Monday, June 28, 2004

Earlier today, I posted my summary of the five Supreme Court cases that most interest me. Let me know what you think. I think that the media always gets these things ass-backward, so hopefully this will be a little helpful.

With that post, I will be swearing off blogging for a while -- posting on a limited-to-none basis until September. Duty calls, and I need to throw myself completely into a law review article I am writing. Tentative title: "Why the Best Legal Scholarship Institution In The World Was Completely Wrong." Perhaps I'll drop a line to mention how it's going, but not likely.

Drop me a line every so often to encourage me. In September, I'll let you know how it turns out. And be sure to check back in after that, because I will no doubt turn my attention to the red-hot battle for "Best Christmas Lights In Houston." Politics will abound.

But until September, I must eat, drink and sleep nothing but (1) my paying job, and (2) my article.

 10:51 PM
Thoughts On The Big Supreme Court Rulings

The rulings are tumbling out as the term ends, and I want to give my quick thoughts on them.

They All Know His Name Now

The first is the ruling on my man Dudley Hiibel, rhymes with "bible." You may recall that he was the man who was standing by the side of the road talking to his daughter when a cop drove up to investigate a call that Hiibel had been hitting a woman in his pickup truck. Deppity Dawg asked Hiibel if he had any "identification," and Hiibel declined to answer the question. Hiibel was a good-old-boy Nevada rancher and was three sheets to the wind (as we say in legal circles), and he politely (for the circumstances) declined to give his name because the cop declined to explain why he was asking the question. (You can see the video at his website here.) It's pretty clear that Hiibel had no idea why the cop had driven up, and Deppity Dawg saw no reason to explain that there had been a phoned-in complaint. Hiibel was charged under a Nevada statute that requires a citizen under investigation to "identify himself," and he was fined $500. Hiibel paid the fine and took his case all the way to the Supreme Court.

In a close 5-4 call, the Supremes affirmed the fine. The key to the ruling was the Court's dogged unwillingness to decide the case in the way in which it was framed -- can Deppity Dawg demand that a citizen produce his "papers"? That's the more interesting question, and it remains unanswered. Rather, the Supremes framed the question as an issue solely under the Nevada statute, and thus only asked whether Hiibel's constitutional rights were violated when he was required to give his name. Their decision to frame the question in this way is irritating and cowardly and entirely correct under the law. The case was before the Court under the Nevada statute, not under a civil-rights theory.

So the five in the majority held that the statute's requirement that you "identify yourself" can be through any form of identification, such that Hiibel had the right to simply state his name and go no further. The fact that the officer demanded "some form of identification" is irrelevant -- a point which may come as a surprise to anyone faced with the full onslaught of "Reno 911" fake-authority. But that's the key to the whole enchilada. Despite the fact that the cop demanded Hiibel's "identification," Hiibel should have known that he had the right to state his name and then clam up.

It all falls into place after that. The majority then held that the Nevada statute did not violate the Fourth Amendment (search and seizure), because it is reasonable to (1) ask a person his name, and (2) expect an answer, when (3) you have reasonable suspicion of a crime. Prior non-binding statements had strongly indicated (1) and (3), but had suggested that the person being investigated had the right to remain silent. The Fifth Amendment was not violated because Hiibel was not withholding his name out of fear of incrimination, and moreover it would be a very extraordinary case indeed where the plaintiff refused to give his name on the grounds of being "incriminated." (Such a person, Kennedy notes, would have to refuse to stand when his name was being called in court.) It might happen someday, but it didn't happen here.

Stevens, dissenting alone, said that the Fifth Amendment was violated, because Miranda has long said that you have the right to remain silent and that rule should apply during a mere investigation as well. He argued that a person's name was "incriminating" because all "links in the chain of evidence" are "incriminating" -- as Stevens asks, if a name is not incriminating why would the cop ask for it?

Breyer, dissenting with Ginsburg and Souter, would have held that the Fourth Amendment was violated because part of the whole justification for the intermediate-level "Terry" investigation standard is that the person under investigation does not have to respond. ("Terry stops" are cases under Terry v. Ohio in which the officer lacks the probable cause required by the constitution, but does have a "reasonable suspicion" that something is afoot.) The only reason that cops get to proceed without probable cause is the notion that the individual can walk away at any time. When Nevada passed a law that limited Hiibel's right to walk away, it broke the thin reed on which Terry hangs.

Flying (Duck) Blind

Judicial Watch and the Sierra Club filed suit against VP Cheney and the federal task force assigned to come up with a new energy policy. Everyone knows that much. But if you want to understand what the hell the Supremes are talking about -- and why their irritating decision is (again) irritatingly correct -- you have to understand the nature of the lawsuit being asserted. The plaintiffs (hereinafter "the bleeding heart liberal patriot watchdogs") argued that the Administration had violated the Federal Advisory Committee Act. The theory was that the Administration had allowed lobbyists to become such pervasive parts of the process that they were essentially committee members, and thus became obligated to disclose the same information as the goverment-employee members. This is, to put it mildly, a new theory. A "good faith argument for the extension of the law. A stretch akin to my old Stretch Armstrong doll.

It's pretty damn near a death sentence.

Moreover, the plaintiffs were asking for a petition for a writ of mandamus against Cheney (mandamus being an order from a higher authority telling a lower authority to do its job) and a claim under the Administrative Procedure Act against the committee itself. The problem is obvious to lawyers. If you lean up next to a sleeping lawyer's ear and whisper the word "mandamus" to him, he will mutter "extraordinary remedy." And then he'll sue you. So that's strike two against the watchdogs right there. The plaintiffs were seeking a rare and extraordinary remedy from the court, in order to defend a legal theory that was itself extraordinary.

Because success on the merits was so thin, the plaintiffs tried to use the normal process of civil discovery to uncover the very information that they demanded as the ultimate result of their lawsuit. Worse, the plaintiffs got greedy and asked for much more information than they would ultimately be permitted to receive. Now, it's SOP for a civil plaintiff to do a certain amount of "fishing", but not in a case where the "fish" is the object of the case itself. But the district court and Court of Appeals held that discovery should go forward because there was no separation of powers issue raised. After all, the Administration had not asserted "executive privilege" -- the defense discussed in U.S. v. Nixon (the secret tapes case) -- which they believed was the way for the Executive to complain that its rights were being infringed by the courts.

The Supremes reversed, 7-2 (more or less). Nixon had held that executive privilege was the only exception to the obligation to produce documents in a criminal case, but civil cases are different. They're a lot more wobbly, and courts have long had the power to control discovery to keep civil cases in line. The Court of Appeals thought its hands were tied, and they weren't, so they should get take another look at the case. It's the right result given the facts and the procedural posture of the case. Kennedy makes a snarky remark about respecting the executive, but it's not as bad as some liberal blogs make it out to be -- in context, it does not come across as an attempt to ignore the fact that Clinton had been forced to submit to civil discovery. It's a rebuke to the Court of Appeals for pretending that its hands were tied.

Stevens wrote a concurrence in which he emphasized that the discovery being sought was the very information at issue in the case, and thus the Court of Appeals' decision was a veiled decision on the merits of the case. He's got a good point. Scalia and Thomas wrote a concurrence emphasizing that there was little to no chance that the new and untested theory being advanced by the plaintiffs would ever work. They've got a good point. Ginsburg and Souter dissented to make two more good points: (1) the district court had not lost its mind, but was willing to "rein in discovery" if the Administration would only make its objections clear; but (2) the Administration had refused because it demanded that it be exempted from all obligation to comply with discovery. According to the dissenters, because the Court had made clear that the "no discovery" argument was dead, that should have completely resolved the appeal.

It's a fairly straightforward decision, and it makes sense once you know the procedural posture. Cheney isn't out of the woods yet -- there's still some life in the claim against him. But he managed to run out the clock for the 2004 election cycle, so we'll have to wait for a Kerry presidency to find out what all those oil company executives cooked up.

"A state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Write it up, put it on a T-shirt, put it in a box and wear it around your head. The Preznit is not the King, and the Court recognized it. Just barely. But the alliances in these cases will make your head spin.

Let's be clear what was at stake. The President claimed the authority to deny all constitutional due process -- all of it -- to persons that he unilaterially declared to be "enemy combatants." This isn't Abu Ghraib coloring my view, or the memos. This was the legal position of the Justice Department in the Supreme Court, all before the memos had come to light. The Bush Administration believed that it had the power to grab a guy off the street and lock him in a brig with no charge, no trial, no lawyer, and no right to keep from being butt-raped by his guards, all because the executive had declared him to be an "enemy combatant."

And before we go any further, let's pay homage to that classic rule of civil rights cases. In every civil rights case, the weak link is the victim. And it's doubly true here. Though there has been a rush to find some valid legal theory with which to charge Padilla -- no kidding, they're scrambling to find a valid reason to keep the man in jail more than two years after he entered his own personal Kafka novel -- he is (by all accounts) a sonofabitch. But, my copy of the constitution doesn't have the "sonofabitch" exception in it. I must have an old copy.

The three cases presented the perfect factual trifecta -- for a court that is overeager to limit the facts and duck the real issue, the presence of three cases meant that at least one of the enemy combatant cases would have to be decided. Padilla was an American citizen seized on American soil. Hamdi was an American citizen seized in Afghanistan, arguably on a "battlefield." And the Guys of Gitmo aren't even American citizens.

Padilla is the easiest case to describe, because the Court ducked the issue. Five justices held that Padilla's lawsuit was improperly framed because he had sued the wrong guy. He was arrested in New York and filed suit in New York against Donald Rumsfeld, the only person that Padilla's lawyers knew for a fact to be involved in the matter. The Administration had been, shall we say, less than forthright about Padilla's location. Or existence. Yet the Petition stated that Padilla was in a brig in South Carolina, so there's some indication that Padilla's lawyers knew what was up -- at least, they had finally pierced the veil of secrecy by the time they filed their petition.

Rehnquist, O'Connor, Kennedy, Scalia and Thomas held that the petition was filed in the wrong place and against the wrong person. Habeas corpus must be filed against the warden of the jail. Padilla's lawyers knew he was in the Consolidated Brig at Charleston. They should have filed there, against the warden there. QED. It's a temporary opinion at best -- Padilla's lawyers get to immediately file in South Carolina and get relief -- but it enabled the court to avoid the case that presented the most embarrassing situation for the Bush administration. In fact, Kennedy and O'Connor wrote a concurrence in which they engrave the invitation for Padilla to re-file. They would create an exception to the rule if the government was hiding the prisoner, but Padilla's lawyers had found him by the time they filed their petition. But more importantly, the rule that blocked Padilla's case is just a technicality, nothing major. Come on back real soon now, y'hear?

The four dissenters, headed by Stevens, argued that the habeas corpus jurisdiction rules have all the solidity of Swiss cheese, and thus it was ridiculous to enforce this sort of technical rule -- especially when the only reason his lawyers knew his whereabouts was because they were particularly adept at piercing the government's game of "keep away." They would have addressed the claims, and would have held that Padilla gets his day in court. (Some sort of court -- apparently a military tribunal would suffice.) Indeed, in a passionate turn of phrase, Stevens undeniably says that Padilla was tortured by being held incommunicado for so long. And this is a bad thing. "For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny."


The other extreme was the Rasul case, which was the Guys of Gitmo. This was simply a a technical issue -- whether the prisoners can assert a habeas corpus claim given that they are not within the territorial jurisdiction of the United States. This time the technicality lost because O'Connor swung and joined the Padilla dissenters. Stevens wrote that the habeas corpus statute was not strictly limited to the territorial scope of the US -- a holding that almost inevitably follows from the government's admission that a US citizen could file a habeas corpus petition from Gitmo. If a citizen can, then the issue isn't the territorial jurisdiction now, is it?

The real issue here is the difference between Rasul and Padilla -- in Padilla, five justices believed that Padilla wasn't being deliberately and successfully hidden from the justice system. In Rasul, the government freely admitted that the prisoners had been taken to Gitmo specifically for the purpose of hiding them from the U.S. courts.

Scalia ranted that the majority had lost its senses and allowed all enemy combatants anywhere in the world to sue in America. He probably has a good point about the reasoning cited by the majority, which claimed that it didn't have to overrule any of its prior decisions to reach the result. The better reasoning is stated in Padilla, where Stevens forthrightly said that habeas corpus is a patchwork of rules that have been bent so many times that one more bending won't hurt anything. And besides that, the Court has the power to interpret an ambiguous statute. In short, Scalia's literalism ran headlong into the power-to-the-courts view of the old Warren Court.

The payoff was the middle case, the Goldilocks case. In Hamdi, the Supremes made it completely clear that the detainees get to challenge their confinement with some semblance of due process -- a day in court before a neutral decisionmaker. Four justices (O'Connor, Rehnquist, Kennedy, Breyer) held that there was no need to decide whether Bush alone had the authority to detain "enemy combatants" because Congress had authorized Bush to detain combatants like Hamdi with its 2001 "authorization for use of military force." (Note that they were cagey about "enemy combatants" who were not seized on the battlefield, such as Padilla.) That status cannot be indefinite -- "enemy combatants" end when the fighting stops. Specifically, the plurality said that Hamdi would cease to be an "enemy combatant" when the military actions ended in Afghanistan. They then concluded that Hamdi was entitled to challenge his status before a neutral decisionmaker -- not with all the niceties of federal procedure, but subject to the protections of due process and with access to the courts. This was nothing less than a flat-handed slap across the Bush administration's face.

It gets better. Souter and Ginsburg held that Congress did not authorize Hamdi's detention, and that if the government doesn't come up with some other reason to hold him, they have to release him from military custody and try him under the regular criminal laws of the United States. They reach this conclusion on a rich point of law -- the Bush administration claims that the Geneva Convention applies in Afghanistan, but they have been denying the protections of the Convention to Hamdi. Thus, it must be that the Bush administration is operating outside the scope of Congress's resolution. Souter stops there, pausing only to snipe at the famous memos and their notion that Article II of the Constitution gives the President exclusive power over the conduct of war. Souter To Next Solicitor General: Don't Bother.

But wait, there's more. Scalia, in an opinion joined by Stevens (think about that for a moment), holds that Hamdi is being unjustly held and must be immediately released. His reasoning is this: under the Constitution, citizens are tried for treason for this sort of thing. The Legislature can suspend the writ of habeas corpus under limited circumstances of war (Art. I, sec. 9, cl. 2), but it has not purported to do so here. Hamdi must be tried under the criminal laws, and this nonsense twilight world of "enemy combatants" is bull. The opinion is high comedy (as Scalia's best stuff is), in that he excoriates the O'Connor plurality for replacing the Legislature's right of suspension with its own "Mr. Fix-It mentality." Again, Scalia simply sees the Court as a rigid institution, whereas O'Connor sees everything as a balancing test. ("What would I like for lunch? In making that decision, I must balance my love of tunafish with my dislike of mayonnaise, as well as the following eighteen elements that may or may not apply to other lunches.")

The caboose of this train is Thomas, who essentially adopts the reasoning of the famous Justice Department memos -- the Executive is in charge of war, and this is a war, and we all need to back off and let the man do his job. It's not his best work -- he's never at his best when forced to disagree with Scalia -- and it seems a little too cocky for its own good. As a conclusion to the most important case of 2004, it's a whimper.

 11:40 AM

Tuesday, June 22, 2004

Read this essay by Paul Begala. Just do it. It's an exquisitely written defense of the idea of human-rights-based military intervention, and of the need to balance a disgust for the actions of dictators with a different kind of disgust for Dubya's personal failings.

Read it, and then consider Jon Stewart's comment last night on the Bush Doctrine -- you can state the rules that justify a pre-emptive war, and yet you still will not know which country is being described because there are too many candidates. Shall we raise taxes by 40% and institute the draft, so that we may ramp up our military and do the only honorable thing in Sudan? So that we can disarm and feed the desperate people of North Korea? Shall we invade the countries that are genuine threats to our security, like Pakistan and Saudi Arabia? (Pakistan is, after all, a proven seller of WMDs to nutsos, and Saudi Arabia has a genuine-if-modest connection to 9/11.)

Consider these thoughts and let me know what you think.

As for myself, I think that Berman's article is very thought-provoking, but that he jumps the rails when he fails to distinguish between America's need for a retroactive justification for Iraq (our soldiers can be motivated by the knowledge that Hussein was a human-rights nightmare) and America's need to establish a new set of rules for future engagements. It's one thing to say we should get over our dislike of Bush in the former case; it's another thing to set aside the reasonable apprehension that Bush can ever achieve the latter.

 12:00 PM

Thursday, June 17, 2004

You savor them, like chocolates. There's part of you that wants to gobble them all up at once, but the higher, better part of your brain wants to extend the pleasure by saving each one for the perfect occasion.

No, I'm not talking about the now-daily revelations that the Bush administration is incompetent, such as today's double-doozies that (1) Rumsfeld ordered a captive be "ghosted" -- held without a record of his presence -- so that the Red Cross would not know of his existence, and then we "lost" him for many months; or (2) that the 9/11 commission has now stated what was known all along by the people that bother to read the newspaper: that there is no link between al-Qaeda and Iraq.

No, no, those are sour pickles, a sort of Tapas bar for the soul.

I'm talking about "The Office." I want to watch them all, right now, RIGHT NOW, but I can't bear to watch them, because every time I watch an episode that's one I won't have to look forward to.

Television so good it hurts.

 10:11 AM

Tuesday, June 15, 2004

Check this out, if you haven't seen it. It compares and contrasts the Al Gonzalez torture memo with Bush's own comments on June 26, 2003, the "United Nations International Day in Support of Victims of Torture." It's a great comparison, and it's the perfect backdrop to Steven Colbert's line that "Just because we did these things, doesn't mean that we would do these things."

Oh, and here's Chris Hitchens's new article, in which he says that America needs to get ready to use words like "murder" and "rape," because they're the only way to describe the "additional" information that will soon come out about Abu Ghraib. That information has already been in the news articles for a month now; perhaps the damning thing will be the actual photographs.

 12:12 PM

Monday, June 14, 2004

It's official! There will be no culture war over "under God" in time for the election.

The Supreme Court has just ruled that atheist Michael Newdow has no standing to represent his daughter in their challenge to the Pledge of Allegiance. That was always a weak spot in Newdow's position, and thus comes as no surprise in and of itself. But consider this: three justices (Rehnquist, O'Connor, Thomas) wrote to add their opinion that the pledge was constitutional. Such holdings are called "obiter dicta" and are flagrantly improper on matters of constitutional importance.

Moreover, it gives us a clearer view of how the Court came out. Four justices (the concurrence plus Scalia, who recused himself after shooting off his mouth) concluded that it was constitutional. That leaves five justices that were almost certainly ready to hold that "under God" was unconstitutional. But in what might be the reverse of Bush v. Gore, those five chose not to issue that ruling, probably because it would ignite the "culture war" for the presidential election. If that speculation is true -- and I have no proof whatsoever-- the "obiter dicta" choice of the Rehnquist concurrence makes more sense. The concurrence may have been issued to make clear that the Court would have overturned the Pledge of Allegiance if it had not found a standing problem. It's an attempt to shine some light on the true feelings of the Court, and to give "The Base" proof that the Court is filled with "activist judges" ready to lean "leftward" yet again.

It's gonna be a feisty month. Who knows what will happen when the Gitmo cases get handed down?

 10:03 AM

Friday, June 11, 2004

I joked earlier that it was funny that AG Ashcroft refused to hand over a memo that was instantly released onto the Internet. But as I find out more about the circumstances of that refusal, my blood starts boiling. It's a lot worse than I made it out to be, because I didn't know the extraordinary circumstances involved.

When testifying before the Senate Judiciary Committee, Ashcroft refused to hand over several -- not just one -- several memoranda discussing the status of the torture laws and their applicability to US officers interrogating prisoners as part of the "War" on Terror. (I use the quotes because it has never been made clear to me how this "War" is any different than the "War" on Drugs, or the "War" on Poverty, or Crazy Eddie's "War" on High Prices. Though terrorism is an immediate and serious threat to America, only the Congress has the power to declare "War.") So there were several memoranda. The one prepared by the Defense Department has been released, as has a memo written by White House Counsel Al Gonzales (calling the Geneva Convention "quaint"), but Ashcroft's refusal still presumably applies to the other memoranda from the Justice Department. Those memoranda, after all, are under his direct control, unlike the others.

So, there's still a problem here.

But the thing that really amazed me (and props to "The Daily Show" for showing the footage of this exchange) is that Ashcroft is not, I repeat not, underline it, circle it, put a big damn finger pointing to it, can I get a witness...


claiming "executive privilege." I had assumed he was, because it's the only way to make sense of his refusal.

Why is his rejection of "executive privilege" important? Because that's the only permissible reason to withhold a document from Congress. Congress gets to order the disclosure of documents that affect our foreign policy, our military, our judicial process, our government. They're running the show, so they get to see what people within the government are actually doing. But there has been a long-standing theory that there is something called "executive privilege," which is the recognition that the President is entitled to get advice from people without intrusion from Congress. The term does not exist in the Constitution, but it is presumed to exist because of the principle of separation of powers. (More on "executive privilege" in this good overview.) So, let's be clear. The only way the Attorney General -- an Executive officer -- can refuse to disclose documents from the Justice Department -- an Executive branch -- is by invoking Executive Privilege. There is nothing else. Nothing. Period.

And Ashcroft made a point of saying that he was not invoking "executive privilege." He danced around the term for most of his testimony, but in response to Sen. Kennedy's direct question, he confirmed that he was not relying on the doctrine of "executive privilege."

Why not? The answer is clear: in U.S. v. Nixon, the critical case on the doctrine, the Supreme Court held that executive privilege is a limited defense that did not justify withholding the White House tapes from Congress. It was the showdown of the 70s, in which Nixon privately declared that he would defy Congress if even one of the justices dissented. But it was 9-0; he handed over the tapes and resigned four days later. Executive Privilege cannot be used to cover up evidence that the President is committing a crime.

Phrased another way, "executive privilege" has two problems for Ashcroft. (1) It probably does not protect the "torture" memos, which instruct the executive branch on how to defy Congress and avoid criminal laws. (2) It smacks of Nixonian evasion.

So that's out. Rather -- and get ready for this -- he said "I do believe the president has the right to have legal advice from his attorney general and not have that revealed to the whole world." Of course, that is an accurate and concise definition of "Executive Privilege," which Ashcroft has deliberately eschewed because he knows it's an inflammatory, illegitimate argument.

So the only thing left is Ashcroft's own personal views. Ashcroft On What Ought To Be. I Don't Wanna.

Where do we stand? Simply stated, Ashcroft is now in open revolt against the Constitution. It cannot be stated less egregiously than that.

So what are you going to do about it?

 8:33 AM

Wednesday, June 09, 2004

You know, there's something comical when the Attorney General refuses to release a confidential memo to Congress, and then the memo is published on the Internet on the same day. It's the now-famous "torture" memo, in which America's Best and Brightest collect the laws that might apply to a torturer.

Dave asks for an explanation of the memo, and I think I can oblige. It's a long memo and densely written, so any summary will be inadequate, but well-intended.

And I'll add this -- I keep revising this post as I think more and more about the content of the memo. So check back. New, bad things keep popping up.


It is a legal memorandum, no different in form from the memoranda I write every day. The goal is to set out the statutory standards, resolve any disputes about the interpretation of those statutes, and illuminate the practical application of those standards through examples from case law. It is tedious and well-written. Like my own work. Of course, I seldom write about naked prisoners forced to mime homosexuality.

I: The Boring Stuff

The first section (to page 18) is an unremarkable rehashing of the relevant legal standards that could be applicable. The relevant statutes and treaties are explained and illuminated, just like in any legal memorandum. There are no policy judgments here. It is a good recap of the criminal law of torture, the various treaties that purport to restrict our ability to torture, and America's weasel words that prevent us from being held to the literal words of the UN treaties.

I have seen the memorandum criticized for its seemingly-callous statement that a torturer must have "specific intent," but that is an uninteresting statement of settled criminal law principles.

The problem is not the content of the information, but the way in which the reader uses it. That is, you can advise someone of the content of the law without intending to "teach them how to push the law to its very limit." Some have called the memorandum a "torture manual," but that is overblown. It is a statement of the law. At the same time, it is a statement of the law from the viewpoint of someone inclined to render every ambiguity in favor of Presidential power, and disinclined to present opposing views.

II. The Presnit As Commander-In-Chief

The second section of the memo (18-24) gets more interesting. Having listed the ways in which our folks could be liable, the memorandum begins listing the exceptions to those rules. The get-out-of-jail-free cards. And the first exception is the one that caused all the stir -- the Commander-in-Chief's constitutional power to wage war without interference.

The memo takes the firm position that the Commander-in-Chief's authority over the ways in which war is waged cannot be restrained by any act of Congress, and thus the Executive branch is free from the Torture Act. Or any other Congressional control, for that matter. War is for the Executive, end of story. Indeed, the memorandum also makes the shaky argument that the Executive would be given the benefit of the doubt when his military orders conflict with criminal statutes.

Now, pause for a moment -- from this point on, the memorandum eliminates from consideration the various treaties that the US has entered into. The Geneva Convention, for instance, is taken off the table. That is because this section purports to only be about American law -- the struggle between Congress and the President. The conventions show up again much later, when the memo analyzes the constitutional limits on torture. (America has limited its commitment to the treaties, such that the treaties do not exceed the scope of the Constitution.) But because the memorandum is not cumulative -- you can use defense X, or Y, or Z -- there's a big honkin' question mark whether the authors think that the President can defy treaties under his Commander-In-Chief authority. Let's be charitable and say that they do not. They seem to see the treaties as a limit on all American power, so let's say that the authors believe that the President is similarly limited, and this section is merely a debate over whether the Executive Branch can be tried under laws passed by Congress. Let's say that. It will help us all sleep.

So, back to the issue of Congress being able to order the President. On the narrow terms in which the argument is framed, it is correct. That is, the President's purely-military decisionmaking is restrained by the Constitution, but not the Congress.

But that conclusion is uninteresting, because (to paraphrase my Contracts teacher), it takes everything interesting out of the question. In fact, its insistence on avoiding the interesting questions seems willful and callous.

The memorandum takes for granted the notion that (1) the President is acting in a truly military capacity, and (2) the torture victim is an "enemy combatant." The memo avoids the much-more-interesting issue of whether those two assertions are valid in Iraq, Afghanistan, and the ill-defined "War" on Terror.

First, there's a very real question whether the "War" on Terror is a "War." Has Congress authorized it? (Cf. Art. I s. 8 regarding power "to declare war"). Is it a "war" at all? And if it is not a straightforward declaration of war -- as so few "conflicts" are these days -- cannot Congress limit the President's power by revising the legislation that created the state of "conflict" in the first place? (cf. Bob Dole repealing the Gulf of Tonkin resolution in 1970, because it was -- and I quote -- "irrelevant") Does not Congress's power of the purse give them a pretty fierce control over the operation of the war? (Art. I s. 8 power to "raise and support armies" and "provide and maintain a navy") All good questions. All completely ignored by the memorandum. Instead, the memorandum freely mixes authorities from WWII, the Civil War, Korea, and Gulf I as if the War on Terror were an honest-to-goodness, tanks-and-troops war. This gloss on the War on Terror is frankly unnerving.

Importantly, though, the memorandum has another section on "self-defense" that makes the very interesting argument that the President has the power to act in the "defense" of America. The memo states "There can be little doubt that the nation's right to self-defense has been triggered under our law." (p. 30) Sure -- but that's the whole country, not the President alone. They also point to the fact that the President must take steps to protect the States against "invasion." (id.) But this analysis is outrageously circumspect -- it avoids the obvious objection that only the Congress can declare war. There's a nod to this problem in the statement "the President has authorized the use of military force with the support of Congress." (p.31) But even that statement is accompanied by a massive footnote that eliminates any reference to Congress, and instead attempts to justify unilateral actions by the President on the theory that it would match international law. Watch this closely -- it's the last time you'll ever see a neoconservative rely on international law for anything. But it's apropos of nothing. The UN recognizes America's right to defend itself, but that doesn't mean that the power is solely and unilaterally vested in the President.

Another footnote (23 n.19) makes some truly extraordinary assertions regarding the President's power to "repel military action" without legislative action. Using only the most decrepit case authority, the memorandum would essentially write the Congress out of the war-making power of the United States. This arises in the context of a passage explaining that the Executive's power is sweeping (all rights "considered to be Executive" are granted unless expressly withheld), unlike the Legislative power (which is withheld unless expressly granted). This is not a literal distortion of the text of the Constitution, but it could certainly be used as a major encroachment on the powers of Congress.

The other legal question is whether the President can designate "enemy combatants" at will, and under what level of "danger" or "military necessity." (The memo repeatedly treats "enemy combatants" as a settled concept, with no gradations. Al Qaeda suspects are no different than uniformed Nazi officers.) Fortunately, that question is currently before the Supreme Court, where the Bush administration argued strenuously that America did not engage in torture. I think all the snarky legal junkies in America are waiting to read the opinion in that one.

Put this in perspective: the most interesting case is Jose Padilla, an American citizen who allegedly desired to commit a terrorist act on United States soil. He was designated an "enemy combatant" and denied all Constitutional protections. He was placed in a brig on a Navy ship in international waters, so the courts would have no jurisdiction over him. Thus, this memorandum essentially asserts that the government could beat the ever-lovin' sh*t out of Padilla any time it wants, based on the President's power to run a conventional war.

Ultimately, this is the flaming-hot section of the memo, and it is nothing more than a shell game -- mixing the question of America's collective right to defend itself with the question of who can declare war and who gets to run that war once it is declared. And the "prize" hiding under the shell is whether "torture" of al-Qaeda suspects has anything to do with the President's power to direct a full-out "war." (The subtext here is the ongoing debate between the Executive and Legislative branches over which has power over foreign policy -- presidents have been trying to increase their grasp for decades. This is a foreign policy question, not a truly "military" one.) If you take everything interesting out of the question, and call the "War on Terror" a true "war" that has been properly declared, then the President is only bound by the U.S. Constitution and our treaties. He is not subject to the American torture laws. Big whoop. The treaties on torture are plenty to get him in hot water.

Now, all that should lead you to have some serious thoughts about America and the Civics class you slept through in high school. But all of this was arguably misrepresented by the Wall Street Journal. The Wall Street Journal article said that:

"To protect subordinates should they be charged with torture, the memo advised that Mr. Bush issue a 'presidential directive or other writing' that could serve as evidence, since authority to set aside the laws is 'inherent in the president.'"

I don't know the context, so I don't know whether the article explained what was meant by "the laws." But people have gone ape over the words "authority to set aside the laws is 'inherent in the president,'" as if the President could impose martial law, establish a new Reich, etc. etc. That misses a very important semantic distinction. The memorandum is talking about the situation where Congress purports to pass a law restricting the President's power as Commander-in-Chief. Here's the text:

"Congress can no more interfere with the President's conduct of the interrogation of enemy combatants than it can dictate strategy or tactical decisions on the battlefield. Just as statutes that order the President to conduct warfare in a certain manner or for specific goals would be unconstitutional, so too are laws that seek to prevent the President from gaining the intelligence he believes necessary to prevent attacks upon the United States.

"As this authority is inherent in the President, exercise of it by subordinates would be best if it can be shown to have been derived from the President's authority through Presidential directive or other writing."

It's strong stuff, as I discussed above. But the "authority" being discussed is not the power to set aside all laws. Rather, it is the power of the President to decide for himself whether a law passed by Congress is unconstitutional (inasmuch as it trespasses on the power of the Commander-In-Chief to direct the war), and thereby refuse to honor it. Though Jefferson believed that the Executive had the power to interpret laws and declare them unconstitutional, that theory has long since died out in favor of the Civics-class checks-and-balances view that the courts are the only arbiters of constitutionality. Thus, the memorandum nakedly proposes to discard two hundred years of legal authority. It uses the Constitution as the cover for a massive power grab.

You know, the more I think of this (this is a second addition to this post), and the more I read of this memo, the sicker I get. It's not the power to set aside "all" laws, but it is the power to fight an ill-defined foe for an ill-defined amount of time.

Point to Ponder: If the President can designate anyone as an "enemy combatant," based on an ill-defined "war on terror" that supposedly has the status of a fully-declared war, which allows him to disregard any Congressional law that purports to restrain his authority, can he imprison people that he deems "terrorists" or merely "seditious" to the "war" effort? Can he torture those people? Can they be taken to extraterritorial places where they have no recourse to the courts? Can America become Chile, where women dance for the disappeared?

Answer to Point to Ponder: The memo offers no reason to say "no" to any of the above.

III: "Necessity"

The third section (24-26) regards the "necessity" defense. It is a doctrine intended to address the situation where someone is forced to choose the lesser of two evils, both of which are criminal.

The startling thing here is that the memorandum takes a very positive view of the necessity doctrine. The author likes the fact that "necessity" is a very flexible doctrine which requires an after-the-fact judgment of whether the act was truly the greater good. That is, of course, the danger of the doctrine -- you have to gauge the known harm against the mere allegation that it could have been a lot worse. This explanation is immediately followed by a large redacted section. It's pretty clear that the omitted section says something like this:

"It will always seem 'necessary' to torture terrorism suspects. The risk of total calamity -- which need only be alleged -- will usually outweigh the known harm to a suspect, who will be disfavored because he was accused of terrorism and because he has brown skin. At the very least, 'necessity' will allow a jury to acquit for emotional or patriotic reasons."

IV. Self-Defense

The self-defense section (27-31) gets off to a slow start, as it outlines the usual rules for self-defense across the US. Page 29 gets to the real issue: if you can harm someone in defense of a third person (a point on which the states differ), can a torturer harm his victim in defense of "America"? The author places much reliance on a case from 1890 in which a US agent shot an assassin to save a Supreme Court justice. Everyone that can distinguish that case, raise your hand.

The argument completely derails when the author equates the criminal doctrine of "self-defense" with the country's right to defend itself against al-Qaeda. The memorandum seems to exhibit some defensiveness about the President's unilateral announcement that the country is "defending itself," inasmuch as a rather lengthy footnote is devoted to the subject, as discussed above. At any rate, when "self-defense" is applied to an entire country, the logical connection is lost. Self-defense has nothing to do with the Executive Branch's policies in handling prisoners under its control. The argument was more reasonably founded on the President's right to conduct war, and it wasn't all that reasonably founded there.

V. Superior Orders

The next section on the Nuremberg defense (32-33) gets pretty chilling. It starts off with a thorough and accurate description of the defense throughout domestic and international law. "Just following orders" is NOT a defense if a person of ordinary sense would know that the order was unlawful. Again and again. Well-established.

The chilling part is that the author twists it in the final words: the defense of Superior Orders is available unless the order is patently unlawful. Out goes the "ordinary sense" test, in comes the "absolutely-no-gray-area" test. "Well, gosh Lynndie, I'm not patently certain that it's illegal to butt-rape this man with a blunt instrument, so I can't be arrested."

VI. Torts

Explains that torturers can be sued in civil court. (34) Presumably, the government would have to let the plaintiffs out of their cell and take them to shore.

VII. The Constitution

The next section gets down to the nitty-gritty. The Consitution. The Big C. It applies because the US uses it to define its own obligations under international treaties, not because the torture victims are Americans. Supposedly, this is the limit of all American power to torture.

The memorandum outlines the Eighth Amendment (cruel and unusual punishment) restrictions on conditions of confinement with about as much neutrality as the Iraqi Information Minister. "Cruel and unusual" is narrowed so much that you would pretty much have to be naked, in Siberia, with rabid beagles attacking you day and night, to have a claim of cruel confinement. Moreover, even that claim would be outweighed (according to the author) by the government's tremendous interest in protecting "untold thousands of American citizens." I think the memorandum limits the Eighth Amendment excessively, but not to the point of flagrant intellectual dishonesty. Under Supreme Court precedent, the Eighth Amendment is pretty weak tea.

The "use of force" discussion (under the 5th and 14th, which probably adopt the 8th as a guideline for "due process") is more balanced -- it lays out an awful lot of law, and generally sets up the principle that the action has to be proportionate. In contrast to earlier sections, there is a lot of information here that is presented neutrally. No "rally round the Chief" rhetoric.


The authors take the position that the Constitution does not apply to the "enemy combatants" at Gitmo. But the discussion of "use of force" is so detailed and thorough that I suspect the authors believe the Supreme Court will puncture that particular party balloon. The memo sternly warns of the many, many ways in which prison officials have been found to violate the 5th and 14th amendments.

It is not a coincidence that the very next section discusses whether the "enemy combatants" have any recourse to the courts. Very neutral on the subject.

The subtext is that the authors are raising a huge red flag. The Preznit may be able to defy Congress and the Courts, but international law will be another matter entirely. Bush could end up like Kissinger, carefully planning his flights to ensure that he doesn't get arrested and tried for war crimes.


The memo shifts gears again at page 46, when it discusses the Uniform Code of Military Justice. It is a more dry discussion of the usual criminal laws, followed by a stern warning that the use of force is not lawful if the enemy has "laid down his arms." Boring stuff -- nothing new here -- though it is interesting that the case overshadowing much of this section is U.S. v. Calley, which was the prosecution of the My Lai massacre.

Bonus question: Who first investigated My Lai and announced that there was nothing to these wild allegations of rampant slaughter because (to paraphrase slightly) "Everyone knows relations are very good between the Americans and the Vietnamese"?

Bonus answer: Capt. Colin Powell.

IX. "Considerations Affecting Policy"

Time for a history lesson. At 54 onward, the memo takes a detour to talk about the history of interrogation in the U.S. military. It's pretty fascinating, because it is well-established that torture is a bad idea because it gets you bad information. If the Army knows that it's useless, why are we using it? Sheer f*cking desperation? If we're that hard up for intel, perhaps we should have spent our resources in Afghanistan instead of invading a harmless country as part of the Halliburton Full Employment Principle.

X. Specific Orders By Bush And Rumsfeld

That's where the publicly available copy of the memo abruptly ends -- just before getting into a discussion of the orders issued by Bush and Rumsfeld. The reason is obvious.

Of course, those orders are starting to trickle out as reporters are putting all this stuff into a framework. Rumsfeld personally ordered torture. And more comes out every day.

So that's the memo. Torture 101: uninteresting for 50 pages, with six pages of really interesting stuff sprinkled in there.

Executive Summary: The Preznit can do whatever he wants under American law. But international law is a buzzkill, because it forces us to treat furriners like Americans.

 1:34 PM

Thursday, June 03, 2004

For those of you following the draft story -- and you damn well should be -- this morning's news caused you to spit out your Cheerios. The Army has just announced a new policy to force soldiers to stay in the Army. If your unit is due to ship out to Iraq in the next ninety days, you can't leave until your entire unit is rotated back to the U.S., plus an additional ninety days for good measure.

I'll take questions now.

Q: Okay, I'm due to muster out on July 1, 2004. My unit ships out to Iraq on October 1 for a one-year tour. Can I leave?

A: No.

Q: Apostrophe-the-f*ck?

A: You will stay in the Army for another ninety days. You will then ship out to Iraq and stay there for the full tour. You will then come back to the states and serve another ninety days. God willing.

Q: But I had a contract with the Army!

A: Yes. Your "contract" says that the Army can test unknown chemicals on you -- extending your tour of duty is the least of your problems.

Q: But it will only be another year, right?

A: Year and a half.

Q: Okay, another year and a half, right?

A: Well, no. You stay for the whole tour. The Bush Administration has been notorious for extending tours of units in Iraq -- 20,000 guys got an extra ninety days last year. You remember Hungry Joe in Catch 22, who only panicked when he was close to mustering out?

Q: No.

A: It's probably better that you don't.

Q: What are the soldiers saying about this policy?

A: They're calling it "a draft."

Q: Who said that?

A: "A brigade commander, speaking on condition of anonymity."

Q: What is new about this?

A: It applies to people that aren't there yet. All the soldiers currently in Iraq have to stay there until their units return home. So this is nothing new to them.

Q: But it ends here, right?

A: The Army has called up another 618 inactive reservists who have "valuable skills."

Folks, we got no more soldiers, so we're testing the patience of the ones we have. But we can't admit the problem: the Army is too damn small for what we're asking it to do. People who call for a larger Army (Gen. Shinseki) get ousted. So we're under this cloud of nonsensical up-is-downism, where it is not a danger sign that we're reassigning troops from South Korea and our training centers. Everything is okay, everything is fine, just be sure to register with Selective Service and then go back to sleep.

This is the mirror image of the escalation of Vietnam. At the time, the draft was an ongoing process, so it was less "traumatic" to take more soldiers through the draft than to call up the Reserves. And it happened bit by bit, 20,000 here, 20,000 there, until we had almost 550,000 troops in Vietnam and no prospect for leaving. After Tet, Johnson had his moment of truth -- another 206,000 troops to win, which would mean the Reserves. He backed down, and lost the war. (Whether he could have won even with with the extra troops is a long and involved question indeed.)

Let's hope that our own moment of truth never happens. It certainly won't come before the election. But imagine a second Bush term -- a Bush presidency when he doesn't have to worry about getting re-elected. And ask yourself whether he'll back down at the moment of truth.

 8:59 AM

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