October 18, 2008
Saturday Evening Review
This week's installment of the "Saturday Evening Review" feature of the blog highlights an article I return to year after year. For an excellent schemata of the continuing debates of equal protection doctrine and theory, it's difficult to find a better article than Julie Nice's, Equal Protection's Antimonies and the Promise of a Co-Constitutive Approach, 85 Cornell Law Review 1392 (2000).
I've been using it as a basis for my introductory lecture on equal protection in Constitutional Law classes since I first read it. I also come back to the scheme throughout the semester.
Nice argues that equal protection jurisprudence has evolved around ten principle "antimonies," defined as "binary discourses" rather than "dichotomies" because they "typically present choices between two plausible albeit conflicting principles." Id. at 1394. Generally, I don't adopt Nice's precise use of language in class, but try to present her "binary discourses" merely as conflicting value judgments and principles. Her goal is to demonstrate how these conflicts might be transcended by what she calls a co-constitutive approach.
Here are her ten antimonies:
assimilation or antisubordination
sameness or difference
backward-looking or forward-looking
blindness or consciousness
classification or classes
intent or effects
public or private
process or substance
singular or multiple [identities]
fixed or fluid [identities]
She illustrates her discussion of each of these conflicting notions with a brief discussion of doctrine and theory. Post-2000 cases and theories update but do not alter the usefulness of her scheme. For those familiar with equal protection doctrine and theory, Nice's scheme does not readjust one's insights. But as a methodology for presenting the often unwieldy world of equal protection jurisprudence, it is a true classic - useful, enduring, and adaptable.
South Africa - Constitution & Judiciary
The South Africa Constitution is deemed by many to be one of the most progressive - - - if not the most progressive - - - in the world. However, recent developments threaten the independence of the judiciary and its power.
Judge Carole Lewis, one of South Africa's most respected jurists, discusses the threats to the judiciary by proposed legislation, concluding that:
The threats embodied in the Bills are now given crass voice by politicians who believe they are entitled to tell the courts how to behave and what to decide. Of course considered criticism of decisions is justifiable and indeed often welcome. Legal academics and commentators play a valuable role in constructive criticism of judgments after their delivery. But ill-informed and strident complaints serve no one well. The combination of the incursions into judicial independence by the proposed legislation, and the attacks on members of the judiciary of late threatens our democracy itself.
In addition to discussing these proposals in the context of specific Constitutional provisions, Lewis also discusses the proposal to expand the powers of the South African Constitutional Court beyond constitutional matters, making it a single "apex" court for the nation. Also helpful for those less familiar with South African constitutional law and courts, the first portion of her piece outlines the history and composition of the post-apartheid judiciary.
Originally delivered as a speech in Johannesburg on 14 October, the text is available here.
Continuing Litigation in the FISA case
Raising separation of powers, nondelegation, and due process claims, the Electronic Frontier Foundation as lead counsel for the "AT&T class plaintiffs" filed its opposition to the motion to dismiss the consolidated complaints in the continuing FISA litigation in Northern District of California. As the EFF press release expresses it, the FISA Amendments Act allow the dismissal of the lawsuits about "the telecoms' participation in the warrantless surveillance program if the government secretly certifies to the court that either the surveillance did not occur, was legal, or was authorized by the president. Attorney General Michael Mukasey filed that classified certification with the court last month."
The hearing is set for December 2 - - - just in time for a final examination hypothetical.
Colorado's Check-Off Box and Voting Rights
The NYT reported yesterday that about 6,400 new Colorado voters may barred from voting, because they failed to check a box on the Colorado voter registration form. (The Denver Post article is here; the Colorado Independent reports here.)
The Colorado registration form requires new applicants to provide a driver's license number or Department of Revenue ID number, or the last four digits of their Social Security Number, pursuant to the federal Help America Vote Act. But the Secretary of State is rejecting applicants who provide their SSN, but fail to check a box that states that they do not have a driver's license number or Department of Revenue ID number. Take a look at the Colorado voter registration form here.
A group of advocacy organizations wrote the secretary or state, outlining the problems and alleging violations of federal law.
But is there also a federal constitutional violation here? The Court last term in Crawford v. Marion County Election Board, the Indiana voter i.d. case, seemed to set the bar higher for facial challenges under the Fourteenth Amendment Equal Protection Clause (fundamental rights, and Harper v. Virginia Board of Elections) based on generally applicable and rational restrictions on the right to vote. The Crawford Court ruled that Indiana's interest in preventing voter fraud was good reason enough to justify the hassle factor in the i.d. law.
Here, in contrast, there seems to be no good reason to reject applicants because they failed to check a box. The box isn't required by federal law, and it seems to do nothing to protect against voter fraud. Moreover, a reasonable reading of an application that includes only the SSN (and not the driver's license number or the Revenue ID, and fails to check the box) is that the applicant doesn't have a drivers license of Revenue ID. In other words: The box appears to serve no purpose. If this is right, and notwithstanding any violation of federal law, does this also violate the constitution, even under Crawford?
October 17, 2008
Presidential Signing Statements
President Bush this week issued statements in conjunction with his signature on two bills, claiming that aspects of those bills infringe upon the president's Article II powers. The Washington Post reported here.
Section 6 of the Inspector General Reform Act of 2008 establishes independent legal counsel for agency inspectors general, while Section 8 directs the manner in which inspectors general submit budget requests. As to Section 6, Bush declared that "within each agency, the determinations of the law remain ultimately the responsibility of the chief legal officer and the head of the agency," thus subjecting independent legal counsel for IGs to legal interpretations of politically appointed attorneys and agency heads. As to Section 8, Bush claimed that the budget process infringes upon the president's authority to decide what to recommend to Congress: "The executive branch shall construe section 8 of the bill in a manner consistent with the President's constitutional authority to recommend for congressional consideration such measures as the President shall judge necessary and expedient."
Section 851 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 grants new personnel authority to a co-chair of the Commission on Wartime Contracting in Iraq and Afghanistan, while Section 902 provides for the appointment of a Director of Operational Energy Plans and Programs. Perhaps most interestingly, Section 1211(2) prohibits the use of appropriated funds "[t]o exercise United States control of the oil resources of Iraq," and Section 1508(b) requires the administration to negotiate with Iraq on cost-sharing for support of the "combined operations of the Government of Iraq and the Multi-National Forces Iraq undertaken as part of Operation Iraqi Freedom."
Bush wrote that these four provisions
purport to impose requirements that could inhibit the President's ability to carry out his constitutional obligations to take care that the laws be faithfully executed, to protect national security, to conduct diplomatic negotiations, to supervise the executive branch, to appoint officers of the United States, and to execute his authority as Commander in Chief.
And: "The executive branch shall continue to construe such provisions in a manner consistent with the constitutional authority and obligations of the President."
There's plenty here to supplement your lessons on executive authority, appointment power, foreign affairs, and separation-of-powers. And Sections 1211(2) and 1508(b) of the 2009 Defense Authorization Act offer the added bonus of being in the political spotlight.
On the Lighter Side . . .
Ilya Somin of the Volokh Conspiracy has an interesting reaction to the case of Chambers v. God, the now infamous case where former Nebraska state legislator attempted to sue the Lord. The court dismissed the case for lack of service. But according to Professor Somin, Con Law provides an even better basis for dismissal:
A better technical legal ground for dismissing lawsuits against God might be lack of redressability, which is a requirement of standing under federal law and (I presume) Nebraska law as well. If the plaintiff's injury can't be redressed by a judicial ruling, he doesn't have standing to file a suit. Since God is omnipotent, the judicial injunction Chambers seeks can't possibly force him to do anything he doesn't want to do anyway. Thus, no redessability and no standing.
Enjoy the laugh!
The Teaching Assistant
Hello professors! Here's this week's installment of The Teaching Assistant. This week will cover a number of topics.
The presidential debate offered some interesting Constitutional Law news. First, John McCain stated that he would seek a line item veto. Deja vu, anyone? At any rate, this will provide a great way to make your discussion of Clinton v. New York much more lively. (I'll have more to say about this in a subsequent post.) Second, McCain also indicated that he was opposed to abortion laws including requirements to protect the health (excuse me, "health") of the mother, though this is arguably the least controversial part of the Roe legacy. Sarah Kliff at Newsweek has a great piece explaining exactly what the health of the mother means. Even more helpfully for teaching purposes, she describes how some states deal with the issue.
In War Powers news, today, a deal was reached that appears to signal the beginning of the end of the American involvement in Iraq. One question for students might be: Why is it that under the War powers Resolution, the President can seemingly withdraw the troops without seeking Congressional approval? Is this truly the case? Should it be? Interesting stuff!
As my wonderful co-blogger has pointed out, the fate of the Article III courts could change drastically with the selection of a new president. Tony Mauro of The Legal Times has a wonderful piece asking preeminent legal scholars their opinions on how an Obama or McCain win could impact the Court's stance on abortion, affirmative action, and church/state issues. Your students will definitely be interested in this piece in an election year.
Over at the ACLU blog, they mention something that, as they note, has gone unnoticed: A ballot initiative in the state of Arkansas proposes a ban on any and all adoptions (or foster care placements) by persons who are unmarried. If you are discussing equal protection or fundamental rights, this is interesting on so many levels. While allegedly neutral to all persons who are unwed, it appears clear that the law has an animus toward same-sex families. Moreover, since same-gender marriage is not permitted in Arkansas, there is an additional discrimination. Finally, while I am aware that there is no real fundamentmental right to adopt a child, this hypothetical could be a helpful teaching tool.
Finally, Eugene Volokh's Conspiracy reports that the California Court of Appeal decided that providing funding for women-only domestic violence programs violated the California Constitution. Your students may be interested to know that under the California constitution, gender merits higher scrutiny than under the federal constitution. This may be an interesting point of departure.
That's all for this Friday. See you next week!
State Con Law Development: Utah
Amendments to state constitutions by voter initiative are a prominent feature of recent elections.
In Utah, the legislature sought to curb this practice. And the Utah Supreme Court unanimously ruled today that the law is unconstitutional.
Here's what The Salt Lake Tribune says:
The Utah Supreme Court on Friday struck down a new law limiting citizen-initiative powers.
"This direct prohibition of the subject of an initiative brought otherwise within the conditions, manner and time restrictions imposed by law is beyond the power of the Legislature to enact," wrote Justice Michael Wilkins in voiding SB53.
The unanimous opinion noted that the Utah Constitution gives both the Legislature and the people equivalent power to enact or change legislation.
The rest of the article is available here.
The opinion will be available on the Utah Supreme Court website here.
Two Conferences: The Second Founding, and Deconstructing Reconstruction
The American Constitution Society, the Constitutional Accountability Center, and the University of Pennsylvania Journal of Constitutional Law are hosting a conference at Penn Law on November 13 and 14, The Second Founding and the Reconstruction Amendments: Toward a More Perfect Union. On the 13th, the ACS and the National Constitution Center are co-sponsoring an event, The Legacy of 1808: Deconstructing Reconstruction. Both events are over November 13 and 14; both are in Philadelphia. And the line-ups for both are outstanding. More information and registration here.
October 16, 2008
The Right to an Undiluted Vote
UPDATE, 10/17, 2:04 p.m. ET: The Supreme Court today in a short per curiam opinion granted the secretary of state's application for a stay and vacated the district court's TRO. The Court wrote, "Respondents . . . are not sufficiently likely to prevail on the question whether Congress has authorized the District Court to enforce [the HAVA] in an action brought by a private litigant to justify the issuance of a TRO." The Court expressed no opinion on whether the secretary of state properly implemented the HAVA.
Between the Court's decision last term in Crawford v. Marion County Election Board and the spate of litigation around voter registration and voting practices in the upcoming election, we're seeing the emergence of a new and powerful Right to an Undiluted Vote. This "right" belongs to those who are already properly registered to vote; it protects the strength of their vote against dilution by fraudulent and illegal voters, but also by fully eligible citizens who simply lack the proper i.d. (as in Crawford) or whose voter registration information doesn't match their motor vehicle information (because of changes in names and addresses, clerical errors, and the like). This right is so strong that it apparently hangs on bare and unsubstantiated claims of voter registration fraud (let alone allegations of the more serious voter fraud). Indeed, it is so strong that it may rival or even trump the more conventional Right to Vote. We shall see: The litigation in this election cycle seems primed to pit the Right to an Undiluted Vote directly against the Right to Vote in a way that will test the relative strength of each.
The latest case comes from Ohio, where the en banc Sixth Circuit in Ohio Republican Party v. Brunner just last week reinstated a district court's temporary restraining order requiring the secretary of state to provide all county boards of elections information on voter applicants whose voter registration information does not match their motor vehicle information. The plaintiff-appellee, the ORP, claimed that the secretary of state's procedure for comparing voter information in the state's voter registration database with information in the state's motor vehicle database, and for not reporting specific discrepancies to county election boards, violated the Help America Vote Act. (The ORP also claimed violations of Article II, Section 1, Clause 2 of the U.S. constitution; section 2 of the Voting Rights Act; the National Voter Registration Act; and the Equal Protection and Due Process clauses.) The ORP alleged that the secretary of state's process would lead to voter registration fraud and infringe upon properly registered voters' right to (an undiluted) vote. The case took on greater import when the secretary of state opened a week-long window in which Ohioans could register and vote (absentee) the same day.
But the ORP had no evidence of voter registration fraud resulting from the secretary of state's process. In fact, the district court could only draw on newspaper reports (here and here) of flaws with ACORN's mass registration drives for "specific examples" of irreparable harm to voters' undiluted votes. (The Sixth Circuit majority wrote, "The harm to the plaintiffs is evident from the nature of the claim they assert; they can hardly be required to show actual vote fraud to establish irreparable harm when the county election boards lack the means to detect any fraud that may exist.") But as the dissent pointed out, evidence from other states showed that mismatches resulted mostly from human error, not fraud, and, disturbingly, that mismatches more frequently bar non-white voters than white voters.
In short, ORP claimed a constitutional and statutory Right to an Undiluted Vote based on bare and unsubstantiated evidence of voter registration fraud. And it won (at least for now). But what happens when properly registered voters lose their votes (or get hassled out of their votes) because of a clerical error between the voter registration database and the motor vehicle database? Then we'll see how the Right to an Undiluted Vote fares against the more conventional Right to Vote.
We already have a glimpse of the answer: Crawford pitted those rights against each other in a different way, and the Right to an Undiluted Vote won. And so here's the ironic penultimate chapter in Brunner: the secretary of state's Application for a Stay of a Temporary Restraining Order to the U.S. Supreme Court (and the ORP's Opposition) goes to Justice Stevens (as Sixth Circuit justice), the author of the lead opinion in Crawford.
I'll post updates on the Con Law Prof Blog in this and related cases.
October 15, 2008
More on Judicial Nominations in the Presidential Election
Senators Obama and McCain again tonight addressed judicial nominations, this time in response to a question about overturning Roe v. Wade. There little, if any, new material here--see my previous post on the candidates' positions under Interpretation--but the exchange is nevertheless interesting.
McCain addressed his position on the proper role of the Senate (to vote for nominees based on qualifications, not ideology), his position on Roe (that it was wrong, and that it is an issue for the states), and his ideal justice (the "best [person] in the United States of America who [has] a history of strict adherence to the constitution and not legislating from the bench").
Obama said that the U.S. constitution contains a right to privacy, and that it--no less than the First Amendment--cannot be subject to "state referendum."
Both agreed that a litmus test for candidates to the Supreme Court would be inappropriate.
This latest debate gives us yet another chance to contextualize discussions of federalism, constitutional interpretation, the role of judges in our constitutional system, and, of course, abortion.
The relevant portion of the transcript follows; find the audio and video on c-span (or any other widely available source) at 1:06.25.
MR. SCHIEFFER: All right. Let's stop there and go to another question. And this one goes to Senator McCain. Senator McCain, you believe Roe v. Wade should be overturned. Senator Obama, you believe it shouldn't. Could either of you ever nominate someone to the Supreme Court who disagrees with you on this issue? Senator McCain.
SEN. MCCAIN: I would never and have never, in all the years I've been there, impose a litmus test on any nominee to the court. That's not appropriate to do.
MR. SCHIEFFER: But you do -- you do want Roe v. Wade to be overturned.
SEN. MCCAIN: I think it was a bad decision. I thought it was a-- I thought it was a bad decisions. I think there was a lot of decisions that were bad. I think that the decision should rest in the hands of the states. I'm -- I'm a federalist. And I believe strongly that we should have nominees to the United States Supreme Court based on their qualifications rather than any litmus test. Now, let me say that there was a time, a few years ago, when the United States Senate was about to blow up. Republicans wanted to have just a majority vote to confirm a judge. And the Democrats were blocking in an unprecedented fashion. We got together, seven Republicans, seven Democrats. You were offered a chance to join. You chose not to because you were afraid of the appointment of, quote, "conservative" judges. I voted for Justice Breyer and Justice Ginsburg, not because I agreed with their ideology but because I thought they were qualified and that judge -- and that elections have consequences, when presidents are nominated. This is a very important issue we're talking about. Senator Obama voted against Justice Breyer and Justice Roberts on the grounds that they didn't meet his ideological standards. That's not the way we should judge these nominees. Elections have consequences. They should be judged on their qualifications. And so I -- that's what I will do. I will find the best people in the world -- in -- in the United States of America who have a history of strict adherence to the Constitution and --
MR. SCHIEFFER: But even if it was someone --
SEN. MCCAIN: -- not legislating from the bench.
MR. SCHIEFFER: Even someone who had a history of being for abortion rights, you would consider them.
SEN. MCCAIN: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade -- that would be a part of those qualifications. But I certainly would not impose any litmus test.
MR. SCHIEFFER: All right.
SEN. OBAMA: Well, I think it's true that we shouldn't apply a strict litmus test and the most important thing in any judge is their capacity to -- to provide fairness and justice to the American people. And it is true that this is going to be, I think, one of the most consequential decisions of the next president. It is very likely that one of us will be making at least one and probably more than one appointments and Roe versus Wade probably hangs in the balance. Now, I would not provide a litmus test, but I am somebody who believes that Roe versus Wade was rightly decided. I think that abortion is a very difficult issue, and it is a moral issue and one that I think good people on both sides can disagree on. But what ultimately I believe is -- is that women, in consultation with their families, their doctors, their religious advisors -- are in a best position to make this decision. And I think that the Constitution has a right to privacy in it that shouldn't be subject to state referendum in the -- any more than, you know, our First Amendment rights are subject to state referendum, any more than, you know, many of the other rights that we have should be subject to, you know, popular vote. So this is going to be an important issue. I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-word -- -world folks are going through. I'll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. For years she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit saying, "Equal pay for equal work," the judges said, "Well, you know, it's taken you too long to bring this lawsuit," even though she didn't know about it until fairly recently. We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts. John McCain opposed it. I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the -- the court has to stand up if nobody else will, and --
MR. SCHIEFFER: All right.
SEN. OBAMA: -- and that's the kind of judge that I want.
MR. SCHIEFFER: Time's up.
Foreign Law in U.S. Constitutional Opinions
The issue has received some attention in the popular press and on the internet recently. These materials offer a nice introduction to the arguments--and a refreshing break from cases--for our students.
Steve Sanders, an appellate attorney with Mayer Brown in Chicago and a frequent legal commentator, posted an editorial on FindLaw last Friday. The piece, American Legal Conservatives Oppose the Citation of Foreign Law, But What About the Hallowed Practice of Citing to Blackstone?, is a short, accessible review of the arguments on both sides of this issue--a good introduction for students.
For a broader discussion of the Court and foreign policy--including material on the Court's use of foreign sources in its constitutional opinions--see Harvard Law Professor Noah Feldman's piece in the September 28, 2008, NYT Magazine, When Judges Make Foreign Policy.
(And for the apparent trend among foreign courts away from citing U.S. Supreme Court opinions, see this NYT (Adam Liptak) piece, U.S. Court is Now Guiding Fewer Nations.)
For a longer discussion--and to hear it straight from the horses' mouths--check out the 2005 program featuring Justices Breyer and Scalia at the American University, A Conversation on the Relevance of Foreign Law for American Constitutional Adjudication.
Forthcoming Litigation? Fourteenth Amendment and Citizenship
This might make an interesting hypothetical.
From an interview with Congressman Tom Tancredo who represents Colorado’s 6th congressional district in the United States House of Representatives in The Politic, Yale's undergraduate journal of politics:
Q: You co-sponsored a bill that would deny “birthright citizenship” to the children of illegal immigrants. How do you reconcile this proposal with concerns over Fourteenth Amendment rights—an amendment that guarantees: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States…”?
A: I would certainly look at the whole idea challenged at the Supreme Court level. Passing a bill like that would immediately be challenged and taken to the Supreme Court. But I think it is defensible from a constitutional standpoint because the Fourteenth Amendment was designed as a response to the Dred Scott decision, which deals with the children of slaves that were in the country, assuring their citizenship status. It has nothing to do with illegal aliens. There is a reference, as a matter of fact, “under the jurisdiction thereof,” which means that in order for someone to have that legal status, they have to be under the jurisdiction of the country.
We do not allow the children of ambassadors to become citizens even if they are born here. So just being in the United States does not mean you are a citizen. We do not grant citizenship to people in many categories, and we certainly should not grant it to people who are here illegally.
There was a case often referred to from the late 1800s that dealt with a child of a Chinese immigrant. At the time, of course, that person was here illegally although that sort of “illegal status” did not exist. And, so, it’s not the same at all. So I would like to test it at the Supreme Court level to see its ruling about illegal immigrants.
Interview available here.
SCOTUS: Race and Voting Oral Argument
On October 14, SCOTUS heard oral arguments in Bartlett v. Strickland, a racially-cognizant redistricticting case from North Carolina, involving an interpretation of the Voting Rights Act, and a possible conflict with the North Carolina state constitution.
The state court opinion is Pender County v. Bartlett, 649 S.E.2d 364 (N.C. 2007). A transcript of the SCOTUS oral argument is here (thanks Election Law Blog). The New York Times and Washington Post have brief news reports.
In addition to the federalism issues raised by a possible conflict between the Voting Rights Act and the state constitution, the case has equal protection implications. Any racially-cognizant redistricting litigation in North Carolina occurs in the long shadows cast by SCOTUS decisions on equal protection challenges to redistricting in North Carolina. In Shaw v. Reno, 509 US 630 (1993), the Court held that there was a claim under the equal protection clause for the "bug-splattered on a windshield" and I-85 corridor snake districts, and remanded for consideration of whether the redistricting was narrowly tailored to meet a compelling governmental interest. In Hunt v. Cromartie, 526 U.S. 541 (1999), the Court again found the redistricting was a racial classification subject to equal protection challenges. And in Easley v. Cromartie, 532 U.S. 234 (2001), the Court decided that race was not the "predominant" factor in the redistricting.
Public TV Broadcast on "coercive interrogation"
Looking for a documentary to illustrate some of the constitutional issues surrounding "coercive interrogation"??? Here's one, to air on SOME public television stations, "Torturing Democracy."
It will air 9 pm Thursday October 16th on WNET Ch. 13 NYC, and repeated 1:30 am Saturday October 18th – WNET Ch. 13 NYC. However, there is some controversy about public broadcasting stations not showing it, as discussed here and on many other places in the blogosphere.
But you can view the documentary on demand at www.torturingdemocracy.org
For more information, click on the NYC broadcast click here:
A few excerpts from the THIRTEEN/WNET website:
Award-winning producer Sherry Jones presents a comprehensive documentary – more than 18 months in the making – that examines America’s detention and interrogation practices in the “war on terror” in Torturing Democracy.
The film examines how coercive interrogation methods were used by the CIA and migrated to the United States military at Guantanamo Bay and other locations as well as the charges that these interrogations became “at a minimum, cruel and inhuman treatment and, at worst, torture,” in the words of the former General Counsel of the United States Navy, Alberto Mora. It carefully presents the evidence that the Bush administration promoted these methods and developed legal justification for the practice. The film features in-depth interviews with senior military and government officials who fought the policy and former Guantanamo detainees who experienced it, uncovers the origins of the tactics the White House calls “enhanced interrogation techniques.”
Senior Bush administration insiders describe the internal debate over whether the U.S. government should opt out of the Geneva Conventions in order to avoid future prosecution for war crimes. Among the film’s notable senior military and diplomatic officials is Richard Armitage, former United States Deputy Secretary of State, who describes – for the first time on camera – being waterboarded during his military training. “There is no question in my mind,” says Armitage, “that this is torture. I’m ashamed that we’re even having this discussion.”
The 90-minute documentary will be followed by a half-hour panel discussion moderated by Wide Angle anchor Aaron Brown that updates and expands the documentary with an in-depth conversation on recent Congressional hearings and legal decisions, as well as what the methods used to combat terrorism may mean for America’s standing in the world and how U.S. military personnel may be affected. The participants will be Alan Dershowitz, Harvard law professor, constitutional scholar and author of Is There a Right To Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11; Carol Rosenberg, staff reporter for the Miami Herald covering the hearings at the Guatanamo Bay detention camp; and Philippe Sands, professor of law and Director of the Centre on International Courts and Tribunals at University College London and author of Torture Team: Rumsfeld's Memo and the Betrayal of American Values.
Bill Moyers has called Torturing Democracy “profoundly journalistic and profoundly affecting. This one will go into the record books for historians and teachers and others who look back to ask, ‘What did we do?’”
The documentary details how the secret U.S. military interrogation program – “Survival, Evasion, Resistance and Escape” – or SERE – became the basis for many of the harshest methods used in interrogating prisoners in U.S custody. The simulated captivity is supposed to expose students to “a totalitarian evil nation with a complete disregard for human rights and the Geneva Convention,” says SERE trainer Malcolm Nance in the film. Methods used include slapping, hooding, sleep disruption, stripping, exposure to temperature extremes, sexual humiliation, and the practice now known as “waterboarding.” Nance adds, “We have recreated our enemies’ methods in Guantanamo… It will hurt us for decades to come.”
Other government and military interviewees include Major General Thomas Romig, Judge Advocate General for the U.S. Army, who reveals the inside story of a Pentagon task force set up by the Secretary of Defense in early 2003; retired Navy General Counsel Alberto Mora; veteran Air Force interrogator Colonel Steven Kleinman; military prosecutor Colonel Stuart Couch; former Pentagon lawyer Richard Shiffrin; and Martin Lederman, senior advisor in the Justice Department.
Former detainees interviewed include Moazzam Begg (Detainee #558), Shafiq Rasul (Detainee #086), and Bisher Al-Rawi (Detainee #906).
RR (with thanks to Franklin Siegel).
October 13, 2008
Give-and-Take on Executive Privilege
Last week, the D.C. Circuit granted Miers and Bolton's motion for stay pending appeal and denied the House Judiciary Committee's motion for expedited appeal in Committee on the Judiciary v. Miers and Bolton, the Congressional contempt case against former White House Counsel Harriet Miers and Chief of Staff Josh Bolton for failing to testify and produce documents in the Committee's investigation into the U.S. attorney firings. The ruling means that Miers and Bolton will not have to testify or produce documents in response to Congressional subpoenas until after the election, and then only if the new Congress continues this investigation (with a new administration in office) and if the courts uphold the district court's ruling rejecting the claim of absolute immunity from compelled Congressional process for senior presidential aides. (The district court ruled that Miers was not absolutely immune from compelled Congressional process--that she must comply with the Congressional subpoena, but that she may invoke executive privilege "where appropriate"--and that Miers and Bolton ought to provide more detailed descriptions of privileged documents and the basis of their privilege. The district court later denied Miers and Bolton's motion for stay pending appeal.) In short, the administration ran the clock; and it worked.
The underlying dispute on the scope of executive privilege is quite interesting, especially given the novelty of the claims. (The district court wrote that "the aspect of this lawsuit that is unprecedented is the notion that Ms. Miers is absolutely immune from compelled congressional process.") But perhaps even more interesting is the back-and-forth between Congress, the administration, and finally the courts in defining the scope of Congress's authority to investigate this matter and the assertion of executive authority. This is a wonderful example of how politics, institutional considerations, and the law mix in often messy ways to give us the doctrine we study in con law--an excellent case study in how con law (especially structural con law) is often made.
The House Judiciary Committee collected the documents here. The initial exchanges between the Committee (written by Chairman Conyers and Subcommitee Chairwoman Sanchez) and the administration (written by Attorney General Gonzales and White House Counsel Fred Fielding) outline the parties' positions and trace the escalating dispute, from negotiation to breakdown. After the Committee issued its subpoenas here and here, Solicitor General Paul Clement analyzed executive privilege and advised the president that "executive privilege may properly be asserted." The House filed its civil contempt complaint; the Committee moved for partial summary judgment; and Miers and Bolton moved to dismiss.
The district court ruled narrowly for the Committee, but the D.C. Circuit's ruling means that Miers and Bolton won't testify--at least for now. If between the new Congress, the new administration, and reaction to the recent OIG report on the firings, the case becomes moot, the district court will have had the last word on, as it said, this case of "extraordinary constitutional significance."
Fantasizing About the Future of the Supreme Court
I had planned to write on a totally different topic today, but then I checked my mailbox. The latest edition of the ABA Journal arrived, and its cover story focuses on "Remaking the Supreme Court." In a very thoughtful piece entitled "Supreme Court 2.0," writer Richard Brust describes a Court that is facing considerable challenges, including the fact that the justices are living longer, there is less turnover on the Court, and the Court is becoming increasingly politicized. As a way to address some or all of these problems, Brust suggests the following:
1. Limit Judicial Terms - As life spans have increased, so has the length of the average Justice's term of service. One proposal is to end life tenure and hire judges for fixed 18-year terms.
2. Make them Retire. Aging justices should be given "golden parachutes" that encourage them to retire prior to losing a step.
3. Make them Ride - Reintroduce the old concept of riding circuit.
4. Make More of Them - Revive Roosevelt's plan to pack the Court. Add at least another ten judges to increase diversity of opinion.
5. Diversify Them - End the focus on selecting federal appellate judges and look to those who have served in other capacities, such as business and politics.
6. Rotate the Chief - Allow the justices, rather than the president, to decide who the Chief Justice will be.
7. Let them Mug - Allow television cameras into the Supreme Court.
The beautiful thing about this article is that so many of its suggestions are not only plausible, but legal. So much of what we know about the Court as it stands exists not in Article III, but in our collective memory and tradition. So, changes could realistically be made with very little Constitutional difficulty. My major quibble with the article is that while it deftly explains the rationale behind the suggested changes, it does not go far enough to critique the proposals. Even if we could change some of the things about the Court, should we change any of them at all? Here are some thoughts.
Of all of the ideas, limiting the terms of the justices seems to me to be the most problematic. The best argument for set term limits is that the justices' incentives for timing their retirement to coincide with a president to their liking would be diminished. I believe three rebuttals can be offered. First, we should begin with the understaning that our justices are political creatures. Of course, they might not be so impetuous as to make decisions based on what they ate for breakfast, but by participating in the nomination process, our judges are either witting or unwitting participants in the political process. I, for one, do not believe this is necessarily a bad thing. Yes, a justice might have a particular view of the Constitution and its interpretation, and a president might be more willing to appoint persons with a particular viewpoint. But, assuming that the American people are aware of this reality when they vote for the president, all of this is seemingly quite fair.
Second, I like the idea that presidents that are long gone can leave a legacy on the court for years to come. It's almost like allowing "dead hand" control of the judiciary - Gerald Ford is no longer with us, but Justice Stevens is. This is the way it should be. No one faction or judicial viewpoint will ever have control over the Court under its current system unless one political party with the same idea set is in power long enough. Even the twelve combined years of Reagan and Bush (41) could not acomplish the goal of an ideologically unified Court. That is a very good thing.
Third, the article's suggestion ignores the beauty of life tenure - you can do whatever you want. My fear is that if justices were subjected to term limits, we would be less likely to see someone like Chief Justice Earl Warren. Eisenhower appointed Warren to the Court based on his strong conservative credentials, and as we all know, Warren has now become the poster-child of liberal judicial activism. Eisenhower later called the appointment, "the biggest damned fool mistake I ever made." I'd like to see more of those kinds of "mistakes," and I think that any system of limiting life tenure would represent a step toward preventing that. Any encroachment on the security of the judiciary could lead to a slippery slope where the judges feel that they must comply with every political whim of the current president or face his/her wrath.
Finally, the proposal on limiting terms as a way to limit the politicization of the Court ignores something that I believe, perhaps naively, to be true. While any given justice might be supported by a political party or hold staunch views, at any given moment, they will take a position that surprises you. Prior to 2000, who would have thought that Justice Rehnquist would have authored a 7-2 opinion in favor of Miranda rights? Not many people did (I know I didn't!), but it happened in Dickerson. So, although judges are political, at the end of the day, they are accountable to the law, and it is that allegiance that will (hopefully) carry the day more than that to any political party or ideology or philosophy.
October 12, 2008
Ahmad on Erasure, Dehumanization, and Rights at Guantanamo
It's always a great pleasure for me to find an article that puts actual legal practice within a broader theoretical context, that weaves experience and theory in a way that elucidates both. Professor Muneer Ahmad of American University (visiting at Georgetown) has produced just such an article in Resisting Guantanamo: Rights at the Brink of Dehumanization, recently posted on ssrn. This is an interesting, smart, and even surprisingly optimistic paper--a wonderful read. I highly recommend it for anyone, but especially those teaching or taking con law, con theory, or clinic (where the links between theory and practice, thoughtfullly displayed in this piece, are always front and center).
Ahmad draws on his three-year experience representing a teenage Canadian detainee at Guantanamo in exploring issues ranging from rights theory to litigation strategy. He starts with Boumediene v. Bush and argues--quite persuasively, given our most recent experiences with the Uighurs (see my recent posts on this blog)--that the case was important, but not transformative:
What was clear the moment the case was decided, and what has been borne out in the months of litigation in hundreds of cases since, is that Boumediene alone could not close Guantanamo, but could only narrow the space in which it is allowed to operate. Now that the headlines have faded, the rights moment of Boumediene has dissolved into the less visible daily practices of the Guantanamo lawyers, human rights advocates, and other allies, where the assertion of rights is a necessary but inadequate step toward justice for the prisoners. We see now another iteration of what we experienced after Rasul: that the work of rights is important but limited, and that the mere existence of rights is not enough to do justice.
He thus characterizes Boumediene and other cases coming out of Guantanamo not as transformative litigation--the administration has managed to frustrate any transformative effects of these cases--but rather as resistance to dehumanization. Ahmad argues that government practice at Guantanamo leads to three levels of "erasure" of prisoners' humanity: "cultural erasure through the creation of a terrorist narrative"; "legal erasure through formalistic legerdemain"; and "physical erasure through torture." While Boumediene won't transform Guantanamo, it, like Rasul, represents resistance to these forms of erasure, to these forms of dehumanization. Here is the optimism: understanding these cases as resistance to dehumanitization, and not only as transformative, we can appreciate their successes in a new and different light.
Ahmad ties the legal resistance in Boumediene, Rasul, and others to the day-to-day resistance of Guantanamo prisoners (in the form of hunger strikes) and asks what these different, but related, types of resistance say about the nature of rights and about the defense of the detainees' humanity again "extreme instances of state violence." In relating legal strategy to practical strategy to theory--as only one who practiced in the area can--Ahmad is at his strongest and most creative. This link between theory and practice is the highlight of an article full of high points.
I highly recommend this very thoughtful article.