Monday, April 13, 2009
Call for Articles, Essays, and Book Reviews: National Security and Constitutional Law
Proposals due May 15, 2009
The editors of Pace
Law Review invite proposals from scholars, researchers, practitioners,
and professionals for contributions to a special issue on the
relationship between national security and constitutional law to be
published in Winter 2010.
This law review issue will promote an ongoing discourse on the balance between constitutional rights and effective national security.
Please submit proposals of no more than 500 words by attachment to email@example.com by May 15, 2009. All proposals should include the intended author’s name, title, institutional affiliation, contact information, and should concern issues related to the relationship between national security and constitutional law. Book review proposals should also include (a) the title and publication date of the book proposed for review; (b) a description of the importance of the book to the general topic; and (c) any other information relevant to the book or proposed review (e.g., the reviewer’s expertise or any relationship with the author). Authors are also welcome, but not required, to submit a CV. We expect to make publication offers by June 1. We encourage clear, concise, and accessible writing that will be of use to lawmakers, attorneys, and students.
Completed manuscripts of book reviews and essays will be due July 15, 2009. Completed manuscripts of scholarly articles will be due August 1, 2009.
Wednesday, February 25, 2009
The Senate Judiciary Committee held a hearing today to consider President Obama's nomination of Dawn Johnsen to serve as Assistant Attorney General for the Office of Legal Counsel. (The webcast is here.)
As part of the materials in support of Johnsen's appointment, the Committee considered several letters from law professors, including Johnsen, submitted to the Judiciary Committee in the Bush administration and Johnsen's testimony before the Committee on "Secret Law" in the Bush administration. If you haven't seen (or signed) these, take a look.
The first letter (July 9, 2007) responds to the Bush administration's Statement of Administrative Policy on The Local Law Enforcement Hate Crimes Prevention Act of 2007. The SAP raised concerns about Congress's authority to enact the law, which would have prohibited violent crimes motivated by the race, color, religion, or national origin of the victim. The letter set out the case for why Congress had authority under Section 2 of the Thirteenth Amendment.
The second letter (January 17, 2007) made the case for Congressional authority to affect President Bush's then-planned troop surge in Iraq. The letter:
These provisions [Article I, Sec. 8 authorities related to war] plainly set forth an extensive role for Congress that goes far beyond the initial decision to declare war and subsequent decisions regarding its funding. This mass of war powers confers on Congress an ongoing regulatory authority with respect to the war. Indeed, these powers are so extensive that Chief Justice John Marshall opined (with some exaggeration, when read out of context) that "[t]he whole powers of war [are], by the Constitution of the United States, vested in Congress . . . ." As Commander in Chief, the President's role is to prosecute the war that Congress has authorized within the legitimate parameters Congress sets forth. Congress has exercised precisely this power to define the parameters of armed conflict or war on a number of occasions, some of which concern recent military engagements.
Johnsen's testimony deals with OLC's proper role as legal adviser to the executive branch and those instances when advice should be kept secret. Johnsen:
There are circumstances, of course, in which the executive branch should keep OLC advice secret. In extreme cases, the release of an OLC opinion could gravely imperil national security. Congress should respect the President's genuine needs for secrecy. But so, too, should the President respect Congress's need to know how--even whether--the executive branch is enforcing existing law. It is fundamental that if OLC advises the executive branch that it may disregard an applicable legal restriction--whether in the Constitution, a treaty or a statute--because a presidential prerogative trumps the law, OLC virtually always should make that legal interpretation public.
Johnsen's testimony incorporates the famous Principles to Guide the Office of Legal Counsel, authored by 19 former OLC attorneys.
This material has been around a while, and nothing in it is a particular surprise, but it makes great reading on a wide range of hot-button issues from the Bush administration.
Thursday, February 12, 2009
Feeling the creative urge? Or the need to write something that is not footnoted?
Or thinking of a creative assignment for students?
The literary magazine New Millennium is having a writing competition for works centered on Obama - - - poetry, fiction, or creative nonfiction - - - 2,500 words or less. (Really, that's two thousand five hundred words; not twenty-five thousand).
There is an entry fee, as there tends to be in creative writing competitions. There is also a monetary award. Deadline is March 1, 2009. More information here.
Friday, January 30, 2009
Counsel to former President Bush Fred Fielding wrote letters last week to counsel for Karl Rove and Harriet Miers directing them not to appear before, and not to provide information to, Congress in response to Congressional subpoena in the investigation into the firing of U.S. attorneys, Michael Isikoff reports in Newsweek. The letters are here and here.
We knew, of course, that President Bush directed Rove and Miers not to appear before Congress--I posted most recently on this here--and we knew that the Bush OLC ruled that Rove and Miers enjoy absolute (yes you read that right: absolute) executive privilege. These letters appear to be a post-presidential attempt to provide additional legal cover for Rove and Miers. The only difference between these most recent letters and Bush's previous directions: Bush is now out of office, thus weakening, but not destroying, Bush's and Bush officials' claims of executive privilege. (See my previous post here.)
The letters have no legal significance. They cannot provide cover any more than Bush's previous directions themselves or the prior Bush OLC memo. They merely reiterate the Bush administration position on executive privilege--that the President and close advisers enjoy absolute executive privilege in respect to Congressional subpoenas--and re-direct Rove and Miers not to testify.
So the letters are interesting only because of their legal analysis (which itself is a reflection of the analysis in the Bush OLC memo). Both letters cite the July 10, 2007, Bush OLC memo, linked above, concluding that the President and immediate advisers are absolutely immune from compelled testimony before Congress, and that the immunity cannot be outweighed by any Congressional interest. The Bush OLC memo--and Fielding's most recent letters--in turn generously quote a September 16, 1999, Clinton OLC memo, authored by then-AG Janet Reno. That memo concluded that "[t]he President and his immediate advises are absolutely immune from testimonial compulsion by a Congressional committee."
There are a couple differences between the recent letters and Reno's memo. For one, the Congressional investigation that sparked Reno's memo dealt with a matter--executive clemency--that is uniquely within the constitutional authority of the President, and over which Congress can neither legislate nor appropriate. Reno concluded that Congress lacked authority to investigate the matter, and it therefore couldn't compel testimony by presidential advisers.
But Reno also concluded that there was a separate and independent basis for executive privilege in that case: "Executive privilege is assertable in response to a congressional subpoena seeking testimony by the Counsel to the President concerning the performance of official duties on the basis that the Counsel serves as an immediate adviser to the President and is therefore immune from compelled congressional testimony." Reno wrote that the privilege is absolute, but she alternatively concluded that the privilege would outweigh any Congressional interests (in examining the advice the President received with regard to clemency) under a balancing approach.
The other difference is that Fielding wrote his letters after Bush left office. Reno wrote her memo while Clinton was still in office.
So do the differences matter? Start here: The claim of absolute executive privilege is based upon separation-of-powers considerations that are very similar to those in play in U.S. v. Nixon. The Court in that case, of course, ruled that the privilege gives way to certain other interests under a balancing approach. The privilege was not--and is not--absolute; it is subject to a balancing test.
Under a balancing test when the privilege is asserted before Congress, a Congressional interest in a matter uniquely in the President's bailiwick is certainly weaker than a Congressional interest in a matter within its own bailiwick. Clemency falls into the former; politicized firings at DOJ fall into the latter.
And finally the privilege is stronger for a sitting President than for a former President.
For all these reasons, Rove and Miers state a much weaker claim for executive privilege.
The Obama Justice Department will weigh in on these issues soon enough in the House's case against Miers and Bolton. (See my post here.) We'll stay on top of this.
Thursday, January 29, 2009
John Yoo, formerly in the Justice Department from 2001-03, and now a law professor at the University of California, Berkeley and a visiting professor at Chapman Law School, has an op-ed in Washington Post entitled "Obama Made a Rash decision on Gitmo," and supporting the practice under "under President George W. Bush," when
the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)
Yoo continues, contrasting President Obama, who
ordered that al Qaeda leaders are to be protected from "outrages on personal dignity" and "humiliating and degrading treatment" in accord with the Geneva Conventions. His new order amounts to requiring -- on penalty of prosecution -- that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.
Eliminating the Bush system will mean that we will get no more information from captured al Qaeda terrorists. Every prisoner will have the right to a lawyer (which they will surely demand), the right to remain silent, and the right to a speedy trial.
The first thing any lawyer will do is tell his clients to shut up. The KSMs or Abu Zubaydahs of the future will respond to no verbal questioning or trickery -- which is precisely why the Bush administration felt compelled to use more coercive measures in the first place. Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court.
Interestingly enough in light of Yoo's comments regarding layers representing clients, Obama is - - - in a way - - - representing John Yoo. As Politico.com reported and WSJ blog also noted, the lawsuit by Jose Padilla against several in the Bush Administration, including Yoo, is being defended by the Obama DOJ. The complaint is available on the WSJ blog here with background on Yale Law School's involvement on behalf of Padilla here.
Wednesday, January 28, 2009
Rep. John Conyers, Chair of the House Judiciary Committee, issued a subpoena last week to Karl Rove requiring him to testify before the Committee in its investigation of the Bush administration's politicization of the Justice Department, including the firing of nine U.S. attorneys. The subpoena is here; Politico has an excellent report here; I previously posted on last Congress's Senate Judiciary Committee subpoenas and contempt resolutions here, the House's contempt case against Bolton and Meiers for failing to testify (asserting executive privilege) here, and more generally about post-presidency claims of executive privilege here.
The difference with this new subpoena, of course, is that Bush has now left office, and Rove was an official in a prior (not current) administration. The difference weakens any claim of executive privilege.
Executive privilege for former officials is governed by Nixon v. Administrator of General Services, the case in which former President Nixon sought to protect his presidential materials from screening by the Archivist. The Court ruled in that case that while executive privilege outlasts a presidency--and therefore may be asserted by a former President--the screening process in that particular case had sufficient protections to ensure executive confidentiality and thus to override Nixon's claim of executive privilege.
The Court arrived at this conclusion in part because neither President Ford nor President Carter supported the claim. Jack Balkin, in a thoughtful and balanced post at Balkinization, argues that this puts the onus on President Obama: If Obama supports the claim, Rove is more likely to win in court; if Obama opposes it, Rove is more likely to lose.
But there's more to the Court's analysis in Nixon v. Administrator than subsequent Presidents' sanctions of the claim. In addition to--and perhaps even more than--subsequent Presidents' views, the Court looked at processes in place to protect executive confidentiality. The Court in Nixon v. Administrator, for example, compared the processes in place in that case to the in camera processes in United States v. Nixon and concluded that the processes in the former were as protective as those in the latter. Moreover, they were minimally intrusive.
And the Court in Nixon v. Administrator also made much of the fact that Nixon's claim was against his own branch of government--the executive--not a coordinate branch, as in U.S. v. Nixon.
With these other considerations, any executive privilege claim against the most recent subpoena could be an interesting constitutional question. The protections in a Congressional investigation are probably less than in an Archivist's screening (as in Nixon v. Administrator) or a federal court's in camera review (as in U.S. v. Nixon), and the subpoena is probably more intrusive. Moreover the subpoena comes from a coordinate branch. But on the other side, the subpoenaed material goes to support a Congressional investigation, not a criminal trial (as in U.S. v. Nixon).
Obama's position on Rove's assertion of executive privilege will certainly matter--it may even be the tipping factor--but only along with these other considerations. And if Obama's recent practices promoting open government are any indication, he's likely to oppose Rove's claim of executive privilege in any event.
Thursday, January 22, 2009
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).
Sunday, January 11, 2009
Professor Dawn Johnsen (Indiana U. and President-Elect Obama's pick to head the Office of Legal Counsel) posted her characteristically excellent piece What's a President to Do? Interpreting the Constitution in the Wake of Bush Administration Abuses on ssrn; it's also in the Boston U. L. Rev. This is a thoughtful article on how the new chief executive should respond to constitutional overreaching by the present administration. (For a related piece, see Johnsen's American Constitution Society Issue Brief on the topic.) Johnsen's answer is balanced, well considered, and appropriately restrained; the piece reminds us--if there were any doubt--why she's Obama's choice to lead the OLC. This is an excellent read in its own right; it's an outright must-read considering Johnsen's role on the Obama team.
Johnsen argues that the Bush administration excesses ought not drive us to fundamentally change our understanding of executive authority--despite what may be a very strong impulse to do so. Instead we should look to safeguards and checks both within and outside the executive branch to avoid future constitutional abuses, while nevertheless protecting the legitimate authority of the executive branch.
Johnsen starts by reviewing some of the more widely examined Bush administration excesses and reactions to those excesses in order to illustrate both problems: the administration's constitutional overreaching; and opponents' reactions that, in their (understandable) tenacity, themselves go too far and impinge upon legitimate executive authority.
She offers several examples; here's a particularly good one, if only because it seems so typical in today's debates:
The risk of such conflation can be seen, for example, in a December 2007 remark by Senator Sheldon Whitehouse. Whitehouse attacked the Bush administration for asserting the position that "[t]he President, exercising his constitutional authority under Article II, can determine whether an action is a lawful exercise of the President's authority under Article II." Senator Whitehouse has earned commendation for his forceful and able critiques of the Bush administration abuses. Here, too, his concern is warranted, but he seems to misplace his objections. Presidents not only can, but they must determine whether their actions are lawful (subject of course, to appropriate judicial review). Moreover, in many circumstances, Presidents may develop, declare, and act upon distinctive, principled constitutional views that do not track those of the Supreme Court or Congress. The problem lies not with the fact that President Bush, with the help of his lawyers, assessed the scope of his constitutional authority before acting, but with the flawed content of his legal detemrinations and the ways in which he secretly acted upon them. . . .
Johnsen goes on to argue that the Bush administration is itself largely responsible for such "misplaced" attacks because of its excessive secrecy.
Johnsen then explores the President's interpretive authority and nonenforcement authority and places both in historical context. She argues that the President ought to have interpretive authority: "The better question, therefore, is not whether, but how the President should participate in the determination of constitutional meaning." And she argues for a "strong, but not irrebutable presumption" in favor of enforcing even those statutes that the executive objects to on constitutional grounds: "I conclude that the Constitution is best interpreted as creating a strong but not irrebutable presumption in favor of enforcement of constitutionally objectionable statutes." And if you're looking for specifics on positions of Obama's OLC pick, look here: "The Bush administration's 'unitary executive' and Commander-in-Chief theories, in my view, are clearly wrong and threaten both the constitutionally prescribed balance of powers and individual rights." (This selection gives us more insight into Obama's positions on these issues; see my previous post here.)
Johnson wraps up by arguing for executive checks (presumably including the OLC) and extra-executive checks on Article II powers, but also for defending legitimate Article II powers. She offers no specifics on these points outside of outlining her position in contradistinction to Bush administration practices. But that is certainly enough for now: The new administration will have its hands full simply undoing the Bush administration abuses.
Johnsen's article reminds me once again how thoughtful she is on executive power and the OLC's role. Read it as good scholarship; read it as thoughtful critique; or read it as a roadmap for the OLC in the Obama administration. Whatever your interest: Just read it.
Saturday, December 20, 2008
Taking a bit of a break from grading con law exams, I heard an interesting segment on the NPR program "On the Media" concerning presidential pardon powers. An MP3 file of the program is here (with any luck) and the website is here (the story "beg your pardon" allows access to MP3 file). Thus, this week's Saturday Evening Review is less a "read" than a "listen" - - - as befits eyes tired from reading exams.
But after a bit of rest, the program led me to an interesting website Pardon Power maintained by P.S. Ruckman, Jr., Associate Professor of Political Science at Rock Valley College in Illinois. Ruckman's blog mentions the "On the Media" story and has a bit to say about how he was quoted. It's also pretty comprehensive - looking at gubernatorial pardon power as well. But I must say I found the most interesting post on Ruckman's blog his "Presidential Pardon Watch List." No surprise that the list includes Scooter Libby, Bernard Kerkick, Ted Stevens, and Jeffrey Skilling, though I was more interested to see Martha Stewart and John Walker Lindh included.
One of the best pieces of legal scholarship I've seen on the pardon power is by Mark Strasser, a ConLawProf at Capital University Law School. In The Limits Of The Clemency Power On Pardons, Retributivists, and The United States Constitution, 41 Brandeis L.J. 85 (2002), Strasser observes that while there is often much criticism about particular pardons, there is little consensus about "which uses of the pardon power are proper or appropriate." Especially striking is Strasser's discussion of the possibility of a presidential "self-pardon":
One issue that has received some attention is whether a President would be able to issue a pardon to himself. While there clearly is something unsettling about such an idea, at least some of the analyses offered regarding the reasons there cannot be such a right are unpersuasive. For example, some commentators reject that the President can pardon himself because, allegedly, that would make him his own judge. Yet, the Executive when issuing a pardon need not be acting as a judge, and there is no requirement, for example, that the President only give pardons to the most deserving individuals. The President is permitted to issue a pardon to help his friends, even if doing so might appear unseemly, and it is not at all clear that the Constitution permits one to benefit one's friends but not oneself. In any event, it may be difficult to draw a line between benefiting one's friends and benefiting oneself, because the President might issue pardons to others in order to protect himself. Indeed, there is historical precedent for pardons being issued to individuals so that the Executive might avoid embarrassment.
Arguably, if the President issues a self-pardon, there is a sense in which he has been placed above the law. Yet, the same might be said were the President's successor to issue a pardon to the outgoing President. Certainly, there are some differences between a President issuing a self-pardon and a President waiting for the next in office to issue the pardon -in the latter but not the former case the President could not be sure that the pardon would be issued. Yet, that difference is not enough to counter the charge that the President has been placed in a “special” position. Further, the President is clearly in a special position even if unable to pardon himself, precisely because the President can issue pardons to those who work for him.
Even if the President could issue a self-pardon, a separate issue is whether a President would do so. Where the President does not issue a pardon to himself, he is subject to the laws which he is accused of having broken. Further, there are limits on the pardon power: (1) the President can only pardon a crime that has already occurred rather than a crime that is either in process or to be performed in the future; (2) the President cannot issue a pardon in cases of impeachment; and (3) the President does not have the power to issue a pardon for a violation of state law. Thus, there are a variety of reasons to think that even if the President has the power to issue a self-pardon, the “government of the United States [might still be] ... termed a government of laws, and not of men.”
Id. at 150-151 (footnotes omitted).
The prospect of Bush pardoning himself seems remote, despite several stories I've seen in the "alternative" portions of the blogosphere. However, who Bush does pardon will be interesting to "watch" in the coming days.
Friday, December 12, 2008
As the New York Times reports, today the "Illinois attorney general petitioned the State Supreme Court on Friday to remove Gov. Rod R. Blagojevich from office, challenging his fitness to serve after his arrest Tuesday on corruption charges." The story continues:
“I recognize that this is an extraordinary request, but these are extraordinary circumstances,” the state attorney general, Lisa Madigan, said at a news conference after filing the petition to remove the governor. At the same time, she urged the State Legislature to move forward with impeachment proceedings.
Ms. Madigan said did not know when the court would respond. If Mr. Blagojevich is temporarily removed, which is what Ms. Madigan is seeking, the lieutenant governor, Pat Quinn, would become acting governor.
A helpful discussion of the issue of "Gubernatorial Removal and the State High Courts" is available from the National Center for State Courts here. The Press Release/ Backgrounder provides:
Illinois is one of at least 15 states with constitutional provisions that place the power of removal of a governor, temporary or otherwise, in the hands of the state’s highest court. The most recent invocation of such a power by a state high court was in Indiana in 2003, when that state’s governor was removed after having suffered a stroke (In re O'Bannon, 798 N.E.2d 838, 2003 Ind. LEXIS 737).
It also lists the 15 states and gives some information, as well as two additional cases.
Monday, December 8, 2008
The full Second Circuit will hear oral arguments tomorrow in Arar v. Ashcroft, the civil action by a Canadian detained at JFK, held in solitary confinement for two weeks in the U.S. without access to an attorney or the courts, and rendered to Syria for, um, "enhanced interrogation techniques." (After a year of in Syria, Syrian officials released Arar, stating that he had no connection to any criminal or terrorist activity. The Canadian government, after an exhaustive inquiry, concluded the same.) This is another case that a new Obama administration may be able to influence. I blogged on the other, Al-Marri, a couple days ago. The NYT ran an editorial on both today.
Arar originally claimed Due Process violations for the government's denial of counsel, denial of access to the courts, and subjecting him to torture by the Syrian government. He also claimed a violation of the Torture Victim's Protection Act, which allows a person tortured by a foreign government to bring suit against that government in U.S. courts. Arar claimed that Ashcroft, et al., were complicit in his torture. Arar's original complaint is here.
An earlier split 3-judge panel of the Second Circuit ruled against Arar. The majority held that Arar's claims would interfere with national security and foreign policy, that as a Canadian he was not entitled to Due Process, and that federal officials weren't sufficiently under the control of the Syrian government to support his TVPA claim. The Second Circuit decision is here.
The Center for Constitutional Rights, which represents Arar, has an excellent resource page here.
The en banc hearing tomorrow is notable because the Second Circuit granted it sua sponte, signalling either the case's important, its unhappiness with the panel decision, or both.
We'll keep you updated.
Friday, December 5, 2008
According to an article in the San Francisco Chronicle, the Berkeley City Council is considering a resolution that John Yoo, Berkeley School of Law (Boalt Hall) law professor, be charged with war crimes and that students at the law school not be required to take a class from him. The ABA Journal has the story here.
Yoo has been the subject of controversy for his role in the so-called "torture memos" from the White House in 2001-2003. The matter continues to be under investigation. According to a piece in The Public Record:
When these probes are complete it will likely spur the incoming administration of President-Elect Barack Obama to implement widespread reforms at the DOJ and the way interrogations against suspected terrorists are conducted by CIA and the military, said two people working on Obama’s transition team. While it’s unclear whether the investigations will lead to recommendations that individuals under scrutiny be prosecuted, the OPR investigation into a torture memo drafted by the DOJ’s Office of Legal Counsel is likely to recommend that the memo’s authors, Jay Bybee and John Yoo, be rebuked for the way in which they interpreted a law that formed the basis of the memo, said people involved in the probe, which is being conducted by the agency’s director H. Marshall Jarrett.
Bybee was the assistant attorney general at the OLC. He is now a federal judge on the United States Court of Appeals for the Ninth Circuit. Yoo was Bybee’s deputy. He is now a law professor at the University of California at Berkeley. Yoo was the principal author of the Aug. 1, 2002 memo and Bybee signed it. It was addressed to Alberto Gonzales, who was the White House counsel at the time.
The OPR investigation into the Aug. 1, 2002 torture memo was launched in late 2004 after the Abu Ghraib prison abuses were documented. Under Gonzales, the OPR has met some resistance in its attempt to obtain documents and interview officials, people familiar with the probe said, in explaining why the investigation is now in its fourth year.
In a letter released in February to Sen. Dick Durbin, who inquired about the probe, Jarrett said, "Among other issues, we are examining whether the legal advice contained in those memoranda was consistent with the professional standards that apply to Department of Justice attorneys."
The probe has centered on Yoo's use of an obscure health benefits statute from 2000 in defining torture. That statue became the basis for authorizing enhanced interrogation methods, the OPR official said.
Yoo and Bybee’s legal opinion stated that unless the amount of pain administered to a detainee results in injury "such as death, organ failure, or serious impairment of body functions" than the interrogation technique could not be defined as torture.
Wednesday, November 19, 2008
The Senate Judiciary Committee just released a report (with minority views) to accompany the resolutions finding Karl Rove and Josh Bolton in Contempt of Congress for failing to appear and testify before the Committee in its investigation into the politicized dismissal of nine U.S. Attorneys.
The Committee web-site has a time-line of events, with links; the Committee Report is here. The section on Executive Privilege (section V. of the Report) starts on page 13; separation-of-powers issues run throughout.
I posted on similar issues in the House investigation and Committee on the Judiciary v. Miers and Bolton here.
Tuesday, November 18, 2008
CNN reporting that Vice President Dick Cheney and former Attorney General Alberto Gonzales have been indicted on separate charges related to alleged prisoner abuse in federal detention centers. FOX news reporting the same.
Thursday, November 13, 2008
The NYT (Charlie Savage) published an interesting article yesterday anticipating claims of executive privilege by soon-to-be-former Bush adminsitration officials. (Many thanks to my student Michael Eisnach for the tip. I previously posted on Bush officials' assertions of executive privilege here.)
The piece traces the practice back to Truman, who, in 1953--after he left office--asserted the privilege against a Congressional subpoena. (Congress backed down.) The Court first addressed the privilege for former presidents in 1977 in Nixon v. Administrator of General Services, three years after U.S. v. Nixon.
The piece also explores the politics of Congressional investigations into Bush administration practices after Obama takes office.
From the article:
“The Bush administration overstepped in its exertion of executive privilege, and may very well try to continue to shield information from the American people after it leaves office,” said Senator Sheldon Whitehouse, Democrat of Rhode Island, who sits on two committees, Judiciary and Intelligence, that are examining aspects of Mr. Bush’s policies.
Topics of open investigations include the harsh interrogation of detainees, the prosecution of former Gov. Don Siegelman of Alabama, secret legal memorandums from the Justice Department’s Office of Legal Counsel and the role of the former White House aides Karl Rove and Harriet E. Miers in the firing of federal prosecutors.
Mr. Bush has used his executive powers to block Congressional requests for executive branch documents and testimony from former aides. But investigators hope that the Obama administration will open the filing cabinets and withdraw assertions of executive privilege that Bush officials have invoked to keep from testifying.
Wednesday, October 15, 2008
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).
Monday, October 13, 2008
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."
Tuesday, October 7, 2008
Senator Biden and Governor Palin famously addressed the constitutional roles of the vice president in last week's debate; the transcript is below (link to the video at c-span.org); analysis by Josh Chafetz at the New Republic here. The exchange gives us an opportunity to explore the role (or roles) of the vice-president under our constitution and to examine Vice-President Cheney's claims of executive privilege (seemingly placing the office within the executive branch) and his claim that the vice-president does not have to comply with an executive order in a dispute with the National Archives (because the office is within the legislative branch). The former claim was at issue in Cheney v. U.S. District Court for the District of Columbia; see especially Part IV of the opinion, starting on page 12. The latter claim is described in this Washington Post article.
Based on these material, how might your students advise Governor Palin and Senator Biden to better answer the question? Here's what they actually said:
IFILL: Governor, you mentioned a moment ago the constitution might give the vice president more power than it has in the past. Do you believe as Vice President Cheney does, that the Executive Branch does not hold complete sway over the office of the vice presidency, that it it is also a member of the Legislative Branch?
PALIN: Well, our founding fathers were very wise there in allowing through the Constitution much flexibility there in the office of the vice president. And we will do what is best for the American people in tapping into that position and ushering in an agenda that is supportive and cooperative with the president's agenda in that position. Yeah, so I do agree with him that we have a lot of flexibility in there, and we'll do what we have to do to administer very appropriately the plans that are needed for this nation. And it is my executive experience that is partly to be attributed to my pick as V.P. with McCain, not only as a governor, but earlier on as a mayor, as an oil and gas regulator, as a business owner. It is those years of experience on an executive level that will be put to good use in the White House also.
IFILL: Vice President Cheney's interpretation of the vice presidency?
BIDEN: Vice President Cheney has been the most dangerous vice president we've had probably in American history. The idea he doesn't realize that Article I of the Constitution defines the role of the vice president of the United States, that's the Executive Branch. He works in the Executive Branch. He should understand that. Everyone should understand that.
And the primary role of the vice president of the United States of America is to support the president of the United States of America, give that president his or her best judgment when sought, and as vice president, to preside over the Senate, only in a time when in fact there's a tie vote. The Constitution is explicit.
The only authority the vice president has from the legislative standpoint is the vote, only when there is a tie vote. He has no authority relative to the Congress. The idea he's part of the Legislative Branch is a bizarre notion invented by Cheney to aggrandize the power of a unitary executive and look where it has gotten us. It has been very dangerous.