Balkinization  

Friday, February 29, 2008

Computers, Freedom and Privacy 2008-- Planning Technology Policy for the Next Administration

JB

I'm happy to announce that the 18th annual Computers, Freedom and Privacy Conference will be held in New Haven from May 20-23, 2008. The theme this year is U.S. technology policy for the next administration. Here is the call for proposals:

COMPUTERS, FREEDOM, AND PRIVACY: TECHNOLOGY POLICY '08
http://cfp2008.org/
18th Annual CFP conference
May 20-23, 2008
Omni Hotel
New Haven, CT

CALL FOR PROPOSALS

This election year will be the first to address US technology policy in the information age as part of our national debate. Candidates have put forth positions about technology policy and have recognized that it has its own set of economic, political, and social concerns. In the areas of privacy, intellectual property, cybersecurity, telecommunications, and freedom of speech, an increasing number of issues once confined to experts now penetrate public conversation. Our decisions about technology policy are being made at a time when the architectures of our information and communication technologies are still being built. Debate about these issues needs to be better-informed in order for us to make policy choices in the public interest.

This year, the 18th annual Computers, Freedom, and Privacy conference will focus on what constitutes technology policy. CFP: Technology Policy '08 is an opportunity to help shape public debate on those issues being made into laws and regulations and those technological infrastructures being developed. The direction of our technology policy impacts the choices we make about our national defense, our civil liberties during wartime, the future of American education, our national healthcare systems, and many other realms of policy discussed more prominently on the election trail. Policies ranging from data mining and wiretapping, to file-sharing and open access, and e-voting to electronic medical records will be addressed by expert panels of technologists, policymakers, business leaders, and advocates.

Open participation is invited for proposals on panels, tutorials, speaker suggestions, and birds of a feather sessions through the CFP: Technology Policy '08 submission at http://www.cfp2008.org/submissions/.

Suggested topics for discussion include:

* Information Privacy
* Anonymity Online
* Government Transparency
* Voting Technology
* Online Campaigning
* Social Networks
* Citizen Journalism
* Cybercrime & Cyberterrorism
* Digital Education
* Copyright and Fair Use
* Patent Reform
* Open Access
* P2P Networks
* Information Policy and Free Trade
* Media Concentration
* Genes & Bioethics
* Electronic Medical Records
* Web Accessibility
* Open Standards
* Network Neutrality
* High-Speed Internet Access Policy
* Freedom of Information
* Technology Policy Administration

Submission Deadlines:
Panel, Tutorial, and Speaker proposals: March 21, 2008.
Birds of a Feather Session (BoFs) proposals: April 21, 2008.

Panel, Tutorial, and Speaker proposals accepted by the Program Committee will be notified by April 7, 2008.

Registration available online at http://www.regonline.com/Checkin.asp?EventId=193762.

Being rewarded for bad behavior

Sandy Levinson

Unless Barack Obama wins both Texas and Ohio (and adds Pennsylvania a couple of weeks later for good measure), the race will go on, and the controversy about counting delegates from Florida and Michigan will become ever more heated. The Clinton position that the results of the primaries held there in January, in patent defiance of the Democratic National Committee, should be honored, is preposterous. The candidates had pledged to honor the ban by not campaigning there. Obama wasn't even on the ballot in one of those states and certainly didn't campaign. But if Clinton and Obama remain more-or-less tied after the next string of primaries, there will, I suspect, be great pressure to rehold the primaries in a context where both candidates can campaign. This appears fair on the surface, but there is a real paradox in adopting this solution.

The paradox is similar, in its own way, to that facing the country in the aftermath of the Civil War, where the former Confederates states were actually rewarded with greater representation in the House of Representatives and the Electoral College because former slaves, who had been counted only as 3/5 of persons for purposes of computing representation, now were counted in full. If, however, they could not vote or otherwise participate in politics, the real winners were the unreformed Southern whites, as proved true following the end of Reconstruction in 1877. Confederate sympatheizers were, in a very real way, rewarded for attempting to tear the Union asunder, with terrible consequences for the next century of American politics.

So what is the connection with Florida and Michigan? It is this: Both of those states selfishly tried to break the queue in the belief that that would heighten their influence in picking the nominee. The same belief led to the cluster of states joined together in Super Tuesday, all of whom apparently believed that that would be the last day of the campaign. They were, of course, mistaken; for the first time in at least two decades, the Texas primary turns out to be significant, and Ohio is getting the same attention at the primary stage that it is used to getting at the national election. But if Obama is not the decisive winner by April (there is no plausible argument that Hillary would be the decisive winner), then to allow Florida and Michigan to revote would be to give them exactly what they wanted: disproportionate influence in selecting the nominee, with attendant pandering to the parochial interests of these two states.

I suspect that both Clinton and Obama will, should the context warrant it, agree to a revote. If Clinton holds to the "let's count the delegates from the illegitimate January primaries" and superdelegates provide the margin of support in what would undoubtedly be a vicious floor fight, the Democratic Party could indeed find a way to snatch defeat from the jaws of a monumental victory, as many Obama supporters would (properly) view his defeat under such circumstances as theft of what he earned fair and square. So the best solution from the Democratic Party's perspective would be the revote. Who would really be upset if such a solution ended up rewarding the miscreants who are responsible for creating this awkward situation in the first place?

Thursday, February 28, 2008

Power Sharing Agreement Reached in Kenya

Mary L. Dudziak

Kofi Annan announced today that a power sharing agreement has been reached between Kenya leaders Mwai Kibaki, the incumbent who claimed victory after a disputed presidential election in December, and Raila Odinga, the opposition leader. According to news reports, Odinga will hold the post of Prime Minister, an innovation in Kenya, and Kibaki’s and Odinga’s parties will each hold 50% of cabinet positions.

It appears that the post-election crisis, and the negotiations to stop the killing, have accomplished what several years of efforts to reform the Kenya constitution have been seeking: divided executive power, with leadership shared between a President and a Prime Minister.

While the agreement may succeed in bringing the immediate crisis to a close, it will be interesting to see how this divided government will function pending the next round of elections.

Concentration of executive power has been a problem plaguing many African nations. In Kenya, Kibaki was originally elected on a platform promising constitutional reform, but he put brakes on the reform process after his election. Kenya faces many challenges going forward, but one important question is whether either of these leaders will cede power in the future following regular, multiparty elections.

For more on Kenya, local news on breaking developments can be found at allafrica.com. Superb radio commentary on the broader issues underlying the crisis can be found on-line from Makau Mutua, Interim Dean, University at Buffalo. See also my earlier post, What a Constitutional Crisis Looks Like.

Update: The Nation (Nairobi) has these details:

The deal, brokered by Africa Union chairman President Jakaya Kikwete of Tanzania and Mr Kofi Annan, will see the creation of a grand coalition sharing power according to party strength in Parliament.

The deal provides that the PM will coordinate and supervise Ministers, while Cabinet positions will be shared proportionally according to party strength in Parliament.

The President will have the authority to sack Cabinet members, but only with written agreement from leaders of the respective coalition party.

The Cabinet will comprise the President, the Vice-President, the Prime Minister, Deputy Prime Ministers and Ministers.

The coalition will collapse at the end of the current Parliament, or if the parties so agree, or if one partner withdraws.


Another update: the power sharing agreement, calling for constitutional reform, is here.

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Balkinization blocked by People's Republic of China, United States Air Force

JB

Can this really be true?

The Air Force is tightening restrictions on which blogs its troops can read, cutting off access to just about any independent site with the word "blog" in its web address. It's the latest move in a larger struggle within the military over the value -- and hazards -- of the sites. At least one senior Air Force official calls the squeeze so "utterly stupid, it makes me want to scream."

Shachtman's story on Wired suggests that there is some dispute about which blogs are actually being blocked. If any readers at Air Force bases have access to this blog, or know more about the policy, please let us know in the comments.

Wednesday, February 27, 2008

Internal DOJ Investigation of OLC Advice-Giving

Marty Lederman

It was widely reported last week that the head of DOJ's Office of Professional Responsibility (OPR), Marshall Jarrett, had written to Senators Durbin and Whitehouse to inform them that OPR is investigating OLC's legal advice with respect to waterboarding and other coercive interrogation techniques. But it appears that, for whatever reason, none of the news sources bothered to upload or link to Jarrett's letter, nor to the letter from DOJ Inspector General Glenn Fine, explaining that the IG lacks statutory jurisdiction to engage in an inquiry of OLC.

Well here are those letters: Jarrett's, and Fine's.

Jarrett writes that his investigation is looking into whether the advice in the OLC memoranda (not only John Yoo's, but subsequent memos as well) was "consistent with the professional standards that apply to Department of Justice attorneys."

I have previously questioned whether such an ethics-based investigation makes any sense. My colleague David Luban has argued, alternatively, that it does. Whatever the merits of that particular argument might be, there is something else a bit odd about the OPR investigation: The new Attorney General has effectively adopted and ratified the post-Yoo OLC opinions as reflecting current, official DOJ views. How could OPR, which is subordinate to the AG, promulgate the conclusion that the legal advice the AG has embraced is not "consistent with the professional standards that apply to Department of Justice attorneys"? As Emily Bazelon points out in an excellent recent column, OPR does not appear to have the independent authority to overrule the AG in that respect.

Emily regrets that the DOJ IG, Glenn Fine -- who arguably has more statutory independence than OPR -- will not be involved in the investigation. As she explains, and as Glenn Fine notes in his letter, the IG lacks statutory jurisdiction to investigate DOJ legal advice-giving. (Fine has been seeking such authority for years, and he states in his letter than the current House has passed, and the Senate is considering, a bill that would give it to him. If anyone can provide cites or links to the relevant statutes and bills, I'd appreciate it.)

Myself, I remain a bit skeptical of what could come from such an investigation, by either OPR or the IG. If either of them "found" that OLC's advice was wrong, or even egregiously wrong, it would remain the case that OLC, the AG and the President disagree. And they are the relevant decisionmakers on such questions within the Executive branch. What is needed is a repudiation of the advice at the OLC and AG level, something that is unlikely to occur, if at all, until a new Administration is in place.

Monday, February 25, 2008

Three Strikes Against Originalism

Stephen Griffin

Nonoriginalism strikes back. That’s the message conveyed by three articles recently posted to SSRN: my own “Rebooting Originalism,” Mitchell Berman’s “Originalism is Bunk” and Thomas Colby and Peter Smith’s “Originalism’s Living Constitution.” All three articles are critiques of contemporary originalism and can be viewed as defenses of nonoriginalism (although this is a term I disclaim). Given this diversity of criticism, one can only hope for some cogent originalist response. But are there any points common to all three articles, any agreement on lines of critique? I think so.

To summarize the articles in an extremely brief compass: I argue that contemporary originalism advances a radical doctrine without justification, although masquerading as the status quo and that it cannot be squared with historicism, the need to take account of historical context and the reality of informal constitutional change. Berman argues that the position that originalism is necessarily true is flawed and the arguments for originalism based on a pragmatic appeal to consequences are weak. Colby and Smith argue that recent originalist theories are such a moving target that they lack a common core (a summary I borrow from Larry Solum’s recent useful post). Originalism has disappeared as a coherent doctrine as different schools of originalist thought have put out bids for supremacy.

All fine, but what are the main issues going forward? One point of contention has emerged clearly. I agree with Berman that any meaningful form of nonoriginalism must assert “that facts that occur after ratification or amendment can properly bear – constitutively, not just evidentially – on how courts should interpret the Constitution (even when the original meaning is sufficiently clear).” I’m quoting Berman, but the same position is identified by Solum as a true alternative to originalism – “Yet others might contend that the semantic content was not fixed by facts in existence at time of drafting and ratification, but can be changed by subsequent events.” The originalists I have met regard this as impossible, illegitimate, or both. How could subsequent events not themselves amendments legitimately and legally change the meaning of the Constitution? Of course, nonoriginalists have often seen this as a descriptive reality, regardless of what our normative position on constitutional interpretation may be. In any case, I spend some time in my article explaining how this is both normatively plausible and desirable, as well as descriptively accurate. But it is a key issue.


A second point of contention is highlighted by Colby and Smith’s article. What is the relationship of the newer forms of originalism (especially the “original public meaning” and “reasonable person in the eighteenth century” variants) to constitutional practice? Have these variants ever been used to decide a case (especially in a way different from the traditional “intentionalist” variant)? If they are new proposals, how can they claim the authority of law? Is it not becoming apparent that while these new variants may address theoretical difficulties they are not connected with the practice of constitutional law? (And is it not clear that some of these new variants lie behind some of the more aggressive assertions of executive power by the Bush administration?)


And a word in passing about the newest variant, the “reasonable person.” Once we sever entirely the connection between “originalism” and historical intention understood as a matter of fact and interpretation does that not make it much easier for the interpreter (let’s say a judge) to arrange historical facts to suit? The interpreter becomes the reasonable person, as it were. Doesn’t that strike people as equivalent to the widely discredited view that originalism is best carried out by imagining what a founder (say Madison) would say about a given practice in constitutional question if he were carried forward into the present? Many scholars have argued that this view makes it too easy for us to pretend we are Madison and so lose the advantage of perspective and constraint on judgment that originalism was supposed to provide. But isn’t this argumentative move reenacted exactly by the reasonable person variant? And in the process, isn’t it all too easy to sever the connection entirely with the eighteenth century?


I think that’s enough rhetorical questions for one night. But as Solum points out, the Colby and Smith article will serve a valuable function if only by forcing originalists to realize that the tendency of legal scholars to make yet another fine distinction has gotten somewhat out of hand when it comes to the elaboration of originalist theories.




Sunday, February 24, 2008

Ralph Nader and the ironies of history

JB

Ralph Nader announced today on Meet the Press that he was running for a third time for the presidency. The reaction so far has been predictable.

Democrats, remembering 2000 and blaming him for the Bush Presidency, are annoyed and a little bit frightened that he is injecting himself into the race. Republicans are secretly delighted, in the hopes that he might swing a few close states like Ohio, or dare one say it, Florida, to the Republican nominee.

I think that Democrats have much less to fear this time. Nader's candidacy means something quite different in 2008 than it does in 2000. In 2000, Nader was one of several factors that put George W. Bush in the White House. And in fairness to him, he was only one factor.

My guess is that there is very little chance that Nader will decide the outcome of the 2008 election; he will probably have very small numbers, as he did in 2004. Third parties who do not quickly displace one of the two major parties (as the Republicans displaced the Whigs in the 1850s) tend not to wear well on repeated attempts.

Rather, if Nader has any significance in this election, it will be to push certain issues on the table, and force the candidates to address them. To do that, he would have to be a much more significant presence than he is likely to be. Nader is quite interested in pushing the corruption issue-- and the connections between corporate lobbying and Washington politics-- but public interest in that issue is by now overdetermined.

In the 2000 election, Nader represented the left's displeasure as much with Clintonism as with Republican politics. Nader's assertion that there was no difference between the two candidates in 2000 was premised on the idea that Gore would prove to be as much of an accommodator of conservative Republicans as Clinton had been and that, like Clinton, Gore would accept the framing of political issues and political possibilities in a Republican dominated age. That is, Nader ran against the accomodationist model of Democratic electoral success that Clinton had perfected.

It is worth noting that many Democrats now agree with Nader that this model is outmoded, and their preference for something more has created problems for Hillary Clinton's candidacy.

Bill Clinton's model of Democratic electoral success, whatever its political advantages, had two unfortunate side effects. One was a strongly chastened sense of what politics could do-- at least with respect to the progressive agenda. The second is that with the President and Congress converging on a fair number of issues-- like balanced budgets and welfare reform-- Republicans turned to the politics of scandal as the best technique for undermining the Democratic electoral strategy, and Bill Clinton was only too happy to help them out.

We will never know if Gore would have followed in Clinton's footsteps as a clever accommodator of Reaganism: he was certainly not as agile a politician as Clinton, and Vice-Presidents following successful two term presidents (Van Buren, George H.W. Bush) have not fared well. Perhaps most important, the 9/11 attacks reshaped the focus of American politics to foreign policy.

Gore would probably have had a different presidency than Bush, and many of his policies would have been different. Without a chorus of neoconservatives in the White House, the chances of an Iraq war in response to 9/11 would have been small. However Gore would have faced a very conservative and partisan Republican-controlled Congress following a bitterly contested election, and that Congress would not have been in much of a mood for cooperation. Gore might have served only one term, and the Republicans might have retained control of Congress.

With Bush in the White House instead, the President took the nation into an unnecessary war and a disastrous foreign policy blunder, the Republican coalition underwent enormous strains, and the Democrats retook both houses of Congress.

If Nader is responsible for Bush's Presidency, then, he is responsible not only for the havoc Bush created but also the Democrats' enviable political position today. It is an irony of history, but history is often ironical in precisely this way. Nader in 2008 may now be largely irrelevant, but that is because in 2000 Nader did his small part in in setting in motion the events that led to the political downfall of the Republican Party and the dissolution of the Reagan coalition. And with the end of the Reagan coalition, the reactive Clintonian strategy of triangulation, co-opation of Republican themes and deliberate chastening of progressive aspirations may seem unnecessary; indeed, the end of the Reagan coalition may give way to a new form of politics far more hospitable to liberalism and progressive values. Democrats who blame Nader for putting Bush in the White House will probably give Nader little credit for that, but it probably pleases Nader a great deal.


Saturday, February 23, 2008

President Bush "Degrade[s]" Our Intlligence Capability -- All in the Name of Immunizing Telecoms for Past Unlawful Conduct

Marty Lederman

In a letter written yesterday to the Chair of the House Intelligence Committee, Attorney General Mukasey and Director of Intelligence McConnell alarmingly reveal that the expiration of the Protect America Act one week ago has caused us to "lose intelligence information this past week," has led some "partners" (i.e., telecom companies) to "delay[] or refuse[] compliance with our requests to initiate new surveillances of terrorists and other foreign intelligence targets under existing directives," and "has led directly to a degraded intelligence capability."

Now, this alarm is probably grossly exaggerated, for reasons thoroughly described by Chairman Reyes. After all, even apart from the preexisting, underlying FISA authorities, broad programs of surveillance that were approved under the PAA continue in effect for one year after their approval, as the first substantive paragraph of the Mukasey/McConnell letter implicitly acknowledges: The Administration has made requests under the continuing programs, and "most partners intend to cooperate for the time being." Some "partners" allegedly have expressed "deep misgivings" about the legality of these continuing authorities, but the Administration is "working to mitigate these problems and [is] hopeful that our efforts will be successful." Of course, the telecom "partners" fully understand that authorities issued under the PAA extend for a year. Thus, any "misgivings" presumably concern whether Administration requests are consistent with the PAA programs that were authorized. [UPDATE: This Washington Post story reports that mere hours after Mukasey and McConnell issued their letter, "administration officials told lawmakers that the final holdout among the companies had relented and agreed to fully participate in the surveillance program."]

But be that as it may, let's assume the letter is correct, and for some reason expiration of the PAA has indeed "led directly to a degraded intelligence capability."

That would truly be terrible -- indefensible, even. Yet whose fault is that? Not Congress. The House actually voted to extend the PAA. Why didn't that extension become law? Because President Bush said he would veto the House's PAA extension.

Why would the President veto an extension of legislation that is so critical, that is necessary to prevent a "degradation of our intelligence capability"? Well, OMB offered one and only one reason for the veto threat -- because the House bill did not "provid[e] retroactive liability protection."

That is to say: For President Bush, retroactive immunity for telecoms -- who would only be liable in the first instance if they knowingly cooperated with unlawful requests from the Administration -- is more important than preventing the degradation of our capabilities of surveilling terrorists. Well, at least he can say he stick to his convictions . . . .

There's another very interesting aspect of the Mukasey/McConnell letter, too, which Glenn Greenwald has highlighted. In his letter, Chairman Reyes wrote that "[i]n an emergency, NSA or the Federal Bureau of Investigation (FBI) may begin surveillance immediately, and a FISA Court order does not have to be obtained for three days. The former head of FISA operations for the Department of Justice has testified publicly that emergency authorization may be granted in a matter of minutes." In their response, Mukasey and McConnell argue that this is mistaken because before such surveillance begins the AG must determine that there is probable cause that the requirements of FISA would be satisfied -- a determination that takes time.

Most interestingly, however, they also state that to proceed as Chairman Reyes suggests -- that is to say, arguably outside of FISA's requirements -- "would be illegal."

Perhaps this was merely a slip. But what M&M are stating here is that to engage in electronic surveillance without satisfying FISA's requirements (or the requirements of the PAA) would be illegal. And yet that is exactly what the NSA did for more than five years under its so-called "Terrorist Surveillance Program." Mukasey and McConnell are absolutely right that such surveillance would be, and was, unlawful. But that hasn't been the Administration's view in the past. Recall that they have argued at length that such surveillance is authorized by (i) the September 18, 2001 Authorization to Use Military Force and (ii) the President's Article II powers.

Curious.

And it prompts this question: If, in fact, our intelligence capabilities are now being degraded, why doesn't the President simply reauthorize the TSP itself, pursuant to his alleged AUMF and Article II powers?

Answer: Because now the telecoms won't in a million years cooperate in such an extra-legal program. And that's a very good thing -- an underappreciated virtue of the controversy and litigation surrounding the TSP. Moreover, it further reveals the true reason the Bush Administration is willing to degrade our intelligence capabilities in the service of telecom immunity -- not because telecoms will be reluctant to accede to lawful orders (as statutes require them to do), but instead because the Administration does not want the telecoms ever again to hesitate when the Administration asks them to cooperate in surveillance that appears to be unlawful under FISA and other relevant laws.

Friday, February 22, 2008

An Interesting Historical Question: The Original Source of Holmes' Dissent in Lochner?

Brian Tamanaha

Probably the most famous dissent in the history of the United States Supreme Court is Holmes’ dissent in Lochner (1905). “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics,” he declaimed.

“A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizens to the state or of laissez faire.”

Holmes’ attack on the majority has been quoted innumerable times, and is widely considered a brilliant statement of what was wrong with the majority view.

There is reason to believe that Holmes got his argument—or at least the idea—from an article that was published a dozen years earlier (which I accidentally stumbled across). In 1893, making an argument that is remarkably resonant of Holmes’ dissent, C.B. Labatt described what he saw as a newly emerging theory of constitutional interpretation:


The old theory was that there were abstract principles of justice, which, although they were not embodied in the organic law of a State, might be referred to for the purpose of deciding whether the will of the legislature might be overruled in some particular instance. The new theory is that certain doctrines of a particular school of political economists are impliedly, if not expressly, recognized as sound by the constitution, and may therefore be utilized to elucidate and further the intention of the framers.

Labatt went through several recent state cases to demonstrate his thesis, remarking that “The court seems to have…pronounced its opinion in terse and emphatic language, which breathes the very spirit of Mr. Herbert Spencer himself.”

Labatt then asserted that the court’s argument in effect (implicitly) declares “that the doctrine of laissez faire is a part of the constitutional law of this country…”

That was precisely Holmes’ argument in Lochner.

It’s difficult to know whether Holmes actually read the article (I haven’t bothered to find out whether he ever cited it), but there are a couple of reasons to think that he might have. It was published in the American Law Review, which was the leading law review of the day. Early in his career Holmes worked as an editor for the review, and he published a number of articles in it over the years.

Another reason to think Holmes might have read the article is that it critically discusses a recent Massachusetts Supreme Court decision as an example of this way of thinking. Holmes was on the court, and Labatt praised his “quiet expression of doubt” about the reasoning in the case.

I am not suggesting that Holmes should have credited Labatt if he did get the idea from this article (although it would have been nice, and would have kept Labatt from historical obscurity). It’s just interesting to see, if true, where he got the idea from, and to learn (once again) that Holmes was not the stand alone maverick he is often made out to be.

The article can be found at 27 American Law Review 857 (1893).

Plus ça change . . .

Marty Lederman

Alas, there's nothing new under the sun. Here's Karen Greenberg on recognizing Steven Bradbury in the Torture Museum. And Paul Kramer, with a great story about the uncanny historical precedent of our waterboarding (and its justifications) in the Philippines at the turn of the . . . Twentieth . . . Century.

Wednesday, February 20, 2008

The Constitution and Race

Mark Graber

As I noted in a previous post, I have been having an exchange with Professor Michael Klarman over at the American Constitutional Society. My last post seems particularly relevant to some concerns of Balkinization, so as either a public servive or, more likely, pathetic self-promotion, I've reproduced an edited version.

Michael Klarman’s work on the constitutional history of race correctly notes that American racial politics have historically been subject to periods of polarization, and that this polarization has had surprising consequences. Every major burst of civil rights activism in the United States has been preceded by an intense period of polarization, marked by increased militant commitments to the racial status quo in the south. To an extent rarely commented on, the Constitution of the United States may be responsible this polarization and may also bias ordinary politics toward more conservative racial views.

The Constitution of the United States promotes polarization by electing all members of the national legislature in a local election. Members of the House of Representatives are elected in districts entirely within states and senators are elected by each state. Whenever public opinion is divided by section, this constitutional system for staffing the national legislature generates a Congress more polarized than the general public. Consider the structure of elections in 1855. As numerous historians have demonstrated, southerners competed against each other to prove who would most vigorously protect slavery. Northerners competed against each other to determine who would most vigorously condemn the slavepower. Moderates existed in both regions. More than 40% of all southerners in 1856 voted for Millard Fillmore, who opposed making Kansas a slave state. Stephen Douglas enjoyed substantial northern support in 1860. The problem moderates faced was that the sizable minorities of moderates in each state had no constitutional means for joining forces.

A similar phenomenon occurred during the Civil Rights Era. Southern politicians took increasingly reactionary positions on race in part because every southern officeholder, from the governor to members of Congress, faced a local electorate. Running for office in this political environment, former slave state candidates unsurprising concluded that all doubts should be resolved in favor of segregation. Had some southern candidates developed political ambitions required obtaining some northern votes, southern politics during the 1950s and 1960s might have been more moderate.

When not polarizing the national legislature, the constitution provides boons to white supremacists and white citizens. The infamous three-fifths clause of the Constitution sharply increased southern representation before the Civil War. If southern representation in the Electoral College and House of Representatives had not been augmented by human bondage, John Adams would have defeated Thomas Jefferson in the 1800 election, the Kansas-Nebraska Act would not have become law, and other pro-slavery measures might have been defeated. While the 13th Amendment practically repealed the three-fifths clause, studies demonstrate that the constitutional system of representation continues to harm persons of color. Equal representation in the Senate substantially augments the voting strength of white citizens. Persons of color, Hispanics in particular, tend to live in such high population states as New York and California. States such as Wyoming and Idaho, whose population is disproportionately represented in the Senate, are among the least racially diverse jurisdictions in the United States. Frances Lee and Bruce Oppenheimer in Sizing Up the Senate detail how the overwhemingly white citizens of small rural states obtain dramatically disproportionate shares of the federal largess. State equality in the Senate helps explain how such racial conservatives as Clarence Thomas sit on the Supreme Court. If Senators had the same number of votes as the population of their states, the Thomas nomination would have been defeated.

One salutary development in contemporary constitutional thought is a return to thinking about how the structure of constitutional institutions influences constitutional policy making. How the equal protection clause is interpreted depends in part on the opinion of nine Supreme Court justices, but also on the processes by which the Supreme Court and the national government is staffed. Keep public opinion constant, but change the constitutional rules for staffing the national government and the constitutional politics of race will change. Proportional representation in the Senate would sharply decrease disparities between federal funding for white citizens and citizens of color and increase the obstacles racial conservatives face after receiving presidential nominations to federal courts. Increase the number of officials who must campaign nationally, and racial politics are likely to moderate a good deal. Whether such moderation is satisfactory, of course, is an open question. Still, Americans should recognize that the meaning of Brown in years to come will be as much influenced by Article I and Article II as by the equal protection clause of the Fourteenth Amendment.



The Commander in Chief at the Lowest Ebb -- A Constitutional History

Marty Lederman

The second part of my article with David Barron on the President's authority to disregard congressional limitations on the conduct of war is now available online here. (First part is here.) The abstract:

Over the past half-century, discussions of constitutional war powers have focused on the scope of the President’s “inherent” power as Commander in Chief to act in the absence of congressional authorization. Professors Barron and Lederman argue that attention should now shift to the fundamental question of whether and when the President may exercise Article II war powers in contravention of congressional limitations, when the President’s authority as Commander in Chief is at its “lowest ebb.” This Article is the second part of a two-part effort to determine how the constitutional argument concerning such preclusive executive war powers is best conceived.

In the companion Article, Professors Barron and Lederman described the structural forces responsible for this shift in the ground of debate and demonstrated that evidence from the Founding era does not reveal an original understanding that the Commander in Chief enjoyed preclusive authority over matters pertaining to warmaking. In this Article, they move the story forward and systematically examine how the three branches have actually considered and treated this issue from 1789 to the present day. They examine those cases in which the President has asserted or relied upon a claim of preclusive war powers. They also review the discussions of this issue that have appeared in Supreme Court opinions; in major debates on the floor of Congress; and in the leading constitutional and war powers treatises, articles, and books of the past two centuries.

This historical review shows that the view embraced by most contemporary war powers scholars — namely, that our constitutional tradition has long established that the Commander in Chief enjoys some substantive powers that are preclusive of congressional control with respect to the command of forces and the conduct of campaigns — is unwarranted. In fact, Congress has been an active participant in setting the terms of battle and the conduct and composition of the armed forces and militia more generally, while the Executive (at least until recently) generally has accepted such legislative constraints as legitimate. Although history is not dispositive of the constitutional question, legislators and executive branch actors should not abandon two hundred years of historical practice too hastily, and should resist the new and troubling claim that the Executive is entitled to unfettered discretion in the conduct of war.

Politics on the Supreme Court--Understood A Century Ago

Brian Tamanaha

The legal culture today is marked by an easy acceptance of the notion that politics have a major influence on decisions by the Supreme Court. That was the point of several recent books on the Supreme Court (including my favorite, Toobin’s The Nine). It was the point of Judge Posner’s 2005 Harvard Law Review article on the Supreme Court--“A Political Court.” Political scientists have relentlessly pounded the “judging is politics” theme for four decades now (still presenting it as if we didn’t already know). And newspapers today routinely explain SCOTUS decisions in terms of political alignments of the justices.

Although we like to think of ourselves as more world-wise than our nineteenth century forebears in holding this sophisticated perspective on the Court, they weren’t the formalist dummies we often make them out to be.

The influence of politics on Supreme Court decisions was the subject of an 1893 article—“Politics and the Supreme Court of the United States”—in the American Law Review (then older and more prestigious than the Harvard Law Review).

The author, Walter Coles, surveyed major Court decisions in the nineteenth century, lining up the political backgrounds of individual judges with their votes. He criticized the reasoning in selected opinions as “vague,” “weak, incoherent, and uncandid,” and asserted that the decisions can be explained by the political views of the judges.

“Viewing the history of the Supreme Court at large, and stating conclusions somewhat broadly, it may be said that its adjudications on constitutional questions have in their general tendencies conformed, in a greater or lesser degree, to the maxims of the political party whose appointees have, for the time being, dominated the court.” “[T]o say that no political prejudices have swayed the court,” noted Coles with consummate realism, “is to maintain that its members have been exempt from the known weaknesses of human nature, and above those influences which operate most powerfully in determining the opinions of other men.” Especially when no clear precedent exists, he asserted, a judge’s conclusions “will be largely controlled by the influences, opinions and prejudices to which he happened to have been subjected.”

Many similar statements were uttered at the time in law reviews and newspapers, often by prominent people (including judges and Presidents), as partially described here and here.

We should not find this shocking, for they could see every bit as clearly as we can.

Tuesday, February 19, 2008

Crisis in Constitutional Law?

Stephen Griffin

Mark Kende, Professor of Law at Drake and current chair of the Section on Constitutional Law has an inspired idea for the program at the next AALS meeting. The program notice is below. Scholars perhaps overuse the concept of a "crisis" (although it is eye-catching), but there is little doubt there are some strange doctrinal developments in U.S. conlaw. Mostly because of Justice Kennedy, I find I have a harder time explaining to students what the "standard" approach to equal protection and substantive due process jurisprudence is supposed to be. But perhaps it is fairer to say the entire Court seems less interested in the sort of hyper-articulated "tiers of scrutiny" which I absorbed in law school as among the most important doctrinal developments of the 1970s. That entire era in conlaw now seems played out. Again, "doctrinal chaos" seems a bit strong, there are always important inconsistencies in conlaw jurisprudence. But more attention should have been paid to Laurence Tribe's announcement, in the wake of the Schiavo mess in 2005, that he could not produce a new edition of his famous conlaw treatise.


2009 ANNUAL AALS MEETING: AALS SECTION ON CONSTITUTIONAL LAW CALL FOR PAPERS: IS AMERICAN CONSTITUTIONAL LAW IN CRISIS?


At the January, 2009 Annual Meeting of the AALS, the Section on Constitutional Law will host a panel asking whether American constitutional law doctrine is in crisis; and, if so, what the causes and cures are for that crisis. One paper from an untenured, non-adjunct, faculty of law member will be included. Its author will join a panel consisting of Professor Jack Balkin, Professor Steven Calabresi, Judge Alex Kozinski, and Professor Suzanna Sherry. The author must be teaching at an AALS member or AALS fee-paid law school.


To submit an entry, send an abstract of your paper (five pages or less, single-spaced) electronically to: amy.russell@drake.edu. She is the assistant to the Section Chair, Professor Mark Kende. Please include your name, institutional affiliation, and contact information on a cover sheet only. All entries will be subject to a blind review by various members of the Executive Committee of the Section on Constitutional Law. Submissions must be received by no later than May 1, 2009. Late submissions will not be accepted. The author of the abstract that is chosen will be expected to produce a 20 page (single-space) manuscript by the time of the AALS panel. If you have any questions, please e-mail Professor Kende (mark.kende@drake.edu).


From the panel description:
American constitutional doctrine appears to have problems. In the commerce clause area, Gonzales v. Raich is hard to reconcile with United States v. Morrison. Regarding substantive due process, the U.S. Supreme Court was cautious in Washington v. Glucksberg but bold in Lawrence v. Texas. Moreover, two similar partial birth abortion cases reached opposite results. On equal protection, the Court states that it has three levels of scrutiny but it actually uses several other variations. In addition the Court in Grutter v. Bollinger said it was using strict scrutiny but was actually deferential in upholding the law school's affirmative action plan. The Court's hate speech decision, R.A.V. v. City of St. Paul, announced that certain categories of previously unprotected expression could sometimes receive protection. Other examples abound. These results make it difficult for lower court judges, lawyers, and the public to know how the Court will decide certain questions. They can also generate charges of judicial legislating. For law professors, this situation makes teaching and doing scholarship more challenging.


This panel will address whether American constitutional law is in doctrinal chaos, or whether these are the acceptable consequences when difficult constitutional questions come before a divided Court interpreting an old constitution. The discussions over Laurence Tribe's decision not to continue writing his treatise illuminated the issue further. This panel of distinguished scholars and jurists will examine these questions and explore the causes of the current situation. It will also examine what role law professors should play in addressing these matters.

The Legal Blogosphere and The Diffusion of Legal Expertise

JB

Paul Caron did a study of law blog traffic rankings for the last year. Brian Leiter, who lands in the top fifteen twice for his two blogs, notes:
Curious that four of the top five have almost nothing to do with law; four of the top five are right-wing blogs; and three of the top five have almost no intellectual content. Welcome to the blogosphere!
I think, in fact, that this is pretty much what we should expect. Blogs directed at popular audiences generally get the largest traffic. Specialty blogs, including blogs that specialize in delivering legal expertise, are usually niches, generating relatively low traffic that is nevertheless useful to the communities that read them.

We have to keep in mind that the "legal blogosphere" is not one thing. It is actually a combination of different types of sites, offering political punditry, gossip, clipping services of newsworthy legal events, clipping services of events of academic interest, and scholarly commentary. If you categorized sites in this fashion, and then asked which genres were likely to generate the highest traffic, your guess would probably not be far off from the results that Caron found.

Instead of seeing the glass half empty, you should see it half full. Forget for the moment about those sites that draw readers primarily through political punditry, cultural commentary and/or gossip. Confine your attention solely to the sites that make it their business to deliver serious academic content, week after week. Call this segment the academic legal blogosphere proper.

These sites are engaged in something very important: the diffusion of professional expertise. It is a diffusion that would not have been possible on this scale before the age of the Internet and remember, we are still in the earliest stages of this development. These legal blogs simultaneously (1) allow academic communities of interest to form; (2) forge connections with lawyers and judges in practice who pay hardly any attention to law review scholarship anymore; (3) put informed legal analysis into the hands of journalists and political writers who can now find it more easily than they ever could before; and (4) offer lay persons a window in to what legal experts think.

Here is the point: Even the least trafficked of these expert blogs probably gain more readers in six months than most law professors could hope for in a career.

To me, at least, it is encouraging that our friends at the Volokh Conspiracy have managed to get and keep as many readers as they do while still maintaining a high standard of academic discussion. They do this in part by crossing genres far more than most of the other academic blogs: They mix legal analysis with punditry, cultural commentary, leavened with occaisional jokes, puzzles and games. The medium allows you to do this. They have, over the years, created a pretty good mix that brings their readers back but doesn't insult their intelligence either.

I think that the future of the academic legal blogosphere-- by which I mean that subset that devotes itself primarily to serious academic commentary-- is very bright. It will never get the same readership as blogs that specialize in punditry, but it is doing something that most law professors have always dreamed of-- bringing ideas that they believe are interesting and important to a far larger audience, reaching people outside the legal academy who want to know what law professors actually think about the law. Surely this is a worthy endeavor, whose success we legal academics should all be proud of.


Monday, February 18, 2008

Sock Puppets Explain Neoliberalism, Channel Deleuze

JB



(Hat Tip: Wicked Anomie via Crooked Timber.).

Please write a critique of the above video addressing the following questions: Have we truly arrived in a post-disciplinary society? Are self-motivated knowledge workers still tools of the capitalist classes? Can Marxist dialectics adequately explain the evolution of social conflict in a post-industrial information society? Do Kiki and Bubu suffer from the false consciousness of Fordist nostalgia? Does the Porn Monster show us the proper way to do social theory in the age of the digitally networked environment?

Extra points will be awarded for each sublation. Answers that are coherent and intelligible will automatically be disregarded.

Sunday, February 17, 2008

Weathering a Storm in Southern China

Lauren Hilgers

For me, weathering the snowstorm in Shanghai for the past two weeks has meant blowing out my aged fuses three times with excessive use of a wall-mounted heater. For many in Southern China, however, the freak storms have taken a much higher toll. Small cities went more than a week without electricity and, with the available rail lines occupied with emergency shipments of coal, hundreds of thousands of hopeful migrant workers crowded railway stations trying to get home for the annual Spring Festival.

The fall of certain cities into darkness, however, isn’t just a failure of infrastructure in the face of the unusual storm; it is the result of a web of energy laws and policies that have failed to integrate China’s energy network into a workable whole. China has been trying for months to ease the pinch of rising energy costs on its residents by implementing price caps and forcing power generators and oil refiners to run in the red. As a result, generators have been reluctant to keep stockpiles of coal on hand, leading to shortages when the storm hit.

China currently divides authority to regulate and manage the energy sector among a handful of government bodies: for example, the National Development and Reform Commission (NDRC) is responsible for research, planning and price setting while the Ministry of Land and Resources licenses the use of natural resources. Many of the departments in charge are understaffed and spend much of their time fighting for influence.

This kind of inefficiency, both in infrastructure and within the hierarchy of government ministries, is coming under fire throughout China. There have been complaints that infighting slows the implementation of new policies, and that local agencies have to wade through multiple directives from different ministries on the same topic. Local interests and State-owned companies make consistent implementation difficult, even when policies are clear.

For the past few months, rumors have been flying that China’s government would move to remedy the situation by creating three “Super Ministries,” separated into transportation, energy and the environment and construction—sectors that all played a role in the energy and food shortages still ongoing in Guangdong and Hunan Provinces. A law that would have paved the way for such a ministry in energy, however, was recently delayed due to infighting among the ministries and commissions controlling the country’s energy sector. A draft of the law was initially released last December for public comment, with the hope it would be put before the annual National People’s Congress in March. Now the government is projecting the law will come to a vote a year from now, in 2009.

While the draft did not itself set up a new ministry to take charge of energy policy in its entirety, it was a move toward stripping the NDRC and other ministries of their current role in energy and creating a larger, consolidated ministry in an attempt to streamline policy-making. The draft also proposed to adjust the pricing policies of the central government, relying more heavily on the numbers provided by the international market. It called for the build up of energy and oil reserves and would have set up energy subsidies in rural areas of the country.

Other measures, such as combining the State Environmental Protection Agency with the Ministry of Construction may still be implemented after March 5th, when the NPC meets. When the interests of powerful existing ministries are at stake, however, such measures will be difficult to enact. “Super Ministries” are also no guarantee of improvement. If provincial officers continue to be funded by local governments, enforcement will continue to be a problem. In the energy sector, a consolidated ministry may still not have full control over the large, State-owned oil and power companies, who currently report to the State-Owned Assets and Supervision Commission. It is difficult to say, also, if the larger ministries will not fall into some of the bad habits that the NDRC suffers from—turf wars and local protectionism may not be weeded out by size.

Culture Club

JB

I notice that the NY Times has now caught on to the meme that the Obama candidacy has been accused of creating a cult of personality, a term redolent with overtones of Stalinism. (The "cult of personality" was the central theme of Nikita Krushchev's famous 1956 secret speech criticizing Stalinism.).

In raising the term "cult of personality," The New York Times article does a bit of a bait and switch: it dutifully cites to Max Weber and his concept of charisma (not quite the same thing). But it does not mention the implicit associations of Stalinism tied to "cult of personality". After all, people don't normally use "cult of personality" as a compliment. When I have said that a cult of personality grew up around George W. Bush after 9-11 (which has since largely dissipated), I was implying that there's something disturbingly authoritarian about his Administration: that people became so fixated on loyalty to the President in time of crisis that they weren't paying sufficient attention to the civil liberties implications of the Administration's policies.

In fact, the term "cult of personality" has become a full-fledged cliche in American politics. Despite my own past usage of the term, I fear that it no longer does much explanatory work. Nowadays anytime a politician demonstrates (1) charisma; (2) fervent loyalty from supporters; (3) slavish media attention; (4) religious rhetoric; or (5) more attention and less media criticism than his opponents would like, people associate him or her with a "cult" of personality. I've said it about George W. Bush (I'm not the only one); others have said it about Hillary Clinton, Ronald Reagan, and now Barack Obama.

If the term is to make any sense at all, it may be useful to separate out two different concerns. The first is the fear that charismatic leaders who inspire patriotic fervor and strongly emotional bonds of loyalty will produce authoritarian policies that people overlook because of their emotional connection to the leader and his claims to represent the national interest. That is the Stalinist implication of the term "cult of personality." And that is what people hint at when they use the term pejoratively. If so, then the real question to ask when the term is deployed is whether the speaker is claiming that politician's policies are or are likely to become authoritarian. Of course, people generally recoil from using the "A" word, but that's what's at stake. When I have used the term "cult of personality" in reference to George W. Bush, I have been invoking these concerns about his policies. Is *that* what people are worried about in the case of Barack Obama? If so, then they should say so directly.

However, there is a second concern that may actually be more important given the current features of American politics: the cult of personality around our leaders refers to the increasing disconnect between the politics of leadership (the methods of gaining and retaining power) and the actual mechanisms of governance.

Democracies tend to rally around charismatic figures; media culture organized around television tends to promote this because it makes character and appeals to character particularly important. People gain office through displays of charisma and appeals to character, seeking the right to rule by acclimation of the public. Yet once the leader takes office, the actual governance of the country is in the hands of large bureaucratic institutions like administrative agencies, the military, the intelligence services, and so on. When the new President takes office on a tide of acclimation and optimism, he inevitably promises what someone else will be delivering.

This is a distinct problem from Caesarism and creeping authoritarianism. The problem is that people are distracted from the way governance actually occurs because it is easier for them (and the press) to focus on personalities of leaders. To say that contemporary politicians form cults of personality means to say that they distract the public from the mechanisms of governance because that is how they gain the authority to rule. The problem is that if this authority does not translate into the ability to move the system forward, it is delusory and will, in time, breed cynicism and despair and successive waves of charistmatic politics each promising much but delivering little.

The long term fear about such a situation is that eventually electoral politics will become a sideshow to the actual forces that govern the nation, or, in the alternative, that popular discontent will grow so great that eventually a charismatic and unscrupulous leader will attempt to seize actual control of the methods of governance and rule by decree, thus ending democracy. This concern is not about any particular politician, but rather about the sustainability of popular sovereignty and the long term health of democratic republics. The framers of the American Constitution were worried that democracies eventually collapse and turn into dictatorships; that is why they tried to design a republican system of government that would make it difficult for power to be concentrated in the hands of any one person. (Their vision of the Presidency, it is worth noting, was very different from today's conception.) This larger question-- the long term sustainability of republican government in the face of changing circumstances and tendencies toward charismatic politics-- is probably not much on the minds of pundits and commentators who go on about "cults of personality," but it is probably more important than the question of whether either Obama's or Clinton's supporters are too loyal for the commentator's taste.


Friday, February 15, 2008

McConnell on FISA: The fox requests immunity for its previous guarding of the chicken coop

JB

Mike McConnell's call for immunity for telecom companies in today's Washington Post would be far more persuasive if we didn't recall why the issue arises in the first place. The Bush Administration repeatedly violated FISA and told telecom companies that it was ok to do so based on a crazy constitutional theory that the President couldn't be bound by the law.

Of course telecom companies will be less likely to cooperate in the future with an Administration whose legal advice has proven to be so unreliable. But giving them immunity whenever they recieve bad advice from the White House gives the White House no incentives to stay within the boundaries of the law. As I have pointed out before immunity provisions make it much easier for an untrustworthy White House to cover up its misconduct. In essence, the President wants legal assurances that nobody will have incentives to reveal what his subordinates did and what he asked the telecom companies to do. Retroactive immunity helps insure that these issues will never come to light in any court of law. After the experience of this Administration, do we really think this is a good idea?

Thursday, February 14, 2008

Lowering the Bar: Well, At Least We're Not as Barbaric as the Spanish Inquisition

Marty Lederman

Has it really come to this?

In my previous post I did not adequately convey just how chilling Steve Bradbury's testimony was today. It began early on: Rep. Nadler asked Bradbury how OLC could possibly have concluded that waterboarding is not torture -- After all, isn't the whole point of the technique to induce severe physical pain and/or suffering so as to compel recalcitrant detainees to talk? Doesn't its reported effectiveness -- most victims cannot withstand more than 30 seconds of it -- speak for itself? Of course it's designed to inflict severe physical suffering. And if it does so, as Bradbury concedes, it's prohibited torture, no matter what the justification might be.

Bradbury did not respond directly to Nadler's question (although later he tipped his hand as to why he has concluded that the CIA waterboarding is not torture -- see below). Instead, Bradbury tried to reassure Nadler, and later Representative Franks, that the CIA's waterboarding was not as bad as press reports would have it -- that our variant of the technique is materially distinct from the sort of water torture used by (i) the Spanish Inquisition; (ii) U.S. forces in the Philippines at the turn of the 20th Century; and (iii) the Japanese in World War II. In those earlier historical examples, there was a "forced consumption of a mass amount of water," and occasionally the interrogators would stand or jump on the stomach of the victim, sometimes leading to "blood coming of the victim's mouth." Which apparently crosses the line. Thankfully, we do not do such terrible things.

Some of you will recognize that the technique Bradbury is disclaiming is the one often called the "water cure." The CIA doesn't use that. Instead, the agency apparently is using the less dangerous version of "waterboarding" -- the sort popularized by the French in Algeria, and by the Khmer Rouge. This technique involves placing a cloth or plastic wrap over or in the person's mouth, and pouring or dripping water onto the person's head. The CIA technique is likely a variant of what Darius Rajali, in his encyclopedic and indispensable new book, calls "Dutch choking" (see pages 281-283) -- either that or, in the cellophane variation, perhaps the "dry submarine" (see 284-285). A couple of years ago, Rejali summarized the various water tortures in an e-mail:
[T]he "water cure" admits of several variants:
(a) pumping: filling a stomach with water causes the organs to distend, a sensation compared often with having your organs set on fire from the inside. This was the Tormenta de Toca favored by the Inquisition and featured on your website photo. The French in Algeria called in the tube or tuyau after the hose they forced into the mouth to fill the organs.
(b) choking - as in sticking a head in a barrel. It is a form of near asphyxiation but it also produces the same burning sensation through all the water a prisoner involuntarily ingests. This is the example illustrated in the Battle of Algiers movie, a technique called the sauccisson or the submarine in Latin America. Prisoners describe their chests swelling to the size of barrels at which point a guard would stomp on the stomach forcing the water to move in the opposite direction.
(c) choking - as in attaching a person to a board and dipping the board into water. This was my understanding of what waterboarding was from the initial reports. The use of a board was stylistically most closely associated with the work of a Nazi political interrogator by the name of Ludwig Ramdor who worked at Ravensbruck camp. Ramdor was tried before the British Military Court Martial at Hamburg (May 1946 to March 1947) on charges for subjecting women to this torture, subjecting another woman to drugs for interrogation, and subjecting a third to starvation and high pressure showers. He was found guilty and executed by the Allies in 1947.
(d) choking - as in forcing someone to lie down, tying them down, then putting a cloth over the mouth, and then choking the prisoner by soaking the cloth. This also forces ingestion of water. It was invented by the Dutch in the East Indies in the 16th century, as a form of torture for English traders. More recently it was common in the American south, especially in police stations, in the 1920s, as documented in the famous Wickersham Report of the American Bar Association (The Report on Lawlessness in Law Enforcement, 1931), compiling instances of police torture throughout the United States.
CIA officers who have subjected themselves to the CIA version of the technique -- probably (c) or (d), if Bradbury is to believed -- reportedly have lasted an average of 14 seconds before caving in. Yet no severe physical pain or suffering?! How can that be?

Bradbury later confirmed (see the video at 36:20-37:00) what I've often speculated here: OLC's view is that a technique is not torture if, "subject to strict safeguards, limitations and conditions, [it] does not involve sever physical pain or severe physical suffering -- and severe physical suffering, we said on our December 2004 Opinion, has to take account of both the intensity of the discomfort or distress involved, and the duration, and something can be quite distressing or comfortable, even frightening, [but] if it doesn't involve severe physical pain, and it doesn't last very long, it may not constitute severe physical suffering. That would be the analysis."

Let's be very clear: This so-called "analysis" is at the very core of the OLC justification for waterboarding, and possibly several other components of the CIA program, as well. And it is flatly, 100% wrong, and indefensible, for reasons I have discussed at length. The fact that Judge Mukasey continues to abide by it is a scandal. And the fact that Congress has not said a word about this legal linchpin of the OLC/CIA regime is even worse.

Waterboarding, even the CIA version, entails excruciating and intense physical suffering. That's why they use it. The account by "Scylla", set out below, describes the effects quite well. His conclusion?: "I'll put it this way. If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question. It's horrible, terrible, inhuman torture. I can hardly imagine worse. I'd prefer permanent damage and disability to experiencing it again. I'd give up anything, say anything, do anything."

And yet OLC concludes that this unimaginable physical suffering is not "severe." Why? Because it is so effective at inflicting intense, unparalleled suffering that it does not last very long.

To say that this is not severe physical suffering -- is not torture -- is absurd. And to invoke the defense that what the Spanish Inquisition did was worse, that we use a more benign, non-torture form of waterboarding -- after all, we don't stomp on the victim's chest! -- is obscene. And yet here we have a United States official invoking that justification today, in sworn testimony to Congress, without betraying the slightest hint of self-awareness of how grotesque it is . . . and no one so much as blinked, so inured are we to this discourse by now.

* * * *

Scylla's description of self-inflicted waterboarding that sounds as if it might be similar to that approved as lawful for use by the CIA:
[T]hose of you who know me will know that I am both enamored of my own toughness and prone to hyperbole. The former, I feel that I am justifiably proud of. The latter may be a truth in many cases, but this is the simple fact:

It took me ten minutes to recover my senses once I tried this. I was shuddering in a corner, convinced I narrowly escaped killing myself.

Here's what happened:

The water fills the hole in the saran wrap so that there is either water or vaccum in your mouth. The water pours into your sinuses and throat. You struggle to expel water periodically by building enough pressure in your lungs. With the saran wrap though each time I expelled water, I was able to draw in less air. Finally the lungs can no longer expel water and you begin to draw it up into your respiratory tract.

It seems that there is a point that is hardwired in us. When we draw water into our respiratory tract to this point we are no longer in control. All hell breaks loose. Instinct tells us we are dying.

I have never been more panicked in my whole life. Once your lungs are empty and collapsed and they start to draw fluid it is simply all over. You [b]know[b] you are dead and it's too late. Involuntary and total panic.

There is absolutely nothing you can do about it. It would be like telling you not to blink while I stuck a hot needle in your eye.

At the time my lungs emptied and I began to draw water, I would have sold my children to escape. There was no choice, or chance, and willpower was not involved.

I never felt anything like it, and this was self-inflicted with a watering can, where I was in total control and never in any danger.

And I understood.

Waterboarding gets you to the point where you draw water up your respiratory tract triggering the drowning reflex. Once that happens, it's all over. No question.

Some may go easy without a rag, some may need a rag, some may need saran wrap.

Once you are there it's all over.

I didn't allow anybody else to try it on me. Inconceivable. I know I only got the barest taste of what it's about since I was in control, and not restrained and controlling the flow of water.

But there's no chance. No chance at all.

So, is it torture?

I'll put it this way. If I had the choice of being waterboarded by a third party or having my fingers smashed one at a time by a sledgehammer, I'd take the fingers, no question.

It's horrible, terrible, inhuman torture. I can hardly imagine worse. I'd prefer permanent damage and disability to experiencing it again. I'd give up anything, say anything, do anything.

The Spanish Inquisition knew this. It was one of their favorite methods.

It's torture. No question. Terrible terrible torture. To experience it and understand it and then do it to another human being is to leave the realm of sanity and humanity forever. No question in my mind.

Not So Fast There, Ana

Marty Lederman

I wrote last night that "if the President does as he has promised and follows Senator McCain's lead by vetoing this bill, the CIA will continue to assert the right to use all of these techniques -- and possibly waterboarding, as well." Ana Marie Cox, apparently acting in an odd role as shill for the McCain campaign, which pointed her to Steve Bradbury's written testimony, takes me to task:

"In [the Bradbury statement], the DOJ, for the first time and in direct contradiction of Lederman's conjecture, declares waterboarding illegal under current law. . . . Bradbury's statement shows, at the very least, that Lederman was incorrect about how the administration would read the law as applied to waterboarding."
Ana, you really ought to read these things before you rely on them. [UPDATE: Perhaps "shill" was too intemperate. I just found it odd that Ana Marie Cox would take the McCain campaign's word for what a document said, and would defend McCain against my criticisms so vociferously, without actually checking the document itself.] The Bradbury statement most certainly does not declare waterboarding illegal under current law. What it very carefully says, instead, is that "[t]here has been no determination by the Justice Department that the use of waterboarding, under any circumstances, would be lawful under current law."

So, contrary to the propaganda that the McCain folks are feeding Cox, DOJ has not determined that waterboarding is unlawful "under current law." Indeed, in today's testimony, Rep. Scott asked Bradbury flat out (video at approx. 1:04:30): "Has there been a determination that it is unlawful under current law.?" Bradbury's answer: "No, sir."

OK, but if DOJ has not determined that the technique is lawful or unlawful under current law, what has it -- what has Bradbury -- determined?

First, OLC has concluded that waterboarding, at least as practiced by the CIA, which isn't quite as barbaric as the Spanish Inquisition, is not torture under the federal torture act. Bradbury's testimony today -- in which he tried to distinguish CIA waterboarding from the torture variation practiced by the Japanese, the Spanish, etc. -- confirms this. More importantly, the 2004 Levin memo (disingenuously) construed the torture statute prohibition on infliction of severe physical suffering so that it would not cover waterboarding. And Bradbury's statement today expressly reaffirms OLC's adherence to that flawed 2004 interpretation of the torture act.

Second, according to the New York Times, in February 2005, DOJ issued another opinion, "an expansive endorsement of the harshest interrogation techniques ever used by the Central Intelligence Agency," which allowed the CIA to "barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures." That opinion was signed by Steve Bradbury. Later in 2005, DOJ realized that the McCain Amendment would become law, prohibiting conduct that shocks the conscience, and issued "another secret opinion, . . . declar[ing] that none of the C.I.A. interrogation methods violated that standard. . . . In the end, Mr. Bradbury’s opinion delivered what the White House wanted: a statement that the standard imposed by Mr. McCain’s Detainee Treatment Act would not force any change in the C.I.A.’s practices, according to officials familiar with the memo."

Thus, Bradbury has concluded that the CIA's waterboarding is not torture, and does not shock the conscience in violation of the McCain Amendment. So what, exactly, is he saying when he writes that DOJ hasn't decided that waterboarding "would be lawful under current law"? He means only that he has not yet had occasion to determine whether the CIA waterboarding violates the third of the three principal legal limitations -- the Common Article 3 prohibition on "cruel treatment," a limitation that DOJ accepted only when the Supreme Court forced its hand in the summer of 2006 in the Hamdan decision. Under the President's preposterous executive order construing Common Article 3, it's likely Bradbury would conclude that restriction not prevent waterboarding, either. He s imply hasn't had a chance to do so yet. [UPDATE: In his full testimony, Bradbury states at a couple of points that what remains uncertain is whether the techniques are lawful under the criminal implementation of Common Article 3 included in the 2006, post-Hamdan Military Commissions Act.]

Ana, I may very well be wrong about some of this -- Who can know until all the opinions are released? But everything about today's Bradbury testimony, written and oral, only serves to bolster my assumptions about OLC's views on waterboarding. Don't believe the hype: In light of his role as the Republican candidate, McCain had it within his power to once and for all end the shameful practice of CIA waterboarding -- and its other unlawful techniques. He chose not to do so.

This You Ought to Watch

Marty Lederman

Congressman Nadler asks Steve Bradbury two critical questions: (i) How is it possible that the CIA's waterboarding (which Bradbury insists is not as bad as the traditional technique!) is not designed to result in severe physical and/or mental pain or suffering?;

and

(ii) Is there any theory under which the Executive has a legal right to withhold from the Committee OLC's legal opinions on the legality of the enhanced techniques, so that the Committee can oversee DOJ (and, I would add, so that the Committee has some understanding of how our government is interpreting and implementing Congress's own enacted statutes)?

Bradbury, not surprisingly, does not provide any direct answers to either question.

Race and American Constitutional Development

Mark Graber

For those interested in avoiding work and/or learning about the new scholarship on race and American Constitutional Development, Professor Michael Klarman of the University of Virginia Law School and I are blogging about his new book, Brown v. Board of Education, and the history of racial equality in the United States over on the website of the American Constitutional Society. Our conversation has ranged from the influence of the Supreme Court on race policy to the political construction of judicial review to the extent to which racial progress in the United States is a function of virtue or interest. Happy reading.


Scalia on Torture

Brian Tamanaha

The IntLawGrrls blog has posted a rough transcript of Justice Scalia’s illuminating comments on "so-called" torture in a recent interview with BBC.

BBC: Tell me about the issue of torture. We know that cruel and unusual punishment is prohibited under the 8th Amendment. Does that mean that the issue is a kind of, if it comes up before the Court, is a no-brainer?

SCALIA: Well, a lot of people think it is, but I find that extraordinary. To begin with, the Constitution refers to cruel and unusual punishment. It is referring to punishment for crime. For example, incarcerating someone indefinitely would certainly be cruel and unusual punishment for a crime. But a court can do that when a witness refuses to answer, can just commit them to jail until you will answer the question, without any time limit on it, as a means of coercing the witness to answer as the witness should. And I suppose it’s the same thing about so-called torture. Is it really so easy to determine that smacking someone in the face, to find out where he has hidden the bomb that is about to blow up Los Angeles, is prohibited by the Consti- .... because smacking someone in the face would violate the 8th Amendment in the prison context, you can’t go around smacking people about. Is it obvious that what can’t be done for punishment can’t be done to exact information that is crucial to the society? I think it is not at all an easy question, to tell you the truth....


SCALIA: It seems to me, you have to say, as unlikely as that is, it would be absurd to say that you, you, can, I don’t know, something under the fingernails, smack him in the face – it’d be absurd to say that you can’t do that. And once you acknowledge that, we’re into a different game. How close does the threat have to be, and how severe can the infliction of pain be? I don’t think these are easy questions at all, in either direction. But I certainly know that you can’t come in, smugly and, and, uh, with great self-satisfaction and say, “Oh, it’s torture, and therefore, it’s, it’s, uh, no good.” You would not apply that in some real-life situations. It may not be a ticking bomb in Los Angeles, but it may be, “Where is this group that we know is plotting some very painful action against the United States? Where are they and what are they currently planning?"


According to the original meaning of the Framers, then, it might not be Cruel and Unusual Punishment under the 8th Amendment to stick a blade under someone’s fingernails in an effort to obtain vital information if that person is part of a group plotting a painful action against the United States. That makes sense. The Constitution was not meant to be a suicide pact.

On to the next point:

BBC: If you look at countries with a common law tradition, of which we are one, and you are another, but also, lots of other countries around the world, and in the developing world – if they look at decision of the Supreme Court which affirm the death penalty, and which perhaps affirm torture, although that hasn’t happened yet, does that not set a moral tone?

SCALIA: Well, I urge them not to do that. I don’t look to their law. Why should they look to mine? I don’t purport to be prescribing some universal moral law. I am interpreting the meaning of the text of my Constitution, which was adopted at a certain time by my people, and had a meaning to those people at the time. That’s all I’m doing. I’m not charged with, with figuring out the content of the natural law. If you want to look at our decisions, what you could derive from it is what a wonderful Constitution we have. Or, if you don’t like it, you can say what a terrible Constitution we have. But we don’t pretend to be moral, you know, some Western mullahs, who what decide what is right and wrong for the whole world.


Alright world—stop looking at American law as a model. We don’t pretend to tell everyone else what is moral.

I’m glad we cleared that up.

Now maybe the rest of the judgmental world can leave us alone and let us do our thing.

Advice to the next President

Heather K. Gerken

The Brennan Center recently asked a group of people (including Hendrik Hertzberg, E.L. Doctorow, Senator Bill Bradley, and Dahlia Lithwick) the following question: "It is the morning after the election. The president-elect calls you up and says, 'You know, after this grueling, absurd campaign, I now see that the state of our democracy is something we have to grapple with right away. What should I do?'" The question prompted a number of interesting responses that are well worth reading. Below is mine, cross-posted at the Brennan Center’s website.

I would tell the president that he is asking the wrong question. We already spend an inordinate amount of time thinking about what's wrong with our election system and how to fix it. The problem is that we are fighting reform battles on hostile terrain, and almost no one is thinking about how to change the terrain itself. Our focus should not be on end goals but on how to get from "here to there" -- how to create an environment in which reform can actually take root.

Reform is an uphill slog in this country. Even a crisis as profound as the one that occurred during the 2000 presidential race prompted only modest reform. Just think about that for a moment. In the wake of the Florida fiasco, there was a strong national consensus that we had a problem, lots of potential solutions, a reform community ready to act, and a cause that was at least superficially appealing to voters. Yet relatively little got done. If that is not a sign of a tenaciously difficult reform environment, I don't know what is. Even a newly minted president is likely to find it hard to get change passed.

Rather than urge the president to fight the same fight in the vague hope that his proposal, unlike so many others, will take root, I would urge him to step back and think about how to create an environment that is more receptive to change generally. It is time to think less about end results and more about the institutional correctives and intermediary strategies that will help us get from :here to there." We have already spent a lot of time identifying the journey's end. Now is the time to figure out how to smooth the road that leads there.

My "here to there" proposal might seem modest when compared to the goals typically articulated by reformers -- rewriting campaign finance laws, a nonpartisan system for administering elections, redistricting reform. But proposals like these have been met with a deafening silence from voters and politicians. We know the basic outlines of the reform we need; we don't need a president to help us with that. What we need is an environment in which change can happen. That is where presidential vision and leadership can make a difference.

What would a package of "here to there" strategies look like? Space constraints prevent a full discussion here, but let me offer one set of suggestions about the kinds of strategies that should help us get from here to there. If you ask any expert to identify the root causes of the problems in our election system, partisanship and localism are usually the two main targets for blame. Both make it more difficult to create a professional, unbiased, properly funded system for running our elections.

Unfortunately, phrases like "the perils of partisanship" or the "problem of localism" are usually the punch line to the story, not a starting point for the analysis. The stated goal of many reform proposals is the elimination of partisanship in election administration or the replacement of our localist system, as if one could just wish them away. But partisanship and localism aren't just the problem; they are also the reason that the problem is hard to fix. Partisan and local officials, needless to say, are reluctant to give up the power they wield over the election system.

It would be a mistake to tell the president to focus on proposals that require partisan foxes to stop guarding the henhouse or to imagine that our centuries' old tradition of localism will vanish overnight. Even a president cannot get rid of such entrenched interests so easily. The president should instead focus on how to domesticate the foxes and harness the power of local competition. We may not have an ideal system in place. But we might as well take advantage of the best features of the current system -- the powerful engine of partisanship and the intriguing possibilities associated with local competition.

I have spent the last few months writing a book about one promising "here to there" strategy: a Democracy Index, which would rank states and localities based on their performance in administering elections. The Democracy Index would function as the rough equivalent of the U.S. News and World Report rankings for colleges. It would focus on the basic issues that matter to voters: how long were the lines? how many ballots were discarded? how often did the machines break down? It should work for a simple reason: no one wants to be at the bottom of the list.

The Democracy Index should harness localism and partisanship, the usual obstacles to change, in the service of reform. At present, problems with how we run elections are all but invisible to voters. Voters see the symptoms of the problems here and there, but they lack the data that would tell them how well their state is doing compared to other states. Little wonder, then, that states would prefer to fund projects voters can see -- new schools, more cops on the beat -- rather than put resources into improving our voting system. A ranking not only makes election problems visible to voters, but plays up rivalries between the states.

The Democracy Index should also realign the interests of partisans with those of voters. Right now, it is quite hard for voters to hold election officials accountable for their missteps because we lack the most basic information about how well state election systems are run. If voters cannot assess how well the election system functions, politics -- not professionalism -- is what matters most for the many secretaries of states or lower-level election officials who want to run for reelection or seek higher office. That means that the fate of an election official depends heavily on her standing within the party, which will provide the resources and support for her next campaign. The current state of affairs creates the wrong kinds of incentives for election officials. It is not just that some are tempted to administer the process in a partisan fashion. They also have less incentive to rock the boat by lobbying other members of their party hard for needed resources. Legislators, after all, would rather fund cops and teachers than machines and poll workers.

The Democracy Index realigns the interests of election officials with the interests of voters. When voters have information about an election official’s professional performance, not just her political skills, she should care deeply about how her state ranks. Imagine, for example, you were running against a former Secretary of State like Ohio's Kenneth Blackwell or Florida’s Katherine Harris. What better campaign weapon could you imagine than a ranking system showing that your state is one of the worst-run systems in the country? In this fashion, the Democracy Index should help domesticate the foxes. Instead of asking a secretary of state to stop thinking about her political interests in administering the election process, the Democracy Index links her political fate to her professional performance.


I have identified a variety of other "here to there" strategies in a series of posts on Balkinization, here, here, here, here, and here. Many of these proposals similarly harness partisan and local competition in the service of reform. In my view, these modest proposals represent the best shot we have for creating an environment in which bigger, better reform can take place. Thus, if I were advising the president, I'd tell him to start there . . . or, rather, to start with the "here to there."


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