3

The AUMF and The Road Not Taken.

I’m reading Ron Suskind’s “The One Percent Doctrine.” I haven’t gotten too far, but my eyebrows definitely went up when I read that the draft of the Authorization for the Use of Military Force that administration lawyers submitted to Congress just after the September 11 attacks would have authorized the President to use all necessary and appropriate military force even within the United States in order to prevent future attacks. The language about domestic deployment of military force didn’t make the final cut in Congress.

6

Hamdan, Endo, Disarray, and Arrogance

In this NYTimes article on hesitations about legislation to establish military tribunals, this passage stood out:

Until now, the White House and particularly Vice President Dick Cheney had been dead set against working with Congress on issues involving the detainees, against the advice of some Republicans and some administration lawyers. By waiting until the court forced the issue, the White House may have made its task more difficult, leaving Mr. Bush with less support in Congress than he had after the attacks of Sept. 11.

I am reminded of the discussions within the Roosevelt Administration (the War Department, the Justice Department, the Department of the Interior, and to a lesser extent the President himself) during the summer and fall of 1944 as they awaited the Supreme Court’s decision in Ex parte Endo.

The Endo decision came on December 18, 1944; it declared illegal the continued detention of loyal Japanese Americans in the eight “relocation centers” that the War Relocation Authority was operating at that time.

What’s interesting to me is that the Administration spent the summer and fall of ’44 preparing for the possibility of an adverse outcome in Endo. Felix Frankfurter tipped the Administration off that the decision was coming on the 18th; this enabled the Administration to preempt the Supreme Court’s decision by announcing on the 17th of December that it would be bringing the detention and exclusion of Japanese Americans from the West Coast to an end. It had a plan in place to end the mass exclusion of Japanese Americans and to replace it with a system of targeted individual exclusions of those it deemed especially dangerous.

Compare this to the disarray in Washington over the last couple of days.

It’s quite obvious to me that this Administration just could not bring itself to believe and plan effectively for the possibility that it might lose the Hamdan case, and lose it big.

Why am I not surprised?

0

Call For Papers: National Security Leak Prosecutions

The Association of American Law Schools Section on National Security Law is sponsoring a competition for papers on the topic of national security leak prosecutions in connection with its program at AALS in January. The winning piece will be published in the Journal of National Security Law and Policy and the author will be included on the panel itself. Three page abstracts are due September 5. The competition appears to be open only to law faculty. The Call for Papers is posted at:

http://www.wfu.edu/%7Echesner/NationalSecurityLaw/CallForPapers.pdf.

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It’s all fun and games until someone dreams about Orin Kerr.

Today ends my guest blogging stint here on concurringops., and I thank my hosts for having me. (I also thank Bill Sjostrom and his truthonthemarket posse for allowing me to cut my teeth guest-posting there. And, to that end, I thank Gordon Smith, Christine, and Vic for being the first to allow me to dip my toes in the blogging pool with Disney blogging.)

Allow me to leave with a few observations:

1. This blogging business is not easy (for me). Kudos to the bloggers here and all over the ‘net for churning out some valuable reading. Blogging is incredibly time-consuming, in order to do well (so I am told).

2. To that end, I apologize to those of you who replied to some of my threads but never received a personal response. I am very sorry – I appreciated all of the comments, and my inability to respond to everything has nothing to do with the substance or quality of the comments.

3. To *that* end, blogging strikes me as a lot like waitressing – waitressing was by far the hardest job I have ever had in my life. The average waitress is, at any given time, juggling about 18 different tasks, all of which are time pressured. Moreover, people *care* about what their waitress is doing, such that mistakes are noticed. You can’t just spill a tiramisu accidentally on a guest and walk away. (Ask me how I know.) One of the worst aspects of the waitressing job is going home at night and *dreaming* about waitressing and all of the things you did wrong that evening. “Oh, I forgot to refill that fellow’s Coke” and “Ohmygosh – that redheaded lady on Table 24 never got her extra dish of ranch dressing with her fries” and “I dropped the *whole* carafe of red wine – I can’t *believe* that I did that.”

It is for this reason that I knew I was in trouble when I started dreaming about blogging. Indeed, last weekend, I had a dream about a blogging conference, at which I met Orin Kerr. Mind you, I don’t know Orin Kerr, I have never spoken with him, I have never spoken about him, I have never e-mailed him, I would not know him if I crashed into him on the street, and he was never even on my radar screen until I started blogging. But now I have dreams about blogging conferences and prolific bloggers, and those sorts of odd-ball dreams just solidify my belief that I do not have the mental stamina to be a Bainbridge-esque blogger.

4. That said, if I can finish in the next couple of hours the paper I am currently grinding to finish, I might whip out one last concurringops post on “sex for money.” I have been sitting on this “sex for money” post for quite some time, because I am not quite sure what sort of a reception a “sex for money” post would get.

5. Speaking of which, I would like to thank God for giving me the strength to stay away from this train wreck. A younger Nowicki would have jumped into the fracas. This old and tired Nowicki finally knows enough to stay away from things like that and instead spend her time trying to analyze perhaps meaningless data.

6. For those of you who are still reading, you will be delighted to know that my next iteration of the “Nowicki Not-in-Good-Faith” manifesto will (a) have graphics (thanks to my good friend Benjamin Nelson) and (b) have a deconstructionist and Sartre discussion. To that end, I know very little about either Sartre or the deconstructionists, so, if you ever run out of things to think about, think about both of those things, and e-mail to me your thoughts (enowicki- at – richmond – dot- edu).

4

Green on Hamdan (Part II): Who’s the Greatest Clerk Ever?

wake.jpgWe’ve invited my colleague, Temple Professor Craig Green, to comment for us on Hamdan. (More introduction here.)

He has provided two different posts for us. Here is the second:

John Paul Stevens: Best Law Clerk Ever

One “lighter” note about Hamdan.

Recently, a few folks (i.e., John Ferren, Joseph Thai, Diane Amman (74 Fordham L.R.), and li’l old me ) have struggled to draw attention to Wiley Rutledge, for whom Stevens clerked on the Court many years ago. Rutledge confronted lots of “executive detention” issues in World War II, and that experience profoundly affected the pre-Justice Stevens.

Before yesterday, the most remarkable episode in this intergenerational overlap was the fact that Stevens wrote the Rasul majority – extending habeas jurisdiction to GTMO detainees – which vindicated a Rutledge dissent that law-clerk Stevens helped draft almost sixty years earlier. Pretty crazy right?

Well, we now know that the beat goes on. The most “famous” opinion Rutledge ever wrote (no smirking please) was a dissent attacking General Yamashita’s conviction before a procedurally flawed military commission. Yesterday, Stevens and the Court overturned that precedent almost casually. One minute, Stevens explained that Yamashita “has been seriously undermined by post-World War II developments” (not including any S.Ct. decisions, mind you). The next, the “notorious” Yamashita decision “has been stripped of its precedential value.” Just like that.

I think future generations won’t fully appreciate what Stevens accomplished in Hamdan, at least till the conference notes come out. The case was extraordinarily hard, and Stevens assigned himself the opinion, despite knowing that: (i) very talented dissenters would level a slew of pretty good arguments against him, and (ii) Kennedy’s vote has not proven, shall we say, 100% reliable in such cases. Stevens had to be strong enough to fend off the dissents, but not too strong to hold a possibly wobbly fifth vote.

In my own melodramatic way, i think Stevens’s success in Hamdan represents his most important work in thirty years of distinguished service at the Court. The passage of time, combined with the normative power of the actual, may lead us to someday forget how unexpected, even astonishing, Stevens’s accomplishment is. But one may be sure that Rutledge and his generation would not. Never before has a Supreme Court clerk succeeded in converting his former boss’s dissents to majority opinions – much less with such dramatic effect. So let’s celebrate for JPS – the greatest law clerk in U.S. history. Then we’ll just have to wait to see if Chief Justice Roberts gets his own shot at the title . . .

1

Green on Hamdan (Part I): Who’s Afraid of the War on Terror?

green.jpgWe’ve invited my colleague, Temple Professor Craig Green, to comment for us on Hamdan. Craig has recently written an article on Wiley Rutledge, Executive Detention, and Judicial Conscience at War, and is currently working on a project titled Repressing Erie’s Myth. He has provided two different posts for us. Here is the first:

Who’s Afraid of the War on Terror?

Not Justice Kennedy, it seems. And (pace Marty Lederman) maybe that’s the biggest lesson from yesterday’s Hamdan decision.

[Readers who haven’t consumed the decision’s 177 pages will find lots of quality background material here. For my part, i’ll ignore interesting (??) disputes over abstention and jurisdiction to focus on the merits.]

The Court’s bottom line is that Congress in 1916 implicitly (and without anyone’s really noticing) forbade all wartime military commissions unless they comply with: (i) the international law of war, and (ii) all “practicable” rules of ordinary courts martial. That rule stands on two statutes: § 821, concerning international law, and § 836 , concerning courts martial directly.

Justice Stevens wrote for Souter, Ginsburg, Breyer, and occasionally Kennedy. In the parts that all five joined, Stevens held only that the procedures for Hamdan’s military commission differed too much from a normal court martial with too little justification. The Five held that President Bush never justified the military commission’s need for the differences in evidentiary standards and abilities to confront inculpatory proof. That failure violated § 836 directly, and also violated § 821 because the Geneva Conventions’ Common Article III required a “regularly constituted tribunal,” which the Court read to presumptively mean a court martial.

In sum, the Court sketched two statutory routes toward one simple result: Military commissions must mirror courts martial, except where a satisfactory reason is offered for the difference.

[Stevens also wrote that Hamdan’s conspiracy count was unprecedented (and illegal) under international law, and that international law itself required allowing Hamdan, at the very least, full confrontation of evidence against him. For these parts, however, Stevens drew only four votes.]

The above interpretation isn’t (yet?) orthodox, and some readers may have to slog through the opinions to decide for themselves. But let me flag something that could be overlooked, using Professor Balkin as a partial foil. Balkin suggests that Hamdan is “democracy forcing” (great phrase) because the Prez has to go to Congress if he wants “more authority,” e.g., by relaxing §§ 821 and 836. Balkin’s obviously right that Congress could change those statutes, and he explains that the democratic consequences of doing so could be salutary. But does Hamdan make statutory change truly necessary? i’ve got my doubts.

If, as the majority says, the problem here is a failure to “explain” or “justify” why departures from court- martial procedures are necessary, why wouldn’t the Prez just take on that task – either in individual cases or perhaps as a general matter? He might succeed, he might fail. But such efforts would test whether the Court’s gestures toward Presidential judgments are serious. (See, e.g., Section VI.C’s “assumption” that Presidents deserve “complete deference” in deciding when normal procedures are inappropriate, and its emphasis that, in Hamdan “[t]here is no suggestion . . . of any logistical difficulty in . . . applying the usual principles of relevance and admissibility.”). If the Court accepted such arguments, it would let almost all the air out of the “democracy-forcing” balloon. No Congress after all, just a better record.

If Hamdan really is so limited in scope, however, we should rethink what Kennedy was doing here. [Kennedy’s the focal point because Stevens & Co. would happily have gone farther.] Hamdan’s not a ringing endorsement of timeless procedural fairness? (See Balkin.) It’s not even a Bickelian spur for democratic dialogue? (See supra.) Then what?

Here’s my shot: The rule in Hamdan matters most if the President doesn’t have “the goods” to prove military necessity; and maybe Kennedy wanted to see those cards on the table. Perhaps some readers recall Hamdi and Padilla? The Prez once claimed that each was a dangerous terrorist who absolutely had to be detained without charges or adjudicative process. The fate of the Republic, evil-doers, etc., etc. Then what happened? If cynics are to be believed, the Court called the government’s “bluffs,” and Hamdi was returned to Saudi Arabia (perhaps sitting on a beach sipping non-alcoholic pina coladas?), while Padilla’s now being tried in federal district court. Where’s all that “military necessity” now?

Maybe these recent experiences, or media events, or freestanding judgment, have made Kennedy’s decreasingly willing to accept claims of executive wartime exigency. If so, and especially if (as seems likely?) Congress and the Prez actually don’t pursue the option of military commissions against Hamdan etc., such a spiraling credibility gap might well damage the government’s arguments in future cases. Can’t you almost hear Stevens’s whisper in the next case – whether it concern interrogation tactics, the Detainee Treatment Act, or some such – “Remember, Tony, that’s what they told us last time. You stood strong, asked for more proof, and look, we’re all still here, safe, and sound.”

Maybe skepticism’s a good thing. Maybe we trust the government too much, especially as to national security. But there’s an obvious cause for concern. Thomas’s dissents, here and elsewhere, surely stand on absolute bedrock in pronouncing that courts don’t know much about military matters. Indeed, the judiciary’s very often (from the Civil War to World War II internment to now) required simply to trust or not to trust executive assertions of need. Maybe some readers think the Court’s doing all right so far. But any of us who would celebrate what the Court has done in Hamdan and other GWOT cases must confront the reality that someday, maybe not today, maybe not tomorrow – but someday – there might be a dangerous wolf after all. Or at least a very fierce-sounding lamb.

1

Panic! More Private Data Lost

The Birmingham News reported, yesterday, that a computer with private employee data from supermarket chain Bruno’s was lost. An employee with Deloitte put his notebook in checked baggage at the airport. Naturally, it did not reappear on the baggage belt. (The story does not clarify whether the bag didn’t appear, or whether the bag arrived sans laptop.) Apparently the folks at Royal Ahold (the owner of Brunos) have ongoing problems in this regard. Last May, another Ahold supplier lost a computer containing private employee data. Nobody thinks this is a good thing, but is it really newsworthy?

We have seen several stories, recently, about lost or stolen laptops containing troves of private data. These incidents do introduce a risk that the data will be converted to improper uses – most obviously identity fraud – but I suspect that, in most cases, the ultimate recipient of the computer was seeking, well, a computer. In any case, one thing is clear: the media like to find stories that fit into existing news frames. In particular, they like to find stories that fit with growing social anxieties. Thus, a few years back, a couple of drivers went nuts on the road, taking shots at drivers in other cars. Some savvy writer coined the term “road rage”. Suddenly, aggressive acts by drivers – even those that would have been too mundane to report – became newsworthy as proof of surging “road rage.”

So it is, I fear, with misplaced computers containing private data. The good news for Brunos employees is that, given baggage handling norms, the compuer is likely inoperable. And even if does work, it’s probable that the thief – if there be one – simply wanted some additional computing power. On the other hand, maybe that notebook is for sale this very day in at the nation’s lost baggage depot – The Unclaimed Baggage Center – in Scottsboro, Alabama. If so, identity thiefs would be advised to hustle on down before a local farmer buys the unit and accidentally erases pages of highly valuable private information.

1

Law and Society Ass’n. Conf. Next Week

I hope many of you are planning on attending the Law and Society Ass’n. Annual Meeting in Baltimore next week.

I will be there, and I hope to meet as many readers and bloggers as possible. To that end, Prawfs/Glom are organizing a happy hour for bloggers/readers.

I am lucky enough to be presenting a Director Liability paper on a Corp./Secs. panel on Thursday, at 8:15 a.m., and Jayne Barnard and Erica Beecher-Monas will also be presenting papers at that panel session (I have seen Jayne’s paper, and it is incredibly interesting – a bit of a profile on the secs. fraudster). Usha Rodrigues (such a superstar!) will be the discussant, Barbara Black will be the panel chair, and Joan Heminway is the organizer. I am anticipating a great session.

Though I am busily finishing my paper and preparing my presentation, a bigger, more pressing issue looms. To wit, should I run in the 5K Fred Dubow Memorial Fun Run on Sunday? I don’t suppose any readers/bloggers are planning to run?. . . . You see, it is one thing for me to be willing to put my academic thoughts out there and risk people saying “Nowicki has no idea what she is talking about.” It is entirely another thing to be willing to risk having people walk away from the conference saying “Not only are Nowicki’s ideas moronic, she is a painfully slow runner. So slow it hurts to watch.” To that end, who are the runners among us, and what sorts of times do you anticipate? . . .

0

Steve Bainbridge on “Evading” Hamdan

In a post titled “Evading Hamdan,” Steve Bainbridge notes that there’s a different way for the Executive to get the military commissions it wants than to hash out legislation establishing them with our elected representatives in Congress. Congress could instead try to strip the federal courts of all jurisdiction to hear cases out of Gitmo, or, presumably, cases leveling challenges of any sort to military commissions.

An interesting thing to think about, I suppose.

But I’m not sure I see the normative case for trying to give the courts the boot and setting up a standoff between Congress and the judiciary over the scope of Congress’s power to strip jurisdiction. Congress can make policy in this area, or it can try to eliminate the courts so as to allow the Executive to make essentially unreviewable policy. Why would it choose the latter over the former?

Steve says he’s not advocating the idea of jurisdiction-stripping, but simply mentioning it. I’m not so sure: when you say, as Steve does, that you doubt Congress has “the guts” to strip the courts of jurisdiction, and when you muse publicly about whether “anybody in Congress will have the chutzpah to run it up the legislative flagpole” — and indeed, when you frame Hamdan as a decision to be “evaded” — some people might think you believe that jurisdiction-stripping would be a good idea. That’s what I’m inferring from Steve’s post, in any event. Perhaps Steve can clear things up by explaining his take on the merits of the idea he’s floating.

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“An era of lawless fascism and rubberstamp courts”

That’s what Tennessee law professor Glenn Reynold seems to say would be a fair characterization of our times if Justices Scalia, Thomas, Alito (and presumably the Chief) had prevailed today in Hamdan. They didn’t, but it’s worth pointing out that Justices Roberts and Alito have nothing but time to consider chinks in Hamdan’s armor, and rumors of Justice Stevens’ possible retirement continue to swirl.

But Professor Reynolds then offers the following very strange sentence, complete with a link to an intemperate blogger urging further administration defiance:

“[Rebuking those who claim that we’re an an era of LFaRC is] (another) good reason for Bush not to follow advice from some quarters to disobey the ruling, a la Andrew Jackson.”

Is it just me, or is this comment a little Quattrone-esque? And, why pick on Jackson, whose involvement in lawless rhetoric is probably apocryphal, and has little current political purchase anyway. Why not say: George Bush can try to ignore the consequences of Hamdan just like Dwight Eisenhower tried to ignore the consequences of Brown.

We’re going to have a special guest blogger offer some thoughts as to the why and how of Hamdan later this evening or tomorrow morning. In the meantime, check out the latest at SCOTUSblog, essential as always.