The University of Chicago Law School Faculty Blog

"Trust Us"

One reason the Bush administration has fared so poorly over the past several years is its obsessive fear of public accountability and separation of powers. From its secret prisons to its classified torture memos, from its closed deportation proceedings to its incommunicado detention of José Padilla, from its clandestine NSA spying to its persistent efforts to deny the Guantánamo Bay detainees access to the writ of habeas corpus, the Bush administration has entered one long plea of "trust us." President Bush is, after all, “The Decider.”

As the Framers of the Constitution well understood, however, such an approach to governance is a recipe for disaster. The Framers believed in both openness and checks-and-balances. They recognized the dangers of an overzealous executive, operating in secret, unchecked by the courts, the Congress, the press, and the public. The recently-released Justice Department audit of the FBI's use of PATRIOT Act authority is the latest example of the consequences of the Bush administration’s “trust us” theory of governance.

Restoring Habeas Corpus Rights Eliminated by the Military Commissions Act

The Constitution Project released the following statement today. Richard Epstein and I helped draft the statement:

We, the undersigned members of the Constitution Project’s Liberty and Security Committee and the Project’s Coalition to Defend Checks and Balances, are deeply troubled by the recent legislation eliminating habeas corpus for certain non-citizens detained by the United States.    We recommend that Congress vote to restore federal court jurisdiction to hear these habeas corpus petitions.
Habeas corpus has for centuries served as the preeminent safeguard of individual liberty and the separation of powers by providing meaningful judicial review of executive action.    In 2004, the United States Supreme Court upheld the right of Guantanamo detainees to file habeas corpus petitions to challenge the lawfulness of their indefinite detentions.

We Need a Federal Journalist-Shield Law NOW

As the new Democratic Congress moves ahead decisively on a panoply of issues, it should confront a particularly pressing one: freedom of the press. Congress should expeditiously enact a federal journalist-source privilege law, which would protect journalists from compelled disclosure of their sources’ confidential communications in the same way psychiatrists and lawyers are protected. Importantly, neither Congress nor the press should be unwilling to compromise when the alternative is to forgo such a privilege altogether.

A strong and effective journalist-source privilege is essential to a robust and independent press and to a well-functioning democratic society. It is in society’s interest to encourage those who possess information of significant public value to convey it to the public, but without a journalist-source privilege, such communication will often be chilled because sources fear retribution, embarrassment or just plain getting “involved.”

Darfur and the Kalven Report: A Personal Journey

Unlike many other universities, the University of Chicago recently declined to divest from Darfur. The basis of this decision was the University's Kalven Report. (If you have not read the Kalven Report, see http://www.uchicago.edu/docs/policies/provostoffice/kalverpt.pdf).

The Kalven Report was adopted the year before I arrived at the University of Chicago in 1968 as a new law student. Those were difficult days. On March 31, 1968, President Lyndon Johnson shocked the nation when he announced, “I shall not seek, and I will not accept, the nomination of my party for another term as your President.” The anti-Vietnam war movement had driven the president from office. On April 4, 1968, Martin Luther King, Jr. was assassinated in Memphis, Tennessee. The nation suffered a convulsion of violence, with riots in more than 100 cities, leading to forty-six deaths and more than 200,000 arrests. Chicago’s Mayor Richard Daley ordered police to “shoot to kill” arsonists on the city’s burning West Side.

On April 23 came the mass student occupation of buildings at Columbia University to protest the university’s war-related research and its treatment of the surrounding black community. This event marked a turning point in the nature of student protest. For the first time, police were called in to evict and arrest student demonstrators with the use of force. Moreover, for the first time universities themselves came to be seen by antiwar protesters as part of the nation’s power structure and thus part of the problem. Richard Nixon, a candidate for the Republican presidential nomination, decried the Columbia event as “a national disgrace.” Columbia became the model of what was to come.

Chief Justice Roberts and the Role of the Supreme Court

In a recent speech in Chicago, Chief Justice John Roberts stated that the Supreme Court functions best “when it can deliver one clear and focused opinion of the Court.” He lauded the importance of judicial “consensus,” arguing that cases should be decided “on narrow grounds” and that differences of opinion among the Justices generally should be expressed secretly in the Court’s private conferences, rather than in published dissenting or concurring opinions.

 As one who does not share the very conservative inclinations of the majority of the current Supreme Court, I should heartily endorse the Chief Justice’s call for “narrow” decisions that reflect a “consensus” among the Justices. The more the Court follows the Roberts, the less damage it is likely to do to the fabric of constitutional law. My self-interest as a citizen should cause me to cheer Roberts on.

"Mistakes Have Been Made"

"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."

Stone: "Government Secrecy v. Freedom of the Press"

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.

Listen to the talk here. Professor Stone's full blurb from the posters is after the jump, and podcast instructions for the uninitiated are here.

Bernie and the Passing of a Generation

This is intended particularly for students in the Law School, though everyone is of course invited to read it.

Few of you knew Bernie Meltzer, although you passed his portrait every day on your way to class and you often passed him in the hall. You would have seen him as a little man, slighltly stooped, with large glasses. If you rode with him in the elevator, he undoubtedly asked you a question. Bernie was like that.

Bernie Meltzer was one of the giants of the University of Chicago Law School. Along with his close comrades Edward Levi, Harry Kalven, and Walter Blum, he was one of four towering figures who redefined  and reconstituted the University of Chicago Law School after World War II.

Secrecy and Self-Governance

The next time our government insists it needs to keep things secret from us, we should remember where we are today. From the day it took office, the Bush administration has wrapped itself in unprecedented secrecy.  It intentionally hid critical information about its deliberations and decisions from Congress, the courts, the press, and the American people. Those who attempted to investigate or disclose what the administration kept secret were attacked and discredited.

For a time, this strategy worked. Protected by a shroud of secrecy, the administration appeared competent and all-knowing. Armed with a monopoly on information, it countered criticism as “ill-informed.” And so, we went to war. By almost all accounts, the war in Iraq has proved to be a disaster.  The sad truth is that if the American people had known what the members of the administration knew when they knew it, many frightful errors might well have been avoided. That is why we have the First Amendment.

Marriage: Scripture vs. Morality

Last Friday, my younger daughter got engaged.  She surprised her partner with a proposal, a ring, and a string quartet playing “their” song. As my wife noted, with two daughters we never thought we’d have a daughter-in-law.