Thursday, August 11, 2011

OLC Says Some Notifications in Security Appeals May Violate Separation of Powers

The Office of Legal Counsel issued an opinion in early June (but released late last month) that the government's obligation to notify an employee who appeals a denial of a security clearance of evidence obtained through electronic surveillance may violate separation-of-powers principles and executive privilege.

The Foreign Intelligence Surveillance Act requires the government to notify an "aggreived person," a target800px-Classified_document_on_Resolute_desk  of electronic surveillance, whenever the government intends to use information obtained through electronic surveillance against that person.  The OLC ruled that this requirement also applies to proceedings before the Access Review Committee--the tribunal that reviews employee appeals of denial of security clearances.

But the OLC also said that this requirement will sometimes (but rarely) violate separation-of-powers principles and require disclosure of information covered by executive privilege.  If so, the requirement yields to the Constitution.

The OLC said that Congress has some "authority to legislate in a manner that touches upon disclosure of classified information."  Op. at 7.  "For example, we believe Congress's authority to regulate foreign intelligence surveillance under FISA, and to regulate the terms of federal employment, does, as a general matter, permit Congress to impose the notification requirement . . . even when that requirement reaches proceedings concerning security clearance revocations."  Op. at 7-8.

But that authority ends when it runs up against "the President's ability to perform his constitutional duty."  Op. at 8 (quoting Morrison v. Olson).  "Congress may not, for example, provide Executive Branch employees with independent authority to countermand or evade the President's determinations as to when it is lawful and appropriate to disclose classified information."  Op. at 8 (citing Whistleblower Protections for Classified Disclosures, 22 Op. OLC at 100).  "And, as noted above, Congress's authority is 'subject only to whatever limitations the Executive privilege may be held to impose upon such congressional ordering.'"  Op. at 8 (quoting EPA v. Mink).  Thus the notice requirement could violate separation-of-powers or require disclosure of information protected by executive privilege; if so--and this should be rare, OLC says--the requirement gives.


[Image: Official White House photo, President Barack Obama's desk, Oct. 5, 2009, Wikimedia Commons]

August 11, 2011 in Congressional Authority, Executive Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Monday, August 9, 2010

"Our Constitution works"

"My fellow Americans, our long national nightmare is over. Our Constitution works; our great Republic is a government of laws and not of men. Here the people rule."

So said Gerald Ford, on assuming the office of President of the United States, thirty six years ago today.  Full speech is here.


[image: Gerald Ford being sworn in by CJ Warren Burger, Betty Ford observing, 1974, via].


August 9, 2010 in Appointment and Removal Powers, Executive Authority, Executive Privilege, History | Permalink | Comments (0) | TrackBack (0)

Friday, February 26, 2010

Gormley on Starr and Clinton

ConLawProf (and Interim Dean) Ken Gormley (pictured right) of Duquesne University Law School has just published THE DEATH OF AMERICAN VIRTUE: Clinton vs. Starr.Gormley2

The review in the NYT notes that "unlike some other commentators, Gormley allows for the possibility that even the most rabid-seeming players might have acted out of honorable considerations."  Based on an interview with the federal district judge hearing the original sexual harassment lawsuit, Gormley also reveals that she contemplated finding Clinton in criminal contempt, which would have ended Clinton's political career in a "nanosecond."  Yet the tenor of the 800 page book, at least according to the NYT review, is that the Clinton impeachment was all so unnecessary (quoting Starr) and diversionary.

The political relevance of Gormley's book is obvious.  But it also seems an essential sequel to Clinton v. Jones, in which the Court unanimously rejected Clinton's constitutional arguments to stay the trial until after his presidency had ended.


February 26, 2010 in Books, Cases and Case Materials, Executive Privilege, History, Profiles in Con Law Teaching, Scholarship, Separation of Powers, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Friday, September 4, 2009

White House Agrees to Release Visitor Logs

The White House announced today that it would publicly release records of White House visitors each month.  The announcement reflects the administration's settlement agreement in four Freedom of Information Act (FOIA) cases brought by the Citizens for Responsibility and Ethics in Washington (CREW), a legal advocacy organization that promotes ethics and accountability in government. CREW's press release is here; the NYT Caucus blog reports here.

CREW brought the cases after the Bush and Obama administrations declined to turn over White House visitor records in response to CREW's FOIA requests.  The administrations claimed that the records were presidential records covered by the Presidential Records Act, not agency records covered by FOIA, and therefore remain under the legal custody and control of the White House and the Office of the Vice President.

In addition, the administrations claimed that disclosing some or all of the records could reveal information protected by the presidential communications privilege.  (See United States v. Nixon and Nixon v. Administrator of General Services.)

In settling the suits, the administration did not back off these legal claims, characterizing the reports' release as "voluntary" and "discretionary."

Both the White House and CREW touted the agreement as an historic increase in government transparency.


September 4, 2009 in Executive Privilege, Recent Cases, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, June 28, 2009

"Preventative Detention Model Act": Framework for Obama?

The likelihood of an Executive Order on "indefinite detention" is being widely discussed.  For example, the Washington Post reported yesterday:

Obama administration officials, fearing a battle with Congress that could stall plans to close the U.S. prison at Guantanamo Bay, are crafting language for an executive order that would reassert presidential authority to incarcerate terrorism suspects indefinitely, according to three senior government officials with knowledge of White House deliberations.

Pow-image Glenn Greenwald at here has extensive coverage with lots of links and discussion, especially focusing on criticisms of Obama's failure to keep his campaign pledges to be different from Bush.

NPR, however, has reported on a proposal "from two experts outside of government"  that "is already being discussed in the Obama administration."  The proposal is from the Brookings Institution, heralded with this opening salvo: "A consensus is beginning to emerge in the public and political spheres concerning the non-criminal detention of terrorist suspects."  The NPR story, however, has one of the two authors of the report acknowledging that " it will be controversial."

The proposal is definitely worth a look.  Entitled "Designing Detention: A Model Law for Terrorist Incapacitation," and authored by Benjamin Wittes and Colleen A. Peppard, download here, the first 27 pages is an analysis and discussion.  For scholars and policy analysists, this discussion provides an excellent overview of the controversies.

The last 10 pages - - - the Appendix - - -  is actually a model statute (or perhaps Executive Order?).  It provides from some judicial oversight, although a suspension of the rules of evidence during those hearings, and numerous other specifics.  For those teaching this summer, whether in the US or elsewhere, this proposal would make an excellent exam question


June 28, 2009 in Executive Authority, Executive Privilege, Fundamental Rights, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, June 13, 2009

Padilla v. Yoo - Judge denies motion to dismiss "torture memos" case

Federal Judge Jeffery White in San Francisco has substantially denied the motion to dismiss the civil complaint filed by Jose Padilla against John Yoo, formerly of the DOJ, now on leave from UC-Berkeley (Boalt Hall).

In a 42 page opinion (download here), Judge White begins rather grandly:

[War] will compel nations the most attached to liberty to resort for repose and security to institutions which have a tendency to destroy their civil and political rights. To be more safe, they at length become willing to run the risk of being less free.
The Federalist No. 8, at 44 (Alexander Hamilton) (E.H. Scott ed., 1898).
The issues raised by this case embody that same tension – between the requirements of war and the defense of the very freedoms that war seeks to protect.

However, the judge soon provides a detailed recitation of the allegations of the complaint and then engages in a closely reasoned opinion relying on United States Supreme Court precedent as well as numerous Ninth Circuit cases.  Judge White acknowledges the separation of powers issues in this Bivens complaint, and interestingly has this comment about Yoo's argument for absention:

Yoo also advocates that this Court should abstain from adjudication because the Court should leave review of his legal memoranda and the conduct which followed to the coordinate branches of government based on substantive areas of law raised by the memoranda. The Court notes the irony of this position: essentially, the allegations of the complaint are that Yoo drafted legal cover to shield review of the conduct of federal officials who allegedly deprived Padilla of his constitutional rights. Now, Yoo argues that the very drafting itself should be shielded from judicial review. Padilla’s allegations here are that the creation of such legal cover was itself an unconstitutional exercise of power. Thus, the question posed by the present motion is whether an alternative branch of government, under the circumstances, should be tasked with prescribing the scope of relief available to Padilla.

Order at 22. 

Padilla Judge White also denies Yoo's claim of qualified immunity,  including the claim that there is insufficient causation (linking the memos to the actions against Padilla).

 The Judge's Order denies the motion to dismiss "as to all claims with the exception of the claim for violation of Padilla’s rights under the Fifth Amendment against compelled self-incrimination."  The Judge granted Yoo's motion because "there is no allegation in the complaint before this Court that Padilla was ever made to be a witness against himself or that his statements were admitted as testimony against him in his criminal case," and thus  "he has not stated a claim for violation of the Self-Incrimination Clause of the Fifth Amendment." Order at 37.  Padilla has leave to amend this allegation by July 10.  Yoo has twenty days to file his responsive pleading.

This is an opinion worth reading, just as this case will be worth watching as it proceeds.


June 13, 2009 in Cases and Case Materials, Due Process (Substantive), Executive Privilege, Fourteenth Amendment, News, Separation of Powers, State Secrets, War Powers | Permalink | Comments (4) | TrackBack (0)

Monday, April 13, 2009

CFP: National Security and Constitutional Law

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.

Law01 Pace Law School is dedicated to advancing a greater understanding among scholars and the legal community concerning the role of constitutional law in national security concerns.  

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 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.


April 13, 2009 in Executive Authority, Executive Privilege, Foreign Affairs, Scholarship, State Secrets, Theory, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 25, 2009

OLC Chief Nominee Johnsen Before the Senate Judiciary Committee

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. 


February 25, 2009 in Congressional Authority, Executive Privilege, War Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, February 12, 2009

CFP: Creative Writing on Obama

Feeling the creative urge?  Or the need to write something that is not footnoted? 

Or thinking of a creative assignment for students?

Nmwlogo2 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. 


February 12, 2009 in Executive Authority, Executive Privilege, Interpretation | Permalink | Comments (0) | TrackBack (0)

Friday, January 30, 2009

President Bush Re-Directs Rove, Miers Not to Appear Before Congress

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.


January 30, 2009 in Executive Authority, Executive Privilege, Recent Cases | Permalink | Comments (0) | TrackBack (0)

Thursday, January 29, 2009

John Yoo, torture, and the continuing saga

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 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.


January 29, 2009 in Executive Authority, Executive Privilege, News, War Powers | Permalink | Comments (0) | TrackBack (0)

Wednesday, January 28, 2009

House Judiciary Committee Chair Conyers Subpeonas Karl Rove

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.


January 28, 2009 in Congressional Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, January 22, 2009

Obama (Re)Opens Presidential Records

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).


January 22, 2009 in Executive Privilege, News | Permalink | Comments (0) | TrackBack (0)

Sunday, January 11, 2009

The Sunday Reader: (Obama's OLC Pick) Johnsen on the Post-Bush Constitution

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.


January 11, 2009 in Executive Authority, Executive Privilege, News, Scholarship, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Saturday, December 20, 2008

Saturday Evening Review: Pardons

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.


December 20, 2008 in Executive Authority, Executive Privilege, News, Scholarship | Permalink | Comments (0) | TrackBack (0)

Friday, December 12, 2008

State Constitutional Law - Removal of Governor

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.


December 12, 2008 in Comparative Constitutionalism, Executive Privilege, News | Permalink | Comments (0) | TrackBack (0)

Monday, December 8, 2008

En Banc Second Circuit to Hear Canadian's Rendition Case Tuesday

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.


December 8, 2008 in Executive Authority, Executive Privilege, News, Procedural Due Process, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)

Friday, December 5, 2008

Con Law Prof John Yoo- controversies continue

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.


December 5, 2008 in Executive Authority, Executive Privilege, News, Profiles in Con Law Teaching | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 19, 2008

Senate Judiciary Committee Report on Contempt Resolutions

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.


November 19, 2008 in Congressional Authority, Executive Privilege, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Tuesday, November 18, 2008

Indictments - VP & former AG

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.


November 18, 2008 in Executive Privilege, News | Permalink | Comments (0) | TrackBack (0)