April 25, 2009
Australian Constitutional Law: Saturday Evening Review
There are many terrific articles and books on Australian Constitutional Law. Yet as I prepared for the public conversation with Justice Michael Kirby, recently retired from Australia's High Court, I found two invaluable sources that are worth reading - and rereading.
The first work is Inside the Mason Court Revolution: The High Court of Australia Transformed by Jason L. Pierce, an American political science professor specializing in constitutional law. Published in 2006, I read the book when it first appeared, but the book remains timely because the problems of judicial roles, constitutional decision-making, and so-called judicial "activism" have not been resolved. Pierce's methodology includes extensive interviews with judges and others in the legal elite (which in Australia generally means a person bearing the title QC - Queen's Counsel - after his [and very occasionally her] name). The second chapter has a very useful overview of the Australian legal system - - - I would recommend it to any legal scholar working on Australian law.
Moreover, while focusing very specifically on Australia and discussing particular decisions and particular jurists, much of what Pierce theorizes has relevance in the United States context. Apart from the introductory chapter, Pierce is not writing a comparative constitutional law volume. Yet perhaps because of his American training, Pierce's discussion have resonance. Thus, I think it is a good book for legal scholars working on judicial politics in the US context as a way of testing one's theorizing in a less familiar doctrinal landscape.
The second is the work of Australian law professor Reg Graycar, previously discussed here. I found her newest piece appearing on ssrn here, co-authored with Professor Jenny Jane Morgan. As the abstract announces:
In 2009, Australia is debating whether to have a national bill of
rights and remains one of the last western democracies that has not yet
legislated for (or indeed constitutionally entrenched) some form of
human rights law. Nor is there any guaranteed right to 'equality'.
Nonetheless, as feminist legal scholars, our work has been centrally
concerned with issues of equality. We argue that equality is deeply
implicated as a value in the Australian legal system, despite the
absence of some formal instrument or constitutional guarantee.
This discussion asks, perhaps controversially, whether there might be some advantages that flow from that lacuna. Does an absence of formal rights protection leave room for flexibility and for more creative responses for those who have been left outside the mainstream of the legal community? We explore some of the traditional critiques of rights discourses and the persistence of formal equality as the preferred model. We then interrogate these issues by reference to two case studies: first, the recognition of lesbian and gay familial relationships and secondly, in the context of the law governing the regulation of abortion.
Graycar (pictured left) and Morgan (right), authors of the exceedingly popular and useful The Hidden Gender of Law, pose questions about constitutional structures, specifically the absence of a Bill of Rights or of an equality provision. It is an issue that is not unfamiliar to American constitutional scholars - - - especially those considering originalism or the Ninth Amendment - - - albeit in a different guise. Graycar and Morgan explore the notion that an absence of constitutional "rights" might actually work toward a greater realization of those rights in the hotly-contested debates surrounding sexual freedom issues such as same-sex relationships and abortion. And in comparison with US doctrine, their conclusions are certainly worth consideration.
As summer approaches - - - at least here in the northern hemisphere - - - and many constitutional law profs will be traveling and engaging in comparative constitutionalism, anyone going to Australia should certainly take a look at Inside the Mason Court Revolution, any work by Reg Graycar and Jenny Morgan, and the career and work of Justice Michael Kirby.
April 24, 2009
D.C. Circuit Dismisses British Detainees' Constitutional Tort Claims
A three-judge panel of the D.C. Circuit ruled on Friday that federal officials were entitled to qualified immunity and that Boumediene v. Bush (holding that the Suspension Clause applies to aliens at Guantanamo Bay) did not mean that the Fifth and Eighth Amendments also extended to aliens detained at Guantanamo Bay. The court thus again affirmed the lower court's dismissal--this second affirmance coming only after the Supreme Court instructed the Circuit to reconsider its first affirmance in light of Boumediene.
The ruling represents a set-back for alien detainees claiming that officials violated the Constitution at Guantanamo Bay (or any other location over which the U.S. exerts anything less than complete sovereignty).
The court "rest[ed] [its] decision on remand" on the officials' qualified immunity. It ruled that the officials enjoyed immunity, because the asserted rights were not "clearly established" at the time of the alleged violation. Why not? Because at the time neither the D.C. Circuit nor the Supreme Court "had ever held that aliens captured on foreign soil and detained beyond sovereign U.S. territory had any constitutional rights." Rasul, at 6. (The court reached the "clearly established" prong before the "constitutional rights" prong in its discretion under the Supreme Court's ruling early this year in Pearson v. Callahan.)
The court rejected the petitioner's argument under the Insular Cases that "fundamental personal rights" extend to "unincorporated" territories: Those cases involved only territories over which the U.S. maintained "complete sovereignty," and which "Congress governed . . . pursuant to its Art. IV, Sec. 3, power to regulate 'Territory or other property belonging to the United States.'" "Neither factor applies to Guantanamo." Rasul, at 9.
Therefore, because the rights were not "clearly established" at Guantanamo, officials were entitled to qualified immunity.
With regard to Boumediene's effect on the case, the petitioners sought to extend the Supreme Court's reasoning on the Suspension Clause to the Fifth and Eighth Amendments. Petitioners thus argued that Boumedieneprescribed a functional, multi-factor approach to determine the extraterritorial application of the Fifth Amendment Due Process Clause and the Eighth Amendment Cruel and Unusual Punishment prohibition (in addition to the Suspension Clause).
The argument was not unreasonable, especially given the Supreme Court's remand to the Circuit and its instruction to reconsider the case in light of Boumediene. But the D.C. Circuit rejected it, limiting Boumediene to the Suspension Clause:
The Court [in Boumediene] acknowledged that it had never before determined that the Constitution protected aliens detained abroad and explicitly confined its constitutional holding "only" to the extraterritorial reach of the Suspension Clause. The Court stressed that its decision "does not address the content of the law that governs petitioners' detention. With those words, the Court in Boumediene disclaimed any intention to disturb existing law governing the extraterritorial reach of any constitutional provisions, other than the Suspension Clause. . . .
Rasul, at 4.
The court's ruling on qualified immunity may help insulate it from further review: The court's reading of Boumediene and the Insular Cases may offer the full Circuit and the Supreme Court a comfortable basis upon which to deny review. On the other hand, the Supreme Court, in instructing the Circuit to reconsider in light of Boumediene, may have intended a more seriously consideration of the arguments on Boumediene and Boumediene's application to the Fifth and Eighth Amendments. If so, we might expect more on appeal.
April 23, 2009
D.C. District Sides with Government on Standard of Detention
Judge Reggie B. Walton (D.D.C.) yesterday issued a memorandum opinion in a consolidated case of Guantanamo detainees that adopted the Obama administration's recently suggested and refined standard of detention for detainees at Guantanamo Bay. (I previously posted on this here and here.)
In an opinion that expressed frustration that the law regarding the President's detention authority is still unsettled, Judge Walton ruled that the AUMF provided the President with authority to detain individuals at Guantanamo Bay and that the President's suggested standard of detention comported with the law of war.
Judge Walton's opinion suggests that the important difference between the Bush administration's standard for detention and the Obama administration's standard is the Obama administration's elimination of the phrase "enemy combatant," which, in turn, was based upon the Obama administration's analysis of its authority under the laws of war. (Recall that the Obama administration merely replaced a standard that authorized the detention of an individual who "supports" an enemy organization with a standard that authorizes the detention of an individual who "substantially supports" an enemy organization.) Walton:
The petitioners' reliance on the standards governing international armed conflict is understandable given the government's longstanding justification of its detention of the petitioners on the grounds that they were "enemy combatants." This term has meaning under the Geneva Conventions only insofar as it is construed as a subset of "prisoner of war" status, which the Third Geneva Convention defines at length. . . . Status as a "combatant" is actually a privilege--"the right to participate in hostilities"--to be earned through fidelity to the requirements of Article 4.
At least for those petitioners detained due to their associations with terrorist organizations like al-Qaeda, there is little question that such individuals fail to satisfy these requirements. . . .
Thus, under the combatant/civilian distinction formerly drawn by the government, the petitioners would appear to fall under the rubric of "civilians." And as civilians, the petitioners would not be subject to military force "unless and for such time as they [took] a direct part in hostilities."
But the government no longer seeks to detain the petitioners on the theory that they are "enemy combatants" . . . .
Gherebi, at 34-37. Instead, the government may detain members of an enemy force in a transnational conflict:
And the absence of any language in Common Article 3 and Additional Protocol II regarding prisoners of war or combatants means only that no one fighting on behalf of an enemy force in a non-international armed conflict can lay claim to the protections of such status, not that every signatory to the Geneva Conventions must treat the members of an enemy force in a civil war or transnational conflict as civilians regardless of how important the members in question might be to the command and control of the enemy force or how well organized and coordinated that force might be. . . .
Common Article 3 is not a suicide pact; it does not provide a free pass for the members of an enemy's armed forces to go to and fro as they please so long as, for example, shots are not fired, bombs are not exploded, and planes are not hijacked. Consistent with Common Article 3 and Additional Protocol II [and as authorized by the AUMF], the President may detain anyone who is a member of the "armed forces" of an organization that "he determines planned, authorized, committed, or aided" the 9/11 attacks, as well as any member of the "armed forces" of an organization harboring the members of such an organization.
Gherebi, at 38-43.
Is the EPA Undemocratic?
In the wake of the Environmental Protection Agency's decision last Friday to propose to find that greenhouse gases endanger public health and welfare, some are claiming that the EPA is undemocratic.
For example, Jonah Goldberg wrote in today's Chicago Tribune that the EPA's decision resulted from a double dose of anti-democratic behavior: The least democratic branch, the Supreme Court, permitted a "politically autonomous" agency, the EPA, to regulate greenhouse gases. When the EPA proposed to regulate them on Friday, then, the decision "choked" democracy.
This of course ignores the Clean Air Act, legislation that was passed by the most democratic branch and specifically authorizes the EPA's decision. The Clean Air Act requires that the EPA
shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class . . . of new motor vehicles . . . which in [the EPA Administrator's] judgment cause[s], or contribute[s] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare.
42 U.S.C. Sec. 7521(a)(1). The EPA under the Bush administration refused to make such a judgment, and, as a result, failed to act.
State and local governments--democratic and accountable--joined in a suit against the EPA, and the Supreme Court in 2007 in Massachusetts v. EPA ruled that the Clean Air Act required the EPA to form a judgment related to whether air pollutants "cause or contribute to air pollution . . . reasonably . . . anticipated to endanger public health or welfare," and not some other judgment (say a political judgment).
The EPA, after forming an appropriate judgment under the Clean Air Act, found that greenhouse gases contribute to air pollution and are reasonably anticipated to endanger public health and welfare. It issued its proposed rule on Friday and opened up a 60-day period for public comment.
In short: The most democratic branch passed legislation; democratic state and local governments joined a suit to ensure that the legislation was enforced; they won; and the enforcing agency opened a democratic public comment period before finalizing its rule.
Just what about this process "chokes" democracy?
The problem with Goldberg's claim is that it reduces a serious argument about separation of powers and democratic accountability to a mere political ploy. There may be--or even certainly is--plenty to criticize about the legislative process leading to the Clean Air Act, the way the Supreme Court made its decision, or the likely lack of real impact that any one person might have on the proposed rule through the notice and comment period. But Goldberg's indiscriminate claim that the EPA "choked" democracy sweeps far too broadly and in the process mocks--and thus devalues--an otherwise important point about democracy.
April 22, 2009
It's Time to Work Out a Coherent Basis for Incorporation
David Gans, the Director of the Human & Civil Rights Program at the Constitutional Accountability Center, argued earlier this week that Monday's Ninth Circuit Second Amendment case gets us closer to working out a coherent basis for incorporation of the Bill of Rights via the Fourteenth Amendment Privileges or Immunities Clause (and not the Due Process Clause). Gans:
The Nordyke opinion moves our country a big step closer to a historic opportunity for the Supreme Court to finally recognize that Slaughter-House was wrong when written, and restore the Privileges or Immunities Clause to its rightful place.
Gans and CAC founder and President Douglas Kendall published an important report late last year tracing the history of the P or I Clause and arguing that it, not the Due Process Clause, was originally (and still is) the proper basis for incorporation. They also filed an amicus brief making this argument in the Seventh Circuit Second Amendment case.
Gans's post is an excellent analysis of this component--incorporation via P or I--of the Ninth Circuit decision. But I'll add to Gans's post this: The Ninth Circuit's narrow, almost too clever rejection of P or I as a basis of incorporation is itself a clear illustration of the disarray in incorporation jurisprudence and a strong argument for clarifying incorporation doctrine by using the much simpler, more obvious, and historically correct vehicle of the P or I Clause.
This is what I mean. The Ninth Circuit rejected the P or I Clause as the basis for incorporation by turning to its own prior ruling on the issue in Fresno Rifle. The Ninth Circuit in that case rejected Second Amendment incorporation, but it didn't specify the clause--P or I, or Due Process--upon which it rejected incorporation. So the Nordyke panel looked more closely at Fresno Rifle and discovered that Fresno Rifle relied upon Cruikshank and Presser--two cases that "involved direct application and incorporation through the Privileges and Immunities Clause, but not incorporation through the Due Process Clause." Thus, the Nordyke panel said, Fresno Rifle was really a rejection of incorporation via P or I. The Nordyke panel made Fresno Rifle into the Ninth Circuit's Slaughterhouse, or at least its Cruikshank and Presser.
This is exactly the kind of analytical gymnastic--building bad case cleverly upon bad cases--that, at the Supreme Court, led to the "current disarray" of Fourteenth Amendment jurisprudence. Saenz v. Roe (Thomas, J., dissenting).
This is more than just critique of the Ninth Circuit's approach. It's also a prudential argument--to complement Gans and Kendall's originalism and textual arguments--to work out a coherent basis for incorporation now.
If the Ninth Circuit needs to make this kind of clever maneuver to incorporate via Due Process--and to avoid incorporation via P or I--isn't it time for the Court to overturn Slaughterhouse and incorporate via the much cleaner P or I?
April 21, 2009
Senate Committee Report on Detainee Treatment
The Senate Armed Services Committee yesterday released its report on the treatment of detainees in U.S. custody, concluding that torture was approved by cabinet and other high-level officials in the Bush administration.
The report (pp. 119-129) tells the story of the early OLC torture memos, senior military lawyers' strong objections to those memos, and DoD General Counsel Haynes's instruction to Air Force General Counsel Walker that the DoD working group convened to recommend interrogation policy consider the OLC legal analysis in the March 14, 2003, memo "authoritative" and directed that it "supplant the legal analysis being prepared by the Working Group action officers."
The March 14, 2003, OLC memo concluded that detainee interrogation arose out of the President's Commander-in-Chief authority, and that federal criminal statutes that interfered with the President's power to authorize the conduct of interrogations were unconstitutional. The upshot: "In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy." March 14, 2003, OLC memo at 5.
The memo was highly criticized by senior military lawyers and by the working group, because, among other reasons, most of the recommended interrogation techniques in the group's final report (the "stoplight chart"), which conformed to the OLC analysis, amounted to violations of the UCMJ, domestic criminal law, and international law. Rear Admiral Jane Dalton addressed the violations of international law:
[T]here was a column originally . . . in the spotlight chart, that was labeled "Customary International Law." So one of the things we were supposed to assess was whether or not the techniques were consistent with customary international law. The stoplight chart had all 36 techniques green under customary international law because the OLC opinion and thus the Working Group report maintained that customary international law did not impose any constraints on the actions. . . . That green column was absolutely wrong legally . . . it was embarassing to have it in there, and one of my comments to the report was . . . You need to delete that column entirely because it's embarassing to have it in there and it's not reflective of the law.
Report at 126.
Rumsfeld apparently knew about concerns of senior military lawyers:
According to DoD General Counsel Jim Haynes, the Secretary of Defense met with participants of the Working Group and was aware of concerns reflected in the comments made by the senior military lawyers.
Report at 128.
Even after the OLC withdrew the March 14, 2001, memo (along with the August 1, 2002, "Bybee" memo)--and notified DoD that it was withdrawn because it contained "serious errors"--DoD apparently continued to rely on it or some similar authority:
Notwithstanding the late December direction from the head of the OLC that DoD could not rely on the March 14, 2003, OLC memo, a March 26, 2004 memorandum for the record suggested that [redacted]. The frequent flyer program involved moving a detainee every few hours from one cell to another to disrupt their sleep. [Redacted.]
Report at 147.
There is a difference, of course, between having legal authority to do something and actually doing it. The Committee report is most critical of senior Bush officials for actually doing it--for authorizing torture of detainees.
But this section of the report--roughly from pages 119 to 147--is also critical of the OLC lawyers for concluding that DoD had legal authority and of Haynes and Rumsfeld for their disregard of senior military lawyers' objections to the OLC memos.
In the end, there's not much in this section of the report that we didn't already know. But coming in the wake of the release of the previously classified OLC torture memos last week, this report may provide additional momentum for those calling for investigation and prosecution of former OLC attorneys Yoo and Bybee.
Quick Hit - Interesting Take on the Ricci Case and Equal Protection
If you are at all interested in the Ricci case, please take a moment to read this posting by Deborah Hellman which discusses the Ricci case, but also critiques some of the underlying assumptions in equal protection jurisprudence. It's definately worth your time!
President Obama leaves door open to some prosecutions
Today's NYT reports that while the President has reiterated his position that those CIA operatives following torture orders should not be prosecuted, there is hope for some prosecutions. The President said:
Mr. Obama said once again that he does not favor prosecuting CIA operatives who used interrogation techniques that he has since banned. But as for lawyers or others who drew up the former policies allowing such techniques, he said it would be up to his attorney general to decide what to do, adding, “I don’t want to prejudge that.”
This should continue to be an interesting story as the Justice Department decides how to proceed.
Restraining Executive Power: The Views of Arlen Specter
In a just published article in The New York Review of Books here, Arlen Specter, Senior Republican United States Senator from Pennsylvania and Ranking Member on the Senate Judiciary Committee, has signaled his intention to take "several concrete steps" to restrain the power of the executive. He expresses "the doubt that the Democratic majority, which was so eager to decry expansions of executive authority under President Bush, will still be as interested in the problem with a Democratic president in office. I will continue the fight whatever happens."
Yet he insists that there is a need for reform no matter who occupies the White House.
Generally, he is advocating three pieces of legislation.
First, he states he intends to "introduce legislation that will mandate Supreme Court review of lower court decisions in suits brought by the ACLU and others that challenge the constitutionality of the warrantless wiretapping program authorized by President Bush after September 11. While the Supreme Court generally exercises discretion on whether it will review a case, there are precedents for Congress to direct Supreme Court review on constitutional issues."
Second, he states he will "reintroduce legislation to keep the courts open to suits filed against several major telephone companies that allegedly facilitated the Bush administration's warrantless wiretapping program. Although Congress granted immunity to the telephone companies in July 2008 . . . . [this] legislation would substitute the government as defendant in place of the telephone companies. This would allow the cases to go forward, with the government footing the bill for any damages awarded."
Third, he will "reintroduce" the "Presidential Signing Statements Act" to "prohibit courts from relying on, or deferring to, presidential signing statements when determining the meaning of any Act of Congress. These statements, sometimes issued when the president signs a bill into law, have too often been used to undermine congressional intent."
The article is an extended argument for each of these three proposals. It makes interesting reading - - - and could also be the basis of an exam question on Separation of Powers, including Congressional authority over Judicial power.
April 20, 2009
Gender and the Supreme Court "Vacancy"
Last week, Dahlia Lithwick wrote an intriguing article in Slate magazine regarding the frequently heard argument that President Obama's first nominee to the Court should be a woman. Lithwick quotes Justices Ginsberg and O'Connor lamenting the dearth of women on the Court and also examines the arguments concerning whether women are different jurists than men.
I find this debate fascinating, and I do believe - and the Court has ruled - that diversity matters in American discourse. However, as we value and encourage diversity, we must avoid essentialism. So, for me, the question is not whether a woman should be appointed to the Court, but rather what type of woman she will be.
This question is critical. All women do not think the same way, share the same opinions, nor agree on what it means to be a woman in America in the early 21st century. It would be folly to treat women like a deck of cards - "pick a woman, any woman" - and hope that the desired result - that being concern for women - will be obtained based on the presence of two X chromosomes. When politically disenfranchised groups are placed in prominent positions, this danger is ever present. Clarence Thomas and Thurgood Marshall are both African American males, but their judicial philosophies are entirely opposite. Sarah Palin and Hillary Clinton share little in common politically despite sharing a race and gender. Thus, in the desire to see a woman on the Court we must be clear on what is desired.
I beleive what most people are saying when they say "we need a female justice" is that there should be someone on the Court who cares about women's rights and can effectively articulate those positions. But must this person necessarily be a woman? Don't get me wrong - there are certain things that only women can know. (I beleive that is why both Justices Ginsberg and O'Connor dissented in the Nguyen case when the majority declared that birth automatically bonds a mother and child. Those women knew better.) However, there are men out there that can understand these concepts. Justice Blackmun - a man - was responsible for Roe and defended that decision, as well as women's reproductive rights in other ways during his tenure on the Court. Given the choice between a Justice Blackmun and a justice who cares little about the myriad problems women face but who happens to be a woman - most women's rights advocates would probably take the guy.
In sum, I beleive, as always, that judges care about the law over all else. However, it is also true that in any human group, people bring their past and personal philopophies to bear. Let those be the standards to judge the candidates rather than gender.
Ninth Circuit: Second Amendment Incorporated, Gun Restriction Upheld
A three-judge panel of the Ninth Circuit today ruled that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment individual right to bear arms against state and local governments. At the same time, the panel upheld a county ordinance making it a misdemeanor to bring onto or to possess a firearm or ammunition on county property against a Second Amendment challenge.
The panel's ruling in Nordyke v. King makes the Ninth Circuit the first circuit to apply the Second Amendment to a state or local government after the Supreme Court left the issue open last term in D.C. v. Heller. Second Amendment incorporation is also now before the Seventh Circuit; the issue is almost certainly headed for the Supreme Court.
The plaintiff-appellants in the case were long-time gun show hosts at the county's public fairgrounds. They argued that the county ordinance prohibited them from hosting future gun shows at the site.
In ruling that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment, the panel "canvass[ed] the attitudes and historical practices of the Founding era and the post-Civil War period" to determine whether the right to keep and bear arms is "necessary to an Anglo-American regime of ordered liberty" and whether it is "deeply rooted in this Nation's history and tradition." The panel concluded that it was.
Notably, the panel specifically rejected the claim that the Fourteenth Amendment Privileges or Immunities Clause did the work of incorporation. (The P or I Clause is in play at the Seventh Circuit, as well. It's gained some attention in an amicus filing at the Seventh Circuit and in recent scholarly work arguing that the P or I Clause, not the Due Process Clause, ought to be doing the incorporating.) Instead, the panel re-read an earlier case from the Ninth Circuit, Fresno Rifle v. Van de Kamp, as foreclosing the P or I argument--perhaps a bad omen for advocates of the P or I argument in the Seventh Circuit.
Having ruled that the Due Process Clause incorporates the Second Amendment, the panel then upheld the county's gun ordinance, with surprisingly little analysis. The panel avoided determining the level of scrutiny by holding that the ordinance did not infringe upon the core purpose of the right as articulated by Heller:
Heller tells us that the Second Amendment's guarantee revolves around armed self-defense. If laws make such self-defense impossible in the most crucial place--the home--by rendering firearms useless, then they violate the Constitution.
But the Ordinance before us is not of that ilk. It does not directly impede the efficacy of self-defense or limit self-defense in the home. Rather, it regulates gun possession in public places that are County property.
And the county has great latitude in doing that based on the principles in Harris v. McRae (!) (holding that government need not fund abortions, even though women have a substantive due process right to abortions):
If we apply these principles here, we conclude that although the Second Amendment, applied through the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property.
The panel also rejected the plaintiff-appellants' First Amendment and Equal Protection challenges to the ordinance.
A Case of Mistaken Identity?: Justice Stevens and "Shakespeare"
The Wall Street Journal has an engaging report on Justice Stevens' beliefs - - - as well as the beliefs of some other Justices - - - on whether Shakespeare was the author of Shakespeare's canon.
Justice Stevens, it seems, share doubts about the Bard's identity with Justice Scalia, both of whom consider Shakespeare's "commoner" class background as compared to the knowledge demonstrated in the plays. This might be an interesting lens to reinterpret some of the Court's decisions on economic class and education.
April 19, 2009
Setty on Comparative State Secrets
Professor Sudha Setty (Western New England) just posted her enlightening article Litigating Secrets: Comparative Perspectives on the State Secrets Privilege on ssrn; it's also forthcoming in the Brooklyn Law Review. Setty presents a fresh and interesting comparative approach to state secrets; and the piece is especially timely, what with the Obama Justice Department reasserting the Bush administration's position on state secrets in the Ninth Circuit and Congress considering a state secrets overhaul. I highly recommend it.
Setty compares the state secrets privilege in the U.S. with similar privileges in Scotland, England, Israel, and India--"other nations which confront serious national security threats"--and draws two conclusions, both of which have implications for U.S. reform. Setty:
Although the current U.S. use and application of the state secrets privilege is roughly analogous to that of England, [Binyam Mohamed's case in England] suggests that England's current application of the privilege may be more narrow than that of the United States, and that the English court in Mohamed was forced to expand the scope of its own public interest immunity because of the threat of national security repercussions from the United States. The transnational implications of U.S. pressure regarding the state secrets privilege may be that even if other nations' courts use a narrower standard for that privilege, those standards may be undermined if the U.S. government uses its considerable clout to pressure governments to claim state secrets in cases where U.S. government actions are implicated.
U.S. courts are also less deferential to the executive branch than India, but more so than Scotland and Israel. The proposed congressional reforms offer some positive steps to establish procedural safeguards that strike an appropriate balance between national security and the rule of law, government accountability and liberty. However, Congress should consider going further in addressing the need for litigation to compensate those who have suffered gross constitutional and human rights violations at the hands of the government.
How far? Setty argues that reform efforts should consider explicitly accounting for human rights violations:
[R]eforms in the United States should require courts to consider potential human rights abuses in determining whether a lawsuit should go forward . . . . It would be appropriate for U.S. judges--like their Israeli counterparts--to undertake a balancing test which accounts for the nature of the claim when deciding whether a case ought to go forward at the discovery stage. After all, the cases of El-Masri, Al-Haramain and Mohamed, and the violations of human rights and constitutional safeguards that they represent are at the heart of the impetus for reforming the privilege.
And reforms should deal with both state secrets and justiciability:
It would be appropriate and useful for Congress to assist in the clarification between the state secrets privilege and [Totten v. Doe's] standard of dismissal based on the subject matter of the litigation.
Such clarification should be undertaken simultaneously with state secrets reform because it would close a potential avenue for the executive branch to avoid disclosure of evidence.
This is an interesting, important, and timely piece for anyone following developments in the state secrets privilege or separation-of-powers issues in the struggle against terrorism. I highly recommend it.
Civil Partnerships & Religious Marriages? Douglas Kmiec's Views
Con Law Prof Douglas Kmiec of Pepperdine can be viewed on the popular comedy show "The Colbert Report" in the April 16, 2009 episode here. Kmiec appeared on the show to promote his book, Can a Catholic Support Him? Asking the Big Question about Barack Obama, released last September. But the main topic of discussion was same-sex marriage.
Kmiec appears at the conclusion of the show - - - after Colbert's parody of the National Organization for Marriage advertisement, which Frank Rich discussed in his NYT column today here. Kmiec's argument on the Colbert show is that the state should not be in the business of marriage, but should protect and support certain relationships, including it seems same-sex couples, and excluding, it seems, polygamous ones. Marriage, Kmiec seems to say, is a religious affair which should be separate from the state. Kmiec thus comes very close on the show to arguing for a marriage abolitionist position.