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Elsewhere on this site, Bruce Ackerman and Jennifer Nou scold the Supreme Court for deciding the Indiana voter-ID case with nary a mention of the 24th Amendment's ban on "poll tax[es] or other tax[es]" that "deny or abridge" the right of citizens to vote in the federal elections. Invoking Harman v. Forssenius, a Warren Court case involving that amendment, Ackerman and Nou pull no punches:
We don't suggest that the Roberts Court isn't clever enough to find a way around Harman. Our point is that the justices didn't even try. They ignored the 24th Amendment and restricted themselves to the equal-protection clause of the 14th in deciding the Indiana case.
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This sort of thing doesn't happen every day in the life of the court—indeed, we can't think of another case in which the justices utterly failed to address the most obviously relevant provision of the constitutional text. If they had squarely confronted the law and language of the 24th Amendment, there is a fair chance that Justices Stevens and Anthony Kennedy would have switched sides, creating a new majority for striking down the Indiana law.
Then, not content to criticize the court as a whole, the authors take direct aim at (go figure) Scalia and Thomas:
[The court's] failure is especially curious in light of the Roberts Court's increasing emphasis on the primacy of the written text in constitutional adjudication. If the 24th Amendment had been front and center, even conservative textualists like Antonin Scalia and Clarence Thomas would have been obliged to think again before ruling against voters' rights.
In their race to criticize the court, Ackerman and Nou miss the point: The Supreme Court didn't reach the 24th Amendment in the Indiana case because that issue was not brought before them by the parties to the case! Unless I'm mistaken, the cert petitions didn't raise the issue, and, consistent with those petitions, the court's question presented limited itself to the First- and 14th-Amendment issues.
(Amazingly, Ackerman and Nou actually note that the lower court did not reach the 24th Amendment issue, yet they fail to consider whether the parties caused that omission below or before the high court.)
In short, Ackerman and Nou appear to forget that a Supreme Court case or controversy is not a free-ranging search for legal truths; rather, a Supreme Court case presents a specific issue or set of issues, raised by the actual parties to an actual legal dispute, to be resolved for the purposes of their litigation and for subsequent cases involving the same legal issue. The point is not that (to quote Ackerman and Nou) that "the court failed to ask" a question—it's that the parties failed to ask the question.
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Eric, I’m with you about the Genetic Information Nondiscrimination Act. It sounds good at first: Everyone is worried about a Gattaca-type future* where people are shunned on the basis of genetic tests, leading to genetic manipulation, eugenics, and a dystopia where everyone lives in Frank Lloyd Wright-style buildings, wears Jil Sander suits, and looks as gorgeous as Uma Thurman (so, OK, this last bit doesn’t sound so bad …).
But if we really think it’s invidious to tie health insurance premiums to risks, perhaps we should consider socialized medicine where everyone pays the same, state-enforced premium. We all know how popular that idea is in the United States, which suggest that people want a market-based system. It is odd indeed that people seem comfortable with the part of the market that distributes care based on ability to pay but not with the part that would tie the price to the amount of care consumed (or likely to be consumed). The perverse result of this law is that poor people with low health risks are forced to effectively subsidize rich people with high risks. This is a law both left and right should have opposed (or at least questioned).
Why didn’t anyone oppose it? I suspect some of the reason is the subtle (or not) analogy to race and sex discrimination—what I’ve called Racism by Analogy. It’s tempting to think that the moral lesson of the civil rights revolution is that we should discriminate only on the basis of desert, but in fact any meritocratic society also entails lots of discrimination on the basis of inherited and unearned virtues, such as intelligence, height, physical strength, and good looks. It’s not “fair” (just as it's not fair that I wasn’t born with Denzel Washington’s looks and Tiger Wood's hand/eye coordination), but genetic discrimination is unlike race and sex discrimination along precisely the dimension that matters: Race and sex are widely used, culturally reinforced, and often poor proxies for personal virtues (stereotypes) that reinforce widespread and illegitimate social hierarchies. Genetics are just the opposite—they are in many cases extremely good proxies for personal virtues (health) that won’t lead to entrenched social hierarchies. And, unlike race and sex, there’s no history and custom of irrational prejudice surrounding genetics, so there’s no reason to suspect that genetic information will be widely misused.
* Correction, May 6, 2008: This post originally misspelled the title of the movie Gattaca.
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I'll get back to the substance of our legal debate on presidential authority in a sec, but first a response to Marty's two more general points.
Does anyone care what the Somalia air strikes tell us about the current legal status of the "war on terror"? Doesn't look like it, Marty says. Quite right, Marty. Though I'm wondering if/whether the story would've played differently if all eyes hadn't been riveted to the rather gripping Democratic primary battle right here in the territorial United States.
But even if it weren't for the availability of better blog fodder elsewhere, Marty asks, does anyone think law has anything to do with any question of war, foreign affairs, and/or military force? Great, and big, question. My quick take: Folks often don't, but they should. There are all kinds of reasons why there are differences between the laws governing, say, the military and the laws governing, say, health care. But a country of laws is a country of laws. I've never been able to see why it seems so easy for so many to see security as something altogether outside that framework. In any case, the law in, about, and of war has been with us for a long time. And as I've noted elsewhere, it has more than once in our history been the military at the forefront of making sure it's here to stay.
Back to Somalia. I'm confident Marty is right that the current administration (and likely most other executives) would assert that the president has the constitutional power to pursue a strike like this without going to Congress for prior authorization first. But what I think this administration would say about its power here in particular is that this strike was the latest salvo in the ongoing "war on terror" (or whatever they call it these days). That is, they'd say it is part of the president's commander-in-chief power to direct the use of the armed forces in an ongoing conflict. So for them it's not, as Diane suggests, a question of what legal authorization is required to start a war (Somalia, after all, seemed to consent to this attack), but what legal limits there are on how a war is carried out. It's in that respect, I think, that what the AUMF says about "necessary and appropriate" matters. Whether or not the president needed to go to Congress in the first instance for authorization to pursue a global "war on terror," Congress has now spoken on that subject.
Most folks (I include myself) think the AUMF surely contemplated the invasion of Afghanistan in 2001. Did it also contemplate, say, targeted killing in Somalia in 2008? Because Diane and I agree the law of war might shed some light on the scope of Congress' thinking here. I'd be interested to know whether jus in bello (the law during war, like the Geneva Conventions) would put this within the bounds of conduct in this case (assuming, Diane, that we're in the administration's particular world of war).
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Thanks very much to Phil, Deborah, and Diane for their posts about Wednesday's air strike in Somalia. Apparently it was the fifth U.S. strike in Somalia in the past 16 or so months. I do have a few, mostly preliminary thoughts about the legality of the strikes, but before I get there, I think the most noteworthy aspect of this story is that, except for us bloggers and some international law scholars (and former State Department officials), it seems that no one really cares whether the strikes were legal. I haven't seen any discussion of the legal question in the major newspapers or on television. No debate in Congress, far as I can tell. And even the administration itself has not bothered to offer any legal justification of its conduct. On the White House Web site, all I was able to find was this passing comment by the president in a Q&A at World Wide Systems Inc. in Maryland Heights, Miss.:
You probably read your newspaper today—I can understand if you didn't, but you probably—(laughter)—well, anyway, there was a strike in Somalia, and the headline says "al Qaeda operative." We're constantly trying to find these people before they hurt you; pressuring all the time.
That's it: The president offhandedly refers to a newspaper headline about an "al Qaeda operative"—and that's apparently all that needs to be said.
This is, I think, a minor example of a much larger phenomenon, and problem—namely, that apart from questions of detainee treatment and the like, the American public, press, and legislature appear to be completely oblivious to the idea that questions of war and military force raise any legal issues at all. It's not as if the public is indifferent to questions of whether and when military force is appropriate. To the contrary: It's simply that it seems never to occur to anyone that law's got anything to do with it.
This phenomenon was most telling in the run-up to the Iraq war: In England and across Europe, there were prolonged, impassioned public debates (recall the Lord Goldsmith drama) about whether the war would be consistent with the U.N. Charter and with international law more broadly. Meanwhile, over here in the States, we certainly had a very intense public debate about whether to go to war in Iraq—a debate that included countless considerations of, and disputes regarding, costs, benefits, justifications, tactics, evidence, morality, etc. And yet, from what I can recall, the notion of legality was simply not a serious component of that debate at all. Those who supported the war would certainly not have considered changing their views if convinced that the war would violate international law; and those opposing the war did not think it would advance their cause to argue that the war was illegal. Moreover, I suspect that if any major political figure here had suggested that whether we fight a war in Iraq depends on, say, whether it would comply with the U.N. Charter, folks would have looked at her as if she were speaking a foreign language.
What's worse, it seems to me that no one much considers the law when it comes to the use of military force because no one thinks the law will, in fact, constrain the executive, anyway, whether Republican or Democrat ... so why bother? Fortunately, my impression is that the question of legality does still occupy executive officials, at least in the State Department, but I wonder how much influence those folks have and how long it will be before such fundamental legal questions begin to lose their purchase altogether.
OK, but what about the Somali strikes, including the one Wednesday: Are they legal? A few scattered thoughts:
1. It's not clear to me that the president would lack the constitutional power to order the strikes, even in the absence of the AUMF. Are these strikes materially different from President Clinton's 1998 strike on the pharmaceutical factory in Sudan? Surely the strikes themselves do not amount to a "war," in the constitutional sense—particularly because it appears that the government of Somalia likely welcomed (if not invited) our action—and so it's not obvious that the Declare War Clause is relevant, or that any congressional involvement is required, as a constitutional matter. Whether the president could order the strikes without legislative approval would depend, I suspect, on a variety of factors, not least of which is why, exactly, the strike was ordered—what the U.S. interest was. And because the administration is not saying anything about the purpose or legal basis of the strikes, we're left mostly in the dark on that question. (From all that appears, the strike was designed to stymie the influence of the al-Shabaab insurgency, and thereby to protect the governing, U.S.-backed Somali government.) On this general question, my views are close to those contained in memoranda written by Walter Dellinger as head of OLC in the Clinton Administration, justifying the military actions in Haiti and in Bosnia. (Under the rationale of those opinions, most modern unilateral presidential military actions have been constitutional—with the important possible exceptions of Korea and Kosovo.)
2. If there were no independent presidential authority to order the strike, does the AUMF authorize it? Well, that depends largely on (i) whether and how the target of the strike, Aden Hashi Ayro, was connected with al-Qaida (and whether such connections were the genuine basis for the strike), and (ii) whether the strike complied with the laws of war (and was thus "appropriate," as the AUMF requires). On the first question, the headlines do, indeed, regularly refer to Ayro as an "al-Qaida operative." But what does that mean? It is undisputed, I think, that he trained with al-Qaida before 2001. But was he in fact acting as an al-Qaida "operative"? Was he part of their command structure? I have no idea, and the reports I've seen are conspicuously threadbare on this question. (Somali government intelligence claimed last year that he had been "named" al-Qaida's "leader" in Somalia, and I have no reason to think that's not the case, but I also have no idea how reliable that claim is, or even what it would mean, exactly. The Washington Post editorial page claims that "as al-Qaeda's chief liaison in the Horn of Africa, Mr. Ayro coordinated the movements of militants and money, and he sheltered several of the suspects in the 1998 bombing of two U.S. embassies in East Africa." Again, I have no reason to doubt the truth of this, nor any way to assess its reliability.) Ayro was certainly a very evil and dangerous guy, and the United States had very good reason to want him dead. But it's not yet clear whether his amorphous ties to al-Qaida—to those responsible for the 9/11 attacks, against whom the AUMF authorizes the use of military force—were the actual reasons for this strike, or whether those ties are a mere pretext for a military strike that we would have undertaken regardless of any possible al-Qaida connection. From all that appears, the strike was undertaken simply because Ayro was a terrorist, without regard to whether and how he was connected with al-Qaida: “The U.S. is committed to identifying, locating, capturing and, if necessary, killing terrorists wherever they operate, train, plan their operations, or seek safe havens,” said a Pentagon spokesman. If so, then the AUMF is probably merely a legal fig leaf.
3. I agree with Deborah and Diane that the strikes must comply with the laws of war, whether they were authorized by the AUMF (which the Supreme Court in Hamdi properly construed to incorporate only what the laws of war allow), or merely by the president's constitutional authority (because, in my view, it is fair to understand the commander-in-chief authority itself to be defined and delimited by the laws of war—an admittedly more contestable proposition, but one that was fairly uncontroverted for the first 100+ years of practice under the Constitution). So, did the strikes violate the laws of war? Here, I'm decidedly outside my area of expertise. I would note, however, that the inquiry itself raises at least three distinct questions:
a. Deborah's question: Can enemies be targeted "anytime, anywhere"? Ayro, Deborah writes, appears to have been minding his own business, far from any traditional field of "armed conflict," probably asleep in his bed. I don't know whether this is problematic under the laws of war. I would think not—subject to the principle of proportionality, mentioned below—but I defer to others with far more knowledge on that question.
b. Proportionality: Under the laws of war, even attacks directed at military targets are prohibited if they “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” The strike killed not only Ayro, but also between eight and two dozen other people, some of them apparently civilians. A violation of the principle of proportionality? Not according to the Pentagon, which appears to concede the applicability of the rule: "As a general rule, U.S. planners seek to minimize any affect of such strikes in civilians, a U.S. Central Command official said, noting that in many cases, planners abort a strike rather than endanger civilians."
c. Jus ad bellum: Diane argues that the strike itself might be unlawful in a more fundamental way, because it was undertaken without approval of the U.N. Security Council, arguably in violation of the U.N. Charter (a treaty to which the U.S. is a party). I'm not so sure, for two reasons in addition to the self-defense theories that Diane discusses. For one thing, to the extent the AUMF authorized the attack, it might be viewed as a later-enacted statute that takes precedence over the treaty: That is to say, Congress might be said to have authorized uses of force that are neither approved by the Security Council nor otherwise permissible under the charter. (I need to think about this question further, however.) But even under the charter itself, it's not clear that this is the sort of action that requires Security Council approval. Article 2(4) provides that "[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations." This strike, which the Somali government presumably welcomed, did not appear to be against the territorial integrity or political independence of Somalia.