The Boogeyman Cometh

Crisis and Command: A History of Executive Power from George Washington to George W. Bush is remarkable only for its author, John Yoo. Yoo famously worked for the Department of Justice from 2001 to 2003 and wrote memoranda providing legal justification and authority for the torture of captured terrorism suspects. Yoo is also slightly less famous for his opinion that the president, in his capacity as commander-in-chief of the military, somehow gains additional powers during wartime that cannot be checked by Congress. Sure, this opinion has no evidence to be found within the Constitution, but that hasn’t stopped Yoo from continuing to espouse this incorrect and dangerous view of near-total executive authority.

Yoo appeared last night at a meeting of The Commonwealth Club of California, a forum where political and social personalities can give speeches and answer questions (and promote their books). Outside the building were a bevy of protesters calling Yoo a torturer and demanding that he be fired from his job as a law professor at the University of California, Berkeley’s Boalt Hall School of Law.

Yoo’s hour-long speech and Q&A was interrupted about half a dozen times by protesters standing up and shouting at him that he was a torturer, that his victims will get their justice, that he’s a murderer, etc. The forum’s moderator, Stanford Law School professor Allen Weiner, insisted that we keep this civil and not resort to “self-indulgent theatrics.” I quite agreed with him, actually. Honestly, who did these people think they were talking to? If John Yoo thinks he’s responsible for torture, then he already knows it. If he doesn’t think he’s responsible, then the Harvard- and Yale-educated lawyer isn’t going to be persuaded by some people yelling at him. Plus, I paid $12 to listen to John Yoo try to justify his opinions about torture, not to listen to protesters scream.

Anyway, Yoo’s book. In a nutshell, it is about how presidents assuming authority during crisis situations isn’t anything new. Yoo’s philosophy is very deferential to the executive branch; in telling a story about George Washington and the Senate, he insinuated that the Senate was composed of egotistical demagogues who would rather give speeches than get anything done. While that may have been (and continues to be) true, it doesn’t justify seizing power from Congress all in the name of getting things done.

According to Yoo, “good” presidents “fully utilize the powers the Constitution grants them.” He then proceeded to talk not about how presidents used powers granted to them by the Constitution, but about how presidents have taken power in the absence of either Congress taking power first or Congress making a swift decision. This is one of the flaw’s in Yoo’s argument: the examples he gives are of presidents operating in an area of ambiguous power; far from utilizing powers granted to them by the Constitution, people like Washington, Lincoln, and Franklin Roosevelt took power that was not explicitly granted to them. He made reference to a president’s “commander in chief power,” apparently unaware that those powers do not grant a president carte blanche to do whatever he pleases all in the name of expediency.

He takes a dim view of Congress; Yoo would rather have a powerful executive that acts quickly instead of a deliberative body that takes a long time to make decisions. In this regard, he seems to be both a poor historian and a poor lawyer. Slowing down the decision-making process was the whole point of requiring decisions to go through two houses of Congress and a president. That is why Congress, and not the president, is granted sole authority to declare war; the authors of the Constitution wanted a declaration of war to be discussed before it happened, not signed at the whim of a single man. In Yoo’s perfect world, the opposite would be true.

Yoo seems to think there are three classifications of presidents:

1. Good presidents seize power that is not theirs, and good outcomes result.
2. Bad presidents do not seize power when they should, and bad outcomes result.
3. Bad presidents seize power that is not theirs, and bad outcomes result.

Pretty much, the ends justify the means. James Buchanan was a bad president because he didn’t declare war on the South when he could have. Richard Nixon is a bad president because his use of extra-constitutional powers ended badly. But Abraham Lincoln comes out smelling like roses because his use of extra-constitutional powers ended up going well for the United States. Of course, this requires the question, how do we know that good outcomes will result when a president takes power that is not his to take? Yoo didn’t have an answer to that; I do. The answer is, “If the Constitution doesn’t permit you to do it, then you can’t do it.” It’s really quite simple. He chided James Madison for not declaring war on Britain in the War of 1812; Madison didn’t think he had that authority. Why would Yoo think that Madison did have that power? There is no place in the Constitution where the president is granted the authority to declare war; only Congress has that ability. And Madison would be in a position to know what the Constitution said; he wrote the thing, after all.

Yoo’s expansive view of presidential power is not only startling in itself, but it’s startling that it’s so poorly argued. Again, Yoo went to Harvard and Yale. You’d think he’d be better at this. And as a lawyer, you’d think he would care more about the actual language of the Constitution rather than what Yoo would like the Constitution to say. Frighteningly, he dismisses the notion of due processes for terrorism suspects, suggested that our only options are torture and “reading them their Miranda rights.” I expect such a pejorative statement about one of our civil liberties from Sarah Palin, who is untrained in the law and in understanding the Constitution in general, but hearing a Justice Department lawyer speak so scornfully of an important right makes me queasy. If he doesn’t want to enforce that right, then what other rights does he think don’t need to be enforced?

After the speech, Weiner asked Yoo a few questions, both of his own and those that were submitted by the audience. He first took Yoo to task for mentioning only those usurpations of authority that ended well, instead of the ones that ended badly. He cited examples of people who were imprisoned for “sedition,” that most famously ambiguous and jingoistic of charges, for speaking out against World War I. Yoo responded that he did, in fact, mention people like Franklin Roosevelt, who ordered the interment of Japanese Americans during World War II, or Andrew Jackson, who forcibly removed Indians from their own land. “The Constitution doesn’t protect against bad decisions,” he said. I submit that it does: in the form of the deliberation I mentioned above. By requiring that decisions go through several people before being made, the Constitution tries to minimize the damage caused by people making bad decisions.

Then came the torture talk. Yoo admitted that he is not above the law, and if the Obama administration wanted to pursue criminal charges against him, it would be free to do so. Of course, no administration will willfully prosecute former administration officials; that would invite a precedent that people in power do not want. He invoked the spectre of September 11, saying that the War on Terrorism is a different war that required different tactics.

And then he said something interesting. Yoo said that he was merely doing his job. His office was asked by the CIA to decide whether or not they would be able to do certain things to high-value terrorism suspects. Yoo was tasked with coming up for a legal framework for it. Now, it’s highly probable that Yoo merely told them what they wanted to hear, or that they wanted a cover-your-ass type of legal justification. But at the end of the day, Yoo merely provided legal advice to his client, the United States. It was up to the people in power to decide whether or not to implement that advice. Yoo is not the boogeyman that he has been made out to be. While his justification of torture is evil, there are more evil people than him; namely, the people who made the decision to put that advice to work. To see Yoo, he is ambivalent about the torture issue. And he is ambivalent because he doesn’t think he actually did anything wrong. In his mind, he was merely providing advice; the truly bad people were the people who implemented the policy when they could have not implemented it.

And he’s sort of right. While Weiner criticized his memos, saying that any first-year law student would recognize them not as legal memos but “advocacy briefs” that didn’t advise his client about the legal policy risks, at the end of the day Yoo is not the most responsible party here. He was asked for legal advice, and he provided it. Yes, the advice was poorly defended, and yes, it is morally reprehensible for implicitly authorizing torture, but ultimate responsibility rests with the people who took that advice: the president, vice president, attorney general, et al.

This requires the question: should John Yoo be prosecuted for torture, as the protesters wanted? Consider the scenario if Yoo were a lawyer in private practice, advising a client. He may be guilty of shoddy lawyering, but determining actual malice would be hard, given that he can bring a defense that he was giving advice and doing his job like he should have been. (And let’s not start making hyperbolic comparisons to the Nuremberg “I was just following orders” defense; those people materially killed people. As in, performed the action. Yoo, not so much.) At the end of the day, Yoo is nothing more than a sub-par lawyer trying to imprint upon the Constitution a broad interpretation of executive authority that just isn’t there. While he mentioned that the founders of the country abandoned the Articles of Confederation in favor of a stronger central government, he ignores the debates they had about still having a limited government; fresh from their experience under a king, they didn’t want to be ruled by a strong executive again. Hence Congress’ ability to declare war and not the president’s, for example. And let’s not forget that the buck stops with President George W. Bush and former Attorney General John Ashcroft, who both signed off on these memos. While Yoo may have given them advice, they are the ones who took it and implemented it.

Speech Is Free — If You Can Afford It

It is a peculiarity of history that, in the United States, corporations are considered “persons” to the same degree that flesh-and-blood human beings are considered “persons” under the law. In 1886, the U.S. Supreme Court made an innocuous ruling in an unimportant case, Santa Clara County v. Southern Pacific Railroad. The issue at hand — in a new Constitution, California denied railroad companies the right to deduct mortgages from the taxable value of their property — is fairly unimportant. The court reporter, J.C. Bancroft Davis, wrote a note for the headnote of the opinion: “The court does not wish to hear argument on the question whether the provision in the Fourteenth Amendment to the Constitution, which forbids a State to deny to any person within its jurisdiction the equal protection of the laws, applies to these corporations. We are all of the opinion that it does.” Curiously, none of the justices had ever said this; Davis took it upon himself to include this sentence in the headnote, which later became part of the opinion. From then on, all courts could cite this sentence as approval on the Supreme Court’s part that a corporation is a “person.”

A look at the ruling

This week, we found ourselves faced with Citizens United v. Federal Election Commission, a case that should not have had to deal with corporate personhood, but which, nevertheless, has upheld some truly nefarious practices as being completely legal, in spite of their resoundingly negative public policy implications. Just as the Dredd Scott decision upheld slavery even though there was no finding in law for such a practice, the Supreme Court yesterday upheld corporate personhood even though it has no basis in law. (And, for the record, I am not suggesting that slavery is morally equivalent to corporate personhood. Put your pitchforks away.)

The case begins in January, 2008, when the nonprofit corporation Citizens United released a documentary about then-candidate Hillary Clinton, titledHillary. The Bipartisan Campaign Reform Act of 2002 (hereafter, BCRA) prohibits “electioneering communication” within 30 days of a primary election or 60 days of a general election. BRCA also prohibits corporations and labor unions from using their general treasury funds for “express advocacy,” which is explicitly encouraging voting for or against a named candidate. Express advocacy is determined by the “appeal-to-vote test,” which is described in BCRA.

With every grant of certiorari, the Supreme Court publishes a list of “questions presented” for a case. These questions limit the scope of the discussion. In the case of Citizens United, the Court wished to deal with only four issues:

1. Whether “disclosure requirements” for “electioneering communications” were resolved by the previous challenge to BCRA, McConnell v. FEC;
2. Whether the disclosure requirements impose an “unconstitutional burden” on communications that are not express advocacy (the appeal-to-vote test);
3. Whether the parameters of the appeal-to-vote test are clear enough;
4. Whether the Hillary movie is subject to regulation under BCRA’s “express advocacy” restriction.

If you didn’t notice the words “free speech” and “constitutionality of BCRA,” then you’re not alone. This case was never about the constitutionality of the BCRA per se; it was always about whether or not Hillary was electioneering communication. Period. End. I have always been of the opinion that it was not, since a documentary that casts Hillary Clinton in a negative light is not necessarily an entreaty to vote against her.

In addition to limiting when electioneering communication could take place, BCRA placed limitations on the amount of money that could be donated to political parties. Referred to as soft money, these donations were theoretically limitless before BCRA; the point of the legislation was to protect the political process from undue financial influence. BCRA also prohibited corporations from funding political advertisements, which is why, in the 2004 election, so many single-issue groups popped up, like Swift Boat Veterans for Truth. These “527 groups” (so named for the section of BCRA that allowed them to exist) filled the void left by corporate-sponsored political ads.

Justice Anthony Kennedy and the conservative wing of the Supreme Court disagree with all of this. From the outset, they decided that the case could not be decided without bringing the First Amendment into play. As such, they broadened the scope of the case from the four questions presented above to include the constitutionality of the BCRA’s spending limits.

The ruling comes in sixty-five-dozen parts. Hillary does constitute “express advocacy” under the BCRA and is therefore illegal. However, the free speech implications of BCRA must be looked into; specifically, the corporate expenditure ban. Kennedy, et al. suggest that, while limitations on corporate expenditures do not constitute prior restraint per se, the complexity of the regulations are tantamount to prior restraint (the legal term for censorship). Therefore, § 441b of BCRA — the part limiting corporate expenditures — is unconstitutional because its “prohibition on corporate independent expenditures is an outright ban on speech, backed by criminal sanctions.” This means that the restrictions on campaign expenditures by corporations upheld in 1990’s Austin v. Michigan Chamber of Commerce — for the purpose of preventing unfair corporate influence — is overruled. So much for stare decisis.

Some speech is freer than other speech

Throughout the opinion, Justice Kennedy cited the First Amendment and the need to prevent censorship as the reason for the ruling. The implicit argument is that any regulation of speech amounts to prohibition of speech. Corporations were not permitted to use general treasury funds to finance candidates or messages. They were, however, permitted to form their own political action committees (PACs). This is exactly how nonprofit corporations are currently required to work: in exchange for tax-exempt status, nonprofits (which include churches) cannot use their general treasury funds to lobby for candidates or legislation. But they can form affiliated lobbying organizations, so long as the money for the political organization does not come from the tax-exempt organization. (For example, the ACLU is not tax-exempt because it lobbies for candidates and legislation; however, the ACLU has an affiliate organization called The ACLU Foundation that is tax-exempt.)

Whither nonprofits? If for-profit corporations cannot be limited in the amounts of their expenditures, why should nonprofits be so limited? Whyshouldn’t churches be able to implore their congregations to vote for this candidate or that candidate? Under Citizens United, such a restriction amounts to censorship.

The majority opinion also ignores the “reasonable restrictions” that have always been placed on speech. These restrictions limit the “time, place, and manner” of speech because, to use the textbook example, yelling “Fire!” in a crowded theater could lead to people’s deaths. Religious organizations cannot proselytize in airports because — guess what? — airports are not a “public forum.” (Interesting fact: due to the language of the California Constitution, California is the only state in which a public shopping mall is a “public forum.”) You can shout all you want on a street corner, but your ability to use a megaphone can be restricted by law due to the nuisance a megaphone causes. Corporations themselves are even restricted in advertising; “commercial speech” must be true, so that a company cannot make outrageous claims about its product or use advertising to slander other products. All of these “reasonable restrictions” are in place to balance the free speech needs of a speaker with the needs of government to protect the rights of others.

Using the Constitution to rule on issues of corporate personhood is stupid on its face; the Constitution does not deal with the issue, and neither did the authors of the Constitution anticipate that corporations would need to be governed in such a way. Using the trope of a “person” to describe a corporation is advantageous in that it bestows upon the corporate entity the ability to file lawsuits. But the Constitution is ill-equipped for the job of deciding whether or not a corporation is a person. This is where, contrary to Chief Justice Roberts’ statement that justices are like umpires, the Supreme Court needs to make up the law. In the absence of guidance from the Constitution or from Congress, the Court becomes an instrument of public policy, and it can use that power for good or for ill. Specifically, the Court can decide to do what is best for the nation. In this case, it has not. Speech is not protected by allowing corporations — who, again, can neither vote nor hold public office — to influence elections. We do not allow non-citizens to vote, but nor do we allow them to donate money to campaigns (with the exception of permanent residents, which is a poor idea that should be changed) or hold public office.

The majority would like this case to turn on the issue of free speech, but more basic than that, it should turn on the issue of whether or not corporations areentitled to that freedom. I submit that they are not. The ball is now in Congress’ court to craft a statute that limits the rights of corporations and affirms, once and for all, that they are not “persons” the same way that flesh-and-blood humans are “persons.” Thomas Jefferson, et al. believed that humans were entitled to fundamental rights by virtue of their status as reasoning beings. Corporations cannot reason; they have no mind of their own. They are no functionally better than sock puppets, and the last time I checked, Kermit the Frog was not allowed to donate money to a political campaign.

Corporations’ rights must be limited and enumerated. While it is convenient for them to have some of the rights of human beings, it is not necessary — nor is it good for the public at large — for them to have all of the rights of human beings.

Proposition 8 Gets Kicked Up a Notch

A quick recap. In May 2008, the California Supreme Court ruled that the California Constitution requires that same-sex couples are entitled to “marriage” just as much as heterosexual couples. Soon thereafter, opponents of the ruling began the process of placing a proposed constitutional amendment on the November ballot, which would explicitly prohibit same-sex marriage. The ballot initiative was placed on the ballot as Proposition 8 and passed by a disturbing margin. Same-sex marriage proponents went to court in an attempt to argue that the initiative marked such a fundamental change in civil rights protections in California that it should be considered a revision, not an amendment. The California Supreme Court disagreed.

And now we’ve reached U.S. District Court for the Northern District of California, the Honorable Judge Vaughn Walker presiding. Judge Walker is a fan of the law, not of politics. He has shown that he has no qualms about ruling against the Bush administration when it comes to warrantless wiretapping; however, once Congress passed a law granting the administration immunity from prosecution, Judge Walker was forced to dismiss the case. Whatchagonnado, eh? (Michelle Malkin has unsurprisingly called Judge Walker a “liberal activist judge” despite his being a Republican. You stay classy, Michelle.)

Judge Walker heard oral arguments this morning in Perry v. Schwarzenegger, in which Judge Walker will decide whether or not Proposition 8 violates the federal Constitution’s Fourteenth Amendment guarantee of equal protection and Fifth Amendment guarantee of due process. A motley crew of litigants will appear before Judge Walker, including former U.S. Solicitor General Theodore B. Olson, a George W. Bush appointee, who will be arguing against Proposition 8.

Judge Walker wanted the trial broadcast on YouTube, but the U.S. Supreme Court, which has ultimate jurisdiction over all federal courts, blocked the coverage.

The trial is a very big deal for civil rights advocates. If the case were to make it to the U.S. Supreme Court (which it will no matter what; neither side would fail to appeal if it lost), every state statute and constitutional amendment forbidding same-sex marriage would hang in the balance, as would the federal Defense of Marriage Act, which prohibits the federal government from granting the rights of heterosexual marriage to same-sex couples.

Highlights from the oral arguments include Judge Walker wondering why the state even needs to be in the business of regulating who can marry whom, and how anti-miscegenation laws were once believed to be just as valid as anti-same-sex marriage laws are today.

Charles Cooper, speaking on behalf of Proposition 8, framed the defense this way: the voters approved it, so it’s the law now. And same-sex couples have California’s domestic partner statute, which explicitly states that no right given to married couples by the state can be denied to domestic partners. Cooper also argued that same-sex marriage laws are different from miscegenation laws because the former are designed to preserve “traditional marriage.” Cooper then raised the spectre of marriage being “pro-child,” but curiously does not address why, if that is true, the state does not require fertility testing as a condition of obtaining a marriage license. Clearly, if one of the state’s reasons for regulating marriage were to promote mating, then it would not permit infertile couples to marry. This issue is often not addressed by proponents of the marriage-is-for-children argument.

How could this end up? Lots of ways. Assuming that marrying someone of the same sex is a right (and, indeed, assuming that marriage is a right at all), the amendment is unconstitutional on its face. It denies “equal protection of the laws” to same-sex couples and denies them “liberty” without “due process of law.” The appropriate avenue for this to be legally supported would be the same way that anti-miscegenation laws were struck down.

The court could rule a different way; namely, that same-sex marriage is not a right. This would be difficult to support, given the fact that sexuality — like skin color, gender, or ethnicity — is clearly not a choice. It should also be disturbing to Judge Walker that the California Constitution allows a simple majority to deprive a minority of “life, liberty, or property” without “due process of law.”

The trial continues.

Let’s Talk About Sonia Sotomayor Like Grown-Ups

During his confirmation hearing in 2005, John Roberts likened the job of a Supreme Court justice to that of a baseball umpire:

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire.

As I wrote a few weeks ago, if there’s anything the media love when reporting on the law, it’s simplicity, either because they don’t understand or don’t have the column-inches for thorough understanding. The umpire analogy was well-received by the mainstream media: “We’re Americans, we understand baseball, but we don’t understand the federal judiciary. Judges make rulings; umpires make rulings. Therefore, umpires are like baseball judges, right?”

Not so much. The baseball analogy fails because appellate court judges, and Supreme Court justices in particular, can re-write the rules of the game, provided they believe those rules to be wrong in the first place. Umpires are not at liberty to “interpret” anything; theirs are facile rulings. They may rule that a particular pitch was a strike, but they may never re-define what constitutes a “strike.” If we really must reason by analogy (which we shouldn’t), then umpires are most like trial court judges. They deal with the object of the law, whereas appellate court judges deal with the law itself. This is why appeals of a trial court ruling do not bring with them any new evidence or new substantive hearings; as far as the appellate court is concerned, the issue of what happened has been settled, but the issue of how the law applies to what happened has not. By the way, this is basic stuff that everyone should know. It’s important to know, since it defines how our judicial system works.

Courts hear a few different kinds of cases. They hear criminal cases, in which someone has violated a law and the plaintiff to the suit is the executive branch of the government, which is charged with enforcing the law. They hear civil cases, in which two parties have a dispute and request the mediation of a neutral decision-maker. Sometimes, in a civil case, the law itself is the subject under discussion, as in, “I think this law violates the Constitution,” or, “I think that thing you did is unconstitutional.” The Constitution is sacrosanct; no law may conflict with it, and when there is a conflict, the Constitution must always win. For this reason, we have tried to imbue the Constitution with what we believe to be the best principles of good governance. When those principles are in the Constitution, then we may say that we are not adjudicating based on just a document, but we are adjudicating against our values, since the ideal Constitution would be synonymous with our values.

The vast majority of judges are really smart people, and Supreme Court justices are the best of the best. I mean that even for the justices I don’t care for, like Roberts, Alito, Scalia, and Thomas. (This is probably why the nation was outraged when President Bush selected Harriet Miers, a true intellectual lightweight, to occupy the nation’s highest bench. It was painfully, painfully obvious that she was nowhere close to qualified to occupy the position. Even conservative commentator George Will said that she was not among the 10,000 most qualified people in the country.) Judges are learned people who make thought-out, reasoned arguments. What it boils down to is whose arguments are most convincing. Ideally, the arguments that best address the law should be most convincing. But law isn’t the only thing that goes into legal opinions, as we shall discover.

For one thing, the law can be vague. When is a government activity a “public benefit” and when is it “general welfare”? The Supreme Court disagreed over these definitions in Kelo v. New London. The court decided (wrongly, in my opinion) that the unsecured promise of future economic revitalization was “public benefit” enough to allow the city of New London, Connecticut to turn over private property for development to Pfizer. The Supreme Court has spent many years deciding what is “necessary and proper” and when an action interferes with “interstate commerce.”

In his book The Invisible Constitution, law professor Laurence Tribe argues that the Constitution is just as much composed of unwritten rules as written ones (kind of like how the universe is composed of both matter we can see and “dark matter.” Hey, analogies are fun!). Roe v. Wade was decided based on legal principles that weren’t necessarily written down, but that must be inferred to exist based on the tone of the rest of the Constitution. Add up amendments 1, 4, 10, and 14, and you get a right to privacy that, while not explicit, is clearly lurking beneath the surface. Appellate courts tend to examine intent more than trial courts, and rightly so, since their rulings will have effects that reach much further than the individual case. (More on that later.)

Were you aware? The Constitution contains no explicit language permitting federal appellate courts to decide the constitutionality of statutes, but Chief Justice John Marshall, in Marbury v. Madison, suggested that judicial review was a necessity for proper enforcement of those things that were written down in the Constitution. No one would argue that, because there is no explicit permission granted to the judiciary to engage in judicial review, the courts should not engage in the practice. If someone did argue that, then the next question would be, “So who will tell us what is constitutional or not?” Chief Justice Marshall had the answer already prepared: “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.” This rule has served us well for over 206 years.

Where is this going? Sonia Sotomayor has been criticized for suggesting that judges “make law.” Here is a transcript of the relevant portion of her comments, in context this time:

All of the legal defense funds out there, um, they’re looking for people with court of appeals experience, because it is– court of appeals is where policy is made. And I know this is on tape and I should never say that, because we don’t “make law,” I know. I know. I’m not promoting it and I’m not advocating it, I’m– you know. Having said that, the court of appeals is where, before the Supreme Court makes the final decision, the law is percolating. It’s interpretation, it’s application, and Judge Ocero’s right. I often explain to people, when you’re on the district court, you’re looking to do justice in the individual case, so you are looking much more to the facts of the case than you are to the application of the law, because the application of the law is not precedential. So the facts control. On the court of appeals, you’re looking to how the law is developing so that it will be applied to a broad class of cases.

Appellate courts exist because the other branches of government (including the judiciary) make mistakes. No one would suggest (hopefully) that the legislation that comes out of Congress is perfect. Judges are there to correct errors; this is called “relief.” Sometimes, the relief comes in the form of an outright overruling of legislation that Congress has passed. Other times, the court doesn’t, as in the case of Ledbetter v. Goodyear. While the Supreme Court certainly did not endorse pay discrimination, the majority ruled that the Supreme Court did not have the power to grant Ledbetter the relief she sought due to the language of the legislation. Appropriate relief, they said, would be for Congress to amend the law, which it did earlier this year. This is an example of the government working correctly, as much as some people believe that the court should have immediately overturned the legislation.

Judges do not make law, but they do make policy, which Sotomayor also said. Sometimes they have to, because Congress has made incorrect policy, for whatever reason. But anyone who suggests that judges do not sometimes engage in policymaking is being either ignorant or disingenuous. Each branch of government makes policy using the tools at its disposal. Note the use of the word “policy” and not “legislation”; “policy” is a much broader term that encompasses the many kinds of enforceable legal principles that exist in government. Every branch makes “policy,” whether through executive orders, statutes, judicial opinions, public referenda, and constitutional amendments. Not all policy is of the strictly legislative variety.

Sotomayor has also been criticized for suggesting that Latinas make better judicial decisions than white men. The New York Times recently published a transcript of the 2001 Judge Mario G. Olmos Memorial Lecture at Berkeley Law School, during which the comments were made. Her lecture was, among other things, about the lack of diversity in the federal court system, and how that impacts judicial opinions. “Diversity” is important, she said, because “in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought.” But why is that diversity of opinion important? It goes back to the wiggle room that all judges have when interpreting the law and potentially making policy. That wiggle room allows for a range of options, all of which are perfectly legal and perfectly defensible. Judges’ backgrounds and experiences influence where they fall within that range. They can, for example, lean toward the side of punishment, or they can lean toward the side of rehabilitation. Both fall within the range of legal possibilities, but judges with different experiences will necessarily have different opinions on which solution is most appropriate. (Or, to bring this outside the realm of race, let’s talk about technical savviness as another kind of diversity of opinion: a judge who understands technology might rule that a minor who “sexts” another minor should not be prosecuted as a sex offender.)

Even Justice Clarence Thomas, who is among the most conservative of the Supreme Court justices, may have brought his experience as a black person to bear on the issue of whether or not cross-burning was protected by the First Amendment. In 2002, Justice Thomas took a break from being famously quiet during oral arguments to declare, “This was a reign of terror, and the [burning] cross was a symbol of that reign of terror. [...] It is unlike any symbol in our society. [...] There was no other purpose to the [burning] cross. There was no communication of a particular message. It was intended to cause fear and to terrorize a population.” Was this an example of someone’s experience informing his interpretation of the law? Potentially. (By the way, in the case, Virginia v. Black, the Supreme Court ruled that a Virginia statute prohibiting cross-burning was unconstitutional. Justice Thomas dissented, writing, “A conclusion that the statute prohibiting cross burning with intent to intimidate sweeps beyond a prohibition on certain conduct into the zone of expression overlooks not only the words of the statute but also reality.”)

Here’s the money quote that some people are upset about:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O’Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O’Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Sounds pretty bad, doesn’t it? After that, she says:

I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. [...] However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Unfortunately for the people who would like to attack her comments, Sotomayor was not talking about all cases, but rather sex and racial discrimination cases specifically, suggesting that a woman who has had to experience sex discrimination herself is more capable of understanding the reality of sex discrimination than a man who has never experienced it, or studied it only in the abstract. I refer to the Justice Thomas paragraph above.

So no, Sonia Sotomayor is not a racist. And no, she will not legislate from the bench. These two arguments are ridiculous, and it’s shameful that people (like me!) should have to spend so much time refuting them. But as her confirmation hearing looms, the arguments will appear again. It’s important to keep in mind the qualities that make a good Supreme Court justice. Should a justice follow the legal model of applying the law based on pure legal reasoning? Should a justice follow the attitudinal model of using his attitude and values to decide a case? Lawrence Wrightsman, in The Psychology of the Supreme Court, suggests that both must be melded into a human model of what it means to be a justice, since “[t]he legal model bleaches the decision-making process of its colorful human ingredients; it can be portrayed as an ultralogical, if not mechanical, analysis of applications of relevant statutes and decisions.” The attitudinal model, “taken to its extreme, fails to recognize the constraints upon the judge as a professional person.” Melding the two approaches creates a justice who applies the law using reason and logic, but also understands that her opinions will have real consequences for real people.

Judge Sotomayor is definitely a human judge. But then again, all judges are human. While we all acknowledge that judges must use reason to decide their cases, we are loathe admit that, as humans, they have biases that also influence those decisions. Even Justice Scalia, champion of “originalism,” has biases. At least Judge Sotomayor is up front about those biases. And in being up front about those biases, she can be held accountable to them. In her 2001 speech, she said, “I willingly accept that we who judge must not deny the differences resulting from experience and heritage but attempt, as the Supreme Court suggests, continuously to judge when those opinions, sympathies and prejudices are appropriate.”

Her opinions are sound (if a little conservative, actually), her experience unquestionable. Her judicial philosophy is, actually, no different from that of other justices, judges, lawyers, and professors around the country and the world. There’s no reason why she shouldn’t succeed Justice Souter and do an excellent job.

Sotomayor ‘Unpredictable’? Only If You Don’t Read the Court Decisions

One of the things are media are not good at is covering nuance. Once you add a couple conjunctions and independent clauses to a sentence, people’s eyes glaze over. There’s no better example of this than “mainstream media” reporting of court cases. Take this article from The New York Times about Sonia Sotomayor’s “unpredictable” legal opinions:

In a 2006 property rights case, she upheld a town’s effort to take private property for redevelopment. But in 2002, she supported property rights in a case involving impounded cars.

With only that information, it sure sounds like she’s crazy. But appellate court opinions regularly exceed 50 pages for a reason: there’s a lot to talk about, there are details to pay attention to, and the distinctions being made are incredibly fine — finer than a 750-word newspaper article can go into, either by design (it’s only 750 words, after all) or accident (does the person writing the story know about the law?).

Well, it’s a good thing they’re hopeless, because that gives me something to write about.

The “2006 property rights case,” Didden v. Village of Port Chester, came directly after the Supreme Court’s abominable 2005 decision in Kelo v. New London, in which the court’s liberal wing was actually the stupid group and where Justice Clarence Thomas wrote something worthy of praise. (I wrote about this case back in 2005.) First of all, the 2006 opinion isn’t even an opinion! It is properly called an “order.” Second, Sotomayor was part of the three-judge panel that heard the case, but that means nothing. The order, since it was nothing more than an order from the court, was signed by the clerk and not by any individual judge. Guilt by association, perhaps?

But getting to the substantive issue, the circuit court would have been hard-pressed to make a ruling that directly contradicted a Supreme Court decision. The case would have been appealed, and the Supreme Court would have decided the same way again. Blame the Supreme Court for such a terrible decision, not the Second Circuit for upholding it (this is the doctrine of stare decisis that the Senate Judiciary Committee brought up so often during the Roberts confirmation).

The Wall Street Journal Law Blog published an article titled “Will Didden v. Port Chester Be Judge Sotomayor’s Kelo Decision?” The short answer is “Yes, it will,” but only because, as a circuit court judge, Sotomayor is bound — again, by stare decisis — to uphold a decision that is both prior and from a higher court. What do conservatives want? If she had decided to overturn the precedent set by Kelo, then that would have been true “judicial activism,” to use the Right’s own empty language. But now they’re upset that she didn’t overturn the decision? Perhaps if she had been a member of the Supreme Court, she would have had a different opinion, but as a member of the Second Circuit, she was required to uphold the Supreme Court’s decision, something that the Second Circuit explicitly stated in its order: “the recent Supreme Court decision in Kelo v. City of New London [...] obliges us to conclude that [plaintiffs] have articulated no basis upon which relief can be granted.” But then again, the entire issue is moot because (1) there was no opinion issued; and (2) Sotomayor cannot be given exclusive ownership of the order, no matter how much her critics (or even misunderstanding journalists) would like to give it to her.

The 2002 case “involving impounded cars” — Krimstock v. Kelly – was another U.S. Second Circuit Court opinion of a three-judge panel, but at least an opinion was issued for this one. At issue was New York City’s authority to seize property used in the commission of a crime; to whit, vehicles driven by people arrested for DWI. Felony complaints required that the accused be afforded a “prompt” hearing to determine the legitimacy of the seizure; misdemeanors, which included DWI charges, had no such requirement. DWI defendants could challenge the seizure only after the city sought something called civil forfeiture, which, in the case of the six plaintiffs in this case, ranged from three months to a year after their DWI arrests. But even then the vehicle’s return is not ensured:

Upon seizing the vehicle, the police issue the arrestee a voucher for the vehicle and any other seized property. If a claimant makes a formal demand for the return of the vehicle, the City has twenty-five days in which either to initiate a civil forfeiture proceeding under the City’s Administrative Code or to release the vehicle. Even if the City chooses to commence a civil forfeiture proceeding within the twenty-five day period, however, the proceeding is commonly stayed until the criminal proceeding concludes. In a forfeiture proceeding, the City “bear[s] the burden of proving by a preponderance of the evidence that [it] is legally justified to continue to retain the property.” [Citations removed]

Sotomayor and the two other judges who heard the case found that this policy was ridiculous because an individual should not be denied the use of his or her property while a case is pending, especially given that “[a] car or truck is often central to a person’s livelihood or daily activities,” and given that “such possession may ultimately prove improper.”

Makes sense to me. Especially since some of the plaintiffs were making car payments on a vehicle they couldn’t use because it was impounded! Sotomayor, writing the opinion, acknowledged the legitimacy of seizing the vehicle in the first place (upon arrest for DWI), but then wondered why the police needed to continue to hold the vehicle pending trial. The court’s ultimate concern in this case was that there was no pre-emptive method for the accused to contest the continued holding of the vehicle, especially when it could take months or years for it to be returned.

The moral? Don’t believe what you read about court cases. As I’ve demonstrated here, two seemingly conflicting rulings on a “2002 property case” and a “2006 property case” turn out not to be so conflicting, or even rulings. Judge Sotomayor is not only smart, but eminently qualified, and makes her rulings based on the law, while giving the benefit of the doubt — where the law permits such benefit to be given! — to plaintiffs. What good does it do to err on the side of harshness, as Justices Roberts and Scalia do?

You Can Indefinitely Detain Some of the People Some of the Time

One of the larger problems in my life is that, whenever I want to write about a civil liberties issue, Glenn Greenwald has already beaten me to it. And written it better than I could have. Greenwald is a former civil liberties attorney and number one defender of The Constitution. He is not a Democratic apologist. He heavily criticized President Bush. And he is now heavily criticizing President Obama. In Greenwald’s opinion, suggesting that enforcing our laws is “radical” or “extreme” or “left-wing” is disgusting. When did enforcing the law become a partisan issue? He also writes about the media and how he believes that the media are beholden to the political class in a horrible, symbiotic relationship that ensures that the Fourth Estate will never actually hold our leaders accountable for anything.

And I agree with him on all of it. Absolutely all of it. Darn him! Darn him to heck!

For example, Glenn and I were furious this last week when Sen. Harry Reid kept using a verb that could just as easily have been crafted by Karl Rove. The verb was “release,” as in, “Terrorists from Guantanamo Bay will be released into the U.S.” Many pundits, and even Obama himself, used the verb “release” to describe what the government will do to detainees in Guantanamo Bay now that the administration has re-iterated its desire to close the prison there. “Release” evokes images of terrorists approaching the shore on boats and then merrily skipping off, free of shackles and permitted to wander throughout the country, blowing up whatever they please.

Let it be known: terrorists will not be released into anything. They will be shackled, they will be monitored, they will be in our custody and under guard as they are transported from Cuba to the mainland. And once on the mainland, they will continue to be monitored and under guard as they are moved to whatever prison they will occupy next. Those who believe that terrorists will be “released” in the United States are either negligently ignorant, willfully stupid, or maliciously misrepresentative. One guess as to which one describes Harry Reid.

Prior to September 11, 2001, we believed in something called “due process.” It’s a Fifth Amendment guarantee:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [Emphasis mine.]

The Supreme Court has ruled before that, since the Constitution uses the word “person” and not “citizen”; and since it would have been very easy to use the word citizen, but person was used instead; and since the author of the Bill of Rights, James Madison, was a lawyer by trade and a very smart man and probably not prone to misusing words; that it therefore follows that the Bill of Rights was intended to apply not only to U.S. citizens, but anyone in the United States. This is affirmed in the Fourteenth Amendment, which prohibits a state to “deny to any person within its jurisdiction the equal protection of the laws.” Again, note the use of the word person where citizen could have been used, but wasn’t.

In 1993, the World Trade Center was bombed by a group of terrorists led by Omar Abdel-Rahman, better known as The Blind Sheik. The bomb damaged a parking garage and did kill some people, but it didn’t come close to bringing the building down. Abdel-Rahman and three other accomplices were indicted by civilian prosecutors, accused of breaking publicly-accessible laws, tried in open court inside the United States, under the guidelines of the Constitution and the rules of U.S. civil procedure, and sentenced to U.S. civilian prisons. After 1993, the nation was not less safe because Abdel-Rahman and his accomplices were being imprisoned inside the United States. Abdel-Rahman is housed at the federal Supermax prison in Florence, Colorado.

In 1995, Timothy McVeigh and his accomplice Terry Nichols parked a rental truck containing a homemade fertilizer bomb in front of the Alfred P. Murrah Federal Building in Oklahoma City. The bomb exploded, killing 168 people, injuring 800 others, and destroying the building. Nichols and McVeigh were indicted, again by civilian prosecutors, accused of breaking publicly-accessible (that is, not secret) laws, tried in open court, and sentenced to U.S. civilian prisons. McVeigh was given the death penalty. The nation is not less safe because Terry Nichols is housed inside the United States.

I think you get the point. Eric Rudolph, the 1996 Atlanta Olympics bomber; Wadih el-Hage, accused of involvement in the 1998 U.S. embassy bombings; Ted Kaczynski, the Unabomber; Richard Reid, the “shoe bomber”; Jose Padilla, the “dirty bomber.” All of these people are being held inside the United States right now, and no one — no one! — is arguing that the United States is less safe because of it. To suggest that allowing Dangerous Criminals inside our borders is silly; there are already more dangerous criminals here!

It’s also worth noting that, with the exception of Reid and Padilla, all of the above criminals were convicted using the 200-year-old, civilian due process proscribed by the Constitution. Reid and Padilla were held incommunicado in U.S. navy brigs. The government eventually dropped its terrorism charge against Padilla, who was alleged to be making a “dirty bomb” (a traditional bomb filled with radioactive material; it would not cause a nuclear explosion, but it would spread radiation). Since the government didn’t have enough evidence to prosecute the terrorism charge, the charge was dropped. Padilla, nevertheless, was sentenced because even though terrorism is a crime, all the things that terrorists do are already illegal, anyway! Blowing up a building is no more illegal because it was done with a political agenda in mind.

The assertion that Terrorists need to be tried in a special, extra-Constitutional way, held without charge, subjected to torture, and perhaps never afforded a trial is ludicrous. In the paragraphs above, we have ample evidence proving that trying terrorists in civilian courts, using civilian rules, does work. The United States is not less safe. And furthermore, housing convicted terrorists in civilian prisons does work. And furthermore, charging them and trying them does work. For people like Vice President Cheney to suggest that using due process makes us less safe just goes to show us how out of his mind the man is. He would probably be happier living in Iran, where the executive has unlimited power to imprison people for made-up reasons, or no reason at all. Here in the United States, we do not convict people merely on the confidential say-so of the executive branch; that’s the way dictatorships (you know, those countries that we purport to be fighting against — unless your name is “Saudi Arabia”) behave. Here in the United States, it is up to the executive to prove that the accused is guilty. Guilt is never assumed — unless, apparently, you committed a terrorism-related crime after September 11, 2001. Or you were linked to terrorism, no matter how specious the link or how questionable the evidence. Or you associated with terrorists, even if you didn’t know they were terrorists. Or you were planning on committing a terrorism-related crime, even if “terror” wasn’t your goal. Or, as Obama articulated yesterday, the government is afraid you might commit terrorist crimes in the future. Yes, the possibility of future law-breaking is now grounds not only for detaining someone, but for never giving them a trial or even a preliminary hearing to prove that they did what they were accused of doing. As long as the government says “Terrorist,” an individual’s guilt is implicit and that person will never, ever be released. (More likely, as Greenwald observed, you will be imprisoned indefinitely if the government can’t guarantee that it will win a trial. Do show trials sound like the hallmark of a vibrant democracy or a repressive despotism?)

Obama’s plan is definitely a step in the right direction, but it’s not nearly enough. In order to restore the rule of law to this out-of-control country, he must admit that there is no situation in which a person should be held indefinitely; habeas corpus is a right guaranteed to anyone in U.S. custody, and the U.S. Supreme Court has affirmed as much. Obama apologists have used exactly the same rhetoric President Bush used to support Obama’s case; namely, “we are at war.” And these prisoners are prisoners of war; therefore, they do not have the right to contest their detention, and they may be detained until the end of the conflict. Seeing as how we’re waging a war on an abstract idea, it’s hard to see exactly when (or if) this war will be over.

Are we now in the business of imprisoning people indefinitely? What does that say about us as a nation? What will historians say fifty years from now? Today, we regard the internment of Japanese-Americans during World War II as deplorable and appalling, but at the time, it made sense to our political leaders. We have the ability to stop lawlessness right now instead of musing, decades later, about the mistakes we made, and saying, “We’re so sorry. We’ll do better next time.” Unfortunately, every time “next time” comes up, we fail again (we began failing as early as the John Adams administration, with the passage of the Alien and Sedition Acts). Obama offers the promise of actually living up to our ideals as a country. Rather than fumble to attempt to explain and excuse his actions, we must ask, “Is what he is doing right? Is it legal?” And, as Glenn Greenwald wonders, “What would I have said if George Bush and Dick Cheney advocated a law vesting them with the power to preventively imprison people indefinitely and with no charges?”

Please do read Glenn’s article. It is a thorough, lucid, and amazing analysis of Obama’s position on these detainees, with some very tough questions and conclusions that must necessarily follow from that position. I do not believe they are questions that Obama and his supporters want to ask, because they lead to the very same places formerly occupied by previous administrations. At the end of the day, Obama & Co. are saying, “Yes, it is okay to detain some people indefinitely, without the government ever having to prove that they committed a crime.” Not only is that assertion illegal, it’s un-American, and if we continue down that road, it makes this country not only less safe, but less worth defending.

Constitution 7, Limitless Executive Power 0

Every time — every single time — that President Bush asserted some unlimited executive power in the name of “national security” or “terrorism,” a federal court has shot him down. Let’s take a walk down memory lane.

2004 marked the first big loss for the Bush administration in the judiciary branch. Hamdi v. Rumsfeld was the first major challenge to President Bush’s self-asserted national security powers. In that case, the Bush administration asserted that Hamdi, an alleged terrorist captured in Afghanistan, had no right to contest his detention. The U.S. Supreme Court disagreed and said that Hamdi, an “enemy combatant,” did have the right to contest his detention before a neutral decisionmaker. In Boumediene v. Bush (2008), the U.S. Supreme Court ruled that prisoners held in Guantanamo Bay did have the right to habeas petitions, and the Military Commissions Act’s hearings were unconstitutional. In Rasul v. Bush (2004), the Court struck down legislation that ostensibly prevented the federal courts from ruling on whether or not Guantanamo detainees were wrongfully imprisoned. Judge Anna Diggs Taylor,of the U.S. District Court for the Eastern District of Michigan, ruled in 2006 that the Bush administration could not use the state secrets privilege to dismiss evidence in a case involving warrantless wiretapping and surveillance of U.S. citizens. In 2006, the Supreme Court ruled, in Hamdan v. Rumsfeld, that Congress did not intend to use the Detainee Treatment Act to strip the Supreme Court of its authority to hear pending habeas petitions from prisoners in Guantanamo Bay. Also in 2006, Judge Vaughn Walker of the U.S. District Court for the Northern District of California, refused to dismiss a civil suit against AT&T for warrantless wiretapping. The Bush administration had again asserted the state secrets privilege.

And now we come back to present day. President Obama’s Justice Department has, much to my chagrin, continued — and in some cases, exceeded — the use of the state secrets privilege. It even wanted to have an entire case dismissed on the grounds that the evidence to be used was classified under the state secrets privilege. The Ninth Circuit Court of Appeals down on Hyde Street in San Francisco — right across the street from the public library — ruled today that Obama could not have the case dismissed due to “state secrets.”

Judge Michael Daly Hawkins, writing the unanimous opinion of the three-judge panel, didn’t buy the Justice Department’s argument that “the very subject matter” of the case was so confidential, and could be so potentially damaging to national security, that it couldn’t even be discussed in court. The “subject matter” was Jeppesen Dataplan’s involvement in the “extraordinary rendition” of terrorism suspects in U.S. custody to CIA “black sites” around the world, where they would be presumably tortured. (Jeppesen Dataplan is an oddly-named subsidiary of Boeing, whose airplanes were used to transport suspects to other countries for torture.)

The Ninth Circuit was quite strong in its affirmation that the Obama administration was making things up (the judges rejected the “very subject matter” argument because “it is unsupported in the case law”; i.e., Justice Department lawyers made it up). It was also strong in its affirmation of the separation of powers principle. The job of the courts is to interpret the law. The job of the executive is to enforce the law. For Obama to assert that there exists a scenario in which the court cannot be allowed to interpret the law is a gross overreach of presidential power that violates the separation of powers principle.

Oh, and they took time out of their busy schedule to say that “arbitrary imprisonment and torture under any circumstance is a ‘gross and notorious … act of despotism.’” (Bonus points: that was part of Justice Scalia’s dissent in Hamdi v. Rumsfeld).

What’s interesting about Obama’s argument here is that he wants to use the state secrets doctrine to prevent even the confirmation or denial of the fact that people were extraordinarily rendered. We’re not even talking secret evidence here; Obama says that it is detrimental to national security to say merely that something happened or not. Judge Hawkins will have none of this: “The state secrets privilege has never applied to prevent parties from litigating the truth or falsity of allegations, or facts, or information simply because the government regards the truth or falsity of the allegations to be secret,” he writes. Sure, the state secrets privilege can be used to suppress evidence, but not to suppress the fact that something happened. To go into the nitty-gritty of how extraordinary rendition works (which would be evidence) might be damaging to national security, but merely stating that it happens is not damaging to national security. (What it is damaging to is the country’s public image, and it opens up the government to litigation. Let’s be clear, here: this has nothing to do with actual national security and everything to do with damage control, something the Ninth Circuit hints at in the opinion.)

Finally, the Ninth Circuit addresses the fine distinction between “classified” and “secret.” Classified information is ipso facto subject to a whole host of laws, many of which give the executive branch the authority to decide what to classify and declassify. The distinction becomes important to this case because the government argues that courts should defer to the executive, per the Freedom of Information Act, regarding what should or should not be “secret,” since all secret things are also necessarily classified. The government cannot seriously argue, says the court, that information that has been made public (as this was; The New York Times reported years ago on the existence of this rendition program) is still “secret,” and by way of “secret,” therefore “confidential.” It does not follow that, because the executive says something is confidential, the courts must necessarily accede and declare that confidential thing to be secret within the scope of a judicial proceeding.

The court emphasized that its ruling was limited only to the issue of whether or not the state secrets privilege could be used to dismiss the case wholesale. The case will be remanded back to the district court from whence it came, with the understanding that Obama may use the state secrets privilege to have certain evidence excluded, but he may not have the whole case dismissed. Even then, it will be up to the court to decide whether to actually exclude the evidence or not.

Given that seven cases over five years have all declared absolute executive power to be unconstitutional, you’d think that the executive branch would take the hint. And I’m especially disappointed by Obama, who wrote in a January memorandum to all executive agencies:

The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.

Are they just empty words? We’ll see.

They Grow Up So Fast

The Supreme Court heard oral arguments yesterday in a case that was bizarre if only for the fact that it had to reach the Supreme Court at all. The case is apropos due to the recently-reported trend of what the media are calling “sexting”: the phenomenon of teenagers sending nude or semi-nude photographs of themselves to each other. It is another front in the War on Sexuality that parents and politicians have been fighting for years. The crux of the argument is this: teenagers should not be having sex, despite the fact that they’re probably in the sexual prime of their lives. It’s like trying to hold back the Colorado River with a wooden, beaver-made dam. It’s not that teenagers didn’t have sex in the past; certainly they did, but it just wasn’t discussed. Sexuality, for everyone — adults included — was something to be ashamed of. We’re just more open about it now. And that’s not a bad thing.

Earth to parents, teachers, and politicians: teenagers will have sex. They are having sex, probably right now. They are programmed to have sex. You can’t stop them. The most you can do is give them the information they need to make good decisions. If you deny them that information, you’re not preventing them from having sex; you’re just denying them information and ensuring that they will probably make bad decisions, instead.

Moving on.

Yesterday’s case involved 13-year-old Savana Redding, who was strip-searched because the principal heard a rumor (”an uncorroborated tip from the culpable eighth-grader,” says the Ninth Circuit Court of Appeals) that she might have brought prescription-strength ibuprofen to school. The school has a zero-tolerance policy for any drugs, whether outright illegal, prescription, or over-the-counter.

Let’s put aside for right now the tired arguments about how zero-tolerance policies don’t work, create criminals out of otherwise law-abiding citizens, and provide no room for human beings to make mistakes of varying degrees.

Let’s also put aside the fact that ibuprofen is not a narcotic and is not to be found on any of the five schedules of the Controlled Substances Act. The only reasons a kid would try to abuse ibuprofen are: (1) she’s really in a lot of pain; or, (2) she’s an idiot. Not only will ibuprofen not alter your mind in any way, taking too much of it will give you tremendous pain and cause stomach bleeding. I’d love to think that Safford Middle School was only looking out for the best interests of its students in preventing an overdose on prescription-strength ibuprofen, but sadly, I don’t really think that’s the case. I think what’s far more likely is an overzealous administrator cracking down on anything and everything that appears to be “drugs.”

In case the summary of this case isn’t disturbing enough and you’d rather have the play-by-play, just read the “Background” section of the Ninth Circuit Court’s opinion. For one, Savana didn’t refuse the search because she said that she felt as though she would be in more trouble if she didn’t comply. If this isn’t the very reason for the Fourth Amendment’s prohibition against “unreasonable search and seizure” — namely, the threat of punishment for people who don’t agree to warrantless searches — then I don’t know what is.

If Savana were an adult an not in school, her constitutional rights would clearly have been violated, the authorities would be in a world of legal hurt, and we wouldn’t be having this discussion. Not to mention that the uncorroborated testimony of a suspect would not have been sufficient evidence for a search even in the Real World. (By the way, the girl who was caught with the ibuprofen, the girl who fingered Savana as the supplier, was not punished.)

But since Savana is in school, and the doctrine of in loco parentis is in play, she suddenly has greatly reduced constitutional rights. Civil Liberties Lite, specially designed for children. Naturally, the principal could have obtained permission from the girl’s parents to perform such a search. For some unfathomable reason, he didn’t, apparently unaware, in his quest to save children from themselves, of the kinds of torts he could be exposing (no pun intended) the school district to. One man’s “reasonable search” is another man’s “assault and battery.”

For a great analysis, check out Slate’s evaluation of the oral arguments, which includes this wonderful sentence about the cognitive dissonance between “school districts all around the country finding naked photos of teens and immediately calling in the police for possession of kiddie porn. Yet schools see nothing wrong with stripping these same kids naked to search for drugs. Evidently teenage nakedness is only a problem when the children choose to be naked.” (Please read this transcript of the oral arguments.)

Then again, should we be surprised the depths to which our police powers are going? And isn’t it surprising that we shouldn’t be surprised? Though I hate to harp on the damage that the George W. Bush administration has done to this country, it’s harping that must be done because the damage is real, significant, and pervasive. The average American’s expectation of privacy has gone down in this Post-9/11 World. Intrusive, unlawful searches are now expected and have become normalized as we are told that these are necessary trades for a gain in security. It would be one thing if there were empirical data indicating that, say, a 10% decrease in liberty causes a 10% or greater increase in security. At least then we could have a debate (even though it still wouldn’t be ethical to trade in that liberty). But as it is now, we have no data indicating that an increase in surveillance cameras yields a decrease in crime, or that warrantless wiretapping is more effective than lawful wiretapping, or that unreasonable strip searches of 13-year-olds yield drug possession convictions. (Well, actually, we have some anecdotal evidence for the last one: Savana had no drugs on her person. One wonders if the principal contemplated a body-cavity search.)

Sorry for the rant. Back to my original thesis: teenagers occupy a nebulous zone between children and adults. Biologically, they are “adults,” even though mentally they are not quite adults, or at the very least, lack the experience of adults. Yet, what qualifies one as an “adult”? There are plenty of adults — cf. global financial crisis — who act like children, and yet we afford them the right of adults, not of children. It was quite brave for the court to admit, in Tinker v. Des Moines, that humans who are defined as children are as capable of profound thought and understanding as humans who are defined as adults, and in so recognizing, that the speech of those so-called children ought to be just as protected as the speech of so-called adults. Unfortunately, the court has continued to shoot itself in the foot over the years, eroding the rights of schoolchildren because, hey, they’re just kids! What do they know?!

We routinely ask teenagers to take on adult responsibilities — President Obama has emphasized volunteering, for example — and yet we fail to consider that they have adult minds, adult thought processes, and adult opinions. Show me a teenager who has made a bad decision and I’ll show you an adult who has made an equally bad decision — or possibly a worse one, since adults are afforded more rights and thus the capability to screw up more in degree than a teenager can. (A teenager sure can’t get a mortgage that he knows he can’t pay for!)

Nevertheless, the brains of humans in the midst of puberty are chemically different from the brains of children or full adults, and it is for this reason that teenagers do a lot of stupid things. But sometimes, teenagers do great things that are on par with the great things that adults do. There’s no reason to assume the worst when it comes to teenagers, as the assistant principal at Safford Middle School did.

I’ve Seen This Movie Before

I had the most amazing dream last night. Thankfully, Jimmy Kimmel in a diaper wasn’t in this one. Instead, I saw Barack Obama giving a speech about government openness and accountability. He talked about the closure of the U.S. terrorist prison in Guantanamo Bay; he talked about ending extraordinary rendition of U.S. terrorism suspects to other countries where they would be tortured; he talked about ending the use of extra-legal means to spy on Americans under color of law, and he talked about an absolute ban on the use of torture.

Recent events have confirmed that this is only a dream. The candidate of alleged change has instead agreed with George W. Bush on almost every torture and secrecy issue. He ordered the closure of Guantanamo Bay. But, in a brilliant feat of misdirection, none of us ever saw that his Justice Department was working tirelessly to ensure that the same civil liberties that were held to apply to Guantanamo detainees would never apply to detainees held at, for example, Bagram Air Base in Afghanistan.

A Lawless Prison By Any Other Name

Sure, Boumediene v. Bush clearly established that, at a minimum, prisoners in the United States’ Guantanamo Bay facility are entitled to habeas corpus, the 793-year-old doctrine that if a person is to be held in jail, he must be charged with a crime. The Bush administration thought that it had sent 600-some detainees of the War on Terr’ into a “legal black hole” (the Justice Department’s words) where US law did not apply, and therefore, people could be kept there indefinitely without being charged with a crime, without the right to challenge their detention, and without the government having to prove that they were terrorists.

Then the Bush administration relented, wrote the Military Commissions Act, and decided that was good enough. The Act explicitly stripped detainees of their habeas rights and said that the government would create military commissions to evaluate whether or not each detainee should continue to be held. The Supreme Court didn’t like that, either, saying that the MCA process was fundamentally flawed, and furthermore, it was not within Congress’ power to take habeas rights away from anyone.

As soon as he came into office, Obama put a halt to the Military Commissions Act tribunals, recognizing that they were fundamentally flawed. He also said he would close the prison in Guantanamo Bay. While those are both laudable, his next action is, once again, right out of How to Suspend the Constitution Without Really Trying, David Addington’s best-selling Richard P. Cheney thriller. Detainees of the War on Terr’ would instead be moved to Bagram Air Base in Afghanistan. The argument is that, since Afghanistan is still an active war zone, it would be ludicrous to give prisoners there any habeas rights, since they would be prisoners of war. Then again, that was the rationale used to scoop up hundreds of people on the “battlefield” in Afghanistan in 2001 and send them to Cuba.

Wiretapping? What Wiretapping?

A few weeks ago, the Obama Justice Department moved to dismiss a case in federal court involving illegal wiretapping. In spite of his January memoranda committing the Executive Branch to transparency and accountability, Obama’s reasoning vis-a-vis wiretapping remains unchanged from the Bush years; that is, opacity in the extreme, no accountability (i.e., you can knowingly and maliciously break the law, but you won’t be prosecuted for it), and a firm commitment to using the state secrets privilege to cover up illegal government activity.

Earlier this month, the Obama administration filed a petition to have the entire warrantless wiretapping case dismissed under a never-before-seen doctrine of “sovereign immunity” that comes from the USA PATRIOT Act. It’s not the sovereign immunity itself that is at issue (sovereign immunity is a very old legal doctrine which holds that the sovereign — in this case, the government — is immune from criminal prosecution in some instances). It’s that sovereign immunity has never before been used a a defense in these wiretapping cases. To the Obama administration’s credit, it has interpreted into being a sovereign immunity claim based on the fact that Congress had not explicitly waived sovereign immunity when it came to these cases. Therefore, argues the Justice Department, the courts must err on the side of the sovereign. This is, of course, in addition to the standard-issue “state secrets” defense, which consists of, “In order for you to have a case, you need to prove you’ve been harmed. In order for you to prove you’ve been harmed, you need access to classified information. Because giving you that information would compromise national security, we’re not going to give it to you. Since you don’t have that evidence to prove your case, you have no case. So let’s dismiss the case.”

Let’s Talk Torture

Yesterday, after years of legal battles led by the American Civil Liberties Union, the Obama administration released four memoranda from the Bush years in which the Office of Legal Counsel — the legal-advice arm of the White House — declared that, yes, “enhanced interrogation techniques” like water-boarding were perfectly legal. In making these documents public, however, Obama added the caveat that CIA employees who engaged in these techniques, which are correctly and properly called torture, will not be prosecuted.

I am of two minds on this particular issue. On the one hand, we have the Nuremberg Defense, used by various strata of Nazi soldiers in the post-World War II Nuremberg trials. The defense amounted to, “I was just following orders,” the implication being that very low-level soldiers who did the actual dirty work of killing 6 million Jews (and millions of others of various non-Nazi-approved races, nationalities, ethnicities, and sexual orientations) were faced with the choice of either doing what they were told, despite their orders being obviously morally and legally wrong, or standing up to their superiors and facing court marshall or death themselves. The outcome of the trials was Nuremberg Principle IV, which states, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.” This principle was incorporated into the Uniform Code of Military Justice, and now U.S. military personnel may refuse to follow an order that they believe violates the law, with the law including the U.S. Constitution and any treaties to which the U.S. may be a party (including the Geneva Conventions, which explicitly forbid the use of torture).

Then again, these CIA operatives were assured that what they were ordered to do was legal. They were assured by the president — who is their boss — that it was okay to do what they were doing. It’s not an issue of questionable legality; they were told — by lawyers, who are alleged to be experts in the field of law — that it was okay to water-board suspects, deprive them of sleep, and occasionally hit them. Must they then be faulted for their lack of follow-up? Are they expected to then second-guess White House lawyers? The issue is murky. Definitely the people at the top who were responsible for crafting these policies — Bush himself, Vice President Cheney, David Addington, John Yoo, and Alberto Gonzales — must be prosecuted. But what about the people in the field? As Glenn Greenwald observes, the law compels the Justice Department to prosecute everyone who took part in torture. There was a moral choice: CIA operatives could have made the choice not to engage in torture. And if it risked their careers, so be it. They were not themselves ever threatened with death or torture; the loss of one’s job is not morally equivalent to torturing another human being.

It’s certainly true that President Obama has done a number of laudable things in his four months in office. But he can still do better, and all of us need to push him away from the trope of “centrism” (which, in U.S. political discourse in 2009, means “being conservative”). And if he does have a legitimate national security concern, he should let us know. He doesn’t have to go into the gory details, but it would be nice to know why he’s suddenly changed his mind. After eight years of “Trust me, I know what I’m doing,” I voted for a government that doesn’t demand faith from its people.

Obama’s Use of State Secrets Is More of the Same

Throughout his administration, President Bush invoked a little-known and less-understood doctrine called the State Secrets Privilege. The privilege allows the Executive to suppress evidence in a court case if, in the Executive’s estimation, revealing that evidence in court would compromise national security. The use of the privilege is not unprecedented. Bush, however, didn’t merely use the privilege to get evidence thrown out. He tried to have whole cases dismissed. (Please read this article from Lewis & Clark Law Review for more information about the abuse of the State Secrets Privilege.)

In the arena of warrantless wiretapping, the administration argued that it could not provide documentation to plaintiffs that they were wiretapped, since even providing evidence of wiretapping would compromise national security. And, since the plaintiffs can’t prove they were ever wiretapped, they have no standing to bring a case, so the administration also requested that the case be dismissed. Thankfully, Judge Vaughn Walker of the U.S. District Court for the Northern District of California rejected the Bush administration’s assertions.

But now, the Obama administration is in town, and given his memorandum ordering more transparency in government, he’s going to reject the Bush administration’s assertion that entire cases can be thrown out due to the State Secrets Privilege.

Just kidding! In fact, Obama’s Justice Department has gone even further in asserting opacity when it comes to the State Secrets Privilege. On Friday, the Ninth Circuit Court of Appeals rejected the Obama administration’s arguments — which were a continuance of the Bush administration’s arguments — that the State Secrets Privilege can be used to dismiss entire cases.

Immediately following the ruling, Obama’s Justice Department filed a new brief in which it asserted that it will not comply with the Ninth Circuit Court’s ruling because — drumroll, please — no court has the authority to compel the Executive to release top secret information, for any reason whatsoever. In case you think I’m misinterpreting the brief, here you go:

In addition, the relevant Executive Branch official must determine that plaintiffs’ counsel have a “need to know” the information. In this case, the relevant official, the Director of the National Security Agency (“NSA”), has determined that counsel do not have a need to know. This decision is committed to the discretion of the Executive Branch, and is not subject to judicial review. Moreover, the Court does not have independent power, either under its supervisory authority, or under authority analogous to that granted by the Classified Information Procedures Act (“CIPA”), 18 U.S.C. App. 3, to order the Government to grant counsel access to classified information when the Executive Branch has denied them such access. Therefore, the Government respectfully suggests that the Court should not take further steps at this time that would result in plaintiffs’ counsel being granted access to the classified information at issue.

Any determination made by the Executive that information is top secret is final. It is not subject to judicial review. Ever. At all. Period. What the Executive says, goes. There is no other instance — none! — anywhere in this country where any body has ever asserted that its decisions are outside the scope of judicial review, save legislation passed by Congress restricting review. This is solely Congress’ power, and not the president’s, as articulated in Article III, § 2 of the Constitution:

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

There is nowhere to be found anywhere in the Constitution the assertion that the president can make decisions that are outside the scope of judicial review. Indeed, the existence of such a rule would be detrimental to our republic. Imagine: the president asserts the State Secrets Privilege for a malicious, disingenuous, non-secret reason, but because the president’s claims of privilege are non-reviewable by anyone, there is no one to appeal to in order to contest the legitimacy of the president’s assertion. If true, this doctrine would mark the first time in the history the United States that a single branch of government cannot be checked by any other branch. This is extremely dangerous.

What will the Obama apologists say now? I have famously complained that Obama’s policies are “more of the same,” whether they be continuances of Clinton-era policies, or Bush-era policies. Which wedge of the Obama Wheel of Apology does this action fall under? Shall we file unilateral executive authority under pragmatism? Or perhaps it is more akin to the I, Claudius explanation, in which Obama will one day pull his mask off and reveal himself to be a progressive socialist who has been working behind the scenes to undermine the system even as he pretends to uphold it? Can this be explained by team of rivals or bipartisanship? What other buzzword that is used to explain away the lack of significant change is appropriate here? Obama can do no wrong!

Okay, coyness aside. The Obama administration has made a bad decision. This is absolutely the wrong assertion to make. And I find it surprising, especially in light of the memorandum mentioned above, that Obama would claim such broad authority in this matter. Unless, of course, the Justice Department is working independently of Obama’s personal agenda, in which case, it’s time for someone to sit down and have a serious talk with Eric Holder about how the Constitution works.

But I seriously doubt this is the result of a rogue Justice Department. No, Obama has made a bad call, here. He is acting terribly like George W. Bush in his assertion of powers that are not his. It doesn’t matter if Obama is a great guy; no one person — not even a “benevolent dictator” — can be invested with such broad powers. It’s illegal, it’s unconstitutional, and given Obama’s background as a constitutional law scholar, he should know better. It’s shameful and he needs to stop it. This is not the change I voted for. (H/T Glenn Greenwald, of course.)

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