Archive for the ‘Commentary’ Category

Three Takes on the OLC Torture Memos

April 21, 2009

Take One

Let’s do a thought experiment. Imagine an adversary of the United States has captured one of our soldiers. Imagine that our enemy keeps this soldier awake for over 48 hours “standing and . . . handcuffed, [with] the handcuffs . . . attached by a length of chain to the ceiling. The detainee’s hands are shackled in front of his body, so that the detainee has approximately a two- to three-foot diameter of movement. The detainee’s feet are shackled to a bolt in the floor.”

Imagine now that adversary captures one of our sailors. While in captivity, the sailor “is bound securely to an inclined bench, which is approximately four feet by seven feet. The individual’s feet are generally elevated. A cloth is placed over the forehead and eyes. Water is then applied to the cloth in a controlled manner. As this is done, the cloth is lowered until it covers both the nose and mouth. Once the cloth is saturated and completely covers the mouth and nose, air flow is slightly restricted for 20 to 40 seconds due to the presence of the cloth. This causes an increase in carbon dioxide level in the individual’s blood. This increase in the carbon dioxide level stimulates increased effort to breathe. This effort plus the cloth produces the perception of ‘suffocation and incipient panic,’ i.e., the perception of drowning.”

Here’s my question: Do you think these service people have been tortured? Did it take you more than a nanosecond to answer that question?


More on Dawn Johnsen at OLC

April 21, 2009

Last week, I published a post describing the flaws in the arguments that Dawn Johnsen’s critics have deployed against her. The critics have persisted in holding to baseless positions. One of the chief arguments is that Johnsen’s criticism of the Bush Administration’s “Terrorist Surveillance Program” shows that she is a ruthless partisan who cannot be trusted with in office.
Paul Mirengoff follows this line of argument in a recent post. He claims that Johnsen was not within the bi-partisan mainstream in criticizing the legality of the Program, because what Republican opposition existed was only to the failure of the Administration to disclose the existence of the Program and not to the legality of the Program itself. That is not the case. The Program was criticized as legally unauthorized by leading conservatives, including but by no means limited to Bob Barr (here) and by Richard Epstein, William Sessions, and William Van Alstyne (here). The fact that Johnsen has also criticized the legality of the Program can hardly be taken as evidence that she is a partisan or takes a dangerously narrow view of presidential power. As I pointed out in my earlier post, she has expressly condemned liberals who would overreact to the excesses of the Bush Administration by restricting the proper scope of presidential power.
Mirengoff also criticizes Johnsen for her advocacy. Johnsen has advocated that progressives work on formulating and articulating a theory of the Constitution’s meaning. As an academic, she has done archival research revealing the conscious effort of conservatives to re-shape the legal landscape. In other settings, she has urged progressives to do the same. This is but one component of her academic work. The main thrust of her academic agenda has been to draw a distinction between this sort of advocacy and the proper role of the Office of Legal Counsel, which she has in no uncertain terms identified as an Office that must operate as a neutral arbiter and not as an advocate or as a promoter of some as-yet-unrealized constitutional vision.

The fact that Dawn Johnsen recognizes that lawyers, including herself, properly act as advocates in some settings, and properly refrain from advocacy in others, refutes the idea that she plans to use OLC to promote some progressive vision of the Constitution. Previous heads of OLC – William Rehnquist, Ted Olson, and Walter Dellinger come to mind – have been advocates (in fact outstanding advocates) in political settings, yet that does not in any way demonstrate that any of them was unable to put aside their political views in order to do the job of leading OLC.

Correcting the Record on Dawn Johnsen’s Record

April 17, 2009

In a post yesterday on Powerline, Paul Mirengoff argued that the Senate should reject the nomination of Dawn Johnsen to head the Office of Legal Counsel. Even though his post was full of errors, some bloggers seem to regard it as credible. So, a point-by-point correction is in order.

  • Mirengoff argues that “There is strong reason to believe that Dawn Johnsen will consistently err on the side of protecting terrorists and denying the president the power to protect the nation. This fear is not based solely on her blogging; it also stems from her law review articles and, to a lesser extent, statements she has made or declined to make during the confirmation process.”

In fact, Johnsen has urged critics of the Bush Administration to be careful and focused, cautioning them not to let their disagreement with Administration policies lead them to a weak view of executive authority. “Regardless of who proves correct about the general post-Bush direction of presidential power,” she has written, “there is some risk that reactions to the Bush experience—public sentiment, political considerations, or mistaken constitutional understandings—might distort criticism and harm legitimate and valuable executive powers. Commentators certainly should not mute their principled criticism, but they should avoid imprecise and over-generalized reactions that might undermine the ability of future Presidents to exercise legitimate authorities.” 88 Boston U. Law Review 395, 398 (2008). (more…)

If at First You Don’t Secede …

April 16, 2009

Evidently, the way to get reelected in Texas is to fan the flames of states’ rights and secession. At least that appears to be Governor Rick Perry’s strategy. Locked in a reelection race against Senator Kay Bailey Hutchison, Gov. Perry appeared at a rally yesterday where his crowd screamed for secession. After the event, Gov. Perry offered that it could come to that. This came a day after Gov. Perry publicly endorsed a resolution that Texas call upon “the federal government, as our agent, to cease and desist, effective immediately, mandates that are beyond the scope of [its] constitutionally delegated powers; and, … [t]hat all compulsory federal legislation that directs states to comply under threat of civil or criminal penalties or sanctions or that requires states to pass legislation or lose federal funding be prohibited or repealed.” This may call to mind the states’ rights populism of bygone Governors like George Wallace and Orval Faubus, but it is strikingly modest compared to the crackpot resolution passed by the Georgia Senate on (when else) April Fool’s Day:


Getting the Guy’s Attention

April 13, 2009

Still well inside his first 100 days, and with promised reconsiderations of how White House power is to be structured and used still understandably outstanding (if delivered on the short schedule promised, we should see them in a month or two), President Obama is regularly being accused from the Right of simply continuing his predecessor’s monarchist/czarist pretensions. The John Yoo’s among them should be celebrating the continuation of attitudes they so enthusiastically supported; but one must acknowledge that there were conservative as well as liberal critics of George Bush’s democracy-dangerous claims. The problem is that government like an oil tanker takes a good while to change course. For any given event the connection between the man at the helm and the rudder may be rather remote.

Bruce Fein’s recent Slate article, treats government lawyers’ arguments in two cases arguably involving American war crimes as if they had been personally made and submitted by the President himself. As one who was twice a government lawyer in a chain of command over litigation positions, I can testify that it does not happen that way. Communication up and down is slow and imperfect, habits die hard, and White House involvement is rarely if ever entailed. Treating the top guy as personally choosing everything that may happen is politically useful (Harry Truman’s “the buck stops here”) but it is also hazardous. Since like news content choices, what it teaches is that the negative overwhelms the positive, what it teaches is that tight control from the center is essential. Holding President Obama personally accountable for every government legal position that may be taken is a way of asserting that White House politics must control the details of all litigation. This is the road toward, not away from, a czarist regime.

The flack may serve to get the guy’s attention. But then it may also serve to further extend the tendrils of the White House in ways we should regret. Mr. Obama did not write, or personally endorse, those arguments, and Mr. Fein knows better than to write as if he did.

Eric Holder and the Rule of Law

April 9, 2009

Last week, the Washington Post reported that Attorney General Eric Holder rejected the advice of the Office of Legal Counsel on the bill to grant D.C. a member of the House of Representatives.  (OLC reportedly advised Holder that the proposal would be unconstitutional.)  Ever since, the blogosphere has been abuzz with charges of impropriety.  John McGinnis’s post on this site is a leading example.  McGinnis writes “less than two months after his confirmation the Attorney General has shown that he is not interested in the rule of law when it conflicts with his own political preferences.”  Ed Whelan has made similar claims at NRO and in last Sunday’s Washington Post.  The charge that Eric Holder has subordinated the Justice Department’s legal interpretations to his own political preferences is a serious one.  In fact, if the charge is true, Eric Holder should resign and, if he refuses to do so, President Obama should fire him.

But are the charges true?  Not based on anything in the Washington Post story.  (more…)

Keeping Signing Statements Rare

April 7, 2009

With the Obama Administration in Month Three, discerning the new President’s views of executive power is still largely a matter of reading tea leaves. A few of the more intriguing leaves have, of course, been the President’s memorandum on signing statements and, in short order, his own first two signing statements, here and here.

I entirely agree with Neil Kinkopf that there is no real kinship between the theories of executive power expressed in President Obama’s first two signing statements and the extreme claims to executive authority made hundreds and hundreds of times by George W. Bush. But, with all respect for my beloved co-chronicler of signing statements, I think it is OK to be concerned already that the Obama Administration is not yet “getting it” on this subject.


An End Run Around the Rule of Law

April 6, 2009

Today’s post is by guest contributor John O. McGinnis

Attorney General Holder has pledged to restore the rule of law, implicitly suggesting that it was weakened during the Bush Administration. But less than two months after his confirmation the Attorney General has shown that he is not interested in the rule of law when it conflicts with his own political preferences. In a move that appears unprecedented, he has disregarded the opinion of the Office of Legal Counsel on the constitutionality of pending legislation without overruling OLC with his own reasoned analysis. If he recommends that the President sign the bill under these circumstances, he will be shirking the Attorney General’s primary duty—aiding the President in following his own oath to uphold the Constitution.

The bill in question provides voting representation to the District of Columbia. The Constitution provides that “The House of Representatives shall be composed of Members chosen every second year by the People of the several states.” The District of Columbia is not a state. Its proponents argue that Congress’ power to exercise legislative power over the District gives it authority to provide a Member from the District. But Congress must exercise its authority consistently with the express commands of the Constitution.

It is the long standing practice of the Department of Justice to provide constitutional analysis of any bill that may be presented to the President so that the President can fulfill his constitutional duty of signing only bills that are constitutional. As a result, the Office of Legal Counsel had previous occasion to conclude that this giving voting representation to the District is unconstitutional. According to uncontradicted news reports, the Obama administration’s OLC affirmed the same conclusion.


Congress’ Contribution

March 26, 2009

Surely one of the factors arming fears that, promises or not, President Obama is continuing in the central-power-hungry ways of his predecessor(s) is the rate at which he is creating White House positions that appear to duplicate, or at least compete with, responsibilities Congress has assigned to departments or agencies, but which enjoy a stronger shield of executive privilege and perhaps do not even require Senate approval for their personnel. Paul Light, writing in the New York Times on Monday, March 23, opened an OpEd, “Nominate and Wait,” with this:

ROBERT C. BYRD, the Democratic senator from West Virginia, chastised the Obama administration last month for using White House policy czars to undermine the president’s own cabinet. “At the worst,” he wrote to President Obama, “White House staff have taken direction and control of programmatic areas that are the statutory responsibility of Senate-confirmed officials.”

Light then went on to tie the development to congressional failures of responsibility in relation to executive appointments – both in lagging in the confirmation process, and in tolerating (viz., through appropriations) presidential and departmental creation of at will political appointees not requiring Senate confirmation.

One hardly knows where to start here. The very first Senate refusal to confirm a presidential nominee to a cabinet position, Andrew Jackson’s nomination of Roger Taney to serve as Secretary of the Treasury, came as punishment for what appeared to be the President’s insistence on controlling the execution of a duty Congress had assigned elsewhere. A statute gave the Secretary of the Treasury “discretion” to remove government funds from the U.S. Bank and put them elsewhere. Jackson’s vehement opposition to the Bank made him eager to have this happen, and his re-election in 1832, with the Bank’s future as a major issue in the campaign, appeared to pave the way. The Secretary of Treasury then serving found no adequate reason to exercise that congressionally conferred discretion, and Jackson replaced him. His confirmed successor as Secretary, William Duane, came to the same conclusion and was also sacked. Jackson named Taney Acting Secretary and, as Robert Bork would about a century and a half later, Taney did what he was told. His nomination was rejected.

In one of the sillier communications of the later Bush years, responding to a House bill that would have denied funding for enforcing the new powers given “regulatory policy officers” by President Bush’s EO 13422, White House spokesmen told Congress with a straight face that it would be acting unconstitutionally if it refused adequate funding for White House offices, as an interference with the President’s inherent executive authority.


Symbols and Substance in the New Administration

March 23, 2009

This post was written by Curtis A. Bradley & Eric A. Posner

Now that the critics of the Bush administration’s theories of executive power hold office in the Obama administration, one might have expected a U-turn in the executive’s position on the law.  But rather than repudiating Bush’s theories of executive power, the Obama administration has embraced them in substance.  At the same time, it has used symbolic gestures and changes in labeling to mask the continuity.

President Obama announced that he would close Guantanamo but not that he would close other detention centers around the world, such as those in Iraq and Afghanistan.  In doing so, he followed a political consensus, shared by Bush and McCain, that Guantanamo had become a public relations problem.  Shortly after making the announcement about Guantanamo, the Obama administration endorsed the Bush administration’s argument that U.S. courts cannot review a similar detention facility at the Bagram Air Base in Afghanistan that is governed by less formalized processes and currently houses substantially more prisoners.

Meanwhile, the Obama administration has also escalated the military campaign in Afghanistan and Pakistan, including the use of Predator drone attacks, a course of action that will mean that more Taliban and Al Qaeda members will be killed rather than detained.  This is one way to solve the problem of detention, but it hardly signifies a radical change of principle.