Tuesday, May 13, 2008 - Posts
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In recognition of the unusual news that a lower court decision was "automatically affirmed" because too many justices had "[f]inancial and personal conflicts of interest," a quiz:
In what case decided 60 years ago this month did three justices recuse themselves because they had a financial stake in the outcome of the issue at bar?
Colleagues?
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After noting yesterday that the Green Bag soon will publish young William Rehnquist's long-lost Mikado parody, I'm pleased to point you to the full article, posted to SSRN today by author John Q. Barrett.
John's done a crackerjack job: He accompanies the lyrics with detailed annotations and background material (on the court, Rehnquist, and Rehnquist's lighter side). Better still, he includes a few fun photos of Rehnquist at work and at play in Robert Jackson's chambers.
One of the photos features Rehnquist with his foot up on the desk, enjoying a smoke and a drink. It's impossible to tell what he's drinking, but because the photo predates 1975, I can say with absolute certainty that it's not a "Miller's Lite."
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Well, Phil, after reading the Pentagon's press release on the decision to drop charges (for now) against al-Qahtani, I admit to being overcome by the more cynical angels of my nature. On the one hand, I can see a pretty sensible prosecutorial rationale for separating al-Qahtani from the five other "high value" detainees at Gitmo charged today with involvement in planning and executing the 9/11 attacks. As the Pentagon explained:
The Convening Authority has dismissed without prejudice the sworn charges against Mohamed al Kahtani. Because the charges were dismissed without prejudice, the government has the option of charging Kahtani separately, but he will not be tried with the other accused in this case.
Translation: Al-Qahtani had been part of the big 9/11 conspiracy case we were planning to try jointly. But because the evidence supporting al-Qahtani's prosecution is particularly dicey (given, as Phil notes, what we did to him in custody), we'd rather not jeopardize the prospect of a successful joint prosecution of the five with the particularly ugly facts surrounding al-Qahtani's treatment.
Fair enough, I suppose. We've had some of these accused 9/11 masterminds in custody for years now and have yet to bring a single one to justice, in part because of concerns the evidence is now too tainted by torture to be admissible in any court. A reasonable prosecutor who parachutes into this position could only try to do the best she can with the cards she's now been dealt. (I guess we'll have to see what's to be done about the fact that al-Qahtani's isn't the only case tainted by allegations of evidence gained under torture.)
But this story comes in the midst of what's already been a hell of a past few weeks of nearly soap-operatic news out of the commission trials at Gitmo—news that's included repeated allegations that the Pentagon has pressed for convictions in the interest of partisan political advantage, and the deeply embarrassing statements by the former commission chief prosecutor who resigned in protest and has spent the past several weeks touring the country explaining how the commissions cannot possibly produce fair trials.
For details on these and other allegations, you might take a look at the fascinating opinion released by the commission on Friday, in which sitting commission judge (Navy JAG Capt. Keith Allred) issued an order excluding Brig. Gen. Thomas Hartmann from further involvement in the commission trial of Salim Hamdan on the grounds that Hartmann was exerting undue command influence on the trials (on behalf of the prosecution). Hartmann has held the only-in-Gitmo title of legal adviser to the convening authority for the military commissions—a role that essentially calls on him to provide objective legal advice to the Pentagon office in charge of running the commission proceedings. Apparently, the "objective" advice has included pushing the (since resigned) chief prosecutor to use evidence the prosecutor thought was "tainted and unreliable, or perhaps obtained as a result of torture or coercion." Not that this concern is itself especially news. One can now read some of the e-mail exchanges from the young military prosecutors who resigned from the commission office back in 2004 after alleging, among other things, the disappearance of evidence documenting detainees' allegations of torture. But the court's decision hardly helps the commissions' already battered image.
And then there are the accounts from the recent trial proceedings themselves, in which, despite the countless reasons why this shouldn't be the case, some of the most eloquent statements in the courtroom have come from a detainee. (Attorneys with my former employer Human Rights First are again blogging from Gitmo during the trials, and their recent filings are well-worth a read.) I'll just end with this particular snippet from Mr. Hamdan. Hamdan, recall, won an extraordinary victory in 2006, when the Supreme Court held the initial commission process unlawful under U.S. and international law. For a time after that, Hamdan became (as quoted by his attorneys) a remarkable champion of the U.S. legal system. That view apparently has since changed.
If you ask me the color of this table, I will tell you it's white. You say, "it's black." I say, "no, it's white." You say, "no, it's black." I say fine, "it's black." You say no, it's white." This is the American government.
This process is serving no one's interests, most especially not those of the United States. Despite the best efforts of some of the many well-meaning military lawyers who've been at various stages associated with the commissions, I just don't see any way possible for this process at this point to be taken seriously. Have courts martial Have them in the continental United States. This just has to end.
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Jack's recent post suggests a good task for science-fiction authors who write counterfactual histories—eliminate the Supreme Court's power to strike down statutes as unconstitutional and rerun history. No Brown v. Board of Education and no Dred Scott v. Sandford. No Roe v. Wade and no United States v. Morrison. No Gideon v. Wainwright and no Schechter Poultry Corp. v. United States. Would we wake up in North Korea or Sweden?
Because I am a fan of Jack's partisan entrenchment theory that extended majorities entrench their policy preferences by ensuring that ideological allies are appointed as Supreme Court justices, I am uneasy about his commitment to a (non-Scalia) style of originalism that directs those same justices to draw on the principles underlying founding materials. If Jack's entrenchment theory is correct, then Republicans will make sure to appoint people who will either (1) adopt a methodology that produces conservative outcomes, or (2) manipulate legal materials in order to produce conservative outcomes. Democrats will appoint people who will do the same, albeit in the liberal direction. Each party can plausibly argue that if the other party uses the Supreme Court to advance its policy goals (as Jack's theory predicts), then it can't be criticized for doing the same. It's hard to see what role Jack's theory of originalism would play in this scenario, except as rhetorical cover that the liberals could use to counter Scalia's version of originalism.
Or, at least, this seems to be the likely outcome if Jack is right that not even Scalia can bring himself to comply with his own theory when it generates outcomes he does not like on political grounds. While I have no doubt that Jack applies his own version of originalism honestly (see his discussion of the gun-control case), I see no reason to believe that a liberal justice who adopted Jack's theory would do the same—again, especially if Jack is right that Scalia does not apply his originalist methodology honestly. And given the ambiguity of Jack's theory, even relative to Scalia's version of originalism, the pressure on liberal justices who adopted it to avoid advancing policy goals would be correspondingly diminished. Indeed, liberals, if no more honest than Jack's Scalia, might welcome Jack's theory as the cover they need to advance their policy goals without saying that that is what they are doing. That was the point of my earlier post, and I did not mean to single out the Warren Court, except to point out that it continues to loom large as a bête noire in the imagination of the conservative "base," much more than Lochnerism seems to loom in the liberal imagination, which is why Democrats are having such a hard time putting together a politically useful judicial philosophy.
We can also use Jack's entrenchment theory to answer our historical counterfactual. If he is right, then we would have seen greater policy variance over time (at least, at the national level) but not any great difference in the policy "mean." This doesn't seem particularly worrisome. We'd be neither North Korea nor Sweden, but America—in 2008, on the verge of a significant move to the left, a move we can expect, in our real world, the current conservative Supreme Court majority to block or slow down.
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The Associated Press reports this morning that Pentagon officials have dropped military commissions charges (for now) against Mohammed al-Qahtani—better known as Detainee 063 after the Time cover story detailing his interrogation. Prosecutors alleged that al-Qahtani was the "20th hijacker," who narrowly missed participating in the 9/11 attacks after being detained at a Florida airport. However, the prosecution stalled because of government admissions that some evidence against al-Qahtani was gleaned through coercive interrogation (read: torture), like water-boarding, and that al-Qahtani himself was harshly treated (read: tortured) at Gitmo.
And so, yet again, the decision to "take the gloves off" in prisoner interrogations comes back to haunt us. The prosecution of al-Qahtani should have been an opportunity for the government to prove its case against this defendant and al-Qaida—and to confer some legitimacy on America's war on terrorism through the legal process. Instead, the military commissions remain mired in a morass of legal problems. And this particular prosecution may never go forward, beacuse it was tainted by torture.
Correction, May 14, 2008: This post originally contained a photo of a man identified as Mohammed al-Qahtani. However, the man pictured was not the Mohammed al-Qahtani discussed in the post/article. The photograph has been removed.
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