Adrian Vermeule and I are defending our book, Terror in the Balance, in an online symposium over at Opinio Juris. Below is a taste. If you have comments, please post them at Opinio Juris, where the debate is in full swing.
Adrian Vermeule and I are defending our book, Terror in the Balance, in an online symposium over at Opinio Juris. Below is a taste. If you have comments, please post them at Opinio Juris, where the debate is in full swing.
What is at stake in the legislation, signed into law last weekend by President Bush, amending the Foreign Intelligence Surveillance Act of 1978 (FISA)? To answer this question, it’s necessary to review how we came to this point.
If you read this blog regularly, you know that we don't really shy away from controversial topics. On May 1, 2007, Curtis Bradley, who was at the time a Visiting Professor here and is more regularly the Richard and Marcy Horvitz Professor of Law at Duke University Law School, delivered a talk here entitled "Military Detention in the War on Terrorism." Want to listen? Click here. Want to opine? That's what the comments are for...
Recently the Bush administration has submitted its warrantless surveillance program to examination by the Foreign Intelligence Surveillance Court, after maintaining vigorously that it need not do so. It is unclear what, exactly, the administration is asking the Court to do, and the administration refers obscurely to “new legal developments”; but let us suppose that at least part of the administration’s motive is to avoid a judicial and legislative test of the program’s legality, by rendering litigation moot and dampening the impetus for congressional oversight. In litigation over the detention of enemy combatants, the administration has sometimes pulled off a similar maneuver, as when it transferred Jose Padilla from military detention to the criminal justice system in order to moot pending litigation. Many critics find these actions objectionable. Are they?
Just as Gaul was divided into three parts, so too judges and constitutional lawyers interested in national security tend to fall into one of three broad camps:
(1) Executive unilateralists, who believe that courts and legislatures do and should defer heavily to the executive during wars and emergencies. Our book, Terror in the Balance, stakes out this view, which has only a few other defenders in the legal academy.
(2) Democratic process theorists, who are most worried about the separation of legislative and executive powers, and who want above all that executive action during emergencies should be authorized by Congress. (A variant of this view is Bruce Ackerman’s proposal for a “framework statute,” to be enacted before the next attack, that would structure executive emergency powers). For democratic theorists, the central text is Justice Robert Jackson’s concurrence in the Steel Seizure case, which suggests that the president’s powers are at their high-water mark when he acts with congressional approval, and at low ebb when he acts against congressional instructions.
(3) Civil libertarians, who typically want courts to examine emergency action to ensure that it does not violate constitutional rights.
Now that the Democratic Party has taken control of Congress, will it cut back on President Bush’s aggressive war on terror strategy, and restore Americans’ civil liberties? The answer appears to be “No.”
The Democratic Party’s 6-Point Plan for 2006 lists the following items: Honest Leadership & Open Government; Real Security; Energy Independence; Economic Prosperity & Educational Excellence; A Healthcare System that Works for Everyone; and Retirement Security. Under Real Security, one finds:
Democrats are unwavering in our commitment to keep our nation safe. For Democrats, homeland security begins with hometown security. That’s why we led the fight to create the Department of Homeland Security and continue to fight to ensure that our ports, nuclear and chemical plants, and other sensitive facilities are secured against attack and support increased funding for our first responders and programs like the COPS program so we keep our communities safe. We want to close the remaining gaps in our security by enacting the 9/11 Commission recommendations.
"Where mistakes have been made, the responsibility rests with me." Note the passive voice. The President does not admit, "I made mistakes." Rather, others made mistakes, but he (graciously) takes responsibility. This is a far cry from Harry Truman's "The Buck Stops Here." If President Bush wants to win back the trust of the American people, he has to begin by being honest with them.
"I have made grievous mistakes, and those mistakes have resulted in a national disaster. I persuaded the Congress and the American people that the United States needed to invade Iraq in order to remove weapons of mass destruction. I was wrong. There were no weapons of mass destruction. I assured the Congress and the American people that the war in Iraq would be easy. I was wrong. More Americans have been killed in Iraq than were killed on 9/11, the war has already cost the nation hundreds of billions of dollars, and the there is no end in sight. I assured the American people that we had sufficient troop strength in Iraq to quell the insurgency and that the Iraqi government would take responsibility for the safety of the Iraqi people. I was wrong, again, on both counts."
Yesterday, Geoffrey Stone delivered a Chicago's Best Ideas talk with the title of "Government Secrecy v. Freedom of the Press." A packed house heard Geof discuss the law involved in when national security considerations trump (or should trump) the press's right to publish information, and even when they trump the right of individual citizens to bring such information to light. Listen to the talk to hear him explain why what looks like a balancing test isn't always a balancing test and why this talk is about so much more than the Pentagon Papers.
(This is a mildly revised and updated version of a post of mine from the New Republic website, a while back.)
Some intriguing social science evidence, with implications far beyond the coming election, strongly suggests that the politics of terrorism touches a chord that produces much more support for Republicans than for Democrats: our own mortality. One question is whether the underlying dynamics will continue in their present form.
A little background: A focus on mortality--which voters obviously associate with terrorism--seems to have a quantifiable effect on our beliefs and our judgments. How, for example, are you likely to be affected if you are asked to think, for just a moment, about the fact that, at some point, you are going to die? An interesting body of psychological research tries to answer that question. Organized around the idea of "mortality salience," this research finds that, if people are reminded of their own mortality, their views and behavior tend to change. Once so reminded, ordinary people are significantly more likely to show racial and religious prejudice. (Note that after 9/11, there was a significant increase in hate crimes against Muslims in Chicago.) Once so reminded, people show more physical aggression toward other people with different political beliefs. Once so reminded, even judicial behavior changes: In one study, judges who were reminded of their own mortality gave stiffer sentences to nonviolent criminals (prostitutes). An understanding of mortality salience, and its effects, helps to illuminate a great deal of behavior in the legal domain, including the decisions of juries.
Debate Series: Stone Offers A Proposal
I don’t agree that the public “has already surrendered much of its communicative privacy by its profligate use” of modern means of technology that “create essentially indelible records” of our communications, purchases, etc. Certainly, it’s true that most people have embraced cells phones, email, and the internet without paying much, if any, attention to the extraordinary invasions of privacy they make possible. But this will change once people come to understand how vulnerable they are. It’s a bit like electronic bugging and wiretapping in the first half of the twentieth century. It took fifty years for courts and legislatures to begin regulating such conduct, but once people realized the danger, government electronic surveillance was declared unconstitutional and private electronic surveillance was declared unlawful. The same will happen with respect to the modern means of communication. Once people recognize the danger, they will insist on regulation. So, I wouldn’t leap to the conclusion that the public has “surrendered” its privacy. We are merely in transition.
(again, rest of Stone and response from Posner after the jump)
Stone Seeks Common Ground
Over the past year, Judge Posner and I have had many opportunities, both public and private, to debate the nation's response to the war on terrorism. In simple terms, I consider myself a "civil libertarian," whereas he describes yourself as a "pragmatist." Not surprisingly, we disagree on many issues. I usually argue that restrictions of civil liberties should be a last resort, considered only after we are satisfied that the government has taken all other reasonable steps to keep us safe. He usually argues that restrictions of civil liberties are warranted whenever the benefit to be derived from those restrictions in terms of increased security "outweigh" the cost to society of limiting the rights. Despite our disagreements, we have increasingly found common ground. I think it will be useful to explore our similarities, rather than our differences, to see if we can agree on some recommendations.
(after the jump, see the rest of Stone's argument, followed by Posner's)
A good deal has been made in recent days of the objections raised by Senators Lindsey Graham, John McCain, Olympia Snowe, and John Warner to President Bush's proposed legislation authorizing the use of military tribunals to try enemy combatants. I applaud the actions of Graham, McCain, Snowe, and Warner. What I find astonishing -- and deeply distressing -- is that other Senate Republicans have not rallied to their support.
Senators Graham, McCain, Snowe, and Warner have objected to several provisions of the Bush proposal, including those expressly authorizing the prosecution to use hearsay evidence, secret evidence, and evidence obtained by coercion involving degrading and inhuman treatment. Each of these proposals represents a profound and radical departure from the fundamental standards of fairness and decency that have long governed both criminal courts and military tribunals throughout the history of the United States. Each of them is legally, constitutionally, and morally unwarranted.
Regular readers of the University of Chicago Law School Faculty Blog will not be surprised to learn that I applaud Judge Anna Diggs Taylor's August 17 decision declaring President Bush's NSA surveillance program unlawful. Judge Taylor ruled that the President's secret directive to the NSA to engage in warrantless electronic surveillance of telephone calls and emails involving American citizens on American soil violates both the Foreign Intelligence Surveillance Act of 1978 and the Constitution. On several occasions, I have posted entries on this site arguing for those conclusions.
Although I am confident Judge Taylor reached the right result as a matter of law, I have to admit I was surprised by the decision. It takes a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security. Too often, judges in wartime have failed to uphold the rule of law. Too often, they have sustained programs they should have held unlawful, ranging from the widespread suppression of dissent in World War I, to the internment of Japanese-Americans in World War II, to the persecution of "Communists" during the Cold War.
An interesting branch of psychological research explores how people's decisions and opinions shift when they are reminded of their own mortality. It turns out that when mortality is made salient, significant changes can occur. For example, judges who are reminded of their own mortality are likely to give stiffer sentences to even nonviolent offenders, and once so reminded, ordinary people are more likely to engage in racial stereotyping.
It is natural to wonder how mortality salience is likely to affect political judgments. A paper by Mark Landau and his colleagues, in 30 Personality and Social Psychology Bulletin 1136 (2004), offers some intriguing clues. Here are two key findings. (a) After people are merely reminded of their own mortality (by being asked, for example, to describe "what you think will happen to you as you physically die and once you are physically dead"), they show stronger support for President Bush and his policies in Iraq. (b) After people are reminded of their mortality OR of the 9/11 attacks, they become more favorably disposed toward President Bush and less favorably disposed toward John Kerry.
For those who are interested in more discussion of Hamdan, Cass Sunstein is guest-blogging and debating Marty Lederman and Sandy Levinson (so far) over at Balkinization. Enjoy!
The Bush administration and its allies continue their drumbeat attack on the First Amendment with repeated threats to prosecute the New York Times for disclosing the President’s secret surveillance programs. Attorney General Alberto Gonzales has suggested a criminal prosecution under the Espionage Act, Congressman Peter King and Senator Jim Bunning have accused the Times of treason, and Republicans in the House of Representatives have passed a resolution condemning the Times for putting “the lives of Americans in danger.”
All this is rank hypocrisy designed to intimidate the press and rally the party faithful, at no small cost to our democracy. The decision of the Times to reveal the secret NSA spy program may have embarrassed the President, but it was a great service to the nation. Any doubt there might have been about the illegality of the NSA program was effectively put to rest by the recent decision of the Supreme Court in the Hamdan case. The administration’s only plausible argument that the NSA surveillance program is lawful, even though it plainly violates the 1978 Foreign Intelligence Surveillance Act, is that FISA unconstitutionally limits the authority of the President as “commander in chief of the Army and Navy.” Even before Hamdan, this claim was weak, at best. After the Court’s five-to-three decision in Hamdan, that claim is frivolous. In declaring unlawful Bush’s military commissions, the Court in Hamdan reiterated what it said plainly two years ago in Hamdi – even a state of war does not grant the President a “blank check” to run roughshod over the law.
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.)
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).
Attorney General Alberto R. Gonzales has said that the United States government is exploring the possibility of criminally prosecuting the New York Times for publishing classified information: revealing the existence of the National Security Agency surveillance program. Apparently taking its cue from Gonzales, the House Intelligence Committee has held hearings on whether Congress should enact legislation to address this "problem."
The following is an excerpt from a memo I submitted to the House Permanent Select Committee on Intelligence for its pending consideration of restrictions on the press's publication of unauthorized disclosures of classified information:
A central question before the Committee is this: Should the United States criminally punish the press for publishing classified information? This inquiry poses a prospect unprecedented in American history. For more than 215 years, the United Stateshas managed to flourish in the absence of any federal legislation directly prohibiting the press from publishing government secrets. The absence of such legislation is no accident. It clearly fulfills the promise of the First Amendment: “Congress shall make no law . . . abridging the freedom . . . of the press.”
In today's Washington Post, I have an oped comparing the cost of the Iraq war with the cost of the Kyoto Protocol. Here are some excerpts, followed by a few additional comments:
"For the United States, the total cost of the Iraq war will soon exceed
the total anticipated cost of the Kyoto Protocol, the international
agreement designed to control greenhouse gases. For both, the cost is
somewhere in excess of $300 billion.
The Law School was delighted to welcome back so many alumni this past weekend for our annual Reunion. Geoffrey Stone '71 (celebrating his own reunion) kicked off the weekend on Friday, May 5 with a standing-room-only talk entitled "The Commander in Chief." Despite his initial comment that he would be talking about Law School deanship, he settled into a spirited talk and discussion about the very hot issue of the scope of Presidential power. To listen to the talk and the Q&A, click here. Instructions for the uninitiated are, as always, here.
Never once in the history of the United States has the national government criminally prosecuted the press for publishing information the government would rather keep secret. In recent weeks, however, the Bush administration and its advocates, including Attorney General Alberto Gonzalez, have repeatedly threatened to prosecute the New York Times and the Washington Post for publishing their Pulitzer Prize-winning exposés of the administration’s secret prisons in Eastern Europe and secret NSA surveillance of American citizens.
On Thursday, Judge Posner led a work-in-progress Workshop on his forthcoming book, Not a Suicide Pact, which examines the inevitable trade-offs between security and liberty in times of national emergency. As always, Judge Posner made many provocative points. One struck me in particular, however. Judge Posner commended the Court's 2004 decision in Hamdi, in which the Court held that the government could not indefinitely detain an American citizen captured in Afghanistan, without giving him some sort of hearing in which he could contest the claim that he was an "enemy combatant." The details of such a heard were unspecified, but Judge Posner agreed that the Court was correct to insist on a fair hearing as a condition of extended detention. After all, why should we detain someone who is not an enemy combatant?
By popular demand, we present a long-delayed podcast. One January 31, 2006, the Law School chapter of the American Civil Liberties Union presented a debate entitled "Presidential Power in an Age of Terror: A Debate on NSA Wiretapping." The participants were Hon. Richard Posner of the Court of Appeals for the Seventh Circuit (and also one of our Senior Lecturers) and Geoffrey Stone, Harry Kalven, Jr. Distinguished Service Professor of Law, and the debate was moderated by Joseph Margulies, trial attorney and Lecturer at the MacArthur Justice Center at the University of Chicago Law School. The event was exceedingly well attended and quite fascinating, but it has taken a while for us to bring it to you due to a corruption in our recording. We're providing it because we've been asked for it several times, but we need to warn you that sound quality is poor and the file is huge (the corruption prevented us from compressing it properly). If you can put up with all that, we promise you a treat, and you can listen here. As always, instructions for those who are new to podcasting are here.
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches.” Why did the Framers care so much about this “right” that they thought to put it into the Constitution? What was it about “searches” that generated their concern? Most obviously, a search of your house or person is intensely disruptive and humiliating. To have officers of the government ransack your home, rummage through your desk, and empty your handbag is surely unpleasant. Moreover, such a search invades your personal property in an elemental way. “Who are you to storm into my home in this way?!” Understandably, then, the Framers declared such searches by government officials constitutionally permissible only if they were “reasonable.”
The recent disclosure of President Bush’s secret decision to authorize the National Security Agency to spy on American citizens poses at least four central questions: (1) Is the program lawful? (2) Can the government officials who disclosed the program’s existence to reporters at the New York Times be criminally punished for this act? (3) Can the reporters be compelled to disclose the identities of their sources to a federal grand jury? (4) What can we expect from the Senate Judiciary Committee hearings, private lawsuits, and Vice-President Gore’s call for the appointment of a special counsel?
For those readers interested in a serious analysis of the legality of the President's authorization of NSA surveillance on American citizens, I recommend the following, which was written and signed by fourteen constitutional scholars and former government officials (including Richard Epstein and me) in response to a memorandum submitted to Congress by the Department of Justice:
Dear Members of Congress:
We are scholars of constitutional law and former government officials. We write in our individual capacities as citizens concerned by the Bush Administration's National Security Agency domestic spying program, as reported in the New York Times, and in particular to respond to the Justice Department's December 22, 2005 letter to the majority and minority leaders of the House and Senate Intelligence Committees setting forth the administration's defense of the program. Although the program's secrecy prevents us from being privy to all of its details, the Justice Department's defense of what it concedes was secret and warrantless electronic surveillance of persons within the United States fails to identify any plausible legal authority for such surveillance. Accordingly the program appears on its face to violate existing law.
In an earlier post (“Bush’s Spy Program and the Fourth Amendment”), I argued that Bush’s recently disclosed spy program almost certainly violates the Fourth Amendment. Now, I will take up the FISA issue. In 1978, after a broad range of abusive and unlawful investigative practices by the Nixon administration came to light, Congress enacted the Foreign Intelligence Surveillance Act (FISA). This legislation was designed to strike a careful balance between protecting civil liberties and enabling the government to protect the nation against foreign enemies. FISA established special rules dealing with foreign intelligence surveillance, and set up a special “secret” court, the Foreign Intelligence Surveillance Court, to handle these matters, but it retained the probable cause and warrant requirements of the Fourth Amendment. FISA criminalizes any electronic surveillance not authorized by statute, and it made clear that it set forth the exclusive means by which foreign intelligence surveillance may be conducted.
In an earlier post (“King George’s Constitution”), I asserted that the recently disclosed Bush spy program is both unconstitutional and unlawful. Since then, defenders of the program have attacked its critics as “hysterical” and “irresponsible,” and have offered a mélange of arguments for the program's legality, or at least its possible legality. I want to address those arguments. In this post, I will focus on the Fourth Amendment. In a later post, I will address the statutory issue.
It is settled law that the Executive may not engage in wiretapping or other forms of electronic surveillance of the contents of private communications without probable cause and a warrant. This is the unambiguous and long-standing understanding of the Fourth Amendment. The question posed by the Bush spy program is whether those requirements are inapplicable, and the Executive is therefore free to engage in electronic surveillance of American citizens on American soil without a warrant or probable cause or, indeed, without any review by the Congress or the judiciary, if it asserts that it is protecting the nation from terrorists.
The Bush Administration has made strong claims about the "inherent" power of the President. These claims are not unprecedented, and they are rarely if ever preposterous; but they are nonetheless bold. Thus it has been argued that the President's inherent authority includes (1) the power to go to war without congressional authorization, (2) the power to engage in foreign surveillance, (3) the power to detain "enemy combatants," including Americans captured on American soil, without access to a lawyer or to hearings, and (4) the power to engage in coercive interrogation of enemies, even torture, when necessary.
The legal questions raised by President Bush's wiretapping seem to me complex, not simple. Here is a rough guide: (1) Did the AUMF authorize his action? (2) If not, does the Constitution give the President inherent authority to do what he did? (3) If the answer to (1) or (2) is yes, does his action violate the Foreign Intelligence Surveillance Act (FISA)? (4) If the answer to (3) is yes, is FISA constitutional, or is it inconsistent with the President's inherent authority? (5) If the answer to (1) or (2) is yes, does the wiretapping nonetheless violate the Fourth Amendment?
In early 2002, President Bush secretly authorized the National Security Agency to monitor international telephone calls and international email messages without any showing of probable cause to believe that a participant in the communication was involved in unlawful or terrorist activity and without requiring a search warrant from a court of law. This action was a direct violation of federal law and the United States Constitution.
The Fourth Amendment ordinarily prohibits any search, which includes interception of telephone and email messages, without probable cause and a judicial warrant. (The “ordinarily” refers to some very narrow exceptions, inapplicable here, for unintrusive searches and for situations where officer safety or the need to act instantly justifies a departure from the usual requirements.) Each of these requirements - probable cause and a judicial warrant - plays a critical role in our constitutional scheme. Expansive government surveillance of a nation's citizens (think 1984 or of the Soviet Union) can undermine privacy, autonomy, independence, spontaneity, openness, dissent, and the general sense of freedom that is essential to a self-governing society. And, of course, surveillance is a powerful tool with which to suppress political opposition. The Framers of the Constitution clearly understood these dangers and therefore sharply limited the circumstances in which the government could intrude on individual privacy.
The discussion of wiretapping by the President, without court approval, raises a number of important and interesting legal issues. According to CNN, Attorney General Gonzales recently said, "There were many people, many lawyers within the administration who advised the president that he had an inherent authority as commander in chief under the Constitution to engage in" this kind of "signal intelligence of our enemy." The Attorney General added, "We also believe that the authorization to use force, which was passed by the Congress in the days following the attacks of September 11, constituted additional authorization for the president to engage in this kind of signal intelligence."
I want to suggest here that this last statement is more plausible than it might seem at first glance. If the statement is indeed correct, some legal questions certainly remain, but at least we will have made progress.