Constitutional Law Prof Blog

President Obama leaves door open to some prosecutions

Today's NYT reports that while the President has reiterated his position that those CIA operatives following torture orders should not be prosecuted, there is hope for some prosecutions.  The President said:

Mr. Obama said once again that he does not favor prosecuting CIA operatives who used interrogation techniques that he has since banned. But as for lawyers or others who drew up the former policies allowing such techniques, he said it would be up to his attorney general to decide what to do, adding, “I don’t want to prejudge that.”

This should continue to be an interesting story as the Justice Department decides how to proceed.

NLS

Restraining Executive Power: The Views of Arlen Specter

In a just published article in The New York Review of Books here, Arlen Specter, Senior Republican United States Senator from Pennsylvania and Ranking Member on the Senate Judiciary Committee, has signaled his intention to take "several concrete steps" to restrain the power of the executive.  He expresses  "the doubt that the Democratic majority, which was so eager to decry expansions of executive authority under President Bush, will still be as interested in the problem with a Democratic president in office. I will continue the fight whatever happens."  

Yet he insists that there is a need for reform no matter who occupies the White House.

Generally, he is advocating three pieces of legislation.

First, he states he intends to "introduce legislation that will mandate Supreme Court review of lower court decisions in suits brought by the ACLU and others that challenge the constitutionality of the warrantless wiretapping program authorized by President Bush after September 11. While the Supreme Court generally exercises discretion on whether it will review a case, there are precedents for Congress to direct Supreme Court review on constitutional issues."

Second, he states he will "reintroduce legislation to keep the courts open to suits filed against several major telephone companies that allegedly facilitated the Bush administration's warrantless wiretapping program. Although Congress granted immunity to the telephone companies in July 2008 . . . . [this] legislation would substitute the government as defendant in place of the telephone companies. This would allow the cases to go forward, with the government footing the bill for any damages awarded."

Third, he will "reintroduce" the  "Presidential Signing Statements Act"  to "prohibit courts from relying on, or deferring to, presidential signing statements when determining the meaning of any Act of Congress. These statements, sometimes issued when the president signs a bill into law, have too often been used to undermine congressional intent."

The article is an extended argument for each of these three proposals.  It makes interesting reading - - - and could also be the basis of an exam question on Separation of Powers, including Congressional authority over Judicial power.

RR

Gender and the Supreme Court "Vacancy"

Last week, Dahlia Lithwick wrote an intriguing article in Slate magazine regarding the frequently heard argument that President Obama's first nominee to the Court should be a woman.  Lithwick quotes Justices Ginsberg and O'Connor lamenting the dearth of women on the Court and also examines the arguments concerning whether women are different jurists than men. 

I find this debate fascinating, and I do believe - and the Court has ruled - that diversity matters in American discourse.  However, as we value and encourage diversity, we must avoid essentialism.  So, for me, the question is not whether a woman should be appointed to the Court, but rather what type of woman she will be. 

This question is critical.  All women do not think the same way, share the same opinions, nor agree on what it means to be a woman in America in the early 21st century.   It would be folly to treat women like a deck of cards - "pick a woman, any woman" - and hope that the desired result - that being concern for women - will be obtained based on the presence of two X chromosomes.  When politically disenfranchised groups are placed in prominent positions, this danger is ever present.  Clarence Thomas and Thurgood Marshall are both African American males, but their judicial philosophies are entirely opposite.   Sarah Palin and Hillary Clinton share little in common politically despite sharing a race and gender.  Thus, in the desire to see a woman on the Court we must be clear on what is desired.

I beleive what most people are saying when they say "we need a female justice" is that there should be someone on the Court who cares about women's rights and can effectively articulate those positions.  But must this person necessarily be a woman?  Don't get me wrong - there are certain things that only women can know.  (I beleive that is why both Justices Ginsberg and O'Connor dissented in the Nguyen case when the majority declared that birth automatically bonds a mother and child.  Those women knew better.)  However, there are men out there that can understand these concepts.  Justice Blackmun - a man - was responsible for Roe and defended that decision, as well as women's reproductive rights in other ways during his tenure on the Court.  Given the choice between a Justice Blackmun and a justice who cares little about the myriad problems women face but who happens to be a woman - most women's rights advocates would probably take the guy.  

In sum, I beleive, as always, that judges care about the law over all else.  However, it is also true that in any human group, people bring their past and personal philopophies to bear.   Let those be the standards to judge the candidates rather than gender. 

NLS

Ninth Circuit: Second Amendment Incorporated, Gun Restriction Upheld

A three-judge panel of the Ninth Circuit today ruled that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment individual right to bear arms against state and local governments.  At the same time, the panel upheld a county ordinance making it a misdemeanor to bring onto or to possess a firearm or ammunition on county property against a Second Amendment challenge.

The panel's ruling in Nordyke v. King makes the Ninth Circuit the first circuit to apply the Second Amendment to a state or local government after the Supreme Court left the issue open last term in D.C. v. Heller.  Second Amendment incorporation is also now before the Seventh Circuit; the issue is almost certainly headed for the Supreme Court.

The plaintiff-appellants in the case were long-time gun show hosts at the county's public fairgrounds.  They argued that the county ordinance prohibited them from hosting future gun shows at the site.

In ruling that the Fourteenth Amendment Due Process Clause incorporates the Second Amendment, the panel "canvass[ed] the attitudes and historical practices of the Founding era and the post-Civil War period" to determine whether the right to keep and bear arms is "necessary to an Anglo-American regime of ordered liberty" and whether it is "deeply rooted in this Nation's history and tradition."  The panel concluded that it was.

Notably, the panel specifically rejected the claim that the Fourteenth Amendment Privileges or Immunities Clause did the work of incorporation.  (The P or I Clause is in play at the Seventh Circuit, as well.  It's gained some attention in an amicus filing at the Seventh Circuit and in recent scholarly work arguing that the P or I Clause, not the Due Process Clause, ought to be doing the incorporating.)  Instead, the panel re-read an earlier case from the Ninth Circuit, Fresno Rifle v. Van de Kamp, as foreclosing the P or I argument--perhaps a bad omen for advocates of the P or I argument in the Seventh Circuit.

Having ruled that the Due Process Clause incorporates the Second Amendment, the panel then upheld the county's gun ordinance, with surprisingly little analysis.  The panel avoided determining the level of scrutiny by holding that the ordinance did not infringe upon the core purpose of the right as articulated by Heller:

Heller tells us that the Second Amendment's guarantee revolves around armed self-defense.  If laws make such self-defense impossible in the most crucial place--the home--by rendering firearms useless, then they violate the Constitution.

But the Ordinance before us is not of that ilk.  It does not directly impede the efficacy of self-defense or limit self-defense in the home.  Rather, it regulates gun possession in public places that are County property.

And the county has great latitude in doing that based on the principles in Harris v. McRae (!) (holding that government need not fund abortions, even though women have a substantive due process right to abortions):

If we apply these principles here, we conclude that although the Second Amendment, applied through the Due Process Clause, protects a right to keep and bear arms for individual self-defense, it does not contain an entitlement to bring guns onto government property.

The panel also rejected the plaintiff-appellants' First Amendment and Equal Protection challenges to the ordinance.

SDS

A Case of Mistaken Identity?: Justice Stevens and "Shakespeare"

The Wall Street Journal has an engaging report on Justice Stevens' beliefs - - - as well as the beliefs of some other Justices - - - on whether Shakespeare was the author of Shakespeare's canon.  

 

Justice Stevens, it seems, share doubts about the Bard's identity with Justice Scalia, both of whom consider Shakespeare's "commoner" class background as compared to the knowledge demonstrated in the plays.   This might be an interesting lens to reinterpret some of the Court's decisions on economic class and education.

RR

Setty on Comparative State Secrets

Professor Sudha Setty (Western New England) just posted her enlightening article Litigating Secrets: Comparative Perspectives on the State Secrets Privilege on ssrn; it's also forthcoming in the Brooklyn Law Review.  Setty presents a fresh and interesting comparative approach to state secrets; and the piece is especially timely, what with the Obama Justice Department reasserting the Bush administration's position on state secrets in the Ninth Circuit and Congress considering a state secrets overhaul.  I highly recommend it.

Setty compares the state secrets privilege in the U.S. with similar privileges in Scotland, England, Israel, and India--"other nations which confront serious national security threats"--and draws two conclusions, both of which have implications for U.S. reform.  Setty:

Although the current U.S. use and application of the state secrets privilege is roughly analogous to that of England, [Binyam Mohamed's case in England] suggests that England's current application of the privilege may be more narrow than that of the United States, and that the English court in Mohamed was forced to expand the scope of its own public interest immunity because of the threat of national security repercussions from the United States.  The transnational implications of U.S. pressure regarding the state secrets privilege may be that even if other nations' courts use a narrower standard for that privilege, those standards may be undermined if the U.S. government uses its considerable clout to pressure governments to claim state secrets in cases where U.S. government actions are implicated.

U.S. courts are also less deferential to the executive branch than India, but more so than Scotland and Israel.  The proposed congressional reforms offer some positive steps to establish procedural safeguards that strike an appropriate balance between national security and the rule of law, government accountability and liberty.  However, Congress should consider going further in addressing the need for litigation to compensate those who have suffered gross constitutional and human rights violations at the hands of the government.

How far?  Setty argues that reform efforts should consider explicitly accounting for human rights violations:

[R]eforms in the United States should require courts to consider potential human rights abuses in determining whether a lawsuit should go forward . . . .  It would be appropriate for U.S. judges--like their Israeli counterparts--to undertake a balancing test which accounts for the nature of the claim when deciding whether a case ought to go forward at the discovery stage.  After all, the cases of El-Masri, Al-Haramain and Mohamed, and the violations of human rights and constitutional safeguards that they represent are at the heart of the impetus for reforming the privilege.

And reforms should deal with both state secrets and justiciability:

It would be appropriate and useful for Congress to assist in the clarification between the state secrets privilege and [Totten v. Doe's] standard of dismissal based on the subject matter of the litigation.

Such clarification should be undertaken simultaneously with state secrets reform because it would close a potential avenue for the executive branch to avoid disclosure of evidence.

This is an interesting, important, and timely piece for anyone following developments in the state secrets privilege or separation-of-powers issues in the struggle against terrorism.  I highly recommend it.

SDS

Civil Partnerships & Religious Marriages? Douglas Kmiec's Views

Con Law Prof Douglas Kmiec of Pepperdine can be viewed on the popular comedy show "The Colbert Report" in the April 16, 2009 episode here.   Kmiec appeared on the show to promote his book, Can a Catholic Support Him? Asking the Big Question about Barack Obama, released last September.   But the main topic of discussion was same-sex marriage.

Kmiec appears at the conclusion of the show - - - after Colbert's parody of the National Organization for Marriage advertisement, which Frank Rich discussed in his NYT column today here.  Kmiec's argument on the Colbert show is that the state should not be in the business of marriage, but should protect and support certain relationships, including it seems same-sex couples, and excluding, it seems, polygamous ones.  Marriage, Kmiec seems to say, is a religious affair which should be separate from the state.  Kmiec thus comes very close on the show to arguing for a marriage abolitionist position.  

RR

Comparative Constitutionalism and Rights: Robson's Saturday Evening Review

Being in Montreal the last two days for a workshop entitled "Queer Empire" at McGill University organized by Canadian scholars Kim Brooks and Robert Leckey has been quite a treat.  The presenters included American ConLaw Profs Kendall Thomas and Kenji Yoshino, as well as a more than a dozen of other scholars working in many disciplines and from various nations including Jaco Barnard, Jon Binnie,  Brenda Cossman, Margaret Denike, David Eng, Shohini Ghosh, Ratna Kapur, Jenni Millbank, Les Moran,  Chantal Nadeau, Jeff Redding,   Becki Ross, and Nan Seuffert.   I feel quite privileged to have participated in such a stellar event with amazing brilliance and collegiality - - - a rare combination.    It really was a workshop rather than a conference, so  I won't be reporting on the presentations; those not present, however, will have the opportunity to read the anthology when it is published next year.

The one regrettable, but certainly understandable, shortcoming of the workshop was that the organizers did not present their own work.  I've been familiar with the great work of Kim Brooks on both feminist tax policies and pedagogy for quite some time (see her papers on ssrn here), but was less familiar with Robert Leckey's work.   So I've just read his latest piece, Thick Instrumentalism And Comparative Constitutionalism: The Case Of Gay Rights, 40 Colum. Hum. Rts. L. Rev. 425  (2009), in which Leckey

intervenes in the burgeoning field of comparative constitutionalism. Adopting comparative constitutional research on gay rights as a case study, it addresses the scholarship that comparative constitutionalists are producing, including the methodology and underlying assumptions about constitutions. It criticizes the mainstream comparative work on gay rights for its methodological thinness. Such research views constitutions as rule-based, privileging the judgments of constitutional courts over the practice of constitutionalism in other sites of governance. Foreign examples are pressed into service to bring about change in a designated place. From the vantage of an activist or advocate, the comparative constitutional work on gay rights that is prevalent now may prove misleading. Undue emphasis on courts as the site of constitutional change directs efforts to litigation, away from other forms of activism. The literature also exaggerates the transferability of constitutional precedents by abstracting them from their discursive and cultural context. Moreover, the consistent selection of a handful of “success” stories from pioneering jurisdictions distracts from the potential lessons waiting in the “failures,” where reform efforts have foundered. From a scholar's perspective, the work is also unsatisfactory. By accepting the debates as currently framed, comparative constitutionalists fail to imagine transformations beyond same-sex marriage litigation and, consequently, fall short of their distinctive power as scholars. The article argues for thick instrumentalism as a mode of comparative constitutional scholarship. Thick instrumentalism combines commitment to a justice project for gay rights with a richer, more discursive and culturally sensitive understanding of the multiple sites in which constitutional rights are respected--and infringed.

This Article is a must-read for any scholar “doing” comparative constitutionalism.  It is especially important for American scholars, for too often the debate in the States seems to be a simplistic choice between exiling all foreign/international law or referencing foreign/international law.   Leckey demonstrates that the matter is not so easily resolved.  Moreover, Leckey’s invocation of “thick instrumentalism” is a refreshingly candid approach, as is his argument that there are distinct "roles of the advocate and of the scholar."  Leckey argues that dissolving the scholar/advocate distinction does a disservice to both roles, even as he insists on the importance of the integrity of scholarship.   

Leckey's article is yet another example of recent scholarship on comparative constitutionalism that uses "gay rights," and more specifically, same-sex marriage legal controversies, as an example.  But unlike so many other articles, Leckey makes clear that he has a stake in the outcome of these debates, as a scholar and as a person. And unlike many other articles, Leckey provides much guidance for other scholars engaging in comparative constitutional projects.

RR

The Teaching Assistant

Hello.  Here are the stories that might interest you this week!

Equal Protection/Fundamental Rights

Sihks in the U.S. Army are challenging military regulations prohibiting the growth of facial hair and wearing of headgear as religious discrimination.

The ACLU is working to prohibit the practice of shackling pregnant prison inmates.  More here.

Finally, an equal protection story on the lighter - but no less important - side.  Women continue to wait nearly twice as long as men for restroom facilities, despite laws in some jurisdictions (i.e., New York City) requiring that additional restrooms be built to decrease the wait times.

Commerce Clause

Wisconsin's famed diploma privelege - which admits all persons matriculating in a Wisconsin law school to the Wisconsin bar - is being challenged on the grounds that it violates the Dormant Commerce Clause.

Takings Clause

George Will has an impassioned critique of the recent Illinois Supreme Court opinion stating property, but not money, can be the object of a taking.

That's all for this week.  See you next time!

NLS

Basardh Released as an Unlikely Future Threat

Judge Ellen Huvelle's April 15, 2009, Memorandum Opinion ordering the government "to take all necessary and appropriate diplomatic steps to facilitate [Guantanamo Detainee Basardh's] release" was released today in redacted form.

Basardh gained fame as a government informer at Guantanamo, providing the government with information on other detainees (which often ultimately proved unreliable) and in the process gaining a good number of enemies among the detainee population.

Judge Huvelle previously ordered Basardh's release; the redacted Memorandum Opinion, however, just came out today.

Judge Huvelle ruled that the AUMF, as interpreted by the Court in Hamdi v. Rumsfeld, authorized detention only for the purpose of keeping a detainee off the battlefield--not for punishment, not for interrogation.  Because the government couldn't show that Basardh was likely to return to the battlefield--the government didn't even contest this--Judge Huvelle ruled that there was no basis for his continued detention.

(The reason why Basardh is unlikely to return to battle is redacted throughout the opinion, but we can guess that he won't return because his informant activity has sufficiently alienated any terrorist groups now fighting against the U.S. that they won't take him.  Here's my favorite redacted sentence:  "The undisputed facts establish that Basardh's [redacted] is known to the world . . . ."--all, apparently, except reader of this opinion.)

Following an earlier D.C. Circuit ruling in the Uighurs' case, Judge Huvelle did not order Basardh released into the United States.  (Recall the D.C. Circuit ruled in February that the district court violated separation-of-powers principles in ordering another group of detainees, the Uighurs, released into the U.S.)

SDS

Notes on the Court, part III (final installment)

This is the final portion of my three-part post looking at various issues affecting today's Supreme Court.  Here is the final topic - should the Supreme Court look to foreign law in deciding its cases?

Recently, Paul Horowitz at PrawfsBlawg linked to an essay by Georgetown Prof Nicholas Quinn Rosekranz entiled "An American Amendment"  The crux of Professor Quinn's argument is encapsulated in this paragraph - "

Thus, Professor Rosenkranz proposes a Twenty-Eighth Amendment to this Constitution.  This proposed addition would read as follows:  "This Constitution was ordained and established by the People of the United States, and so it shall not be construed by reference to the contemporary laws of other nations.”

Professor Horowitz then provided three main reasons why he believes Professor Rosenkranz's argument is flawed:  First, Professor Horowitz suggests that the paper is "preaching to the choir" of those who currently worship at the church of original intent.  Second, he questions Rosenkranz' reliance on the Ninth and Eleventh Amendments, citing their underuse and subsequent reinvention when utilized.  Finally, Horowitz asserts that the essay is underinclusive, as the Court relies on a number of non-authoritative sources, foreign law being one among many.  Thus, if one is banned, why not all?

The arguments were intriguing, but I was content to let this idea rest until I saw a New York Times article about a speech given by Justice Ginsberg wherein she discussed her views on the merits of foreign law.  Justice Ginsberg stated, "“I frankly don’t understand all the brouhaha lately from Congress and even from some of my colleagues about referring to foreign law . . . Why shouldn’t we look to the wisdom of a judge from abroad with at least as much ease as we would read a law review article written by a professor?”   The justice then explained her concern that the Canadian courts are more frequently cited abroad than the U.S. Supreme Court, and lamented, "You will not be listened to if you don’t listen to others.”

Thus, while I understand Professor Rosenkratz' concerns, like Professor Horowitz, I too am skeptical.  A brief search on Westlaw reveals that the legal academy has spilt much ink on this subject.  Many of the arguments center on the propriety of of the action of the impact of such citations, but for me, the word that comes to mind is arrogance.  Why is it that other nations are almost expected to cite our courts, but the converse is not true?  I think the view expressed by District Court Judge Peter Messitte of the Maryland District Court in a 2005 speech is instructive:*

"Opposition to citing foreign law, particularly insofar as it is a one-way street (i.e., foreign courts can cite our Supreme Court, but ours cannot cite theirs), brings to mind other instances of America's arrogance  and latter day rejection of multi-lateralism. Some might say it's of a piece with the attitude of our current Government with respect to:
    - The Kyoto Accords (global warming);
    - The new Anti-Ballistic Missile Treaty;
    - The International Criminal Court;
    - And, yes, Iraq (where we're said to be engaged in an effort to democratize that country).
. . . [J]udges, lawyers, professors, and students of the law have to be vigilant. We must work to correct this short-sightedness. We need to keep searching for truth wherever we can find it. We cannot, to paraphrase John Stuart Mill, rob the human race by ignoring whatever information and wisdom foreign law."

As Justice Ginsberg stated, how can we earn the respect of the international legal community on these and various other legal issues when we do not respect what other nations have to say?  Furthermore, why be the rogue on the world stage?  If other nations ban harmful practices, such as those leading to global warming, should we permit our "rugged individualism" from bringing ourselves into line with global trends?   The world is a very big place - and due to technology - a much closer place than ever before.   Can we carry moral and legal authority abroad if we decline to *at least consider* what other nations are doing and to perhaps change our laws if they are beyond the global pale? 

In my opinion, the assumption that belies the reluctance to look to foreign law is embodied in the last portion of the quote - our courts believe that there is nothing we can or should learn from the foreign courts.  This premises seem to rest on the idea that: 1) our nation, even if imperfect at its founding, now has a perfect legal system; or 2) other nation's legal systems are so flawed as to be unworthy of our attention.  These arguments are interwined.  The position seems to assume that our nation has its law down to a science, and is no longer in need of refinement.  American law has come far from its inception.  However, there are still legal areas we have not yet addressed - and foreign law can be helpful in filling those gaps and alerting us to future gaps.  If Western European nations are more advanced in their healthcare provisions and maternity leave policies that the U.S., wouldn't a U.S. Court be remiss to not at least consider those facts if relevant to the case? 

Some think of America as a "shining city on a hill."  America does shine.  However, other nations may shine equally brightly - or even more so.  The idea that America has nothing to learn about the law from other nations is deeply flawed.  For instance, our courts are still figuring out same-sex marriage.  Other nations comparable to ours have dealt with this issue and we might learn from them as well.  Again, if we are the outlier state, we should know why and be able to staunchly defend that outsider status on the world stage.  

Finally, opponents of foreign law neglect judges' love of precedent - no matter where it might be found.  In cases of first impression particularly, judges never want to step out on a ledge unless they know there is some support - even if only persuasive.  International law can provide additional support - but probably not sole support - for a court that is trying to move in a new direction.

Of course, no one wants to see the Supreme Court only cite foreign law in its cases.  But the risk of that - if any - is minimal.  Much more likely is that they will look to the foreign courts to see what they are doing.  Even if our Court ultimately decides differently, at least the rest of the world will know we are listening, and perhaps will return the favor. 

NLS 

* The full citation is 35 U. Balt. L. Rev. 171 (2005).

The Torture Memos

DOJ released four Bush era OLC memos today providing the legal justification for certain "enhanced interrogation techniques" of alien detainees held outside the United States.  These newly released memos concluded that specific techniques (and combinations of techniques) did not violate the U.S. anti-torture statute and the Convention Against Torture (the "CAT").  They addressed no specific constitutional claim (like executive authority), except insofar as one memo discussed the Fifth Amendment due process standard "shocks the conscience" as it related to U.S. obligations under the CAT.

In short, the OLC wrote that various specific techniques (well described in the memos)--from facial slaps, to diet control, to sleep deprivation, to waterboarding and others, including combinations of these techniques--did not constitute "torture," because they did not create the kind of severe and lasting physical or psychological harm that the statute and the CAT prohibit.  Moreover, interrogators lacked the requisite intent to create these kinds of harms, the techniques were carefully designed and tested, and medical personnel were present to call a stop to techniques that risked severe and permanent harm.

Each of the memos was clearly written in response to a very narrow and precise request for legal advice from the CIA--the exact descriptions of the techniques, based on CIA representations, are simply chilling--and the advice was narrowly tailored to carefully respond only to the CIA's request.  Two of the memos made much of the fact that the detainees--Zubaydah in one memo and "a high value al Qaeda detainee" in another--likely had ticking time bomb information.  The memos also made much of the fact that the techniques, especially the harshest, like waterboarding, had been tested as part of U.S. military SERE training and that trainees did not experience the kind of severe and lasting harms that would make the techniques "torture" under U.S. law and the CAT.

Three memos concluded that various techniques and combinations did not violate the U.S. anti-torture statute; one memo concluded that the techniques did not violate the CAT.  This latter memo, the May 30, 2005, memo, concluded that CAT was not applicable, because the CIA engaged in the techniques overseas, not in the U.S.  But in any event, the techniques did not "shock the conscience"--the Fifth Amendment due process standard.  (That memo concluded that the Eighth Amendment prohibition on cruel and unusual punishment didn't apply, because these were not law enforcement measures.)  OLC reached this alternative conclusion at the request of the CIA; the Agency specifically asked the OLC whether the techniques would violate the CAT if applied within the United States.

The memos reveal that the CIA asked for advice about much more specific techniques between 2002 and 2005; the OLC provided that advice, suggesting somewhat greater concerns about the evolving techniques (even as it concluded that they were not "torture").  For example, one of the May 10, 2005, memos much more carefully defined the circumstances under which the techniques would not constitute torture than the earlier August 1, 2002, memo, dealing, e.g., with specific water temperatures for cold water dousing, the specific time periods for and frequency of waterboarding, and safeguards especially for sleep deprivation and waterboarding.  The 2005 memo also contained much more detailed precautions about when techniques might become "torture."  The 2005 memo specifically superseded discussions of techniques in the 2002 memo.

As I wrote earlier today, the Obama administration promised not to prosecute any intelligence official who relied in good faith on the advice in these memos and who conformed their conduct to that advice.  (Here's the President's statement on the release of the memos.  President Obama previously said that he disagreed with the legal analysis in the memos and that the U.S. no longer engaged in these techniques.)  Some of the practices described in the recently released report of U.S. interrogation techniques by the International Committee of the Red Cross go beyond the techniques analyzed in the memos.

There will be much more to say about these.  In the meantime, here they are.  Thanks to the ACLU for posting and for pressing for their release.

August 1, 2002 Memo (on whether techniques used on Zubaydah violate the anti-torture statute)

May 10, 2005 Memo (on whether certain techniques, used alone and against a "high value al Qaeda detainee," violate the anti-torture statute)

May 10, 2005 Memo (on whether those same techniques used together violate the anti-torture statute)

May 30, 2005 Memo (on whether techniques violate the CAT)

SDS

DOJ Releases OLC Torture Memos, Promises not to Prosecute

The Department of Justice today announced the release of four previously unreleased Bush era OLC memos providing the legal justifications for particular interrogation techniques--now commonly understood to include torture--of detainees in the war on terror. 

Both President Obama and the DOJ issued statements saying that DOJ would not prosecute intelligence officials who relied in good faith on authoritative legal advice from the OLC and conformed their conduct to that advice.  AG Holder also informed the CIA that DOJ would provide support to any employee prosecuted in any international or foreign tribunal or involved in any congressional investigation.

These strong statements--along with congressional Republicans' promise to filibuster the nominations of Dean Harold Koh and Professor Dawn Johnsen--suggest that the memos say much more than what we already know about OLC's advice.  I'll post again, with links to the memos, as soon as I get them electronically.

SDS

SCOTUS Vacancy?

Well, it looks like our parlor game of "Who's out First?" may be coming to a C-SPAN near year.  Today, Concurring Opinions reports that Justice David Souter has not hired law clerks for the upcoming term.  Thus, those in the know are speculating that he may be retiring as early as June.   Well, this should keep the summer interesting, no?   We'll keep you posted!

NLS

NSA "Overcollected" Domestic Communications of Americans

Eric Lichtblau and James Risen just posted an article in the NYT that the National Security Agency intercepted private e-mails and phone calls of Americans in recent months that exceeded the limits set by Congress. 

According to the article, the DOJ said that it "detected issues that raised concerns," but that DOJ officials "took comprehensive steps to correct the situation and bring the program into compliance" with U.S. law.  AG Holder waited for new safeguards before seeking renewal of the program with the Foreign Intelligence Surveillance Court.

NSA's overreaching included an attempt to eavesdrop on a member of Congress without a warrant.

Allegations of NSA overreaching and abuse are not new.  Recall similar allegations in early October 2008.  We're unlikely to learn much more about these, though, if the Obama administration has anything to say about it: The administration just last week asserted the State Secrets privilege as the basis of its motion to dismiss Jewel v. NSA, the Northern District of California case challenging NSA's "dragnet surveillance" with the cooperation of private telecon operators, showing that it intends to keep NSA surveillance practices secret.

Still, according to Lichtblau and Risen, DOJ has been investigating aspects of the NSA wiretapping program, resulting in at least one accusation of "significant misconduct."  And a staffer on one of the congressional intelligence committees said that "we've begun inquiries into it."

SDS

Obama Administration: No Habeas at Bagram

The Obama administration last Friday filed a motion to certify for interlocutory appeal a federal district court's April 2, 2009, order extending the privilege of habeas corpus to certain detainees at Bagram Airfield in Afghanistan.  (Thanks to Lyle Denniston at SCOTUSblog for posting the motion.)

Recall that U.S. District Court Judge John D. Bates (D.D.C.) ruled that habeas extended to non-Afghans captured outside Afghanistan and brought to Bagram for detention.  My post on that decision is here.

Now the Obama administration seeks to appeal Bates's order.  The administration's argument boils down to four distinctions between detention at Bagram and detention at Guantanamo.  (The Supreme Court, of course, held that habeas extends to Guantanamo in Boumediene v. Bush; Boumediene is therefore the government's foil.)  Unlike Guantanamo, Bagram is in a theater of war on foreign territory over which the U.S. has neither de jure nor de facto sovereignty; the place of capture doesn't matter under Boumediene, but even if it does detainees at Bagram here were not captured or held in a place where judicial review would have been available; judicial deference to the President's military judgments regarding detention should be greater during an ongoing war; and extending habeas to Bagram would present significant practical difficulties not at issue for Guantanamo.

The similarities and differences between Bagram and Guantanamo will certainly drive the courts' rulings on the case, as all the other issues--and the most basic issue of off-shore extension of habeas--were heavily litigated and clearly decided just last year in Boumediene.  The courts would do well to pay particular attention to how habeas has plays at Guantanamo--whether video-conferencing works, for example.  Judge Bates made particular reference to this kind of practical consideration in his ruling.  These practical issues could make all the difference, especially as the Obama administration relied heavily on the potential of habeas claims to disrupt combat operations in its motion.

So is the Obama administration different than the Bush administration on habeas?  The administration's motion alone doesn't give us enough material to answer that question, but a couple things point in the direction of no change.  For example, the administration, as mentioned above, relies heavily upon the potential of habeas claims to disrupt combat operations, but offers no support for this conclusion other than the bare fact that Bagram is in Afghanistan and that Afghanistan is different than Guantanamo.  (We don't learn why or how Bagram's location makes habeas claims more disruptive to military operations than habeas claims at Guantanamo, e.g.)  In addition, the administration also makes much of the likely disclosure of national security information.  But again, it doesn't tell us why or how this is different at Bagram than at Guantanamo.  In short, the administration argues that the courts have no business in this area and that they should trust it.  (The administration says as much:  "This Court's exercise of jurisdiction over these petitions could also implicate the Executive's ability to succeed in armed conflict and to protect United States' forces.  Similarly, the Court's decision threatens the public interest by sanctioning second-guessing of conclusions that are at the core of the war-making powers--judgments as to the level of activity or association with potential terrorism and other activities that warrant detention of an individual so as to effectively subdue and incapacitate the enemy."  The lines could have come from a Bush administration brief.)

One key difference is the Obama administration's detention review task force.  The administration has made a commitment through the task force to review detention policies, and it quite rightly says that the courts' interventions here might interfere with that work.  Of course, we won't know how seriously to take the administration until the task force releases its recommendations and President Obama acts.  This may be well into the summer or beyond.  (The task force is scheduled to provide a preliminary report by July.) 

The administration also avoids any blanket assertion of the State Secrets privilege or boundless claims of inherent executive authority.  (Perhaps the broadest claim from the motion is quoted above.)  But the absence of these claims isn't enough to distinguish between the Obama administration and the Bush administration in their positions on off-shore habeas.

SDS

The Right to a Dishwasher - Justice Thomas

Adam Liptak reports in today's New York Times about a talk given by Justice Clarence Thomas regarding the Bill of Rights:

“I have to admit,” [Thomas]  said, “that I’m one of those people that still thinks the dishwasher is a miracle. What a device! And I have to admit that because I think that way, I like to load it. I like to look in and see how the dishes were magically cleaned.”

It seems Thomas was analogizing to the Bill of Rights.   He stated that he is often surprised by the "virtual nobility that seems to be accorded those with grievances" and that it "seems that many have come to think that each of us is owed prosperity and a certain standard of living. They’re owed air-conditioning, cars, telephones, televisions.”   His point, it seems, was that certain things are luxuries and should be viewed as such.

Justice Thomas also implied his job as a Supreme Court Justice made him "a little tired."


RR

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.

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 [email protected] 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.

RR

Loffredo and Friedman on Qualified Civil Gideon

Stephen Loffredo (CUNY) and Don Friedman (Empire Justice Center at the William Randolph Hearst Public Advocacy Center at Touro) recently published Gideon Meets Goldberg: The Case for a Qualified Right to Counsel in Welfare Hearings as part of the Touro Law Review issue on the right to counsel in civil cases, "Civil Gideon," in New York.  This is a fresh perspective on a critically important issue; I highly recommend it.

Loffredo and Friedman's piece joins an increasing academic and practice-oriented literature and a coordinate body of litigation that sometimes goes under the name "Civil Gideon" and sometimes under "civil right to counsel."  In truth, "Civil Gideon" doesn't quite capture the movement--this is really about more than simply applying the right to counsel established in Gideon v. Wainwright to civil litigants.  "Civil right to counsel" is a broader, better name to capture a movement that seeks counsel for poor litigants in an orchestrated effort in state legislatures, administrative agencies, bar associations, law firms, legal services offices, and even law schools, as well the courts.

Insofar as the movement seeks to establish a constitutional right to counsel through the courts, however, it continually runs up against Lassiter v. Dep't of Social Services.  That case held that a poor parent didn't have a categorical right to counsel in a state-initiated proceeding to terminate parental rights under the Due Process Clause.  The Court weighed the balancing factors in Mathews v. Eldridge against a newly created presumption against counsel in civil cases.  Given the importance of parental rights (Mathewsfactor 1.) and the high probability of an erroneous termination of parental rights without counsel (Mathews factor 2.), a parental rights case seemed the best type of case through which to press a civil right to counsel under a procedural due process theory.  The Court's rejection in Lassiter therefore poses a significant barrier for poor litigants seeking counsel in other kinds of claims (like welfare) and, more generally, a significant barrier for the civil right to counsel movement. 

Loffredo and Friedman argue that Lassiter and Goldberg v. Kelly representan underenforced constitutional norm for the right to counsel.  That is: The Court's refusal to declare a due process right to counsel "stems principally from institutional and separation of powers concerns pertaining to the limited role and capacity of the judiciary," and that it therefore "ought not be regarded as [a] definitive statement[] of the full meaning and scope of constitutional due process." 

Loffredo and Friedman argue that legislatures are not so constrained.  Their move, then, is to turn their argument to the legislature.  They argue that the state legislature, as a matter of procedural due process, should provide counsel to the poor in particular welfare cases where the Mathews factors align most obviously in favor of counsel.  These include cases where "[a]n impoverished family threatened with termination or reduction of subsistence benefits faces the severest sorts of injury and privation," where counsel is particularly necessary for a poor litigant to protect his or her rights, and where the government's interest in saving money aligns with the poor litigant's interest in resolving the matter quickly and correctly. 

By presenting this constitutional argument to the legislature (and not the courts) under an underenforced constitutional norm theory, Loffredo and Friedman bypass the Lassiter presumption and Goldberg's modesty, the most significant barriers to claims for a constitutional right to counsel in the courts.  Loffredo and Friedman:

Lassiter recognized that certain alignments of the Mathews factors in the parental rights setting would tip the scales decisively enough to overcome the Court's presumption against a right to counsel.  As demonstrative above, at least some welfare cases present a comparably decisive alignment of Mathews factors that would warrant a judicially ordered assignment of counsel.  But regardless of whether the courts would enforce a due process right to representation in the welfare context, the legislature bears a broader, independent obligation to ensure that individuals receive the full protection of that constitutional right, undiminished by limiting constructions that the judiciary, for separation of powers or related institutional reasons, may adopt as a matter of prudential self-restraint.  Even if one regards the full measure of the due process norm as extending no further than the Mathewsanalysis, shorn of Lassiter's presumption, that analysis makes plain that the absence of counsel from particular welfare hearings denies due process to many thousands of the state's poorest and most vulnerable families.  The legislature is therefore duty-bound to act. 

Loffredo and Friedman conclude with specific recommendations for identifying cases that meet their standard and qualify for a right to counsel.  (They also include as an Appendix two transcripts of pro se hearings that are quite convincing on the problems litigants face without counsel.)

Moral, economic, and policy arguments to state legislatures haven't always been successful, and that's why the civil right to counsel movement has so often turned to the courts.  But Loffredo and Friedman offer a new constitutional argument.  It's appealing on moral, economic, and policy grounds; but, they argue, it's compelled on constitutional grounds.

This is an important contribution to this area.  I highly recommend it.

SDS

Law and Philosophy Conference in Spain

A "Law and Philosophy" - "Filosophia Y Derecha" conference will be held in Spain next year.   The conference will center on the topic "Neutrality and Theory of Law” and will take place the 20th , 21st and 22nd of May 2010 in the Spanish city of Girona. The conference is conceived of as a meeting place for authors and readers of our books. For this reason twelve authors from the collection will be speakers at the event Dr. Robert Alexy, Dr. Juan C. Bayón, Dr. Brian Bix, Dr. Eugenio Bulygin, Dr. Bruno Celano, Dr. Jules L. Coleman, Dr. Riccardo Guastini, Dr. Brian Leiter, Dr. Jorge Luis Rodríguez, Dr. Frederick Schauer, Dr. Scott J. Shapiro, Dr. Wilfrid J. Waluchow. Our objective is to offer an event of great importance in the legal-philosophical debate that will gather and try to bridge different legal traditions.

 

The conference website is here:  http://www.filosofiayderecho.es/congreso/en/index.html

 

NLS