Saturday, January 24, 2009
President Obama's decision in his first days to reverse the so-called "global gag rule" or "Mexico City policy" barring international aid connected to abortion led me back to some of the excellent scholarship that has occurred in this area. For ConLawProfs, the issue has always been a problematic one in terms of pure doctrine. Roe v. Wade does not apply to foreign aid or women outside the United States, but does that mean the issue is not a constitutional one? And what exactly is this "global gag rule" anyway?
Nina J. Crimm of St John’s Law School, in her article, The Global Gag Rule: Undermining National Interests By Doing Unto Foreign Women And NGOs What Cannot Be Done At Home, 40 Cornell Int'l L.J. 587 (2007), is a great place to start to look for an answer to these questions.
Professor Crimm does an excellent job of providing the history of the global gag rule starting in the 1960s, discussing the national interests supporting it, and elucidating the harms to NGOs. She briefly argues that the global gag rule could be unconstitutional under equal protection principles if it applied to US women. Her main argument concerns the First Amendment and “unconstitutional conditions” doctrines based on funding, but again with the caveat if the “restrictions that are imposed on foreign NGOs were imposed on domestically formed NGOs.” Thus, despite her carefully crafted constitutional arguments, her ultimate point is a non-constitutional one:
The United States holds itself up to the world as a model democracy based on fundamental and equal rights for individuals and organizations. Accompanying this role is the responsibility to permit abroad what must be permitted at home.
Id. at 618.
Crimm is not alone in her conclusions. The UC-Davis Journal of International Law and Policy devoted a Symposium to “Family Planning and AIDS Policy in the International Community” in 2006. Berta Esperanza Hernández-Truyol of University of Florida College of Law has a particularly compelling piece, On Disposable People And Human Well-Being: Health, Money And Power, 13 U.C. Davis J. Int'l L. & Pol'y 35 (2006). She argues:
An analysis of the gag rule reveals that it can be interpreted as an imperial power move that contributes to the deterioration of health. It deploys economic power to ignore sovereignty and subtract from human well-being. The policy purposely denies access to funds that enable the provision of health education, supplies, and services simply to implement political ideology. Ironically, while claiming a policy of preventing loss of life through prohibition of abortion, the gag rule policy actually costs more lives by not engaging in programs that can reduce maternal and infant mortality. Significantly, the policy also deleteriously results in more orphans (who are usually left in very vulnerable and unstable situations) and in the failure to provide certain services and supplies necessary for HIV/AIDS victims. This reveals a direct link between economic power (quantity of aid) and availability of service.
Id. at 64.
Again, this is not a “constitutional law” argument, but an international law and policy one. A host of other articles on the subject, most of them reaching similar conclusions as these articles by Berta Esperanza Hernández-Truyol and Nina J. Crimm, also might at first seem rather “tangential” to ConLawProfs, except as we discuss Executive and Legislative powers in “foreign affairs.”
But our students (at least mine) often raise issues of "rights" in international contexts. An interesting – and quite lengthy – article by Scott L. Cummings of UCLA published last year, The Internationalization Of Public Interest Law, 57 Duke L.J. 891 (2008), implicitly contends that “rights” may be shifting away from the Constitution. Here’s the abstract:
This Article describes and explains the influence of global change on American public interest law over the past quarter-century. It suggests that contemporary public interest lawyers, unlike their civil rights-era predecessors, operate in a professional environment integrated into the global political economy in ways that have profound implications for whom they represent, where they advocate, and what sources of law they invoke. The Article provides a preliminary map of this professional environment by tracing the impact of three defining transnational processes on the development of the modern public interest law system: the increasing magnitude and changing composition of immigration, the development and expansion of free market policies and institutions, and the rise of the international human rights movement. It then suggests how each of these processes has contributed to institutional revisions within the U.S. public interest system: the rise of immigrant rights as a distinctive category of public interest practice, the emergence of transnational advocacy as a response to the impact of free market policies abroad, and the movement to promote domestic human rights both as a way to resist free market policies at home and to defend civil rights and civil liberties in the face of domestic conservatism and antiterrorism. After mapping the institutional scope and texture of these trends, the Article appraises their influence on the goals public interest lawyers pursue, the tactics they deploy, and the professional roles they assume in the modern era.
So it seems that Obama's reversal of the "global gag rule" has a solid foundation in legal scholarship.
January 24, 2009 in Abortion, Due Process (Substantive), Executive Authority, Family, Foreign Affairs, Fundamental Rights, Gender, Medical Decisions, Reproductive Rights, Scholarship | Permalink | Comments (0) | TrackBack (0)
I posted here yesterday that attorneys for the 17 Chinese Uighurs held at Guantanamo Bay, and whose habeas case is now on appeal to the D.C. Circuit, asked President Obama to release them into the United States, consistent with District Judge Urbina's order.
We write because, as to our seventeen Uighur clients, there is no need to review whether they should be imprisoned [under the new EO]. The executive branch, the judiciary, and members of Congress all have acknowledged that the Uighurs should be released. The issue for the Obama Administration is not whether the Uighurs should be released, but rather where they should be released.
We urge the government to release the Uighurs immediately in the only place they can be released--the United States. Not only would this be just, but it is in our national interest. By accepting the Uighurs, we would encourage other countries to accept the significant number of Guantanamo detainees who are cleared for release but who cannot be repatriated. Bringing the Uighurs here is thus an important early step toward carrying out President Obama's Executive Order and removing a stain on our National character. . . .
We are amenable to the imposition of reasonable release conditions, such as, for example, monitoring by the Court in consultation with the Department of Homeland Security.
Friday, January 23, 2009
Seventeen Chinese Uighurs, still held at Guantanamo Bay while their case is on appeal, have asked the Obama Justice and Defense Departments to release them, according to Lyle Denniston at SCOTUSblog. I previously posted (with links) on the Uighur case here and here.
Judge Urbina (D.D.C.) ordered the Uighurs released; the Bush administration appealed, arguing that Urbina's order violated separation of powers, and, in any event, that the Uighurs were too dangerous to be released into the U.S.--in part because they might be angry that the U.S. wrongfully held them for so long (!)--and that no other country would take them. The D.C. Circuit has not yet ruled in the case.
The Uighurs now seek release, referencing President Obama's new EO ordering a review of all Guantanamo cases in their letters to AG-designate Holder, Acting AG Filip, and Secretary of Defense Gates. (My post on that EO is here.)
The case presents another significant test for the Obama administration--to press the appeal, or to drop it, comply with Urbina's order, and release the Uighurs into the U.S.--especially in light of the NYT report on Friday that a formerly released detainee turned around to become the deputy leader of Al Qaeda in Yemen, underscoring the trickiness and potential danger of these decisions. (The NYT in today's paper asks Where Will Guantanamo Detainees Go?, looking at these and related issues.)
We'll stay on top of developments.
President Obama issued an Executive Order yesterday banning torture and providing for treatment of individuals in U.S. custody consistent with Common Article 3 of the Geneva Conventions, the Federal Torture Statute, and the Convention Against Torture.
The EO revoked Bush's 2007 EO 13440 (tightening restrictions on interrogation techniques, but leaving some wiggle room) and "[a]ll executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the [CIA] from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals . . . ." It also effectively revokes Office of Legal Counsel opinions authorizing abusive interrogation techniques: It prohibits the Attorney General from relying upon "any interpretation" "issued by the Department of Justice between September 11, 2001, and January 20, 2009," in interpreting any interrogation law--"including interpretations of Federal criminal laws, the Convention Against Torture, Common Article 3, Army Field Manual 2 22.3, and its predecessor document . . . ."
In stark contrast to the legal analysis in the Bush administration OLC opinions authorizing abusive interrogation techniques under the President's Article II powers and the AUMF, the Obama EO simply states this:
Common Article 3 Standards as a Minimum Baseline. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340 2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely and shall not be subjected to violence to life and person (including murder of all kinds, mutilation, cruel treatment, and torture), nor to outrages upon personal dignity (including humiliating and degrading treatment), whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.
I posted yesterday that President Obama ordered a review of al-Marri's case, now before the Supreme Court. Here's the memo. There's nothing surprising here; just the administration trying to work out what to do with al-Marri.
President Obama also ordered a review of all detainees at Guantanamo as part of the effort to close the detention facility in a year. That Executive Order is here. The language of the EO stands in stark contrast to Bush administration policies: The Findings acknowledge the significant problems with the detentions; they recognize that a number of detainees designated for release are still being held, and that others were held without sufficient cause; they plainly (and correctly) state that habeas extends to Guantanamo; and the EO limits interrogation techniques to those consistent with "all applicable laws," "including Common Article 3 of the Geneva Conventions." The EO also halts all military commission proceedings.
As to review of detainees, the administration is keeping all options open: release; prosecution in Article III courts; or some other (unnamed, but "lawful" and consistent with the "interests of justice") options.
This is a powerful rebuke and reversal of the Bush administration policies. Most notably, the Obama administration seems to acknowledge the rule of law (!), not test, push, and violate it under claimed authority of Article II and the AUMF.
(President Obama also issued this EO establishing a special task force to review all detention policy options and "to develop policies for the detention, trial, transfer, release, or other disposition of individuals captured or apprehended in connection with armed conflicts and counterterrorism operations . . . .")
Among the principles set out in the memorandum:
Government should be transparent.
Government should be participatory.
Government should be collaborative.
The memo, including these principles, of course, merely sets a tone; it doesn't create any legal rights or responsibilities. But the memo also directs the OMB to develop recommendations for an "Open Government Directive" that will contain specific measures for agency action. We'll post when these come out.
Thursday, January 22, 2009
Many many websites and news outlets reporting on Obama's press statement, which does not (yet?) appear on www. whitehouse.gov, but reads as follows:
On the 36th anniversary of Roe v. Wade, we are reminded that this decision not only protects women’s health and reproductive freedom, but stands for a broader principle: that government should not intrude on our most private family matters. I remain committed to protecting a woman’s right to choose.
While this is a sensitive and often divisive issue, no matter what our views, we are united in our determination to prevent unintended pregnancies, reduce the need for abortion, and support women and families in the choices they make. To accomplish these goals, we must work to find common ground to expand access to affordable contraception, accurate health information, and preventative services.
On this anniversary, we must also recommit ourselves more broadly to ensuring that our daughters have the same rights and opportunities as our sons: the chance to attain a world-class education; to have fulfilling careers in any industry; to be treated fairly and paid equally for their work; and to have no limits on their dreams. That is what I want for women everywhere.
Lawyers for al-Marri yesterday filed their merits brief at the Supreme Court. I posted on the administration's request for an extension on its own merits brief here; my most recent post previous to that is here.
The case, now captioned al-Marri v. Spagone, deals with the government's authority to indefinitely detain a lawful U.S. resident, captured and detained within the U.S., without charges, as an enemy combatant.
Whatever you think about the case, this is a terrific brief--a good read, and a good addition to your classes on wartime authority. The explicitly constitutional arguments run from pages 48 to 57 (of the brief, not the PDF), but the entire brief draws on canonical cases and methods of construction that will be useful to your students.
As I mentioned in my previous post on the case, we'll keep our eyes open for the Court's ruling on the administration request for a delay and the administration's next move.
The Obama administration has asked the Supreme Court for an extension of time to file its brief in Al-Marri v. Pucciarelli, the case involving the government's authority to indefinitely detain, without charges, a lawful U.S. resident, captured and held in the U.S., as an enemy combatant. I most recently posted on the case here; SCOTUSblog reports here.
The administration could certainly use the time to sort this out. The best solution might be to move al-Marri to a regular federal prison and try him on federal criminal charges (if the evidence supports a charge) in regular Article III courts--a tack favored for other detainees by advocates and the new administration. But this would moot the case at the Supreme Court and leave the Fourth Amendment ruling, with its expansive reading of executive authority, on the books.
Another solution: Let him go. This also moots the case and leaves the Fourth Circuit ruling on the books. And more: He might be dangerous, and he might not have a home. (Remember the Uighurs?)
We'll keep an eye on this for you.
President Obama today signed three executive orders closing overseas secret prisons, closing the detention facility at Guantanamo Bay within one year, and halting abusive interrogation techniques. The NYT reports here.
Obama has yet to determine where to send Guantanamo detainees, however.
We'll post links to executive orders and reports on any plans for detainees when we get them.
Our just-short-of-4-month-old blog received its 10,000th visit earlier today, we've been named a top-50 Constitutional Law Blog by the Masters in Criminal Justice Blog, and we've received favorable reviews elsewhere. Thank you, readers, for your support!
We are, of course, always seeking new ways to attract and retain readers. Please let us know how we might serve you better.
President Obama yesterday issued an executive order reversing the Bush administration policy of allowing former Presidents or their designates to assert executive privilege and thus to protect certain presidential documents from public disclosure. The new EO returns to policies of the Reagan, G.H.W. Bush, and Clinton administrations under EO 12667 (signed by Reagan). The National Coalition for History reports here.
This move is a significant signal that the Obama administration intends to be much more open than the Bush administration; it will also likely result in wider availability of former Presidents' documents than under the Bush policy.
President Obama's order specifically revoked Bush administration Executive Order 13233, which permitted former Presidents or their designates to assert executive privilege and thus protect their presidential material from public disclosure, whether the incumbent President agreed or not. Obama's order gives this power back to Archivist in consultation with relevant incumbent administration officials and ultimately to the incumbent President.
The Bush administration EO 13233 relied upon Nixon v. Administrator of General Services; EO 13233:
In Nixon v. Administrator of General Services, the Supreme Court set forth the constitutional basis for the President's privileges for confidential communications: "Unless [the President] can give his advisers some assurance of confidentiality, a President could not expect to receive the full and frank submissions of facts and opinions upon which effective discharge of his duties depends." 443 U.S. at 448-49. The Court cited the precedent of the Constitutional Convention, the records of which were "sealed for more than 30 years after the Convention." Id. at 447 n. 11. Based on those precedents and principles, the Court ruled that constitutionally based privileges available to a President "survive the individual President's tenure." Id. at 449. The Court also held that a former President, although no longer a Government official, may assert constitutionally based privileges with respect to his Administration's Presidential records, and expressly rejected the argument that "only an incumbent President can assert the privilege of the Presidency." Id. at 448.
But nothing in Nixon v. Administrator of General Services--stretched as it is here and elsewhere in EO 13233--authorized the unilateral assertion of executive privilege by a former President, without administrative review procedures by the incumbent administration. In fact, the Court in that case also wrote that
[a]n incumbent President should not be dependent on happenstance or the whim of a prior President when he seeks access to records of past decisions that define or channel current governmental obligations. Nor should the American people's ability to reconstruct and come to terms with their history be truncated by an analysis of Presidential privilege that focuses only on the needs of the present. Congress can legitimately act to rectify the hit-or-miss approach that has characterized past attempts to protect these substantial interests by entrusting the materials to expert handling by trusted and disinterested professionals. . . .
In short, we conclude that the screening process contemplated by the Act will not constitute a more severe intrusion into Presidential confidentiality than the in camera inspection by the District Court approved in United States v. Nixon.
If anything, these cases better support Obama's EO (and Reagan's EO 12667).
Wednesday, January 21, 2009
I posted just over a week ago that the OLC was releasing Bush-era legal memos on issues of interest in the prior administration. The OLC released another batch last week; check them out here. Below is a cut-and-paste of the most recently released memos. For a bit of irony, note particularly the last one, in which the OLC ruled that the OLC Reporting Act--which requires that the OLC report to Congress on any "authoritative legal interpretation" of "any federal statute"--was unconstitutional.
CONSTITUTIONALITY OF FEDERAL GOVERNMENT EFFORTS IN CONTRACTING WITH WOMEN-OWNED BUSINESSES
(January 16, 2008) (added 01/16/09)
CONSTITUTIONALITY OF D.C. VOTING RIGHTS ACT OF 2007
(May 23, 2007) (added 01/16/09)
PRESIDENTIAL SIGNING STATEMENTS
(January 31, 2007) (added 01/16/09)
LIABILITY OF CONTRACTORS IN AIRBRIDGE DENIAL PROGRAMS
(March 1, 2004) (added 01/16/09)
REQUESTS FOR INFORMATION UNDER THE ELECTRONIC COMMUNICATIONS PRIVACY ACT
(November 5, 2008) (added 01/16/09)
INTERPRETATION OF SECTION 586 OF THE FOREIGN OPERATIONS, EXPORT FINANCING, AND RELATED PROGRAMS APPROPRIATIONS ACT
(July 18, 2003) (added 01/16/09)
APPLICABILITY OF THE ANTIDEFICIENCY ACT TO A VIOLATION OF A CONDITION OR INTERNAL CAP WITHIN AN APPROPRIATION
(January 19, 2001) (added 01/16/09)
STATUS OF PRESIDENTIAL MEMORANDUM ADDRESSING THE USE OF POLYGRAPHS
(January 14, 2009) (added 01/16/09)
LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT
(January 19, 2006) (added 01/16/09)
VALIDITY OF THE FOOD, CONSERVATION, AND ENERGY ACT OF 2008
(May 23, 2008) (added 01/16/09)
AUTHORITY OF HUD’S CHIEF FINANCIAL OFFICER TO SUBMIT FINAL REPORTS ON VIOLATIONS OF APPROPRIATIONS LAWS
(August 31, 2004) (added 1/14/09)
RESPONSIBILITY OF AGENCIES TO PAY ATTORNEY’S FEE AWARDS UNDER THE EQUAL ACCESS TO JUSTICE ACT
(October 16, 2007) (added 1/14/09)
CONSTITUTIONALITY OF THE OLC REPORTING ACT OF 2008
(November 14, 2008) (added 1/12/09)
The Con Law Prof Blog's very own Ruthann Robson (CUNY Law) gave an outstanding presentation at the Association of American Law Schools annual conference on the effective use of PowerPoint--yes, it can be effective--in teaching Marbury v. Madison. I suspect many of us have wrestled with the questions of whether and how to use PowerPoint; Robson has some terrific answers.
Here's Robson's full program description. Robson:
The [PowerPoint] demonstration will involve a single case, Marbury v. Madison (a case that has "tortured" generations of law students) presented in various ways through PowerPoint (a technology known for its ability to "torture") and will end with a hypothetical about the availability of judicial review for allegations of torture in an extraordinary rendition case.
Robson presented three innovative techniques for using PowerPoint effectively to promote student engagement and learning (and not to script the class and put them to sleep). I'm not going to give them away; read the program description.
I've avoided using PowerPoint in my own Con Law classes for a variety of reasons relating to pedagogy and my own incompetence. But Robson's presentation is inspiring me to rethink that position this semester. I suspect that it'll force you to rethink whether and how you use PowerPoint in your class, too. Take a look.
It's one of those rare spots of specificity in the Constitution - Article II section I provides that before a President "enter on the Execution of his Office, he shall take the following Oath or Affirmation:--" -"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."
There was a bit of flub at the administration of the oath of office during Tuesday's Inauguration, obvious to anyone who was watching or listening, and reported by the NYT here.
It seems as if it was enough of a flub so that a repeat performance was in order. As the NYT blog reports this evening here:
President Obama was re-administered the oath of office on Wednesday evening by Chief Justice John G. Roberts Jr., one day after the two men stumbled over each other’s words during the inauguration.
The president and the chief justice stood in the Map Room of the White House at 7:35 p.m. as they took a second run at the constitutional oath. A handful of advisers watched the proceeding, which lasted about 25 seconds.
Meanwhile, a Huffington Post blogger calls for Roberts' impeachment:
Roberts should be impeached and removed from office for this unforgivable error. The Constitution requires certain language for a presidential oath of office. Roberts blew it. And if he doesn't understand such things he should be fired for misfeasance of the first order.
It's probably not impeachable, but it certainly has fueled speculation by Court watchers.
The NYT reports that President Obama ordered a halt to military tribunal prosecutions of detainees at Guantanamo Bay. The move is part of the new administration's plan to close the detention facility, but there's no word as to what the administration will do with the remaning detainees.
Notice of the decision came in a legal filing in Guantanamo by military prosecutors just before midnight Tuesday. The decision, which had been expected as part of Mr. Obama’s pledge to close the detention camp, was described as a pause in all war-crimes proceedings there so that the new administration can evaluate how to proceed with prosecutions.
We'll keep our eye out for any executive orders--none has been issued so far, to our knowledge--and any other developments at Guantanamo.
Tuesday, January 20, 2009
Over the past few years, Lederman’s legal blogging at Balkanization has provided invaluable insight and strength to critics of key Bush policies, including torture and warrantless wiretapping. Lederman wrote passionately against the Bush administration’s efforts to legalize the use of torture . . . . Lederman described the mission of the OLC in a Jan. 2005 blog post. “OLC’s proper role is not to distinguish, for Executive Branch officials, among different forms of unlawful conduct, so as to identify those that are subject to the highest criminal sanctions, on the one hand, and those that are ‘merely’ prohibited, but without severe sanction, on the other. … OLC’s proper role, instead, is to inform the Executive Branch as to what conduct is lawful.”
The inauguration of Barak Obama as the 44th President of the United States is a sign and promise of many changes AND one of those is the new whitehouse website - - - www.whitehouse.gov - - - with its own blog and rss feed, as well as other features. The first post, by Macon Phillips, the Director of New Media for the White House, is dated Tuesday, January 20th, 2009 at 12:01 pm.
UPDATE, 1/24, 8:12 EST: I neglected to link to Nareissa's excellent summary of this year's Con Law Section program. Here's the link; check it out. While you're at it, check out Ruthann's excellent summary of the Prop 8 programs here.
Plans are (already!) underway for the Constitutional Law Section program at the 2010 Association of American Law Schools Annual Conference. Please e-mail section Chair Rick Garnett (Notre Dame, email@example.com) with ideas and suggestions for the program.
This year's excellent program--Is American Constitutional Law in Crisis?--is available by podcast at the AALS web-site. (The site doesn't provide a direct link to the program, so click here, scroll down to January 8, 2009, scroll further to 10:30 to 12:15, and click on the Constitutional Law link.)
Monday, January 19, 2009
Last week the U.S. Foreign Intelligence Surveillance Court of Review--the appellate panel under FISA--affirmed a lower FISA court ruling that the Protect America Act of 2007 did not violate the Fourth Amendment. The redacted opinion is here.
The PAA authorizes the government to direct communications service providers to assist it in acquiring foreign intelligence involving persons reasonably believed to be outside the U.S. Congress enacted the PAA after the NYT reported in late 2005 that the administration had been engaging in this kind of surveillance without Congressional approval. (My previous post on this--and its abuses--is here.)
In short, the Court of Review held that the warrantless searches were reasonable, that there were plenty of layers of protection, and that claims of abuse were "overblown."
I won't dwell on the Fourth Amendment analysis. Instead I'll highlight the court's statement about executive power to engage in this kind of surveillance, sans protections and Congressional approval:
[W]e caution that our decision does not constitute an endorsement of broad-based, indiscriminate executive power. Rather, our decision recognizes that where the government has instituted several layers of serviceable safeguards to protect individuals against unwarranted harms and to minimize incidental intrusions, its efforts to protect national security should not be frustrated by the courts.
The court thus said nothing about executive authority to engage in this kind of surveillance without the detailed protections of the PAA and without Congressional approval.