Friday, February 19, 2010

Yoo's, Bybee's Torture Memos "Flawed," but no Misconduct

John Yoo's and Jay Bybee's memoranda as lawyers in the Justice Department's Office of Legal Counsel providing the legal basis for certain interrogation techniques--the torture memos--were "flawed," but reflected no professional misconduct, according to a memo released today from David Margolis, DOJ's top career attorney, to Attorney General Eric Holder.

Margolis's memo rejects the conclusions of the Office of Professional Responsibility, which opined in July 2009 that Yoo and Bybee engaged in professional misconduct by failing to provide "thorough, candid, and objective" analysis in the torture memos. 

Margolis sought and received comments from Yoo, Bybee, and others on the July 2009 OPR final report before issuing his own conclusions.  Yoo's comments are here; Bybee's are here.

There is much to write about here, and we'll provide analysis in several parts.  One issue that initially caught our attention is the role of the OLC as legal adviser to the President.  In response to criticism against Yoo and Bybee that their work simply rubber-stamped the Bush administration's policy preferences--and didn't provide any rigorous independent legal analysis--Margolis quotes at length from his interview with Jack Goldsmith.  Recall that Goldsmith succeeded Bybee as OLC chief and withdrew the Yoo memo.  Margolis relates his interview with Goldsmith on the role of the OLC:

Q (Margolis): One of the things I'm trying to figure out, we're trying to deal with is sort of, what is an OLC opinion and what is it supposed to be. . . . [W]hat is the role of the OLC and was there a line that was crossed here in that regard[?]

A (Goldsmith):  That's a very difficult question for me to answer. . . .  I can tell you this, that there is without getting into whether John crossed the line, there is debate about what the proper role of OLC is.  There's debate among former heads of the office and academics and people about what exactly, what interpretive stance OLC should take.  So, there are multiple questions.

To what extent should OLC be trying to give neutral, independent court-like advice, or should OLC be more like giving an attorney's advice to a client about what you can get away with and what you are allowed to do and what your risks are, something in between.  What are the sources of interpretation?  Is OLC bound by Supreme Court decisions?  Is OLC--can the Executive Branch take an independent role in interpreting the Constitution and the statutes?  You know, when and why and under what circumstances?

Does it matter whether the opinion is classified or not?  Does it matter whether there can be open debate on it?  Does it matter whether it's published?

These are all questions for which, you know, one day I'm going to write a book and they're difficult questions.  So, I'll just say that as a general matter, point one.

Q:  That's fair enough.

A:  But, as a general matter, I think, with all those caveats and I want those caveats on the record, in a general matter we're supposed to be--I think the answer is that it is clear that OLC is supposed to serve some independent role within the Executive Branch to try to provide independent advice.

Now, no head of the office had ever done that fully, and I can give you a lot of examples.  And there are many times in the history of not just OLC but Attorney Generals [sic] giving opinions to the President in the history of the country where Attorney Generals [sic] gave advice which was, you know, more of, here' an argument to cover what you've done, rather than my best independent view on the matter.

Goldsmith goes on to discuss Attorney General Bates's opinion validating President Lincoln's suspension of habeas corpus and Attorney General Jackson's opinion on the "destroyers for bases deal."

He concludes: "My only point is I don't know what the standard is.  And, again, I'm not trying to tell you how to do your job, but I don't know what the criteria are for whether it crossed the line."

This seems awfully weak for a former OLC chief that withdrew the Yoo memo.  (Did he not apply a standard himself in moving to withdraw the memo?)  As the OPR noted starting on page 15 of its July 2009 opinion, former OLC chief Stephen Bradbury issued a memoon Best Practices for OLC opinions that, among other things, said this:

In general, we strive in our opinions for clarity and conciseness in the analysis and a balanced presentation of arguments on each side of an issue. . . .  OLC's interest is simply to provide the correct answer on the law, taking into account all reasonable counterarguments, whether provided by an agency or not.

Bradbury served during the Bush administration, but his standards are bi-partisan.  A group of former Clinton administration OLC chiefs and advisors issued Principles to Guide the Office of Legal Counsel in 2004 that reflect Bradbury's sense of balance and objectivity.  Yoo's and Bybee's work pretty clearly violates this basic standard of balance and objectivity. 

The Bradbury memo and Principles are not professional responsibility standards--at least in the sense of the Model Rules or state rules of professional responsibility.  But they help clarify the role of the OLC--the point to this segment of Margolis's interview with Goldsmith.  Goldsmith's examples of Bates's and Jackson's opinions themselves seem rather to support balance and objectivity, not prove the opposite.  Yoo's and Bybee's work seems at least to violate the internal OLC standards designed to avoid the kind of overreaching that Bradbury's memos and the Principles caution against--and to this extent they also violate widely agreed upon ideas about presidential authority.


February 19, 2010 in Executive Authority, News, Separation of Powers, War Powers | Permalink | Comments (2) | TrackBack (0)

Obama Establishes Bi-Partisan Commission on Fiscal Responsibility and Reform

President Obama signed an executive order yesterday establishing a bi-partisan commission to address federal spending and the federal debt.  The move comes after the Senate rejected bi-partisan legislation to create a similar commission.

Under the EO, President Obama will appoint the chairs (one from each party) and six members (no four of which may be from one party).  The Speaker of the House, the Senate Majority Leader, the Minority Leader of the House, and the Minority Leader in the Senate will each appoint three members (who must be sitting members of their respective houses).

President Obama appointed Erskine Bowles, President Clinton's Chief of Staff, and former Senator Alan Simpson (R-WY), the former Republican Senate Leader, as co-chairs.

Minority Leaders Senator Mitch McConnell and Representative John Boehner said they'll cooperate and appoint members next week.

President Obama gave the Commission the following task:

[I]dentifying policies to improve the fiscal situation in the medium term and to achieve fiscal sustainability over the long run.  Specifically, the Commission shall propose recommendations designed to balance the budget, excluding interest payments on the debt, by 2015. . . .  In addition, the Commission shall propose recommendations that meaningfully improve the long-run fiscal outlook, including changes to address the growth of entitlement spending and the gap between the projected revenues and expenditures of the Federal Government.

The Commission obviously cannot have authority to bind Congress.  Instead, it operates as an attempt to help solve a collective action problem--that every single member of Congress has an incentive to push for disproportionate spending in his or her home district, and therefore together the institution is ill-equipped to deal with a fiscal crisis.  The Commission's recommendations can provide political pressure on Congress, even if they do not legally bind Congress.  A model is the Defense Base Closure and Realignment Commission, the BRAC, which helps to solve a similar collective action problem by studying and making recommendations about military base closures and moves.  Unlike President Obama's Commission, however, the BRAC was created by Congress through legislation.  This difference is unlikely to diminish the influence of the Commission, however: If both parties participate, its recommendations will or won't be politicized, whether it was established by statute or by EO.


February 19, 2010 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (0) | TrackBack (0)

Thursday, February 18, 2010

Woods on Nullification, "State Resistance to Federal Tyranny"

Dr. Thomas Woods spoke today on "Nullification and State Resistance to Federal Tyranny" at the Conservative Political Action Conference, or CPAC, at the Marriott Wardman Park Hotel in Washington, D.C.  Woods is the author most recently of Meldown; he also wrote Who Killed the Constitution?: The Federal Government vs. American Liberty from World War I to Barack Obama.  (CPAC attracted a who's who of conservative political leaders and media personalities--everyone, it seems, from Dick Armey to George Will.)

Woods, a scholar at the Ludwig von Mises Institute, gave two talks in 2005 outlining his case for "states' rights": States' Rights in Theory and Practice, and The States' Rights Tradition Nobody Knows (with a broken link on the Mises web-site).  Woods starts with the Virginia and Kentucky Resolutions (declaring the federal Alien and Sedition Acts unconstitutional), Virginia's statement upon its ratification of the Constitution (reserving the right of the people to resume the powers granted to the federal government "whensoever the same shall be perverted to their injury or oppression"), and early secessionist movements, among other historical evidence, to argue that the Constitution protects states' rights and, at the outside, permits nullification.

With recent attentionon the "tenther movement"--those who argue that federal policies overreach and violate the Tenth Amendment--and state nullification efforts (but see Sandy Levinson's recent piece in the Statesman) we thought we might add Woods's voice to the fodder for your classes on federalism and the Tenth Amendment.


February 18, 2010 in Congressional Authority, Federalism, News | Permalink | Comments (0) | TrackBack (0)

Citations to "Foreign" Law on Constitutional Matters

Should United States courts cite to non-US constitutional (or other) decisions?

To many judges in national courts, faced with cases for decision involving the meaning of their own constitutional charters of rights, it has often seemed appropriate and useful, over recent years, to reach for the exposition of analogous problems written by judges and decision-makers in the courts of other countries, in international or regional courts and other bodies, grappling with similar problems. Doing so has not generally been viewed as evidencing any illegitimate loyalty, or deference, to nonbinding texts. Still less has it been seen as exhibiting obedience to the legal norms of other countries or the international community, or to the opinions of judges and others outside the legitimacy of the municipal court hierarchy. Instead, reference to such elaborations has occurred because such expositions have been found helpful and informative and therefore useful in the development of the municipal decision-maker’s own opinions concerning apparently similar problems presented by the municipal constitution or other laws.
None of the foregoing statements would be regarded as strongly contestable or even controversial in any common-law country, or indeed in most civil-law countries, save for the United States of America and Australia.

In the Donahue Lecture at Suffolk University Law School, Justice Michael Kirby, recently retired from Australia's High Court (under its mandatory retirement policy), compellingly compares the Australian and US experiences with foreign and international law. 


Kirby (depicted in an Australian government portrait above) argues that domestic (or as he often says, "municipal") jurists realize that "decisions of foreign courts, tribunals and other bodies and the content of international and regional law, outside one’s own legal system, are not studied because they provide a binding rule that governs a municipal case and determines its outcome."  Instead, he notes that these decisions offer "a contextual setting that helps the municipal decision-maker to see his or her problem in a wider context."  Kirby also discusses the "democratic deficit," again stressing that the "foreign" decisions are not binding, but also acknowledging that "the protection of vulnerable and sometimes unpopular minorities" is at the heart of his argument:

For the rights of such people, democracy imports special protection by the independent courts. Such courts remind transient majorities that a democracy includes all of the people. Minorities have fundamental rights that the majority may not neglect or override. International human rights law is useful in expressing and clarifying what such rights entail. That is what sometimes makes it useful for municipal judges to have regard to the growing body of international law and jurisprudence.

After Kirby's speech, there was a panel discussion with Professor Michael Blumenson and Con Law Prof and former Justice of the Massachusetts Supreme Judicial Court John M. Greaney.  The printed versions of the Lecture and Panel Discussion are both available on the law review's website here, as is a public conversation on judicial review and "queer rights," also available on ssrn here.

Interestingly, Kirby "debated" Justice Scalia in Sydney last week on similar issues of "foreign" law - - - with any luck a fuller report (or transcript) of that discussion will be forthcoming.


February 18, 2010 in Comparative Constitutionalism, Conferences, Equal Protection, History, Interpretation, Scholarship, Sexual Orientation, Sexuality, Theory | Permalink | Comments (0) | TrackBack (0)

Wednesday, February 17, 2010

Poll Reveals Strong Bi-Partisan Opposition to Citizens United

An ABC-Washington Post news poll (questions 35 and 36) released today revealed strong bi-partisan opposition to the Court's recent ruling in Citizens United v. FEC (striking down under the First Amendment federal regulations prohibiting corporations and labor unions from using general funds for "electioneering communication").

In response to the question, "Do you support or oppose the ruling that says corporations and unions can spend as much money as they want to help political candidates win elections?" 80% opposed; 18 percent supported.  On the question, "Would you support or oppose an effort by Congress to reinstate limits on corporate and union spending on election campaigns?" 72% supported; 24% opposed.

The numbers are remarkably consistent across party and ideological lines.

Senator Charles Schumer and Congressman Chris Van Hollen introduced legislation to reinstate the former restrictions on certain corporations and to increase transparency in spending for others.  (The link is a summary.  We'll post the bill when it's available on thomas and gpoaccess.)  Their bill targets foreign corporations, government contractors, and recipients of TARP funds and attempts to increase transparency by, e.g., requiring corporate CEOs to identify that they're behind political ads and enhancing FEC reporting requirements.

Schumer and Van Hollen's bill isn't the only fix out there.  Congressman Grayson introduced the "Business Should Mind Its Own Business Act," imposing a 500 percent excise tax on corporate contributions to political committees and on corporate expenditures on electioneering communication.


February 17, 2010 in Congressional Authority, Fundamental Rights, News, Recent Cases | Permalink | Comments (0) | TrackBack (0)

OSCAR Nominations: ConLaw Perspectives

Avatar Movie image Navi Have a constitutional law perspective on the best-picture nominee and blockbuster Avatar
Consider this CFP from The Journal for the Study of Religion, Nature and Culture.  (H/T Feminist Philosophers).

And among the Academy Award nominees for documentary film is The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers, suitable for viewing (or reviewing) while teaching New York Times v. United States.  If a class trip to the local cinema is not possible, consider one of the compressed and evocative snippets available:


February 17, 2010 in Cases and Case Materials, Current Affairs, Film, Foreign Affairs, Teaching Tips, Web/Tech | Permalink | Comments (1) | TrackBack (0)

Tuesday, February 16, 2010

Web-Sites Track White House Activity, Appointments

The Washington Post has two useful tools to track White House activity and the status of presidential nominations.  POTUS Tracker analyzes how the President spends his time--by issue, by events, by speeches--and provides the President's daily schedule.  Head Count tracks the status of presidential appointments.

We were interested in what Head Count might tell us about the status of one important nomination, Dawn Johnsen to lead the Justice Department's Office of Legal Counsel.  Head Count correctly lists her as "nominated," but doesn't give any more information.  In fact, the Senate Judiciary Committee last week held over her nomination (which expired, but which the White House said it will resubmit)--a year to the day after her nomination.  The day after the Judiciary Committee's non-action, Senator Specter indicated that he'll support Johnsen--perhaps providing the tipping point for this nomination.

In the meantime, the OLC has been slow to make its opinions public.  They trickled out on the OLC web-site last fall (with several older ones released around the same time in November and December), and, a month and a half into the new year, the Office has yet to even list 2010 as an option for searching its opinions by year.  We can't imagine they're doing nothing, what with all the constitutional issues raised in the administration's initiatives (take health care, e.g.); and the slow pace of release seems at odds with the administration's stated commitment to transparency.

Not that these two have anything necessarily to do with each other (maybe, maybe not), but the Senate should act on Johnsen's nomination now--a year is far too long to let such an important nomination sit--and the OLC should again publicize its work, with or without a Senate-confirmed leader.


February 16, 2010 in Appointment and Removal Powers, Congressional Authority, Executive Authority, News | Permalink | Comments (0) | TrackBack (0)

Sunday, February 14, 2010

Court Orders Briefing on Kiyemba, Uighurs' Case

The Supreme Court on Friday ordered new briefing in Kiyemba v. Obama, the case testing the government's ability to detail the remaining Chinese Muslims, or Uighurs, at Guantanamo Bay even after everyone agreed--and a federal district court ruled on habeas--that there is no basis for detaining them.  The move comes after the government earlier this month found a new home (outside the U.S.) for the remaining Uighurs, thus mooting the case.  We most recently posted on the case here; Linda Greenhouse provides background and commentary for the NYT here.

Recall that Judge Urbina on the U.S. District Court for the District of Columbia ruled in the Uighurs' favor and ordered their release into the United States (because at that time the government found no other country to take them).  The circuit court reversed, however, ruling that release into the U.S. was an immigration matter and therefore an issue for the political branches (and not the courts) under the Constitution.  Under the circuit court ruling, if the Uighurs were to be freed in the U.S., Congress and the president would have to authorize it.  (This the government refused to do for any number of political reasons.  The government's official position at one point in the litigation was that the Uighurs posed a threat because they were angry that the government wrongly held them so long.)  The ruling effectively negated any habeas remedy the Uighurs had, as long as the government had no place to send them.  This was illustrated by the government's position in the wake of the ruling: The Uighurs were free to leave Guantanamo; they just didn't have any place to go.

If the Supreme Court now rules the case moot (and thus declines to review the circuit court case), it would leave intact the circuit court ruling, eviscerating any remedy on habeas (and thus eviscerating habeas itself) for any class of detainees that the government cannot relocate (and refuses to relocate within the U.S.).  This may be a narrow class of detainees, or it may be broad; this all depends on how toxic any particular detainee becomes merely as a result of their detention.  (Recall that the government at one point considered the Uighurs a threat merely because it detained them (!).  The government couldn't return them to their home country, China, because of a continuing threat of persecution because of their beliefs.) 


February 14, 2010 in Congressional Authority, Executive Authority, Foreign Affairs, Fundamental Rights, Jurisdiction of Federal Courts, News, Procedural Due Process, Recent Cases, War Powers | Permalink | Comments (0) | TrackBack (0)