Category: Constitutional Law


Red Herrings in the Defense of Liberty Are No Vice

Today’s Washington Post contains an article on the upcoming congressional debate over the procedures to try Guantanamo enemy combatants that features this trope that I’ve seen or heard several times in the past few days:

“I don’t want a soldier when he kicks down a door in a hut in Afghanistan searching for Osama bin Laden to have to worry about . . . whether he’s got to advise them of some rights before he takes a statement,” [DOD Dep. GC Daniel] Dell’Orto said. “I don’t want him to have to worry about filling out some form that is going to support the chain of custody when he picks up a laptop computer that has the contact information for all manner of cells around the world, while he’s still looking over his shoulder to see whether there’s not an enemy coming in after him.”

House Armed Services Committee Chairman Duncan Hunter says the same thing later in the article, and Sen. John Cornyn repeated that idea on Tuesday on the NewsHour. My question: Where is this idea coming from? There’s nothing in the Hamdan decision, as far as I can tell, that even remotely touches on domestic criminal procedure rights being applied to the battlefield. If I’m reading Hamdan correctly, this is beyond a slippery slope argument, it’s digging a trench and then pointing to the slope.


Is Hamdan “Our Brown”?

It is sometimes said of today’s progressives that our agenda is a defensive crouch. More energy is spent rehashing defending old decisions than imagining new victories. I’ve always thought that this criticism, like critiques of democrats generally, is easy to exaggerate. Contingency, not planning, seems to win elections (and thus control courts). But it is true that today’s law students, of a certain mind, have few modern decisions that resonate like liberalism’s now fifty-year-old great triumph in Brown v. Board. Constitutional law class, with certain professors, can be like watching a slideshow of Aunt Mimie’s wonderful twenty-year old trip to England: it’s all stale and impersonal. Thus, a colleague at Temple suggests to me an interesting question: is it right to think of Hamdan as this generation’s Brown?

To be “our Brown”, a case must: (1) be controversial when decided; (2) attain orthodoxy quickly – so much so that a theory of constitutional interpretation that does not lead to its result is presumptively illegitimate; (3) purport to definitively resolve the major social question then facing the nation. (Roe and Lopez fail #2, for e.g.)

Hamdan has some of these characteristics, although (obviously) it was unanimous, it wasn’t written to inspire, and its scope is up for considerable debate. (Check out the Sunstein-Lederman debate). Indeed, if our guest Craig Green is right, perhaps the decision is nothing more than Lopez-redux: go forth, other branch, and collect better reasons. If the executive takes up Green’s challenge, or if later courts narrow Hamdan, then it has no shot at the Brown pantheon, and instead would be (at best) a “modern Youngstown.” But if the decision is seen to be a fundamental limitation of the executive branch, then perhaps its legitimacy will aggregate over time. Future judicial nominees would have to genuflect to the decision to achieve the bench: it would have taken its place in the canon.

Are there other contenders?


Tragical History Tour

In a few minutes I’ll be heading out to the site of the Mindoka Relocation Center for Japanese Americans in WWII, near Twin Falls, Idaho, with a busload of surviving former internees. We’ll be touring the site with National Park Service guides, and later we’ll visit a reconstructed barrack.

Reading Korematsu and the literature on the Japanese American internment is very important. But there’s no better way really to understand the camps than to visit them, especially (if possible) with people who were warehoused there on account of nothing more than their ancestry.

There are camp sites in southern California (Manzanar) and northern California (Tule Lake), northwestern Wyoming near Yellowstone (Heart Mountain), eastern Colorado (Amache), central Utah (Topaz), southern Arizona (Poston and Gila River), southern Idaho (Minidoka), and southern Arkansas (Rohwer and Jerome). If your travels ever take you through any of those regions, stop by. It’ll be worth it.


Our Founding Fruitcakes?

Trumbull, The Declaration of IndependenceHello! I’m excited to try this whole blogging thing from the other side of the comment line. Thanks to everyone at Concurring Opinions (Co-Op? Con-Op?) for letting me visit for a bit.

My research at the moment focuses on copyright and content protection (a/k/a DRM), but I thought I’d start off with one of my other loves, history. (If academics are divided between hedgehogs and foxes — “The fox knows many things, but the hedgehog knows one big thing” — I’m definitely more of a fox.) And what more appropriate topic, given the recent July 4th holiday, than the Founding and what it means for constitutional interpretation.

Lawyers tend to revere the Founding as a magical moment of almost perfect democracy. Obviously, most are aware that many of the Founders owned slaves, and that suffrage was limited to white male property holders. But the Founders created a democratic nation that has lasted and thrived for over two centuries, and it seems reasonable to attribute to them some special wisdom and foresight in establishing a political culture and a government that would withstand the whips and scorns of time.

I’m not saying that’s wrong, exactly. But it is interesting to go back and look at what was actually motivating the revolutionaries in that “magical moment,” and to discover them saying some things that make them look positively bonkers. What does that mean about the significance we should attach to what the Founders thought about anything? For example, should we continue to take the Founders’ fear of executive power seriously?

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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 . . .


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.


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.


“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.


Wild KPMG Fees Decision

Barely one day old, and Gonzalez-Lopez is already making waves in corporate law. To see the connection, however, you’ll have to bear with me for a bit of brush-clearing.

Judge Lewis A. Kaplan (S.D.N.Y.) today ruled on certain individual defendants’ motions to dismiss an indictment arising from the KPMG tax shelter investigation. (Large pdf here.) According to the defendants, their due process rights were violated when the U.S. Attorney pressured their former employer (KPMG) not to advance and reimburse legal fees incurred as individuals defendants. Judge Kaplan found a due process violation, scolded the government, and suggested a new lawsuit against KPMG to recover those legal fees, in which today’s decision would have collateral effect and make the proceedings summary. In short: the decision seems to constitutionalize the right to receive indemnification from your employer.

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