"This was the voice of moderation until 13 Sept, 2025"
by publius Continuing our Ed Whelan watch, he’s begun a series of posts attacking Koh and a bogeyman version of “transnationalism” – which transforms in Whelan’s posts into the means through which an international conspiracy will undermine American sovereignty. So as I have time, I’m going to address some of his anti-Koh posts. So let’s … Read more
by publius Good news on the national security front – a federal district court granted habeas rights yesterday to certain detainees being held at Bagram Airfield in Afghanistan (pdf here). In doing so, the court applied – and relied on – the Supreme Court’s landmark Boumediene case from last year. (For those interested, hilzoy has … Read more
by publius Scott Lemieux has already posted on Summers – the standing case the Supreme Court released yesterday. To me, Summers illustrates just how important it is for public interest litigators to pick the “right facts.” Here, the environmental organization had to fight on very unfavorable terrain – and they lost. To borrow loosely from … Read more
by publius Via Sullivan, Newsweek provides a rather interesting quote from John Yoo’s newly-released OLC memos: "First Amendment speech and press rights may also be subordinated to the overriding need to wage war successfully," Yoo wrote in the memo entitled "Authority for Use of Military Force to Combat Terrorist Activity Within the United States." Even … Read more
by publius If I were the snarking type, I might respond to George Will’s latest by saying something like “Shorter George Will – directly electing Senators harms America.” But that’s not my style, so I’ll try to address the merits. In criticizing Feingold’s proposed amendment to require special elections for Senate vacancies, Will argues that … Read more
by publius Everyone else is talking about the filibuster, so I should add my two cents as well. With one exception, I’m anti-filibuster on the merits (and have been for some time). It’s antidemocratic, too-easily invoked, and … well, you know all this. All that said, I think it would be hypocritical for the Democrats … Read more
by hilzoy Dear Obama administration, This is just wrong: "In a closely watched case involving rendition and torture, a lawyer for the Obama administration seemed to surprise a panel of federal appeals judges on Monday by pressing ahead with an argument for preserving state secrets originally developed by the Bush administration. In the case, Binyam … Read more
by publius Judge Wilkinson is considered the conservative intellectual heavyweight on the 4th Circuit. He's tried to soften his edges in recent years, hoping for a Bush appointment. But make no mistake — he was as aggressively and ideologically conservative as they come, sitting on what has been the most aggressively ideological circuit in the … Read more
by hilzoy From the Washington Post: "In one of its first actions, the Obama administration instructed military prosecutors late Tuesday to seek a 120-day suspension of legal proceedings involving detainees at the naval base at Guantanamo Bay, Cuba – a clear break with the approach of the outgoing Bush administration. The instruction came in a motion filed … Read more
by hilzoy The Obama transition team has announced several new appointments at the Department of Justice: David Ogden as Deputy Attorney General; Elena Kagan as Solicitor General; Tom Perrelli as Associate Attorney General; and Dawn Johnsen, Assistant Attorney General for the Office of Legal Counsel. I want to focus on the last of these. Like … Read more
by publius I’m not a huge fan of the presidential pardon power. If I had my druthers, we’d amend the Constitution and get rid of it entirely (Eric — echoing warnings from the Anti-Federalists — provides a few examples of how the process can be abused).** But there are of course legitimate reasons to keep … Read more
by publius I’m almost finished with Remix — and like all Lessig books, it’s very good. One interesting part is that his rhetoric has subtly changed to attract more Republicans. That’s not a bad idea, but I think it’s ultimately a futile effort. Lessig was apparently influenced by a reviewer of his earlier book Free … Read more
by publius
Richard Epstein takes to the op-ed pages of the WSJ to argue that the EFCA is – wait for it – unconstitutional. Make no mistake – this is a highly misleading op-ed made in bad faith. If Epstein is right, then 80 years of post-New Deal precedent is wrong. In short, it’s an extremely radical position – though one Epstein has been unsuccessfully peddling for decades. Details below.
by publius I’ve been reading Jane Mayer’s The Dark Side, and it’s very good. The book provides a comprehensive look at the administration’s novel and generally lawless response to 9/11 (detention, rendition, etc.). It’s a somewhat radicalizing read (and frankly, I don’t need the help these days). But it got me thinking about the larger … Read more
by publius
Big news on the national security front — the Court today (over the objections of the DOJ) granted cert in the al-Marri case. The case is arguably the most important yet because the Court seems ready to weigh in on one of the most sweeping powers claimed by the Bush administration — the power to indefinitely detain legal residents arrested in the United States (and thus citizens).
I’m sure we’ll return to it later, but below is a very high-level summary of the case and what’s at stake. For more thorough backgrounders, see Greenwald, Lederman, the Brennan Center, and SCOTUSblog.
Al-Marri was a legal resident — a graduate student — living in the United States. He was arrested for credit card fraud and was awaiting trial in 2003. Right before trial, the Bush administration declared him an enemy combatant and whisked him away to a naval brig, where’s he been held (and allegedly tortured) without charge ever since.
After a complicated legal proceeding, a splintered 4th Circuit (en banc) essentially affirmed Bush’s authority to detain him indefinitely under the post-9/11 Authorization for Use of Military Force (AUMF). Actually, the split court had two separate holdings: (1) the government could detain al-Marri indefinitely if it proved he was an “enemy combatant”; but (2) the government had yet to adequately prove that he was in fact an “enemy combatant.”
In short, the 4th Circuit said that if the government can prove he meets the enemy combatant definition, then the AUMF authorizes indefinite detention without charge. The court added, though, that the administration hadn’t yet proven the former. (This latter holding isn’t much of a protection, though, given that — under Hamdi — the “due process” required to establish combatant status is far below normal due process standards required for imprisonment).
Anyway, the upshot here is that if Bush can detain al-Marri indefinitely by calling him an enemy combatant, then Bush can detain anyone — citizens included. That’s because legal residents are generally deemed to have the same due process protections as citizens. So yeah, it’s an important case.
A few other scattered thoughts below:
by hilzoy From the AP: “Barack Obama’s incoming administration is unlikely to bring criminal charges against government officials who authorized or engaged in harsh interrogations of suspected terrorists during the George W. Bush presidency. Obama, who has criticized the use of torture, is being urged by some constitutional scholars and human rights groups to investigate … Read more
by publius Will filibusters still be unconstitutional if the Dems get 60?
by publius
One silver lining of not having Internet access for three weeks is that I had more time to read. The best book I read was Lessig’s Free Culture, which shows — in an accessible and compelling way — why our copyright policies are so absurd.
Consider this blog for instance. Copyrights automatically apply to us the owners — we don’t have to do anything; we just have them. Our blog would also be considered a “joint work.” Accordingly, Obsidian Wings will remain copyrighted throughout the life of the last living author, plus 70 years. So assuming one of us lasts another 50 years or so, Obsidian Wings will enter the public domain around 2138. It’s absurd.
Anyway, Lessig (who has a new book coming out called Remix) had an interesting column in the WSJ this weekend on the continuing absurdity of our intellectual property laws. Specifically, he focused upon people’s growing ability to “remix” audio and video into new creative formats using modern technology (e.g., Girl Talk; amateur videos of children dancing to copyrighted background songs).
The upshot is that remixing is a potential source of tremendous creativity and even economic activity. We have a legion of amateur tech-savvy artists, armed with Macs and YouTube, ready to be unleashed. The problem, though, is that intellectual property law casts a shadow upon the whole thing — and potentially imposes severe penalties simply because of the Internet’s unique distribution characteristics (e.g., each page view/download is a distinct “copy”).
None of this is terribly new, but this passage in particular caught my eye:
by publius Ramesh Ponnuru: Those excerpts from Couric’s interviews give me more concerns about Biden than Palin. He seems to be under the impression that there’s a “liberty clause” in the Fourteenth Amendment[.] Fourteenth Amendment, U.S. Constitution: [N]or shall any State deprive any person of life, liberty, or property, without due process of law[.] And … Read more
by hilzoy There are some difficult questions about how to draw the line separating church from state. This (h/t Carpetbagger), however, is not one of them: “A judge who made headlines four years ago by wearing the Ten Commandments embroidered on his judicial robe is facing a complaint filed by the American Civil Liberties Union … Read more
by hilzoy From the NYT: “A panel of six military officers convicted a former driver for Osama bin Laden of one of two war crimes charges on Wednesday but acquitted him of the other, completing the first military commission trial here and the first conducted by the United States since the aftermath of World War … Read more
by publius I think we can all agree now that the Bush administration’s politicization of DOJ was a disgrace. I didn’t think anything about DOJ could surprise me anymore, but the Goodling emails were so bad that they did. It’s just an all-around disgrace. But the entire sordid affair got me thinking about Steven Teles’s … Read more
by publius
It happens from time to time, but my initial post on Kennedy v. Louisiana was wrong. I disagree with the decision. That said, I think it’s a plausible decision – and it certainly doesn’t justify the hyperventilating cries of illegitimacy from conservatives that seem to accompany every decision that they disagree with (more on that in my next post).
But it’s a bad opinion. It’s not merely that the methodology is shaky. Even assuming you accept the methodology, the Court’s result doesn’t seem consistent with that methodology.
To back up, constitutional law decisions always have two key parts: (1) the result; and (2) the reasoning (i.e., the methodology or doctrine or framework). For instance, imagine the Supreme Court said (a) Gitmo detainees have habeas rights; (b) because Publius says they do and he’s infallible. That’s the correct result, but the reasoning is a wee shaky. More to the point, the methodology adopted will lead to bad things, even if we like the result it produced in this particular case.
It’s easy to lose sight of it in political debates, but constitutional law is often a battle of competing methodologies. And if you want to be cynical, certain Justices favor certain methodologies because they generally produce results they like. Originalist methodology, for instance, was heavily motivated by hostility to the Warren Court. True, originalism sometimes produces results conservatives don’t like, but those are the operating costs of adopting politically favorable methodologies.
So with the result/reasoning distinction in mind, we can better understand the problem with Kennedy. It’s not only that the methodology itself has some serious problems. It’s that the methodology suggests a different result. It gets a bit denser below the fold.
by publius The Court today held that imposing the death penalty for child rape was unconstitutional. I haven’t read the opinion yet, so this post is subject to change. But as grotesquely heinous as child rape is, I think it’s the right call. I’ll talk about doctrine in more detail later, but I think death … Read more
by publius I’m certainly no expert on executive privilege. But in thinking about when the privilege should apply, it’s important to distinguish between two different types of communications: (1) intra-advisors’ communications; and (2) communications with (or among) agency officials. The claim for executive privilege is much weaker in the latter, which of course is the … Read more
by hilzoy From the Washington Post: “The House today overwhelmingly approved a sweeping new surveillance law that effectively would shield telecommunications companies from privacy lawsuits for cooperating with the Bush administration’s warrantless wiretapping program. Ending a year-long battle with President Bush, the House approved, 293 to 129, a re-write of the 1978 Foreign Intelligence Surveillance … Read more
by hilzoy Digby’s commenters seem to have been asking her “why the blogosphere is so obsessed with FISA and the civil liberties stuff when it’s clear that both sides are equally corrupt”. I like her answer, but I’m going to give my own. I won’t bother about the “both sides are equally bad” part: it’s … Read more
by hilzoy I haven’t written about the rumors that a “compromise” on telecom immunity was in the works, since it was just a rumor, and I wanted to see what, if anything, actually came of it. Now I know: “After more than a year of partisan acrimony over government surveillance powers, Democratic and Republican leaders … Read more
by publius
Marc Ambinder has been spending a lot of time lately defending John McCain. But this post on habeas was too much. Ambinder claims that “on the question of what should be done to the Gitmo detainees, the candidates’ rhetorical differences are greater than their policy differences.” That’s wrong. Really really wrong.
First, and before I get to policy differences, the larger problem is that Ambinder is ignoring the fact that political rhetoric matters. McCain has adopted the worst sort of demagoguery on the habeas case. He claimed the decision was one of the worst in history. He also referred to writs of habeas corpus — one of the oldest civil liberty protections in Anglo-American law — as “so-called, quote, Habeas Corpus suits.”
In doing so, McCain is providing support for the political movement to deny the detainees all legal rights. It doesn’t matter what he privately thinks or what he said years ago. Today, when it matters, he’s siding with the “no rights” crowd — and his actions have consequences. (And for the record, the point of protecting those rights is not to release terrorists but — say it with me people — to determine if these people are terrorists in the first place).
But that aside, Ambinder’s also off on the policy. It’s frustrating to even have to say this, but McCain and Obama have major policy differences on the Gitmo detainees.
First, Ambinder claims the McCain’s gripe is procedural rather than constitutional. That distinction, however, doesn’t make much sense. He writes:
[McCain’s] concern now [] is procedural, rather than constitutional: the detainees’ having access to habeas in our federal courts would create a tangled web of lawsuits, would expose intelligence secrets, and would needlessly draw out these legal proceedings.
Ugh, where to start. It’s true that there’s a difference between rights and remedies. It’s also true that habeas is a procedural remedy to vindicate a pre-existing right (e.g., due process). The problem, though, with Ambinder’s statement is that this particular procedural remedy (habeas) also happens to be a guaranteed constitutional right. Indeed, its purpose is to prevent precisely what Bush is doing. Thus, McCain’s problem with “procedure” is necessarily a constitutional problem. And the fact that constitutional rights are messy is, you know, the point. I mean, I guess the Fourth Amendment would be ok and all if didn’t make police do messy things like get warrants. It just really drags out the process needlessly.
Things get worse in the next part though:
McCain believes that it’s OK for foreign-national detainees to have habeas corpus rights, even if they are somewhat restricted[.]
No he doesn’t. I mean, he may say that. He may even think that. But he’s acted in a completely different way.
Rights don’t exist if you eliminate all procedures to vindicate those rights. Otherwise, the rights become only words on paper, rather than living breathing liberties that must necessarily be enforced.
In short, actions speak louder than words. And in the world of action, McCain has been a consistent opponent of habeas. In fact, he’s consistently voted to completely strip ALL habeas protections from the Gitmo detainees. For instance, he has (1) supported the DTA; (2) supported the MCA; and (3) filibustered a bill to restore the habeas rights eliminated by the prior two laws. Collectively, these votes completely eliminated habeas remedies and replaced them with kangaroo courts. Maybe Ambinder could take a stab at squaring these actions with McCain’s words and press releases.
by publius Via Volokh, I saw this excellent overview of what to look for in the Heller Second Amendment case by Professor Mike O’Shea at Concurring Opinions. The decision could come Monday. There’s a lot to chew over, but the upshot is that the Court seems poised to recognize some sort of individual right. The … Read more
by publius In response to the last post’s comment thread, I want to clarify some points about the adequacy of D.C. Circuit’s appellate review (I’ll address Roberts skepticism later). Some of my arguments were not clearly written, so let’s take another stab. The basic dispute in the comments turned on whether the Court’s decision about … Read more
by publius
Boumediene deserves about a dozen posts, but here’s my initial take — the opinion is legal realism made flesh. Legal text and doctrine didn’t determine the Justices’ votes today— outside considerations of policy and politics did. And as I’ll explain, that’s not necessarily a bad thing (indeed, it was probably unavoidable).
[As a disclaimer, I’m assuming some basic knowledge of the opinion. If you want a summary, check out Hilzoy’s fine post or the invaluable ScotusBlog.]
To me, the most interesting question — and the crux of the whole decision — was the sufficiency of D.C. Circuit’s ability to review the Combatant Status Review Tribunals (i.e., the “courts” that determine if you’re an “enemy combatant”). Because Roberts’ dissent focuses on this issue in detail, he comes closest to obliterating the majority’s logical foundation.
To back up, there are really two separate procedures at issue here. The first is the CSRTs themselves that make the initial enemy combatant classification (they are not Article III courts). The second is the appellate review of those classifications. Regarding the latter, Congress (in the DTA and MCA) provided for a limited appellate review of the CSRTs by the illustrious D.C. Circuit alone. By law, the court can only determine (1) whether the CSRTs followed the President’s designated standards and procedures, and (2) whether “the use of such standards . . . is consistent with the Constitution and laws of the United States.”
That last part is crucial. If the D.C. Circuit review provides sufficient protections, then it’s a valid “substitute” for habeas. (Habeas, after all, is just a procedure to vindicate other rights). If it’s not, then Congress has unconstitutionally “suspended” habeas corpus.
And on this question, Roberts’ argument seems pretty persuasive at first glance. He explains that if there are constitutional problems with the CSRT procedures, then the D.C. Circuit gets the first crack at them. What’s more, the D.C. Circuit by the very terms of the statute is free to reach the same conclusion that the Court did. There’s nothing, Roberts says, that the Court held today that the D.C. Circuit couldn’t have held. Thus, the Court is jumping the gun, throwing out a statute before the D.C. Circuit has considered any procedural challenges.
To repeat, the million dollar question is whether the D.C. Circuit could provide any relief that the detainees would be constitutionally entitled to.
The Court ultimately answered “no” — i.e., it held that the D.C. Circuit’s constitutional review was unconstitutionally narrow. That conclusion, however, seems hard to square with the language of the statute. As Roberts explained, the D.C. Circuit was explicitly authorized to review the constitutionality of the procedures.
On a purely abstract level, I think Roberts gets the best of this argument. But that said, I still think he was ultimately wrong, largely because of real-world considerations.
by hilzoy As publius noted, the Supreme Court has ruled in Boumedienne et al v. Bush (pdf). Herewith, a quick and dirty rundown of the issues. As befits someone with no legal training, I have stuck to the straightforward issues, leaving complexities to others (cough, publius, cough.) I’m basically trying to explain this to non-lawyers … Read more
by publius The Supreme Court just ruled that Gitmo detainees have a right to challenge their detention in federal court. Much more later.