Law

by publius

I didn’t watch the entire Goodling hearing (about 60%), but I had two quick impressions. First, Monica Goodling pretty much handed the House Judiciary members their asses. She was impressive, frankly. Second, the preparation of the Democratic committee members was disgraceful. They were woefully unprepared, and apparently unaware of those strange little creatures sometimes called follow-up questions. With one exception – Artur Davis (D-AL) (Orin Kerr noticed him too).

I can’t take credit for catching this — a friend (commenter kovarsky) directed me to both Davis’s questioning and his resume. And it’s impressive stuff. Davis is a Democrat from Alabama – double Harvard, and a former Assistant US Attorney. And it shows. It wasn’t just that Davis efficiently obtained the most damaging testimony, it was the way in which he did so. Looking closely at the mechanics of his examination illustrates that he is a skilled, experienced questioner (and a master of linguistics). More below the flip.

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by hilzoy

Via Glenn Greenwald: Harvey Mansfield has written one of those articles in which the writer’s elegance, erudition and stylistic flair make an abhorrent position sound halfway reasonable. One lovely sentence follows another, and if you aren’t careful, they lull you into overlooking the fact that he is arguing against the rule of law. Glenn writes:

“Much of the intense dissatisfaction I have with the American media arises out of the fact that these extraordinary developments — the dominant political movement advocating lawlessness and tyranny out in the open in The Wall St. Journal and Weekly Standard — receive almost no attention.

While the Bush administration expressly adopts these theories to detain American citizens without charges, engage in domestic surveillance on Americans in clear violation of the laws we enacted to limit that power, and asserts a general right to disregard laws which interfere with the President’s will, our media still barely discusses those issues.

They write about John Edwards’ haircut and John Kerry’s windsurfing and which political consultant has whispered what gossip to them about some painfully petty matter, but the extraordinary fact that our nation’s dominant political movement is openly advocating the most radical theories of tyranny — that “liberties are dangerous and law does not apply” — is barely noticed by our most prestigious and self-loving national journalists. Merely to take note of that failure is to demonstrate how profoundly dysfunctional our political press is.”

He’s right. Since the article is behind the WSJ’s subscription wall, I’ll excerpt and comment on it below the fold. But nothing I have to say is more important than Glenn’s point: that in this article, a prominent conservative intellectual is arguing for an idea that is profoundly opposed to everything this country stands for — the idea that the President has the right to set aside the laws — and while the media devote endless amounts of time to trivialities, they do not seem to regard this as act as though this were worthy of notice.

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by publius

Discussing voter disenfranchisement, Scott Lemieux writes, “It’s almost impossible to overstate how much this matters.” I agree. So today, I want to follow-up on Hilzoy’s excellent post on voter fraud with some thoughts of my own.

Our national voting system is a disgrace. And while sham “voter fraud” plays an important role, it’s only one slice of a much larger and more systemic problem. To understand the scope of the problem, you must first understand that voting consists of far more than merely showing up on Election Day. There are many different phases along the way – and vote suppression can and does occur at any one (or all) of these phases, from the registration process up through voting day.

Before I outline these different phases, I should say that almost all of the information in this post comes from the Brennan Center for Justice (NYU) and its tireless efforts to protect the vote and educate the public. In particular, today’s post relies on this powerpoint (pdf here), which was part of a larger Brennan Center presentation at an ACS event in DC last year (which was great).

As the powerpoint explains, there are five different methods that states are using (or could use) to suppress turnout of eligible voters: (1) restricting voter registration drives; (2) erecting barriers to getting on voter rolls; (3) purging existing voter rolls; (4) imposing voter ID and proof of citizenship requirements at the polls; and (5) failing to ensure electronic voting machine security. Note that these suppression efforts arise at different stages of the voting process, often months prior to Election Day.

#1 – Registration Drives. Some states’ restrictions on voter registration drives are so absurd and punitive that they are, frankly, hard to believe. According to the Brennan Center, these restrictions include imposing insanely high fines and even criminal penalties on voter registration groups for what are essentially administrative errors. In Florida, for instance, the legislature imposed the following fines on voter registration groups: (1) “$250 for each application submitted . . . more than ten days after the form was collected”; (2) “$500 for each application . . . submitted after the [registration] deadline”; (3) “$5,000 for each application collected but not submitted to election officials.” These potential penalties obviously make people think twice about initiating, or participating in, voter registration efforts.

The Brennan Center has documented similar efforts in other states. In Ohio, individual registration volunteers had to personally turn in the forms they collected. In other words, they couldn’t hand them to a supervisor to be turned in collectively. They had to walk them to the office themselves. In New Mexico, they went a step further. There, “groups are given only 48 hours to submit the forms they collect to the state board of elections or face criminal charges.”

The effects are obvious. States are either making voter registration efforts extremely risky, or are increasing their administrative costs. The net result is less voter registration. And again, all this happens well before Election Day and outside the (watchful, Sauron-like) eye of the media.

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by publius

In this column, Dahlia Lithwick explores one of the most fascinating sidebars to the U.S. Attorney scandal — religion and the DOJ. Using Monica Goodling as an example, she documents how deeply Regent University Law School graduates have penetrated the upper echelons of the Bush administration. Like Lithwick, I don’t have a problem with the administration hiring Regent grads (assuming they’re qualified). In fact, I’ve worked with outstanding attorneys who graduated from Regent.

What interests me then is not so much why DOJ hired Regent grads, but why Regent grads like Monica Goodling acted like they did. In particular, it’s the psychological and sociological dimensions that intrigue me. How did someone like Goodling justify her actions in her own mind? How did she square them with her religious faith? [For what it’s worth, these questions extend well beyond Goodling. How (and why), for instance, do so many social conservatives tolerate and even applaud our detention “policy” and war and unprogressive tax structures and so on?]

With respect to the more narrow Goodling question, Lithwick proposes an answer — people like Goodling started mistaking Bush for God. She writes, “[T]he real concern here is that Goodling and her ilk somehow began to conflate God’s work with the president’s.” While that’s true in a sense, I don’t think it goes far enough. Assuming Lithwick is right, the more fundamental question is how Goodling (and other evangelicals) got to that point in the first place.

To take a step back, although liberals are not hostile to religion, I do think that they — in their own minds anyway — often conceptualize evangelical Christians in very simple ways. People get these visions of brainwashed automatons marching to the beat of Dobson and his P-Funk All-Stars. The truth is, though, that social conservatives — like all other groups — have a unique and complex psychology. And in their own mind, they (like everyone else) think of themselves as good people doing good things. That’s why it’s interesting to explore the specific rationalizations they use to justify actions that are hypocritical in light of their religious faith.

The first rationalization relates to our old friend, liberal hatred. I believe that evangelicals like Goodling are not so much pro-Republican as they are deeply, and even pathologically, anti-liberal. In this sense, Goodling represents the political coming-of-age of a generation of young social conservatives that has been taught from childhood to hate “the Left.” And it’s not just that the Left is bad, it’s that the Left is constantly attacking them from all directions — e.g., the courts, the media, Hollywood, academia, etc. It’s all one big attack. I mean, Regent University is premised on the notion that Christians are under attack. (The Federalist Society was too – check out their mission statement).

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by publius

I need some help. I’m having trouble discerning a thesis in George Will’s tirade today against the ERA. The argument seems to go like this: (1) Liberals like bell bottoms and love beads [cue Stayin’ Alive bass line]. (2) The ERA is bad because it duplicates the equal protection clause (Will’s favorite constitutional provision no doubt). (3) Hairy, bell-bottomed, love-beaded ERA-supporting hippies cheated back in the 70s. [Well, you can tell by the way I use my walk . . .] (4) The ERA is bad because it’s an end run around the legislative process. As #4 is the most ridiculous part of a fairly ridiculous op-ed, let’s start with that one.

The Will column is a textbook example of how conceptual narratives can harden to the point where facts become irrelevant. Remember that one of the central (and sometimes accurate) arguments of modern conservative jurisprudence is that post-World War II liberals use vague constitutional doctrine to do an end run around the legislative process. Inevitably, conservatives argue that if liberals want to change the Constitution, they need to do so through the proper channels – i.e., the Article V amendment process.

Funny thing, though. That’s exactly what the renewed effort to pass the ERA is trying to do. But to Will, these efforts are merely an even-more-cleverer way to avoid legislatures:

All amendments generate litigation, but the ERA’s purpose is to generate litigation. It is a device to get courts to impose social policies that supporters of the policies cannot persuade legislatures to enact. ERA — now WEA — supporters, being politically lazy, prefer the shortcut of litigation to the patient politics necessary to pass legislation.

If Kennedy and like-minded legislators think that the condition of American women needs improvements, they should try to legislate them. Instead, they prefer to hope that liberal judges will regard the ERA’s language as a license to legislate.
To sum up, commanding legislative supermajorities at the federal and state level in the manner explicitly provided for by Article V is a “politically lazy” “shortcut.” What legislators who want to help women should really do, Will explains, is to “try to legislate” rather than, you know, legislating.

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by hilzoy

It occurred to me that it might be useful for me to try to sort out what, exactly, executive privilege is. As always, I have tried to get it right, but welcome correction from any lawyers who read this.

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by publius

Mark Cuban’s prophecies came true last week as Viacom sued YouTube (Google) for a cool billion for copyright infringement. In response, some smart people like Lessig and Harold Feld (of Public Knowledge) are blaming the Viacom suit in part on the Supreme Court’s Grokster decision. I generally agree with that argument, but for somewhat different reasons. As I explained when Grokster came down, the case is a classic example of what happens when legal decisions become divorced from real world considerations.

First, some background. Prior to Grokster, the seminal Supreme Court case was Sony v. Universal City Studios (1984), which addressed Sony’s potential copyright liability for its newfangled VCR. Like Grokster, Sony involved the issue of secondary liability. Because the “primary” infringers were VCR users taping Miami Vice and Knots Landing, the issue was whether Sony could be “secondarily” liable for distributing the technology ultimately used for infringement. The Court said no, reasoning that the VCR was “capable of commercially significant noninfringing uses.” In other words, you could use it for good reasons too. Thanks to this decision, we have the video rental market.

Fast forward to 2005. As any sentient being would concede, Grokster was facilitating and promoting massive copyright infringement. The problem, though, was what to do about it (i.e, the concern was the remedy not the right). The challenge federal courts faced was to find a way to extend liability to Grokster without extending it to, say, Microsoft’s operating system (or Intel’s microprocessor). After all, many types of technologies – Grokster, Windows, a Dell notebook, Google’s search engine – can be used for both “infringing” and “noninfringing” purposes. It may sound absurd to hold Microsoft liable in copyright infringement for illegal file sharing, but I’d encourage you to try to come up with a clear legal test that reaches the Grokster software while simultaneously not reaching Windows XP.

The lower courts didn’t even try. Applying a strong version of Sony, the Ninth Circuit simply ruled that, because Grokster had valid noninfringing uses, it could not be secondarily liable under Sony. In Grokster, the Court – motivated by understandable animus towards Grokster – unanimously reversed. To thread the tricky needle that the lower courts avoided, Justice Souter tried the following language:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. (emphasis added)

The italicized phrase is key. What Souter is trying to do here is to limit liability to parties, like Grokster, that openly and brazenly promote infringement while shielding more neutral hardware and software technology. The idea is that, before you can sue someone, you have to show specific factual evidence of an intent to infringe.

Sounds pretty good right? In theory, this is an excellent solution, and I’m sure it would have made an excellent law review article. The problem is that it’s a terrible terrible terrible rule in practice. It’s not merely that Grokster encourages litigation, it’s that it encourages disingenuous litigation filed only as a negotiating tactic (or as an attempt to get a settlement from a big pocket).

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by hilzoy

From today’s NYT:

“The Justice Department is completing rules to allow the collection of DNA from most people arrested or detained by federal authorities, a vast expansion of DNA gathering that will include hundreds of thousands of illegal immigrants, by far the largest group affected.

The new forensic DNA sampling was authorized by Congress in a little-noticed amendment to a January 2006 renewal of the Violence Against Women Act, which provides protections and assistance for victims of sexual crimes. The amendment permits DNA collecting from anyone under criminal arrest by federal authorities, and also from illegal immigrants detained by federal agents.

Over the last year, the Justice Department has been conducting an internal review and consulting with other agencies to prepare regulations to carry out the law.

The goal, justice officials said, is to make the practice of DNA sampling as routine as fingerprinting for anyone detained by federal agents, including illegal immigrants. Until now, federal authorities have taken DNA samples only from convicted felons.”

(For those of you who like looking the laws up for yourselves as much as I do: the VAWA reauthorization is here (pdf); check out sec. 1003 (p. 126.) The statute it amends is here.)

There are a lot of problems with this. Let’s get the simplest one out of the way first: it will cost a lot of money, and put a huge strain on the FBI, which might have more important things to worry about. From the NYT:

“Many groups warned that the measure would compound already severe backlogs in the F.B.I.’s DNA processing. Mr. Fram of the F.B.I. said there had been an enormous increase in the samples coming to the databank since it started to operate in 1998, but no new resources for the bureau’s laboratory. Currently about 150,000 DNA samples from convicted criminals are waiting to be processed and loaded into the national database, Mr. Fram said.

He said the laboratory had added robot technology to speed the processing. But in the “worst case scenario,” where the laboratory receives one million new samples a year, Mr. Fram said, “there is going to be a bottleneck.””

That could, of course, be solved by providing more funding. Other problems, which I’ll discuss below the fold, are more interesting and less tractable.

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by hilzoy

From the NYT:

“Deep into an updated Army manual, the deletion of 10 words has left some national security experts wondering whether government lawyers are again asserting the executive branch’s right to wiretap Americans without a court warrant.

The manual, described by the Army as a “major revision” to intelligence-gathering guidelines, addresses policies and procedures for wiretapping Americans, among other issues.

The original guidelines, from 1984, said the Army could seek to wiretap people inside the United States on an emergency basis by going to the secret court set up by the Foreign Intelligence Surveillance Act, known as FISA, or by obtaining certification from the attorney general “issued under the authority of section 102(a) of the Act.”

That last phrase is missing from the latest manual, which says simply that the Army can seek emergency wiretapping authority pursuant to an order issued by the FISA court “or upon attorney general authorization.” It makes no mention of the attorney general doing so under FISA.

Bush administration officials said that the wording change was insignificant, adding that the Army would follow FISA requirements if it sought to wiretap an American.”

You have to love that last part. I mean, why shouldn’t we trust them on this point?

You might be asking yourself: what, exactly, does section 102(a) of FISA say? I gather that it’s 50 U.S.C. 1802(a) (and, for the record, why don’t they make it easy for us non-lawyers and cite the section of the US Code, not the section of the original act?) I’ve pasted it below the fold. Short version: it puts a lot of restrictions on when, exactly, the President, through the Attorney General, can conduct a warrantless wiretap. Among other things, it requires the Attorney General to certify in writing that “there is no substantial likelihood that the surveillance will acquire the contents of any communication to which a United States person is a party,” and it also requires that s/he transmit this certification to the FISA court.

It doesn’t sound like a minor deletion to me, especially since it fits what we know about the warrantless wiretap program so neatly.

I wish we had an administration we could trust to obey the law. You’d think that it would help that all those godfearing people swear oaths to preserve, protect and defend the Constitution, which, last time I checked, includes a requirement that the President take Care that the Laws be faithfully executed. Apparently not.

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by Katherine

There is still a chance–maybe not a very good chance, but a real chance–to change one of the worst aspects of the detainee bill. Carl Levin and Arlen Specter* are apparently planning to co-sponsor an amendment to remove the section that strips the courts of jurisdiction to hear habeas corpus claims over Guantanamo.

I don’t have time to write a long post about why this is important. There are many, many such posts in our archives if anyone wants to look. Here’s one. Here’s another, which contains links to still others.

This list gives the contact information for every U.S. Senator.

Please call, and ask them to support the "Specter-Levin amendment restoring habeas corpus". (I don’t have the amendment #). Please also consider asking other people to call, and if you have a weblog, writing a post asking them to do so. Obviously, you might also consider asking them to filibuster the detainee bill itself.

I don’t know what the odds are on this, but the vote was close last fall; it should at least be close again. Even if it’s not–I think it matters that as many people contact their representatives as possible. (It matters to me, at any rate). And it takes five minutes.

Also, if you can get an answer out of your Senator about his or her position, please post it here. Thanks.

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by hilzoy

In my last post, I asked the question: why are Lindsey Graham and the administration so eager to strip detainees of their legal rights? I considered various arguments that they have advanced, and as far as I can tell, they don’t really hold up. Detainee cases are not clogging the courts, and while they might interfere with interrogations by, for example, breaking detainees’ isolation and giving them a ray of hope, they do not in any way make it impossible for those interrogations to continue.

So why are they doing this? Everyone has probably figured this out long before I did, but: I was thinking of the habeas-stripping provisions from the point of view of a detainee, who might wonder: what legal recourse do I have if this bill goes through? How can I protest my detention if, for instance, I have been found innocent but not released, or if I have been tortured? The answer to that question is, as far as I can tell, ‘you have no recourse’; and that horrified me.

But then it occurred to me to think of it from a different angle: from the perspective of the system of extraterritorial prisons that we seem to be setting up. From that point of view, the main question raised by the “compromise” bill (pdf) is a different one, namely: who has the right to question, in a court of law, any aspect of our treatment of alien combatants held outside the US? As far as I can tell, with very limited exceptions, the answer to this question is: no one but the very same government that set the system up in the first place.

This means, basically, that this bill will remove the entire system of detention, with the exception of its military commissions and combatant status review tribunals, from any judicial oversight at all.

Courts do not get to decide for themselves to investigate some activity that they suspect might violate the law. In order for a court to consider the question whether something is lawful, someone has to bring them a case that raises that question. By preventing anyone but the government from bringing any such case, this bill ensures that unless the government decides to bring one itself, no case that would give the courts a reason to consider anything that goes on during a prisoner’s detention and interrogation can ever be brought. Which is to say: it removes the entire system of detention, except for its military commissions and CSRTs, from any judicial review. Literally anything could be going on during interrogation and detention, and the courts would have no way to pronounce on its legality, or to require anything to change.

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by hilzoy

As most of you know, the “compromise bill” (pdf) on military tribunals, like the various drafts that preceded it, would strip habeas rights from any alien enemy combatant detained outside the US. According to the AP, we are now holding about 14,000 detainees abroad. We have scheduled military commissions for ten of them. Of the remaining 13,990, the 450 or so at Guantanamo have already been stripped of their habeas rights, and the Graham Amendment last year said those whose cases had not already been filed could onlycontest their detention on the grounds that their Combatant Status Review Tribunals had not followed proper procedure. That leaves roughly 13,540 detainees who will be deprived of any right to contest their detention if the “compromise bill” becomes law.

I asked myself: why, exactly, are Lindsey Graham and the administration so eager to strip detainees of habeas corpus rights? In what follows, I will consider the reasons they have given, and ask whether they are plausible. (Answer: no.) In a subsequent post, I’ll consider an alternative explanation.

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