Another War of Jenkins' Ear

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Posts Tagged ‘Separation of Powers

Guantanamo and the Executive Branch

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When Kennedy, who serves on the U.S. District Court for the District of Columbia, ruled in February that Uthman was being improperly detained, his 27-page opinion was turned over to a court security officer for classification review.

The judges themselves have very little insight into the process and no sway over what is redacted. Government security officials review filings in the habeas litigation and other cases involving classified evidence and remove sensitive information.

In the Uthman case, that clearance process took three weeks. Kennedy’s decision was stamped “Redacted,” by the court’s security officer and returned to his chambers on March 16. The deletions were minimal. For the first 16 pages, the only word blacked out was “secret,” stamped at the top and bottom of each page.

Kennedy’s clerk added the document to the electronic court file late in the day. Twenty-five hours later, the security office sent out urgent notices to attorneys and the judge that the opinion had not been ready for release and needed additional deletions. The decision was promptly removed from the public docket.

In a closed hearing in his courtroom four days later, Kennedy lashed out at the government for releasing classified information. He and Justice Department attorneys then argued over what to do, according to three sources familiar with the discussion.

Kennedy insisted that the reasoning behind his first habeas ruling be made public. But the Justice Department resisted releasing it in redacted form, arguing that blacked out portions would call attention to the exact material the government wanted to conceal.

This is an excellent report by Pro Publica (not a surprise, they’re the best around at that). But beyond what Pro Publica reports, we as a society can often be in a rush to make everything a political decision, but sometimes it’s just as simple as a bureaucratic error. While the detention involved presidential decisions, the redaction decisions are of a much lower pay grade. One of them got screwed up, with no easy way to make it right. Regardless of whether detention at Guantanamo or elsewhere was done correctly, poorly, or somewhere in the middle, this situation could still exist.

It’s also hard to jump to conclusions about the impact on the judge when the judge will not say what it was:

Kennedy’s original opinion noted that Uthman was seized in Parachinar; that he reached the town after an eight-day trek from the Afghan town of Khost, nowhere near Tora Bora; and that his journey to Pakistan began around Dec. 8, 2001. Those facts make it difficult to portray Uthman as a fighter in a battle that took place between Dec. 12 and Dec. 17 at Tora Bora. Two footnotes in the original opinion note that the government does not contest that Uthman was taken into custody in Parachinar.

Both were removed in the second opinion and Kennedy substituted wording to write instead that Uthman admitted he was seized “in late 2001 in the general vicinity of Tora Bora, Afghanistan.”

The intent of this editing may have been to conceal the role of the Pakistanis in capturing al-Qaida fighters although those details were long ago declassified. But the effect was to link Uthman more closely to the retreat of bin Laden and his inner circle through Tora Bora.

It is unclear precisely what restrictions or classification requests guided Kennedy’s alterations. Neither the judge nor the Justice Department would say.

Gillers said such editing has an effect on public opinion, even when it doesn’t change the outcome of the case.

There are two competing interests in government redacting: protecting national security and protecting the prosecution. Not surprisingly, both of these institutional interests are alleged:

Officials at other agencies said they had a fairly free hand in removing information supplied for the government’s case. “Whenever a court security officer identifies a document slated for posting on the court’s public docket as potentially containing classified information, the officer refers that document to appropriate agencies for classification review,” Maj. Tanya Bradsher, a spokeswoman for the Pentagon, said.

One government official who spoke on the condition of anonymity acknowledged that the classification process has been plagued with inconsistencies and that no one is coordinating the effort. In most declassified habeas filings, the names of all detainee-witnesses are removed; in others, a name or two slips past the redaction process.

Some government-ordered deletions clearly appear designed to conceal names of confidential informants, associations with foreign intelligence services and the identities of certain federal agents. But the Uthman case shows that many of the deletions go further.

“This censorship has nothing to do with protecting ‘national security’ and everything to do with covering up government mistakes and malfeasance,” said Jonathan Hafetz, a professor at Seton Hall University School of Law who has represented a number of detainees in habeas litigation. The practice, he said, allows the government to “mislead the American public on issues of profound importance to the country by skewing the perception of who really is at Guantánamo.”

The question is not if both of these interests exist; even if one or both did not, there would at least be a perception of both. The question is how to address them. And the only way to do that is from outside the executive: Congress, the Supreme Court, or ideally both somehow would act in a way to ensure fair procedural safeguards.

The problem is that both institutions have essentially abdicated any responsibilities related to war whatsoever. This has long been the case with the Supreme Court. The laissez-faire attitude peaked in the Korematsu decision that refused to condemn the internment of Japanese-Americans during World War Two. The series of detainment decisions culminating in Boumediene were meaningful but the impacts, as we have seen, have been basically to give far outside limits. And the Congressional action, from the AUMF on, has been absolutely shameful.

My main problem is that for some reason people expect the executive to change this unilaterally. That will never happen. There are four reasons why this won’t happen:

1) No executive is going to be able to completely rid bureaucrats of a desire to protect prosecutors.

2) No president will unilaterally get prosecutors to be more forthcoming on issues of national security, especially when pushing for trust of the national security apparatus is the first thing any new President must do (particularly those with a history of perceived antipathy).

3) Add to this the overwhelming pressure to protect America. No President wants to release the guy who ends up creating the next 9/11 or Cole bombing. Voters would punish that proportionally far more than they would reward a President for releasing someone who the president thinks may just be a mild risk.

4) Presidential leadership on Guantanamo is not the most important variable in change. I thought Jamelle Bouie’s post on this was on the mark:

Yes, Guantanamo closure was a core issue for President Obama, and yes, it was a core issue for his liberal supporters, but it wasn’t a core issue for the Democratic Party, and it needed to be for any chance at success. Given unanimous and vocal Republican opposition to the administration agenda writ large, Guantanamo closure was virtually certain to become a bitter partisan fight. For success, Obama needed a certain level of pro-closure consensus among congressional Democrats. Absent that consensus (and combined with public pressure to the contrary), it was no real surprise to see the White House avoid confrontation: Given limited resources, limited power, and the choice between a hard fight with a small chance of success, and a hard fight with a moderate one, the administration felt best served by investing its resources in the hard fight with moderate chance of success, i.e., health-care reform.

In other words, like Bill Clinton and gays in the military, Guantanamo closure was a high-profile fight that lacked strong support within and outside the party. Obama could have invested further resources in closing the base, but he would have lost ground with health-care reform, stimulus, and other competing priorities. This isn’t to minimize Obama’s failures or the extent to which he has simply embraced large elements of Bush national-security policy, but you can think of an issue like Guantanamo as the price of presidential ambition. When there are many things on the executive plate, some of them have to go by the wayside. This, unfortunately, was one of them.

You can add to this that every electable politician on Guantanamo had the same position as Obama or was much further right (see Romney offering to double Guantanamo). This is why it frustrates me that so many on the left expend all pressure on the matter at Obama, and not on Congress, who is actually 1) pliable and 2) can be changed without massive collateral damage elsewhere.

Obama signed an executive order to close Guantanamo. What happened? The Senate foreclosed any such action by a 90-6 vote. That’s right. Ninety to six.

Until and unless Congress is pushed to engage more on detainee action, the executive will be on an island alone; the Supreme Court will determine the boundaries of that island but little more.

**Edited this post to make clear that the Pro Publica report was -not- politicized.


Written by John Whitehouse

April 25, 2011 at 9:22 pm

SHOCK: Obama Believes in Executive Power

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Can anyone square the circle this paragraph presents:

The answer surprised many in the room because Clinton plainly admitted the administration would ignore any and all attempts by Congress to shackle President Obama’s power as commander in chief to make military and wartime decisions. In doing so, he would follow a long line of Presidents who have ignored the act since its passage, deeming it an unconstitutional encroachment on executive power.

It’s shocking that a President agrees with previous Presidents on executive power?! I have no idea why this is surprising to anyone. But I’m also expecting this to become the new scandal for the far left.

Written by John Whitehouse

March 30, 2011 at 4:31 pm

No One Said This Was Optimal

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Greg Sargant quotes Obama en route to drawing a silly conclusion:

Rather, the more important part of Obama’s 2007 quote is this one:

“In instances of self-defense, the President would be within his constitutional authority to act before advising Congress or seeking its consent. History has shown us time and again, however, that military action is most successful when it is authorized and supported by the Legislative branch. It is always preferable to have the informed consent of Congress prior to any military action.”

Putting aside the legal questions here, Obama is acting in violation of the lessons he once took from history. Along these lines, Dem Rep. John Larson of Connecticut, who added his voice to the criticism of Obama’s decision, made an important point today. Larson noted that even if Obama technically is in compliance with the War Powers Resolution, he is violating its spirit: “To insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities.”

Obama very well may have had his reasons for not consulting Congress as extensively as he might have — time was of the essence; the president expects this to be wrapped up quickly; he doesn’t envision this as a full-scale war; etc. But it’s very obvious that Obama’s approach is at odds with his own instincts and his own reading of history, at least as it stood when he was the reader and other presidents were the lead actors.

I would certainly say that the current debate (outside of this post) proves that it’s better to have the informed consent of Congress too! Obama is getting pilloried for his actions, and he’s not receiving the bump Presidents normally do from using military action.

But saying that it makes Obama “in violation of the lessons he once took from history” is over the top and incorrect. It implies a Manichean view of history – either you follow the best possible procedure or you are in violation. That’s an incorrect method of appraising Presidential action. Using an extreme example, Lincoln suspended habeas corpus during the Civil War without prior Congressional authorization in a way that was almost certainly unconstitutional. But facts on the ground demanded it, Congress later ratified it, and in the end historians have almost universally hailed the move.  Now, this is far less serious a situation than that. But there’s a lot of precedence to Presidents being forced to take actions that might be objectively bad, but are necessary given the circumstances. There’s even precedence for it going too far (the Steel Seizure case). In short, Obama didn’t violate a lesson of history. He took an action that he felt was the best course of action but was in an ideal world sub-optimal.

He simply felt the costs of getting authorization subsequently (while real) were more palatable to him than the costs of waiting – which Sargant makes an informed guess at.

This is just a continuation of people who want to make some sort of philosophical or legal point against the intervention in Libya because they don’t know enough of the facts on the ground to criticize it on the merits. And that is a result of a stunning lack of transparency coming from the White House. The easiest way to stop these sorts of silly arguments would be for reputed major proponents such as Amb. Rice, Sec. Clinton, and Samantha Power to do rounds on talk shows instead of the the military. I’ve seen them all on talk shows previously, they communicate well. Get them out there!

On a side note, Larson’s comment of the spirit of the War Powers Resolution is hogwash: It was passed over a veto in the wake of a President lying the Congress into war and every President since has felt it partially unconstitutional. And as a matter of practice since it was passed, Congress has not always had prior consent to actions. I don’t think what’s even legal in the law itself is clear, much less that there’s uncontested “spirit” which just so happens to contradict the plain text that gives a President 60 days.)

Scalia Takes on John Jay

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Antonin Scalia Disagrees With Founder John Jay!

Justice Scalia has recently accepted an offer by Michele Bachmann to teach some sort of Constitutional seminar to the Tea Party caucus. I’m not asking why Bachmann asked. I am wondering why in the world that Scalia, a noted Constitutional orginalist who prides himself in following the views of the founders, would dare accept.

The Supreme Court has a long and distinguished history of not giving opinions in advisory roles, even in extreme circumstances. The reasoning goes back to John Jay’s letter to George Washington in response to his asking for an advisory opinion. When pressed, Jay and other justices responded, and discussed their reasoning at some length (see bottom of the page here):

    These being in certain respects [470 U.S. 675, 728] checks upon each other, and our being judges of a court of the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the executive departments.
    “We exceedingly regret every event that may cause embarrassment to your administration, but we derive consolation from the reflection that your judgment will discern what is right, and that your usual prudence, decision, and firmness will surmount every obstacle to the preservation of the rights, peace, and dignity of the United States.

Now, obvious this was directed at the executive branch, and not the legislative branch. And this was asking for a formal decision, not something informal.

But neither of those distinctions is decisive in terms of the principle here. The Constitution requires that legislators as much as members of the executive branch exert their own “prudence, decision and firmness.” In short, the separation of powers inherent in the Constitution requires that members of the legislative branch act make their own decisions, free from the Constitutional advice of the other branches. (or even shorter: Michele Bachmann does not know the Constitutional well enough to know that her request highlights her ignorance. It’s like irony squared).

As for formality, this is not mere advice or insight. This is a formal group within Congress being taught the Constitution by a sitting member of of the Supreme Court. This is unprecedented. Perhaps the most comparable situation is Chief Justice Fred Vinson advising Truman that it would be legal to seize the steel mills during the Korean War. This has been looked back since as a reckless legal position and questionable ethics at best. And worse, it turned out to be epically wrong, as not only did the Court find the seizure unconstitutional, but Justice Jackson wrote perhaps the most important legal decision of the past century, and certainly the most important concurring opinion of all time. But even if Vinson had been right, the Constitution trusts the President (and in this instance Congress) to make their decisions, and for the Supreme Court to judge these decisions only when it is pressed upon them in a case or controversy.

This is why we don’t have justices answer every single question during appointment hearings: we don’t want their objectivity in future cases to be in question. We do want potential justices to discuss their philosophy, but only to the extent that Congress can vet them… that is their Constitutional role. In the view of the Constitution, it is crucial that Congress itself have Constitutional views in approving justices. Having justices teach the Constitution to Congress only creates a self-reinforcing truism. Scalia teaches Congress -> Congress appoints people with the same views -> those people teach the next Congress, etc. What Scalia is doing is essentially reputing any public role in Constitutional interpretation, particularly one firmly established within the framework of the Constitution. This is extremely dangerous and authoritarian.

Another argument may be that this is no different than a bipartisan group, the Congressional Caucus on the Judicial Branch, occasionally hearing from Supreme Court justices. That argument does not hold up to the smallest scrutiny. The purpose of the group and Sotomayor’s speech were not to educate members on the Constitution in general (or worse, a specific view of the Constitution) but rather to just promote communication between the branches, and if anything, to focus on structural problems of federal courts (such as chronic understaffing). Indeed, the stated purpose, from Republican Judy Biggert, is not to deal with pressing Constitutional issues, but to just have a broad free ranging discussion.

That does not sound at all like the seminar described by Bachmann that Scalia will be doing, as instead Scalia will be teaching the Constitution to members – at least that’s the stated purpose. This is far more dangerous.

First, the Court has a long history of officially staying away from Constitutional discussions that are not necessary for them to decide. See, for instance: the political question doctrine, ripeness, mootness, standing, Pullman abstentions, etc. Not to mention cases where the Court simply declines cert.

Second, the Court can be wrong. This cannot be overstated, and would apply just as much as if it were a liberal justice teaching the seminar as a conservative justice. The comparison

In a recent article, Dahlia Lithwick and Sonja West discuss how often a Justice should speak out on issues, concluding that they should do more off the bench then they do while on it. I’m only concerned with the latter here (if Scalia were retired, I would have no issue here). Lithwick and West describe the basic contours of judicial ethics:

One viewpoint—let’s call it the old school—holds that justices should say nothing that isn’t contained within the four corners of a written opinion. When justices pontificate off the bench, it sows confusion and controversy and undermines the impression that jurists all float above the fray. The other side holds that transparency is always better than mystification and that so long as there is no real threat to the court’s impartiality in a particular case, there is great value in lifting the veil of secrecy around the workings of the court and revealing the men and women hiding out behind the red velvet curtain.

. . .

Even outside the courthouse, however, sitting justices should exercise serious caution before going off-script. The more the commentary involves matters that have been, are, or may be before the court, the more suspect it becomes. Caution lights should flash over any remarks that cast doubt on the validity of a decision, a colleague, or the judicial process. Whether it’s an interview, book, or speech, these nine jurists represent the court, regardless of where they are and to whom they are speaking. They should also consider that they represent that court whether or not the proceedings are recorded, televised, or just tweeted by someone in the audience. We mere mortals might get to blab about what the court should or shouldn’t do, but we have no real power—the justices do. And as Spider-Man continues to remind us, with great power comes great responsibility, and sometimes that responsibility is to hold your Article III tongue, even when you’d rather not. …

What Scalia is doing here throws these principles (and the entire historical divide) out the window. Teaching the Constitution to a political group politicizes the entire judicial process (or rather, continues that process which began in Bush v. Gore, but that’s another issue entirely and this post is already too long). Anyone upset with Bush v. Gore should be just as upset here.

The only other judge to approach this level of partisanship that comes to mind is Samuel Chase – a firebrand who ended up being impeached for severe partisanship (such as campaigning so much that Court sessions had to be delayed. But his impeachment (though he was not convicted) was surely an ethical sanction of his conduct.

Lastly and importantly, there’s only one defense to these charges: that the classes are so basic and banal as to be harmless regarding any ethical or separation of powers issues. But if that’s the case, isn’t Bachmann just saying that the Tea Party Caucus is a bunch of idiots?

Scalia Should Be Worried

Written by John Whitehouse

December 17, 2010 at 2:05 pm