The University of Chicago Law School Faculty Blog

Hamdan

As the issues were framed in Hamdan, the Court had the following options:

1. The Court could have refused to decide the merits on one of several possible grounds. (Justices Scalia, Thomas, and Alito favored this course.)
2. The Court could have said that the relevant statutory provisions and the Geneva Conventions, properly interpreted, authorized the President to try Hamdan in a military commission (and that such trials were constitutionally acceptable). (Justices Scalia, Thomas, and Alito accepted this proposition too.)
3. The Court could have said that the relevant statutory provisions, and the Geneva Conventions, properly interpreted, prohibited such trials -- and that the prohibition of such trials did not unconstitutionally invade the President's power as Commander-in-Chief. (A majority of the Court accepted this proposition for the statutes; for the Geneva Conventions, there was a plurality vote of 4-3 in favor of this proposition, with Justice Kennedy declining to express his view.)
4. The Court could have interpreted the relevant provisions as in 2 above, not only on the basis of their texts, but also by reference to a kind of clear statement principle, requiring unambiguous congressional permission in order for the executive to use military commissions. (No justice explicitly suggested this route.)
5a. The Court could have interpreted the relevant provisions as in 3 above, not only on the basis of their texts, but also by reference to a kind of clear statement principle, saying that if statutes are not clear, the President, as Commander-in-Chief, is entitled to use military commissions. In other words, Congress must speak clearly if it wants to ban the President from using military commissions. (Justice Thomas' opinion, joined by Justice Scalia on this point but not by Justice Alito, veered toward this position without embracing it.)
5b. A variation on 5a: The Court could have said that according to standard principles of administrative law, the President is authorized to interpret the relevant sources of law, so long as his interpretation is reasonable. (Justice Thomas suggested an approach of this kind to the Geneva Conventions issue.)
6. The Court could have said that the President, as Commander-in-Chief, has the authority to create military commissions whatever Congress says. (No justice suggested this route.)
7. The Court could have said that because of constitutional limits, the President may not create and use this kind of military commission, even if Congress authorizes him to do so. (No justice suggested this route, though it is possible that a due process issue could arise with imaginable military commissions.)

The One Percent Doctrine

Is Vice President Cheney a decision theorist? If so, is he a good one?

In his new book, The One Percent Doctrine, Ron Suskind quotes the Vice President as follows: “We have to deal with this new type of threat in a way we haven’t yet defined. . . . With a low-probability, high-impact event like this . . . If there’s a one percent chance that Pakistani scientists are helping al Qaeda build or develop a nuclear weapon, we have to treat it as a certainty in terms of our response.”

There is much to say about this extremely interesting statement. Most obviously, the Vice President appears to be endorsing a version of the Precautionary Principle, which is quite popular with many environmentalists. According to the Precautionary Principle, it is appropriate to respond aggressively to low-probability, high-impact events -- such as climate change. Indeed, another Vice President -- Al Gore -- can be understood to be arguing for a precautionary principle for climate change (though he believes that the chance of disaster is well over one percent).

H2H: The End of the Debate (For Now)

With final posts yesterday, our first Head to Head: Stone v. Posner came to a close. Please let us know if you have comments on the format or suggestions for future debate topics or participants.

Closing the Xbox

Ed Felten has an interesting post (“Freeing the Xbox”) about efforts to “hack” the Xbox to open it up so that it can run the Linux operating system. And Tim Lee at the Technology Liberation Front has a series of related posts on this issue. Ed notes that given the price/power combination of the Xbox, it is an attractive target. How we should we evaluate this? Here is what Ed says:

The real action here is in Microsoft’s strategy of selling the Xbox hardware as a loss leader, and the tendency of the Xbox Linux work to frustrate this strategy. Xbox Linux creates value for its users. Should public policy be willing to destroy this value in order to enable Microsoft’s pricing strategy? My instinct is that it should not, though there is a plausible argument on the other side.

This is a reasonably balanced statement, but I don’t think that this is still the right way to frame this issue, and I do want to make clear the other side. Ed puts it as users vs. Microsoft, but this is as least as much about user vs. user and we have to understand what the Linux hack means for people playing games on the Xbox.

H2H: What Side of the Civil Liberties-National Security Balance Should the Judicial Thumb Be On?

Geof, I am not persuaded by your analysis of the use of presumptions to resolve the tension (whcih you acknowledge) between civil liberties and national security. You start off promisingly by stating that "Logic, for example, suggests that in dealing with conflicts between the national security and civil liberties judges should start with a healthy dose of deference to military and executive officials. This seems sensible for several reasons." And you list the reasons, such as that the judges don't know much about national security and the cost of invalidating a national-security measure can be catastrophic. If this is right, then necessarily the false positives will greatly outnumber the false negatives. Suppose judges always upheld national security measures, that is, made the presumption irrebuttable. Then there would never be a false negative; that is, there would never be a case in which the court would prevent the government from responding effectively to a real danger. The only judicial mistakes would be false positives--allowing the government to respond to dangers that turned out to be nonexistent (or to respond disproportionately to slight dangers). If judges should hesitate to meddle in national security, as I believe they should (including for the reasons you give), then it is right that false positives should preponderate over false negatives, perhaps greatly. I don't, by the way, think that the presumption should be irrebuttable; for as I said, I agree with the result in Hamdi. (In the case of ordinary crimes, where the danger to the nation is much less than in the case of national security, the system reverses the presumption--false positives, namely convicting the innocent--are weighted more heavily than false negatives--failing to convict the guilty.)

H2H: Open Spaces and the Role of Judges in Wartime

In my third and final post in our exchange, Dick, I'd like to shift over to the subject of judges. At a talk you gave recently at Boston University at a symposium we both attended, you reflected on what you termed “open spaces,” those seams in the law where neither text nor precedent commands a result. Your point (if I recall correctly) was that it is in these spaces where real "judging" takes place. In these spaces it is reasonably possible for conscientious and highly responsible judges to reach different outcomes, and in these spaces judges inevitably bring to bear their moral values, institutional preferences, personal ideologies, and emotional dispositions. In these spaces it matters a lot who the judge is.

H2H: Domestic Intelligence and Civil Liberties

Geof, you raise three basic issues. The first is whether a domestic intelligence agency would have less regard for constitutional rights than the FBI, the second whether adequate attention has been paid to security measures that do not involve curtailing civil liberties, and the third whether the post 9/11 restrictions on civil liberties are more serious than I believe.

On the first, you are right that an agency that has no arrest or other law enforcement powers--and that is the essence of a domestic intelligence agency that is separate from any criminal-investigation or other police body--will not worry about the exclusionary rule except in cases in which it believes the best response to a terrorist threat is prosecution (and hence referral to the FBI). On the other hand, since such an agency would have no powers of arrest, and little interest in obtaining evidence of crime, the occasions for invoking an exclusionary rule against it would be fewer. Moreover, one reason for an exclusionary rule is recognition of the heavy costs that a criminal prosecution imposes on people. A domestic intelligence agency wouldn't be in the prosecution business. And finally, the exclusionary rule has considerably eroded, as you know, and the erosion isn't going to be reversed. It is due partly to the Supreme Court's having become more conservative but partly as well to the increased efficacy of civil-rights litigation as an alternative method of enforcing the Fourth Amendment and other constitutional provisions--though I acknowledge that such litigation is unlikely to be effective against surveillance where the government refuses to disclose whose communications have been intercepted.

H2H: Domestic Intelligence Agencies, the Internet, and NSA Surveillance

It's true, Dick,  that I have no objection in principle to the creation of a professional domestic intelligence agency. For me, the central issue is whether, to what extent, and in what circumstances the United States should engage in domestic intelligence gathering. As I understand it, the distinction between an organization like the FBI and a domestic intelligence agency is that the FBI is dedicated primarily to law enforcement whereas a domestic intelligence agency would be dedicated to gathering information in order to prevent terrorist attacks. As you make clear in Uncertain Shield, because the FBI is geared to law enforcement, it has never developed the skills necessary for effective domestic intelligence and its incentive structures is deeply rooted in solving rather than preventing criminal acts. To the extent an effective program of domestic intelligence can enhance our ability to prevent terrorist attacks without undermining civil liberties, I'm persuaded that a professional agency dedicated to that end has advantages over the FBI.

Sex Offenders and Home Values

An interesting new paper by Leigh Linden and Jonah Rockoff at Columbia explores whether, and to what extent, home prices fall when a sex offender moves into the neighborhood.  The paper is available for download here.  Using North Carolina data, Linden and Rockoff find that when a sex offender moves into a neighborhood, real estate prices fall by 3.5% within one-tenth of a square mile of the offender's residence, but they find no statistically significant effect on real estate prices further away from the sex offender's home.  (Home prices actually rose between .1 and .3 miles from the sex offender's home, but not by a statistically significant amount.)

These findings, in conjuntion, present something of a puzzle.  I know of no reliable data indicating that sex offenders disproportionately prey on their immediate neighbors, as opposed to neighbors living a few blocks away or across town.  While sex offenders would find it easier to access their immediate neighbors, offending further away from home probably reduces the likelihood that a sex offender would be recognized and apprehended.  There are some highly publicized instances of released sex offenders victimizing people living on their block, so it may be, as Linden and Rockoff speculate, that next-door neighbors overestimate the risks posed by sex offenders and neighbors living one-fifth of a mile away underestimate those same risks.  (The lion's share of sex offenders victimize their own family members, who generally do not benefit from, but may be harmed by, Megan's Laws.)

ASCAPing YouTube: This Is How We Pay for Music in the Real World

The blogosphere has reacted with horror at the notion that the RIAA—the Recording Industry Association of America—might take action against YouTube for hosting content using recorded music without permission. Cory Doctorow of the Electronic Frontier Foundation characterizes this as “crazy, of course,” while John Battelle, author of The Search (a good book: my review here), puts the point more colorfully: “Wake up. This is how we use music in the read world. Get over yourselves.”

YouTube is the next future of television. Maybe or maybe not, but YouTube and sites like it are scorchingly hot right now. These sites host video content created by users (user-generated content or amateur content). Some of the content is extraordinarily good (my favorite: 10 things I HATE about commandments (watch it twice and count the number of probable copyright violations the second time)), most is dreadful. As Cory Doctorow’s post makes clear, the RIAA has not said that they would pursue action again these sites or the consumers creating the content.

For the music industry, this is a not-so-golden oldie and the conflict illustrates the persistent gap between actual law and the public’s knowledge of that law and, frequently, perceptions of fairness. On these facts, far from being crazy or somehow a misuse of copyright, I think that music copyright holders have a straight-forward action against YouTube. To see that, we should start in 1917.