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"It is better to be drunk with loss and to beat the ground, than to let the deeper things gradually escape."

- I. Compton-Burnett, letter to Francis King (1969)

"Cynical realism – it is the intelligent man’s best excuse for doing nothing in an intolerable situation."

- Aldous Huxley, "Time Must Have a Stop"







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Thursday, 29 June 2006
Legal Matters: Third Time is Charm, or Not
Topic: The Law

Legal Matters: Third Time is Charm, or Not

School's out, the Fourth of July is at hand, and the Supreme Court is ending its session and packing it in for the summer, which in their case means from now until the first Monday in October. That's a long summer, but not to worry, the week gave us their decisions on what is permissible and what is not, as it is their job to listen to the opposing views on this matter and then look closely at the constitution, and decide who is right, and who is being silly. That's been their job since 1803, since Marbury v. Madison - Chief Justice John Marshall presided over that case, and used the case to legally establish the right of the judiciary - and in particular, the Supreme Court - to determine the constitutionality of the actions of coequal branches of government, and that's the basis for the current authority of the Supreme Court. After this week's closing flurry of decisions, the legal-eagles in the current administration might now start saying that one from back in 1803 was clearly decided wrongly.

The first two of the three big decisions weren't so bad for the guys in charge, The third was a killer.

The first was Kansas v. March (PDF format), having to do with a case bumped up from the Kansas Supreme Court, where that lower court had ruled that state's capital-sentencing system was unconstitutional. They have the usual system out there - in death penalty cases, after the jurors find the defendant guilty beyond a reasonable doubt, that jury must then weigh various statutory "aggravating factors" against "mitigating factors." The former includes things like how shocking and awful the crime was and all that, and the later are pleas for mercy - the poor defendant was abused as a child or whatnot. The jury then decides whether the defendant should die, or just rot in jail. But Kansas added a twist. If there's a tie - the aggravating factors pretty much balancing the mitigating factors - then the defendant dies. That is the default - all things being equal, you die. That's how they do things in Kansas.

The Supreme Court said that's fine, don't get all excited. The vote was five to four and Justice Clarence Thomas, the fellow who likes porn tapes and said those odd things about Coke cans to Anita Hill, authored the majority opinion - this just does not violate the prohibition on "cruel and unusual punishment" in the Eighth Amendment. The jury was given the opportunity to consider all the mitigating evidence, there's no compelling reason to micromanage one state's specific sentencing scheme. Jurors had the right to look at everything, but there's no constitutional rule requiring how the state decides to break any tie. The dissents all harped on the idea that this was about death, and that made the default "cruel and unusual punishment." The reply was a resounding "not our business." Or so it seemed.

Score one for the forces of vengeance and retribution. As the president, who holds the record for governors ordering executions to proceed, likes to say, "Folks have to understand there are consequences." Even when all things are equal. And "folk" like death as a default.

The second case was the Texas thing - instead of redistricting every ten years after each census, Tom Delay, now indicted on all those felony charges, had the folks in Texas change the boundaries of all the congressional districts in the state in the middle of the ten years, and the Republicans picked up six seats in Congress in the election that followed. The Democrats called foul, and sued, and lost. The decision is here (132 pages of PDF), but you can find a summary here and a good news item here. It comes down to this - the court said a state can redistrict any time it want as there's nothing in the constitution that forbids it (the census clause of the Constitution is only a suggestion, it seems), and there no controlling specific federal law about all this, so what happened in Texas was, while plainly political, not a constitutionally impermissible gerrymander. It may be crass and unfair, but it's not illegal. But then what happened in one district (the Twenty-Third) was illegal and unconstitutional. There you can't just reduce its Hispanic percentage for political reasons - there are specific laws in that case, like the Voting Rights act.

Ah well, the Supreme Court isn't going to get into hardball politics and the law, again. Florida in 2000 was quite enough. This was narrow and precise, without consideration of larger issues, like fairness.

Walter Dellinger - professor of law at Duke University and a partner in the law firm of O'Melveny & Myers - isn't impressed -
Partisan gerrymandering is wrong, and it is a constitutional wrong, for it involves discriminating against some voters on the basis of their political beliefs and interfering with the process of self-government by the majority. But what is a court to do? An appreciation of the political effects of different districting plans cannot be eradicated from the legislative mind. How much consideration is too much? How is a court to tell? And will the body politic believe that federal judges, because they are unelected, are disinterested referees of the political process?

Until I heard the oral argument, I thought that the Texas case might be the exceptional one in which there was actually a judicially manageable standard that could be invoked to set aside what the state legislature had done. The facts suggest a perfect storm of partisanship: Texas had adopted a Democratically biased congressional redistricting plan in 1990; a split in the control of the state legislature had led to deadlock over the required decennial redistricting in 2001; a court had to act to adopt a plan. Tom DeLay, accusers said, raised illegal corporate money to gain control of both state houses, tried to get the Federal Aviation Authority to monitor Democrats fleeing to Oklahoma to defeat a quorum, and pushed through a partisan plan that made the Texas delegation to Congress heavily Republican.

Finally, it seemed, a case that could be resolved with a "judicially manageable standard." Given the almost unbroken tradition, pegged to the census clause of the Constitution, that the lines for Congressional districts are redrawn every 10 years, some explanation is required for the highly unusual act of the Texas mid-decade gambit. Of the Texas move it can truly be said, to paraphrase the late coach Vince Lombardi, "Partisanship was not the most important thing; it was the only thing."

One sentence leaps out in today's controlling opinion by Justice Kennedy in the Texas redistricting case. He is writing about the decision of the newly installed Republican majority in the Texas state legislature to take the highly unusual step of redistricting the state's U.S. congressional seats in the middle of a decade - specifically, this one. And he says: "The legislature does seem to have decided to redistrict with the sole purpose of achieving a Republican congressional majority, but partisan aims did not guide every line it drew."

I would have thought the first part of that sentence would have disposed of the case: If the legislature has decided to undertake an action "for the sole purpose of achieving a Republican congressional majority," it has right then and there failed the basic constitutional test that all legislative acts must, at the very least, serve some legitimate legislative purpose. An act with the "sole purpose" of achieving a partisan aim does not satisfy that standard.
Yeah, but it all stands as it is now. And the old "one man one vote" myth is just that - that's not how things work. That's why we have an electoral college and all that. Everyone games the systems and some votes count more than others. Suck it up and move on.

Score one for the Republicans. They know how to play hardball.

Would the third time be charm?

Those in charge of things, "half in love with death" (not quite what Shelley meant) and fully in love with power, were on a roll. But then there was this on Thursday, June 29, the Supreme Court rules 5-3 that George W. Bush overstepped his authority in ordering military trials for detainees at Guantánamo Bay - and that the procedures administration had intended to use violate both US law and the Geneva Conventions (treaties we ratified that thus have the force of law). They said that the administration can hold the detainee in question - Salim Ahmed Hamdan - "for the duration of active hostilities." That's fine. No problem, but the president really must "comply with the rule of law" if he wants to have the guy or any other detainees tried and subjected to criminal punishment.

It was Justice Anthony Kennedy joined John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter in the majority. In his separate opinion, Kennedy said that trial by military commission "raises separation-of-powers concerns of the highest order," and that the "concentration of power (in the executive branch) puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid." Antonin Scalia, Clarence Thomas and Samuel Alito dissented. Scalia said they had really did have no jurisdiction in the matter, implying it was not their job to tell the president what he could or could not do. The new Chief Justice, Roberts, sat this one out. Before he got the current job he had ruled on the matter from the bench of a lower court - no one could tell the president what he could or could not do. His new colleagues just don't seem to agree.

The ruling, Hamden v. Rumsfeld, is here (one hundred eighty pages in PDF format). That's a little daunting.

There's an interesting survey of the implications from Tim Grieve here, and there are some curious implications.

First this could impact the whole business of warrantless wiretaps. Grieve points to this, and comments -
The decision, five justices - Kennedy, Stevens, Souter, Breyer and Ginsburg - reject the Bush administration's argument that the power to try detainees by military tribunal was implied in the Authorization for Use of Military Force approved by Congress in the days after 9/11.

... the Bush administration has advanced exactly the same argument in support of its warrantless wiretapping program. That is, Attorney General Alberto Gonzales and other administration officials have argued that Congress somehow implicitly authorized the warrantless wiretapping of American citizens when it passed the Authorization for Use of Military Force, or AUMF, in 2001.

So if the AUMF didn't implicitly authorize the use of military tribunals at Guantánamo, it probably didn't authorize the warrantless wiretaps either, right? That's how it seems, but readers with a keen memory will recall that in the Hamdi v. Rumsfeld decision in 2004, five justices - O'Connor, Rehnquist, Kennedy, Breyer and, in a separate opinion, Thomas - reached the conclusion that the AUMF did authorize the detention of enemy combatants for the duration of the conflict in which they were captured. Sandra Day O'Connor wrote then that it is "of no moment" that the AUMF says nothing about detaining enemy combatants. "Because detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war," O'Connor said, "in permitting the use of 'necessary and appropriate force,' Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.'"

Why is the outcome in Hamdan different?
And there it gets complicated. Go read it, if you dare, but it comes down to this -
Assuming a legal challenge ever got to the Supreme Court, the outcome could turn on two questions. First, does the Foreign Intelligence Surveillance Act leave open the possibility that another "Act of Congress" might authorize spying without the warrants FISA requires? Although FISA itself says it's the "exclusive means by which electronic surveillance ... may be conducted," the administration has argued that FISA actually contemplates the possibility that a future act of Congress could expand the president's surveillance authorities. But even assuming the court agreed with that view, it would still have to grapple with the second question: If FISA does contemplate additional, broader authorizations for electronic surveillance, did the AUMF amount to one? To answer that question, the court would have to decide whether spying on American citizens - and, arguably, doing so without a warrant - is such an inherent part of waging war that the power to do so must be read into the AUMF in the same way that the power to detain enemy combatants was.
That could be interesting. Is listening to everyone's phone calls and scanning and storing their each and every email a necessary and appropriate use of force? That may be a stretch. Common sense says no, but these guys aren't big on common sense.

On the treatment of these detainees things are clearer - the interrogation techniques the Bush administration is using in the war on terror are now in question.

Marty Lederman, a Georgetown law professor who served in the Clinton and Bush Justice Departments, explains here that this Hamdan decision essentially "resolves the debate" over what interrogation techniques the United States may use against detainees -
More importantly, the Court held that Common Article 3 of Geneva applies as a matter of treaty obligation to the conflict against Al Qaeda. That is the HUGE part of today's ruling. The commissions are the least of it. This basically resolves the debate about interrogation techniques, because Common Article 3 provides that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever" - including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment." This standard, not limited to the restrictions of the due process clause, is much more restrictive than even the McCain Amendment.

... This almost certainly means that the CIA's interrogation regime is unlawful, and indeed, that many techniques the administration has been using, such as waterboarding and hypothermia (and others) violate the War Crimes Act (because violations of Common Article 3 are deemed war crimes).
Oops. There's a problem if there ever was one.

But you remember this, the Attorney General himself arguing that the war on terror "renders obsolete" the Geneva Conventions' "strict limitations on questioning of enemy prisoners and renders quaint some of its provisions." The court says he's just wrong, as a matter of law. Grieve notes that in a section of his opinion in which four other justices joined, John Paul Stevens says that the Geneva Conventions' Common Article 3 applies to the U.S. conflict with al-Qaida. And Lederman argues that these prohibitions are stronger than those contained in the McCain torture ban the president signed last year. Grieve says he "might also note that the administration has argued that the McCain ban can't be invoked in court with respect to detainees at Guantánamo - an argument that may be moot if the Geneva Contentions' protections apply anyway."

This third decision seems to be a big deal.

See Walter Shapiro here -
It remains one of the most chilling public statements by a senior Bush administration official. Testifying before the Senate Judiciary Committee in December 2001, Attorney General John Ashcroft blustered, "To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists - for they erode our national unity and diminish our resolve. They give ammunition to America's enemies and pause to America's friends."

Ashcroft's inflammatory claim that civil libertarians were arming al-Qaida came on a day when the attorney general had the unsavory duty of defending the administration's initial rules covering military tribunals. Now four and a half years later, the Supreme Court's end-of-the-session decision in Hamdan v. Rumsfeld both rejected these military tribunals and quickened the hearts of civil libertarians.

Read narrowly, the court's ruling applies only to the roughly 450 prisoners held at Guant?namo. In fact, Thursday's decision does not even guarantee any kind of trial for these detainees. As Justice Paul Stevens noted in his majority opinion, "Hamdan does not challenge, and we do not today address, the Government's power to detain him for the duration of active hostilities." Yet such a gimlet-eyed interpretation may be the equivalent of believing that Brown v. Board of Education applies only to schools in the greater metroplex of Topeka, Kan.

It is possible that Hamdan may someday be seen as the turning point in repudiating the Bush-Cheney view that all branches of government are equal but some are more equal than others. An optimist could find persuasive evidence in the decision that the Supreme Court was, in effect, saying to the White House: "Enough of your cockamamie theories about the all-powerful president in wartime. Enough of your cloud-cuckoo readings of the resolution that Congress passed after Sept. 11. And enough of your cataclysmic claims that the war against al-Qaida requires a wanton disrespect for international law and the norms of civilized behavior."

... the most compelling passage in Stevens' opinion is this four-word sentence: "That reasoning is erroneous." The octogenarian justice was rejecting the government's cherished argument that not one syllable of the Geneva Conventions applies to alleged al-Qaida captives at Guant?namo. Stevens held that, at minimum, Hamdan and his companions on the American-held tip of Cuba are covered by the portions of the Geneva Conventions that regulate the treatment of prisoners in civil wars and similar conflicts.
Or not. The White House could say that while what the Supreme Court rules is interesting, but they don't that they have to follow anything they say. The three branches of government are coequal, after all. And Marbury v. Madison was wrongly decided. Who is John Marshall after all? And that was back in 1803 - and 9/11 changed everything. And so on and so forth.

Lederman - "After today, any waterboarding will open you up to a possible war-crimes prosecution." But he suggested that Thursday's decision probably could not be used retroactively to punish anyone for employing "extralegal interrogation techniques." On the other hand he said - "I wish I could see the memos that are going out today from the CIA to the field."

That would be cool.

As for other view, see Walter Dellinger (cited above) and Dahlia Lithwick in dialog here.

Lithwick -
I am struggling to feel the same euphoria about the court's repudiation of President Bush's military tribunals in today's rather stunning Hamdan decision.

... If Lederman is right on this, I can take some comfort in an opinion that's about more than just a handful of guys at Guantanamo whose trials are on hold. But for the moment, I am trying to imagine explaining to Mr. Hamdan that the good news today is that he doesn't get a trial at all. The court finds that Hamdan can be detained "for the duration of active hostilities." It's not like the base at Guantanamo has to be closed. This case may not have that much immediate impact, outside of Guantanamo, but as a judicial smoke signal to the president, it's a whopper.

... Today's rebuke to the president still feels hollow to me because I just don't believe the Bush administration cares what the Supreme Court thinks about the constraints on executive war powers. As a legal matter, Bush lawyers always claimed they'd won the last round of enemy combatant cases, even when the rest of us heard O'Connor's admonition, in Hamdi v. Rumsfeld, about a state of war not being a "blank check" for the president. As a practical matter, even if it's true that U.S. forces and interrogators must now abide by the Geneva definition of torture, when is the petition for relief of a tortured detainee going to present itself before this court? And even if Guantanamo is closed, which I gather may soon happen, what is to stop Bush from falling back on secret prisons and extraordinary renditions - which we will never know about?

When I covered oral argument in Hamdan, I marveled at how Solicitor General Paul Clement unfailingly staked out the most extreme legal positions - positions that seemed utterly contemptuous of the court - and then refused to budge from them. He told an astonished Justice David Souter that it was possible for Congress to suspend the writ of habeas corpus accidentally. He told Justice Ruth Bader Ginsburg that enemy combatants simply have no rights under the Constitution and laws of the United States. He just kept repeating the Bush administration mantra: This is war and President Bush is king of the war.

At the time, I wondered how such an unbending, unyielding view of the law, and the world, made any sense. It didn't seem to me a particularly helpful tactic in dealing with a Supreme Court that thrives on nuance. When you're talking to nine people who can churn out 132 pages of painstakingly detailed nuance on a regular basis, does the argument that the president thinks courts are soft, sloppy, and slow really seem like a winner?

... Do the Bush folks take this simplistic view of their own power - throwing around ideas like "unitary executive" and FISA-as-optional - because in the end, they just don't care what the courts think?

The administration isn't really asking for constitutional blank checks. Why should it, when the president thinks he has his own constitutional Swiss bank account?

... Does the president believe he is bound by this decision? Does he refuse to send a really senior representative to a Senate Committee hearing on signing statements; or offer substantive responses to congressional questions about warrantless wiretapping; or offer a nuanced argument to the high court to make clear that he's not accountable to any of those entities? And if the administration refuses to be accountable, then what will today's decision actually achieve? It's all very good for Mr. Hamdan and his nine friends at Guantanamo. But won't it encourage Bush to detain/render/wiretap/torture in even greater secrecy?

Cheer me up, Obi-Wan, you're my only hope.
Dellinger -
Because in order to understand the larger significance of today's decision, it is important to be clear about exactly how this presidency departed from fundamental legal principles. The problem is not the president's assertion that he can ignore laws he believes to be unconstitutional. The problem is what laws he believes to be unconstitutional.

For the proposition that the president has the authority to decline to abide by statutes he views as unconstitutional, the administration has relied principally on an opinion I authored as head of the Office of Legal Counsel in 1994. And rightly so. That opinion is based upon long-standing and consistent executive practice. Moreover, the most relevant U.S. Supreme Court decision, Myers v. United States, 272 US 52 (1926), by clear implication considers it appropriate for a president to decline to execute unconstitutional statutes. And as President Carter's Attorney General Ben Civiletti wrote in an 1980 opinion, the president's constitutional duty to execute the laws "does not require him to execute unconstitutional statutes; nor does it require him to execute them provisionally, against the day that they are declared unconstitutional by the courts."

This view is based upon the principle that the president's ultimate obligation is to the Constitution, and if a statute contravenes the Constitution, the president has the authority to decline to enforce it. This applies to laws that unconstitutionally impinge upon the president's own power. It is also unremarkable for a president to announce his view that a provision is unconstitutional in a statement issued when he signs the law.

The problem has been what those presidential signing statements say - even worse, what the legal opinions intended to be secret assert. They claim that laws whose validity has never been seriously questioned are unconstitutional based on extravagant and untenable theories of presidential power.

The fundamental, profound category error made by the administration has been to confuse two utterly different meanings of the term "inherent presidential power." One meaning would refer to what the president has authority to do on his own in the fields of national security and armed conflict when Congress has not acted. That should be a very broad area. The term "inherent presidential power" could also be taken, however, to refer to matters so deeply at the core of presidential authority that that any act of Congress that regulated or limited the exercise of that power would be unconstitutional - even if Congress was acting under legislative powers clearly conferred by the Constitution. That should be an exceedingly small set of matters.

This administration has taken the astounding position that if the president has 'inherent authority' to do an act whenever Congress is silent, then it follows that any act of Congress that regulates such an authority is an invalid impingement on his "inherent power." This conflation of what a president can do if no law prohibits his action and what he can when the law forbids it is a truly insidious legal doctrine.

The court made short work of it today. RIP "inherent presidential authority" to violate valid laws.

This seemingly simply proposition has huge consequences.

... Today's decision has been criticized by conservatives on the court and by some off the court. But just as this is not a victory for terrorists, neither is it a defeat for conservatives, as many will come to realize. Placing the presidency back under the law will look quite different to critics when there is a president less to their liking in the White House.
Yeah. That makes sense, but what if the Supreme Court places the presidency back under the law and the president shrugs and ignores the whole business? Who's going to do anything about that? Both houses of congress are firmly Republican - the Texas redistricting took care of that - and angry now.

So the summer beings. No more court decisions until late fall, and all this plays out now in whatever way it will.

As in this -
The Bush administration likely will have to extend rights to terrorism suspects at the U.S. military prison at Guantanamo Bay, Cuba, that it has denied for years, after the Supreme Court invalidated the government's system of military trials and ruled that the detainees must be treated according to international standards, officials and experts said yesterday.

Senior administration officials acknowledged that the ruling scuttles their plans to put as many as 80 detainees through administration-created "military commissions" - with extremely limited rights - and said it is unclear how they will respond. The 5 to 3 ruling in Hamdan v. Rumsfeld sent officials scrambling to evaluate options for the 450 detainees at Guantanamo Bay, some of whom have been held for more than four years without trial.

The choices, experts and government officials said yesterday, largely include putting suspects through time-tested military courts-martial, charging them in U.S. criminal courts or working with Congress to develop new rules to comply with the court's decision.

The administration could also ask foreign governments to try the more than 150 prisoners it considers hard-core terrorism suspects. The rest are likely to be returned to their home countries for further detention or release.

But if the United States decides it wants to hold the trials, detainees probably would gain more access to the evidence against them and the right to be present for much or all of the proceedings - both of which were denied in some circumstances under the military commission rules, the experts and officials said.

The court did not rule on whether Guantanamo Bay should be closed, and its action does not affect operations at the facility. Military officials said yesterday that scheduled military commission hearings for 10 suspects have been suspended.

Retired Army Gen. Barry R. McCaffrey, a professor of international affairs at the U.S. Military Academy who visited Guantanamo Bay last week, said the military commissions were destined to fail. He said the government should have used courts-martial and the Uniform Code of Military Justice (UCMJ), which grants defendants more rights.

"We put ourselves in an unnecessary legal mess from the beginning, and now we've gotten ourselves in such a mess legally and politically, there's no easy solution," McCaffrey said yesterday.
No kidding.

Posted by Alan at 22:59 PDT | Post Comment | Permalink
Updated: Friday, 30 June 2006 09:12 PDT home

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