Thursday, December 29, 2005

Judge Alito and Executive Power

Sandy Levinson

Samuel Alito may turn out, perhaps fortunately for the rest of us, to be a victim of cruel fate, being the wrong person in the wrong place at the wrong time. Here he is, a noted-and more than competent, in any conventional sense-ultra-conservative who has the misfortune of having to face the Senate on January 7 in effect to defend his nomination to the Supreme Court by President George W. Bush. The initial response to his nomination revolved almost entirely (though not exclusively) around the implications, should he join the Court, for the maintenance of the legal regime regarding abortion signified by Roe v. Wade. Opponents emphasized the possibility that he would vote to overrule a decision that he clearly believes was illegitimate when issued in 1973; supporters either applauded that possibility or proclaimed his fidelity to the purported "superprecedent" of Roe, given that many following decision affirmed its basic holding.

But Alito was clearly not nominated simply because he has doubts about Roe v. Wade. One could reel off at least a dozen of plausible nominees who share that hostility. Nor was he nominated because he is generally protective of the rights of the religious and skeptical of the Establishment Clause doctrines associated with Justice William Brennan. There are many other potential justices who share that view as well. Indeed, if Roe and sympathy to the claims of Evangelical Christians were Bush's (or Karl Rove's) main concerns, there literally could have been no better nominee than 10th Circuit Court of Appeals Judge Michael McConnell, a former professor at the Universities of Chicago and Utah who was warmly supported by many liberal law professors (including myself) when the Senate considered his nomination in 2002 (when he was delayed by Democrats who were then in the majority) and then in 2003, when he was confirmed.

So what does explain Alit's nomination, given that by any plausible account McConnell would have been a more distinguished nominee with easier prospects of confirmation? The answer, I suggest, is the belief by insiders in the Bush Administration that he would be better on the one issue they REALLY care about, which is the aggrandizement of Executive power. The events of the past two weeks, following the disclosures about literally unwarranted wiretapping and data-mining by the National Security Agency, bring into sharp focus the intent by the Administration, led by Dick Cheney, to assert almost unlimited executive powers linked to the "Commander-in-Chief" Clause of Article II of the Constitution.

Recall that then-Judge John Roberts gave the Administration a major victory in the D.C. Court of Appeals in the Hamdan case literally the week before he was nominated to the Supreme Court. He will, of course, have to recuse himself when the Court hears the case on appeal, as it voted to do on November 7, but there can be little doubt that there will be other similar cases dealing with the scope of executive power. Roberts is likely to be a dependable ally of the President.

But the Administration needs ever more votes. From their perspective, they suffered a defeat in the various cases in 2004 dealing with treatment of detainees at Guantanamo and elsewhere. Only Clarence Thomas accepted an argument similar to those made by the German (and many would add "Nazi") legal philosopher Carl Schmitt during the 1920's and '30s that the Chief Executive (or "dictator") has basically unlimited power during a time of emergency. Antonin Scalia, the other justice often picked out for special adoration by the Republican right, in fact wrote an eloquent dissent in one of the major cases that emphasized the necessity for congressional authorization before access to a write of habeas corpus can in effect be denied, as the Administration was trying to do with regard even to American citizens held within the United States.

It may be a mistake, then, to view Alito as a clone of Scalia. It is just as likely that one should speak of "Thomalito" instead of "Scalito" with regard to the major issue before the Court, and the nation, both now and in the foreseeable future, which is the ability to stave off ever more aggressive assertions of executive power uncheckable by either Congress or the judiciary.

To be sure, if the Administration has the commitment to Executive branch aggrandizement that I am describing, one might think that an even better nominee would have been Fourth Circuit Judge Michael Luttig. But Luttig is in fact too visible; he has written too many opinions that allow easy identification of his views with those of Justice Thomas. To this extent, Alito is more the "stealth" nominee. The Third Circuit simply doesn't have the array of relevant opinions on national security issues, not least because the Administration explicitly places as many such cases as possible in the conservative-dominated Northern District of Virginia and then the Fourth Circuit Court of Appeals, secure in the knowledge that it will rarely lose. But it is wildly unlikely that the justice-pickers were indifferent to Judge Alito's likely proclivities.

This makes it essential, obviously, that every member of the Senate Judiciary Committee grill Judge Alito on his views of Article II, the Commander-in-Chief Clause, and, for that matter, the Oath of Office, given that University of Minnesota Law Professor Michael Stokes Paulsen reads the Oath to license the President basically to do whatever he wishes so long as there is a good faith belief that it is "defense" of the Constitution. Quoting Lincoln, Paulsen argues that just as one can amputate a limb in order to save the life of a person, so can a President in effect ignore any given part of the Constitution, including, of course, any of the protections of the Bill of Rights, in order to save the Nation. To put it mildly, this theory of the "amputated Constitution" should give us all pause.

Had Alito been nominated two years ago, many of these questions might have sounded "academic." In the aftermath of the disclosure of memos written within the Department of Justice justifying the President's "inherent" right to torture and then, more recently, of Bush's own public claims to almost limitless executive authority following the NSA disclosures, there is nothing at all academic about them. They go to the heart of whether we can maintain ourselves as a constitutional republic.

Some observers are throwing around the idea of impeaching George W. Bush. For a variety of reasons, that is unlikely to happen. We are almost certainly be stuck with Bush until 2009. But we are not stuck with having to ratify the would-be-king's choice of his courtiers. Samuel Alito is undoubtedly very bright, and he is probably as pleasant a person as many of the stories make him out to be. But there is also a very high likelihood that he has been chosen to assist in the overall project of executive aggrandizement, and no senator should vote to confirm his nomination unless he or she is absolutely assured that that is not the case. The stakes are simply too high to allow any deference at all to this president (and vice-president), whose hunger for power, if tolerated, will transform us into a country that none of us should wish to live in.

Wednesday, December 28, 2005

NSA Euphemism Watch, Part 2

Marty Lederman

In this week's Weekly Standard, Gary Schmitt of AEI (former executive director of the President's Foreign Intelligence Advisory Board) has an intriguing essay in which he argues that FISA was a very bad idea to begin with:
FISA has been a problem ever since it became law in 1978. Congress passed and President Carter signed the bill regulating electronic surveillance for foreign intelligence collection in the wake of an extended, post-Watergate debate about the so-called "imperial presidency." The debate was given added urgency by reports and official investigations of indiscriminate snooping in this country by elements of the U.S. intelligence community. However, like so much else from that period, the broad arguments about the president's role in the constitutional order were wrong, and the laws designed to correct real problems created a new set of problems.

The principal problem with FISA, in Schmitt's view, is that it "is less about collecting intelligence than confirming intelligence." "Before the government can get a warrant," Schmitt explains, "the Justice Department must put together a case to present before the court stating the 'facts and circumstances relied upon . . . to justify [the attorney general's] belief that the target is an agent of a foreign power' or 'engages . . . in international terrorism.' And the FISA judges can only grant the warrant when 'there is probable cause to believe that the target' is engaged in espionage or terrorism. In short, before the government can collect intelligence on someone by breaking into his house or tapping his phones, it had better already have in hand pretty persuasive evidence that the person is probably up to no good."

In other words, the current law does not authorize -- indeed, it prohibits -- the sort of data-mining program that the NSA has been operating over the past four years. Schmitt bemoans this fact, and urges that FISA be scrapped: "We should have a serious debate about abolishing FISA and restoring the president's inherent constitutional authority to conduct warrantless searches for foreign intelligence purposes." In Schmitt's view, it should be Congress itself, not the FISA Court, that provides oversight to ensure that the Executive is not abusing the power to wiretap: "One of the odd effects of FISA has been to take serious and sustained congressional oversight of electronic surveillance off the table. The constitutional body that should be watching the executive's discretionary behavior is, after all, primarily Congress. . . . [The founders] expected presidents to do what was required to secure the country's safety. But they did anticipate that Congress would play the role of Monday--morning quarterback: exposing malfeasance when called for, adding or cutting off funds when necessary, passing laws to regularize the exercise of executive discretion without undermining it, and, in the face of truly egregious behavior, being ready to impeach a president."

It's a very intriguing proposal, akin to that of Judge Posner. I'm not yet convinced on the merits; but others will be, and it certainly is a very important debate for Congress and the public to have. Indeed, as Schmitt notes, Congress had this very debate back in the mid-1970's. FISA was not enacted on a whim; it followed considerable give-and-take, and compromise, between the Executive and Congress "in the wake of an extended, post-Watergate debate." During that debate, Laurence Silberman's testimony before Congress was bascially identical to Schmitt's column -- and it was overwhelmingly rejected by both political branches.

But perhaps the issue ought to be revisited. There would certainly be nothing illegitimate about such a debate, even if (like me) you think that FISA's checks on the Executive have been valuable.

OK, but what does that mean about the conduct of the NSA over the past four years? Schmitt doesn't come right out and say it, but the clear upshot of his column is this: FISA was too restrictive, and harmful, and so the Preisdent authorized violations of the law. Schmitt does not indulge the ridiculous fiction that Congress has already scrapped FISA, or carved out a wartime exception, when it passed the Authorization for Use of Military Force against Al Qaeda.

"[T]he law is what it is," he regretfully acknowledges.

Schmitt (and the Weekly Standard) seems untroubled by the fact that the President has been violating the law that Schmitt himself concedes is presently so restrictive. This is how he puts it: "President Bush's decision to bypass FISA warrants in the electronic surveillance of al Qaeda operatives has highlighted the act's limitations." The President made a "decision to go around FISA in the wake of 9/11 and to order the National Security Agency to conduct warrantless surveillance of emails and calls going back and forth from suspected al Qaeda operatives abroad to the United States, and vice versa."

Just to be clear: Schmitt is accusing the President of authorizing criminal conduct, of failing to abide by his constitutional obligation to "faithfully execute the laws." No doubt the President, like Schmitt, thinks those laws are inadvisable, and damaging to our national security interests. But is that a sufficient excuse?

There's a certain irony here, in that FISA itself is one of those rare statutes that expressly contemplates that the rules for Executive conduct might need to be altered during wartime. The statute provides that "[n]otwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." 50 U.S.C. 1811.

Why does the statute permit warrantless surveillance for only the first 15 days of a war? After all, the need for intelligence ordinarily will be just as great throughout the war, not only during its first 15 days. The answer is that 15 days was deemed sufficient to give the President the opportunity to ask Congress for a statutory amendment. As the Conference Report explained: "The Conferees intend that this [fifteen-day] period will allow time for consideration of any amendment to this act that may be appropriate during a wartime emergency. The conferees expect that such amendment would be reported with recommendations within 7 days and that each House would vote on the amendment within 7 days thereafter.” H.R. Conf. Rep. No. 95-1720, at 34 (1978).

The Bush Administration could have, but did not, take advantage of the 15-day window for legislative change that Congress specifically inserted in FISA (perhaps because it was informed that an amendment to allow this sort of data-mining would have been a political nonstarter). Instead, it simply decided to violate the law. Isn't that choice to bypass the democratic process a bit disconcerting, even if (like Gary Schmitt) one thinks the law was a lousy idea to begin with?

Pentagon Drags Heels on Implementing Rules Against Human Trafficking by Contractors


This San Jose Mercury News story (originally from the Chicago Tribune) points out that the Pentagon has yet to implement rules against human trafficking by U.S. contractors. The sticking point seems to be that U.S. contractors don't want the responsibility of monitoring their subcontractors for violations.
Three years ago, President Bush declared that he had "zero tolerance" for trafficking in humans by the government's overseas contractors, and two years ago Congress mandated a similar policy.

But notwithstanding the president's statement and the congressional edict, the Defense Department has yet to adopt a policy to bar human trafficking.

A proposal prohibiting defense contractor involvement in human trafficking for forced prostitution and labor was drafted by the Pentagon last summer, but five defense lobbying groups oppose key provisions and a final policy still appears to be months away, according to those involved and Defense Department records.

The lobbying groups opposing the plan say they're in favor of the idea in principle, but said they believe that implementing key portions of it overseas is unrealistic. They represent thousands of firms, including some of the industry's biggest names, such as DynCorp International and Halliburton subsidiary KBR, both of which have been linked to trafficking-related concerns.

Lining up on the opposite side of the defense industry are some human-trafficking experts who say significant aspects of the Pentagon's proposed policy might actually do more harm than good unless they're changed. These experts have told the Pentagon that the policy would merely formalize practices that have allowed contractors working overseas to escape punishment for involvement in trafficking, the records show.

Sunday, December 25, 2005

If You're Going to Read Only One Thing About the NSA Spying Program

Marty Lederman

. . . it probably ought to be this piece by Suzanne Spaulding, former assistant general counsel at the CIA, general counsel for the Senate and House Intelligence committees, and executive director of the National Terrorism Commission (1999-2000).


The objectives of the surveillance program, as described in news reports, seem laudable. The government should be running to ground the contacts listed in a suspected terrorist's cell phone, for example. What is troubling is that this domestic spying is being done in apparent contravention of FISA, for reasons that still are not clear. . . .

Perhaps the administration did not believe that these wiretaps would meet the FISA standard, which requires the government to have probable cause to believe that the target of the surveillance is an agent of a foreign power, which includes terrorists and spies. . . .

[I]f administration officials believed they faced a scenario in which the FISA standard could not be met, they could have sought to amend the statute, as they have done several times since the law's enactment in 1978. Several such amendments, for example, were contained in the 2001 Patriot Act.

The administration reportedly did not think it could get an amendment without exposing details of the program. But this is not the first time the intelligence community has needed a change in the law to allow it to undertake sensitive intelligence activities that could not be disclosed. In the past, Congress and the administration have worked together to find a way to accomplish what was needed. It was never previously considered an option to simply decide that finding a legislative solution was too hard and that the executive branch could just ignore the law rather than fix it.

Moreover, the administration has yet to make the case for keeping this significant policy change secret for four years. It's hard to imagine that the terrorists do not already assume that we try to listen to their cell phone conversations (after all, it is well known that FISA allows such wiretaps) or that we have technology to help us search through reams of signals. (Check out the Wikipedia definition of Echelon on the Internet.) So what do the terrorists learn from a general public discussion about the legal authority being relied upon to target their conversations? Presumably very little. What does the American public lose by not having the public discussion? We lose the opportunity to hold our elected leaders accountable for what they do on our behalf.

Attorney General Alberto Gonzales claims that the NSA program did not violate the law because FISA only requires a warrant "unless otherwise authorized by statute" and that the congressional resolution authorizing the use of force after the attacks of Sept. 11, 2001, somehow authorized this circumvention of FISA's rules. FISA does provide for criminal penalties if surveillance is conducted under color of law "except as authorized by statute." This is a reference to either FISA or the criminal wiretap statute. A resolution, such as the Use of Force resolution, does not provide statutory authority. Moreover, FISA specifically provides for warrantless surveillance for up to 15 days after a declaration of war. Why would Congress include that provision if a mere Use of Force resolution could render FISA inapplicable?

The law clearly states that the criminal wiretap statute and FISA are "the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted." If these authorities are exclusive, there is no other legal authority that can authorize warrantless surveillance.

Courts generally will not view such a clear statutory statement as having been overruled by a later congressional action unless there is an equally clear indication that Congress intended to do that.

The administration's ultimate argument is that "the president has the inherent authority under the Constitution, as Commander-in-Chief, to engage in this kind of activity." This is the same argument outlined in the infamous torture memo, which concluded that the president can effectively ignore any statute that appears to infringe on this broad authority. That memo was withdrawn after it became public and was roundly criticized. The legal reasoning behind the arguments, however, has never been repudiated and appears to have resurfaced here.

We cannot know for certain how the Supreme Court would rule on the legitimacy of the spying program. However, the court rejected President Harry Truman's similar claim of broad presidential power in seizing control of the nation's steel mills to avert a strike during the Korean War. The court, in a 6-to-3 ruling , stated that the president's inherent authority is at its weakest in areas where Congress has already legislated. It ruled that to find inherent presidential authority when Congress has explicitly withheld that authority -- as it has in FISA -- "is not merely to disregard in a particular instance the clear will of Congress. It is to disrespect the whole legislative process and the constitutional division of authority between president and Congress."

The administration may be counting on fear of another terrorist attack in asserting this unprecedented authority. But if President Bush can simply ignore laws that he thinks are unconstitutional, without getting a court ruling or having genuine consultations with Congress, then why bother to work so hard at getting the Patriot Act provisions right, or the McCain torture amendment, or any other laws related to terrorism? And where does it stop? Justice Sandra Day O'Connor rejected the administration's claim of unchecked power in the 2004 Hamdi case, in which the government argued that the courts could not review the legality of enemy combatant detentions. She wrote, "We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of the Nation's citizens. . . . Whatever power the United States Constitution envisions for the Executive in its exchanges with . . . enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

Saturday, December 24, 2005

The McCain and Graham/Levin/Kyl Amendments -- Here They Are

Marty Lederman

Finally, the final language in the McCain and Graham/Levin/Kyl amendments is publicly available. It forms Title XIV of the Defense Authorization Act. I assume -- but don't yet know for sure -- that the Defense Appropriations bill will contain the exact same language. Most of the Senate-side floor statements construing the language can be found in 151 Congressional Record S14245-S14275 (Dec. 21, 2005) (statements of Senators Leahy, Durbin, Feingold, Levin, Kyl, Graham, Brownback, McCain, Clinton, Kerry and Reid). See also 151 CR S14170 (Dec. 20, 2005) (Sen. Kennedy). The only statements I've seen so far on the House side are those of Reps. Nadler, Sanchez and Udall, 151 CR H12207-H12211 (Dec. 18 2005); but I imagine there will be more.

Here's Title XIV:


Sec. 1401. Short title
Sec. 1402. Uniform standards for the interrogation of persons under the detention of the Department of Defense
Sec. 1403. Prohibition on cruel, inhuman, or degrading treatment or punishment of persons under custody or control of the United States Government
Sec. 1404. Protection of United States Government personnel engaged in authorized interrogations
Sec. 1405. Procedures for status review of detainees outside the United States
Sec. 1406. Training of Iraqi security forces regarding treatment of detainees


This title may be cited as the "Detainee Treatment Act of 2005".


In General.-No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.

Applicability.-Subsection (a) shall not apply with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.

Construction.-Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.


In General.-No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.

Construction.-Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.

Limitation on Supersedure.-The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.

Cruel, Inhuman, or Degrading Treatment or Punishment Defined.-In this section, the term "cruel, inhuman, or degrading treatment or punishment" means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth *H12834 Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.


Protection of United States Government Personnel.-In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States, its interests, or its allies, and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that such officer, employee, member of the Armed Forces, or other agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available to any person or entity from suit, civil or criminal liability, or damages, or to provide immunity from prosecution for any criminal offense by the proper authorities.

Counsel.-The United States Government may provide or employ counsel, and pay counsel fees, court costs, bail, and other expenses incident to the representation of an officer, employee, member of the Armed Forces, or other agent described in subsection (a), with respect to any civil action or criminal prosecution arising out of practices described in that subsection, under the same conditions, and to the same extent, to which such services and payments are authorized under section 1037 of title 10, United States Code.


Submittal of Procedures for Status Review of Detainees at Guantanamo Bay, Cuba, and in Afghanistan and Iraq.-

(1) IN GENERAL.-Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committee on Armed Services and the Committee on the Judiciary of the Senate and the Committee on Armed Services and the Committee on the Judiciary of the House of Representatives a report setting forth-
(A) the procedures of the Combatant Status Review Tribunals and the Administrative Review Boards established by direction of the Secretary of Defense that are in operation at Guantanamo Bay, Cuba, for determining the status of the detainees held at Guantanamo Bay or to provide an annual review to determine the need to continue to detain an alien who is a detainee; and
(B) the procedures in operation in Afghanistan and Iraq for a determination of the status of aliens detained in the custody or under the physical control of the Department of Defense in those countries.

(2) DESIGNATED CIVILIAN OFFICIAL.-The procedures submitted to Congress pursuant to paragraph (1)(A) shall ensure that the official of the Department of Defense who is designated by the President or Secretary of Defense to be the final review authority within the Department of Defense with respect to decisions of any such tribunal or board (referred to as the "Designated Civilian Official") shall be a civilian officer of the Department of Defense holding an office to which appointments are required by law to be made by the President, by and with the advice and consent of the Senate.

(3) CONSIDERATION OF NEW EVIDENCE.-The procedures submitted under paragraph (1)(A) shall provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee.

Consideration of Statements Derived With Coercion.-

(1) ASSESSMENT.-The procedures submitted to Congress pursuant to subsection (a)(1)(A) shall ensure that a Combatant Status Review Tribunal or Administrative Review Board, or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall, to the extent practicable, assess-
(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and
(B) the probative value, if any, of any such statement.

(2) APPLICABILITY.-Paragraph (1) applies with respect to any proceeding beginning on or after the date of the enactment of this Act.

Report on Modification of Procedures.-The Secretary of Defense shall submit to the committees specified in subsection (a)(1) a report on any modification of the procedures submitted under subsection (a). Any such report shall be submitted not later than 60 days before the date on which such modification goes into effect.

Annual Report.-

(1) REPORT REQUIRED.-The Secretary of Defense shall submit to Congress an annual report on the annual review process for aliens in the custody of the Department of Defense outside the United States. Each such report shall be submitted in unclassified form, with a classified annex, if necessary. The report shall be submitted not later than December 31 each year.

(2) ELEMENTS OF REPORT.-Each such report shall include the following with respect to the year covered by the report:
(A) The number of detainees whose status was reviewed.
(B) The procedures used at each location.

Judicial Review of Detention of Enemy Combatants.-

(1) IN GENERAL.-Section 2241 of title 28, United States Code, is amended by adding at the end the following:
"(e) Except as provided in section 1405 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider-
"(1) an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba; or
"(2) any other action against the United States or its agents relating to any aspect of the detention by the Department of Defense of an alien at Guantanamo Bay, Cuba, who-
"(A) is currently in military custody; or
"(B) has been determined by the United States Court of Appeals for the District of Columbia Circuit in accordance with the procedures set forth in section 1405(e) of the Detainee Treatment Act of 2005 to have been properly detained as an enemy combatant.".

(A) IN GENERAL.-Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision of a Combatant Status Review Tribunal that an alien is properly detained as an enemy combatant.
(B) LIMITATION ON CLAIMS.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to claims brought by or on behalf of an alien-
(i) who is, at the time a request for review by such court is filed, detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a Combatant Status Review Tribunal has been conducted, pursuant to applicable procedures specified by the Secretary of Defense.
(C) SCOPE OF REVIEW.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of-
(i) whether the status determination of the Combatant Status Review Tribunal with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor the Government's evidence); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.
(D) TERMINATION ON RELEASE FROM CUSTODY.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit with respect to the claims of an alien under this paragraph shall cease upon the release of such alien from the custody of the Department of Defense.

(A) IN GENERAL.-Subject to subparagraphs (B), (C), and (D), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of any final decision rendered pursuant to Military Commission Order No. 1, dated August 31, 2005 (or any successor military order).
(B) GRANT OF REVIEW.-Review under this paragraph-
(i) with respect to a capital case or a case in which the alien was sentenced to a term of imprisonment of 10 years or more, shall be as of right; or
(ii) with respect to any other case, shall be at the discretion of the United States Court of Appeals for the District of Columbia Circuit.
(C) LIMITATION ON APPEALS.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit under this paragraph shall be limited to an appeal brought by or on behalf of an alien-
(i) who was, at the time of the proceedings pursuant to the military order referred to in subparagraph (A), detained by the Department of Defense at Guantanamo Bay, Cuba; and
(ii) for whom a final decision has been rendered pursuant to such military order.
(D) SCOPE OF REVIEW.-The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on an appeal of a final decision with respect to an alien under this paragraph shall be limited to the consideration of-
(i) whether the final decision was consistent with the standards and procedures specified in the military order referred to in subparagraph (A); and
(ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to reach the final decision is consistent with the Constitution and laws of the United States.

(4) RESPONDENT.-The Secretary of Defense shall be the named respondent in any appeal to the United States Court of Appeals for the District of Columbia Circuit under this subsection.

Construction.-Nothing in this section shall be construed to confer any constitutional right on an alien detained as an enemy combatant outside the United States.*H12835

United States Defined.-For purposes of this section, the term "United States", when used in a geographic sense, is as defined in section 101(a)(38) of the Immigration and Nationality Act and, in particular, does not include the United States Naval Station, Guantanamo Bay, Cuba.

Effective Date.-
(1) IN GENERAL.-This section shall take effect on the date of the enactment of this Act.
(2) REVIEW OF COMBATANT STATUS TRIBUNAL AND MILITARY COMMISSION DECISIONS.-Paragraphs (2) and (3) of subsection (e) shall apply with respect to any claim whose review is governed by one of such paragraphs and that is pending on or after the date of the enactment of this Act.


Required Policies.-

(1) IN GENERAL.-The Secretary of Defense shall prescribe policies designed to ensure that all military and civilian Department of Defense personnel or contractor personnel of the Department of Defense responsible for the training of any unit of the Iraqi Security Forces provide training to such units regarding the international obligations and laws applicable to the humane treatment of detainees, including protections afforded under the Geneva Conventions and the Convention Against Torture.

(2) ACKNOWLEDGMENT OF TRAINING.-The Secretary shall ensure that, for all personnel of the Iraqi Security Forces who are provided training referred to in paragraph (1), there is documented acknowledgment that such training has been provided.

(3) DEADLINE FOR POLICIES TO BE PRESCRIBED.-The policies required by paragraph (1) shall be prescribed not later than 180 days after the date of the enactment of this Act.

Army Field Manual.-
(1) TRANSLATION.-The Secretary of Defense shall provide for the unclassified portions of the United States Army Field Manual on Intelligence Interrogation to be translated into Arabic and any other language the Secretary determines appropriate for use by members of the Iraqi security forces.
(2) DISTRIBUTION.-The Secretary of Defense shall provide for such manual, as translated, to be distributed to all appropriate officials of the Iraqi Government, including, but not limited to, the Iraqi Minister of Defense, the Iraqi Minister of Interior, senior Iraqi military personnel, and appropriate members of the Iraqi Security Forces with a recommendation that the principles that underlay the manual be adopted by the Iraqis as the basis for their policies on interrogation of detainees.

Transmittal to Congressional Committees.-Not less than 30 days after the date on which policies are first prescribed under subsection (a), the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives copies of such regulations, policies, or orders, together with a report on steps taken to the date of the report to implement this section.

Annual Report.-Not less than one year after the date of the enactment of this Act, and annually thereafter, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report on the implementation of this section.

Friday, December 23, 2005

Data Storage and the Fourth Amendment


This Boston Globe story contains a few quotes from a long discussion I had with Charlie Savage, a Globe reporter, about the 4th Amendment implications of Echelon style surveillance. One theory holds that if the government has a computer sift through messages and phone calls, there is no Fourth Amendment problem. (For the moment I put aside the rather important differences between phone calls and e-mails under current law. That's a big if, and I don't want the reader to overlook it). The basic idea is that having a computer sift through messages raises no constitutional problems because no human being is listening in or reading anything. Rather, all the surveillance is peformed by a computer program.

I think this argument is technologically naive. The question is not whether a computer program does the initial collection of data but what happens to the data after it is collected. As storage costs decrease to zero, it makes sense to keep a copy of everything you collect so that you can index and search through it later. If you think that the amount of traffic that goes through a system like Carnivore (or like Echelon) is simply too great to collect, you are using yesterday's assumptions. Given Moore's Law with respect to decreasing cost of computing power and its rough equivalent with respect to the decreasing costs of storage space, you should assume that if the government can invest in large server farms to store data (as Google already does) it will do so. Remember that Google already keeps a cached copy of almost everything it searches for on the Internet. And Google mail keeps a copy of all of your e-mail on its servers. Storage of enormous amounts of data is part of its business model. Why do we assume this capacity is beyond the United States government?

Once data in digital form (whether voice or text or video) is stored, it must be searched and analyzed to be of any use. Put another way, data mining requires both data collection and data storage that allows the data to be mined. At some point in the process, human beings will receive information from the system. Once they receive that information, they will want to know the context in which the data that the computer has spit out to them appeared. That is, they will want access to the data base. If the data has been stored, they will have access to it. Thus the key issue is not whether the data collection was done by a human being or by a computer program. The key issue is whether the results of the data collection are stored somewhere on a computer (or, more likely, a server farm) to which government agents have access.

Unless there is a policy requiring automatic destruction of the data after a specified time, the data will remain on the computer because as storage costs decrease it is cheaper to keep data than to spend the time figuring out what to get rid of. (Once again, think about Google Mail, which assumes that you will keep all your e-mail messages, no matter how trival, on its servers because it takes too long to sift through and delete the messages you don't need any more.). When storage costs approach zero, data collection increasingly means permanent data storage unless there is a specific policy to counteract it. (To put some perspective on this, the Defense Department appears to have adopted a 90 day retention policy for a different database of suspicious incidents collected about American citizens, but it also seems not to have followed its own data destruction policy.)

In our current imagination the paradigm case of an electronic Fourth Amendment violation is real time eavesdropping on a telephone conversation. But we all know that it should make no difference if the wiretap is recorded automatically and listened to later. In like fashion, it should make no difference if the government collects information for data mining purposes, stores it on a server farm somewhere, and then returns to search the collected information at its leisure. If the information is stored, then we have a potential Fourth Amendment problem, even if the data is not accessed immediately by any human being.

Indeed, if lack of sentience allows an end run around the Fourth Amendment, then why not have robots do all the government's searching? They can collect information, store it, and allow government agents to search what the bots have found at their leisure. Moreover, since wires go into every person's home, and wireless broadcasting emanates outside every person's home, even the home should lack any special Fourth Amendment status if bots are doing all the government's dirty work.

Again, the key issue is not who collects the data initially (human or robot) but whether the data is stored. None of the accounts I have read in the press tell me how long the data collected by computers is stored or who has access to the data base. That is the question that everyone should be asking.

Thursday, December 22, 2005

All Hail King Bush, God's Captain and Leader of His People

Brian Tamanaha

The below post, with the same title, was initially put up on July 31st of this year. Matters seemed bad enough five months ago to write such a post. As it turns out, that was just an early moment in a stream of revelations to come of conduct by the Bush Administration that blatantly flouts the law. Marty's detailed posts below on the impropriety--that is, illegality--of the conduct involved in the latest disclosures are right on. The basic proposition requires no detail, however: the Bush Administration believes it is above the law, and this is flat wrong.

For what it's worth, a bit of history, again:

The 1628 session of the English House of Commons was occupied with debates over the king's claimed martial power to imprison people outside of ordinary legal processes as the king deemed necessary in defense of the state. The king's Secretary gave the following justification:

There is no man but desires to live under the law, and we all hold the common law our inheritance that does preserve us. We are in the government of a state. The martial law touches kings highly. It is their very original. They are God's captains and leaders of his people. The name of kings is sacred, and the foundation of the commonwealth depends on them. All civil government may pass well and have a happy success. And for arms and conducting of armies, it can admit of no formal law.

Four centuries later, the Bush Administration has offered much the same argument: we are a nation under laws, but in his global war on terror Bush exercises authority above the law.

Sir Edward Coke's short answer to this argument, as sound then as it is now, was that England is a nation of laws. Either we abide by the rule of law, or we don't.

"Inherent Authority" to Violate Federal Law?

Marty Lederman

A thoughtful interlocutor ("T. More") gently inquired, in a comment to a previous post, whether my posts on the NSA matter wouldn't be more effective, more persuasive, if I stopped bolding and emphasizing the adjectives "criminal" and "felonious" -- a tactic that, he rightly chided, might make my posts appear too intemperate, especially in light of the fact that previous Presidents have "presumed the [article II] power to eavesdrop on our enemies, and that even Carter and Clinton authorized warrantless wiretaps."

His comment alerted me to the fact that I have not been clear about the reason for my emphasis on the lawbreaking nature of the conduct here. I've bolded adjectives such as "criminal" not because I'm trying to get folks to think that the President should be locked up, or impeached, nor to precipitate a criminal investigation (and certainly not, T. More, to suggest that those who disagree with me are criminal or mendatious!). Instead, I've been emphasizing those words in order to signal the radical nature of the constitutional power that this Administration is asserting: the presidential power (under article II) to act in violation of federal criminal statutes (the Torture Act, the UCMJ, the War Crimes Act, FISA, etc.) if such statutes impinge in any way on the President's judgment about how best to execute the war on terrorism. That assertion of a sweeping constitutional power to ignore any duly enacted laws that impinge on what the President could otherwise do in war is, I think, virtually unprecedented in U.S. history.

Over the past 48 hours, we've heard defenders of the President increasingly focus on the argument that the President has "inherent" authority to engage in warrantless sureveillance of the enemy. It's important here to heed Justice Jackson's warning in the Youngstown steel seizure case that "[l]oose and irresponsible use of adjectives colors all non-legal and much legal discussion of presidential powers," and that terms such as "'[i]nherent' powers, 'implied' powers, 'incidental' powers, 'plenary' powers, 'war' powers and 'emergency' powers" are often bandied about in such discussions "without fixed or ascertainable meanings."

Just to be clear, then: The Administration is claiming not simply that the President has some "inherent" authority to surveille the enemy in times of war -- a proposition that is undoubtedly correct -- but instead the much broader, more audacious claim that the President has an unregulable authority, such that he may ignore FISA's constraints. That is to say, their claim is that FISA itself is unconstitutional.

A lot of folks are making a category error here -- a Youngstown category error, that is -- with respect to the nature of "inherent" presidental powers. Over at Powerline, for instance, John Hinderaker argues that "Congress can neither add to, nor detract from, the constitutional powers of the executive branch." This is simply flat-out wrong -- a fundamnetal misunderstanding of foreign affairs and war powers under the Constitution. These are the most important -- and truest -- words in all of Justice Jackson's concurrence:
The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity. Presidential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.

It is true, as T. More writes, that previous Presidents have "presumed the [article II] power to eavesdrop on our enemies, and that even Carter and Clinton authorized warrantless wiretaps" (although my understanding is that the Clinton example folks are citing was not a wiretap but a physical search). I doubt that any President has asserted the right to engage in a dragnet as intrusive on U.S. person conversations as this appears to be -- or as tenuously tied to the enemy as this apparently is -- but, be that as it may, I don't disagree about the history.

Indeed, I do not deny that the President has the power as Commander-in-Chief to engage in at least some forms of warrantless surveillance against the enemy in the absence of statutory prohibition. That would be a Youngstown "Category II" case, and the conduct would probably be constitutional to the extent it did not violate the Fourth Amendment.

Thus, if we were still back in the mid-1970s, before the FISA prohibition in question had been enacted, I would not be complaining too much here about the President's constitutional authority to authorize the surveillance (except perhaps on Fourth Amendment grounds). Indeed, from 1968 to 1978, a statute was on the books that specified that the then-existing federal wiretapping law was not intended to in any way limit the constitutional power of the President: "Nothing contained in this chapter or in section 605 of the Communications Act of 1934 shall limit the constitutional power of the President to take such measures as he deems necessary to protect the Nation against actual or potential attack or other hostile acts of a foreign power, to obtain foreign intelligence information deemed essential to the security of the United States, or to protect national security information against foreign intelligence activities."

During that period, some (if not all) of the warrantless surveillance here may have been within the President's constitutional power. (I may slightly disagree with the superlative post of my esteemed co-blogger Stephen Griffin on this point: Although the President may not have "inherent" authority to engage in all of the surveillance that FISA regulates (if it intrudes too much into the domestic setting, for instance), he certainly has some constitutional authority to spy on the enemy, even where the enemy is speaking to U.S. persons -- as long as there are not statutes regulating such surveillance!).

But the critical point for present purposes is that, as Prof. Griffin emphasizes, the Nation had exactly this debate in the mid-70s -- after gross abuses in connection with such warrantless surveillance -- and the legislature and Executive agreed to enact FISA, a statute regulating such warrantless surveillance. Moreover, FISA specifically repealed that prior provision of law preserving virtually unbounded Executive discretion.

That puts us in Youngstown Category III, where the President's constitutional authority to act -- even if he had it in the first place -- is at its "lowest ebb." (The Youngstown "categories" and quotations are from Jackson's concurrence, which "brings together as much combination of analysis and common sense as there is in this area." Dames & Moore, 453 U.S. at 661. For much, much more on Youngstown and the Administration's assertion of Executive authority, I'd urge you to please read Jack's extremely helpful post here.)

As far as I'm aware, Presidents Carter and Clinton did not authorize any surveillance that would violate any duly enacted law.

This Administration, by contrast, sees statutes as mere parchment barriers. Their argument -- just to be clear -- is that FISA, and the Torture Act, and the Uniform Code of Military Justice, and the federal assault statute, and the War Crimes Act, and the 60-day-limit provision of the War Powers Resolution -- and even the 9/18 AUMF itself (to the extent it is read, as it ought to be, as in some respects limiting the scope of force -- and treaties governing the treatment of detainees, and (probably) the Posse Comitatus Act, and who knows how many other laws, are unconstitutional to the extent they limit the President's discretion in this war. In OLC's words -- written just one week after the AUMF was enacted -- neither the WPR nor the AUMF, nor, presumably, any other statute, "can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response." "These decisions," OLC wrote, "under our Constitution, are for the President alone to make."

Think about that.

Such a sweeping claim of presidential power to ignore all statutes regulating his behavior in warime is radical and profoundly troubling -- and, as far as I know, virtually unprecedented. (I welcome other examples of such an extreme assertion.)

And that is what this crisis -- from the torture memo to the FISA violations, and much else in between -- is about. That is to say: It's not about warrantless surveillance (or not only about such surveillance, anyway); it's about this Administration's assertions that Congress has no role to play in the war on terror; that "mere" statutes cannot limit the President's discretion; that FISA and the Torture Act, and the War Crimes Act, etc., are unconstitutional; and that the President can (and does) violate such statutes if they stand in his way.

P.S. The Administration's defenders are citing a 2002 dictum by the FISA Court of Review: "We take for granted that the President does have that authority [to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President’s constitutional power." In re Sealed Case, 310 F.3d 717, 742 (FIS Ct. Rev. 2002) (emphasis added). That throwaway line -- not germane to the holding in that case -- was almost certainly written by Judge Laurence Silberman, who (I am told) testified in his personal capacity to the same effect in the mid-1970's, when FISA was being considered. The dictum is, in my view, dead wrong, not because the President doesn't have the authority to conduct warrantless searches to obtain foreign intelligence information -- in the absence of statutory restriciton, he probably does -- but because even if he does, FISA can and does "encroach" on (i.e., modestly regulate) that authority. More to the point, however, Congress and the President rejected Silberman's unorthodox constitutional view when they enacted FISA, and the FISA system has worked for almost three decades on the assumption -- shared, as far as I am aware, by all three branches, without any dissent until Silberman's stray dictum -- that its modest constraints are not unconstitutional usurpations of presidential authority. If Silberman and the Bush Administration are correct, then there's no need for FISA at all -- nor for the FISA Court. The President may simply proceed with surveillance on his own iniitiative, if he thinks it will help in the war on terrorism. As one FISA judge said to the Washington Post, "members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court."

[UPDATE: Well, just goes to show you never know: It appears the Administration is running (at least for now) only with the argument that the AUMF authorized exceptions to the FISA regime, and not that FISA is unconstitutional under Article II: See the DOJ Letter here.]

Why FISA is Important

Stephen Griffin

It's important to remember why FISA was adopted in the first place. The NSA does communications surveillance and the legal basis for this during the entire history of the agency has never been that clear (see the books by James Bamford, the original one was The Puzzle Palace). When it needed a rationale, the agency tended to rely on a vague claim of presidential authority under Article II, whether there was an authorized war going on or not. This was not questioned too much as long as the agency was monitoring foreign governments or agents thereof solely.

But the agency was also in the business of monitoring all communications flowing out and in of the U.S. and many of those of course involved "U.S. persons." Under two very secret programs known as Shamrock and Minaret, the agency maintained long lists of U.S. citizens, organizations and activities and ran search routines to find references to them in the vast quantities of info flowing out and in. The info generated was given to other federal agencies such as CIA, FBI and the president himself. Eventually these activities surfaced during the 1970s in the context of prosecution of violent dissidents like the Weathermen and congressional investigations of the intelligence agencies, especially the CIA. Once they surfaced, the dominant reaction was that such surveillance was illegal unless justified by a warrant. Negotiations between the executive and Congress produced FISA and its very unusual "court," an agency without any adversarial procedures.

You might put the wisdom of the 1970s this way: there is no such thing as plenary presidential power over any domestic matter. The president has to get authority from Congress to do a domestic X, or the president doesn't have the authority. The only way presidents could get away with this prior to the 1970s was that everything they were doing was secret and this was ultimately a product of the Cold War. This makes the idea of AUMF overriding FISA especially objectionable unless it was done in terms, which of course didn't happen.

John Schmidt, who worked in the Clinton DOJ, wrote an editorial for the Chicago Tribune that has been getting some attention because he purports to provide a rationale for what Bush has done. But don't get confused because Schmidt bypasses all the relevant issues. It might be right that the president has more authority when the surveillance is purely "foreign" but the whole problem in the first place, one clearly realized and thoroughly discussed in the 1970s prior to FISA, was that U.S. citizens were being monitored as they interacted with people abroad. That is, domestic and foreign were intermingled from the beginning. The value judgment FISA made was that when there was intermingling, the balance should be struck in favor of at least some limited judicial review. If not, the President and NSA would have carte blanche to monitor any U.S. citizen for any reason as they made or received foreign communications of any kind.

It may be true, as Schmidt says, that the position he articulates on foreign surveillance has been consistently affirmed by prior presidents. The wisdom of the 1970s was that Congress is relevant and you have to get their statutory permission before you can feel confident that what you are doing is constitutional. And I doubt whether the position he articulates has ever received a full review by the Supreme Court, as opposed to lower federal courts.

Why They Didn't Simply Go to the FISA Court -- Because That Court Will Not Approve Illegal Surveillance

Marty Lederman

Many people have been asking why the Bush Administration didn't simply seek authorization from the FISA Court for its interceptions. After all, that court is exceedingly deferential to the Executive, granting well over 99% of all applications. I've suggested previouslythat the answer was likely that such applications could not be written in good faith, because there was no possible way for dragnets of this kind to satisfy the FISA standards, the most important of which are that there must be an identifiable Al-Qaeda-related target and that there be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party."

In a very important story today, the Washington Post confirms this. It has nothing to do with the slowness, or cumbersomenss, of the FISA Court -- it's simply that the surveillance in question would not meet FISA standards. That is to say, the FISA court would not grant approval because these searches are unlawful.

Bush administration officials believe it is not possible, in a large-scale eavesdropping effort, to provide the kind of evidence the court requires to approve a warrant. Sources knowledgeable about the program said there is no way to secure a FISA warrant when the goal is to listen in on a vast array of communications in the hopes of finding something that sounds suspicious. Attorney General Alberto R. Gonzales said the White House had tried but failed to find a way.

One government official, who spoke on the condition of anonymity, said the administration complained bitterly that the FISA process demanded too much: to name a target and give a reason to spy on it.

"For FISA, they had to put down a written justification for the wiretap," said the official. "They couldn't dream one up."

The NSA program, and the technology on which it is based, makes it impossible to meet that criterion because the program is designed to intercept selected conversations in real time from among an enormous number relayed at any moment through satellites.

Wednesday, December 21, 2005

Judge Posner and "Ad Hoc Initiatives" (i.e., Presidentially Sanctioned Felonies)

Marty Lederman

Judge Posner has an Op-Ed in the Washington Post this morning that is understandably receiving a lot of attention. His argument is that the latest scandal reveals a serious gap in the legal intelligence-gathering laws. Posner believes it is critical that the Government be given the legal authority to "data-mine" information from the computers and phone calls of U.S. citizens and LPRs. What this means, in his words, is the "collection, mainly through electronic means, of vast amounts of personal data," to be processed and sifted by computer, culling out the data that that "contain clues to possible threats to national security." "Innocent people, such as unwitting neighbors of terrorists, may, without knowing it, have valuable counterterrorist information."

Posner laments that the Foreign Intelligence Surveillance Act, as currently written, "is too restrictive" because that law "makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities." His Op-Ed is, in essence, a proposal to amend FISA to permit data-mining of our phone calls and emails: "A much wider, finer-meshed net must be cast than when investigating a specific crime. Many of the relevant bits may be in the e-mails, phone conversations or banking records of U.S. citizens, some innocent, some not so innocent. The government is entitled to those data, but just for the limited purpose of protecting national security."

This is an important public policy debate to be having. I don't know enough to have a view on whether and to what extent Posner's proposal is wise -- other than to say that he appears to be a bit cavalier about the Fourth Amendment implications of what he's proposing.

It's obvious the Administration thinks such data-mining is critical to the war on terrorism. That's why the President has authorized the NSA to enage in a form of just such data-mining: What NSA is doing here (see my latest post) is looking for needles in haystacks -- sifting through lists of phone numbers and email addresses it has found, hoping that one or two of the individual pieces in the "chain" will reveal valuable information about Al Qaeda. (See also this intriguing hypothesis.) The applications for approval of such dragnets would never satisfy even FISA's fairly broad standards -- and so going to the FISA Court was a nonstarter. Hence, the President's extra-legal plan.

But whether and to what extent Posner is right that data mining of U.S. persons should be legal is precisely the policy debate that ought to have had occurred in Congress in 2001 when the Administration felt the need to start down that road. Instead, this Administration -- knowing that even a super-compliant Congress after 9/11 would be wary of going as far as Posner proposes -- simply decided to break the law and do it anyway, citing a Commander-in-Chief override.

What's remarkable about Posner's Op-Ed is that his whole point is that the FISA law on this presently is (in his view) woefully inadequate to the task. He never even mentions the serious implication of this point, namely, that if he is right that FISA currently prohibits this -- and he is right -- then the Administration's data mining for the past four years has been a violation of criminal law. (No specious suggestions from Posner, who knows better, that this was authorized by the AUMF: He's forthright that the law needs to be amended.)

Posner may be right that current law is too restrictive. Congress should have that debate. But isn't it troubling that an esteemed federal judge seems so indifferent to the fact that, in the meantime -- before the Nation and the Congress have had the opportunity to debate Posner's proposal -- the Nation's Chief Executive is systematically authorizing criminal felonies?

This is the way Posner characterizes what's been happening: "The Defense Department is rushing to fill [the] gaps." I suppose that's one way of putting it. (I can imagine lawyers for criminal defendants with appeals to Posner's court: "Your honor, as you've written, this criminal restriction is very unwise and needs amending. My client was merely rushing to fill the statutory gap.")

Here's the most chilling line in Posner's column, taking euphemism to a new level: "It is no surprise that gaps in domestic intelligence are being filled by ad hoc initiatives." That's Posner's kinder, gentler way of saying "It is no surprise that current federal laws, which unwisely criminalize this conduct, are being circumvented by the President's authorization to commit felonies."

Tuesday, December 20, 2005

Another Reason Why the AUMF Argument is Wrong, and Why This Surveillance Program is Lawless

Marty Lederman

I've previously argued that it's an insult to members of Congress to suggest that when they authorized military force in Afghanistan and against Al Qaeda, they also (inadvertently) intended to give the President the power to circumvent the carefully established FISA rules that require FISA court approval for interception of communications that are likely to involve U.S. persons.

The problems with the "AUMF-authorized-it" argument, however, are more fundamental than that. The Government's main line of argument is that these interceptions are analogous to the capture of Hamdi, a U.S. citizen, on the battlefield in Afghanistan, and that if the AUMF authorized the latter, it must have authorized the former, too -- because (i) both Executive actions are against persons covered by the AUMF -- "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons"; and (ii) the AUMF authorized the President to exercise (in Justice O'Connor's words for the Hamdi plurality) "fundamental incident[s] of waging war," and both of these Executive actions are such "fundamental incidents" of waging war.

But let's look at the communications at issue here a bit more closely, based on what the Attorney General said at his press briefing yesterday.

One of the parties to an intercepted communication is not (or need not be) in any way affiliated with, or part of, Al Qaeda, nor in any way connected to the attacks of 9/11. It could be you, or me, or our grandparents.

What about the other party to the communication? Here's what the Attorney General said:

"Another very important point to remember is that we have to have a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda."

"To the extent that there is a moderate and heavy communication involving an American citizen, it would be a communication where the other end of the call is outside the United States and where we believe that either the American citizen or the person outside the United States is somehow affiliated with al Qaeda."

"It is tied to communications where we believe one of the parties is affiliated with al Qaeda or part of an organization or group that is supportive of al Qaeda."

I don't think it's hard to understand from these carefully phrased formulations that many of the communications in question -- say, a phone call from me to someone who is not part of Al Qaeda, or working with Al Qaeda, but who is "part of" an organization "supportive of" Al Qaeda -- are between two people, neither of whom is covered under the terms of the AUMF. (Thanks to David Barron for bringing these broad formulations to my attention.)

And it's also not too hard to understand why this is just a wee bit distinguishable from the detention of a person fighting against U.S. troops on the Afghan battlefield.

(This is consistent with what we know from the New York Times's original story: "The C.I.A. seized the terrorists' computers, cellphones and personal phone directories, said the officials familiar with the program. The N.S.A. surveillance was intended to exploit those numbers and addresses as quickly as possible, they said. In addition to eavesdropping on those numbers and reading e-mail messages to and from the Qaeda figures, the N.S.A. began monitoring others linked to them, creating an expanding chain.")

This means at least three things:

1. Because it's not necessary that even one of the parties to the communication have been part of Al Qaeda, it explains why a FISA court would not have granted authority for these intercepts in the first place -- which is why the Administration could not work within the existing (very deferential, pro-government) authorities. (As General Hayden, Deputy Director of National Intelligence, put it in the press briefing, the criteria for a search here is a "subtly softer trigger" than for FISA approval. That wins the Euphemism-of-the-Week Award.)

2. Obviously, the NSA protocol is simply not covered by the terms of the AUMF itself, because it reaches conduct by NSA against communications of persons who are not "those nations, organizations, or persons [the President] determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons."

3. It's also presumably not a "fundamental incident of war" for the Executive to wiretap a communication between two persons, neither of whom is suspected of being part of (or an agent of) the enemy (let alone the military arm of the enemy). This is not only another reason that the AUMF (and Hamdi) does not authorize these interceptions; it also means that not even the boldest assertion of Commander-in-Chief authority would support this program.

Governing through terrorism


The President has insisted that his domestic surveillance program was limited only to identified terrorist operatives working in the United States. That assertion would be far more believable if we hadn't learned today that the FBI had greatly expanded its notion of terrorism to investigate groups like Greenpeace and a Catholic Worker's group which the FBI accused of having a "semi-communistic ideology."

The FBI's surveillance program and the NSA's wiretapping program are separate. But the overreach by the first shows the dangers of overreach by the second. We only know about who the FBI thought was "terrorist" because of a successful Freedom of Information Act (FOIA) request. We don't know whom the NSA has similarly thought dangerous enough to wiretap in clear violation of federal law. I'd be pretty surprised if FOIA as it is currently written allowed the same degree of public revelation about whom the NSA was spying on, and certainly the NSA has no incentives to reveal the extent of its illegal activity. Precisely because the NSA's targets are far less likely ever to become public, it is far more insulated from accountability and therefore it is more likely, not less likely, to overreach than the FBI.

The basic problem is that when government officials are given exceptions from ordinary civil liberties protections to stop "terrorism" the definition of terrorism will inevitably expand. The reasons for this are a complicated mixture of good intentions (wanting to get all the terrorists) and bad incentives (labeling something terrorist frees you from ordinary restraints). The result is that officials increasingly "govern through terrorism" that is, they increasingly use the threat of terrorism as a justification for doing whatever it is they want to do.

The terrorist threat against our country is quite real and dangerous, but the "terrorist threat" as described by government officials expands beyond its boundaries because this serves the interest of government bureaucracies and allows them to avoid oversight and accountability. And perversely, by limiting accountability and oversight, the government does the job of fighting terrorism less efficiently; the government's focus on Greenpeace and Catholic workers organizations detracts its time and resources from genuine terrorist threats.

We have seen the Bush Administration repeatedly driven to this strategy in order to increase its secrecy and unaccountability. The latest version is Attorney General Gonzales' assertion that the September 18, 2001 AUMF-- which gave Congressional approval to fight terrorism militarily-- gives the President carte blanche to override the Foreign Intelligence Surveillance Act of 1978. On its face, the claim is preposterous. The logic of the claim, however, is far more important. If the AUMF impliedly alters federal laws that limit the President's power to fight terrorism, then there is no law that the President may not disregard in the name of fighting terrorism.

The second, and even more chilling argument is that the President has inherent authority to fight terrorism even absent the AUMF. Under this theory, the President can create exceptions to law whenever he determines that it is necessary to fight terrorism. If so, then not only is there no law the President may disregard, but all attempts by Congress to rein him in are presumptively unconstitutional because they interfere with his prerogative to determine the nature of the terrorist threat and the most effective means to fight it.

Thus, the strategy of "governing through terrorism"-- using the threat of terrorism as a justification for maximizing presidential power and minimizing presidential accountability inevitably produces bad incentives for executive officials. Ever-expanding power without accountability invites self-righteousness and overreaching.

The framers of the American Constitution understood this well: they saw how the British King's unchecked power over foreign affairs had led to tyranny and corruption; they saw how placing the ultimate powers of war and peace in a single individual without accountability led to imperial hubris and the destruction of liberty. Hence in their new Constitution they took many of the warmaking powers of the British King away from the executive and gave them to Congress, and they created three branches of government in order to check ambition and corruption by each.

It is time to learn those lessons once again.

Monday, December 19, 2005

Definition of "Audacity"

Marty Lederman

Noun: Bold or insolent heedlessness of restraints, as of those imposed by prudence, propriety, or convention.

As I explain below, the Administration's principal justification for its stark violation of FISA is the claim that Congress authorized the surveillance in question -- the circumvention of FISA's finely wrought scheme -- when, on September 18, 2004, it enacted the AUMF authorizing the President to take "necessary and appropriate force" against those reponsible for the 9/11 attacks. I suggested that this didn't pass the laugh test -- that it is simply inconceviable that any member of Congress, let alone a majority, intended by voting for the AUMF to allow circumvention of the FISA-court approval mechanism as to the wiretapping of communications involving U.S. persons. (If the AUMF had authorized such interceptions, why did the Administration seek and receive amendments to FISA in the PATRIOT Act? Why, in 2003, did the Justice Department draft further amendments to FISA -- including to section 1802 in particular -- without mentioned the surgery that had been performed by the AUMF, and why in that draft is the "U.S. person" limitation accurately described as if it had not been amended?)

But the Attorney General's press conference today makes it clear that that's their story, and they're sticking to it. The odd thing, of course, is that the Administration specifically went to Congress with a package of statutory authorities -- many related to wiretaps and surveillance -- that it thought were necessary to fight the battle against Al Qaeda. It was called the PATRIOT Act. Therefore, it's understandable that two reporters at today's conference asked the AG why they didn't simply ask Congress for a simple amendment to FISA, if this eavesdropping authority was as critical as the Administration now claims.

First, Gonzales is asked why, if this authority is so important, they didn't just "address that issue and fix it," i.e., through statutory amendment, rather than taking the "backdoor approach" [of pretending that it had already been authorized]. Here's his response:

"This is not a backdoor approach. We believe Congress has authorized this kind of surveillance. We have had discussions with Congress in the past -- certain members of Congress -- as to whether or not FISA could be amended to allow us to adequately deal with this kind of threat, and we were advised that that would be difficult, if not impossible."

Did you catch that? It's a two-part answer: (1) Congress has authorized the circumvention of FISA (in the AUMF); and (ii) We didn't ask Congress for an amendment to FISA because we were informed they would have denied it.

And then there's this exchange, in which the answers are inverted (1. We couldn't have gotten congressional authorization; 2. In any event, we got congressional authorization):

Q If FISA didn't work, why didn't you seek a new statute that allowed something like this legally?

ATTORNEY GENERAL GONZALES: That question was asked earlier. We've had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be -- that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that -- and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.

The interesting question now, of course, is whether Congress will permit itself to be treated with such contempt.

Which Is It, Mr. President?

Marty Lederman

In his press conference this morning, the President focused on two things: (i) defending the legality of his Executive Orders authorizing eavesdropping of conversations involving U.S. persons (including citizens); and (ii) scolding Senators for refusing to reenact the PATRIOT Act.

What virtually no one is pointing out is the incongruity of these two arguments -- that if the President is correct about the legality of his wiretapping protocol, then there is little need to reenact the PATRIOT Act.

The principal problem with the wiretapping program is that the NSA is intercepting communications involving "U.S. persons" -- citizens and lawful permanent resident aliens -- without any judicial warrant or any approval from the FISA court. That is expressly prohibited by FISA (50 USC 1802(a)(1)(B)). (Thanks to Dan Solove for being the first to blog about this clearly.) FISA actually authorizes some forms of surveillance without FISA court approval order for up to one year, but such surveillance is subject to specific statutory limits, the most of important of which is that there must be "no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party." And, just to make clear that this is, in fact a prohbition, FISA further specifically makes it a crime to "engage in electronic surveillance under color of law except as authorized by statute." (Why didn't the NSA simply get approval from the FISA Court -- which would have made these interceptions entirely legal? I think Ken Bass is almost certainly correct that it's because this is the rare case in which the FISA court would have actually denied approval, because NSA appears to have been engaged in a fishing expedition of phone numbers and e-mail addresses that it had discovered in connection with al Qaeda operatives. [UPDATE: William Kristol and Gary Schmitt agree that FISA would not have authorized the warrants here -- but they argue that's why the President had constitutional grounds to ignore the statute.])

In his comments this morning, the Attorney General conceded that the NSA program would violate FISA ("Now, in terms of legal authorities, the Foreign Intelligence Surveillance Act provides -- requires a court order before engaging in this kind of surveillance that I've just discussed and the President announced on Saturday, unless there is somehow -- there is -- unless otherwise authorized by statute or by Congress. That's what the law requires.") -- or would do so, anyway, except for two things:

1. The AG claims that the September 18, 2001 Authorization for Use of Military Force, enacted by Congress to authorize "necessary and proper force" against Al Qaeda and others responsible for 9/11, actually superseded, or impliedly repealed, the FISA prohibition on warrantless wiretapping of U.S. persons.

2. The AG claims that the President has the constitutional power, under the Commander-in-Chief Clause, to ignore FISA's prohibition in this context. "There were many lawyers within the administration who advised the president that he had an inherent authority as commander-in-chief under the constitution to engage in this kind of signals intelligence," said Gonzales, speaking on CNN.

Both of the Administration's arguments here are quite radical: (i) That the AUMF impliedly repealed the well-wrought scheme in FISA, with its prohibition on warrantless eavesdropping on U.S. persons (a repeal that only the Executive knew about: neither the public, nor even the Congress that enacted the AUMF, was aware that it had performed such radical surgery on the U.S. Code); and (ii) even if the AUMF did not repeal/amend FISA, there's a Commander-in-Chief override.

I actually think the former argument is more preposterous than the latter, although I'm sure others will disagree. [See post above, in which I conclude that the Administration's contempt for the legislature here is remarkable. I should add, as well, that FISA actually has an express provision to deal with emergencies in times of war, 50 USC 1811, which provides: "Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress." On the Adminisrtation's view, this 15-day limit, too, must have been impliedly repealed when Congress authorized the conflict in Afghanistan.]

In any event, if the Administration is correct about the legality of its wiretaps, then the President's impassioned scolding of the Congress this morning for failing to reenact the PATRIOT Act is entirely misguided: After all, the President already has the authority under Article II of the Constitution to do most of what the PATRIOT Act authorizes -- indeed, to override statutory provisions that would prohibit such Executive acts -- and, as if that weren't enough, Congress has already (in the AUMF) authorized the President not only to do whatever it takes to defeat Al Qaeda, but also to ignore any preexisitng legal restrictions.

Of course, this means that the PATRIOT Act itself was largely superfluous in the first instance . . . . (But that's how radical the Administration's justification of its NSA program appears to be.)

[NOTE: I realize that the PATRIOT Act also includes criminal prohibitions on private conduct that the President could not create out of thin air. But when he scolded Congress this morning for not extending the Act, presumably he was not thinking about the criminal provisions, but instead about the provisions that authorize Executive actions, such as searches and electronic interceptions.]

[UPDATE: Must-read posts from Juliette Kayyem, Orin Kerr, and Dan Solove. And on the utter inadequacy of the supposed "consultation" with congressional leadership, see this remarkable letter from Senator Rockefeller to the Vice President from 2003.]

[ADDITIONAL NOTE: There are two additional arguments floating around about why the NSA surveillance is unlawful: That it violates the Fourth Amendment; and that Al Qaeda is not the sort of foreign entity whose communications can be intercepted without court approval under FISA. I don't know much about the Fourth Amendment question -- read Orin Kerr over at the Volokh Conspiracy for more details -- but my understanding is that there are at least reasonable arguments that this program does not violate the Fourth Amendment, and, more to the point, I think the Administration's argument in this respect is that NSA is not violating the Fourth Amendment -- and not that the President has the constitutional authority to ignore the Bill of Rights. As for the other FISA argument, it seems to me to be a close, hard question that turns on whether Al Qaeda is "a faction of a foreign nation or nations, not substantially composed of United States persons," under 50 USC 1801(a)(2). Orin has more to say on that, as well.

The important point, however, is that, as the AG conceded this morning, the NSA's conduct -- if it is not authorized by the AUMF or Article II of the Constitution -- would be criminal under FISA because it intercepts the contents of communications to which United States persons are a party.]

The Constitution: A Safe Haven for Terrorists


This Sunday on Meet the Press Secretary Rice explained that President Bush needed to wiretap American citizens in the United States without a warrant and without going through the procedures required by the Foreign Intelligence Surveillance Act (FISA) because it is important to prevent the "use of American territory as a safe haven for communications between terrorist operating here or people with terrorist links operating here and people operating outside of the country."

The "safe haven" of which Secretary Rice speaks is the constitutional protections afforded by the Fourth Amendment, which apply to American citizens on American soil. What Secretary Rice is saying, in effect, is that the President wants the same freedom from constitutional limitations within the United States that he enjoys on the battlefield or overseas.

What a shame that the Constitution seems to be getting in the way of the President doing whatever he wants. And he has the gall to talk about "strict construction." When it comes to his own prerogatives, this President clearly wants as loose a construction as possible.

Friday, December 16, 2005

Why Evidence Obtained From Torture Should Never Be Admissible


Suppose you believe that there are a small number of situations posing immediate peril to a large number of people, in which torture is absolutely necessary to elicit the key information that will prevent the peril, so that every nation in the world will practice torture under these circumstances.

At the same time you wish to deter the use of torture in every other circumstance, because you are worried about descending down the slippery slope to situations where a great peril is not imminent, or where the information elicited by torture is not necessary to prevent this great peril but is merely helpful to advance national security or other important interests.

The best way to achieve this set of goals would be not to carve out a legal exception for torture in emergencies but rather to impose a total ban. If the situation is so dire that torture is absolutely necessary to save a large number of people, illegality will not be a deterrent. Government officials will still commit torture. Then, after the fact, legal decisionmakers can determine whether their actions should be excused or pardoned.

Even if you excuse or pardon torture after the fact, however, you should not make evidence obtained by torture admissible in a subsequent military tribunal or criminal prosecution. If the torture was necessary to prevent an imminent and grave peril, the information should be used for that purpose, and that purpose alone. Otherwise you will indeed descend down the slippery slope, because you have created incentives for government officials to torture in order to elicit information for the purpose of assisting military or criminal prosecutions.

If this line of reasoning is roughly correct, then Congress is making a terrible mistake when it proposes to ban torture (and cruel, inhuman, and degrading treatment) while simultaneously allowing evidence obtained through such methods to be admissible in military tribunals that determine the status of persons held at Guantanamo Bay. The obvious reason for the proposed rule is that the CIA has in fact engaged in a good deal of cruel, inhuman, and degrading treatment to secure information, or it has shipped people off to countries where they have been subjected to these methods; the information has already been elicited and the government wants to use it.

Congress should resist this line of argument. We should not allow ourselves to use the fruits of torture (or CID treatment) even where the torture (or CID treatment) has already occurred. Otherwise we give ourselves incentives to employ these methods where they are not absolutely necessary. The correct rule is a total ban on torture and cruel, inhuman and degrading treatment and a total ban on admissibility of evidence produced by these methods. As suggested above, this rule will not in fact mean that the government will never torture anyone. But it will help deter government from practicing torture in all the situations in which it should be deterred.

The McCain Amendment -- The Good

Marty Lederman

Faced with apparent veto-proof supermajorities in both the Senate and the House, the White House had little choice but to capitulate today to accepting the McCain Amendment in the form it passed the Senate, without the CIA exemption upon which the Vice President had been insisting.

There's a great deal worth saying about the McCain Amendment, and about the legislative and administrative deals that are apparently still brewing in connection with it, but unfortunately I just had surgery to repair a shattered ankle, and therefore I'm a bit constrained in what I can blog just now. Nevertheless, I don't want to disappoint my friend Orin Kerr, so I suppose I'll take a stab at some haze-o'-pain-and-narcotics blogging. ;-) Apologies in advance if the results are less than pellucid.

Andrew Sullivan is understandably, and justifiably, thrilled at the recent turn of events. After all, the McCain Amendment looked like a long shot, and the President was threatening his first veto, even if it meant not funding the Pentagon and the war in Iraq (now that's dedication to cruelty!). Andrew and others (such as Michael Kinsley) deserve major kudos for keeping the heat on, and for patiently taking on, and taking apart, the suddenly prominent and emboldened pro-torture, anti-McCain camp (incluidng Charles Krauthammer, Kenneth Anderson, the Wall Street Journal editorial page, and the cavalier crew over at the National Review Corner (see numerous posts over the past couple of weeks from Levin, Lowry, McCarthy)) -- many (but not all) of whom are actually proposing to go much further than Bush, Cheney and Addington, and to legalize torture, as such, as to certain detainees, despite the categorical treaty and statutory prohibitions already in place against torture. (Just to be clear: As far as I know, there is no one in the Executive Branch or the Congress -- no one -- who would even hint at, let alone propose, a legislative enactment to sanction any exceptions to the torture ban. Those, like Krauthammer and others, who would codify exceptions to torture, cannot find support from any public official -- not Cheney, not Addington, not Hunter, not Cambone, etc.) [CLARIFICATION: I do not mean to suggest that each of the persons listed here would, like Krauthammer, propose an express exemption for "torture," as such.]

And, of course, Senator McCain deserves a great deal of credit for being so resolute in apparently standing his ground against repeated entreaties from the Vice President and National Security Adviser Hadley to water down his proposal.

Passage of the McCain Amendment will definitely be a welcome step forward--one that is long overdue. I suppose I ought to be thrilled about it, seeing as how the principal provision of the Amendment is one that I urged here in January and again in May. The McCain Amendment would accomplish one very important, baseline reform: It would eliminate the geographical distinctions that the Department of Justice has disingenuously read into Article 16 of the Convention Against Torture.

To reiterate: Article 16 requires the United States to "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity." The U.S. ratified article 16 subject to the Senate's understanding that this article refers only to conduct that would violate the Fifth, Eighth and Fourteenth Amendments—for present purposes, conduct that would "shock the conscience" under Due Process Clause standards.

The Department of Justice has construed the Senate's "understanding" not only to incorporate the substantive requirements of the Fifth Amendment (prohibiting conduct that "shocks the conscience"), but also to incorporate any geographical restrictions that apply to the Fifth Amendment. The Administration has taken the view that (i) the Fifth Amendment does not protect aliens who are in the custody of the U.S. overseas, and therefore, (ii) neither does Article 16.

As I've explained in numerous posts on this site, what this means, as a practical matter, is that the CIA has been authorized, in its interrogations of non-POWs overseas, to take any steps short of a very narrow DOJ definition of "torture," including waterboarding, "cold cell" (hypothermia), and "long time standing," even if such techniques would be unconstitutional if applied here in the United States.

The McCain Amendment would eliminate this geographical distinction. Its second provision provides, categorically, that "[n]o individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment," and that "[n]othing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section."

In other words, the McCain Amendment will revive, and codify, the original (and proper) understanding of Article 16 of the CAT. (Indeed, it may go even further, because the McCain Amendment, unlike Article 16 itself, is not limited to territory "under [U.S.] jurisdiction," a textual qualification in the CAT that DOJ apparently also relies on to limit the geographical scope of Article 16.) And presumably that will, in turn, restrict the use of at least some of the more extreme measures that the CIA has been authorized to use -- methods such as waterboarding and cold cell, which are likely unlawful torture and/or assault, in any event, notwithstanding DOJ's strained legal interpretations.

Nevertheless, the McCain Amendment is not a panacea -- and it hardly signals the end of the torture debate. This is both because the Amendment is more modest in effect than some have assumed -- its influence will depend in large part on the Executive branch's interpretive and implementing choices -- and because its enactment apparently will come at great cost. More on these potential problems in the posts below.

The McCain Amendment -- The (Potentially) Bad

Marty Lederman

For all of the very substantial virtues of the McCain Amendment, there remains a serious risk that the Administration will apply it in a very narrow fashion that could materially undercut Senator McCain's intent. There are potential pitfalls with respect to both of the Amendment's two substantive provisions -- and there remains the lurking spectre of a Commander-in-Chief override.

1. The Army Field Manual. The first provision of the McCain Amendment provides in pertinent part: "No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation."

From the 1960's until late 2002, Army Field Manual 34-52 prescribed the 17 interrogation approaches that were acceptable within the military--including for POWs who are entitled to the fullest protections of the Geneva Conventions. The McCain Amendment is intended to regularize the military's techniques again, by requiring that they be described in the Field Manual.

But the McCain Amendment would not freeze the Field Manual in place -- it could be amended, and this is precisely what is currently occurring. The Army has prepared an updated and amended Field Manual, which includes, for the first time ever, a classified Addendum setting out a secret set of interrogation methods.

According to the New York Times, the addendum was forwarded this week to Stephen A. Cambone, the Undersecretary for Intelligence Policy, for final approval:
The addendum provides dozens of interrogation examples and goes into exacting detail on what procedures may or may not be used, and in what circumstances. Army interrogators have never had a set of such specific guidelines that would help teach them how to walk right up to the line between legal and illegal interrogations. [D]efense officials said the new guidelines could give the impression that the Army was pushing the limits on legal interrogation at the very moment when McCain is involved in intense three-way negotiations with the House and the Bush administration to prohibit the cruel treatment of prisoners. In a high-level meeting at the Pentagon on Tuesday, Army and other Pentagon officials raised serious concerns that Mr. McCain would be furious at what could appear to be a back-door effort to circumvent his intentions. "This is a stick in McCain's eye," one defense official said. "It goes right up to the edge. He's not going to be comfortable with this."

The account isn't entirely clear, but I'm assuming that the published manual would be intended for POW interrogations, and thus would track the Geneva Convention's prohibition on all coercive techniques -- and that the addendum, by contrast, will cover interrogation of non-POWs, against whom coercive techniques of some nature may be used. If so, the addendum might (as the Times story suggests) permit techniques that had never been permissible in the military prior to 2002. Presumably the addendum would not authorize assaults, threats, cruelty and maltreatment, all of which are criminal offenses under the UCMJ. But who knows? This Administration has run roughshod over that criminal statute in the past. More importantly, presumably the addendum does not comply with Common Article 3 of the Geneva Conventions, which had guided U.S. policy and practice for over 50 years until the President abandoned it on February 7, 2002. (See my discussions here and here.)

Moreover, there is yet a more ominous possibility. Perhaps, as I suggest above, the function of the classified addendum is to cover certain classes of detainees, e.g., "unlawful combatants," who do not qualify for full Geneva protections. But perhaps, instead, the addendum gives more specific details concerning what the military has concluded is authorized even with respect to POWs -- e.g., spelling out what is permitted under the approaches of the Manual itself.

Now, there's nothing inherently wrong, and much to be gained, about spelling out in greater detail the 17 Field Manual techniques, and perhaps even of doing so in a classified setting. But if that's what this is, then I fear that the Addendum construes the FM techniques much as the Pentagon's outrageous Schmidt Report did -- e.g., to authorize, as forms of "Ego Down" and "Futility" that are permissible against all detainees, methods such as:

-- forcing a detainee to wear a bra and have a thong placed on his head during interrogation;

-- tying a detainee to a leash, leading him around the room and forcing him to perform a series of dog tricks;

-- forcing him to dance with a male interrogator;

-- stripping him maked;

-- placing Korans on a television "as a control measure";

-- and pouring water on the detainee during interrogation—17 times.

In the Army Field Manual itself (see pages 3-18 to 3-19), "Fear Up" and "Futility" describe forms of questioning and psychological, verbal gamesmanship, designed to induce a detainee to reveal information by, for instance, feeding him disinformation that convinces him that all hope is lost. At GTMO, however—and in the Schmidt Report—these categories are fundamentally transformed, to the point where they are almost unrecognizable.

If that's what the Addendum does -- i.e., specify that the Field Manual permits the extreme techniques employed at GTMO -- then I can see why it would infuriate Senator McCain. If, as the Schmidt Report concludes, the techniques used at GTMO are authorized by the Army Field Manual itself, it then would follow that the military may use those techniques on any detainees, including POWs, anywhere in the world, in any conflict. (Moreover, it would appear to authorize techniques that violate the UCMJ.) As such, it would threaten a transformation of what is deemed acceptable, lawful treatment of U.S. military detainees across the board—an erosion of the Geneva-based standards that have been the basis for the military's training and practices for the last few decades.

2. The Ban on Cruel, Inhuman and Degrading Treatment
As I explained in the previous post, the second, and more important, provision of the McCain Amendment would categorically prohibit U.S. personnel anywhere in the world from engaging in "cruel, inhuman and degrading" treatment, which in effect means a prohibition on conduct that would "shock the conscience" in violation of the Due Process Clause if it occurred here in the U.S.

The vulnerability of this provision is that no one has any firm idea how the "shocks the conscience" standard applies in the context of interrogations of suspected international terrorism operatives. At least three, and presumably at least five, of the current Supreme Court Justices are of the view that "[a] constitutional right is traduced the moment torture or its close equivalents are brought to bear." Chavez v. Martinez, 538 U.S. at 789 (Kennedy, J., concurring in part and dissenting in part). But what about coercive techniques short of "close equivalents" to torture? Those same Justices have indicated that "severe compulsion" would shock the conscience in the context of a criminal investigation. Id. at 794. But how this would translate to the context of interrogating Al Qaeda suspects for the purpose of trying to secure valuable terrorism-related intelligence is anyone's guess. The Court has recently suggested that the "shocks the conscience" test turns, at least in part, on the reasons for the government's conduct. City of Sacramento v. Lewis, 523 U.S. at 849. This doesn't mean, of course, that a worthy objective automatically saves an extreme technique from invalidation under the "conscience-shocking" test. But it does mean that one has to weigh the government's purposes in the mix. And, for obvious reasons, there is virtually no caselaw applying the "shocks the conscience" test in circumstances such as those at issue here.

It is safe to say, I think, that some of the more extreme CIA techniques -- waterboarding and cold cell, say -- would invariably, or almost always, shock the conscience. Therefore, the McCain Amendment will take certain previously approved techniques off the table. (If this weren't the case, then the Vice President's tooth-and-nail opposition would have been fairly inexplicable.) But beyond that, its effect as to particular interrogation techniques is somewhat uncertain. [UPDATE: I'm not comforted by the Vice President's recent statement trying to make the best of McCain, in which he suggests that the "shocks the conscience" standard is awfully manipulable: "Now, you can get into a debate about what shocks the conscience and what is cruel and inhuman. And to some extent, I suppose, that's in the eye of the beholder. But I believe, and we think it's important to remember, that we are in a war against a group of individuals and terrorist organizations that did, in fact, slaughter 3,000 innocent Americans on 9/11, that it's important for us to be able to have effective interrogation of these people when we capture them."]

3. Executive Override?
Has the Administration abandoned its view that the Commander-in-Chief may ignore statutory restrictions that impinge on the President's judgment of “what methods to use to best prevail against the enemy”? (See more here.) We'll need to keep an eye on the President's signing statement(s).

* * * *

In sum, it's possible the Administration will construe and apply the McCain Amendment in a manner that will substantially weaken its effect. Moreover, the McCain Amendment does not contain any enforcement mechanisms: It doesn't establish criminal or civil penalties for violations. The good news, however, is that next month Senator McCain becomes the Chair of the Senate Armed Services Committee, which will give him serious leverage for overseeing the administration of his own Amendment (including the changes to the Army Field Manual).

There remains the question whether the benefits of the McCain Amendment are outweighed by the other provisions that the White House has apparently secured in exchange. I'll discuss these briefly in my next post.

The McCain Amendment -- The Ugly

Marty Lederman

The biggest downside of the McCain Amendment is that the Senator's victory on the substance of that amendment appears to have come at great cost on other substantive matters. In particular, the White House reportedly has been able to secure at least three statutory provisions of its own -- provisions that are being tied to McCain, as a singular "packaged" deal. The specific wording of the three provisions is not yet public, as far as I know. Therefore it is difficult to assess their full impact. But here's an initial summary, roughly in order of least to most troubling:

1. CIA "Immunity"

According to the Washington Post, Senator McCain agreed to add two paragraphs "that would give civilian interrogators legal protections that are already afforded to military interrogators," and that "specifically would allow those civilians to defend their use of interrogation tactics by arguing in court that a 'person of ordinary sense and understanding would not know the practices were unlawful.'"

I'm not sure exactly how this would work. The idea, as it was described during negotiations, was to make sure that CIA interrogators would not be civilly liable, or criminally culpable, if they reasonably relied on the Attorney General's certification that a particular technique is lawful. (The Robb-Silberman Report revealed that the Attorney General personally approves all intelligence agency interrogation techniques that go beyond openly published interrogation techniques.)

It's not clear to me how much this would change the law, at least on the criminal side. As a general matter, due process already protects persons against criminal culpability for conduct undertaken in reasonable reliance upon the legal opinions of government officials. Certain cases might raise hard questions about whether it is reasonable to rely on an official AG opinion of law -- but it seems to me that there should be a strong presumption that such reliance is reasonable: We should encourage Executive branch officials and employees to seek the legal advice of the AG (and OLC), and to rely on such advice. If the advice is wrong, disingenuous, or offered for improper purposes (e.g., to provide legal cover for conduct of dubious legality), the DOJ officials should be called to account -- not the CIA agents who acted in reliance thereon. (Again, in rare cases the AG's advice might be so implausible that reliance upon it is unreasonable. See, e.g., United States v. Dietrich, 126 F. 671, 675-676 (C.C.D. Neb. 1904) (Van Devanter, sitting as circuit judge). But one hopes that will be the rare case.)

2. Admission of Evidence Obtained by Torture?

As Scott Horton relates below, the evolving Graham-Levin-Kyl-Warner amendment apparently now includes a provision stating that a military administrative tribunal or board, in making a determination of status or disposition of a detainee, "shall to the extent practicable assess -- (A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and (B) the probative value (if any) of such statement."

It's not immediately apparent to me whether and to what extent -- and for what purposes, or subject to what review -- this provision would permit the admissibility of statements unlawfully obtained by torture. To the extent it would do so, however, it would of course create an incentive to use unlawful interrogation techniques.

3. Limitations on Detainees' Access to Judicial Review

This is the big problem -- the principal, review-stripping provisions of Graham-Levin-Kyl-Warner. I blogged previously about the version as passed by the Senate, which was, to say the least, confusing and ambiguous -- and ominous in its implications. Apparently, since that time, the White House and the conferees have been working on making further revisions that will go further still to cut off judicial review over important questions relating to detainees' status, detention, and treatment. It's not yet clear how this will all pan out, or how it will be construed. But to the extent these provisions overule significiant facets of the Supreme Court's Rasul decision, that would be a major victory for the White House, which has been desperate to avoid even the slightest judicial oversight of its detention and interrogation practices. It's not at all clear to me that enacting the McCain Amendment -- valuable as that is -- is worth it, if this is the cost. (It's possible, of course, that the Graham provisions would be just as likely to be enacted even if the McCain Amendment had failed, in which case inclusion of the McCain Amendment obviously is a positive development.)

The McCain Amendment -- What Would the Law Be, Anyway?

Marty Lederman

So, if the McCain Amendment is enacted, what would the law of interrogation be, anyway? A quick summary:

1. There would be few, if any, geographical distinctions -- what's permissible at a secret Polish site should be the same as what's permissible in South Carolina. Senator McCain is to thank for this welcome development.

2. Torture is categorically prohibited -- as it has been throughout the past four years. "Torture" is defined, for purposes of domestic law (and, arguably, our treaty obligations) by the Senate's understandings, which require a specific intent to inflict severe physical or mental pain or suffering. Severe mental pain or suffering consists of prolonged mental harm. As the Levin OLC Memo explained, there is "little guidance to draw upon in interpreting this phrase"; all that can reasonably be said for certain is that the mental damage "must extend for some period of time." The Levin Memo also concluded -- incorrectly -- that "severe physical suffering" requires suffering for an extended duration, or persistent suffering. This may explain why DOJ apparently concluded that waterboarding was not necessarily torture -- but the legal premise is wrong: The statute does not require that severe physical suffering be extended, or persistent. Waterboarding is, in fact, specifically intended to result in severe physical suffering, and thus it is torture (and a war crime), even under the narrower U.S. definition. (The same would appear to be true for "Cold Cell" and "Long Time Standing," as well.)

3. Assaults are categorically prohibited (see 18 U.S.C. 113) within the Special Maritime and Territorial Jurisdiction of the U.S., which is defined (18 U.S.C. 7) to include "the premises of United States diplomatic, consular, military or other United States Government missions or entities in foreign States, including the buildings, parts of buildings, and land appurtenant or ancillary thereto or used for purposes of those missions or entities, irrespective of ownership."

4. For the armed services, there are longstanding, categorical criminal prohibitions, under the Uniform Code of Military Justice, on assaults (including threats), cruelty and maltreatment.

5. Pursuant to Article 17 of the Third Geneva Convention, "[n]o physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind."

In general, this means that the techniques used on POWs must be limited to those traditionally included in Army Field Manual 34-52, as reasonably construed (i.e., not as construed by the Schmidt Report).

6. The law of "rendition" remains much as I described it back in August: not much has changed.

7. All U.S. personnel must refrain from conduct that shocks the conscience. This is the result of the McCain Amendment. Although we don't know precisely how this standard would or should be applied to the interrogation of Al Qaeda detainees who may have valuable intelligence, it plainly lays down a marker that would materially affect current CIA practices.

* * * *

So, what more is needed? This much, at a minimum, I would say: A statute requiring strict adherence to the standards of Geneva Common Article 3 -- prohibitng "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." As I explained here, this is precisely the proposal endorsed by the 9/11 Commission, and by many military officers eager to restore the military's best, and historic, practices.

It is quite possible that this standard of conduct already applies to our treatment of all detainees, as a matter of binding treaty obligation. (That is, for instance, the thrust of Judge Williams's partial dissent in Hamdan, discussed here.) In any event, it is the standard that the United States was committed to upholding for over 50 years, in all manner of conflicts, against all sorts of enemies, even where the Executive branch did not think that it applied as a matter of treaty obligation. All that changed with the President's directive of February 7, 2002.

As the 9/11 Commission proposed, Congress should by statute restore the tradition that the President overturned with the stroke of a pen. In conjunction with the McCain Amendment, codification of Common Article 3 would go a long way to preventing the sorts of detainee abuse scandals that we have seen over the past two years.

Domestic Spying


President Bush, it seems, is looking more and more like Richard Nixon every day.
Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.

Under a presidential order signed in 2002, the intelligence agency has monitored the international telephone calls and international e-mail messages of hundreds, perhaps thousands, of people inside the United States without warrants over the past three years in an effort to track possible "dirty numbers" linked to Al Qaeda, the officials said. The agency, they said, still seeks warrants to monitor entirely domestic communications.

The previously undisclosed decision to permit some eavesdropping inside the country without court approval was a major shift in American intelligence-gathering practices, particularly for the National Security Agency, whose mission is to spy on communications abroad. As a result, some officials familiar with the continuing operation have questioned whether the surveillance has stretched, if not crossed, constitutional limits on legal searches.

"This is really a sea change," said a former senior official who specializes in national security law. "It's almost a mainstay of this country that the N.S.A. only does foreign searches."

Apparently, John Yoo, who seems to be actively seeking the Carl Schmitt Memorial "Anything Goes" award, provided the by-now perfunctory legal justification for shredding the Fourth Amendment:
The legal opinions that support the N.S.A. operation remain classified, but they appear to have followed private discussions among senior administration lawyers and other officials about the need to pursue aggressive strategies that once may have been seen as crossing a legal line, according to senior officials who participated in the discussions.

For example, just days after the Sept. 11, 2001, attacks on New York and the Pentagon, Mr. Yoo, the Justice Department lawyer, wrote an internal memorandum that argued that the government might use "electronic surveillance techniques and equipment that are more powerful and sophisticated than those available to law enforcement agencies in order to intercept telephonic communications and observe the movement of persons but without obtaining warrants for such uses."

Mr. Yoo noted that while such actions could raise constitutional issues, in the face of devastating terrorist attacks "the government may be justified in taking measures which in less troubled conditions could be seen as infringements of individual liberties."

The next year, Justice Department lawyers disclosed their thinking on the issue of warrantless wiretaps in national security cases in a little-noticed brief in an unrelated court case. In that 2002 brief, the government said that "the Constitution vests in the President inherent authority to conduct warrantless intelligence surveillance (electronic or otherwise) of foreign powers or their agents, and Congress cannot by statute extinguish that constitutional authority."

Administration officials were also encouraged by a November 2002 appeals court decision in an unrelated matter. The decision by the Foreign Intelligence Surveillance Court of Review, which sided with the administration in dismantling a bureaucratic "wall" limiting cooperation between prosecutors and intelligence officers, cited "the president's inherent constitutional authority to conduct warrantless foreign intelligence surveillance."

But the same court suggested that national security interests should not be grounds "to jettison the Fourth Amendment requirements" protecting the rights of Americans against undue searches. The dividing line, the court acknowledged, "is a very difficult one to administer."

Once you begin with the twin assumptions that (1) emergency justifies suspension of constitutional rights and (2) that the President cannot be bound by the rule of law when he acts as Commander-in-Chief, there is very little left to restrain the President. And so he has not been restrained.

Thursday, December 15, 2005

Torture by the Back Door

Scott Horton

Lindsey Graham has played a largely laudable role in the battle for honorable standards of treatment for detainees in the War on Terror. His efforts to regulate litigation in the U.S. courts coming out of the detention facility in Guantánamo have been much more controversial. Senator Graham, who is a reserve Air Force JAG officer and appeals judge, has couched some of his positions in terms of a desire to protect the integrity of the military courts system and to create a rational and efficient process of appeal. At a conceptual level this approach has much to it, though many JAG officers are quick to differentiate the established courts martial system from the military commissions and tribunals created by fiat of Secretary of Defense Rumsfeld, where sharp deviations from accepted courtmartial practice have been decreed.

Of all the controversial aspects of the new system Rumsfeld decreed for detainees in the War on Terror, none has been more controversial that the evidentiary standard given. Congress directed – in the Uniform Code of Military Justice – a flat prohibition on the use of testimony secured through torture or extreme coercion, and provided that the UCMJ rules would be binding on the military justice system. 10 U.S.C. sec. 863. The Federal Rules of Military Evidence carry this ban forward. But notwithstanding these clear signs of Congressional direction, Rumsfeld decided against any prohibition on the use of evidence extracted through torture – concluding that this should be left up to the finders of fact, who should be free to consider anything for “probative value.”

Accordingly it appeared reasonably clear that Rumsfeld’s course was a shirking – if not outright defiance – of Congressional guidance. Senator Graham’s original language would have made this clear, and reincorporated the prohibition. Of course such a piecemeal approach was dangerous, and would raise the specter of Congressional ratification or approval of the balance of the Rumsfeld rules. Since, as Senator Specter noted, Congress in fact failed to study these rules, such an inference would be clearly unwarranted.

In the last forty-eight hours, however, a turn for the worse appears to have been taken. Under strong pressure from the White House, it is now being said that Senators Graham, Warner and Levin have agreed to – or are close to agreeing to – this language:

Consideration of statements derived with coercion --

(1) Assessment -- The procedures submitted to Congress pursuant to subsection
(a)(1(A) shall ensure that a CSRT, ARB or any similar or successor administrative tribunal or board, in making a determination of status or disposition of any detainee under such procedures, shall to the extent practicable assess --
(A) whether any statement derived from or relating to such detainee was obtained as a result of coercion; and
(B) the probative value (if any) of such statement

If adopted, this language could be viewed as acceptance of the Rumsfeld view that there is no prohibition per se on the use of evidence extracted by torture or other highly coercive means. In the history of the American Congress, this would mark its first acceptance of torture as a technique and blessing on the use of its fruits.

Coming after an 18-month public debate over torture policies at the end of which a solid consensus has formed against the Administration’s viewpoint, this would be a shocking result. It is made even more shameful by comparison with the decision of Britain’s highest court, handed down just one week ago, reaffirming the ban on the use of torture-extracted evidence as a legal absolute.

It is imperative that these backroom dealings on a matter of such important public concern be fully exposed and discussed. If Congress wishes to combine a vote against torture in the McCain Amendment with a back-door blessing on torture in Graham-Levin-Kyl, at least let this be done in full public view and let the votes of those who support this abomination be publicly recorded.

Tuesday, December 13, 2005

RIP: Eugene Mccarthy

Mark Graber

One of my earliest political memories is anger at Robert Kennedy cutting in on Eugene McCarthy. McCarthy had the guts to challenge an incumbent president and, to my sixth grade mind, he had earned the right to the Democratic nomination. Of course, those were my liberal republican days, so I was committed to leading my homeroom for Richard Nixon. Still, I admired McCarthy far more than most politicians I read about. He seemed generally concerned with issues, more concerned with seeing justice done by his lights than getting elected.

I thought about McCarthy last night when watching commentary over whether Tookie Williams's death sentence should have been commuted. The central issues, according to CNN, was whether commutation or execution would better help Governor Schwarzenegger's sagging popularity ratings. At least that was the basis on which the talking heads presumed the clemency decision was made. All this invoked then Governor Clinton flying home to Arkansas in a great show of toughness on crime to execute a mentally retarded killer that I cannot believe Clinton really thought was an appropriate candidate for the death penalty (who knows about Schwarzenegger). Perhaps these are just images from a 12 year old mind, but I cannot imagine Eugene McCarthy doing the same. Our politics are impoverished by his absence.

The Curious Word 'Honor'

Scott Horton

Three generations of American statesmen of both political parties constructed a powerful alliance. With this alliance, America prevailed in her greatest challenge, the Cold War, and with it, America emerged just fifteen years ago as the world’s paramount power. This power brought with it still greater responsibility. Our Government has assumed a conscious mantle of leadership, but the manner in which it has sought to pursue a new and highly controversial war has not always done us credit. As the London Times wrote in a powerful editorial on Sunday, one decision in particular has betrayed the vision of the Founding Fathers and the common bond of the English-speaking peoples. It is the decision to haul out of the armory of shame the old tool of royal prerogative, torture.

America still has important friends around the world, but increasingly they are saddened. They look for the old America and wonder what has happened to her. Last Thursday, the Judicial Committee of the House of Lords - Britain’s Supreme Court - handed down a landmark decision on the issue of torture. I can’t escape thinking it was written like a worried letter to American friends. For one thing, the Law Lords decided the question before them - whether evidence derived from torture could ever be introduced in legal proceedings - almost entirely on the basis of precedent from before 1789. That is, precedent which forms the common bond between the United States and Britain, the sole aspect of American law as to which the Law Lords have the power to speak with unquestioned authority. In presenting the case this way, the Law Lords seem to be making a conscious appeal to their American counterparts, and to the court of American opinion. And what they have to say is important, addressing as it does one of the most troubling questions to arise in our lifetime. They remind us of facts that were well known to the great leaders who cobbled our republic together, but seem forgotten by the men who now walk Washington’s corridors of power.

In 1628, a noble favorite of King James I was assassinated, and the proposal was put in council whether the man accused of the deed should be tortured to extract information about those who might have conspired with him. The new king, Charles I, declared that he would not use Royal Prerogative to order this unless the law expressly sanctioned it - and to answer this question, the judges of England were assembled at Serjeants’ Inn to deliberate the question. Blackstone recorded their answer,

‘The judges, being consulted, declared unanimously, to their own honour and the honour of the English law, that no such proceeding was allowable by the laws of England.’

From that year forward, no writ ever issued in England for torture. And after the Civil War and the Glorious Revolution, the question of Royal Prerogative also was finally resolved.

In answering the question anew, last week, Lord Hoffmann, perhaps Britain’s most renowned judge and certainly one of its best, stated ‘That word honour, the deep note which Blackstone strikes twice in one sentence, is what underlies the legal technicalities of this appeal. The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it.’ He goes on to cite an important essay by the Columbia legal ethicist Jeremy Waldron, which talks at length about these concepts and concludes that the prohibition on torture falls into the area of legal archetypes. Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681 (2005).

Like Blackstone, Hoffmann uses the word ‘honour’ twice in stating his rule against torture. Why does this strange word figure so prominently here? What on earth does ‘torture’ have to do with ‘honor?’

‘Honor’ has a strange ring in modern ears. We are used to hear it in accounts of duelers motivated by personal slight, and consequently it has the feel of vanity and by-gone times. But this is not what Blackstone and Hoffmann mean. The word they use is a concept of the classical philosophers, reintroduced in the Renaissance.

In classical times, the concept was, of course, ‘virtue.’ As Joseph Addison explains in The Spectator No. 219 (Nov. 10, 1711), the word ‘honor’ came in English usage to parallel ‘virtue’ and ultimately to supplant it (‘Vertue,’ he writes, ‘is the most reasonable and genuine Source of Honour.’)

As it happens, it was a vital word in the founding of this country. In the winter of 1776-77, for instance, as the Continental Army was camped at Valley Forge, the American commander, George Washington gave a curious order to his troops. He wanted them to perform a play. Specifically, it was Joseph Addison’s ‘Cato, A Tragedy,’ a play about the final days of the Roman senator and stoic philosopher Cato. For Cato and for Addison, ‘honor’ was a simple and powerful concept. A person behaved with honor when he lived his life as the realization of the values for which his society stood. Cato died struggling for the values of the Republic, against the dictator and would-be emperor Julius Caesar. In one of his final, pathos-laden speeches, Cato says that death is preferable to a life lived without honor. ‘When vice prevails and impious men bear sway, the post of honour is a private station.’ For Washington, who quoted this passage at least twice in letters to friends, ‘honor’ requires conduct - in daily life, but especially in times of war - that bears witness to the values for which the soldier and his nation stand. And curiously, a part of that honor Washington took not from Cato, but from his arch-rival Caesar. As Addison recalls, Caesar’s great and unexpected string of military victories against the Republic after he crossed the Rubicon rested in part on his policy of clementia – the decision always to treat his defeated adversaries with dignity and respect, and to restore them to their offices and wealth, provided only that they recognize his legitimacy as a ruler and pledge not to battle against him.

As his correspondence and contemporary writings show, it is clear that Addison’s work, the concepts of the Stoic philosophers, and the writings of Enlightenment thinkers who campaigned against torture had equal measure in influencing Washington as he conceived a new standard of warfare in those fateful years. At the Battle of Trenton, Washington gave concrete form to this idea. He introduced a rule on the treatment of prisoners - ‘Treat them with humanity,’ he said. In no case would torture or abuse be countenanced; the captured mercenaries were to receive food, lodging and medical treatment in no respect inferior to our own soldiers. In particular, their religious values were to be respected. Washington ordered severe penalties for any soldier who broke this rule. So for Washington ‘honor’ meant that torture was forbidden. Indeed, for him this prohibition and a positive standard of conduct associated with it was the very essence of the word ‘honor.’

Col. Ted S. Westhusing, the highest ranking US soldier to die in Iraq, was also the US Army’s premier ethicist. His Ph.D. dissertation was written on the classical definition of ‘honor’ and its application in the law of armed conflict. I didn’t know Col. Westhusing, but I knew and admired his work. In his last reports from Iraq, he expressed real anguish about the collapse of the discipline and values for which the US military has been known historically. According to the Los Angeles Times account, his last message included these lines: ‘I cannot support a mission that leads to corruption, human rights abuse and liars. I am sullied. I came to serve honorably and feel dishonored.’ In Ted Westhusing’s life and death lies an unmistakable and profound bond with the past – with Seneca, Addison’s Cato, and George Washington. This loss diminished our military service, for who can doubt but that Westhusing was an important moral leader. America’s leadership desperately needs to hear Col. Westhusing’s call.

President Bush tells us that the war in Iraq must continue so that the casualties suffered - 2,100 Americans killed, and perhaps 10,000 seriously wounded - shall not have been in vain. In this he goads the American public, just as Agamemnon invoked the Greek dead to bring Achilles back to battle in the Trojan War. But our answer to Bush must be this - nothing we do today can change the facts underlying this nation’s march to war in Iraq. What once seemed a strong case for just war now is revealed decidedly less so. That is now a cause for the historians. But at least let our soldiers fight it with the honor that is their birthright. Denying America’s military traditions dishonors us all, but for soldiers in combat it brings a special taint.

The Bush Administration’s policy of torture and abuse has been an unprecedented assault on our nation’s honor. It is time for us to take it back.

John McCain in proposing his amendment said, ‘It’s not about who they are. It’s about who we are.’ That indeed is the essence of the concept of honor, as Washington used the term. Enacting the McCain Amendment will be a critical first step - but only one step - in this struggle.

In remembrance of Ted S. Westhusing, Col, USA, who died in Iraq, June 5, 2005.

Deconstruction's Legal Career


My new article on deconstruction and legal scholarship is now available on SSRN. Originally written in 1998, I have revised it a bit to take into account my latest thinking on the relationship bewteen law and deconstruction. Here is the abstract.
This article describes law's encounter with deconstruction, and how it changed deconstruction. In the hands of lawyers, deconstruction became a set of rhetorical strategies for critiquing legal distinctions and showing their ideological character. Legal scholars used deconstructive arguments to offer normative prescriptions in ways quite different from literary critics or philosophers. Although in theory all texts and distinctions are deconstructable, legal scholars assumed that some interpretations were better than others. Legal deconstruction thus became a set of repeatable rhetorical practices used for pragmatic purposes; and it revealed that these rhetorical and pragmatic features were already present in literary and philosophical deconstruction.

Deconstruction's encounter with law also overturned several popular assumptions about deconstruction. First, legal deconstruction does not assert that legal texts have no meaning or that their meanings are indecipherable. Rather, it argues that texts are overflowing with meanings that point in different directions and emerge over time. Second, one deconstructs conceptual oppositions not to show that legal concepts have no boundaries, but that their boundaries are fluid and appear differently as the conceptual opposition is placed into new interpretive contexts. Legal deconstruction asserts that legal distinctions are nested oppositions - conceptual oppositions whose terms bear a relation of mutual dependence and differentiation; this complicated relationship is revealed as interpretive contexts change. Ideological drift, in which concepts change their political valance as they are repeatedly invoked at different points in history, is a special case of this phenomenon. Third, instead of asserting that legal doctrine is radically indeterminate, legal deconstruction suggests that social construction places ideological constraints on legal decisionmaking and helps produce the sense that some arguments are better than others. Finally, far from denying the existence of fundamental human values, legal deconstruction presupposes a transcendent value of justice which law attempts to express but always fails fully to articulate.

Monday, December 12, 2005

Katrina and the Web of Responsibility

Stephen Griffin

The NYT created quite a stir with Sunday’s editorial, “Death of an American City.” Strong medicine, but on point. The NYT’s basic message is the lack of leadership by all concerned, but especially on the federal level. Nola citizens still do not know whether the federal government will pay for an improved levee system, whether it is “true” Category 3 protection or the best possible Category 5.

This may be a decisive week for New Orleans. Congress will end its session by the weekend and by then we should know whether they have voted money for levee improvements or not. Because many Nola residents view improved levee protection as an absolute precondition for their return to the area, Congress’s action (or failure to act) could be decisive for the effort to rebuild the city.

It’s pretty clear there are many in DC who think the cost of better levees is just too much. But from a Nola perspective, things look a bit different. What Nola citizens are being told was well summarized by a headline in our local paper, The Times-Picayune , on December 8: “100 days after Katrina, the evidence is clear that the great flood was a man-made disaster.” Article continues: “Evidence shows that the six levee breaches along three canals and the overtopping at the Mississippi River-Gulf Outlet can be traced to human error.” Design flaws, poor engineering and bad construction materials all played a part. It appears that the city never had "true" Category 3 hurricane protection, as was always said. Further, this lesser degree of protection was fatally undermined by human error and negligence all coming from the Army Corps of Engineers. And further, had the existing levee system been done properly to a Category 3 level, the city would not have flooded.

So locals have reason to believe that Katrina was a man-made disaster, man-made, that is, at the federal level. The idea that the feds would escape responsibility, or, as a price for rebuilding, insist that the city be changed significantly, is thus especially infuriating. From the Nola perspective, it's the feds fault. They have to make good for what they have done. On the other hand, locals do understand that the old system of multiple levee boards has to go and there is a major grassroots effort going on now to make that happen at the next state legislative session.

In addition, from a local perspective, corruption is being used by the feds as a dodge to refuse to help. After all, the main money the state is interested in is for the levee system. That would be federal money given to a federal agency, the Corps, not the state or local government. If the feds think corruption is a problem in the Corps, they should solve it. But using local corruption as an excuse not to rebuild the levee system properly is a non sequitur.

Many experts think the best protection for New Orleans is not the levee system by itself, but restoring the wetlands that absorb the force of giant storms like Katrina. There’s already a plan in place to do this called Coast 2050. Unfortunately, according to experienced enviros, it’s not clear wetlands can be restored to anything like their former condition. And why were they allowed to erode in the first place? At this point, Katrina turns into a local story, one of allowing oil and gas companies and timber interests to work their will by cutting hundreds of canals through the wetlands and not requiring them to fix the damage. That’s a state matter, but not one even on the radar screen of current Louisiana politics. Instead, Louisiana politicians want to use a better share of oil revenue to pay for the restoration of damage properly attributed to oil companies. But no one wants to talk about the responsibility of private interests for what has happened or the complicity of state government. That would indict just about everyone.

One thing you can say for democracy – when things go bad, it’s usually everyone’s fault.

The Fair Employment Mark is fit to print

Ian Ayres

FYI, the New York Times Sunday Magazine included
The Fair Employment Mark
in their Year in Ideas issue yesterday (yippee). As readers of this blog will remember, any employer any in the world can make a binding legal promise not to discriminate on the basis of sexual orientation with just a few clicks of the mouse.

Undisclosed Prisons, Detention Without Charges, and Now Secret Laws: the Bush Adminstration's Latest Act of Contempt for the Rule of Law

Brian Tamanaha

The Bush Administration has time and again demonstrated contempt for the basic principles of the rule of law when it deems it necessary for the war on terror. [I thought about wording this more politely, but why beat around the bush on a matter of such importance]. Its obsession with secrecy is also well documented. So this story on CNET news should come as no surprise. But it's still shocking.

Apparently there is a federal regulation or order of some kind which requires that everyone who boards a commercial flight must produce an ID. This seems to be a sensible precaution [see Concurring Opinions for funny but serious commentaries on security measures]. The shocker is not the regulation, but the fact that, in a case based upon this regulation, the Justice Department refuses to disclose the terms of the regulation, or even to confirm that it exists.

A three-judge panel of the 9th Circuit Court of Appeals seemed skeptical of the Bush administration's defense of secret laws and regulations but stopped short of suggesting that such a rule would be necessarily unconstitutional.

"How do we know there's an order?" Judge Thomas Nelson asked. "Because you said there was?"

Replied Joshua Waldman, a staff attorney for the Department of Justice: "We couldn't confirm or deny the existence of an order." Even though government regulations required his silence, Waldman said, the situation did seem a "bit peculiar."

That was an impressive understatement. Every account of the "rule of law" requires that laws enforced against the public must be made public. But the Justice Department, our national law enforcement agency, thinks not:

The Justice Department has said it could identify the secret law under seal, which would be available to the 9th Circuit but not necessarily Gilmore's lawyers. But any public description would not be permitted, the department said.

It is impossible to figure out what possible reason the Bush Administration could have for keeping the terms and status of this regulation or order a "secret," since it is being invoked (at least implicitly) millions of times each day [Unless it's a massive bluff and no such reglation exists?]. But never mind that.

This is a gross violation of the rule of law, for which no justification could be adequate.

UPDATE: Orin Kerr at Volokh Conspiracy has added a more information to this bizarre story. His basic point is that this situation is not as bad as it sounds because people who refuse to produce an ID are not arrested, but merely won't be let on the plane. This response is besides the point: a secret law is unacceptable. Besides being wrong in principle, it once again tarnishes our credibility as a country. We cannot insist that we abide by the rule of law (and lecture other countries on the subject), while claiming that it is okay to have a secret law. It's kind of like the Bush Administration insisting that we are opposed to torture and denying that we commit torture, while resisting the enactment of a law against torture and seeking to immunize our agents who might commit torture. Nobody buys it.

Friday, December 09, 2005

Conservative Elites and Abortion

Mark Graber

I overlapped with many of the nation's leading conservative elites when I attended Dartmouth College during the middle to late 1970s. Granted that people change over time, but the notion that this crowd would be leading the charge for "traditional family and sexual values" seems rather absurb. Most belonged to fraternities that seemed rather dedicated to sex outside of marriage. Then again, looking at the conservative record in Congress, maybe "boys will be boys" is what is meant by traditional family and sexual values.

I was reminded of my Dartmouth experiences the other day when interviewed by a reporter from the Wall Street Journal on the probable consequences of a Supreme Court decision overruling Roe. Part of the reason was Paul Gigot was my editor when I was on the school paper (he was terrific, exceptionally open-minded). The other was that the reporter seemed rather pro-choice. I did my usual schick, explaining why I think both pro-life and pro-choice forces have incentives to exaggerate the likely political and social impact of a decision overruling ROE (see too many blogs below). She, on the other hand, with a concern for the less fortunate not normally associated with the WSJ, kept pushing me to highlight more serious impacts on poor and minority women. Do I think they will be worse off if ROE is overruled. I do. But many who do not live near an abortion provider are already badly off.

My more general conclusion is that the family values revolution is being led, partly by sincere religious believers, but also by former fraternity drunks who are mostly interested in gaining votes for lower taxes and imperial adventures in the Middle East. I rather doubt that Dartmouth frat boys will cry if ROE is overruled or change their behavior much. Nor, do I suspect, will the Wall Street Journal find that decision an occasion for mourning or celebration. If you can afford Dartmouth or read the Wall Street Journal regularly, ROE does not matter.

More on the Differences Between Conservatives and Liberals, Via Kekes

Brian Tamanaha

In a post last week, exploring the philosophical differences between conservatives and liberals, I quoted extensively from Roger Scruton and John Kekes, two leading conservative thinkers. The differences, I argued, did not appear to be that great, at least in terms of underlying views of human society and values. Kekes, who has published a number of books on conservatism, often takes positions that many liberals would find congenial, objectionable mainly in degree or in line drawing.

Kekes' most recent post on Right Reason, the third in a series of posts aimed at articulating the core conservative position, leads me to wonder whether the real differences are not in underlying philosophies but in attitudes. Consider this passage from his post:

A safe generalization about conservatives is that they are skeptical about progress. They are not so foolish as to deny that science, technology, education, and so forth have changed human lives for the better. But they have also changed them for the worse. The stock of human possibilities has been enlarged, yet with more possibilities come more evils. Conservatives doubt that more possibilities are bound to make lives on the whole better because they believe that permanent conditions render uncertain any significant improvement of the human condition. One of these permanent conditions is the prevalence of evil. In religious, ideological, racial, and ethnic conflicts, in unjust wars, terrorist attacks, and violent crime innocent people are murdered, tortured, and mutilated. All over the world cruelty, greed, prejudice, and fanaticism ruin the lives of countless victims. Outrage provokes outrage. Millions nurture seething hatred of real or imagined enemies. The forces of barbarism continually break through the superficial layer of order and threaten the security of a substantial segment of humanity. This is how it is now and how it has been throughout history.

Okay, so the world sucks. On that I think conservatives and liberals could agree.

But two differences between liberals and conservatives come to mind in reaction to the the above passage. Many a liberal would respond to the latter half--the stuff about unjust wars and torture--by thinking: "Yep, and we (the US of A) do a lot of that bad stuff too, alas." In constrast, many a conservative reading that passage would think about how screwed up and evil everyone else is, but without reflecting upon our own conduct.

The second difference is that a liberal would hope that things could be better, and would try in some way, however small and seemingly futile, to do something to make that happen. A conservative would think how screwed up and evil everyone else is. Here's Kekes' next passage:

The responsibility for all this evil lies with human beings. It would be shortsighted, however, to stop here because the prevalence of evil reflects not just a human propensity but also a contingency that influences what propensities human beings have and develop. The human propensity for evil is itself a manifestation of this deeper and more pervasive contingency which operates through genetic inheritance, environmental factors, the confluence of events that places people at certain places at certain times, the fortunate and unfortunate accidents that happen, and the historical period, society, and family into which people are born. These and other factors influence human affairs independently of human intentions. It would be unreasonable to conclude from this that contingency is a force for evil, since contingency could be a force for the good as well. The conservative view is that whether the balance of good and evil propensities and their realization by people tilts one way or another is a contingent matter over which human beings and the political frameworks they maintain have insufficient control. The right political frameworks will help, of course; just as the wrong ones will make matters worse. But not even the best political framework can bring contingency within human control because the efforts to control it are subject to the very contingency they aim to control. This is the fundamental reason why conservatives are skeptical about the possibility of a steady and overall improvement of the human condition.

Is Kekes--and those conservatives who agree--right that there has been little sustained improvement in the human condition and little reason to hope for more (so don't try for big positive changes)? A thousand years ago, chances are that Kekes would have been a serf who tilled the soil day in and day out, with no options, a short burdensome life, wives and children who died, etc. Of course, Kekes acknowledges there has been improvement in material conditions. Rather his contention is that there has been little or no change in the quality of our lives, at least in the sense of being surrounded by contingency and evil. But still...?

Kekes main point is to reject "ideologies" of all kind (in favor of preservation of the status quo and prudence). Ideologies have led us astray, increasing evil because they induce us to attempt the hopeless and often counter-productive task of making society better. Liberals, he suggests, are suckers for ideologies, seduced by some vision to try to make a better world.

But I keep thinking that the good old Founding Fathers were pursuing Enlightenment inspired ideologies (and many conservatives reject the Enlightenment), and the Civil Rights movement, and so on.

One reason why torture might not work


It might mislead you into starting an unnecessary war:
The Bush administration based a crucial prewar assertion about ties between Iraq and Al Qaeda on detailed statements made by a prisoner while in Egyptian custody who later said he had fabricated them to escape harsh treatment, according to current and former government officials.

The officials said the captive, Ibn al-Shaykh al-Libi, provided his most specific and elaborate accounts about ties between Iraq and Al Qaeda only after he was secretly handed over to Egypt by the United States in January 2002, in a process known as rendition.

The new disclosure provides the first public evidence that bad intelligence on Iraq may have resulted partly from the administration's heavy reliance on third countries to carry out interrogations of Qaeda members and others detained as part of American counterterrorism efforts. The Bush administration used Mr. Libi's accounts as the basis for its prewar claims, now discredited, that ties between Iraq and Al Qaeda included training in explosives and chemical weapons.

The ticking time bomb scenario often used to justify torture generally assumes that we already know there is a ticking time bomb and that we must resort to torture to elicit necessary information to stop it without delay. The prior question, however, is where we got our understanding that there was a ticking time bomb in the first place. This story suggests that the perception that we had to go to war (our ticking time bomb) may have been generated by false information designed to escape torture (or cruel treatment), which, in turn, has led to the perceived necessity for additional cruelties. In this way falsity begets more falsity, evil begets more evil.

We are often told that cruel and inhuman treatment of prisoners is justified because it produces important information that saves lives. But how many more lives, one wonders, were destroyed because of the false information that cruel and inhuman treatment elicits? And what mistakes have we been making, even to this day, on the basis of information collected through renditions to other countries that practice torture, and by cruel and inhuman treatment of prisoners by our own personnel?

Thomas Jefferson, speaking of slavery, once said: "can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are of the gift of God? That they are not to be violated but with his wrath? Indeed I tremble for my country when I reflect that God is just: that his justice cannot sleep for ever."

Will the consequences of our sins someday be visited upon us? I, too, tremble for my country.