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Convictions: Slate's blog on legal issues
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 In contrast to , I'm not all that upset at John McCain's speech on the judiciary. McCain is signaling to Republicans that he will take pretty much the same line on judicial nominations that the party has taken since 1980, when it began an increasingly self-conscious strategy of stocking the courts with movement conservatives. McCain doesn't like some things the courts have been doing, says that judges who decide cases this way are arrogating power to themselves improperly, and then states that if he is elected, he will appoint judges who interpret the Constitution the way he thinks it should be interpreted:
continue reading at Balkinization ...
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 Thanks, Orin, for replaying some of my greatest hits on the judicial role and the separation of powers. As I mentioned in my earlier posts on Sen. McCain's remarks, he and I are in large agreeement on the quality of Chief Justice Roberts and Justice Alito, and unlike him, I am willing to openly add Justices Scalia and Thomas—who seem rather expediently missing from the senator's listing of judicial exemplars. Even candidate McCain's likely opponent, Sen. Obama, has written openly that he is "not unsympathetic to Justice Scalia's position [on originalism]." One is tempted to say to Sen. McCain, "Yes, you can!" Have the courage of your convictions, man. That said, as I earlier wrote, Sen. McCain did have fine and unexceptional things to say about the judicial duty to observe the structural provisions of the Constitution.
But it still seems quite unwise and unfortunate for candidate McCain making his major speech on the judiciary to:
1. Lead with an unwarranted and unhealthy condemnation of the Third Branch, which candidate McCain described as "the common and systematic abuse of our federal courts by the people we entrust with judicial power." Common! (putting aside the good-faith efforts of extraordinary Democratic appointees like Merrick Garland and David Tatel, how "common" can the "abuse" be if there have been 20 years of Republican judicial personnel added to the federal bench since 1981?)
2. Attack the Constitution, itself, which I take it is what McCain means by systemic! Candidate McCain glancingly posits that the founding design of the Constitution leaves the court unchecked, when Article III clearly does not. This, unfortunately, reveals less understanding of the separation of powers than his rhetorical flourishes of praise for constitutional structure elsewhere in his text lead us to believe.
3. Have as its real purpose slamming Sen. Obama's mistaken vote against John Roberts and Samuel Alito. Now, we are on to something, but instead of saying something new or helpful about the difficulty of constitutional interpretation, the names of these venerable public servants are trotted out like bumper stickers. Candidate McCain makes no effort, and since he was speaking at a university with a law program of some note, one might have anticipated one to engage the topic in other than partisan and time-worn fashion. It's not as if Sen. Obama's judicial philosophy is hard to find. It would, for example, appear much influenced by Stephen Breyer's theory of Active Liberty. While giving "reverence" to the founding design, Sen. Obama, like Justice Breyer, believes constitutional principle not to be "static," with its "general principles" promoting active democratic participation while at the same time capable of dealing with the 21st century realities of "NSA computer data mining, ... freedom of speech on the Internet," and the like.
It would be a fine debate worthy of the next national convention of the Federalist Society and the ACS to undertake a serious examination of the competing interpretative views of the McCain-Obama contest. As Orin points out, Sen. McCain and I apparently both thought originalist material was not sufficiently relied upon as applied to the facts of Roper v. Simmons. While that was a juvenile death-penalty case, it is interesting that Sen. Obama in the somewhat different contexts of "mass murder, and the rape and murder of a child" finds the death penalty to be warranted. Since this is an area of substantive agreement on a sensitive and controversial topic, candidate McCain might have used his academic address to make some genuine contribution to the debate by examining why in judicial reasoning, it's not just policy agreement that counts, but how one gets there.
The point remains: The McCain speech unfairly attacked the good-faith service of the Third Branch generally; asserted in cursory fashion constitutional flaws that were not shown by the senator to exist; and took a snarky, partison swipe at his likely general-election opponent, whose writing contains a similar concern to that raised by Sen. McCain, that too often "Republicans no less than Democrats ... [have] asked the courts to overturn democratic decisions ... that they didn't like." Sen. Obama, whose judicial philosophy pays heed to originalist principle but does not rest there, openly questions whether his party "in [its] reliance on the courts to vindicate not only our rights but also our values ... had lost too much faith in democracy."
A small amount of research by candidate McCain's talented legal-advisory group would find both points of interpretative disagreement, within intriguing overlaps as well as points of accord with Sen. Obama. Wrestling with that reality would have been an interesting and honest talk. Indeed, that would have been the kind of talk someone interested in not being politically confused as offering only a third George W. Bush term might have been most anxious to give. Instead, candidate McCain chose only to warm over the tired commentary of the past, even that given by a tired old professorial soul like myself, while adding his own unique signature of political diviseness, constitutional mistake, and gratuitous insult to those who are presently serving on the bench. Frankly, I like my version better, and a new, substantively honest discussion of the important role of the courts in our constitutional system would have been the best of all.
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Doug, I'm interested in learning more about your criticism of Sen. McCain's speech. In particular, I'm curious about the differences between what Sen. McCain said in yesterday's speech and your own well-known criticisms of the federal bench and the Supreme Court in the past.
For example, in a 2005 column for the Los Angeles Times, you wrote that today's federal bench has been warped by the view that judges should decide cases not based on law but on their personal preferences. You suggested that we must begin to restore the proper view of judging in which judges actually follow the law (what you described as "the only faithful way for a judge to discharge his or her duty"):
For the last half a century, law students have been taught that cases are not decided on the basis of formal, authoritatively adopted rules and principles but on the basis of a judge's cultural and social intuitions. 'Legal realism,' as it is called, turns judging into a matter of force or will (personal preference) rather than the exercise of reason, the method called for by Alexander Hamilton in the 'Federalist Papers.' When judges disregard Hamilton's advice, they inject politics into judicial judgment and invite it into confirmation proceedings. Restoring an understanding of the law and the Constitution as text, rather than as jumping-off points for ideological excursions, is an uphill battle, yet it is the only faithful way for a judge to discharge his or her duty.
Source: Douglas W. Kmiec, "Judges: The Law Is the Law," June 26, 2005, Los Angeles Times.
You've also suggested that the next presidential election will prompt a choice between judges who are "faithful" to the law and those who will "corrupt" the law with the "specious" idea that law is politics. As you put it, "During the immediate years following the next presidential election, there are likely to be one or more vacancies that will either secure the bench as a faithful exponent of law or corrupt it by the specious idea that there is no meaningful distinction between law and politic."
You've also criticized some of the same cases that Sen. McCain targets in his speech on pretty much the same grounds as does McCain—that they are raw exercises of will. Here's what you wrote about Roper v. Simmons, the juvenile death-penalty case that Sen. McCain singles out for criticism:
The problem with the U.S. Supreme Court's decision last week banning the execution of minors is that it was based, when you get right down to it, only on the personal beliefs of five justices and buttressed by the opinions of people who live in other countries. That's no way for the court to decide. Supreme Court rulings must be based on the Constitution, not on what the justices believe or on the vagaries of "world opinion."
The court's decision fans the flames of a long-standing dispute over how the Constitution is to be viewed. Should it be treated as an enacted law — that is, something to be fairly interpreted and evenhandedly applied — or is it an open-ended document for the court to interpret as it sees fit? The first methodology is democratic self-government; the second — in which an elite body is invited to impose binding pronouncements about how the rest of us are to live — is something else.
Source: Douglaw W. Kmiec, "Whose Constitution Is It Anyway?," March 6, 2005, Los Angeles Times.
Maybe I'm missing something, and I don't want to play "gotcha." But to my ears, the new John McCain sounds rather similar to the old Douglas W. Kmiec.
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David, you ask whether Obama or Clinton will reply to McCain's attack on those beloved bugaboos, activist judges, and, if so, what they should say. I agree, Doug, that throwing the "activist" insult back at Alito and Roberts, as Howard Dean did, is lame. Based on the Obama and Clinton campaigns' responses to my own efforts to report on the candidates' views on appointing judges, and Charlie Savage's, I'd say that each of them if nominated will come up with a decent response. Many of the moving parts are there: concern about executive overreaching, Guantanamo, police power run amok, employee rights, women's rights, the promise of equal protection, a general sense that courts should at times be a refuge for the disadvantaged. What I fear is that the Democratic candidate won't figure out how to make the composition of the courts a rallying cry in the way that McCain is already doing. Republicans are just mostly better at this. Their voters get what's at stake. I'm not sure what it would take for Obama or Clinton to get the same kind of purchase. Thoughts?
In the Philadelphia debate last month, I liked the substance of Obama's answer about the D.C. guns case: He likened the relationship between gun regulation and the right to bear arms in the Second Amendment to zoning ordinances and the protection against takings in the Fifth Amendment—in other words, you can have a constitutional right, and the state can also set reasonable limits on that right. I was annoyed, though, that both he and Clinton made a point of not taking a position on the merits of the case. They said they hadn't read the briefs. Please. Whoever is nominated had better figure out a good response to the court's ruling on the D.C. gun ban when it comes down in June. Because whatever the ruling, it has the potential to make trouble for the Democratic candidate and to make hay for McCain.
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 Harris County, Texas, Judge Caprice Cosper has set Aug. 5 as the date for execution of José Ernesto Medellín, whose bid for relief the U.S. Supreme Court rejected in a 6-3 decision issued at the end of March.
At issue in Medellín v. Texas was Article 36(b) of the 1963 Vienna Convention on Consular Relations, which requires law-enforcement agents to advise noncitizen suspects of their right to contact their consulate (prior posts here). The enforceability vel non of that article had been the subject of considerable litigation in the United States and in the International Court of Justice. In Medellín—involving a death-row petitioner who, like many persons arrested in the United States for decades after America joined the treaty regime, never was advised of his consular-access rights—the Supreme Court was called upon to consider:
- Did President George W. Bush overstep his constitutional authority by instructing state courts to give to defendants like Medellín "review and reconsider[ation]" of their cases, as mandated by the International Court of Justice in Mexico v. United States (Avena) (2004)?
- Must a court in the United States honor the United States' treaty obligation by itself enforcing the ICJ's decision?
Both issues having been pressed, the court decided both. Treating the latter question first, Chief Justice John G. Roberts Jr. answered "No," in an opinion that interpreted precedents on whether a treaty provision is self-executing more narrowly than they were treated in, for example, the Restatement (Third) of the Foreign Relations of the United States (1987). The answer to the former question was "Yes"—in telling a constituent state what to do, the president had violated the Constitution. The dissent of Justice Stephen G. Breyer relied on the earlier view of nonself-execution doctrine. But to no avail; Breyer was joined by only Justices David H. Souter and Ruth Bader Ginsburg. ( Margaret E. McGuinness' ASIL Insight here; prior Convictions posts on the decision here and here.)
And thus did Medellín this week return to a Texas courtroom.
At this Houston hearing, Medellín's attorneys— Sandra Babcock, clinical associate professor of law and clinical director, Center for International Human Rights, Northwestern University School of Law, Donald Donovan of New York's Debevoise & Plimpton—sought to delay execution. "This is a case whose effects go far beyond this courtroom," Babcock said. Donovan added, "This country is committed to the rule of law. We have a legal obligation. We should comply with it."
"I did not intend to hold a hearing. I did intend to set an execution date."
One suspects that this was not the "further appropriate action by the State of Texas" that Justice John Paul Stevens had in mind when, agreeing with Breyer's view of the nonself-execution doctrine but disagreeing that its threshold had been met, he concurred in the court's judgment in Medellín.
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In covering John McCain's effort to win friends with the conservative base by praising Chief Justice Roberts and Associate Justice Alito (which I agree they deserve, not because they are reflexively conservative, but because they are jurists who are admirably dedicated to an objective appraisal of the law as written), the national media missed the big, and more troubling, story: McCain wrongly attacked both the Constitution and Article III judges.
McCain's claim that there is "systemic abuse" of the federal judicial office is an occasion not to praise him but to ask his apology for the overwhelming legions of federal judges who serve with distinction and at modest pay often without acknowledgment. To say that McCain meant only to single out the few who defy text, and who justly warrant and receive reversal, is to overlook the intemperate sweep of the McCain condemnation of the Third Branch. In his obvious effort to, well, pander, Sen. McCain did a disservice to these public servants and, as I earlier wrote, falsely assailed the Constitution for a flaw that does not exist, and insidiously undermines public trust in the fairness of the judicial process. Let McCain's overbroad and unrefined words speak for themselves:
There is one great exception in our day, however, and that is the common and systematic abuse of our federal courts by the people we entrust with judicial power. ... With a presumption that would have amazed the framers of our Constitution, and legal reasoning that would have mystified them, federal judges today issue rulings and opinions on policy questions that should be decided democratically. Assured of lifetime tenures, these judges show little regard for the authority of the president, the Congress, and the states.
This is not straight talk; it is calumny.
The Democratic response issued by DNC Chairman Howard Dean was scarcely better. Dean's feeble, and partisan, tit-for-tat effort to paint the chief justice and Justice Alito as "activists" is so thin that it makes one want to engage in the practice for which Dean is most famous: scream. Dean's response, which shows no appreciation for the solid points Sen. McCain did make about the importance of observing the constitutional structure, illustrates a serious problem for presumptive nominee Barack Obama: Sen. Obama may want to bring his party to a higher, more noble plane where reason is recognized not to be bounded by its red or blue origin, but the leadership of his party apparently still wants to fight in the gutter.
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That's about the best response the Justice Department and White House can muster after finding out that 46 of the 74 judges on the federal Board of Patent Appeals and Interferences were appointed in an apparently unconstitutional manner. Adam Liptak writes in his NYT "Sidebar" column how this matter would have continued to go unnoticed but for the intrepid reporting and writing of GWU law professor John Duffy, who published a short paper on the issue.
What amazes me is how many people were simply asleep at the switch here. There are hundreds, if not thousands, of lawyers who practice in this area, and the appointment of patent court judges is a big deal to those lawyers and their clients. You'd think that one of these lawyers would have found this issue while looking for a way to overturn an unfavorable decision—but that apparently didn't happen. Kudos to professor Duffy for his investigative skills.
But now what? Is there a way that Congress or the Department of Commerce can retroactively endow these judges with lawful authority? Can these judges' decisions be saved?
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continue reading at Balkinization ...
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Presumptive Repubican presidential nominee John McCain will speak today on his philosophy of judging. From the looks of it, it doesn't figure to be anything particularly surprising. Just claims that Roberts and Alito are against judicial activism while the Dems are for it. But what does interest me is that, with the creation of the American Constitution Society as a counter to the Federalist Society, and the efforts of Justice Breyer to expressly challenge in the public domain the judicial philosophy of (at least some on) the right—and particularly as they are reflected in the opinions and writings of Justice Scalia—this would seem to be a year in which one might expect there to be an answer from the presumptive nominee on the other side. And by an answer, I mean something more than a reiteration of commitment to certain discrete precedents, say, perhaps Casey and Grutter. So, will there be such a reply this election cycle? If not, why not? If so, what would/should such a response be?
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John McCain's harsh assessment of the federal judiciary is unworthy of him.
While his praise for the separation of powers and judicial restraint is fine, and unexceptional, Senator McCain's suggestion that there is a flaw in the constitutional design or that the Supreme Court is an unchecked, or renegade body is simply off-base.
There is no flaw, Congress has virtually plenary authority over the Court's appellate docket. Congress can withdraw cases from the Court if it believes matters have been wrongly handled, and perhaps more importantly, it can mandate that the Supreme Court handle a full range of cases so that it has less time and less discretion to find itself tempted to mischief. The fact that the Congress leaves these powers largely untouched may have more to do with what distresses Senator McCain than judicial activism.
Since Congress has it within its authority to keep the constitutional system in balance, it is imprudent and unfair to once again make judges the scapegoat for the constitutional outcomes with which one disagrees. Certainly, it is vast overstatement to claim that there is some "common and systematic abuse of our federal courts by the people we entrust with judicial power." Or that "for decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges."
I have just returned from having the privilege with the Solicitor General of discussing with Justice Scalia and the judges of the U.S. Fifth Judicial Circuit the methods of constitutional and statutory interpretation. To a person, every judge present, regardless of the president who appointed him or her, spoke in earnest about faithfully adhering to the rule of law. It is a simple fact that the conventional meanings of language do present issues that are difficult or indeterminant or not fully addressed by the legislative body.
While Senator McCain is to be thanked for the praise given the Chief Justice and Justice Alito, it is unbecoming and two-dimensionally partisan to imply that Justices Breyer and Ginsburg are ipso facto out of the mainstream or that there is some "systemic" disregard of the judicial oath by the men and women who serve their nation in the Third Branch in the lower courts at a salary that is dwarfed by extraordinary levels of work and the burdens of the office.
David Barron is right, Senator Obama should take the opportunity to outline his own understanding of judicial role and philosophy, and it might begin with a more fair and honest assessment of the judiciary. Like Senator McCain, I often concur with the particular constitutional outcomes that John Roberts, Sam Alito (and powerfully intelligent Antonin Scalia who McCain curiously left off his praise list) often determine, though it devalues their service to imply that these jurists are worthy merely because they have arrived at a conservatively happy ending in given case. Because the legal questions presented to the Court are seldom self-evident, these men have disagreed with each other on some not insignificant matters, including federal commerce limitations on state power, and most recently, the Chief Justice had more agreement with Justice Stevens in upholding Indiana's choice to require a government voter ID than his former Reagan administration colleagues.
It is poisonous to the health of the constitutional system to trash the Court as venal politicians. In truth, a general word of thanks from Senator McCain, and his leadership in the Senate to approve a much-needed and long overdue pay increase for federal judges, would be more statesman-like and welcome.
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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.
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The Genetic Information Nondiscrimination Act, which bans certain types of genetic discrimination by employers and insurers, passed the House by a vote of 414 to one, and the Senate by a vote of 95 to zero. That means it's a good idea, right? Wrong.
Suppose an insurance company wants to offer a policy capped at $10,000 over a year. It has two types of potential clients: high-risk types who have a 0.05 risk of suffering a $10,000 injury and low-risk types who have a 0.01 risk of suffering a $10,000 injury. In expected terms, the high-risk types cost the insurer $500 each, and the low-risk types cost the insurer $100 each.
Consider the following question. If the insurance company can distinguish potential clients on the basis of easily visible markers (such as age), do you think it should be able to offer an expensive policy for high-risk types ($500) and a cheap policy for low-risk types ($100)?
If the insurer can do this, then everyone gets insurance who wants it. If the insurer can't do this, then fewer people will. The insurer can't offer policies for $100, for then the high-risk types will snatch them up, and the insurer, receiving $100 and paying $500 per person, will go out of business. If it offers policies for, say, $250—the average cost for the two types—the business will still probably not be sustainable. All or nearly all the high-risk types will buy the policy, while many low-risk types will be reluctant to pay so much for insurance against a low risk. The average cost will thus rise above $250, while receipts will continue to be $250 per person. Perhaps the insurer will offer only $500 policies, in which case half the population—the low-risk types—must go without insurance that they desire.
Most people agree that insurers should be able to discriminate on the basis of risk. We don't expect a 25-year-old to pay the same premium for life insurance that a 90-year-old must pay.
Suppose, then, that the types cannot be distinguished on the basis of a visible marker, but a simple checkup with a doctor will determine which type a person belongs to, perhaps based on a blood test that determines whether the person currently has a dangerous disease. Should the insurance company be permitted to offer the cheap $100 insurance policy only to people who obtain a doctor's certification that they belong to the low-risk group? If you think that insurance companies should be able to discriminate on the basis of visible markers such as age, you ought to think that they should be able to discriminate on the basis of doctors' certifications. If the insurance company should be able to deny insurance to a person visibly dying from a disease, then it should be able to deny insurance to a nonvisibly dying person on the basis of a blood test. There is no morally relevant distinction between looking at the person's outer shell and looking at his blood under a microscope.
Suppose, now, that a person's risk type is based not on a simple blood test that determines whether he is infected with a particular disease, but on a genetic test that determines whether he has a greater than normal susceptibility to a particular disease. Should the insurance company be permitted to offer the cheap insurance policy only to people who obtain a doctor's certification that a genetic test shows that they belong to the low-risk group? If you think that insurers should be able to discriminate on the basis of visible markers and on the basis of simple doctors' tests for the presence of dangerous diseases, then you should think they should be able to discriminate on the basis of genetic tests. There is no morally relevant distinction between looking at a person's blood for the evidence of infection and looking at his DNA for evidence of susceptibility to a disease.
Or, at least, none that I can find. The only argument in favor of banning genetic discrimination is that employers and others "misuse" genetic information. If this is true, then misuse of genetic information should be banned, not the proper use of genetic information for the purpose of assigning people to different risk pools. And if genetic information can help determine whether a person is suitable for a particular job, perhaps one that is dangerous for some types of people but not others, then it should not be considered misuse for employers to make hiring and job-assignment decisions on the basis of that information—no more than taking into account that person's visible physical abilities such as strength.
Another concern is that Americans are refusing to take genetic tests because they fear that their test results will be used against them by insurance companies and employers. But this is like saying that we shouldn't let insurers condition insurance on a visit to the doctor's office because then Americans would refuse to see the doctor, lest health information be used against them. The opposite is more likely. As genetic tests improve, insurers would require customers to take the tests if they want to purchase the cheap, low-risk-type policies. People would have to undergo genetic tests, just as today they have to visit the doctor if they want insurance.
The only explanation for the enthusiasm for GINA is that there is an inchoate feeling among people that there is something wrong with the way the insurance market operates. After all, as long as insurance is permitted, insurers will offer cheaper rates to lower-risk people, which seems unfair to higher-risk people, especially those who are high-risk because of bad luck in the genetic lottery rather than because of a choice to pursue high-risk activities like motorcycle riding.
But this is like saying that it is unfair for employers to offer higher salaries to people who are talented, and whose talent can be traced, as it almost always can, to a lucky outcome in the genetic lottery. After GINA, employers can still discriminate against a person whose genes have bestowed him with a bad smell, awkward social skills, or a weak grasp of arithmetic. GINA does not ban discrimination on the basis of genetic information. GINA bans only discrimination on the basis of genetic information that has not yet manifested itself in observable characteristics or behaviors but that is likely to in the future. There is no sense in this distinction.
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Justice Scalia continued his media tour this weekend with an appearance on Q&A, C-SPAN's weekly interview series. It is one of the more insightful and interesting Scalia interviews that I've seen, which isn't all that surprising given that Brian Lamb was his interrogator.
My favorite part: Lamb replayed parts of a 1986 interview with Scalia, back when he still was a judge at the U.S. Court of Appeals for the D.C. Circuit. Scalia praised the quality of argument regularly offered by attorneys in cases involving typical D.C. Circuit fare—energy cases, FCC cases, labor cases. Reacting to that clip, Scalia discussed the difference between the D.C. Circuit's more specialized bar and the Supreme Court's general practice and concluded, "Overall, I think the quality was probably better on the D.C. Circuit."
For what it's worth, I appreciate Justice Scalia's sentiment. I once enjoyed the honor and privilege of clerking for the current chief judge, and I was struck by the quality of briefing and argument: The D.C. Circuit bar serves up a steady diet of administrative law cases, and while not all of the briefs I read were impressive (or even coherent), many of them were startlingly good. It takes true talent to transform indecipherable industry jargon and technical detail into an argument suitable for an audience of generalist judges (and clerks). Just about anyone can make a brief about the First Amendment interesting; it takes a true virtuoso to capture a clerk's attention for 50 pages of argument arising from an FCC decision. Those lawyers raise a high bar for the rest of us.
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In Hamdan v. Rumsfeld (2006), a majority of the Supreme Court reaffirmed that in making reference to terms that are part and parcel of the international laws respecting the conduct of war —to cite the Latin phrase still current, jus in bello—Congress intended courts to look to that body of law in interpreting the statutory terms.
In considering whether the AUMF allows strikes against Somalia, the pertinent international laws concern not the conduct of war but the act of going to war; that is , jus ad bellum. Since the adoption of the U.N. Charter in 1945, that law renders a nation-state's use of force illegal, as a matter of international law, unless it is undertaken with the approval of the U.N. Security Council. The charter permits only one exception, set forth in Article 51:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.
Presumably, the United States would argue that the Somalia strikes are permissible as exercises of "the inherent right of individual or collective self-defence." But that claim would not end the story. Do the words that follow—"if an armed attack occurs"—mean that the attack already must have occurred, and if so, do the attacks of Sept. 11, 2001, attributed to an al-Qaida leader then in Afghanistan, not Somalia, so satisfy this requirement that the United States may go after a different leader in a different country, nearly seven years after that other attack?
Let's assume, in the alternative, that the United States may attack before it is attacked to defend itself before it is so disabled that it cannot engage in self-defense. This seems reasonable; after all, the law generally allows a person who has a gun pointed at her to shoot first and not to wait for the assailant to shoot her before she may act to defend herself. Indeed, this reasoning is enshrined in international law as "anticipatory self-defense," a concept established more than 170 years ago during the Caroline incident between the United States and Britain.
Accepting "anticipatory self-defense" as law does not end the inquiry, however. The exchange of letters that ended the Caroline dispute indicate conditions upon this right —conditions of "necessity" and "proportionality" that may be found in other doctrines relating to the use of force, such as the old doctrine of reprisal, as our colleague, Notre Dame Law Professor Mary Ellen O'Connell, explains here. Within those two terms may be found a rule that use of force in self-defense must be genuinely necessary, that the threat must be imminent, that there must be no opportunity for deliberation or negotiation, and further that the use of force must be proportionate to the threat, so that any permissible strike goes after only the person(s) or camp(s) that are a menace, and avoids as much as possible any damage to any innocent person or any uninvolved item of property.
The U.S. Congress ought to be presumed to understand these well-settled principles—principles that derive from a dispute involving the United States itself. Thus its decision explicitly to require in the AUMF use of force be both "necessary" and "appropriate"—words nearly identical to the international law doctrine's "necessity" and "proportionate"—ought to be understood as limiting post-9/11 use of force to that which meets these requirements.
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Well, Phil, two days out from the latest account of another U.S. missile strike in Somalia, and judging from the relative silence on the blogs, I take it pretty much everyone agrees with you that the president's authority for the strike falls within the "necessary and appropriate" force Congress intended in its September 2001 authorization to use military force (AUMF) against al-Qaida. Indeed, I'd bet that's what a U.S. court would have to say about it in the unlikely event it ever came up, even if it turned out this guy turned out not to be associated with al-Qaida after all. Not necessarily a happy picture, but I'm guessing where things stand under the current state of domestic law.
But that should hardly be the end of the discussion. Whatever force is "necessary and appropriate" is a troublingly vague notion for understanding the limits on what kind of power Congress actually wanted to delegate the president in a global campaign against the people, organizations, or groups who aided the attacks of 9/11. Most folks seemed to think the AUMF didn't extend to giving the president the authority to engage in domestic wiretapping without a warrant (contrary to the administration's suggestion). The Supreme Court bought that the AUMF did extend to cover some U.S. detention operations, at least to detain those picked up by U.S. military on the battlefield in Afghanistan. But until Congress gets a bit more specific, I'm guessing we'll be having this debate for a while (with the executive's position getting weaker the farther in time we get from 9/11).
In any case, the legality of the strike under the AUMF is only part of the question. There's also the pesky issue of whether it's a law-of-war problem to target an individual who, at the moment of attack at least, appears to have been minding his own business, far from any traditional field of "armed conflict." If we find out someone's been contributing money to an organization that turns out to be affiliated with an organization we've identified as terrorist, could we bomb them in their sleep at anytime, anywhere they are in the world? I've no beef with those who say concepts like "armed conflict" and "direct participation in hostilities" aren't the most clearly defined aspects of the law of war. But even if we give the administration the benefit of the doubt as operating within the "necessary and proper" boundaries of congressional authorization under U.S. law, what exactly is the limiting principle they have in mind under the law of war? And to take it a final step, if it's not quite legal under the law of war, can it really be part of the "appropriate" force Congress had in mind? At least some on the Supreme Court have recognized in recent cases that this kind of international law can and should inform the interpretation of statutory mandates in the area.
Marty, Diane—any enlightenment to shed?
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The Strasbourg, France-based court heard argument Wednesday in the case of 71-year-old Lucien Léger. Having received une réclusion perpétuelle, a life sentence, in 1966, he was France's longest-serving inmate, with 41 years in prison; indeed, on account of repeated refusals of his requests for parole, his was, in effect, a sentence of "LWOP," or life without parole. LeMonde reported that Léger's 2002 bid for ECHR relief had been rejected in 2006, on the ground that "imprisonment for life does not constitute inhuman treatment if the person is not deprived of all hope of obtaining adjustment of the penalty" —an adjustment that Léger had secured with his conditional release in 2005, while his ECHR case was pending. Two ECHR judges dissented from that decision, however, among them the French judge, Jean-Paul Costa, now the court's president. Eventually the Court agreed to rehear the case by means of its Grand Chamber. And so on Wednesday, the Court heard Léger's case ( Web-cast here). "Dressed entirely in black, clasping his hands together and occasionally holding a pencil," wrote LeMonde's Alain Salles, Léger "listened patiently to the arguments, in which he did not have the right to take part." He displayed "signs of denial," and his attorney, Jean-Jacques de Felice, objected outright, "when Anne-Françoise Tissier, the government's lawyer, said that his sentence was justified because he'd shown no remorse" for the crime of conviction, murder of an 11-year-old child. But de Felice reserved his greatest condemnation for the sentence itself: 'Society has the right to judge and to imprison him, but not the right to kill in him, bit by bit, all hope of freedom, all prospect of return to society.'
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Professor Sam Bagenstos kindly responded to my post on Brennan's "accidental" rise to the Supreme Court:
There are certainly elements of the mistaken-identity story that are true, but I don't think Regnery is right that Brownell thought Brennan was a conservative. Herbert Brownell is widely acknowledged as having been largely responsible for President Eisenhower's appointment of so many liberal (at least on race) judges in the South. See, e.g., his obituary.
Good point. But Sam's disagreement may be less with Regnery than it is with my paraphrasing of Regnery. He wrote that "New York liberal Republicans were desperate to stop [Eisenhower's "first choice," John Danaher] who, they knew would try to return the Court to its constitutional place."
The key, though, was that Brownell wanted someone who, while closer to the center than Danaher, would meet Eisenhower's requirement that the nominee be a "judicial conservative."
That said, as much as I enjoy Regnery's version, I'm not yet convinced that it's actually accurate (or, as I suggested in my first post, it may well be "too good to be true"). In Pursuit of Justices, David Yalof is severely critical of that account, relying in part on Brennan's biographer's review of Brennan's files. By contrast, Regnery cites only an article in Chronicles magazine—hardly a first-rate digest of historical research.
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