Balkinization  

Thursday, May 24, 2007

Ms. Goodling defnes herself

Sandy Levinson

A New York Times editorial on Ms. Goodling quotes from her testimony: “At heart, I am a fairly quiet girl, who tries to do the right thing and tries to treat people kindly along the way." It would, of course, be interesting to know if those who have had contact with her at the DOJ, including the fired US Attorneys, have found her all that "kindly," and it seems obvious that she strayed from her presumptive desire "to do the right thing." But what I find most interesting is this extremely ambitious 33-year-old's description of herself as a "girl." In my previous post, I took note of the various stereotypes, invidious and otherwise, invoked by Ms. Goodling's appearnce and career. Are we supposed to be more generously disposed to her than, say, to Kyle Sampson, her partner in presumptive illegality (whether or not, technically, "criminal misconduct"), because she's just a "girl," whereas he's a "man"? (Can anyone imagine him, or any other male witness, for that matter, describing himself as "a fairly quiet boy"?) We also know that she apparently broke down crying in one of her superiors' offices. No doubt this happened, but is this supposed to establish that she's "suffered enough" and that adults in the House and Senate, whether male or female, should simply pull their punches with regard to this "girl"?

Perhaps it's unfair to castigate Ms. Goodling for her use of this one word, but I do fine it passing strange. Frankly, I don't know any 30-something females who refer to themselves as "girls" instead of "women." (And I'm positive that law professors would be castigated if they were heard referring to their female students as "girls," especially since it's unthinkable that the same law professors would refer to their male students as "boys.") However, I do note that the New York Times, among other venues, has recently referred to Paul Wolfowitz's "girlfriend." (Other stories have referred to his "companion," which, frankly, seems both more dignified and more accurate.)

Wednesday, May 23, 2007

Mr. Doctrinalism says: "Reports of My Death Are Greatly Exaggerated"

JB

Like Larry Tribe, I was fascinated by Einer Elhauge's recent posting on the "death of doctrinalism." Einer defines doctrinalism as "the sort of scholarship that simply describes doctrine or that assesses doctrine based solely on formalistic grounds having to do with the logic of it internal structure." However, "scholarship that considers doctrine or takes it seriously" is not doctrinalism for that reason alone. Indeed, "[i]t would not . . . be doctrinalism to analyze the functional theories that could explain some doctrine or lead to reform of it, or to measure the consequences of doctrine. Heck, that is what I do, and I am not about to declare myself obsolete."

Now, defined in this way, there's very little scholarship these days that is doctrinalist, whether in Constitutional law (which Einer thinks the last refuge of narrow doctrinalism) or outside of it. Scholarship that focuses on doctrine these days -- both constitutional and nonconstitutional-- is heavily historical, or functionalist or consequentialist. It always seems to be measuring consequences and articulating functions and demanding reform. In fact, I'm trying to figure out what articles fit Einer's narrow vision of doctrinalism that *used* to get you a great job but don't anymore. If anybody has any examples of the genre, please list them in the comments. Perhaps Einer is thinking of the treatise tradition, but that vanished long ago, and in fact it wasn't as narrow as Einer remembers it. (Think of Areeda and Turner as only one example.) In fact, the great treatise of our era-- Larry Tribe's American Constitutional Law, is the very opposite of Einer's narrow definition of doctrinalism. It's chock full of historical, consequentialist and functionalist analyses.

Einer is certainly right if he means that legal scholarship that gets you a good job has to be interdisciplinary and otherwise pay considerable attention to institutions and consequences; it's also quite important, if you are doing policy work, to know some social science. But that revolution in legal scholarship occurred about twenty to thirty years ago, by my reckoning. At least when I started teaching in 1984, it was already quite clear that interdisciplinarity was the way to go.

Let me offer the converse hypothesis from Einer's: No matter how interdisciplinary legal scholarship becomes, most legal scholarship will still pay a lot of attention to cases, statutes, and other legal materials, and will offer normative prescriptions about their reform and interpretation. The reason is that legal scholarship is written by people who teach in professional law schools, whose task is to prepare the vast majority of their students for the practice of law. The professional orientation of law schools repeatedly pushes legal scholarship back toward a focus on legal materials. As I've written before, legal scholarship is always engaged in a sort of rope-a-dope with various interdisciplinary incursions-- it is repeatedly invaded by them, but never conquered by them. Rather, legal scholarship co-opts and adapts other disciplines to its professional orientation. The reason why legal scholarship continues to do this is that knowledge and development of law is not really a discipline in the academic sense. It is more like "area studies" combined with various forms of professional expertise.

So the really interesting question is not whether "narrow doctrinalism" is dead. It is whether you can get a great law teaching job these days professing no interest whatsoever in doctrinal elaboration, doctrinal reform, doctrinal justification or doctrinal history. Even at Yale, which has long had a reputation for not caring much about law at all, this simply isn't the case.

Apropos of Yale's reputation, this post wouldn't be complete without poking a little fun at my own law school, so let me close with this story, which Sandy Levinson likes to tell. At my 50th birthday party last year, we were kidding Jed Rubenfeld, who had just published a novel about Sigmund Freud visiting turn of the century New York City. It was the second novel recently written by a member of the Yale Law faculty-- Steve Carter's was published several years before. Bruce Ackerman said worriedly: "You know at this rate, nobody at Yale Law School's going to write about law any more."

The room erupted in hysterical laughter.

The Three Most Intriguing Words in Goodling's Testimony

Marty Lederman

"within the Department"

The phrase is on page 5 of her statement:
I can describe what I and others discussed as the reasons for [seven U.S. Attorneys'] removal, but I cannot guarantee that these reasons are the same as those contemplated by the final decisionmakers who requested the resignations of these U.S. Attorneys. I am not aware, however, of anyone within the Department ever suggesting the replacement of these attorneys in order to interfere with a particular case, or in retaliation for prosecuting or refusing to prosecute a particular case, for political advantage.
Keep in mind that this statement undoubtedly was written with Goodling's very careful attorney, John Dowd, over the course of several weeks, with meticulous attention to every detail. The addition of that qualifying phrase was not inadvertent -- there's a reason it was included.

Also, the final, additional qualifier is suspicious, too -- "for political advantage." One might conclude that Goodling would only add that phrase if she were aware of people (even in the Department) suggesting the removal of the attorneys in order to interfere with a particular case -- but if she did not presonally know whether the interference was designed "for political advantage."

Finally, there's the oddity of her (plural) reference to "the final decision makers." The final decisionmaker here, of course -- by law and in fact -- was the President of the United States. And he presumably took his cues from his trusted advisers in the White House. Therefore, as I've explained previously, "the current focus on the Attorney General is something of a distraction, at least insofar as Congress's objective is to determine whether anything unlawful or unconstitutional was involved in the U.S. Attorney dismissals. The real action was in the White House, and one cannot determine whether the removals were made for improper reasons unless one knows what Rove and Miers advised the President, and why they did so. But that's precisely the subject matter that Fred Fielding would put off-limits in his offer to allow questioning of those officials."

Larry Tribe on "The Death of Doctrinalism"

Guest Blogger

Larry Tribe

I have great respect for the intellect and integrity of my friend and colleague Einer Elhauge, but his recent post on the "death of doctrinalism" leaves me perplexed. His exemption of constitutional law from his announcement of doctrinalism's supposed death may help explain why we see the world differently, but he bafflingly goes on to dismiss the field — despite its real world importance, the high regard in which it is held in law school and university settings, and its locus of much substantive intellectual accomplishment — as "the least intellectually respected [legal subject] among law professors." Moreover, his description of "doctrinalism" is so narrow that it definitionally excludes most of the best doctrinal work I've encountered in the past several decades. (Curiously, the list of his dazzling dozen omits many scholars who are the most cited and most highly regarded — and many who, unlike all the members of his exemplary group, are not white men.) In the end, I'm inclined to conclude that Professor Elhauge's insights don't explain recent hiring patterns, at Harvard or elsewhere, and certainly nothing he says should discourage those with enough of what Einer describes as "raw talent and creativity" from pursuing their intellectual interests in law and legal thought wherever those interests lead them.

In Some Parts of America, at Some Times in our History . . . [Part II]

Michael Stokes Paulsen

I've been AWOL from blogging, forbidding myself its joys (but not "Lost") until finished grading (my last set of exams at University of Minnesota Law School!).


In the meantime, John Doe v. Kamehameha Schools, settled out from under my planned "Part II." In Minnesota, fishing season has just begun. Kamehameha is the proverbial Big One that Got Away.

The petition for certiorari has been dismissed. As the New York Times reported last week, the terms of the settled "were not disclosed." The legal effect of the settlement is to leave in place the 8-7 en banc Ninth Circuit decision upholding the school's ethnic Hawaiians-only admissions policy, much as a "cert. denied" would have. As the Times reports: "The Supreme Court had considered whether to hear the case four times but had not reached a decision by Friday, when the parties informed the court of the settlement. The case was dismissed the same day."

As I noted last week, John Doe had graduated, leaving only a claim for damages. One can only speculate as to why the Supreme Court had re-listed the case several times. My own uninformed hypothesis was that the Court was considering a GVR in light of whatever it decides to do in the Seattle and Kentucky race-based public school student assignment cases. That might (or might not) give some clues as to what the Court will do in those cases. (If race-based public school assignments as a voluntary government "remedial" measure for de facto segregated public school districts were held unconstitutional, one could understand remanding Kamehameha to the en banc Ninth Circuit to see if that would flip any votes.)

At any rate, the parties evidently became uncertain enough, or nervous enough, that somebody's settlement offer was sufficiently attractive to the other somebody that the case went away. Perhaps it was Piscataway-ed away. (That's a reference to Taxman v. Piscataway, the Third Circuit case from a few years back in which a school district had laid off a white female teacher rather than a black female teacher, with race being the explicit tie-breaker. The Third Circuit upheld the school district's action, the Supreme Court granted cert, and worried backers of racial preferences put up the money to purchase a settlement and a dismissal of cert., avoiding an almost certain reversal -- and living to fight another day, and to win one half of the Grutter-Gratz doubleheader.)

The issue in Kamehameha will likely recur. The settlement settles only John Doe's individual claims, of course. A subsequent suit challenging the school's policy would need to confront the adverse Ninth Circuit en banc opinion, of course. But from the perspective of this academic / part-time litigator of provocative legal issues, this actually makes a subsequent challenge more attractive, because the case could proceed on a pretty smooth legal track: Complaint, Motion to Dismiss on Authority of Doe I granted, Appeal, Quick Loss in Ninth Circuit, En banc Denied, Cert. Petition. Any takers?

A few brief parting comments on the merits, responding (in part) to others raised this past week.

1. Marty Lederman says that I've missed the whole point: Kamehama Schools' Hawaiians-only policy is remedial. (See his post from last Saturday.)

Not in any legitimate legal sense of the term is Kamehameha's practice "remedial"! For the sake of argument, let's stipulate to an imperialist, unflattering history of Hawaii's becoming part of the United States; and let's stipulate to a history of social and economic subordination of ethnic Hawaiians. Then, let's assume further a history of racially segregated public schools.



Now, imagine Kamehameha as a race-exclusive public school, for native-ethnicity Hawaiins only, as a "remedy" for past, identified government discrimination in education. The idea is that it would be a super-duper, bells-and-whistles, above-the-curve school, for ethnic Hawaiians only. In other words, the (hypothesized) "remedy" for government discrimination and segregation in education would be an extremely high-quality racially segregated "magnet" school for the disadvantged race only. Can anyone imagine that this would be upheld as constitutional, on the theory that it is "remedial"? As a first-year exam question, I would fear that this would be too easy: Richmond v. Croson would clearly say no to such a 100% racial set-aside as "remedial," wouldn't it? Bakke and Grutter wouldn't help, either. One cannot use racial preferences to remedy general societal discrimination. "Diversity" certainly cannot justify a race-exclusive school (cf. VMI). And this just isn't a narrowly-tailored remedy for the government's past identified discrimination against individuals (or even groups).

2. But, of course, Kamehameha is a private school. It is not subject to the Equal Protection Clause. But it is subject to 42 U.S.C. section 1981, which forbids racial discrimination in the making of private contracts, and has never been Weber-ized to create a minority-race-exclusive contracts exception to its reasonably clear statutory language. Nor is there a "Hawaii exception" to 1981. Marty quotes Kamehameha's brief, at length, on all sorts of special Hawaii congressional legislation. Without even raising the question whether some of these provisions might be constitutionally problematic (under Rice v. Cayetano, 2000), certainly none of them repeals section 1981 with respect to discrimination in private contracts by ethnic Hawaiians, and none of them can fairly be read even as impliedly repealing 1981.

Nor do ethnic Hawaiians, or Hawaii as a state, have some sort of unique constitutional exemption from section 1981. One may lament nineteenth century history; one may think that the acquisition of Hawaii was morally improper in the 1890s; one may even disapprove of Hawaii's admission as a state in 1959. But Hawaii is part of the United States of America. It has no recognized special status (ala Native American Indian tribes) that might afford a plausible basis for treating it (and its citizens) as nationals of a separate sovereign and thus not subject in all respects to the law governing other Americans. (Again, consider Rice v. Cayetano). It follows from the fact of Hawaii being a state of the union -- though some may dislike that -- and from Hawaiians being Americans -- though some may dislike that -- that, if 1981 means what it says, Kamehameha School's practice is a plain violation of federal law.

3. Unless, that is, Kamehameha possesses a First Amendment free speech / expressive association right to discriminate in admissions on the basis of race. Marty Lederman, astutely, hits me where I live on this point: I am on record as a strong defender of the right of private organizations, as an aspect of their First Amendment rights under the Free Speech Clause, to formulate, express, and maintain their distinctive identities and views; and to do so by controlling their own membership practices. The Boy Scouts get to determine their own rules and moral standards concerning scoutmasters. The Democratic Party gets to decide its rules for delegate selection. Parade organizers get to decide who is in their parade. Heck, Yale Law School gets to exclude Christian legal advocacy organizations (including one for whom I worked after graduating from Yale) because it dislike's the organization's values. Michael Stokes Paulsen, How Yale Law School Trivializes Religious Debotion, 27 Seton Hall L. Rev. 1259 (1997). I have doubts about the correctness of Roberts v. Jaycees and the private service club line of cases, though they are tolerably hedged to prevent too grave an interference with First Amendment association rights. See, e.g., Michael Stokes Paulsen, Scouts, Families, and Schools, 85 Minn. L. Rev. 1917 (2001). In fact, I am not at all certain that Rumsfeld v. FAIR was rightly decided (or at least I am not certain it was rightly reasoned) as to private universities, if the claim is one of direct government power to prescribe access (as opposed to conditions on funds).



It follows from these views that there is at least a plausible argument that private schools have a constitutional right to control their admissions policies so as to establish and maintain a distinctive identity and message of the school. (See Minnesota article pp. 1934-1937). Would that mean that segregated private academies have a First Amendment right to discriminate on the basis of race?! The issue is troubling; I trouble over it for several pages; I find Runyon's reasoning utterly unsatisfactory on this point (p. 1935) and offer several possible alternatives for accepting its outcome, one of which is that the racist private schools in that case (like the private club in Roberts, and like Kamehameha Schools here) really made "no showing that discontinuance of discriminatory admission practices would inhibit in any way the teaching in these schools of any ideas or dogma." Runyon, 427 U.S. at 176 (quoting the lower court's findings with apparent approval). Another possibility I suggest is that something like an O'Brien test should be applied to conduct (discriminatory admissions policies) where the government action is not directed at the expressive message entailed.



I would be open to -- and equally troubled by -- a claim by Kamehameha Schools of a First Amendment constitutional right to exclude non-ethnic-Hawaiians as essential to maintaining their distinctive message and viewpoint. I am not sure how it should be resolved, on first principles. But I am quite sure that the answer should be the same for all racist schools that maintain racially exclusive policies. The First Amendment surely does not permit a distinction between "good" racially-exclusive ideologies and "bad" racially-exclusive ideologies. (This may go a ways toward explaining why Kamehameha's lawyers did not press a First Amendment argument.) In principle -- and principle counts -- the two cases must be treated the same. Legally, each of these things is just like the other.



4. That brings me to my final point. Marty makes a good deal of the fact that even the dissenters in the Ninth Circuit were not harsh, as I was, on Kamehameha Schools, even writing admiringly of the school. There is much that might explain this -- "political correctness," generosity, an unwillingness to criticize one's colleagues too harshly, etc. My point is a simple, crude one. In principle, what is the difference between a racially-exclusive school whose ideology is that one race should be educated separately and treated specially (because Hawaiian) and one that holds the same views with respect to a different race?

Practically, one might well be inclined to think that there are differences between the two situations. But I question whether the differences are ones that should be indulged. They are not differences in principle, but, invariably, at some level, concessions away from principle. And it seems way too easy to make such concessions. Thus, I embrace the harsh comparisons to Little Rock and the racist private academies of a different area of America's south, at a different time. The analogy is shocking, disturbing. It should be. If one stood behind a veil of ignorance and were called on simply to address the issue on point of principle -- is it legally (and morally) proper to run a racially-exclusive, segregated private school, for ideological purposes? -- how many liberals (or conservatives) would truly wish to say yes? If one has to work so hard to distinguish various shades of different answers to this question, in different contexts, should not one be deeply concerned?



Michael Stokes Paulsen

Monica Goodling, mens rea and crimnal liability

Sandy Levinson

From the NYTimes afternoon posting of a story on Ms. Goodling's tesimony:


Ms. Goodling said that in the course of her five years at the Justice Department, she interviewed hundreds of job applicants, most of them for positions subject to partisan political appointment. “But some were applicants for certain categories of career positions,” she went on, alluding to workers who are supposed to function free of naked political considerations.

“In every case, I tried to act in good faith, and for the purpose of ensuring that the department was staffed by well-qualified individuals who were supportive of the attorney general’s views, priorities and goals,” she said, before acknowledging that she might have gone too far in asking overtly political questions of some career applicants.

But Representative Bobby Scott, Democrat of Virginia, was not satisfied. “Did you break the law?” he asked. “Is it against the law to take those considerations into account?”

“I believe I crossed the line, but I didn’t mean to,” she replied. [emphasis added]


Translation: "I now realized that I in fact violated the law, but even if I weren't guaranteed immunity from prosecution, I would still be protected by the fact that 'I didn't mean to.'"

What, precisely, does this mean? How often does the DOJ's criminal division take a pass on prosecuting a non-immunized law-breaker on the grounds that he/she "didn't mean to" violate rather clear federal law? The Civil Service Act, after all, goes back to 1886, and it is a fundamental building block of the modern bureaucratic state that depends on some distinction between crass politics and bureaucratic competence. I know that mens rea is usually a requirement for criminal liability, but can anyone take seriously the "I didn't mean to" defense as rejection of adequate mens rea? I don't teach criminal law, so I am more than ready to stand corrected by my betters on this point.
An aside: the most interesting part of the District Court's decision in the 2001 Emerson case on gun rights was its willingness in effect to make ignorance of an obscure part of federal law (the illegality of firearms possession by anyone who had been served with a restraining order in a domestic violence case) an excuse. Perhaps it is understandable that most of the attention went to the Second Amendment part of the opinion, but the claim that Due Process protects someone who is reasonably ignorant of the law is of far greater importance, both theoretically and practically. But even if one is sympathetic to limiting de facto strict liability in the modern administrative state, shouldn't a "qualified lawyer" working for the United States Department of Justice be expected to be aware of basic civil service statutes?

One wonders how seriously the "I didn't mean to" defense would be taken if the person articulating it were, say, a 50-year-old non-immunized male who had taught constitutional law in Arkansas and, indeed, had been Attorney General of the State to boot. And I recall that an even dowdier Arkansan who had been Deputy Attorney General of the United States actually went to jail for violating federal criminal law. But perhaps "we" expect less of an attractive 33-year-old with long-flowing blonde hair (check out the picture accompanying the Times story) who graduated from Regent Law School. (Is this another example of the "tyranny of low expectations"?) (One can also count up the number of invidious stereotypes that may or may not be working to Ms. Goodling's detriment/advantage in her debut as a public figure.)




Goodling Written Statement

Marty Lederman

is now posted.

Several interesting things. Perhaps foremost, she basically accuses DAG McNulty of perjuring himself before congressional committees in several respects, and of deliberately withholding from the Committee information about Senator Domenici's role in the removal of David Iglesias. With AG Gonzales having in essence blamed McNulty for the whole mess, and now this, it will be very interesting to hear what more McNulty has to say about all the other actors . . . now that they all seem to have decided to tap him as the fall guy.

Second, Goodling writes that her "understanding at the time" was that the AG's secret Order of March 2006, transferring the delegation of responsibility for career DOJ employment decisions from the DAG and Associate to the AG Chief of Staff and the White House Liason (Sampson and Goodling) -- which I discuss here -- "generally formalized the historical practice of the this Administration." In other words, those decisions had been fully politicized and removed from the aegis of the professionals long before the order was issued. "Generally." And yet the order was issued secretly, without distribution to the DAG and Associate. Hmmmm. This warrants follow-up.

Third, Goodling acknowledges that in deciding whom to hire for jobs as Assistant U.S. Attorneys (line prosecutors), her decisions "may have been influenced in part based on political considerations." She calls this a "mistake," but in response to questions from Rep. Scott, later conceded that "“I know I crossed the line of civil service rules." See TPM's account here.

Fourth, she acknowledges that she also "took political considerations into account in making recommendations for positions as Immigration Judges and members of the Board of Immigration Appeals, and she thought that was permissible because Kyle Sampson had told her that OLC "had provided guidance some years earlier indicating that Immigration Judge appointments were not subject to the civil service rules applicable to other career positions. In late 2006, however, the Civil Division "expressed concerns that the civil service rules might apply" to such immigration judges.

This is also an area for further investigation. Did OLC conclude that the civil service laws don't apply to immigration judges? If so, what was the theory? (I'm not aware of any such OLC Opinion; but that doesn't mean there isn't one out there somewhere. Anyone know offhand what the law is on this?) And how did the Civil Division come to express its concerns? On what grounds?

There's at least one other very interesting thing about her opening statement, too. More on that later. [UPDATE: See here.]

[UPDATE: As usual, Hilzoy's impressions of the testimony, and of Goodling, are more incisive than anyone's.]

Tuesday, May 22, 2007

The 'Big Story' in Our Legal History is Wrong

Brian Tamanaha

For many decades, the American legal culture has held to a tale about judging that progresses from blind obtuseness (or duplicity) to sophisticated awareness. According to this story, a bad “formalistic” stage of judging dominated from the 1870s through the 1920s: the law was portrayed as comprehensive, gapless, and logically consistent, with a right answer in every case, and judges reasoned mechanically (or at least pretended to do so) from abstract concepts, or in a rule-bound and precedent-bound fashion with no attention to social consequences. In the 1920s and 1930s, the Legal Realists, building on the work of Oliver Wendell Holmes and Roscoe Pound, shattered the formalist view of law. The Realists argued that the law is filled with gaps and inconsistencies, that there are exceptions for almost every rule or principle, that precedents can be found on all sides of an issue, and that judges (influenced by their predilections) arrive at a result first then find or manipulate the law to rationalize the result.

This story has been repeated innumerable times, and structures how we think about law and judging today: formalism is naïve, bad, or false; every sensible and candid person is realistic about judging.

This story is wrong in fundamental respects, as demonstrated by “The Realism of the ‘Formalist’ Age.” Quoting numerous speeches and articles, the paper shows that consummately realistic and skeptical views of the law were widely expressed throughout the formalist period, often by judges and leaders of the bar. The paper reveals that our one-sided image of the “formalists” was constructed by critics of the courts in a manner that systematically excluded this realistic understanding. It also shows that the Realists were merely the latest and most self-conscious episode in a constant stream of skeptical views about law that extends back many decades.

The objective behind the paper is to shake the hold of the formalist-realist antithesis that dominates and distorts contemporary views of judging. Dislodging this old story may help ease the way toward recognition of a realistic approach to formalism that is advocated by many judges (Judge Harry Edwards, for example) and legal theorists (Fred Schauer, Larry Solum, for example, and me in this post), although nothing in the paper itself leads unequivocally to this view.

What the paper makes clear is that we can no longer talk about “the formalists” in the same old ways, and perhaps not at all. Critical comments are welcome by direct email.

The Reverse Litmus Test, Again

JB

Readers of this blog know that I have argued the continued existence of Roe v. Wade helps the Republican Party keep its coalition together. Hence Republican Presidents-- at least those who are likely to be elected in the foreseeable future-- will have a "reverse litmus test" for overruling Roe. They will appoint judges and Justices who will chip away at abortion rights slowly but leave Roe v. Wade and Casey officially standing. Although the eventual Republican nominee will probably be pro-life (I will say more about Giuliani and abortion in a later post), he will probably not seek to overturn Roe v. Wade. There are plenty of candidates for the Republican nomination who would try to do that, but none of them, I predict, will win the nomination. And if any of them do win the nomination, and state forthrightly in the general campaign that they seek to overturn Roe v. Wade, none of them, I predict, would be elected.

It is worth noting that the top three current candidates (Giuliani, McCain and Romney) are the least likely to try to overturn Roe. Nobody can say what Romney really believes on this issue, and McCain has flipped very recently on the issue in order to cozy up-- perhaps unsuccessfully-- with religious conservatives. Note that unlike Romney, McCain has been consistently pro-life, but seeking to overturn Roe and Casey is another matter. There is no necessary contradiction here: George W. Bush is pro-life but he has carefully avoided arguing that he wants to overturn Roe v. Wade. This "pro-life but keep Roe" dance is precisely what keeps the Republican coalition together. (By the way, for those who are feeling left out, I will say something about the Democrats compromises in a future post.).

Further confirmation that this is still the operative Republican strategy comes from another NY Times article that appeared today. It essentially rehashes the point made on this blog, and particularly by my colleague Reva Siegel, that the new strategy of the pro-life movement is to argue that abortion hurts women. It seeks to turn the rhetoric of choice on its head by arguing that women who choose abortions are not fully informed or will regret their decisions later on, so they should be deterred from making a choice that they will later come to regret. Hence states need to adopt laws that will help persuade (or manipulate, depending on your viewpoint) women into accepting that they are doing the wrong thing when they seek abortions.

A new round of informed choice laws might include, among other things, longer waiting periods for abortion, compulsory sonograms, requiring the woman to examine the results of the sonogram, and increasingly forceful and one-sided canned speeches that the doctor must recite to the pregnant woman. All except the last are likely to drive up the costs of abortions, especially for poor women. (Making multiple trips adds to the cost and difficulty of abortions, particularly for women in rural areas and women who work in jobs with little leave time; sonograms add considerably to the cost of abortion and raise costs for abortion clinics.). Increasingly manipulative canned speeches may not raise the costs of performing abortions; they simply interfere with doctors' professional judgment and, perhaps in some cases, substitute junk science for the real thing.

You can now see how the two halves of this equation fit together. As the pro-life movement increasingly pushes for procedural rules that will make it more difficult for women to get abortions and will discourage them from obtaining them, the Presidential wing of the Republican Party continues to nominate judges and Justices who will read Roe and Casey narrowly to allow a wide range of different regulations of abortion without directly overturning these precedents.

If the Republicans play their cards right, they will never have to overturn Roe. Most women-- especially poor women and women in rural areas-- won't be able to get abortions, but affluent, professional, and well-connected women-- particular those in large cities-- still will. That would be a return, in effect, to the status quo before the 1960's, except that a somewhat larger group of middle class women will have effective access.

In fact, in terms of keeping the Republican coalition together, it's far better to keep Roe around than overrule it. Maintaining the shell of Roe preserves a powerful symbol of judicial activism and cultural elitism that keeps the base perpetually angry, while at the same time reassuring the affluent, suburbanites, moderates and independents that they can still get abortions if they really need them.



Monday, May 21, 2007

Baker, THE RESCUE OF JOSHUA GLOVER

Mark Graber

H. Robert Baker's, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War is a great choice for persons interested in serious summer reading. The book is a nice summer read because the author writes well and tells a good story. The result is a nice page turner about Wisconsin anti-slavery politics and the Supreme Court’s famous decision in Ableman v. Booth, denying that state courts could issue writs of habeas corpus to persons in federal custody. Professor Baker brings the major participants to life and provides fascinating details about northwestern state politics on the eve of the Civil War. The book is a serious read because Professor Baker raises important questions about popular constitutionalism, a hot topic in contemporary legal discourse. A central theme of both the actual rescue of Joshua Glover, an alleged fugitive slave, and The Rescue of Joshua Glover is the locus of constitutional authority. Was Sherman Booth’s effort to prevent Glover’s rendition an act of popular constitutionalism defending the right of citizens of Wisconsin to exercise their sovereign constitutional authority to protect the citizens of Wisconsin, including persons of color? Or was that rescue an act of constitutional usurpation, no more legitimate than the effort of southern states during the 1950s to insist that states could nullify Brown v. Board of Education. Many commentators during the 1950s suggested that Wisconsin and Mississippi rose and fell together. Professor Baker disagrees. I am not entirely convinced by his assertion that there is a sharp distinction between the Wisconsin citizenry of 1856 and the white citizens councils of a later era, based in part on the changing status of state sovereignty after the Civil War. Still, The Rescue of Joshua Glover provides readers with the information they will need to make informed choices on their own, and highlights once again that what courts do frequently plays a smaller role than commonly thought in American constitutional development. This is an important work by a young scholar that should be of interest to persons who have an interest in the Civil War, good history, and better constitutionalism.

Professor Baker’s discussion of the relationship between the abolitionist and temperance movements is also of particular interest to contemporary politics. He details how the Republican Party almost lost control of Wisconsin politics by combining anti-slavery appeals with attacks on saloons. Many German-Americans immigrants seemed to have hated slavery, but liked their beer more. Republicans were able to keep control of the state courts and state legislature during the later 1850s, only when they abandoned principled calls for temperance and make clear that local brewers and their clients would be welcomed participants in the crusade against slavery. The obvious contemporary analogue is the effort to use the Democratic party as a vehicle to both develop more intelligent policies in the war against terrorism and more decent policies towards gays and lesbians, as well as a hundred other good causes. The possibility exists, of course, that the policies may complement each other, that persons committed to gay marriage may join the crusade against torture for political rather than principled reasons. Still, the Wisconsin experience during the 1850s, duplicated in many other states at that time, suggests that frequently all just causes cannot be fought at once, that priorities need to be established. The Rescue of Joshua Glover will not help contemporary liberals or conservatives resolve these matters, but Professor Baker’s work serves as another welcomed reminder that constitutional politics is a form of politics and, as such, is the art of the constitutionally possible.

Gonzales's Legal Ethics

David Luban

Reynolds Holding’s article in Time Magazine asks whether Alberto Gonzales – a member of the Texas Bar – violated Texas ethics rules by trying to get Attorney General Ashcroft to sign off on illegal wiretaps while Ashcroft was hospitalized, after Acting Attorney General Comey had already refused to do so. A Texas legal ethics expert, Nancy Rapaport, thinks not:


"The ethics rules let lawyers question each other's decisions....It's just a little icky when you do it to someone who's in the hospital. But I don't think it rises to the level of anything that's actionable. I think it just fails the would-my-mom-be-proud-of-me test."
Steven Gillers disagrees. "The lawyer for the President was asking the head of the Department of Justice to approve an illegal program. By seeking to advance an illegal scheme, Gonzales seriously interfered with the administration of justice. It's hard to think of a clearer example of a violation of" Texas’s rule forbidding lawyers from engaging in conduct constituting the obstruction of justice. Gillers also thinks Gonzales, by attempting to dupe Ashcroft, violated the Texas prohibition on conduct involving deceit.

I’m doubtful about the first of Steve Gillers’s arguments. Texas’s rule is worded differently from the parallel rule in most other states (and the ABA’s Model Rules). The other states' rules refer to conduct that is "prejudicial to the administration of justice," and if that’s what Texas’s rule said Gillers may well be right that Gonzales's hospital visit violated it. [LATE NOTE: Reynolds Holden has informed me that Gillers was opining about the ABA rule, not Texas's; the error is his, not Gillers's.] But on its face Texas's rule looks narrower: "obstruction of justice" is usually the name of a specific crime or family of crimes, and it’s not clear that Gonzales, even on the most unflattering construction of his conduct, was trying to commit one of them. The federal obstruction statutes, 18 USC 1501-1520, target corrupt or coercive obstruction of investigations, and they plainly don’t apply, since there was no investigation going on. In the Texas code, the closest obstruction statute I could find is a provision that forbids "coercion of a public servant." [Corrections welcome.] It’s a crime if "by means of coercion," a person "influences or attempts to influence a public servant in a specific exercise of his official power or a specific performance of his official duty or influences or attempts to influence a public servant to violate the public servant's known legal duty." This sounds closer to what Gonzales was up to (again, assuming the worst construction), except for the "coercion" part – unless you want to argue that importuning a sick man is coercive. That is not a frivolous argument, but it’s a stretch. Furthermore, we might wonder whether the Texas statute applies when it’s not a Texas public official and the coercion happens in Washington. And, lastly, at that moment Ashcroft was not a public servant, because he had temporarily handed off the AG power to Comey.

That's where the real ethics violation lies. According to Comey, Ashcroft rose up off his pillow to remind Gonzales and Andrew Card that Comey, not Ashcroft, was the acting attorney general. They knew that, of course. Their aim was apparently to get Ashcroft’s legally-meaningless signature – meaningless, because at that time he was not exercising the powers of the attorney general – so they would have a document that made it wrongly seem that the attorney general had signed off on the program. If Marty's speculation is right, the AG’s signature was important to reassure telecom companies cooperating with the program that doing so was on the right side of the law.

But suppose that wasn’t Gonzales's and Card's reason for seeking Ashcroft’s signature. The fact remains that any use of the signature would have been, quite simply, fraudulent - at least, if it falsely suggested that Ashcroft's legal authority as AG attached to what he was signing . The Texas rules forbid lawyers from engaging in conduct that involves dishonesty, fraud, deceit, or misrepresentation. Steve Gillers focuses on their attempt to deceive Ashcroft. But the more significant violation lies in trying to get Ashcroft’s signature for purposes of deceiving others. Deceiving others with a fraudulent document would amount to a mammoth political hoax; deceiving the ailing Ashcroft would have been "only" a small bit of foulness. (It would bear some resemblance to the facts underlying Ohralik v. Ohio State Bar, 436 U.S. 447, a 1978 case where the Supreme Court upheld the disbarment of a lawyer for visiting an accident victim in her hospital bed to solicit her as his client. This is the kind of overreaching that the bar usually thinks is rather worse than simply "a little icky" - but it's not as bad as passing off a document signed by Citizen John Ashcroft as a document signed by the de jure Attorney General of the United States.)

Again let me emphasize: this all assumes the most damning interpretation of the facts. There are more innocent interpretations. I'm assuming the worst only to see if it constitutes an ethics violation. I'm suggesting that it does. So I reach the same conclusion as Steve Gillers, by a somewhat different route.

Until we know which version of the facts is correct, the cloud of suspicion over Gonzales remains. That means the Texas bar counsel ought to open an investigation of his behavior. Holden’s article is right that such an investigation would probably not conclude until after Gonzales leaves office. But the same was true of President Clinton or, more recently, Clinton’s national security advisor Sandy Berger, who has just accepted voluntary disbarment over his 2003 pilfering of documents when he was preparing to testify before the 9/11 commission. A few days ago Byron York, in the National Review Online, engaged in some head-wagging and hand-wringing over the fact that because Berger volunteered for disbarment, further investigation is unlikely. That is four years after the fact; perhaps we won’t have to wait that long for the Gonzales investigation to find out what the real point was for his hospital visit.

It Was Only a Matter of Time . . .

Marty Lederman

. . . before ideas spawned here would wind up as derivative works on YouTube: Part I; Part II. (Another version.)

(I should have added in my original post that Sonny obviously is played by FBI Director Robert Mueller. And I suppose Andy Card, not Gonzales, is McCluskey. I had written that the President was Sollazzo. But another blogger reminds me that Solozzo was just doing Barzini's bidding. Barzini is, of course, Dick Cheney.)

Who owns the copyright -- the estate of Mario Puzo, Paramount Pictures . . . or James Comey?

Response to Kmiec (and Levinson) -- What Does it Mean to "Faithfully" Execute the Law?

Marty Lederman

I'd like to thank Doug Kmiec for his very gracious response. As one might imagine, I still have significant disagreements with some of what Doug writes; but I also think that Doug's latest post, because it is more temperate and discriminating than his Washington Post Op/Ed, helpfully narrows and focuses our areas of significant disagreement. (For example: If all Doug meant by describing Comey's testimony as "histrionic" was that it was "vivid," I fully concur in the sentiment, if not in the choice of adjective.)

It's probably best to allow others to weigh in where some of our differences are obvious. I'll limit myself here to three issues.

First, was the hospital visit necessarily so nefarious?

Doug remains "mystified" by what he himself dubs an "'ethically dubious' attempt to pursue a futile certification from a man recused and critically ill in the hospital." That about says it all -- so perhaps we do not differ so much on the question of how disturbing the hospital episode was.

Doug generously attempts to exonerate Gonzales by surmising that (i) "Mr. Gonzales had reached the conclusion that this extraordinary contact with Mr. Ashcroft was necessary because an interruption in the on-going terrorist surveillance effort would seriously jeopardize the security of the nation"; and (ii) "he intended to ascertain whether Mr. Ashcroft concurred and was well enough to rescind his recusal in light of that possible concurrence."

I do not doubt the first point: I think the President and Gonzales probably were motivated to such unusual action by their fear that a cessation of the NSA program would have serious adverse consequences. But this does not distinguish them from Comey, Ashcroft and Goldsmith -- all of whom were very much aware of the serious consequences, and all of whom were, by all accounts, very eager to find a legal basis to allow the program to continue. The fact that they pulled the plug anyway speaks volumes about how extremely dubious the legal case for the program must have been before that hospital visit. (That's the main point of this post.)

As for the second point, I'm afraid Doug is grasping at straws. There's no reason to believe that Gonzales was trying "to ascertain whether Mr. Ashcroft concurred" with Comey's decision. Not, anyway, unless the White House thought that Jim Comey and Jack Goldsmith were outright lying when they reported DOJ's decision. The White House knew damn well what Ashcroft's decision had been. Recall that Comey and Ashcroft had concurred on that decision a week earlier, just before Ashcroft fell ill. ("A week before that March 11th deadline, I had a private meeting with the attorney general for an hour, just the two of us, and I laid out for him what we had learned and what our analysis was in this particular matter. And at the end of that hour-long private session, he and I agreed on a course of action.") On Tuesday, March 9th, the DOJ officials "communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail." In these detailed conversations, Comey undoubtedly told the White House and NSA that Ashcroft had concurred in his judgments. The President nevertheless sent Gonzales and Card to the hospital, without so much as telling the Acting Attorney General, so that they could obtain the signature of someone who was not only incapacitated, but not even acting in an official capacity! Obviously, they did so in order that they could present a fraudulent certification, of someone who was not at the time acting as AG, to the NSA and/or to the telcom companies. (Doug hints that perhaps they also were endeavoring to ascertain if Ashcroft was "was well enough to rescind his recusal" -- i.e., to retract his delegation of the AG's powers to Comey. With all respect, this seems implausible, or worse. Mrs. Ashcroft apparently told the White House that he was not even well enough to receive visitors -- and the White House officials went to the hospital without even informing the Acting Attorney General that they were doing so. And you wonder why Comey was shocked?)

Second -- is it worse than Watergate?

Doug writes: "Overall, the purpose of my commentary was largely to raise a caution about the undifferentiated likening of a dispute over the extent of the president's war powers to distortions of the rule of law we know as Watergate. To disagree over the interpretation of Constitution or statute, especially where that disagreement is consequential to the nation's well-being, is not to indulge in corrupt or venal behavior."

I agree that the mere disagreement about the scope of the AUMF or Article II was in no respect as "venal" or as "corrupt" as the entire Watergate affair. As I carefully explained in my post about Doug's Op-Ed, the analogies to the Saturday Night Massacre were not intended to suggest that the underlying crime was as "venal" as, or analogous to, the Watergate break-in. It was merely to note, as I did, that in both cases "the President and his closest aides had so egregiously departed from institutional legal norms that the entire top echelon of the Justice Department was prepared to resign in a manner that would signal to the public that something was greviously awry within the Administration. . . . Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales."

But let's not minimize the underlying offenses: No, they were not attempts to engage in third-rate burglaries, or to manipulate the Department of Justice, in order to influence the outcome of an election or to cover up such wrongdoing. (The U.S. Attorney and voter-fraud-fraud scandals are much closer to the mark on that score.) But the law being violated here -- FISA -- was much more important than the one being violated at the Watergate Hotel, and in some sense the threat to the Constitution is much greater here, too, because, pace the David Frost incident, Nixon did not actually think or argue that the break-in (or most of the cover-up) was legal, whereas the Bush/Cheney/Addington theory of the Constitution would quite forthrightly allow the President to disregard statutes and treaties whenever he thinks they get in the way of how he chooses to prosecute an international conflict. And, as in Watergate, all of this (the electronic surveillance, the torture, etc.) was done in secret, with no opportunity for the other branches or the public to apply the checks and balances that the Constitution contemplates.

Third -- isn't this whole tempest merely a principled disagreement about constitutional interpretation?

Well, yes, in some sense it is -- which is why I've been so invested in the topic for the past three years. The point of my posts in this case, however, was simply to show that the position the President adopted in that debate was profoundly radical, unorthodox, and sweeping -- a view so extreme that it was rejected by strong supporters of the President such as John Ashcroft, Jim Comey and Jack Goldsmith, even with respect to what they all considered a vitally important program that had already been implemented on the basis of that constitutional view for more than two years.

Which brings me to Sandy's question, on the principal point where Doug and I agree (i.e., that the legal decision within the Executive branch was ultimately for the President to make): Isn't there something wrong with a Constitution that allows a President with no special legal understanding to reject the Ashcroft/Goldsmith view in favor of the Cheney/Addington view?

I'll leave it to Sandy and others to debate whether the Constitution is flawed in this respect. I would only note in this regard that if the system were working as it is designed to, where the President's constitutional views are subject to public debate and the ordinary checks and balances of the political and judicial systems -- as in the case of the first U.S. bank, and the Louisiana Purchase, and the steel seizure, and the destroyers sale, and the wars in Korea and Kosovo, etc. -- then even an unlearned, unorthodox and misguided Executive interpretation of the Constitution would not necessarily have the profound implications that Sandy describes. (Which in turn would, of course, make the President much more reticent about adopting radical views in the first place.) The big problem here is not that the President's "last word" within the Executive branch was so unorthodox, but that it was so unorthodox and secret, and thus so unchecked, i.e., that the final word within the Executive branch became, for all intents and purposes, the final, unreviewable policy and practice of the United States, whether it be with respect to surveillance in violation of FISA, or with respect to "enhanced" interrogation techniques. There would not be anything so troubling about permitting a President unlearned in the law to make constitutional interpretations on behalf of the Executive branch if those decisions were subjected to the ordinary checks and balances of politics, litigation, and the referendum of public debate. [UPDATE: It was worse than that, actually. As Glenn Greenwald reminds us, the Administration not only didn't tell Congress and the public that it was disregarding FISA -- the President and AG Gonzales actually went around the nation trumpeting the fact that all wiretaps were done pursuant to court order, and repeatedly went to Congress proposing amendments to FISA without mentioning those features of the statute that they had found it necessary to disregard.]

Apart from the lack of transparency -- the attempt to preclude such checks and balances -- I still have a problem with the President's internal Executive branch decision to choose Addington over Goldsmith; but my concern is different from Sandy's: It's not that the President is incapable of making a constitutional judgment (if he took the question seriously), but instead that the President was asking himself the wrong question. If the President had taken the merits of the constitutional question seriously (as I think he is constitutionally required to do) and solemnly concluded after serious inquiry into what we might call the "usual legal materials and analytic techniques" that Addington had the better of the Article II argument, I think that would be entirely permissible -- and what the Constitution contemplates, notwithstanding the fact that the President is not "learned in the law." The Constitution was designed to be understood and applied not only by elite lawyers, but by ordinary officials, and by the people. The analogy here, as Sandy suggests, is to Washington and the wonderful internal Executive branch debate concerning the first bank.

But I suppose I simply don't believe, as Doug appears to believe, that the President solemnly concluded that the Cheney/Addington view of Article II was the better reading. I mean, come on -- he had John Ashcroft and Jack Goldsmith saying otherwise. Those are the learned legal experts who the President himself had appointed to provide advice on such questions. The President knew that their analysis was very deliberate and thoughtful; that they deeply feared and regretted the advice they were giving; that they had bent over backwards to see whether there was any basis for the Cheney view; and that they were hardly radical civil libertarians or skeptics of executive power. Undoubtedly, those trusted advisers informed the President of what everyone who has seen the Cheney view has said the moment that they encounter it -- that it is a highly, highly, unorthodox view, embraced by almost no one else, and almost certain to be rejected if it were ever subject to judicial review.

And yet the President opted for it anyway. I am confident he did so not because he was persuaded on the merits after a careful consideration of the competing arguments, nor even because he concluded that David Addington understood the Constitution better than Jack Goldsmith and everyone else in the Justice Department. He opted for the Cheney view simply because it was a view that someone close to him concluded was within the broad range of "reasonable" legal views (after all, the Yoo OLC had signed off on it earlier). That alone was good enough for him. Orin Kerr writes that "there is absolutely no evidence whatsoever that the President intentionally violated a known legal duty." But he knew that his conduct violated FISA. And he knew that the overwhelmingly predominant view -- one adopted by even John Ashcroft and Jack Goldsmith -- was that he had no constitutional prerogative to do so. Now, for most lawyers, that in and of itself would mean a strong presumption that, as Brian Tamanaha writes, the Addington legal justification, "while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility." But for the President, the fact that Dick Cheney and David Addington and John Yoo had signed off on this theory a fortiori brought it within the "pale of plausibility" -- and that was sufficient.

In my view, this suggests that President Bush did not take seriously his obligation to take care that the law is faithfully executed.

As I've explained before, there is substantial evidence that this President does not see his constitutional role as trying to adduce the "best" view of the law (however one believes that that should be determined). Instead, his constitutional understanding is that he should do whatever he thinks is best for the security of the nation if any legal justification can be articulated for it, as long as that justification is somewhere within a very wide range of what is deemed legally "reasonable." According to Newsweek: "The message to White House lawyers from their commander in chief, recalls one who was deeply involved at the time, was clear enough: find a way to exercise the full panoply of powers granted the president by Congress and the Constitution. If that meant pushing the boundaries of the law, so be it." On this view, if David Addington's view of the Commander-in-Chief Clause was unorthodox, so be it. It sufficed that someone smart, and in the President's circle -- indeed, his running mate! -- believed it. That's all the Constitution requires.

To me, this is the important issue at the heart of Sandy's inquiry: The problem is not that the President is the final decisionmaker within the Executive branch, but that he has adopted this highly contestable notion of what it means to take care that the law is executed faithfully -- and has done so in a manner that virtually guarantees that his decisions are unreviewable, uncheckable. I would be interested to know what Doug and other defenders of the Administration think about the issues that I raise in this post. For OLC and other Executive branch constitutional actors -- including Presidents --- going forward, I think these are the most important questions arising from this unfortunate episode.

As Doug Kmiec has written:
I am a defender of executive power. No one who has headed the office of legal counsel, designed to preserve the office of the presidency, could be otherwise. But defending the constitutional parameters of presidential power is fundamentally different from defending assertions of power inclined toward excess or abuse. . . .

The duty of the president is to faithfully execute, not invent, the law. Yes, the extent of executive power can be debated, and yes, some political scientists complacently claim that all modern presidents have pressed or exceeded the boundaries of Article II authority. Yet those sworn to "taking care" of the execution of the law must be held to a high standard.
Doug wrote these words as a prelude to a sharply worded critique of President Clinton's reading of the law in some of his Executive orders. Surely, if Doug believes such strong criticisms were apt in the case of some Clinton Executive orders that were of relatively modest import -- and that were publicly promulgated and defended -- then perhaps he and others who were so quick to criticize the alleged constitutional deficiencies of the Clinton Administration (see, e.g., Ted Olson's chapter in the same volume) might apply just a bit of that same scrutiny to the much more profound constitutional crises that we now face. Where's that "high standard" now that we really need it?

Sunday, May 20, 2007

Professional competence

Sandy Levinson

One of the things that both Marty Lederman and Doug Kmiec agree on is that the President is authorized to disagree with--and thus, presumably, to "override"--OLC opinons that he/she objects to. The President is being treated as a defacto "supreme court" within the Executive Branch, who has the last word. We are discussing this now within the context of the Comey "hospital visit" and the interpretation of FISA. But another notable example is when President George H.W. Bush ordered the Solicitor General to change the argument being made by the US with regard to remedying the existence of historically black colleges in Mississippi, the result, obviously, of constitutionally illegitimate segregation by Mississippi over a period of many decades. (This might have involved the Fordice case, but I'm not sure.) The US had submitted a brief, I believe, for restructuring Mississippi higher eduction according to the principle of Green v. New Kent County, which requires, at least as a formal matter, the eradication, if at all possible, of "racially identifiable" schools in favor of "just schools." A number of presidents of historically black colleges protested, and, of course, there is a good argument, made most eloquently by Justice Thomas, that historically black schools have played an extremely valuable role within the African-American community. In any event, President Bush ordered a change of argument and, as I recall, the ultimate brief submitted by Lawrence Wallace for the Solicitor General took cognizance of the change of position.

What I find fascinating about all of this is not the notion that the President has final authority, but, rather, figuring out exactly what the basis is by which a non-lawyer President, including both of the Bushes, comes to a conclusion that the OLC (or the SG) is "wrong" on an important matter of constitutional law. (Should we automatically be more deferential to lawyer-presidents like Richard Nixon or Bill Clinton?) A very important goal of the casebook that I co-edit (along with Jack, Akhil Reed Amar, and Reva Siegel)is to raise just such questions about personal and institutional competence. Indeed, after a brief introductory chapter, the book functionally begins with an extensive examination of the constitutionality of the Bank of the United States. Students begin by reading a strong speech by James Madison, made to his colleagues in the House of Representatives, that it was unconstitutional, though both Houses rejected this argument. (This obviously raises important questions about originalism, since if Madison is not an authoritative source on original meaning, however construed, who is? In this context, though, that's a digression.) But much more to the point is that George Washington, as is well known, asked the three members of his Cabinet, Jefferson, Hamilton, and Edmund Randolph, the first AG of the United States, to write memoranda on the constitutionality of the Bank, as he was deciding whether or not he had a duty to veto it. Both Jefferson and Randolph believed it was unconstitutional; Hamilton, of course, thought it was perfectly constitutional, and, as we all know, Washington followed the advice of the Secretary of the Treasury rather than his Attorney General who was explicitly authorized by statute to issue opinions on constitutional questions (and there is obviously no bar to the AG issuing "advisory opinions").

We ask our students, after they read the Jefferson, Randolph, and Hamilton opinions, to reflect on the fact that Washington, a non-lawyer, came to the conclusion he did. We ask them if his status as a non-lawyer is "relevant to assessing the legitimacy of Washington's conclusion as to the constitutionality of the Bank?"

With regard to assessing constitutional questions, there are two (polar) possibilities:
1) One needs to be a trained lawyer in order to have an informed opinion on what the Constituiton means. We do not ask the laity to make medical diagnoses and recommend treatment protocols; similarly, we should not ask a member of the laity to make legal diagnoses or prescribe remedies that requrie grappling with constitutional meaning. (I note, again perhaps as a digression, that there is deep disagreement right now on the extent to which one should defer to military professionals in making assessments about the likely consequences of current US policy in Iraq, as against coming to one's own conclusions, even if the ones in question have never spent a day in the military, let alone graduated from West Point.)
2) The Constitution does not in fact require that one be a trained lawyer in order to have informed judgments about what it means. Any good-faith member--and I use the adjective advisedly--of the community constituted by the Constitution--i.e., "We the People"--can engage in constitutional interpretation. Perhaps there is an obligation to become minimally informed about competing views, as Washington most certainly did, but there is no obligation to attend law school, pass a bar exam, or otherwise demonstrate one's "professional qualifications" in order to reach respectable--perhaps even, as with presidents and the OLC, "binding"-- conclusions. In my book Constitutional Faith, I described this as "constitutional protestantism," premised on the "lawyerhood of all citizens" and the rejection of the need for an "expert" clergy--ultimately, the Vatican or its secular equivalents such as the Supreme Court-- to whom the members of the "faith community" must submit.

Given my own preference for such a "protestant" approach, I am not prepared to reject out of hand the ability of an untrained person like George W. Bush to override the OLC or, indeed, the Supreme Court if need be. This is why I agree with Marty and Walter Dellinger and others who criticized what appeared to be the ABA denunciation of the very idea of "signing statements. But, of course, the signing statements, for better and worse, were based on the "expert" legal analysis of John Yoo and others within the OLC--seemingly endorsed, in at least many respects, by Doug Kmiec. The "hospital visit" drama appears to involve far more independent decisionmaking by the White House. Still, I presume, as a matter of fact, that Bush had lawyers within the White House--David Addington, most certainly--who were willing to denounce the caution of Jack Goldsmith and others. So what? This doesn't negate the fact that George W. Bush, whatever one thinks of him, is not a trained lawyer and has no "professional competence" to adjudicate the dispute between Goldsmith and Addington. (Indeed, when running for re-election as Texas' governor in 1998, I believe that he explicitly evaded answering some questions about the operation of the death penalty system in Texas by proclaiming his lack of professional expertise!)

So my genuine question is why anyone concedes the "right" of a non-law-trained President to override even opinions of the OLC or SG. Does one in fact have to endorse a quite radical notion of "constitutional protestantism" in order to make the argument work, or is this a special prerogative of Presidents and not, say, ordinary citizens?

Douglas Kmiec Responds to Marty Lederman

Guest Blogger

Douglas Kmiec

From: Kmiec, Douglas
To: marty.lederman@comcast.net
Sent: Saturday, May 19, 2007 6:31 PM
Subject: Former DAG Comey

Marty

I tried to post the comment somewhere on the Bakinization site, but not sure whether I did so successfully. In any event, my respect for your work prompts me to send this to you directly. If you are so inclined, you may post it on the site if I have sent it into cyberspace.

I am old fashioned enough not to know the etiquette of how best to respond in gratitude to so many readers who have taken the time to write here or to me personally, either agreeing or disagreeing with my commentary. Thank you for taking the time to share your thoughts.

First, let me reaffirm my description of Mr. Comey as an admirable fellow. I especially admire Mr. Comey's forthrightness and genuine concern for his professional responsibility; though I think it important that good men like him not feel the necessity to resign over interpretative disagreement. With much respect for and agreement with Professor Tamanaha's insights on the need to avoid opportunistic indeterminacy, I still believe the President's authority for the terrorist surveillance program is a closer question than he apparently does. In part, this is premised upon the OLC analysis or "white paper" that Mr. Gonzales and the Department have since relied upon in public testimony, but it is also because of older, unaddressed constitutional concerns raised by Griffen Bell with regard to application to FISA in war time.

Instrumentally, were it not a close question for Mr. Comey as well, I do not understand how, after meeting with the President, he could modify the surveillance program to eliminate his stated legal objection. Were the "exclusivity" language in FISA as absolute as Marty's reference to the criminal liability under section 1809 implies, mere tinkering with a program that, until recently, was not operating with a FISA warrant or some other as yet publicly unidentified approval or order of the FISA court, would not be capable of obviating the legitimate statutory concerns.

Mr. Comey was especially to be applauded for his unwillingness in testimony to transmute his disagreement with Mr. Gonzales over the scope of the President's authority to undertake war-time surveillance without the particular certification in issue into a claim of "illegality."

What outrages many was the seeming nefariousness of the hospital visit. Here, I did think Mr. Comey's testimony was "histrionic" -- that is, "of a theatrical quality." This does not mean I disbelieve his recounting of the scene, I just think the sirened arrival at the hospital, breathless rush up the stairs, and Ashcroft's rising from the bed, and so forth, was vividly re-told. It is fair to say, I believe, that Mr. Comey saw no justification for the "hospital visit." As I indicated in the essay, I too am "mystified" by what on the surface appears to be an "ethically dubious" attempt to pursue a futile certification from a man recused and critically ill in the hospital. (Please note, as one of your astute readers observed, this terminology was not aimed at Mr. Comey as Professor Lederman suggested. I apologize that my late night sentence construction misled Marty in this regard.). I speculate, but do not know, that Mr. Gonzales had reached the conclusion that this extraordinary contact with Mr. Ashcroft was necessary because an interruption in the on-going terrorist surveillance effort would seriously jeopardize the security of the nation and he intended to ascertain whether Mr. Ashcroft concurred and was well enough to rescind his recusal in light of that possible concurrence. Marty's reference to section 2511(2)(a)(ii)does not alter my supposition; rather, it bolsters the view that the program could well have been interrupted in a fashion that those concerned with gaps in terrorist intercepts would find to be an unacceptable risk for the country.

Overall, the purpose of my commentary was largely to raise a caution about the undifferentiated likening of a dispute over the extent of the president's war powers to distortions of the rule of law we know as Watergate. To disagree over the interpretation of Constitution or statute, especially where that disagreement is consequential to the nation's well-being, is not to indulge in corrupt or venal behavior. Of course, to be open to that view one does need to see the FISA authority question as not, to pick a regrettable phrase employed elsewhere a "slam dunk" against such authority.

Unfortunately, one of the now regrettable realities is that, for some, the dislike and distrust of either the President or Mr. Gonzales or both has become so intense, that it is difficult to outline legal argument without partisanship obstructing constructive dialog. Goodness knows, I myself have been highly critical of unnecessarily gratuitous and indeterminate presidential power claims in signing statements and the closed-mindedness -- revealed only after profound damage has been done to Iraq and the moral footing of the United States -- but, in good faith, I am holding onto the belief that it is possible to defend the separation of powers, including its presidential dimensions, without being understood only as a Bush apologist.

One of your readers asked about my own work in OLC. It is somewhat off-topic, so I will not dwell on it, other than to note that my career in OLC ended shortly after I issued a legal opinion that interpreted the Rehabilitation Act and related statutes as protecting those with asymptomatic HIV against discrimination in the administration of government programs. At the time, more than one person in the White House and in OLC, itself, told me that was either a politically imprudent thing to do or was not obviously sustained by the legislative history of the Act. The first concern, political acceptability, should have no bearing on OLC's work. The latter consideration, whether I correctly grasped the textual meaning of Congress' intent was perhaps arguable, but if President Reagan or then- campaigning George H.W. Bush had disagreed with my exercise of legal judgment, I would have conceded their authority to override my conclusion without thinking I needed to resign. Of course, if the President seldom found my advice useful, that would be a different matter. As it was, the politics of elections allowed President-elect Bush to make his own unfettered choice of who should and should not be removed from a presidential appointment without explaining himself to me – but then, I may be wandering into another topic that involves Mr. Gonzales.

As always, I have benefitted greatly from the commentary on this site, and of course, I am most grateful for your charitable efforts to give me a different view of matters.

Respectfully,

Douglas Kmiec

Saturday, May 19, 2007

The Meaning of 2008-- Partisan Entrenchment or Constitutional Moment?

JB

Tom Goldstein probably doesn't realize it, but his very interesting analysis of the effect of the 2008 election on the Supreme Court makes the case for Sandy Levinson's and my theory of partisan entrenchment in contrast to my friend and colleague Bruce Ackerman's theory of constitutional moments.

Let me explain.

Bruce Ackerman has famously argued that constitutional revolutions occur as a result of significant mobilizations by the American people over a relatively short space of time. After a triggering event, a national election signals a major constitutional transformation, and a further election ratifies the fact that a transformation has occurred, followed by acceptance of the new constitutional regime by the losing side. In Ackerman's view, constitutional transformations occur because Americans self-consciously choose them, and then signal and ratify these transformations through key elections which are "about" whether to proceed with the transformation.

By contrast, Sandy Levinson and I argue that constitutional transformations occur through the cumulative effects of what we call "partisan entrenchment," in which Presidents stock the federal judiciary with like-minded jurists. If a party can make enough appointments in a sufficiently short space of time, doctrines start to change. Our theory assumes that there are many contingencies in this process: for example, Presidents sometimes make mistakes in who they appoint. Moreover, the membership and ideological coherence of political parties shift over time, so that even if a party appoints every open Supreme Court seat from 1968 through 1993 (as the Republicans did) changes in the party's coalition may prevent a clear ideological transformation of doctrine. (Thus, even though Harry Blackmun and John Paul Stevens were centrist Republicans in 1969 and 1975, respectively, they are well to the left of the contemporary Republican coalition).

Unlike Ackerman, we also argue that the process of constitutional change may be quite gradual and that the public does not have to engage in self-conscious referenda on constitutional transformation. Moreover, we do not assume that the effects of partisan entrenchment are necessarily legitimate, only that they keep the Supreme Court roughly in sync with the dominant national coalition. Ackerman, by contrast, believes that constitutional moments are legitimate amendments to the Constitution outside of Article V.

Both we and Ackerman agree that if the public keeps returning a party to the White House, eventually this will result in changes in constitutional doctrine. For Ackerman, however, something more is needed-- a self-conscious mobilization on the part of the electorate demanding a constitutional transformation. Our explanation of the New Deal transformation is that the public kept reelecting Franklin Roosevelt to the White House and Democrats to the Senate, so that Roosevelt was able to replace eight Justices by the time the Court decided United States v. Darby and Wickard v. Filburn. If you keep returning the same party to the White House over and over again, eventually you are going to get significant changes in constitutional doctrine. Ackerman agrees, but argues that what was crucial was that the American public in the 1936 election self consciously sought and approved of constitutional transformation.

Which brings us back to Tom Goldstein's post. Goldstein points out that there are three Supreme Court seats in play as a result of the next election: Stevens, who is 87, Souter, who is 67 but is said to want to leave the Court, and Ginsburg, who is 74. All three are liberals. If the Democrats win in 2008, they will preserve the current ideological balance for the foreseeable future. But if the Republicans win the next Presidential election, and appoint new conservative Justices, they will have produced a six or seven person conservative majority. At that point, we might witness wholesale constitutional transformations in a number of areas of law, including affirmative action, abortion and gay rights, criminal procedure, and religion. It would be in some respects the vindication of the constitutional agenda of the New Right.

What is interesting about this scenario is that it would not happen because of a widespread and mobilized public support for major constitutional transformation. There has been no triggering or ratifying election in Ackerman's terms. The major Republican victories occurred back in 1980 and 1984 and in the Congressional elections of 1994, and, in Ackerman's view, no major constitutional transformation emerged from them. There have been no recent electoral landslides for the Republicans as in 1932 and 1936. Indeed, the opposition party won both houses of Congress in 2006, signaling, if anything, disappointment with the Republicans' one-party stewardship of the government.

Rather, the constitutional transformation, if it occurred, would happen because the Republicans won the White House in 1980, 1984, 1988, 2000, 2004 and 2008. Because they kept piling up Republican appointments, they eventually produced a situation where there were simply lots of conservative Justices who were also younger than most of the remaining liberals, setting up the possibility of a tipping point.

This tipping point phenomenon has happened before, in the period between 1962 to 1969. It was called the Warren Court, and it saw a major transformation in American constitutional law.

Now if the Democrats retain the Senate in 2008, they will probably force a Republican President to moderate his choices. Nevertheless, it is likely that replacing Stevens, Souter, and/or Ginsburg with two or three Republican conservatives would be enough to make pretty significant changes in the law. These changes might result in Democratic pushback, and possibly Democratic victories down the road. But it would be very hard to undo the changes quickly, just as it was hard for the Burger Court to undo everything the Warren Court did. That would not make sense under Ackerman's theory of constitutional transformation-- and he would regard the changes as illegitimate because they were not the result of a mobilized electorate demanding constitutional transformation. But it would make sense under our theory of partisan entrenchment, which is agnostic on the question of whether these changes are legitimate. (Of course, if the Democrats win in 2008, they will more or less retain the status quo, which will be consistent with both theories.)

What would it take for Ackerman's theory to recognize these changes as legitimate transformations of the Constitution? Well, it would probably require that the Republicans win the 2008 Presidential election by a decisive margin (as well as one or both Houses of Congress) and that the country demonstrate that it clearly wants to embrace a constitutional transformation along the lines the Bush Administration has sought for the past seven years. This would have to be followed by a confirming election that increased Republican majorities in 2010 and/or 2012. At that point, Democrats would have to agree that something significant happened in the country to which they had to acquiesce.

In Levinson's and my theory, even if the Republicans squeak through in 2008 (as they did in 2000) or win a modest majority (as they did in 2004), while the Democrats retain the Senate, that would give the Republicans the opportunity to transform the Constitution. What kind of transformation we would get, of course, would depend on the politics of the incoming President (Giuliani, McCain or Romney) and on the particular type of Justices he appoints.

So who has a better theory of constitutional transformations, Bruce Ackerman or Sandy and myself? Only time-- and possibly the 2008 elections-- will tell.

UPDATE: Mark Field points out in the comments that there is a third possibility: 2008 might be a transformative election creating a new Democratic majority that pushes for a progressive transformation of the Constitution. Far be it from me to downplay this possibility. If it does happen, however, it would create an interesting configuration among the three branches not seen since the New Deal-- a liberal Democratic President and Congress facing a conservative majority on the Supreme Court. Even with liberal replacements for Stevens, Souter, and Ginsburg, there is no way the Democrats can gain a working majority on the Court until Kennedy or Scalia retire. This raises the possibility that an energetic Democrat would receive little help from the Supreme Court, and might even be opposed by the Court on some issues, leading to a constitutional showdown of the type we saw during the 1930s.

All this, of course, is mere speculation. We do not know what sort of Administration the next Democratic President might create. Sandy Levinson and I have suggested that the next President, whether Democrat or Republican, will probably continue elements of what we call the National Surveillance State, which will continues to shift increasing amounts of power to the Executive in order to gather and analyze information believed necessary to promote National Security.

Paul Wolfowitz's Girlfriend

Mark Graber

The most interesting non-story of the week is that a major player in the Bush administration, Paul Wolfowitz, has a girlfriend who is described without contestation as his "intimate companion." No one has asked for assurances that they plan to remain celibate before marriage. No one has asked what they have done when birth control has failed (or what they plan to do should birth control fail).

The best defense in the United States in the year 2007 of abortion and rights to sexual intimacy is that the above is normal behavior in our society. We do not expect single government officials (or, for that matter, our single colleagues) to be celibate and think inquiry into their birth control practices (including what happens should birth control fail) a gross violation of their privacy. Whether in some metaphysical sense this is a gross violation of privacy is a different question. We could easily imagine a different political university in which the present non-story about Wolfowitz was the major story. Indeed, to some degree, though not to the degree sometimes imagined, Americans once lived in that universe. The point is that we do not live in that universe now. Whether people have a right to abortion and sexual intimacy that transcends time, space, and politics is a question best left to a certain kind of moral philosopher. But the non-scandal aspects of the Wolfowitz scandal demonstrate an understanding that the right to privacy at present covers his relationship with his girl friend, and if Paul Wolfowitz has that right to privacy, so should all persons involved in similarly intimate heterosexual and homosexual relationships.

Friday, May 18, 2007

Shame on Conservatives Who Hide Behind the Indeterminacy of Law

Brian Tamanaha

Although I may disagree with their politics, I admire principled conservatives, and I often read their work to obtain insights. That’s why it is especially disappointing for me to read a key argument put forth by Douglas Kmiec, who I respect, in his op-ed (taken apart by Marty below) dismissal of Comey’s testimony, for it smacks of a misleading duck behind the indeterminacy curtain.

Here is the offending line: “The FISA-presidential power spat invites reasonable minds to disagree, as Comey and Attorney General Alberto Gonzales do.”

Reasonable minds can indeed disagree about the law, and often do on many issues. But that begs the question of whether this is one of those situations.

To get to the heart of what matters here, an important distinction must be made between an arguable position, and a viable or reasonable position.

With sufficient imagination and motivation, a skilled lawyer can come up with an argument on just about every legal issue. When I worked as a public defender, after staring long enough at a hopeless position, I could usually work up some argument for why the evidence should be suppressed or the charges dismissed. But most of these arguments, I knew, were stretches, legally arguable but obviously weak, losers out of the box. Sometimes the arguments I came up with were reasonable, through the outcome was hard to predict. And sometimes the arguments were strong (which still did not insure that the judge would rule in my favor). Recognizing the qualitative difference between these arguments is an aspect of the judgment required to be a lawyer.

Ordinary legal indeterminacy of this sort, a fact of the law, does not mean that every legal position one comes up with, while arguable, is viable or persuasive, or that every disagreement on a legal issue is reasonable. Kmiec, Comey, and Gonzales know this, as does every lawyer (1.1 million and counting).

Ashcroft and Comey have shown every indication that they strongly support the Bush Administration, and were completely on board in doing whatever it takes to fight terrorism—up to the utmost limit of the outer stretches of the law. There is little doubt that, under the circumstances surrounding that now infamous evening, Comey would have accepted any minimally plausible legal interpretation that would have allowed the Bush Administration to continue its desired activities.

The obvious conclusion to be drawn: Gonzales’s legal justification, while perhaps arguable, was extraordinarily weak, beyond the pale of plausibility.

Given this reality, painting the situation as a legal disagreement between “reasonable minds” is a distortion. Kmiec knows better.

Constitutional Redemption

JB

I've just posted the second installment of my theory of constitutional interpretation on SSRN. Entitled Original Meaning and Constitutional Redemption, it is a response to critiques of my earlier piece, Abortion and Original Meaning, which argued for an originalist approach I call the method of text and principle. The two articles, plus the commentators' criticisms, will appear in a special symposium issue of Constitutional Commentary this fall. The article sums up many of the themes of my previous work. Here is the abstract:

This article responds to criticisms of my theory of constitutional interpretation offered in Abortion and Original Meaning, http://papers.ssrn.com/abstract=925558, and expands on various parts of the theory.

Fidelity to original meaning follows from our commitment to a written constitution that preserves enforceable legal meaning over time. Originalist lawyers and scholars shifted from original intention and original understanding theories to original meaning in the 1980s to answer important criticisms of originalism. They assumed that original meaning originalism would support most of the same criticisms of judicial activism and living constitutionalism that had motivated the turn to originalism. The distinction I emphasize between original meaning and original expected application was not salient in these debates. Nevertheless, once we recognize the full implications of this distinction, original meaning originalism is fully compatible with living constitutionalism.

Constitutional interpretation is premised on faith in the constitutional project. This is a faith that the constitutional system as a whole is worthy of legitimacy and respect or will come to be so over time, even if important aspects of the document and its associated institutions are imperfect and unjust. Interpretive fidelity thus requires faith in the redeemability of the Constitution over time; hence my theory of interpretation is a theory of redemptive constitutionalism.

The Constitution's text and principles are central resources that make this redemption possible. Like many constitutions, the U.S. Constitution contains open ended clauses that delegate many questions to future generations and leave ample room for constitutional construction to flesh out and implement constitutional language. Constitution makers adopt these clauses– and many other features of constitutions besides-- to channel and discipline future political judgment, not simply to forestall it.

A successful constitution like America's must simultaneously serve three functions: It must be basic law– a framework for governance that allocates powers and responsibilities. It must be higher law– a source of aspiration and a reflection of values that stand above ordinary law and hold it to account. And it must be our law– an object of attachment that we see as the product of our collective efforts as a people. Viewing the Constitution as “our law” involves a collective identification with those who came before us and those who will come after us. The Constitution as “our law” constitutes us as a people that extends over time. This collective identification is a constitutional story that allows us to regard the Constitution as our own even if we never officially consented to it.

The theory of text and principle serves these three functions better than theories that tie constitutional principles closely to original expected application. A theory that rejects delegation to the future does not function well as basic law because it misunderstands why constitutional adopters adopt open-textured language; it cannot operate as higher law because it so distrusts aspirationalism. Finally, it fails as our law, because it does not allow us to see our present day values– for example, our commitment to sex equality- as the application and fulfillment of past principles and commitments. It must treat these achievements as mistakes that we now maintain out of reliance on precedent or because they would now be too politically embarrassing to discard.

Social and political movements have repeatedly argued for change by calling on the constitution's text and its underlying principles. Constitutional change occurs because Americans persuade each other about the best meaning of constitutional text and principle in their own time. These debates and political struggles help generate Americans' investment in the Constitution as their Constitution and they create a platform for the possibility– but not the certainty- of its redemption in history.

Lawyers, judges and legal scholars have no normative obligation to listen to the claims of any particular political or social movement. However, as a descriptive matter they regularly translate claims of constitutional politics into claims about constitutional law. Constitutional theories offer a language for us to defend and criticize the Constitution-in-practice with the hope of moving it closer to our ideals of what the Constitution should be. They allow us to fight for the Constitution's redemption over time. Struggles over constitutional interpretation are part of the process that makes the Constitution “our law,” that generates our attachment to it– even in “dark times” when our views are not shared by the majority– and that helps support its overall legitimacy.

Thursday, May 17, 2007

Is This the Best the Administration's Surrogates Can Do? (with speculation about why the White House was so eager to obtain Ashcroft's signature)

Marty Lederman

Doug Kmiec, head of OLC at the end of the Reagan Administration, has a profoundly misguided Op-Ed in tomorrow's Washington Post in which he tries to minimize the import of James Comey's testimony -- and even goes so far as to insinuate that Comey, Ashcroft and Goldsmith are the ones who acted in an ethically dubious manner!

Where to begin?

1. Kmiec kicks off his Op-Ed by calling Comey's testimony "staggeringly histrionic." Which is, uh, "staggeringly" wrong. Comey is hardly an eager or self-aggrandizing witness. He is about as credible as any witness you'll ever see, supremely cautious in what he says -- he even repeatedly declines to take the bait when some Senators try to elicit testimony that he knows will appear as sound bites damaging to the President and Attorney General -- and nothing about his presentation was the least bit histrionic. Indeed, it's about as far from histrionics as one can imagine. But don't take my word for it. Just watch the video.

2. Kmiec then attacks Senator Specter for suggesting that the hospital incident has an air of the Saturday Night Massacre about it -- "the comparison to Watergate is wholly inapt," writes Kmiec, because "Watergate involved a real crime."

Well, this case involves a "real crime," too -- systematic violations of a very important federal statute designed to protect Americans from wiretapping by their government, 18 U.S.C. 1809. But that's not really the central point for these purposes, because Specter's obvious reference was simply to the remarkable parallel in that the President and his closest aides had so egregiously departed from institutional legal norms that the entire top echelon of the Justice Department was prepared to resign in a manner that would signal to the public that something was greviously awry within the Administration. Attorney General Richardson and DAG Ruckelshaus did not resign in October 1973 because they concluded there had been a "burglary for purposes of political dirty tricks," in Kmiec's words. The burglary was an old story. They resigned because the President insisted that they fire prosecutor Archibald Cox when Cox subpoened Nixon's tapes. In other words, Nixon was trying to subvert the established procedures of the Justice Department. As were Bush and Gonzales.

3. Kmiec next writes that "[e]ven if OLC attorneys had been unanimous that the president lacked the legal authority to conduct the kind of military intelligence-gathering that every other wartime president has pursued, that would hardly warrant the conclusion that the president had 'broken the law.'"

Actually, it would. The OLC conclusion was not that the President "lacked authority" in the first instance to order the surveillance -- it was, instead, that a duly enacted statute, FISA, flatly prohibited the President from exercising what would otherwise be his constitutional authority -- and that Article II of the Constitution does not give the President the power to disregard such a statutory restriction. (To the extent past Presidents have engaged in this sort of electronic surveillance in prior wars (unlikely), it was not in violation of a statutory limit.)

4. Then we get to the heart of the matter. Kmiec focuses on two points that happen to be correct, but that do not support his attack on Comey.

First, he notes that the signature that Gonzales and Card were trying to procure from the incapacitated John Ashcroft was a protocol that the President himself had established "to internally discipline an exercise of power."

Second, Kmiec stresses that for purposes of establishing the official legal views of the Executive branch, OLC's legal judgments are subject to being overridden by the President himself.

These assertions are both true. (OLC's legal judgments are binding within the Executive branch, except in the rare cases where they are overridden by OLC itself, the Attorney General, or the President.)

But there is no reason to think that Comey, Ashcroft or Goldsmith thought otherwise. Of course they did not.

Which raises the two central mysteries of the case that Kmiec mangles:

(i) Why did the President seek the AG's signature, anyway, if it wasn't required by statute and the President could have the final word?

And,

(ii) If the President does have the final say, why did the entire command structure of the Justice Department threaten to resign when the President exercised that prerogative?

Kmiec himself is befuddled by the first question: "Gonzales was obviously wrong to think that the signature of a man who recused his office because of illness would have any legal purchase, and why he would pursue it from an official under sedation -- if that is what was intended by his trip to the hospital -- is mystifying."

Why, indeed.

There are probably two reasons that Ashcroft's certification was thought to be of such importance. The first was that DOJ sign-off was necessary to give some comfort to the NSA. If you were NSA General Counsel, how would you react if the President asked you to engage in conduct that is on its face criminal; if you learned that Jack Goldsmith and John Ashcroft of all officials, concluded that there was no legal way around the statutory restriction and refused to be associated with it; and if the only justification the President offered you for obeying his order was that he was adopting David Addington's, uh, shall we say idiosyncratic, view of the Commander-in-Chief Clause, notwithstanding that such attorneys as Goldsmith and Ashcroft thought it was untenable?

Would you ask your employees to go ahead and do things that FISA prohibits under those circumstances?

Second, the AG signature might have been necessary to induce the requisite private actors -- telcom companies in particular -- to continue to go along with the program.

18 U.S.C. 2511(2)(a)(ii) provides that "providers of wire or electronic communication service, their officers, employees, and agents, landlords, custodians, or other persons, are authorized to provide information, facilities, or technical assistance to persons authorized by law to intercept wire, oral, or electronic communications or to conduct electronic surveillance, as defined in section 101 of the Foreign Intelligence Surveillance Act of 1978, if such provider, its officers, employees, or agents, landlord, custodian, or other specified person, has been provided with -- (A) a court order directing such assistance signed by the authorizing judge, or (B) a certification in writing by a person specified in section 2518(7) of this title [not relevant here] or the Attorney General of the United States that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required." That statute further provides, importantly, that "[n]o cause of action shall lie in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or certification under this chapter."

Now, imagine you are the CEO or General Counsel of a telcom company that has been assisting the NSA in electronic surveillance for two years, assured that what appear to be your violations of FISA do not subject you to legal exposure because you have been relying on the certification "by the Attorney General of the United States that no warrant or court order is required by law." And then one day,the AG's signature disappears from the certification -- replaced only by the President's own signature. What do you do?

This is, to be sure, speculation. But let's assume that one or both of these are the reasons that the White House so desperately wanted the AG's certification -- because even the signature of a sedated AG would have "legal purchase," in Doug's words, for the audiences that mattered (the NSA and the telecom companies). And the Acting AG had refused to provide it. Well, in that case, one can imagine why two of the top-ranking officials in the White House might try to rouse the AG from his hospital stupor to induce him to provide his John Hancock. But if so, isn't there something just a tiny bit disturbing -- creepy, even -- about trying to obtain such a signature from a sedated man who has formally delegated his authority to the man who just told you "no"? Hmmmmm . . .

OK, so if Comey and Co. understood that the legal call was ultimately the President's to make, why the threatened resignations? Well, perhaps it's enough that Goldsmith, Comey and Ashcroft had personally witnessed this extraordinarily unorthodox and unseemly turn of events. But the precipitating incident, it appears, is that even after Ashcroft heroically roused himself to tell Gonzales and Card to take their certification papers and go home, the President went ahead with the program anyway -- opting to embrace the Vice President's extreme constitutional views even after a series of DOJ officials, in extremely trying circumstances with so much at stake, had bravely and resolutely told the President that those views of the Constitution were dead wrong.

If the President ignored that legal judgment and run roughshod over the views of OLC, the DAG and AG, then of course the honorable course of action would be to resign. It is not that Comey, et al., thought the President was powerless to overrule OLC -- they knew full well that he could. It is simply that if the President does not have faith in OLC's legal judgment about how he must "take care that the law is faithfully executed" in these extraordinary circumstances . . . well, then, their legal advice, and OLC's traditional role as the principal internal check on executive overreaching, has been fatally compromised. And then resignation is the honorable thing to do.

Kmiec describes this as no more than an everyday "spat" in which "reasonable legal minds" simply disagreed about an arcane issue of some legal technicality. If by this point any of my readers truly believes that is what was happening here, then there's nothing I could possibly write that would convince you otherwise. Obviously, that is not the way that Ashcroft, Comey and Goldsmith saw it -- for which we can be extremely grateful.

I do not mean to be suggesting that the AG, DAG and head of OLC should resign any time a President chooses not to follow an OLC decision. But sometimes one should. And this is such a case -- involving a criminal statute designed to limit the President's authority, where the President defends his disregard of the felony restrictions by asserting that the statute is unconstitutional when applied to him on the basis of a theory lacking any substantial basis in the Constitution's text and history -- a theory that OLC appears to have expended considerable institutional capital in exposing as misguided. [Thanks to Walter Dellinger and Larry Tribe for their thoughts on this distinction.]

That's a far cry from some minor intramural "spat."

5. Finally, there's Kmiec's closing paragraph:
Bush administration officials are often portrayed as seeking a revival of diminished executive authority. At this point, it simply would be useful if they understood it and did not engage in futile and ethically dubious maneuvers or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment.
Yikes. This paragraph is, at best, simply bizarre. For example:

-- "Bush administration officials are often portrayed as seeking a revival of diminished executive authority." WHA? Since when? Which officials would those be who are seeking a revivial of diminished Executive authority? [UPDATE: A former colleague writes to suggest that perhaps what Kmiec meant to say here is something like "Bush administration officials are often portrayed as seeking a revival of executive authority that had been diminished in previous years." That's certainly possible -- but if so, it wouldn't make the remainder of the paragraph any more explicable: It would be useful if Comey and Goldsmith understood that? If one thing is clear, it's that they understood all-too-well -- better and earlier than anyone else -- just what Dick Cheney and David Addington were trying to "revive"; indeed, that's what prompted the DOJ officials to threaten to resign.]

-- "At this point, it simply would be useful if they understood it" (if who understood what? if Comey and Ashcroft and Goldsmith understood that Bush administration officials are "often portrayed as seeking a revival of diminished executive authority"?)

-- "and did not engage in futile and ethically dubious maneuvers"

futile? Their threatened resignation successfully prevented what they saw as lawless executive aggrandizement.

-- "ethically dubious maneuvers"?! What on earth is Kmiec referring to here? Is he suggesting that Comey has acted unethically?! I'd call that a calumny -- except that this paragraph makes so little sense that I'm not sure what to call it.

-- "or contemplate resigning every time there is an honest disagreement over the scope of presidential power or its sub-assignment."

Nope, not "every time." Only in those exceedingly rare historical cases when the "disagreement" causes the President to act in ways that the Justice Department has determined to be unlawful and that threaten to fundamentally alter the checks and balances of our constitutional system. Saturday night massacres don't happen every day of the week, after all.

P.S. One final aside. This is really neither here nor there -- indeed, the comment in Kmiec's column is completely out of the blue and not relevant to anything at issue in this controversy -- but he is simply wrong to write that "Executive agencies can't sue each other over contested points of law, since they all work for the president." Really, they can -- I've seen it done! See generally Michael Herz, United States v. United States: When Can the Federal Government Sue Itself?, 32 Wm. & Mary L. Rev. 893 (1991).

The Warm Republican Embrace of Torture

Marty Lederman

Don't let the fast-moving Comey affair distract you from the other outrage of the month -- the fact that at the same time high-ranking military leaders are disclaiming torture and abuse in the strongest possible terms, most of the leading presidential candidates of the Republican Party have been tripping over themselves in an effort to be the candidate who will commit to greatest number of war crimes, treaty breaches and statutory violations if he should be so fortunate as to be elected Commander in Chief of the Army and Navy.

Absolutely do not miss must-reads from Jack here, from David Luban yesterday, and from Andrew Sullivan today.

You Do Want to Know What John Yoo Thinks About All This, Right?

Marty Lederman

Well, fortunately for us we have this recent interview conducted by Frontline, in which John paints a fairly clear picture about the sorts of programs that he authorized (including data mining that was prohibited by Congress), and the legal justifications, based on Article II, that were the underpinnings of the authorization. It's consistent with the story he tells in his recent book. The authorization was likely to be remarkably indiscriminate, and it was based on a theory that the Commander in Chief can disregard any laws that he thinks get in the way of how best to defeat the enemy: "There's a law greater than FISA, which is the Constitution . . . ."

Begin reading with the question about one-third the way down -- "Can the government pull out the communications it wants, or does it have to have access to the entire flow?"

See other interviews here, including with James Baker of the DOJ Office of Intelligence Policy and Review, perhaps the DOJ official most knowledgeable about the inner workings of FISA.

This is all ancillary to the broadcast that Frontline ran this week, which you can view in its entirety here.

Putting the Pieces Together

Marty Lederman

James Comey's testimony on Tuesday ostensibly was about two distinct topics -- (i) the remarkable hospital-bed drama in March 2004 and the President's subsequent lawbreaking; and (ii) the more recent U.S. Attorney/DOJ-politicization scandal.

But there is an important connection -- a juxtaposition, in truth -- between them. As Justice Stevens sharply remarked at both the beginning and the end of one of his best dissents, "this case has illuminated the character of an institution." Ben Wittes nails it:
At least as Comey relates it, this affair is not one of mere bad judgment or over-aggressiveness. It is a story of profound misconduct on Gonzales's part that, at least in my judgment, borders on the impeachable. Put bluntly, faced with a Justice Department determination that the NSA's program contained prohibitive legal problems, the White House decided to go ahead with it anyway. In pursuit of this goal, Gonzales did two things that both seem unforgivable: He tried to get a seriously ill man to unlawfully exercise powers that had been conveyed to another man and to use those powers to approve a program the department deemed unlawful. Then, when Ashcroft refused, the White House went ahead and authorized the program on its own. In terms of raw power, the president has the ability to take this step. But it constitutes a profound affront to the institutional role of the Justice Department as it has developed. The Justice Department is the part of the government that defines the law for the executive branch. For the White House counsel to defy its judgment on an important legal question is to put the rawest power ahead of the law.

The must-derided John Ashcroft, on the other hand, showed himself when it counted to be a man of courage and substance whom history will surely treat more kindly than did contemporary commentary. Few attorneys general get tested as Ashcroft did that night in 2004. One can disagree with him about a lot of things and still recognize the fact that ultimately, he passed the hardest test: From a hospital bed in intensive care, he stood up for the rule of law. More broadly, the Justice Department seems to have performed admirably across the board--from the OLC having taken its job seriously, to the willingness on the part of the department brass and Mueller to lose their jobs to defend the department's ability to determine the law for the executive branch. Had the story ended with Comey's victory, it would have been an ugly crisis with a happy ending.

But it didn't end there. Less than a year later, Gonzales replaced Ashcroft as Comey's boss. Within a year of that, none of the four people who had stood up to Gonzales in that hospital room remained in government. Goldsmith was already gone. Comey stayed on for a few months and then joined the private sector. He testified that Philbin, who returned to private practice in 2005, was "blocked from a promotion, I believed, as a result of this particular matter." In the long run, in other words, the bad guys won. The ranks of people willing to say no to the White House thinned. And without that strong cadre in the political echelons, the department has suffered terribly. That is what's behind the U.S. attorney scandal and the horrid allegations that career appointees were subjected to political litmus tests.

In the Beginning

Mark Graber

In the beginning, there was the Thomas Road Baptist Church in Virginia. This is where, at age 22, Jerry Falwell began his professional career. His obituaries quickly note this fact, observe how he built his church and flock, then quickly move to Falwell's political career in the 1970s. No mention is made of the issues that first positioned Falwell to become a national figure. The main issue, of course, was racial segregation. For more than a decade, Falwell rose to power by preaching that Brown v. Board of Education, related judicial decisions, and anti-discrimination laws were abominations to the Lord. The heart of social conservatism in America is a set of religious schools founded in the late 1950s and 1960s, and their original purpose was not to ensure students would not be enticed by the prospect of gay marriage. Contemporary social conservatives have, with a good deal of media cooperation, attempted to bury this history. Popular revisionist histories pretend that the Moral Majority was created "ex nihilo" the day Roe v. Wade was decided. This is false. A religious political movement was already on the ground, and that movement had previously been dedicated to a the losing struggle to maintain Jim Crow. There are, of course, many strong pro-life advocates who marched with Martin Luther King at Selma. Opposition to abortion is philosophically perfectly consistent with both liberal racial equality and a good many principles championed by more radical proponents of critical race theory. Still, when we tell the story of the anti-abortion movement as a political movement we should remember the issues that first animated too much of its leadership and mass base.

The Military versus the Politicians on Torture

JB

This Washington Post op-ed by two retired generals, Charles C. Krulak and Joseph P. Hoar, appropriately titled, "It's Our Cage Too," shows that the Petraeus letter condemning torture was hardly an isolated example. Put simply: The military gets it; our political leaders don't.

The American people are understandably fearful about another attack like the one we sustained on Sept. 11, 2001. But it is the duty of the commander in chief to lead the country away from the grip of fear, not into its grasp. Regrettably, at Tuesday night's presidential debate in South Carolina, several Republican candidates revealed a stunning failure to understand this most basic obligation. Indeed, among the candidates, only John McCain demonstrated that he understands the close connection between our security and our values as a nation.

Tenet insists that the CIA program disrupted terrorist plots and saved lives. It is difficult to refute this claim -- not because it is self-evidently true, but because any evidence that might support it remains classified and unknown to all but those who defend the program.

These assertions that "torture works" may reassure a fearful public, but it is a false security. We don't know what's been gained through this fear-driven program. But we do know the consequences.

As has happened with every other nation that has tried to engage in a little bit of torture -- only for the toughest cases, only when nothing else works -- the abuse spread like wildfire, and every captured prisoner became the key to defusing a potential ticking time bomb. Our soldiers in Iraq confront real "ticking time bomb" situations every day, in the form of improvised explosive devices, and any degree of "flexibility" about torture at the top drops down the chain of command like a stone -- the rare exception fast becoming the rule.

To understand the impact this has had on the ground, look at the military's mental health assessment report released earlier this month. The study shows a disturbing level of tolerance for abuse of prisoners in some situations. This underscores what we know as military professionals: Complex situational ethics cannot be applied during the stress of combat. The rules must be firm and absolute; if torture is broached as a possibility, it will become a reality.

Generals Krulak and Hoar are referring to the shameful and ignorant remarks of the Republican Presidential candidates, where each tried to outdo the other in showing how tough and macho they were. Interestingly, only John McCain, who has actually had significant military experience and has actually been tortured, was willing to disagree and say that torture was wrong. Rudy Giuliani tried to hedge by saying he would approve "every method they could think of" but "[i]t shouldn't be torture." McCain would have none of that. He pointed out that the Administration's "enhanced interrogation techniques" were torture.

Mitt Romney, who is now apparently the front-runner in Iowa, was perhaps the most shameless of all:
I'm glad they're at Guantanamo. I don't want them on our soil. I want them on Guantanamo, where they don't get the access to lawyers they get when they're on our soil. I don't want them in our prisons. I want them there.

Some people have said, we ought to close Guantanamo. My view is, we ought to double Guantanamo. We ought to make sure that the terrorists -- (applause) -- and there's no question but that in a setting like that where you have a ticking bomb that the president of the United States -- not the CIA interrogator, the president of the United States -- has to make the call. And enhanced interrogation techniques have to be used -- not torture but enhanced interrogation techniques, yes.
Faced with the catastrophe and the shame of our experience at Guantanamo Bay, Mitt Romney wants to double down. And he wants to engage in the fig leaf of "enhanced interrogation techniques" that McCain was willing to call torture.

It is difficult to assess whether Romney is simply an ignorant fool or whether he believes that his audience is full of ignorant fools. All we know is that the "let's have two Gitmos" line brought applause.

Although John McCain answered this question honorably and appropriately, I have to add that he as not always been so politically courageous on this issue. It is in part because Senator McCain dropped his opposition that we now have the dreadful Military Commissions Act of 2006 which effectively immunized previous "enhanced interrogation techniques" and which makes it very difficult to call the President to account if he engages in them now or in the future. McCain's support for the MCA has enabled torture and whitewashed what the Administration has done. McCain dropped his opposition to the MCA because, in September 2006, he thought it was necessary in order to be a viable candidate for the Republican nomination. He sold his soul, and it is by no means clear that the bargain was worth it.

But listening to the Presidential debates in South Carolina the other night, one gets the sense that his surmise was entirely accurate. He had to support the MCA in order to remain a viable candidate in the Republican party. The Republican Party is the party of Enhanced Interrogation Techniques, and proud of it. Which, as John McCain pointed out, is simply a nice way of saying that it is the the Party of Torture-But-We-Won't-Call-It-That (But-We-Are-Still-Proud-Of-It-Anyway).

And if Mitt Romney is elected, perhaps it will be the party of Two Gitmos. I do hope that reporters repeatedly ask him on the campaign trail why it would be such a good idea to replicate our experience at Guantanamo Bay.

At the South Carolina debates, all the candidates tried to distance themselves from George W. Bush and embrace the mantle of Ronald Reagan. But one of the most poisonous features of the past seven years of this Administration is that Bush has managed to turn his once proud party into the Party of Torture. They are running from his failures in Iraq, but, sad to say, they are not running from this.

What Was "The Program" Before Goldsmith and Comey?

Marty Lederman

"We're doing what?"

That's a quotation from the original Risen & Lichtblau New York Times article that broke the unlawful wiretapping story., attributed to "a senior government official [who] recalled that he was taken aback when he first learned of the operation."

What, indeed, was the nature of the "program" before Goldsmith, Comey and Ashcroft -- those notorious civil libertarian extremists -- called a halt to it, and threatened to resign if the President continued to break the law? And what was the nature and breadth of its legal justification? I am hardly alone in realizing that these are the most important questions arising from the recent Comey testimony. It's the question of the night, all over the Web. (When will the mainstream press catch on? And more importantly, as I asked in my last post -- When will the Congress insist on comprehensive and public hearings, both on this and on the legal support for the Administration's torture practices?)

Was it a full-bore data-mining program of some sort, akin to the TIA program that Congress had de-funded? (John Yoo suggests as much in his new book.) Something involving the FBI as well as the NSA (hence the central role of the FBI Director in the Comey narrative)? A program in which once a U.S. person was suspected of receiving a call from a suspected Al Qaeda individual, that U.S. person's calls were all monitored thereafter? These are among the theories receiving a good deal of speculation this evening. There's a lot of great stuff to read -- this is just the tip of the iceberg:

Glenn Greenwald.

Laura Rozen.

Orin Kerr.

Hilzoy.

Shayana Kadidal.

Paul Kiel, doing so much fine work over at the now-indispensible TPM Muckraker, including the publication of one reader's speculation.

Anonymous Liberal.

In that last post, A.L. wisely goes back to the Risen & Lichtblau story that started it all, which contains some important potential clues. Important excerpts from that December 2005 article:

Several senior government officials say that when the special operation began, there were few controls on it and little formal oversight outside the N.S.A. The agency can choose its eavesdropping targets and does not have to seek approval from Justice Department or other Bush administration officials. Some agency officials wanted nothing to do with the program, apparently fearful of participating in an illegal operation, a former senior Bush administration official said. Before the 2004 election, the official said, some N.S.A. personnel worried that the program might come under scrutiny by Congressional or criminal investigators if Senator John Kerry, the Democratic nominee, was elected president.

In mid-2004, concerns about the program expressed by national security officials, government lawyers and a judge prompted the Bush administration to suspend elements of the program and revamp it.

For the first time, the Justice Department audited the N.S.A. program, several officials said. And to provide more guidance, the Justice Department and the agency expanded and refined a checklist to follow in deciding whether probable cause existed to start monitoring someone's communications, several officials said.

* * * *

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.
As A.L. astutely notes, it is fair to assume that "there was no real guidance as to how far out to expand this 'chain.' As a result, a number of people were likely ensnared in this web who had nothing to do with al Qaeda and nothing even approaching reasonable grounds to be searched."

Wednesday, May 16, 2007

[REDACTED]

David Luban

On April 15, Guantanamo detainee Majid Khan was reviewed by a Combatant Status Review Tribunal; the transcript was released yesterday by the censors. The government alleges that he is a high-value captive, who had been prepped by Khalid Sheikh Mohammed for devastating attacks on the U.S. He denies it.

Majid Khan has also been [REDACTED], or so he alleges.


Exhibit D-b. MAJID KHAN written Statement of Torture for Combatant Status Review Tribunal taken March 2007 by PR 3. [REDACTED].
For me, things got better [REDACTED], and [REDACTED] I am brought to Guantanamo Bay, Cuba. I swear to God this place in some sense worst than CIA jails. I am being mentally torture here [REDACTED].
[REDACTED].
They are getten – getting even with me here under DoD, and making me suffer by mentally torturing me. They know my weaknesses, what drive me crazy and what doesn’t. [REDACTED].

Last fall, Majid Khan was at the center of an amazing piece of litigation: his lawyers filed a motion demanding that they be allowed to see him, and the government opposed it, claiming that the meeting might lead to the disclosure of classified methods of acquiring information. In other words, Majid Khan might tell his lawyers what his captors did to him. Marty posted about this Kafkaesque reply here.

According to the New York Times, Khan’s family says that Khan told them that "Americans had used torture tactics on Majid that included binding his hands and feet in a chair and tightening the bonds every hour."

The Times story continues:

Asked about those accusations, Paul Gimigliano, a C.I.A. spokesman, said that "the United States does not conduct or condone torture," and that "the agency’s terrorist interrogation program has been implemented lawfully."

What the mental torture Majid Khan alleges is, of course, [REDACTED]. But he mentions isolation, and states that out of desperation he cut or chewed through an artery in his arm twice.

The Times:

In response, a Pentagon spokesman, Cmdr. Jeffrey D. Gordon, said, "Majid Khan has been treated humanely while in Department of Defense custody."

I’d like to point out that both the CIA and Pentagon replies were non-responsive. Paul Gimigliano did not say, "no, we never bound his hands and feet in a chair and tightened the bonds every hour." He said only that the U.S. doesn’t torture, and the agency follows the law. As usual, this ducks the question of whether under the U.S. and agency interpretations, this tactic is not considered torture or illegal.

Likewise, Cmdr. Gordon’s response to Khan’s description of what drove him nearly to suicide is simply to say that he was treated "humanely." But "humanely" is, once again, not a denial. "Humane" is pretty minimal, by the government’s definitions. Remember Alberto Gonzales’s answer to Ted Kennedy’s questions at his confirmation hearings: "I would define humane treatment as a basic level of decent treatment that includes such things as food, shelter, clothing, and medical care." (Written response of Alberto R. Gonzales to questions posed by Senator Edward M. Kennedy, question #15, January 2005.) You can give someone food, shelter, clothing, and medical care while isolating him, playing on his weaknesses, and doing anything in your power to drive him mad.

Are Majid Khan’s allegations true or false? Did you bind him in a chair and tighten the bonds or didn’t you? Did you isolate him and play on his weaknesses to drive him crazy, or didn’t you? What did you do to him?

Can You Even Imagine How Bad it Must Have Been?

Marty Lederman

I want to put yesterday's incredible Comey testimony in some context, to demonstrate just how otherworldly this story is -- and what an extraordinary tale it tells about the nature of the officials who are running our government.

In March 2004, the NSA surveillance program had been operational for two-and-a-half years. According to the President and NSA, it had produced extraordinarily valuable intelligence against potential terrorist actions. (At the very least, it's fair to assume that the folks in DOJ understood this to be the case.) The NSA and the phone companies had been going full-steam ahead on the program, even though on its face it would be a crime to do so under FISA. See 18 U.S.C. 1809. Presumably they did so only because OLC had written one or more legal opinions concluding that the President had Article II authority to disregard the statute in wartime -- a legal theory not only critical to the operation of the program, but also at the very heart of the Vice President's passionately held philosophy of Executive prerogatives.

Jack Goldsmith was confirmed to be head of OLC in October 2003. He was a loyal Republican and supporter of the President. And yet almost as soon as he took office, he began reviewing much of John Yoo's handiwork, and found it lacking. Barely two months into his new job, for instance, Goldsmith called the Pentagon and told them that they must immediately cease relying on the critical Yoo Opinion that formed the basis for the Department of Defense's absuive interrogation policies in Iraq and elsewhere. (I've reviewed this fascinating story in detail here.)

According to Comey, "there were a number of issues that [Goldsmith] was looking at" as part of his "reevaluation" of past OLC advice, and the NSA program "was among those issues" under OLC review. "Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril." (The quotation from the best account yet of this basic story -- the article in Newsweek in February 2006 by Daniel Klaidman, Stuart Taylor and Evan Thomas. That article obviously owes a great deal of debt to partial accounts published earlier by, e.g., the New York Times and this blog. Nevertheless, it is a taut, comprehensive and compelling account of what might be the most revealing aspect of the legal crisis within the Executive branch during the past six years. It is well worth reading.)

By early March 2004, OLC apparently concluded that the NSA electronic surveillance program could not be defended on the basis of OLC's prior legal opinions, and had convinced the Attorney General and DAG that DOJ had to refuse to sign off on the program -- i.e., they were compelled to inform the President that the program violated FISA and could not legally be continued in its present form. Ashcroft and Comey agreed -- or at the very least, they deferred to Goldsmith's legal judgment, which is what happens in 99% of all cases once OLC speaks.

It is extremely rare for OLC to reverse its own opinions within an Administration. And that unusual course would be especially disfavored in this case, because all the relevant DOJ officials -- e.g., Ashcroft, Comey, and Goldsmith -- undoubtedly understood that repudiation of this particular OLC advice would mean shutting down the very program that the President had described as the most important intelligence program in the war on terror. Moreover, the theory that OLC was repudiating appears to have been one to which the Vice President and his counsel were deeply committed, and one that appears to have formed the basis for the Administration's decision to disobey other important statutory constraints. Obviously, then, there were profound disincentives to such repudiation.

And yet repudiate it they did. Can you imagine the reaction from the White House and the Vice President's office when that happened? After all, as one friend remarked today, it's not as if Nadine Strossen or Ramsey Clark was the Attorney General. This was John Ashcroft -- and he would not sign off on the prior OLC legal Opinion, even though:

1. It was the sole legal basis for a critically important intelligence program that was purported to have saved many lives. Newsweek:
The rebels were not whistle-blowers in the traditional sense. They did not want—indeed avoided—publicity. They were not downtrodden career civil servants. Rather, they were conservative political appointees who had been friends and close colleagues of some of the true believers they were fighting against. They did not see the struggle in terms of black and white but in shades of gray—as painfully close calls with unavoidable pitfalls. They worried deeply about whether their principles might put Americans at home and abroad at risk. . . . Goldsmith was not unmoved by Addington's arguments, say his friends and colleagues. He told colleagues he openly worried that he might be putting soldiers and CIA officers in legal jeopardy. He did not want to weaken America's defenses against another terrorist attack. But he also wanted to uphold the law.
2. Repudiation of the theory would mean that the NSA and phone companies had been committing crimes for more than two years.

3. It meant DOJ doing a remarkable about-face and acknowledging profound error.

4. It was a rejection of the principal constitutional theory at the heart of the Vice President's program for executive aggrandizement (and was presumably the basis for several other practices and policies as well) -- and so it could be expected to be met with the considerable wrath of Cheney/Addington, to the point where one of the messengers of the bad news, Associate DAG (and former OLC Deputy) Patrick Philbin, had an expected promotion blocked (according to Comey's testimony). Newsweek: "It is almost unheard-of for an administration to overturn its own OLC opinions. Addington was beside himself [when Goldsmith repudiated the Yoo DoD Torture memo in late 2003]. Later, in frequent face-to-face confrontations, he attacked Goldsmith for changing the rules in the middle of the game and putting brave men at risk, according to three former government officials, who declined to speak on the record given the sensitivity of the subject."

5. The President demonstrated his profound committment to the program by personally calling the Attorney General's wife and urging her to allow the White House Counsel and Chief of Staff to cajole the AG in intensive care, where she had not been allowing visitors.

and

6. The White House told the DOJ officials that it was going to go forward with the program anyway, even after DOJ had opined that it was unlawful.

And yet not only would Ashcroft, et al., not budge -- they were prepared to resign their offices if the President allowed this program of vital importance to go forward in the teeth of their legal objections.

In light of all these considerations, just try to imagine how legally dubious the Yoo justification must have been that John Ashcroft was so profoundly committed to its repudiation. It's staggering, really -- almost unimaginable that anything such as this could have happened, especially where the stakes were so high.

And recall this, as well: These are hardly officials who were unwilling to push the legal envelope, or who were disdainful of the objectives or need for the NSA program. Two or three weeks later, OLC did develop an alternative legal theory that permitted a narrower version of the surveillance program to go forward. By all accounts, that legal theory is some version of the argument that the 2001 Authorization for the Use of Military Force against Al Qaeda authorized this form of electronic surveillance, notwithstanding FISA. That is a theory that I and many others have harshly criticized (see, for example, the letters collected here). It is, to say the least, an extremely creative reading of the relevant statutes -- a reading that not a single member of Congress who voted for the AUMF could possibly have imagined, and one that (to my knowledge) not a single member of Congress has approved once reading of it in DOJ's "White Paper."

These DOJ officials were willing to sign off on that very tenuous legal theory. What does that tell us about the OLC theory that they inisted upon repudiating?

Moreover, the "revised" NSA program that OLC and DOJ approved some weeks after the March incident apparently was narrower in some fundamental respects than the program that had been authorized under the previous OLC advice. And yet, according to AG Gonzales, that new program still allowed electronic surveillance of communications as long as the NSA had 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." Presumably this extremely generous guideline was required by the need to bring the program under the aegis of the AUMF, which authorized the President to use "necessary and appropriate" force against "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."

If that's the narrow version of the NSA program, just how broad and indiscriminate was the surveillance under the program that Ashcroft, et al. would not approve? [For more along these lines, see this terrific post by Orin Kerr. Here's one speculation just suggested to me by a fellow B'zation blogger: Perhaps under the Yoo-approved program, once a U.S. person received any phone calls or e-mails from a "covered" person overseas, the NSA was authorized to intercept all of that U.S. person's future phone calls. (After all, what the Administration was most interested in would not be overseas calls, but instead calls that might reveal activity of Al Qaeda cells here in the U.S.) Under the Goldsmith-approved, AUMF-based program, however, only international calls with actual persons covered by the AUMF could be intercepted. Who knows? -- this is only speculation.]

This is the real heart of the Comey story -- What happened between September 2001 and October 2003, before Comey and Goldmsith came aboard? Just how radical were the Administration's legal judgments? How extreme were the programs they implemented? How egregious was the lawbreaking?

It is imperative now that the Senate do all it can to obtain and investigate the entire paper trail that led up to the events described yesterday. There is no longer any excuse for the legislature to be denied the OLC opinions, at least pre-Goldsmith, that were the basis for the Executive branch's regime of extra-legal conduct. Not only the OLC Opinions and the Executive orders on the NSA program, but also the all-important Yoo Opinion signed on March 14, 2003, the day after Jay Bybee left OLC, which was the genesis for the terrible abuse that occurred in the Department of Defense during the remainder of 2003. (More on this in the last few paragraphs of this post.)

Of course, before the OLC opinions are made public, they should be redacted so as not to reveal important but secret NSA capabilities. But those redactions shouldn't be extensive, and should not obscure the basic legal analysis that is the critical basis for the conduct of the Executive branch in some of its most dubious activities. (OLC memos that say "no" -- that tell the President that he cannot do something, such as, presumably, Goldsmith's memo(s) in early 2004 -- are a much harder call. My basic view is that those are the sorts of OLC memos that presumptively remain confidential, at least until they are only of historical interest, for two basic reasons: (i) because they did not form the basis for any Executive branch conduct that occurred; and (ii) because those are the very most important memos that OLC issues, and nothing should be done to deter Executive officials from asking OLC about the legality of questionable proposals, or to deter OLC from feeling free to candidly tell the President "no." As my colleagues and I wrote here: "Ordinarily, OLC should honor a requestor’s desire to keep confidential any OLC advice that the proposed executive action would be unlawful, where the requestor then does not take the action. For OLC routinely to release the details of all contemplated action of dubious legality might deter executive branch actors from seeking OLC advice at sufficiently early stages in policy formation."

On the other hand, in this case the President went ahead with the conduct in the teeth of DOJ advice that it would be unlawful, and so this ordinary guideline is not quite on point. Moreover, here the Goldsmith Opinion rejecting OLC's prior advice (assuming it exists) is likely to be critical to a full understanding of the development of the Executive's programs and their legal justifications -- and therefore perhaps it, too, should be shared with Congress.

[DISCLOSURE: I worked at OLC, including for a time with Pat Philbin, until November 2002, and I have gotten to know Jack Goldsmith since he and I both left OLC (our tenures there did not overlap). Nothing in this or any of my other posts on these sensitive matters, however, reflects any information I learned while at OLC -- I was not aware of any of the programs discussed in these blogposts while I worked there -- and neither Pat nor Jack (nor anyone else) has ever revealed any classified or otherwise confidential information to me about these programs -- in the best OLC tradition, they have to my knowledge been scrupulous about preserving all confidences. All the information herein is taken or extrapolated from public sources.]

[UPDATE: Just noticed that Glenn Greenwald is singing from the same hymnal -- doing his usual bang-up, comprehensive job. Sorry I didn't link it earlier, Glenn -- that firewall, alas, discourages frequent forays over to Salon. But readers should take the trouble on this one, for sure.]

Learning from the French

Sandy Levinson

George W. Bush has 612 remaining days in office. That's bad enough news, but consider the fact that the last 77 days of his office will, very likely be spent (and, of course, I believe much to be hoped), as a thoroughly repudiated President whose successor will be a Democrat committed to overturning many of his policies, beginning, of course, with Iraq (which is certainly not going to be resolved by November 4, 2008). This is, of course, a not uncommon reality of American politics. Consider in the 20th century alone the repudiations of Taft, Hoover, Carter, and George H. W. Bush (though by a candidate who did not get anything close to a majority of the vote). The most serious of these is probably Hoover's defeat by Roosevelt, for the United States did not have a truly functioning government, with regard to making economic policy, between November 1932 and March 4, 1933.

The 20th Amendment, of course, moved up inauguration day to January 20, but that's cold comfort for those of us who want George W. Bush out of office as soon as possible. Moreover, I continue to believe that no sane country would today adopt a presidential election process that includes such a hiatus between a repudiated President and his/her successor. (As with all of my criticisms of our defective Constitution, I'm not interested in Founder bashing. Nothing rides on whether the Founders had wonderful reasons in 1787 for doing every single thing they did, including compromising with slavery.)

The French offer us a model from which we might learn. Nicholas Sarkozy, elected by a majority of the electorate--more about this in a moment--nine days ago, was literally given the keys to the presidential palace this morning. The presumptive desire of the French electorate for whatever policy changes Sarkozy will bring will begin being realized immediately. Jacques Chirac will not have almost three months to torpedo them or to engage in foreign-policy adventurism--recall George H. W. Bush's sending of troops to Somalia during his interregnum--that will haunt his successor's presidency.

I had previously thought that such a sensible time between election and inauguration required a parliamentary system, where a prime minister would have a "shadow cabinet" in waiting, one of the realities that allows winning candidates for the PM in Great Britain to take office basically the day after the election. But Sarkozy had no such "shadow cabinet." Yet he was able to name his cabinet this morning--including the founder of Doctors Without Borders as the Foreign Minister. I take it that this proves that a rational political system--which ours is not--is fully able to generate and elect presidents who can, within roughly a week, make appointments. Indeed, isn't it absolutely ludicrous that we in the US are about to endure an 18-month-long campaign for the presidency without being told whom the candidates will be appointment to the Cabinet. Even if they don't want to reveal this publicly, can't we expect them to have the names in their pockets, for release within a week?

The French can also teach us something about majority rule. Many of our presidents got to the White House without winning support from a majority of the electorate. Since World War II, these include Truman, Kennedy, Nixon (1968), Clinton (both elections), and Bush (2000). That is not the case in France. The two-stage system of presidential elections assures that the winner will have a credible claim to majority support, something that we cannot claim of our own presidents. A good alternative to the two-stage election is the "instant runoff," by which voters would cast an Alternative Transferable Vote indicating their second (or subsequent) choices should their first choice not prevail.

I note that a number of states are passing the Fair Vote bill by which the largest states would torpedo the electoral college by giving their votes to the popular vote "winner." I'm all for torpedoing the electoral college, but it should be recognized that this scheme preserves one of its worst features, which is the possibility (indeed, near certainty over several election cycles) of electing candidates supported only by a minority of the population. It will also tend to reinforce the two-party duopoly that afflicts the US and prevent a third-party from demonstrating its appeal to parts of the electorate, who can cast their first-preference votes for such a party without being "spoilers" (as were, to their unending damnation, the Naderites in 2000). I support the Fair Vote bills inasmuch as they might generate a long-overdue conversation about the electoral college and break the logjam created by the inability of any amendment to get through the Senate. One might hope that some conversationalists would be willing to look outside our own narrow borders and look at how other respectable democracies elect their chief executives.

Comey Video

Marty Lederman

TPM has much of it here. (And a bit more on YouTube, naturally.) It's even more powerful and dramatic once you see how credible and measured a witness Comey is.

What Was the President's Role?

Marty Lederman

Josh Marshall is absolutely correct here that the implication that the President was on DOJ's side of the dispute, as against Card and Gonzales, is fundamentally mistaken. For one thing, the President (probably) took the extraordinary step of calling the AG's wife to try to convince her to allow two White House officials to visit her husband, in intensive care, to try to convince him to overrule the Acting AG . . . .

Three other things are important to note, as well:

1. The President personally tried to convince Comey to change his judgment, even after DOJ had gone to such lengths to repudiate OLC's prior legal advice.

2. The President signed the directive himself, and allowed the NSA program to continue for at least two weeks, even though DOJ had concluded that it was legally indefensible, i.e., that it violated a criminal statute. (This is the big story that few are focusing on.)

3. Yes, the President eventually agreed that the program could be "modified" if that's what it would take to get DOJ buy-in. But that isn't a case of "siding" with DOJ over the VP and White House Counsel. He really had no choice, because the alternative was a full-scale resignation of the entire top tier of the Justice Department. Imagine how that would have played in Congress and the public --they're doing something so egregiously and transparently unlawful that even John Ashcroft resigned over it! It most certainly would have meant the end (and the revelation) of the NSA program, at the very least -- and it might even have been viewed as the equivalent of the Saturday Night Massacre. So really, the President was backed into a corner -- Ashcroft, Comey and Goldsmith did the right thing under enormous pressure, and they forced the President and the Vice President to back down.

Tuesday, May 15, 2007

Who Will Play Gonzales and Card and Addington in the Hollywood Movie of the Comey Testimony?

Marty Lederman

Really, if Comey has not already sold the screenplay, he's missing out on a big payday. If you haven't already done so, READ THE TRANSCRIPT. [This might tell you all you need to know: Dahlia Lithwick gives it her usual sharp-honed, tongue-partly-in-cheek treatment . . . and you can't tell which parts are exaggerated for comic effect and which are true to life!]

Here's the scene: Ashcroft has fallen ill with a severe case of gallstone pancreatitis. He has handed over the reins of the Department to Comey -- Comey's the Acting AG. On March 9th, the same day that Ashcroft has his gall bladder removed, Comey and Goldsmith tell the White House that the NSA program is unlawful and that they won't sign off on it. The President himself, of course, could overrule DOJ on the legal question -- but apparently is unwilling to do so, both because the subsequent resignation of the AG, DAG, and FBI Director would tip off the public that the President trusted David Addington's jurisprudence more than he trusted the folks at DOJ, and because perhaps the NSA and the phone companies would not look too kindly on the idea of acting in accord with the President's views when even John Ashcroft did not agree.

So the next evening, the White House -- probably the President himself, by Comey's account -- calls Mrs. Ashcroft, and implores her to allow Alberto Gonzales and Andy Card to come to GW Hospital to persuade John Ashcroft, in his weakened and drug-induced post-operative state, to sign off on the program, i.e., to overrule Comey even though Comey is the Acting AG. Comey gets wind of the impending meeting at the hospital, and he rushes to a waiitng vehicle to get to the hospital -- using emergency equipment! -- before the White House Chief of Staff and Counsel get there. Comey (literally) runs up the hospital stairs to Ashcroft's room. While Comey is waiting for the two high-ranking White House officials to arrive, he calls the Director of the FBI for support, and then the FBI Director speaks to the AG's security detail and -- this is the best part -- "instructed the FBI agents present not to allow me [Comey] to be removed from the room under any circumstances"!

Yes, if you think this sounds familiar, it is -- it eerily resembles the scene in which Michael Corrleone "protects" his father at the hospital in The Godfather. With Jack Goldsmith as Enzo the Baker, and Alberto Gonzales as McCluskey the crooked cop. (The President, of course, is Sollozzo. Comey would be Michael, except that he's a good 14 inches taller than Al Pacino . . . . Oh, and then there's the bit about how Comey refuses to meet with Andy Card -- the President's Chief of Staff! -- at the White House without an unbiased third party witness (SG Ted Olson -- a/k/a Tom Hagen).)

And this is how the law is settled these days in the Executive branch of the greatest democracy in the world . . . .

P.S. It's probably safe to say this is the first time in history that anyone has ever drawn a parallel between John Ashcroft and Marlon Brando.

Nixon's Ghost

JB

Then:

Mr. David Frost: So what in a sense you're saying is that there are certain situations . . . where the President can decide that it's in the best interests of the nation or something, and do something illegal.

Mr. Nixon: Well, when the President does it, that means that it is not illegal.

Mr. Frost: By definition.

Mr. Nixon: Exactly. If the President, for example, approves something, approves an action because of national security, or, in this case, because of a threat to internal peace and order, of significant magnitude, then the President's decision in that instance is one that enables those who carry it out to carry it out without violating a law. Otherwise they're in an impossible position.

Now:

SPECTER: Was the [domestic wiretapping] program reauthorized without the requisite certification by the attorney general or acting attorney general?

COMEY: Yes.

SPECTER: So it went forward illegally.

COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.

SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?

COMEY: I believed so.

SPECTER: Then it was going forward illegally.

COMEY: Well, the only reason I hesitate is that I'm no presidential scholar. But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law. And so, I either had to go along with that or leave. And I believed that I couldn't stay -- and I think others felt this way as well -- that given that something was going forward that we had said we could not certify as to its legality.

SPECTER: Well, I can understand why you would feel compelled to resign in that context, once there had been made a decision by the executive branch, presumably by the president or by the president, because he was personally involved in the conversations, that you would resign because something was going forward which was illegal. The point that I'm trying to determine here is that it was going forward even though it was illegal.

. . . .

SPECTER: OK. Well, now I understand why you didn't say [continuing the NSA program without Justice Department reauthorization] was illegal. What I don't understand is why you now won't say it was legal.

COMEY: Well, I suppose there's an argument -- as I said, I'm not a presidential scholar -- that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal. I disagreed with that conclusion. Our legal analysis was that we couldn't find an adequate legal basis for aspects of this matter. And for that reason, I couldn't certify it to its legality.

Do You Have a Video of The Comey Hearings?

JB

Does anyone have a video webcast of the Comey hearings? (My understanding is that the Senate Judiciary Committee does not make copies of its webcasts). If so, please provide the link in the comments. This is an amazing political event. For more details, and a transcript, see Marty's post below.

The Vision Thing

JB

Cass Sunstein notes that today's Supreme Court lacks visionaries among its liberals; the real visionaries are Justices Scalia and Thomas on the right. He contrasts this with liberal visionaries in the 20th century, who (in his view) include Holmes, Brandeis, Black, Douglas, Warren, Brennan and Marshall.
Of course these claims raise many questions. How shall we classify the Court's "Four Horsemen" of the early twentieth century (Justices James Clark McReynolds, George Sutherland, Willis Van Devanter, and Pierce Butler), who voted to strike down maximum-hour and minimum-wage laws? In a democracy, isn't it best to have justices who are careful and excellent, rather than visionary?

The answers to these questions are not obvious. But one thing is entirely clear: The absence of anything like a heroic vision on the Court's left, and the existence of such a vision on the Court's right, is having a major and largely unnoticed impact on public understanding of both the Court and the Constitution.


Justices do not become "visionaries" in the eyes of history in isolation from larger political and social events. We tend to regard Justices as visionaries if (1) they have strong, programmatic views about the meaning of the Constitution and (2) they are allied with or become useful to powerful and ascendant social movements of their day. (Holmes, for example, was useful to progressive social movements and to New Dealers even though his politics were not particularly progressive). Put another way, a "visionary" is a social construction produced by a host of different and overlapping effects. Justices become thought of as visionaries in hindsight, in part from their temperament and philosophy, in part from the circumstances that lead to their appointments and in part from the way political and social movements develop following their appointment. (For my own take on how history tends to view Justices, see my 2003 essay, The Use that the Future Makes of the Past.)

Liberals have not been part of a politically dominant and ascendant social movement for a long time; they have been fighting a defensive battle for about thirty years. It is therefore no wonder that newer liberal Justices (appointed by Bill Clinton, the triangulator-in-chief) were unlikely to be what Sunstein calls "visionaries." Conversely, the political and social movements of the right have been ascendant for the past thirty years. It is far more likely that visionaries would be found among them. Not all of them would be visionaries, of course. During the ascendancy of liberal politics during the New Deal, only a few of Roosevelt's appointments (Black and Douglas) turned out to be visionaries in Sunstein's sense, although all were committed New Dealers; and there was only one (Thurgood Marshall) among Kennedy's and Johnson's appointments in the second wave of liberal social movements, even though all of them (including Byron White) were New Frontier liberals and favored the claims of the civil rights movement.

Earl Warren and William Brennan were Eisenhower appointees who allied themselves with liberal social movements and/or were useful to those movements. It is important to remember that the liberalism of the 1950's and 1960's was bi-partisan, including both liberal Republicans and liberal Democrats; the Democrats were actually two parties, a liberal wing and a conservative Dixiecrat wing. The great civil rights legislation of the 1960's was passed by a coalition of liberals and moderates from both parties.

According to this logic, the "Four Horsemen" of the 1930's were not visionaries even though some of them had strong visions. That is because they were fighting a defensive war against a rising social and political movement which reelected Franklin Roosevelt and the Democrats repeatedly. Eventually Roosevelt replaced them with New Dealers, producing the constitutional revolution that we associate with 1937 but which actually takes place a bit later, after the Democrats' partisan entrenchment did its work.

If a powerful new social movement arises on the left (which may happen if the Republican Party implodes due to the Iraq War), Sunstein need not worry. There will be future liberal Presidents, and they will appoint new liberal Justices who are visionaries in anyone's sense of the word. But if one thinks this is a good thing (and some do not!) the most important way to achieve it will be for liberals to stop playing defense, go on the political offensive, and convince their fellow Americans that they have a vibrant and healthy political vision for the future. If they can do that, and if they can sustain a powerful new social movement over the next few decades, there will probably be plenty of visionary judges on the left to choose from.

Comey Testifies that the President Broke the Law

Marty Lederman

Former Deputy Attorney General James Comey just completed his testimony before the Senate Judiciary Committee. Much of the testimony concerned the inicident on March 11, 2004, when Comey, AG Ashcroft and AAG Jack Goldsmith (OLC) refused to sign off on the legality of the NSA "terrorist surveillance" program.

Unfortunately, I missed the first half of the testimony. CSPAN did not cover it, and I'm told that committee webcasts are not recorded! (which seems remarkably short-sighted). But Paul Kiel's very helpful summary is here, and I now have a transcript of the testimony. READ IT. It's just about the most dramatic testimony I can recall in a congressional committee since John Dean.

Comey testified as follows:

(i) that he, OLC and the AG concluded that the NSA program was not legally defensible, i.e., that it violated FISA and that the Article II argument OLC had previously approved was not an adequate justification (a conclusion prompted by the New AAG, Jack Goldsmith, having undertaken a systematic review of OLC's previous legal opinions regarding the Commander in Chief's powers);

(ii) that the White House nevertheless continued with the program anyway, despite DOJ's judgment that it was unlawful;

(iii) that Comey, Ashcroft, the head of the FBI (Robert Mueller) and several other DOJ officials therefore threatened to resign;

(iv) that the White House accordingly -- one day later -- asked DOJ to figure out a way the program could be changed to bring it into compliance with the law (presumably on the AUMF authorizaton theory); and

(v) that OLC thereafter did develop proposed amendments to the program over the subsequent two or three weeks, which were eventually implemented.

The program continued in the interim, even after DOJ concluded that it was unlawful.

Note that Comey homself was the Acting AG at the time, with Ashcroft being in the hospital for surgery. As the New York Times previously reported, and as Comey recounted today in remarkably dramatic detail -- set out below -- the White House (Andy Card and Judge Gonzales) actually attempted to have Ashcroft overrule Comey even though Ashcroft was ailing and not wielding the powers of the AG at the time. According to Comey today: "I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general."

Most importantly: Can anyone think of any historical examples where the Department of Justice told the White House that a course of conduct would be unlawful (in this case, a felony), and the President went ahead and did it anyway, without overruling DOJ's legal conclusion?

Excerpt from Comey testimony:

COMEY: In the early part of 2004, the Department of Justice was
engaged -- the Office of Legal Counsel, under my supervision -- in a
reevaluation both factually and legally of a particular classified
program. And it was a program that was renewed on a regular basis,
and required signature by the attorney general certifying to its
legality.

And the -- and I remember the precise date. The program had to
be renewed by March the 11th, which was a Thursday, of 2004. And we
were engaged in a very intensive reevaluation of the matter.

And a week before that March 11th deadline, I had a private
meeting with the attorney general for an hour, just the two of us, and
I laid out for him what we had learned and what our analysis was in
this particular matter.

And at the end of that hour-long private session, he and I agreed
on a course of action. And within hours he was stricken and taken
very, very ill...

SCHUMER: (inaudible) You thought something was wrong with how it
was being operated or administered or overseen.

COMEY: We had -- yes. We had concerns as to our ability to
certify its legality, which was our obligation for the program to be
renewed.

The attorney general was taken that very afternoon to George
Washington Hospital, where he went into intensive care and remained
there for over a week. And I became the acting attorney general.

And over the next week -- particularly the following week, on
Tuesday -- we communicated to the relevant parties at the White House
and elsewhere our decision that as acting attorney general I would not
certify the program as to its legality and explained our reasoning in
detail, which I will not go into here. Nor am I confirming it's any
particular program.

That was Tuesday that we communicated that.

COMEY: The next day was Wednesday, March the 10th, the night of
the hospital incident. And I was headed home at about 8 o'clock that
evening, my security detail was driving me. And I remember exactly
where I was -- on Constitution Avenue -- and got a call from Attorney
General Ashcroft's chief of staff telling me that he had gotten a
call...

SCHUMER: What's his name?

COMEY: David Ayers.

That he had gotten a call from Mrs. Ashcroft from the hospital.
She had banned all visitors and all phone calls. So I hadn't seen him
or talked to him because he was very ill.

And Mrs. Ashcroft reported that a call had come through, and that
as a result of that call Mr. Card and Mr. Gonzales were on their way
to the hospital to see Mr. Ashcroft.

SCHUMER: Do you have any idea who that call was from?

COMEY: I have some recollection that the call was from the
president himself, but I don't know that for sure. It came from the
White House. And it came through and the call was taken in the
hospital.

So I hung up the phone, immediately called my chief of staff,
told him to get as many of my people as possible to the hospital
immediately. I hung up, called Director Mueller and -- with whom I'd
been discussing this particular matter and had been a great help to me
over that week -- and told him what was happening. He said, "I'll
meet you at the hospital right now."

Told my security detail that I needed to get to George Washington
Hospital immediately. They turned on the emergency equipment and
drove very quickly to the hospital.

I got out of the car and ran up -- literally ran up the stairs
with my security detail.

SCHUMER: What was your concern? You were in obviously a huge
hurry.

COMEY: I was concerned that, given how ill I knew the attorney
general was, that there might be an effort to ask him to overrule me
when he was in no condition to do that.

SCHUMER: Right, OK.

COMEY: I was worried about him, frankly.

And so I raced to the hospital room, entered. And Mrs. Ashcroft
was standing by the hospital bed, Mr. Ashcroft was lying down in the
bed, the room was darkened. And I immediately began speaking to him,
trying to orient him as to time and place, and try to see if he could
focus on what was happening, and it wasn't clear to me that he could.
He seemed pretty bad off.

SCHUMER: At that point it was you, Mrs. Ashcroft and the
attorney general and maybe medical personnel in the room. No other
Justice Department or government officials.

COMEY: Just the three of us at that point.

I tried to see if I could help him get oriented. As I said, it
wasn't clear that I had succeeded.

I went out in the hallway. Spoke to Director Mueller by phone.
He was on his way. I handed the phone to the head of the security
detail and Director Mueller instructed the FBI agents present not to
allow me to be removed from the room under any circumstances. And I
went back in the room.

I was shortly joined by the head of the Office of Legal Counsel
assistant attorney general, Jack Goldsmith, and a senior staffer of
mine who had worked on this matter, an associate deputy attorney
general.

So the three of us Justice Department people went in the room. I
sat down...

SCHUMER: Just give us the names of the two other people.

COMEY: Jack Goldsmith, who was the assistant attorney general,
and Patrick Philbin, who was associate deputy attorney general.

I sat down in an armchair by the head of the attorney general's
bed. The two other Justice Department people stood behind me. And
Mrs. Ashcroft stood by the bed holding her husband's arm. And we
waited.

And it was only a matter of minutes that the door opened and in
walked Mr. Gonzales, carrying an envelope, and Mr. Card. They came
over and stood by the bed. They greeted the attorney general very
briefly. And then Mr. Gonzales began to discuss why they were there
-- to seek his approval for a matter, and explained what the matter
was -- which I will not do.

And Attorney General Ashcroft then stunned me. He lifted his
head off the pillow and in very strong terms expressed his view of the
matter, rich in both substance and fact, which stunned me -- drawn
from the hour-long meeting we'd had a week earlier -- and in very
strong terms expressed himself, and then laid his head back down on
the pillow, seemed spent, and said to them, "But that doesn't matter,
because I'm not the attorney general."

SCHUMER: But he expressed his reluctance or he would not sign
the statement that they -- give the authorization that they had asked,
is that right?

COMEY: Yes.

And as he laid back down, he said, "But that doesn't matter,
because I'm not the attorney general. There is the attorney general,"
and he pointed to me, and I was just to his left.

The two men did not acknowledge me. They turned and walked from
the room. And within just a few moments after that, Director Mueller
arrived. I told him quickly what had happened. He had a brief -- a
memorable brief exchange with the attorney general and then we went
outside in the hallway.

SCHUMER: OK.

Now, just a few more points on that meeting.

First, am I correct that it was Mr. Gonzales who did just about
all of the talking, Mr. Card said very little?

COMEY: Yes, sir.

SCHUMER: OK.

And they made it clear that there was in this envelope an
authorization that they hoped Mr. Ashcroft -- Attorney General
Ashcroft would sign.

COMEY: In substance. I don't know exactly the words, but it was
clear that's what the envelope was.

SCHUMER: And the attorney general was -- what was his condition?
I mean, he had -- as I understand it, he had pancreatitis. He was
very, very ill; in critical condition, in fact.

COMEY: He was very ill. I don't know how the doctors graded his
condition. This was -- this would have been his sixth day in
intensive care. And as I said, I was shocked when I walked in the
room and very concerned as I tried to get him to focus.

SCHUMER: Right.

OK. Let's continue.

What happened after Mr. Gonzales and Card left? Did you have any
contact with them in the next little while?

COMEY: While I was talking to Director Mueller, an agent came up
to us and said that I had an urgent call in the command center, which
was right next door. They had Attorney General Ashcroft in a hallway
by himself and there was an empty room next door that was the command
center.

And he said it was Mr. Card wanting to speak to me.

COMEY: I took the call. And Mr. Card was very upset and
demanded that I come to the White House immediately.

I responded that, after the conduct I had just witnessed, I would
not meet with him without a witness present.

He replied, "What conduct? We were just there to wish him well."

And I said again, "After what I just witnessed, I will not meet
with you without a witness. And I intend that witness to be the
solicitor general of the United States."

SCHUMER: That would be Mr. Olson.

COMEY: Yes, sir. Ted Olson.

"Until I can connect with Mr. Olson, I'm not going to meet with
you."

He asked whether I was refusing to come to the White House. I
said, "No, sir, I'm not. I'll be there. I need to go back to the
Department of Justice first."

And then I reached out through the command center for Mr. Olson,
who was at a dinner party. And Mr. Olson and the other leadership of
the Department of Justice immediately went to the department, where we
sat down together in a conference room and talked about what we were
going to do.

And about 11 o'clock that night -- this evening had started at
about 8 o'clock, when I was on my way home. At 11 o'clock that night,
Mr. Olson and I went to the White House together.

SCHUMER: Just before you get there, you told Mr. Card that you
were very troubled by the conduct from the White House room (ph), and
that's why you wanted Mr. Olson to accompany you.

Without giving any of the details -- which we totally respect in
terms of substance -- just tell me why. What did you tell him that so
upset you? Or if you didn't tell him just tell us.

COMEY: I was very upset. I was angry. I thought I just
witnessed an effort to take advantage of a very sick man, who did not
have the powers of the attorney general because they had been
transferred to me.

I thought he had conducted himself, and I said to the attorney
general, in a way that demonstrated a strength I had never seen
before. But still I thought it was improper.

And it was for that reason that I thought there ought to be
somebody with me if I'm going to meet with Mr. Card.

SCHUMER: Can you tell us a little bit about the discussion at
the Justice Department when all of you convened? I guess it was that
night.

COMEY: I don't think it's appropriate for me to go into the
substance of it. We discussed what to do. I recall the associate
attorney general being there, the solicitor general, the assistant
attorney general in charge of the Office of Legal Counsel, senior
staff from the attorney general, senior staff of mine. And we just --
I don't want to reveal the substances of those...

SCHUMER: I don't want you to reveal the substance.

They all thought what you did -- what you were doing was the
right thing, I presume.

COMEY: I presume. I didn't ask people. But I felt like we were
a team, we all understood what was going on, and we were trying to do
what was best for the country and the Department of Justice. But it
was a very hard night.

SCHUMER: OK.

And then did you meet with Mr. Card?

COMEY: I did. I went with Mr. Olson driving -- my security
detail drove us to the White House. We went into the West Wing. Mr.
Card would not allow Mr. Olson to enter his office. He asked Mr.
Olson to please sit outside in his sitting area. I relented and went
in to meet with Mr. Card alone. We met, had a discussion, which was
much more -- much calmer than the discussion on the telephone.

After -- I don't remember how long, 10 or 15 minutes -- Mr.
Gonzales arrived and brought Mr. Olson into the room. And the four of
us had a discussion.

SCHUMER: OK.

And was Mr. -- were you and Mr. Card still in a state of anger at
one another at that meeting, or is it a little calmer, and why?

COMEY: Not that we showed.

SCHUMER: Right.

COMEY: It was much more civil than our phone conversation, much
calmer.

SCHUMER: Why? Why do you think?

COMEY: I don't know. I mean, I had calmed down a little bit.
I'd had a chance to talk to the people I respected. Ted Olson I
respect enormously.

SCHUMER: Right. OK.

Was there any discussion of resignations with Mr. Card?

COMEY: Mr. Card was concerned that he had heard reports that
there were to be a large number of resignations at the Department of
Justice.

SCHUMER: OK. OK.

And the conversations, the issue, whatever it was, was not
resolved.

COMEY: Correct. We communicated about it. I communicated again
the Department of Justice's view on the matter. And that was it.

SCHUMER: Right.

And you stated that the next day, Thursday, was the deadline for
reauthorization of the program, is that right?

COMEY: Yes, sir.

SCHUMER: OK.

Can you tell us what happened the next day?

COMEY: The program was reauthorized without us and without a
signature from the Department of Justice attesting as to its legality.
And I prepared a letter of resignation, intending to resign the next
day, Friday, March the 12th.

SCHUMER: OK.

And that was the day, as I understand it, of the Madrid train
bombings.

COMEY: Thursday, March 11th, was the morning of the Madrid train
bombings.

SCHUMER: And so, obviously, people were very concerned with all
of that.

COMEY: Yes. It was a very busy day in the counterterrorism
aspect.

SCHUMER: Yet, even in light of that, you still felt so strongly
that you drafted a letter of resignation.

COMEY: Yes.

SCHUMER: OK.

And why did you decide to resign?

COMEY: I just believed...

SCHUMER: Or to offer your resignation, is a better way to put
it?

COMEY: I believed that I couldn't -- I couldn't stay, if the
administration was going to engage in conduct that the Department of
Justice had said had no legal basis. I just simply couldn't stay.

SCHUMER: Right. OK.

Now, let me just ask you this. And this obviously is all
troubling.

As I understand it, you believed that others were also prepared
to resign, not just you, is that correct?

COMEY: Yes.

SCHUMER: OK.

Was one of those Director Mueller?

COMEY: I believe so. You'd have to ask him, but I believe so.

SCHUMER: You had conversations with him about it.

COMEY: Yes.

SCHUMER: OK.

How about the associate attorney general, Robert McCallum?

COMEY: I don't know. We didn't discuss it.

SCHUMER: How about your chief of staff?

COMEY: Yes. He was certainly going to go when I went.

SCHUMER: Right.

How about Mr. Ashcroft's chief of staff?

COMEY: My understanding was that he would go as well.

SCHUMER: And how...

COMEY: I should say...

SCHUMER: Please.

COMEY: ... to make sure I'm accurate, I...

SCHUMER: This is your surmise, not...

COMEY: Yes.

I ended up agreeing -- Mr. Ashcroft's chief of staff asked me
something that meant a great deal to him, and that is that I not
resign until Mr. Ashcroft was well enough to resign with me. He was
very concerned that Mr. Ashcroft was not well enough to understand
fully what was going on. And he begged me to wait until -- this was
Thursday that I was making this decision -- to wait til Monday to give
him the weekend to get oriented enough so that I wouldn't leave him
behind, was his concern.

SCHUMER: And it was his view that Mr. Ashcroft was likely to
resign as well?

COMEY: Yes.

SCHUMER: So what did you do when you heard that?

COMEY: I agreed to wait. I said that what I would do is -- that
Friday would be last day. And Monday morning I would resign.

SCHUMER: OK.

Anything else of significance relevant to this line of
questioning occur on Thursday the 11th, that you can recall?

COMEY: No, not that I recall.

SCHUMER: Thank you.

Now, let's go to the next day, which was March 12. Can you tell
us what happened then?

COMEY: I went to the Oval Office -- as I did every morning as
acting attorney general -- with Director Mueller to brief the
president and the vice president on what was going on on Justice
Department's counterterrorism work.

We had the briefing. And as I was leaving, the president asked
to speak to me, took me in his study and we had a one-on-one meeting
for about 15 minutes -- again, which I will not go into the substance
of. It was a very full exchange. And at the end of that meeting, at
my urging, he met with Director Mueller, who was waiting for me
downstairs.

He met with Director Mueller again privately, just the two of
them. And then after those two sessions, we had his direction to do
the right thing, to do what we...

SCHUMER: Had the president's direction to do the right thing?

COMEY: Right.

We had the president's direction to do what we believed, what the
Justice Department believed was necessary to put this matter on a
footing where we could certify to its legality.

And so we then set out to do that. And we did that.

SCHUMER: OK.

So let me just (inaudible) -- this is an amazing story, has an
amazing pattern of fact that you recall.

SPECTER: Mr. Chairman, could you give us some idea when your
first round will conclude?

SCHUMER: As soon as I ask a few questions here. Fairly soon.

(OFF-MIKE)

SCHUMER: Yes.

And, Senator Specter, you will get the same amount of time.

SCHUMER: I thought with Mr. Comey's telling what happened...

(CROSSTALK)

SPECTER: Just may the record show that you're now 16 minutes and
35 seconds over the five minutes and...

SCHUMER: I think the record will show it.

SPECTER: Well, it does now.

(LAUGHTER)

SCHUMER: OK, thank you.

And I think most people would think that those 16:35 minutes were
worth hearing.

SPECTER: Well, Mr. Chairman, we do have such a thing as a second
round, and there are a lot of senators waiting...

SCHUMER: Yes, OK.

Let me ask you these few questions...

SPECTER: ... including a Republican.

SCHUMER: I'm glad you're here, Senator Specter. I know you're
concerned with the issue.

SPECTER: Lonely, but here.

(LAUGHTER)

SCHUMER: Let me ask you this: So in sum, it was your belief
that Mr. Gonzales and Mr. Card were trying to take advantage of an ill
and maybe disoriented man to try and get him to do something that
many, at least in the Justice Department, thought was against the law?
Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-run
around the acting attorney general and to get a very sick man to
approve something that the Department of Justice had already concluded
-- the department as a whole -- was unable to be certified as to its
legality. And that was my concern.

SCHUMER: OK.

And you also believe -- and you had later conversations with
Attorney General Ashcroft when he recuperated, and he backed your
view?

COMEY: Yes, sir.

SCHUMER: Did you ever ask him explicitly if he would have
resigned had it come to that?

COMEY: No.

SCHUMER: OK.

But he backed your view over that what was being done, or what
was attempting to being done, going around what you had recommended,
was wrong, against the law?

COMEY: Yes.

And I already knew his view from the hour we had spent together
going over it in great detail a week before the hospital incident.

SCHUMER: Yes.

And the FBI director, Mueller, backed your view over that of Mr.
Gonzales as well -- is that right? -- in terms of whether the program
could continue to be implemented the way Counsel Gonzales wanted it to
be.

COMEY: The only reason I hesitate is it was never Director
Mueller's job or position to be drawing a legal conclusion about the
program; that he was very supportive to me personally. He's one of
the finest people I've ever met and was a great help to me when I felt
a tremendous amount of pressure and felt a bit alone at the Department
of Justice.

But it was not his role to opine on the legality.

SCHUMER: How about Jack Goldsmith, the head of the Office of
Legal Counsel? Did he opine on the legality?

COMEY: Yes. He had done a substantial amount of work on that
issue. And it was largely OLC, the Office of Legal Counsel's work,
that I was relying upon in drawing my -- in making my decision.

SCHUMER: OK. Just two other questions.

Have you ever had the opportunity to recall these events on the
record in any other forum?

COMEY: No.

SCHUMER: OK. And...

COMEY: I should...

SCHUMER: Go ahead.

COMEY: I was interviewed by the FBI and discussed these events
in connection with a leak investigation the FBI was conducting.

SCHUMER: And you gave them these details then.

COMEY: Yes.

SCHUMER: Thank you.

COMEY: But not -- by forum I've never testified about it.

SCHUMER: And after you stood your ground in March of 2004, did
you suffer any recriminations or other problems at the department?

COMEY: I didn't. Not that I'm aware of.

SCHUMER: OK.

Well, let me just say this, and then I'll call on Senator Specter
who can have as much time as he thinks is appropriate.

The story is a shocking one. It makes you almost gulp.

And I just want to say, speaking for myself, I appreciate your
integrity and fidelity to rule of law. And I also appreciate Attorney
General Ashcroft's fidelity to the rule of law as well, as well as the
men and women who worked with you and stuck by you in this.

When we have a situation where the laws of this country -- the
rules of law of this country are not respected because somebody thinks
there's a higher goal, we run askew of the very purpose of what
democracy and rule of law are about.

SCHUMER: And this -- again, this story makes me gulp.

* * * *

SCHUMER: Let me ask you this: So in sum, it was your belief that Mr. Gonzales and Mr. Card were trying to take advantage of an ill and maybe disoriented man to try and get him to do something that many, at least in the Justice Department, thought was against the law? Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded -- the department as a whole -- was unable to be certified as to its legality. And that was my concern.

SCHUMER: OK. And you also believe -- and you had later conversations with Attorney General Ashcroft when he recuperated, and he backed your view?

COMEY: Yes, sir.

SCHUMER: Did you ever ask him explicitly if he would have resigned had it come to that?

COMEY: No.

SCHUMER: OK. But he backed your view over that what was being done, or what was attempting to being done, going around what you had recommended, was wrong, against the law?

COMEY: Yes. And I already knew his view from the hour we had spent together going over it in great detail a week before the hospital incident.

SCHUMER: Yes. And the FBI director, Mueller, backed your view over that of Mr. Gonzales as well -- is that right? -- in terms of whether the program could continue to be implemented the way Counsel Gonzales wanted it to be.

COMEY: The only reason I hesitate is it was never Director Mueller's job or position to be drawing a legal conclusion about the program; that he was very supportive to me personally. He's one of the finest people I've ever met and was a great help to me when I felt a tremendous amount of pressure and felt a bit alone at the Department of Justice. But it was not his role to opine on the legality.

SCHUMER: How about Jack Goldsmith, the head of the Office of Legal Counsel? Did he opine on the legality?

COMEY: Yes. He had done a substantial amount of work on that issue. And it was largely OLC, the Office of Legal Counsel's work, that I was relying upon in drawing my -- in making my decision.

* * * *

SCHUMER: The story is a shocking one. It makes you almost gulp. And I just want to say, speaking for myself, I appreciate your integrity and fidelity to rule of law. And I also appreciate Attorney General Ashcroft's fidelity to the rule of law as well, as well as the men and women who worked with you and stuck by you in this. When we have a situation where the laws of this country -- the rules of law of this country are not respected because somebody thinks there's a higher goal, we run askew of the very purpose of what democracy and rule of law are about. Amd this -- again, this story makes me gulp.

* * * *

SPECTER: And as the acting attorney general, you were doing exactly what you should do in standing up for your authority and to stand by your guns and to do what you thought was right. It has some characteristics of the Saturday Night Massacre, when the other officials stood up and they had to be fired in order to find someone who would -- deputy attorney general and others would not fire the special prosecutor. So that was commendable. When you finally got to the place where the buck doesn't stop, when you got to the president -- as I understand your testimony -- the president told you to do what you thought was right. Is that correct?

COMEY: Yes, sir.

SPECTER: So the president backed you up. And it was necessary to make changes in the terrorist surveillance program to get the requisite certification by the acting attorney general -- that is you?

COMEY: And I may be being overly cautious, but I'm not comfortable confirming what program it was that this related to. And I should be clear. The direction -- as I said, I met with the president first, the Director Mueller did. COMEY: And it was Director Mueller who carried to me the president's direction to do what the Department of Justice thinks is right to get this where the department believes it ought to be. And we acted on that direction.

SPECTER: Director Mueller told you to -- the president said to do what you thought was right?

COMEY: Correct.

SPECTER: Well, how about what the president himself told you?

COMEY: I don't want to get into what -- the reason I hesitate, Senator Specter, is the right thing was done here, in part -- in large part because the president let somebody like me and Bob Mueller meet with him alone. And if I talk about that meeting, I worry that the next president who encounters this is not going to let the next me get close to them to talk about something this important. So I'm -- I want to be very careful that I don't talk about what the president and I talked about. I met with the president. We had a full and frank discussion, very informed. He was very focused. Then Director Mueller met with the president alone. I wasn't there. Director Mueller carried to me the president's direction that we do what the Department of Justice wanted done to put this on a sound legal footing.

* * * *

SPECTER: And when you talked to White House Counsel Gonzales, did he try to pressure you to reverse your judgment?

COMEY: No. He disagreed, again, on the merits of the decision. And we had engaged on that, had full discussions about that. But he never tried to pressure me, other than to convince me that I was wrong.

SPECTER: Well, Mr. Comey, did you have discussions with anybody else in the administration who disagreed with your conclusions?

COMEY: Yes, sir.

SPECTER: Who else?

COMEY: Vice president.

SPECTER: Anybody else?

COMEY: Members of his staff.

SPECTER: Who on his staff?

COMEY: Mr. Addington disagreed with the conclusion. And I'm sure there were others who disagreed, but...

SPECTER: Well, I don't want to know who disagreed. I want to know who told you they disagreed.

COMEY: OK.

SPECTER: Addington?

COMEY: Mr. Addington. The vice president told me that he disagreed. I don't remember any other White House officials telling me they disagreed.

SPECTER: OK. So you've got Card, Gonzales, Vice President Cheney and Addington who told you they disagreed with you.

COMEY: Yes, sir.

SPECTER: Did the vice president threaten you? COMEY: No, sir.

SPECTER: Did Addington threaten you?

COMEY: No, sir.

SPECTER: So all these people told you they disagreed with you? Well, why in this context, when they say they disagreed with you and you're standing by your judgment, would you consider resigning? You were acting attorney general. They could fire you if they wanted to. The president could replace you. But why consider resigning? You had faced up to Card and Gonzales and Vice President Cheney and Addington, had a difference of opinion. You were the acting attorney general, and that was that. Why consider resigning?

COMEY: Not because of the way I was treated but because I didn't believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for.

SPECTER: When they said you could find no legal basis for?

COMEY: I had reached a conclusion that I could not certify as...

SPECTER: Well, all right, so you could not certify it, so you did not certify it. But why resign? You're standing up to those men. You're not going to certify it. You're the acting attorney general. That's that.

COMEY: Well, a key fact is that they went ahead and did it without -- the program was reauthorized without my signature and without the Department of Justice. And so I believed that I couldn't stay...

SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?

COMEY: Yes.

SPECTER: So it went forward illegally.

COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.

SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?

COMEY: I believed so.

SPECTER: Then it was going forward illegally.

COMEY: Well, the only reason I hesitate is that I'm no presidential scholar. But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law. And so, I either had to go along with that or leave. And I believed that I couldn't stay -- and I think others felt this way as well -- that given that something was going forward that we had said we could not certify as to its legality.

SPECTER: Well, I can understand why you would feel compelled to resign in that context, once there had been made a decision by the executive branch, presumably by the president or by the president, because he was personally involved in the conversations, that you would resign because something was going forward which was illegal. The point that I'm trying to determine here is that it was going forward even though it was illegal.

COMEY: And I know I sound like I'm splitting hairs, but...

SPECTER: No, I don't think there's a hair there.

COMEY: Well, something was going forward without the Department of Justice's certification as to its legality. It's a very complicated matter, and I'm not going to go into what the program was or what the dimensions of the program...

SPECTER: Well, you don't have to. If the certification by the Department of Justice as to legality is required as a matter of law, and that is not done, and the program goes forward, it's illegal. How can you -- how can you contest that, Mr. Comey?

COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality. There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign. So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off. But it was going forward even though I had communicated, "I cannot approve this as to its legality." And given that, I just -- I couldn't, in good conscience, stay.

SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?

COMEY: Yes, Senator. And I...

SPECTER: Did you make that determination?

COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning. I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation.

SPECTER: OK. Then it wasn't illegal.

COMEY: That's why I hesitated when you used the word "illegal."

SPECTER: Well, well, OK. Now I want your legal judgment. You are not testifying that it was illegal. Now, as you've explained that there's no statute or regulation, but only a matter of custom, the conclusion is that even though it violated custom, it is not illegal. It's not illegal to violate custom, is it?

COMEY: Not so far as I'm aware.

SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.

COMEY: I'm not saying -- again, that's why I kept avoiding using that term. I had not reached a conclusion that it was. The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.

SPECTER: OK. Well, now I understand why you didn't say it was illegal. What I don't understand is why you now won't say it was legal.

COMEY: Well, I suppose there's an argument -- as I said, I'm not a presidential scholar -- that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal. I disagreed with that conclusion. Our legal analysis was that we couldn't find an adequate legal basis for aspects of this matter. And for that reason, I couldn't certify it to its legality.

SPECTER: OK. I will not ask you -- I have a rule never to ask the same question more than four times... (LAUGHTER) ... so I will not ask you again whether necessarily from your testimony the conclusion is that what the president did was legal -- not illegal.

Monday, May 14, 2007

The Difference Between "Rule of Law" and "Rule by Law" (A.G. Gonzales Please Take Note)

Brian Tamanaha

Although there are various definitions of the “rule of law,” a core element that all definitions share is the notion that the government and its citizens must abide by the law. This idea raises a problem that prompted philosophers as diverse as Aquinas and Hobbes to express doubts about whether the rule of law is possible. The problem is this: the government is the source of (state) law, so it cannot be bound or coerced by the law, because one cannot bind or coerce oneself. In Hobbes’ words, “he that is bound to himself only, is not bound.” Aquinas put it in these terms: “The sovereign is said to be exempt from the law; since, properly speaking, no man is coerced by himself, and law has no coercive power save from the authority of the sovereign. Thus then is the sovereign said to be exempt from the law, because none is competent to pass sentence upon him, if he acts against the law.”

We have partially solved this conundrum through an institutionalized separation of the “sovereign.” Now there is no single sovereign in control of producing and applying the law, but rather legal actions are divided up between the legislature, executive, and judiciary. Thus it is no longer the case that a sovereign “is bound to himself only,” because each institution has various ways to hold the others accountable to the law. That’s how it’s supposed to work in our system (in theory anyway).

This arrangement helps, but it does not eliminate the problem. The ultimate guarantor of the rule of law is the power to threaten and exert violence, which is allocated to the executive branch. That is where the problem reappears in concentrated form. How can the executive branch be subject to coercion if it is the source of coercion? More specifically, how can we insure that the Justice Department, which holds the coercive power of the federal government, abides by and enforces the law?

We can try internally dividing up the Justice Department, with one part holding the others accountable, but that can only go so far. The Office of the Inspector General and the Office of Professional Responsibility investigate questions of legal impropriety within the Justice Department (and by internal regulation an independent prosecutor can be appointed when the need arises). But none of these various institutional arrangements necessarily solve the problem, for all are internal to the Justice Department, and therefore are susceptible to influence. If the entire Justice Department is compromised, it is impossible to construct any mechanism that will be capable of “coercing the coercive power.” Under these circumstances, the rule of law, in the sense that the government is bound by the law, would indeed be impossible.

In the end, Hobbes and Aquinas were right: whatever wields the coercive power cannot coerce itself. The only possible answer to this problem was given by Aquinas: the source of coercive power, through a commitment of its own will, must bind itself to abide by the law in good faith. Without this, the rule of law would not exist. It’s a thin reed on which to rest the rule of law, but there is no other way.

For this reason, although it has largely gone unnoticed from the outside, the non-partisan culture within the Justice Department has made a large contribution to the rule of law. Although the heads of divisions are political appointees who change with administrations, the rank and file have always taken pride in being excellent lawyers committed to upholding the law. The political party membership of the lawyer didn’t matter. Administrations may be Republican or Democratic, but never the Justice Department itself. What made this work was the commitment of each lawyer to, above all else, abide by and act consistent with the law.

This is why the systematic ideological (party membership, political beliefs, etc.) screening of applicants for positions in the Justice Department poses such a serious threat to the rule of law. The evident purpose of this screening is to insure that the legal actions and decisions of Justice Department lawyers will be consistent with and further an ideological agenda. Although recent reports about this effort place the blame on a neophyte lawyer, Monica Goodling, she was appointed by others who knew what she was doing, and she is just one player in a broader pattern to seed the Justice Department with ideologues.

An editorial in the New York Times said this effort by the Bush Administration would “politicize the rule of law,” but that is an oxymoron. When the institution that has the authority to enforce the law—wielding the awesome coercive power of the government—becomes “politicized,” the “rule of law” fails to exist.

The system becomes one of “rule by law,” in which those who control the levers of government utilize the law to advance their ends (as Marty details below). This is not a partisan issue. Everyone—Republicans, Democrats, and independents—should be alarmed.

The U.S. Attorney Scandal, in a Nutshell (Upshot -- It's Actually A "Voter Fraud" Scandal)

Marty Lederman

Dan Eggen and Amy Goldstein of the Post summarize what has become increasingly evident. To simplify -- but not by much -- this is the story:

1. There is little, if any, reliable evidence of any serious problem of voter fraud in the United States.

2. After the 2000 election, if not before, Karl Rove and other Republican operatives decided that Republican political prospects would be immeasurably improved if they would only repeat, as often as possible, the unsupported claim that voter fraud is rampant, and take substantial steps to stem such nonexistent voter "fraud" -- all in an attempt to suppress Democratic votes.

3. The bogus claim of a "voter fraud" crisis has been successfully invoked in many states to withstand initiatives to ease voter registration and, even more prominently, to justify unneeded and damaging "Voter ID" legislation. All of which has the effect of suppressing votes, primarily of Democratic constituencies, while doing very little, if anything, to protect against any actual voter fraud. (See, e.g., the links in the middle of this post to the New York Times, Bob Bauer, hilzoy, Rick Hasen and publius.)

[UPDATE: In response to some commenters, especially those over at the Volokh Conspiracy: My argument here obviously does not depend on the extreme and untenable assertion that there is absolutely no such thing as voter fraud, ever, anywhere in the United States. I'm sure that there are some isolated cases, and will be as long as humans are fallible. The point, instead, is simply that there is virtually no evidence of any systemic or new problem of voter fraud that would justify what the Republican operatives have done in recent years.

So, for example, state defendants in high-profile cases attempting to defend voter ID laws predicated on "fraud" (e.g., in Arizona and Missouri) have not been able to adduce any evidence of systemic fraud -- and very little anecdotal evidence, for that matter. Moreover, the May 2006 "status report" of the Election Assistance Commission, written by bipartisan consultants, concluded that there is widespread agreement "that there is little polling place fraud, or at least much less than claimed, including voter impersonation, 'dead' voters, noncitizen voting and felon voters."

Therefore it is quite obvious, I think, that what has prompted Republican officials and operatives since 2000 to systematically (i) push for Voter ID laws; (ii) oppose registration and other enfranchisement reforms; and now (iii) pressure U.S. Attorneys to bring voter-fraud prosecutions, has not been any upswing in actual fraud, but has instead been the realization that the spectre of a widespread "voter fraud" crisis could effectively change the legal landscape in ways that systematically disenfranchise Democratic voters and thus redound to the benefit of Republican electoral prospects.

I am not claiming that every one of the fraud prosecutions that Rove and Co. were pushing were nonmeritorious -- even a stopped watch is correct twice a day. But they were pushing such prosecutions (i) in closely contested states; (ii) close to election time; and (iii) fairly indiscriminately. So, for example, even David Iglesias, who was one of only two United States attorneys in the country to create a voter-fraud task force in 2004, has written of the prosecutions that he was urged to bring:
What the critics, who don’t have any experience as prosecutors, have asserted is reprehensible—namely that I should have proceeded without having proof beyond a reasonable doubt. The public has a right to believe that prosecution decisions are made on legal, not political, grounds. . . .

After reviewing more than 100 complaints of voter fraud, I felt there was one possible case that should be prosecuted federally. I worked with the F.B.I. and the Justice Department’s public integrity section. As much as I wanted to prosecute the case, I could not overcome evidentiary problems. The Justice Department and the F.B.I. did not disagree with my decision in the end not to prosecute.]


4. Karl Rove and others went further: They decided to use the levers of federal governmental power -- the prosecution power, in particular -- to go after nonexistent voter fraud, and thereby to further suppress voter turn-out in closely contested elections, all in order to enhance Republican electoral prospects. (Simultaneously, other sorts of decisions at DOJ (e.g., pursuant to the Voting Rights Act) were also substantially influenced by partisan electoral considerations.)

5. Until this Administration, White House officials such as Rove would not have been permitted to contact persons in the Justice Department in connection with prosecutorial decisions. But those rules were rescinded by the Bush Justice Department.

6. Rove and other White House officials urged DOJ to bring "voter fraud" prosecutions in many contested states and districts -- and even to do so close to the date of elections, contrary to longstanding DOJ policies.

7. Some U.S. Attorneys -- loyal Republicans all -- after concluding that there was, after all, no basis in fact for bringing such prosecutions, especially not so close to elections, when such prosecutions could have an unwarranted impact on election outcomes, understandably declined to prosecute.

8. The President unceremoniously removed many of those U.S. Attorneys -- not because anyone at DOJ thought they were doing a bad job (everyone of note in DOJ has disclaimed responsibility for having identified these officials for removal), but instead because Rove and his operatives in the White House were frustrated at the prosecutors' unwillingness to bring unwarranted voter-fraud prosecutions. (Other U.S. Attorneys were cashiered for analogous partisan electorial reasons, such as their refusal to bring charges against local Democratic officials, or their peristence in investigating Republican officials.)

9. In order to further ensure that the White House has much greater, unfettered, influence over the machinations of the criminal justice system, the Attorney General determined that personnel decisions at DOJ would no longer be subject to the institutional and professional screens that had long been in place, but would instead be delegated almost entirely to undistinguished, inexperienced young attorneys whose only qualification for being assigned that important responsibility was that they were loyal Republican foot soldiers, unequivocally responsive to the direction of Rove, et al.

10. The attempts by government officials to bring pressure on U.S. Attorneys to bring prosecutions -- or to forego ongoing investigations -- for partisan electoral objectives may well have constituted criminal violations of 18 U.S.C. 1505 ("Whoever corruptly . . . influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, . . . Shall be fined under this title, imprisoned not more than 5 years"); and/or 18 U.S.C. 1512(c)(2) ("Whoever corruptly . . . obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.").

At the very least -- and more significantly -- such efforts constituted a breach of the President's constitutional obligation to "take Care that the Laws be faithfully executed."

* * * *

For the most part, the media have understandably been focused thus far on Point No. 8. But the real heart of the scandal -- the much more important long-term outrage -- is Point No. 4, the abuse of governmental authority for partisan ends.

Saturday, May 12, 2007

The elephant in Ms. Goodling's room

Sandy Levinson

Eric Lipton has an extensive story in today's (May 12) New York Times about Monica Goodling. titled "Colleagues Cite Partisan Focus by Justice Official." It details many of the ways that she thoroughly corrupted the process of hiring within the Department of Justice by taking a rabidly "partisan focus" for what is supposed to be a non-political process of hiring. Still, the story walks on eggs with regard to one of the most important aspects of Ms. Goodling, her religious zeal. Lipton mentions that she graduated from Regent Law School, '99, and notes that that is Pat Robertson's law school. But there has still been no genuine examination of the extent to which Ms. Goodling used her remarkable clout within the Justice Department to focus on hiring not only conservative Republicans, but also persons who were equally opposed to what she no doubt believes is the sinful secularism of modern society. I doubt that she was preferring Evangelical Protestants as such; rather, I think the key to being hired might well be a strong religious identification, and one proxy for that was attending identifiably religious law schools, including, for example, Brigham Young, Regent, Catholic University (though not Georgetown, I strongly suspect), or Marquette. Sooner or later, someone should go through the bios of people hired over the past three years or so, i.e., since the triumphalist election of George W. Bush in 2004 (I refuse to call it a "re-election"), and see how many of them graduated from such schools, as against more secular schools (and, of course, how many of those hired from the latter had been vetted by virtue of their affiliation with the Federalist Society and the like, apparently something highly important to Ms. Goodling). Just to be clear, I think that the DoJ should be hiring lawyers from all sorts of backgrounds; it would be outrageous if a strong religious identity or memership in the Federalist Society were a disqualification. But I think that it's ever more clear that with the Bush Administration we're not remotely talking about genuine respect for the mosaic of American culture. They are eager participants in a full-scale culture war and should be recognized as such.

No one really knows how to address the issue of religion in contemporary politics. It is considered tactless in the extreme to note that the five-justice majority in the recent Carhart case are all Catholics, just as, I suppose, umbrage might be taken if Justices Ginsburg and Breyer were regularly identified as Jewish. But this is the elephant in the room, and it's not going to go away.

[UPDATE: It is obviously the case, as one of the comments below notes, that not all Catholics (or any other group) are alike. Justice Brennan is the clearest counterexample to, say, Justice Scalia. That being said, I think it relevant to note that Brennan grew up in a world typified by John Kennedy's facile speech to the Houston ministers in which he reassured them about the basic irrelevance of any Catholic beliefs he might have held (and his biographers suggest that Kennedy indeed did not take religion very seriously). Brennan therefore had no trouble assuring the Senate Judiciary Committee that in any conflict between the Constitution and the Church, he would always prefer the Constitution, a viewed deemed "idolatrous"--I think for good reason--by Thomas Shaffer. The modern Catholic church is considerably more more militant with regard to disciplining political figures who stray too far from its teachings. as exemplified by Pope Benedict's comments this past week in Brazil about the self-excommunication of politicians who support abortion rights. I have a piece forthcoming on this general topic in an issue of the St. Thomas Law Review devoted to a fascinating symposium held there last year on the occasion of the Supreme Court's becoming majority Catholic. (For obvious reasons, a Catholic law school can openly discuss such a topic in a way that no other law school can.)]

One of These Things is Not Like the Others

Marty Lederman

In a post earlier today, guest-blogger Mike Paulsen suggests that a cert. petition currently pending before the Supreme Court is redolent of such landmark race-discrimination cases as Brown v. Board of Education, Cooper v. Aaron, and, especially, Runyon v. McCrary and Bob Jones Univ. v. U.S. (both of which involved unlawful racial segregation in private schools). [NOTE: Unbeknownest to me and Mike, the Supreme Court dismised the petition last Friday, pursuant to an agreement among the parties (see S. Ct. Rule 46.1).]

Mike characterizes the admissions practices of the Kamehameha Schools in Hawai'i as "brazenly racist" -- analogous to the practices in those nefarious cases of infamy --- and goes so far as to imply some sort of kinship between Orville Faubus and John W. Davis, on the one hand, and Prof. Kathleen Sullivan of Stanford, on the other, because Kathleen is representing the Kamehameha schools.

Notably absent from Mike's post is any acknowledgement that the Kamehameha policy is intended as a remedy for the past harms inflicted by the national government on Native Hawai'ian peoples -- or that that same objective also underlies several current federal statutory preferences for Native Hawai'ians.

Reasonable minds can and do differ on whether, in light of that remedial purpose, the Kamehameha admissions program violates the statute at issue in the case, 42 U.S.C. 1981 -- and perhaps even on the narrower question currently before the Court, which is whether this sui generis case is is cert.-worthy. (For various perspectives on the statutory question, see the opinions in the court of appeals' decision.)

But, with all respect, to suggest that the case is Runyon Redux, or that Cooper v. Aaron is an apt analogy, is simply disingenuous, in that it quite deliberately elides substantial differences in the facts and contexts of the cases, and it ignores the dramatically different rationale for the race-conscious practice in the current Kamahemeha case.

Those infamous earlier cases such as Cooper and Runyon dealt with schools that viewed and treated African Americans as racially inferior, and that discriminated against African-American students as a means of effecting racial segregation throughout the public life of the American South.

Whatever one thinks of the particular legal issue in Kamehameha, the facts in that case are a far cry from Jim Crow or from the private race-segregation that followed in its wake in cases such as Runyon.

That much can be seen quite clearly from the Statement of Facts in Kathleen Sullivan's Brief in Opposition, which includes the following:
Kamehameha Schools has sought from its inception to fulfill Princess Pauahi's intention to use education to lift up the Native Hawaiian people from the devastation they had suffered from Western contact -- through self-help, “without asking any favors which they were not likely to receive.”

Kamehameha Schools' mission is to advance the educational opportunities and achievement of Native Hawaiian children, defined as descendants of the indigenous inhabitants of the islands prior to the first Western landfall in 1778. The educational programs operated by the Schools seek to redress the profound educational deficits that Native Hawaiian people continue to suffer. As Congress found in the 2002 Native Hawaiian Education Act (“NHEA”), Native Hawaiians lag behind other groups markedly with respect to educational test scores, special education needs and representation in higher education. 20 U.S.C. § 7512 (14)-(18); see Pet. App. 168a-171a. These educational deficits contribute to Native Hawaiians' place at or near the bottom of all groups in Hawaii with respect to wealth, income, health and other indicators of social welfare.

* * * *

Congress has enacted numerous programs for the specific benefit of the Native Hawaiian people, based on the recognition that past actions of the United States itself have done Native Hawaiians grievous harm. Congress has acknowledged that “Native Hawaiians are a distinct and unique indigenous people with a historical continuity to the original inhabitants of the Hawaiian archipelago, . . . [who] lived in a highly organized, self-sufficient subsistence social system based on a communal land tenure system with a sophisticated language, culture, and religion.” 20 U.S.C. § 7512(1). This successful civilization was virtually destroyed by disease and commercial exploitation after Western contact began in 1778, and by the twentieth century, the Native Hawaiian population had dramatically declined. See Pet. App. 160a-161a.

The Hawaiian Kingdom was unlawfully overthrown in 1893. Congress has expressly admitted the United States' complicity in the overthrow and has formally apologized for those actions. 1993 Apology Resolution, Pub. L. No. 103-150, 107 Stat. 1510, 1513 (1993); see Pet. App. 161a-163a. Congress likewise has recognized that the resulting economic and social changes in Hawaii “have been devastating to the population and to the health and well-being of the Hawaiian people.” 107 Stat. at 1512. In 1896, the use of the Hawaiian language was banned as a method of instruction in the schools, a ban that was lifted only in 1986. Indigenous art, music, craft and ceremonies likewise were nearly destroyed. Pet. App. 163a-165a. The United States annexed Hawaii in 1898.

To remedy these harms, Congress has enacted numerous laws directing programs specifically to Native Hawaiians. These include particular benefits for Native Hawaiians in educational programs. The Hawkins-Stafford Elementary and Secondary School Improvement Amendments of 1988, Pub. L. No. 100-297, 102 Stat. 130 (1988), authorized “supplemental programs to meet the unique educational needs of Native Hawaiians” and federal grants to Native Hawaiian Educational Organizations to help increase educational attainment among Native Hawaiians. 20 U.S.C. §§ 4902-03, 4905 (1988) (repealed 1994).

Congress again acted to remedy the educational disparities faced by Native Hawaiians in 1994, when it enacted the first NHEA. See Pub. L. No. 103-382 § 101, 108 Stat. 3794 (1994), (originally codified at 20 U.S.C. §§ 7901 et seq. (2000)). Recognizing that Native Hawaiians continue to have disproportionately low levels of educational attainment, id. § 7902(17), the NHEA established educational programs reserved expressly for Native Hawaiian students, id. §§ 7903-7910.

In 2002, Congress reenacted the NHEA, authorizing a variety of educational programs for Native Hawaiians in recognition that “Native Hawaiian students continue to begin their school experience lagging behind other students in terms of readiness factors such as vocabulary test scores,” “continue to be underrepresented in institutions of higher education and among adults who have completed four or more years of college,” and “are more likely to be retained in grade level and to be excessively absent in secondary school.” 20 U.S.C. § 7512(16). The educational programs funded by the NHEA are targeted exclusively at Native Hawaiians. See 20 U.S.C. § 7515(3) (Supp. II 2002).

Such congressional policies continue to the present. In February, 2007, Congress again authorized the appropriation of $62.5 million in federal funds for exclusive Native Hawaiian benefit programs, including nearly $34 million for Native Hawaiian education programs under the No Child Left Behind Act.
I know Mike sincerely believes that this remedial rationale is not a justification for the admissions policy of the Kamahemeha Schools, that the admissions policy of the schools violates section 1981 -- and, presumably, that the federal statutes cited in the BIO are themselves unconstitutional. Fair enough. Those arguments deserve debate on their merits.

But it does not advance the discussion in any meaningful respect, frankly, to simply assert a direct analogy to cases such as Cooper and Runyon.

In this regard, it is worth pointing out, as well, that the dissenters in the court of appeals did not treat Kamehameha as the second coming of Cooper v. Aaron. To the contrary, they indicated that as a matter of first impression, they would not have held that the statute bars this sort of private conduct at all -- that they were in dissent only because of Warren-Court-era decisions that they obviously doubt, such as McDonald v. Santa Fe Trail Co. and Jones v. Alfred Mayer Co., which held not only that section 1981 prohibits discrimination against whites, but also that Congress has the power under the Thirteenth Amendment to prohibit such discrimination (a holding that is critical to the constitutionality of the pending hate-crimes statute I discussed here the other day). And Judges Kleinfeld, Kozinski and O'Scannlain went so far as to write that "[t]he Kamehameha Schools are admirable in many ways, and there are good historical and social reasons why reasonable people might want to follow just such [an admissions] policy." Indeed, Judge Kleinfeld wrote that because of those judges' "admiration for Kamehameha Schools," he "might have preferred to avoid deciding this case, if some jurisdictional defect existed."

Now, does that sound like Cooper v. Aaron?

P.S. In light of Mike's past impassioned defense of an alleged constitutional right of private discrimination in schools (especially religious schools) and in cases such as Boy Scouts v. Dale, I was surprised not to see any serious discussion of that constitutional issue in his post-- let alone any attempt to explain why Mike thinks the Boy Scouts' constitutional right to discriminate against gay men is more worthy of respect than the right of the Kamehameha Schools to attempt to remedy past gross injustices against a discrete group. (FWIW, I would not recognize that constitutional right -- I think the First Amendment analysis in Runyon was right; and that Dale was wrongly decided.)

Friday, May 11, 2007

Precedent's proper role

JB

In response to Andrew's last post, let me say that I agree with Justice Thomas and disagree with Andrew. Precedent should implement constitutional text and principle rather that displacing them. Precedents that are not reasonable implementations of the original meaning of the constitutional text and its underlying principles deserve no special respect and should be discarded.

However, Justice Thomas and I disagree about what fidelity to the original meaning of the text requires. To derive original meaning he often looks to practices and principles as they would have been understood at the time the text was framed (his opinions regarding the equal protection clause are a notable exception); thus his version of original meaning originalism is heavily informed by what I have called original expected application. In contrast, I argue that each generation must implement original meaning and underlying principles in the context of its own times. Precedent assists in this implementation and promotes constraint, stability and predictability in judicial interpretation. But it should always serve constitutional values rather than substitute for them.

In my view the New Deal is perfectly consistent with the original meaning of the constitutional text and its underlying principles. So too is the use of paper money as legal tender. I also have no problem with the constitutionality of (some) race-conscious affirmative action, as long as it does not involve class or caste legislation.

Andrew's critique of Justice Thomas is premised on Andrew's assumption that originalism-- including original meaning originalism of Thomas's variety-- requires fidelity to understandings and practices at the time of the adoption of the constitutional text. This leads to endless conflicts between precedent and originalism. (Andrew also runs together original intention and original meaning, which are not quite the same thing. Thomas advocates following original meaning, not original intention, although in some cases the results Thomas reaches are similar to what an inquiry into original intention would counsel.).

However, not all versions of originalism produce this conflict between original meaning and modern practices. In fact, one argument for my version of originalism is precisely that it allows us to understand the most valuable achievements of American constitutionalism in the past two centuries as reasonable implementations of text and principle rather than mistakes that we are stuck with because it would now be too politically embarrassing to disown them.

Welcome to Iran: A defense of precedent in constitutional law

Andrew Koppelman

I recently debated my Northwestern colleague and friend, Steven Calabresi, on the topic of precedent in constitutional law. Below are my remarks.

Should precedent be part of constitutional law? This is a surprising question, since it is such a well entrenched part of our practice. Precedent is most of what we teach and study in our Constitutional Law classes. It dominates treatises on the subject. Asking whether we ought to be doing this has an air of unreality, like asking whether we ought to be using our feet to transport our bodies from one place to another. The proposal to discard it also has too many destructive implications to enumerate them all here. I’ll focus on its effect on a single question: the powers of the federal government.

So let’s start by noticing some aspects of reality. Modern industrial economies involve a vast and complex web of transactions, with equally complex effects. Those effects require an equally complex pattern of regulation. Consumers rely on government to regulate the quality of many of the goods and services they are sold – to guarantee that the medicines they buy are safe and effective, that their cars will not explode on impact, and that the meat they purchase in the supermarket is not tainted. Transactions often have external effects on nonparties, notably pollution. There is a wide array of well-known types of market failure, such as collective action and holdout problems. Unregulated economies are also subject to catastrophic cycles of boom and bust, which modern central bankers have learned to moderate. In every advanced industrialized country, there is a huge regulatory apparatus that addresses these problems. Unemployment and welfare benefits are provided; health, education, labor relations, and the environment are regulated; civil rights are protected. Nowhere does government have the modest economic role it had 200 years ago.

The United States, however, has a unique problem, arising out of our Constitution.

Article I of the Constitution gives Congress limited, enumerated powers. Among these is the power “to regulate Commerce . . . among the several States.” The Constitution does not explain what that means. For more than a century, the Supreme Court has adopted ever-broader interpretations of the Commerce Power, upholding on this basis the New Deal legislation of the 1930s and the Civil Rights Act of 1964. There is a logic to this: nearly all human activity affects interstate commerce in some way. But in 1995, the Rehnquist Court began to strike down federal laws as exceeding Congress’s powers, and it is continuing down this path.

There are two reasons why courts have been drawn to expansive readings of federal power that stretch the literal meaning of the text. The first, as I just noted, is the press of necessity in a modern economy. The other is that the Constitution is extremely difficult to amend. Even Franklin Roosevelt, with his huge supermajorities in the 1930s, thought it too much trouble to try.

The commerce power aside, the federal government now exercises many powers that the framers did not contemplate. Even the most dedicated originalists don’t propose doing away with all these powers. Most notable is the power to print paper money. The Constitution does not authorize paper money, and the framers were pretty clearly opposed to any such power. Time has proven them wrong. A judicial decision taking away that power would bring about one of the worst economic catastrophes in the history of the human species, whose destructive reverberations would be felt everywhere on the planet. Any judicial philosophy that regards this as a hard case should be regarded as lunatic on that basis alone, somewhat like a mother bemusedly deliberating on whether it would be a good idea to cut her children’s throats.

The framers of the Constitution had no intentions at all with respect to problems that they did not and could not foresee. The most pertinent such intention was the resolution of the 1789 Philadelphia Constitutional Convention that Congress should be able to legislate in all cases “to which the states are separately incompetent, or . . . in which the harmony of the United States may be interrupted by the exercise of individual Legislation.” This was later revised, by a “Committee of Detail,” to become the present Article I, but no one seems to have thought that they were changing the substance of Congress’s powers, and the revision was accepted by the Convention without discussion. While the framers meant for there to be some limits on Congress’s power, they did not mean to incapacitate it to deal with real problems.

Fortunately, we’re not bound by the framers’ lack of foresight. Contemporary constitutional interpretation treats original intent as one, but only one, source of law. Constitutional arguments, as Philip Bobbitt has shown us, draw on text, original intent, the constitutional structure, precedent, ethical considerations, and prudence. In existing practice, there is no clear order of rank among these sources of law. Well-settled practices can trump original intent and even text on occasion. The so-called originalists on the present Supreme Court, Justices Scalia and Thomas (and the late Chief Justice Rehnquist), sometimes act consistently with this view. For instance, they have invoked the precedents surrounding the Eleventh Amendment to stretch that provision’s ban far beyond its plain text.

The constitutional philosophy of originalism is a radical challenge to the conventional view. It proposes to discard every source of law other than text, as filtered through the original meaning. This promises to reduce the judicial discretion that is created when judges are called upon to balance all these considerations in this mushy way.

I’ve already noticed that, in the Eleventh Amendment context, the originalists do not follow this method at all. Another example is affirmative action; all the originalist evidence we have indicates that the framers of the Fourteenth Amendment had no objection to racial classification. Their response to these difficulties has been to maintain a delicate silence about them. Do you really think it’s coincidental that originalist methods in these cases would reach results these judges find politically unwelcome? So the first thing to notice about originalism is that its leading judicial proponents don’t really believe this stuff themselves.

There are, however, serious and thoughtful proponents of originalism in the academy, and it is to them that I will now respond.

It is reasonable to ask why precedent should ever have any weight in constitutional decisionmaking. When we interpret a Constitution, aren’t we just supposed to be following the text? And isn’t a text supposed to mean what it meant when it was written?

One answer looks to the source of authority of any law. The laws of every regime on the planet have authority only because they are embedded in a practice of legal behavior that assigns them weight. Therefore, no law – not the written constitution, nor any other source of law – can claim more weight than existing practice assigns it. In particular, the source of law that gets its legitimacy from a practice, here the practice of American Constitutional Law, cannot itself be a reason for challenging that practice.

One might respond that the Constitution gets its authority, not from any existing practice, but from the ratification by We the People in 1789. But perhaps you’ll have noticed that all of the original ratifiers are dead. If the Constitution has continuing authority, it’s because the present generation chooses to give it that authority. And our continuing deference is not given only to the text, but to the whole set of practices that surround that text. Including precedent.

There’s a second, related but distinct, reason for following precedent. This reason draws from the writings of the founder of modern conservatism, Edmund Burke. Burke developed his views in response to the French Revolution, which proposed to trash all the old institutions of the monarchy. The institutions we have inherited, Burke observed, are fragile, the product of years of evolution, and not easily replaced. No one is wise enough to craft a polity from the ground up. Societies evolve, sometimes in strange ways, but the strangeness is not a reason to disturb a status quo whose value we can only dimly apprehend. The twentieth century’s disastrous experiments with socialism have vindicated, as much as anything could, Burke’s warning that “very plausible schemes, with very pleasing commencements, have often shameful and lamentable conclusions.” Unintended consequences are the rule rather than the exception in policymaking.

Burke’s warnings seem relevant to proposals, strangely labeled “conservative,” to discard large elements of the modern administrative state in the name of original intent. I set aside the very large question of whether the original intent is even knowable. It is a delicate question whether framers who envisioned a modest role for the federal government would have retained that view if they took account of the needs of a modern industrial economy. I will note that they did understand their limitations. Two centuries ago, Chief Justice Marshall warned against an “unwise” interpretation of the Constitution that would “provide, by immutable rules, for exigencies which, if foreseen at all, must have been seen dimly, and which can be best provided for as they occur.”

The most radical originalist on the Court is Justice Thomas. In his concurring opinion in United States v. Lopez, he proposed to revive the rule, dead since the 1930s, that Congress could regulate trade but not production, so that manufacturing, mining, and agriculture would be beyond the scope of federal regulation. The result would be a the biggest upheaval in the history of American government, requiring the destruction of large parts of the federal government and the adoption of a less regulated economy than exists anywhere else in the advanced industrial world. But then Thomas hesitated, and on Burkean grounds. He conceded in a footnote that “Although I might be willing to return to the original understanding, I recognize that many believe that it is too late in the day to undertake a fundamental reexamination of the past 60 years. Consideration of stare decisis and reliance interests may convince us that we cannot wipe the slate clean.” But this does not stop him from wanting to revive the trade/manufacturing distinction. It just means that he may not be willing to go all the way back to 1789.

What is going to restrain him? And when will he be restrained? Which “stare decisis and reliance interests” will suffice to keep which parts of the federal government from going under the axe? Text and original intent are no help here. Justice Thomas will have to decide for himself which of the hundreds of existing institutions he will allow to survive, evidently with nothing to rely on but his own political judgment.

In Thomas’s world, the elected government will be permitted only to do those things that are acceptable to an elite group of scholars, schooled in ancient lore mysterious to most citizens, who have a veto over what the legislature can do. (After Bush v. Gore, they also have taken unto themselves a veto over who can assume elected office in the first place.) The United States will be part of the modern world only to the extent that these unelected clerics permit it.

This is not America. This is Iran.

This kind of oligarchy can coherently be justified if you think that the clerics have a direct line to the will of God, to whom elected officials are obligated to defer. But of all the reasons that might be offered for taking us there, there is something heroically daffy, a kind of willful mortification of the intellect, in the reasons we are in fact being given: that it is necessary in order to protect democracy and constrain judicial discretion.

In Some Parts of America, at Some Times in Our History . . . [Part 1]

Michael Stokes Paulsen

This is the story of events not so long ago, in a galaxy not so very far away.

Fifty years ago this summer and fall was the crisis of Little Rock. Governor Faubus invoked state authority and power to resist public school desegreation and the effect of Brown v. Board of Education in his state. The matter was resolved, finally, by President Eisenhower's decision to send in troops to assure integration. The Supreme Court, in its famous decision in Cooper v. Aaron (1958), held that state resistance to integration was not a legitimate basis for a district court's refusal to order desegregation remedies.

Part of the sorry history of that era, lingering well beyond the summer and fall of fifty years ago was the spread of the idea of the private segregated secondary school -- racially exclusive private schools -- as a way to circumvent the effects of Brown. The very idea is repulsive. It was a perversion of the noble idea of freedom of expressive association, used to justify a regime of private segregation and cynical (attempted) efforts to evade civil rights laws dating to the close of the Civil War.

It is, perhaps, of some comfort that such a situation is almost unimaginably hard to picture today. It seems awful to contemplate the notion that, in some parts of America, notably its southernmost region, a private school would establish as its official stated policy, seek to enforce by its practices, and fight to the death to maintain through litigation, in the teeth of federal civil rights law (42 USC section 1981), a racially exclusive private academy -- a secondary school where no one not of the favored race need apply.

Can one imagine what legal arguments possibly could be made to defend such a practice, were such an institution to operate today and be sued by a member of the excluded race who wished to apply for admission to the school in question? Today, of course, the legal issues would be regarded as straightforward and essentially long settled by judicial decisions made over the course of the last fifty years.

Section 1981, which forbids (among other things) discrimination on the basis of race in the making and enforcement of private contracts, is considered within the constitutional power of Congress, and reaches purely private conduct. Patterson v. McLean Credit Union (1989) (collecting prior authority). The statute has been applied specifically to the phenomenon of racist private academies, and found constitutional in such application, prevailing over pretextual claims of First Amendment immunity under the rubric of the freedom of expressive association to run a racially exclusive school to promote our-race-only practices. Runyon v. McCrary (1976). Even a good-faith claim of sincere religious practice (though one would question whether such faith is "good" in any sense other than being sincerely-held) would fail, rightly or wrongly, under reasonably well-settled law. Bob Jones University v. United States (1983); Employment Division v. Smith (1990). And, of course, any claim that a race-exclusive school might be immune from the law's strictures on the basis of promoting "diversity" in education would be laughed out of court, one would hope derisively. Not even Grutter v. Bollinger (2003) could be used to support such a claim. No school needs a "critical mass" of a 100% racially exclusive student body! See also Virginia v. United States (1996) (finding single-sex state post-secondary education unconstitutional and in violation of federal civil rights laws).

Still, what if such a private school, located in a remote and somewhat isolated outpost of America's southernmost regions and backed by a huge endowment and supporters who vehemently defended the school's policies of racial segregation in (private) education, existed? What if the school suddently found itself confronted with a courageous plaintiff challenging such brazenly racist practices? Could the school possibly endure the political consequences of maintaining, in this day and age, such racial practices? Or might it still be possible that local public opinion would be enough to sustain it? Could the school find a high-caliber, nationally-prominent attorney to defend its practices? (Brown, if I recall correctly, was argued, on the wrong side, by John W. Davis, one of the most prominent appellate practitioners of all time.) Even if it could find good lawyers to defend it, what arguments could the lawyers possibly employ, with a straight face, that might give the racist school a fighting chance? And would there be any reasonable possibility that the racially exclusive academy could find even one judge -- like the federal district judge in the Cooper v. Aaron Little Rock litigation -- so willing to bow to local public opinion or the perceived views of (certain) elites in his or her community, as to be willing to sustain the practices of the racially exclusive academy against the application of a qualified high-school applicant? Could one find a district judge that would find that the locality's distinctive "culture" or "unique history" or traditional ways of life provided such a special "context" that the nation's laws did not apply, or did not apply so as to prohibit racial discrimination? Could a court find a way to avoid the force of the legal principles set forth in the preceding paragraph?

Could such a situation happen today, in some parts of America?

As you might have guessed, the case I have in mind is not a hypothetical. It is entitled John Doe v. Kamehameha Schools. The Supreme Court, reportedly, conferenced on the petititon for certiorari in Doe v. Kamehameha yesterday (Thursday), after "re-listing" it several times.

The racially exclusive school won below, narrowly, in an en banc decision of the Ninth Circuit (8-7), which reversed the 2-1 panel decision for the student, which had reversed a district court judgment for the school. The racially exclusive private academy was represented in the Ninth Circuit, and is now represented before the U.S. Supreme Court, by Professor Kathleen Sullivan of Stanford Law School, one of the top constitutional scholars and advocates in the nation (and someone whose scholarship I respect greatly).

There is a bit more to the story, which I will save for a subsequent post. But there is nothing that should change the applicable principle.

A brief disclaimer and admission of bias: I was co-counsel, on a brief addressed to a remedial issue at the panel opinion stage, for John Doe, the courageous young man who sought to be admitted to this private school in the face of the most blatant and intense racial discrimination imaginable. (His anonymity is preserved in order to protect him from retaliation and possible violence.) Last summer, before the Ninth Circuit en banc argument, I hosted a moot court for John Doe's lead counsel, Mr. Eric Grant, consisting of a panel of constitutional and civil rights law professors at the University of Minnesota Law School.

John Doe has now graduated and is in college. But his claim for damages was not mooted by his graduation.

-- Michael Stokes Paulsen

General Petraeus on Torture and "Other Expedient Methods"

Marty Lederman

This is a remarkable, powerful letter. (Text below.) Imagine, if you can, how different the world might look if such a letter had been promulgated throughout the military by someone of such stature at the beginning of 2003. What's distressing, of course, is that it is virtually unimaginable that such a letter would have emanated from Rumsfeld's Pentagon. Just four years ago, this was the guidance conveyed to those in charge of detention practices in Iraq. The contrast could not be starker.

"Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy. . . . We are engaged in combat, we must pursue the enemy relentlessly, and we must be violent at times. What sets us apart from our enemies in this fight, however, is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect. . . . Leaders, in particular, . . . need to set the right example and strive to ensure proper conduct. We should never underestimate the importance of good leadership and the difference it can make."

Such words, although well-nigh inconceivable in 2003, are hardly unprecedented. General Petreaus here is demonstrating fidelity to the grandest American military traditions, plainly invoking the historical examples of General Washington, and of President Lincoln, both of whom insisted upon a strict standard of humane treatment, and an absolute prohibition on cruelty, even in the face of brutal and indiscriminate—that is to say non-reciprocal—treatment of our troops by our enemies.

If only our current President would heed the words of General Petraeus and General Washington and President Lincoln . . . .

The Petraeus letter stresses that torture and "other expedient methods to obtain information from the enemy" are not only "wrong" and (unequivocally) "illegal," but also that "history shows that they also are frequently neither useful nor necessary."

And yet, . . .

even now, the Commander in Chief, ignoring the wisdom of General Peteraus, insists that such techniques are among "the most vital tools in our efforts to protect this country," and there continues to be a "sharp debate" within the Administration as to whether the CIA shall be authorized to engage in such "expedient actions."

In this respect, one can't help but wonder whether the debate about the CIA is the source of the single discordant, and uncharacteristically awkward, note in General Petraeus's letter: the modifier "frequently" ("Beyond the basic fact that such actions are illegal, history shows that they are also frequently neither useful nor necessary. . . ").

What are the odds that the Vice President's Office insisted upon insertion of that ungainly adverb?


HEADQUARTERS
Multi-National Force—Iraq
Baghdad, Iraq
APO AE 09342-1400

10 May 2007

Soldiers, Sailors, Airmen, Marines, and Coast Guardsmen serving in Multi-National Force—Iraq:

Our values and the laws governing warfare teach us to respect human dignity, maintain our integrity, and do what is right. Adherence to our values distinguishes us from our enemy. This fight depends on securing the population, which must understand that we—not our enemies—occupy the moral high ground. This strategy has shown results in recent months. Al Qaeda’s indiscriminate attacks, for example, have finally started to turn a substantial portion of the Iraqi population against it.

In view of this, I was concerned by the results of a recently released survey conducted last fall in Iraq that revealed an apparent unwillingness on the part of some US personnel to report illegal actions taken by fellow members of their units. The study also indicated that a small percentage of those surveyed may have mistreated noncombatants. This survey should spur reflection on our conduct in combat.

I fully appreciate the emotions that one experiences in Iraq. I also know firsthand the bonds between members of the “brotherhood of the close fight.” Seeing a fellow trooper killed by a barbaric enemy can spark frustration, anger, and a desire for immediate revenge. As hard as it might be, however, we must not let these emotions lead us—or our comrades in arms—to commit hasty, illegal actions. In the event that we witness or hear of such actions, we must not let our bonds prevent us from speaking up.

Some may argue that we would be more effective if we sanctioned torture or other expedient methods to obtain information from the enemy. They would be wrong. Beyond the basic fact that such actions are illegal, history shows that they also are frequently neither useful nor necessary. Certainly, extreme physical action can make someone “talk”; however, what the individual says may be of questionable value. In fact our experience in applying the interrogation standards laid out in the Army Field Manual (2-22.3) on Human Intelligence Collector Operations that was published last year shows that the techniques in the manual work effectively and humanely in eliciting information from detainees.

We are, indeed, warriors. We train to kill our enemies. We are engaged in combat, we must pursue the enemy relentlessly, and we must be violent at times. What sets us apart from our enemies in this fight, however, is how we behave. In everything we do, we must observe the standards and values that dictate that we treat noncombatants and detainees with dignity and respect. While we are warriors, we are also all human beings. Stress caused by lengthy deployments and combat is not a sign of weakness; it is a sign that we are human. If you feel such stress, do not hesitate to talk to your chain of command, your chaplain, or a medical expert.

We should use the survey results to renew our commitment to the values and standards that make us who we are and to spur re-examination of these issues. Leaders, in particular, need to discuss these issues with their troopers—and, as always, they need to set the right example and strive to ensure proper conduct. We should never underestimate the importance of good leadership and the difference it can make.

Thanks for what you continue to do. It is an honor to serve with each of you.


David H. Petraeus
General, United States Army
Commanding

Thursday, May 10, 2007

"Operating an Eighteenth Century Constitution in a Twenty-First Century World"

Mark Graber

Last December, the University of Maryland School of Law held a constitutional schmooze, a new kind of academic conference where the emphasis is on conversation rather than the delivery of formal papers. Our subject was "An Eighteenth Century Constitution in a Twenty-First Century World," a rather obvious reference to fascinating work being done by Balkinization's own Sandy Levinson and Kim Lane Scheppele, as well as numerous other scholars working on the borders between law, political science, history, and philosophy. The University of Maryland Law Review will soon be publishing some short pieces coming out of this event. I will be writing the introduction, but as a template for some ideas I produced this for our alumni newsletter. Given how often the issues appear on our blog, I hope people find the ideas interesting and provide feedback so I may avoid the errors below in the longer version.

Americans celebrate everything new but national constitutions. We praise all novelties other than novel constitutional provisions or novel constitutions. Our national reverence for an ancient, eighteenth century constitution does foster certain desirable political ends in the twenty-first century. A political culture which venerates inherited rules for choosing lawmakers and inherited rules for making laws is likely to be a stable political culture, and stability is the first virtue of political institutions. Still, even Edmund Burke did not favor blind worship of the status quo. Constitutional commentary limited to praising or perfecting the Constitution of the United States is likely to mask defects that should not be praised and cannot be perfected. At the very least, citizens who insist on conserving constitutions ought to be self-conscious about what is being conserved.


Recent scholarship on American constitutionalism highlights two distinctive problems with strict adherence to an eighteenth century constitution in a twenty-first century world, while discounting what may be a more disturbing failing. Citizens in the twenty-first century may reject some values underlying an eighteenth century constitution. Eager to demonstrate fidelity to the constitutional past, interpreters may imagine purposes behind constitutional institutions that the framers never imagined and which those institutions do not serve. An eighteenth century constitution may not address twenty-first century problems. Eager to preserve the authority of the ancient text, interpreters may engage in imaginative exercises about how white men in bad wigs would have answered political questions that were beyond their capacity to conceptualize. While these concerns with how citizens interpret the constitutional text are important, they may mask broader problems in the constitutional culture. The sort of citizenry that could successfully manage an eighteenth century constitution in an eighteenth century world may not be the sort of citizenry that can successfully manage an eighteenth century constitution in a twentieth-first century world. Scholars who worry about whether the constitution is failing the people might also worry about whether we as a people are failing the constitution.

As Professor Sanford Levinson famously points out in Our Undemocratic Constitution, prominent constitutional institutions were designed to secure ends most contemporary Americans regard as abhorrent. The need to accommodate slavery helps explain why the framers favored proportional representation in the House of Representatives, presidential appointments of federal justices, and the electoral college. The best justification of these practices at present is probably that all democratic institutions have their flaws and that fixed rules that meet some very low democratic threshold may be better than a more fluid system that can be easily manipulated by otherwise transient majorities. The high priests of American constitutionalism, however, cannot stomach the thought that the framers might have created a fairly stable constitution as long as they established any rules, no matter what those rules were. Thus, the electoral college is now considered to be a means for ensuring that candidates do not focus on a few large states, even though any high schooler of above average intelligence could devise a more democratic system for electing the president that served that or other ends now imputed to the provisions in Article II governing presidential elections.

Professor Levinson’s work, as well as recent studies on emergency powers by Professor Kim Lane Scheppele, detail how constitutional institutions in the United States, designed to organize eighteenth century politics, are often unresponsive to twenty-first century problems. The framers had little to say about the speech business, global warming or international terrorism, because they had little or no knowledge of the underlying political phenomenon. Again, the best justification for working within the existing constitution is that the text provides Americans with an adequate, possibly barely adequate, language for discussing twenty-first century problems, that the political energy spent creating new language may do little more than distract from substantive efforts to resolve these problems, and that whatever new language is adopted is likely to become as obsolete as the old language within a generation. Still, constitutional veneration skews constitutional analysis of contemporary problems. Canonical citations to The Federalist Papers are mostly harmless when constitutional commentators simply use James Madison or some other framer de jour as a vehicle for advancing what that commentator believes to be the best construction of executive power during the war against terrorism. The great danger is that such arguments foster the notion that Americans should do whatever James Madison really would do and so ignore basic realities that Madison got wrong. Consider how many commentaries blithely cite Federalist 10 for the proposition that mass political parties cannot arise in an extended republic.

The more fundamental problem with an eighteenth century constitution in a twenty-first century world is that an eighteenth century citizenry may lack the capacities necessary for any twenty-first century constitution. The framers recognized that republican constitutions require that the citizenry have some virtues, although as Madison pointed out, men did not need to be angels. Whether particular constitutional aspirations and particularly constitutional institutions are desirable depends on whether their publics are inspired by those aspirations and are able to operate the institutions in the prescribed fashion. An eighteenth century citizenry is unlikely to be able to manage a twenty-first century constitution. The twenty-first century constitutional order is more democratic than the eighteenth century order. This is true both in a formal sense (constitutional amendments have expanded the electorate, free speech rights are more broadly understood) and in an informal sense (politicians are more aware of public opinion and therefore are more responsive). Hence, a much higher percentage of the population must be motivated by fundamental constitutional aspirations. Political problems are more complex. Hence, a much higher percentage of the citizenry must have the knowledge necessary to determine how in practice fundamental constitutional aspirations may be realized. The eighteenth century constitution did not require the average American citizen to know much about Europe or even be aware that Asia and Africa were continents. The average citizen in the twenty-first century must have expertise in basic science, geography, and politics if constitutional democracy is to promote basic constitutional commitments.

Much evidence suggests that American citizens lack the capacities necessary to manage their constitution in a twenty-first century world. Consider the ease with which popular majorities became convinced that an alliance existed between Al-Quida and Saddam Hussein or the lack any public sense about the difficulties inherent in creating a democratic Iraq. Consider the difficulty scientists have had making Americans aware that global warming presents a grave threat to the environment. Consider the substantial bloc of voters who reject modern science and, when voting, seem more concerned with who loves who then with the secular problems of the day.

Contemporary calls for constitutional reform are too often rooted in the traditional populist contrast between good people and bad institutions. This dichotomy helps explain why those who favor working within the existing constitution are constantly charged with failing to trust ordinary people. Yet the evidence provides good reason for thinking that on matters of foreign policy, environment degradation, and basic decency, ordinary Americans lack the virtues necessary to manage a contemporary constitution. These observations do not justify a jeremiad against any constitutional reform understood as changes in the constitutional text. Rather, the argument is that unless more basic constitutional reform takes place at the level of constitutional culture, Americans are unlikely to have the capacities necessary to manage either an eighteenth century or twenty-first century constitutional text in a twenty-first century world.

The Hollow Men

Marty Lederman

"The White House has said publicly that they were not involved in adding or deleting people from the list." So sayeth the Attorney General in his testimony today -- repeatedly. (Dahlia Lithwick is a must-read.)

Oh, well, that settles it, then. How could I have missed such an all-important fact? The building at 1600 Pennsylvania Avenue has spoken -- "publicly" -- and therefore there can't be any need to make inquiries of the actual human beings within that White House who we have been assuming were at the heart of the U.S. Attorney scandal.

Apart from the case of Bud Cummins (as to whom the AG testified that "a change was desired by the White House because they had identified a well-qualified individual that they wanted to have as a United States attorney"), if "the White House" was not involved in putting U.S. Attorneys such as David Iglesias on "the list," who was?

Not Gonzales.

Not McNulty.

Not Comey.

Not Battle.

Not Moschella.

Not Margolis.

Not Sampson.

Not Goodling. (?? This isn't yet confirmed -- could it be that Monica Goodling's is "the consensus view of the senior leadership of the Department"?)

Who knows . . . ?

The Shadow knows.

Between the idea
And the reality
Between the motion
And the act
Falls the Shadow

Professors Give Up One-Half of Life? (More From Holmes)

Brian Tamanaha

While on the subject of Holmes, contemplate this interesting passage about professors:

...I doubt if there is any more exalted form of life than that of a great abstract thinker, wrapt in the successful study of problems to which he devotes himself, for an end which is neither unselfish nor selfish in the common sense of those words, but is simply to feed the deepest hunger and to use the greatest gifts of his soul.

But after all the place for a man who is complete in all his powers is in the fight. The professor, the man of letters, gives up one-half of life that his protected talent may grow and flower in peace. But to make up your mind at your peril upon a living question, for the purposes of action, calls upon your whole nature.

Was that a slap at professors?

Is there something to what he is saying--that we are out of the action, mostly engaged in satisfying our intellectual urges?

Is it obvious that I am trying to avoid more pressing work?

[From "Law in Science and Science in Law," 12 Harv. L. Rev. 443,451-52 (1899)(an Address to the New York State Bar)]

What's In a Phrase? Ask Oliver Wendell Holmes

Brian Tamanaha

Oliver Wendell Holmes wrote a few brilliant aphorisms. His most famous was initially set out in an 1880 review of Langdell's Contracts book:

"The life of the law has not been logic: it has been experience."

That sounds perfect.

Compare that to the following line he wrote in 1870 to express the same basic idea:

"Law is not a science, but is essentially empirical."

Yuck! That line has never been quoted (until now), as far as I know, and for good reason.

For all the writers who struggle to get a phrase just right, remember this example when you are about to give up in frustration--and toil on.

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