusive practices because the consumer is both a potential donor and a potential voter or volunteer for the charity or political party. Distinguishing between commercial and noncommercial speech may be proper when it bears a relationship to preventing commercial harms, such as fraud. (citations omitted)

It isn't true, as one Representative said yesterday, that “50 million Americans can't be wrong.” They can be, and that's one of the reasons for the Bill of Rights. But 50 million Americans, a determined Congress, and unsympathetic plaintiffs are likely to motivate a reviewing court to see if there are any good excuses to uphold the statute. This is why I think the legislative record in Congress may matter. And, if you squint at it just right, it might provide what is needed.

Yet More About the Do-Not-Call-List

Surprise, surprise, the FTC is going to appeal Judge Nottingham's decision striking down the do-not-call list program.

I had a look at the Congressional Record to see what if anything a court might mine from it. [Cites to thomas.loc.gov are not permanent so this is hard to link. Look for the Senate - September 25, 2003 at page S11957 and the House at H8916.]

The key point here is that there is some stuff a court willing to work with legislative history (itself a controversial issue) could use. But there's not a huge pile of it.

Senator Pryor is maybe the key here. He mentioned that there is telemarketing fraud, and this will reduce it, which a very determined court might use to suggest that the 'fighting fraud' exception to the general limit on content discrimination could be justified here. In fact, he said it in two separate speeches—and the second, briefer one may be the one that provides a hook to save the bill: “Mr. President, we all know that fraud can be very much a problem when it comes to telemarketing, but we also know a Do Not Call registry is a very positive consumer tool against fraud. By that I mean if you signed up for the National Do Not Call plan and you still get a call, you know something is up. That ought to be your first tip that something may be amiss with this call.” That should do it.

Other than that, there isn't that much. Several Representatives and Senators said conclusory things like 'there is no First Amendment issue here.' That won't do anything. Representative Holt said,

Telemarketers have, like everyone else in this country, the right to free speech. They have the right to say what they want. What they don't have is the right to force Americans to listen to their sales pitches.

Americans, on the other hand, should have the right to a little peace and quiet. They should have the right to not have to get unwanted advertising pitches over the phone during dinnertime.

Telemarketers already have the tools they need to exercise their right to free speech—they have autodialing computers, prerecorded messages, phone registries, and legions of operators. In creating the Do-Not-Call Registry, the FTC was merely trying to provide consumers with the power to truly exercise this right. The Do-Not-Call Registry is just one simple, effective tool that will give consumers the ability to exercise their right to a little peace and quiet.

Senator Hollings did say the Americans “want to protect their private medical and financial information and protect their children from indecent advertising,” although it's somewhat unclear to me what the first part of this has to do with the subject.

Senator Dorgan could be read to say that sales calls are more annoying than other types, when he said, “There may be some people who are terribly lonely and whose phone seldom rings except to have an advertiser of a credit card or a long-distance service call during meal time just wanting to visit about their product. There may be some people who welcome those calls, just talk the ear off these telemarketers. I can't say that for sure, but this country is full of very interesting people. As for me and for most of the American people, getting a telephone call in the middle of a meal or getting a telephone call at all hours of the day and night to have someone tell us that we really need a new long-distance service or a preapproved credit card gets a little annoying. Unsolicited phone calls are an intrusion on the phone line that most American people pay every month to have in their home.”

Meanwhile, here's the offical text of the bill as passed by both houses:

To ratify the authority of the Federal Trade Commission to establish a do-not-call registry. (Enrolled as Agreed to or Passed by Both House and Senate)

H.R.3161
One Hundred Eighth Congress
of the
United States of America
AT THE FIRST SESSION
Begun and held at the City of Washington on Tuesday,
the seventh day of January, two thousand and three

An Act
To ratify the authority of the Federal Trade Commission to establish a do-not-call registry.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. NATIONAL DO-NOT-CALL REGISTRY.

(a) AUTHORITY- The Federal Trade Commission is authorized under section 3(a)(3)(A) of the Telemarketing and Consumer Fraud and Abuse Prevention Act (15 U.S.C. 6102(a)(3)(A)) to implement and enforce a national do-not-call registry.

(b) RATIFICATION- The do-not-call registry provision of the Telemarketing Sales Rule (16 C.F.R. 310.4(b)(1)(iii)), which was promulgated by the Federal Trade Commission, effective March 31, 2003, is ratified.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

There was a slightly amusing moment in the House when one Represenatative said that he knew they were sometimes attacked for voting on bills they had not read. Well, this time he was going to read the whole (tiny) bill to the chamber, so there would be no doubt everyone knew what it said.