Topic: Law and Civil Liberties

Cheney’s Worldview

Former vice president Richard Cheney gave his big address on national security (pdf) over at AEI last week.   He covered a lot of ground, but this passage, I think, tells us quite a bit about Cheney’s worldview:

If fine speech-making, appeals to reason, or pleas for compassion had the power to move [al-Qaeda], the terrorists would long ago have abandoned the field.  And when they see the American government caught up in arguments about interrogations, or whether foreign terrorists have constitutional rights, they don’t stand back in awe of our legal system and wonder whether they had misjudged us all along.  Instead the terrorists see just what they were hoping for — our unity gone, our resolve shaken, our leaders distracted.  In short, they see weakness and opportunity.

So we shouldn’t let the terrorists see us get “caught up in arguments” about  the wisdom of our foreign policy, about whether our country should go to war, about our country’s treaty obligations, about the parameters of government power under our Constitution?  What is this former vice president thinking?

Does it matter if Charles Manson appreciates the fact that he got a trial instead of a summary execution?  No.  It does not matter what’s in that twisted head of his.  Same thing with bin Laden.  The American military should make every effort to avoid civilian casualties  even if bin Laden targets civilians.  Similarly,  it does not matter if bin Laden scoffs at the Geneva Convention as a sign of  ”weakness.”  The former VP does not get it.  It is about us, not the terrorists.

An obsession with the mentality of the enemy (what they see; what they hope for, etc.) can distort  our military and counterterrorism strategy (pdf) as well.  Cheney wants to find out what bin Laden’s objective is and then thwart it.  I certainly agree that  gathering intelligence about the enemy is useful, but Cheney seems so obsessed that he wants to thwart al-Qaeda’s objectives — even if some pose no threat to the USA, and even if some of al-Qaeda’s  objectives are pure folly.  

If the CIA told Cheney that it intercepted a message and learned that bin Laden wanted some of his men to climb Mount Everest as a propaganda ploy to somehow show the world that they can lord over the globe, one gets the feeling that  Cheney wouldn’t shrug at the report.  Since that is what bin Laden hopes to achieve, the enemy objective must be thwarted!  Quick, dispatch American GIs to the top of Everest and establish a post.  Stay on the lookout for al-Qaeda and stop them no matter what!  That’ll show bin Laden who has the real power!  Farfetched, yes, but what about the costly nation-building exercise (pdf) in Iraq?  How long is that going to last?  Mr. Cheney did not want to address that part of the Bush-Cheney record for some reason.

In another passage, Cheney bristles at the notion that his “unpleasant” interrogation practices have been a recruitment tool for the enemy.  Cheney claims this theory ignores the fact that 9/11 happened before the torture memos were ever drafted and approved.  He observes that the terrorists have never “lacked for grievances against the United States.”  They’re evil, Cheney says, now let’s talk about something else.  The gist of Cheney’s argument — that no post 9/11 policy can ever be counterproductive — makes no sense.

Cheney’s controversial legacy will be debated for a long time.  And he’s smart enough to know that he may have very few defenders down the road, so he is wasting no time at all in making his own case.  The problem is that his case is weak and plenty of people can see it. 

For related Cato work, go here and here.

Richard Epstein on Sotomayor

Cato adjunct scholar Richard Epstein of the University of Chicago and New York University, finds much to worry about in Judge Sonia Sotomayor’s nomination to the Supreme Court:

The treatment of the compensation packages of key AIG executives (which eventually led to the indecorous resignation of Edward Liddy), and the massive insinuation of the executive branch into the (current) Chrysler and (looming) General Motors bankruptcies are sure to generate many a spirited struggle over two issues that are likely to define our future Supreme Court’s jurisprudence. The level of property rights protection against government intervention on the one hand, and the permissible scope of unilateral action by the president in a system that is (or at least should be) characterized by a system of separation of powers and checks and balances on the other.

Here is one straw in the wind that does not bode well for a Sotomayor appointment. Justice Stevens of the current court came in for a fair share of criticism (all justified in my view) for his expansive reading in Kelo v. City of New London (2005) of the “public use language.” Of course, the takings clause of the Fifth Amendment is as complex as it is short: “Nor shall private property be taken for public use, without just compensation.” But he was surely done one better in the Summary Order in Didden v. Village of Port Chester issued by the Second Circuit in 2006. Judge Sotomayor was on the panel that issued the unsigned opinion–one that makes Justice Stevens look like a paradigmatic defender of strong property rights.

I have written about Didden in Forbes. The case involved about as naked an abuse of government power as could be imagined. Bart Didden came up with an idea to build a pharmacy on land he owned in a redevelopment district in Port Chester over which the town of Port Chester had given Greg Wasser control. Wasser told Didden that he would approve the project only if Didden paid him $800,000 or gave him a partnership interest. The “or else” was that the land would be promptly condemned by the village, and Wasser would put up a pharmacy himself. Just that came to pass. But the Second Circuit panel on which Sotomayor sat did not raise an eyebrow. Its entire analysis reads as follows: “We agree with the district court that [Wasser’s] voluntary attempt to resolve appellants’ demands was neither an unconstitutional exaction in the form of extortion nor an equal protection violation.”

Maybe I am missing something, but American business should shudder in its boots if Judge Sotomayor takes this attitude to the Supreme Court. 

Obama’s Sotomayor Nomination: Identity Politics over Merit

In picking Sonia Sotomayor, President Obama has confirmed that identity politics matter to him more than merit.

Judge Sotomayor is not one of the leading lights of the federal judiciary and would not even have been on the shortlist if she were not Hispanic.

She has a mixed reputation, with a questionable temperament and no particularly important opinions in over 10 years on the Second Circuit. Most notably, she was part of the panel that summarily affirmed the dismissal of Ricci v. DeStefano, where the City of New Haven denied firefighter promotions based on an admittedly race-neutral exam whose results did not yield the “correct” racial mix of successful candidates. Sotomayor’s colleague José Cabranes—a liberal Democrat—excoriated the panel’s actions and the Supreme Court will likely reverse the ruling next month.

If this is the kind of “empathy” the president wants from his judges, we are in for a long summer—and more bitter confirmation battles in the future.

Obama Chooses Sotomayor for Supreme Court Nominee

soniaIn nominating Second Circuit Judge Sonia Sotomayor to fill the seat of retiring Supreme Court Justice David Souter, President Obama chose the most radical of all the frequently mentioned candidates before him.

Given the way her panel recently summarily dismissed the Ricci case –- involving the complaint by New Haven, Connecticut, firefighters that the city had thrown out the results of an officers exam because the results did not come out “right” –- and the expectation, based on oral argument, that the Supreme Court will reverse the Second Circuit decision, there will likely be an extremely contentious confirmation battle ahead. If confirmation hearings are scheduled for summer, they will follow shortly upon the Court’s decision in that explosive case.

Are we to imagine that President Obama chose as he did because he wants that battle?

More Politicization of the Department of Justice

At the last election, Democrats complained mightily of George Bush’s having politicized the Department of Justice: firing prosecutors, suborning legal memos justifying an expansion of executive power, etc., etc.  Well, it now seems at best that the pot was calling the kettle an abuser of power.

Early in the administration, when the DC Voting Rights Act last made the news cycle, it came out that newly confirmed AG Eric Holder sought a second opinion from the acting solicitor general when the Office of Legal Counsel affirmed its 45-year position that giving DC residents representation in Congress could not be done without amending the Constitution.  The bill is now stuck because of an amendment that was added to it relaxing the District’s strict – even after Heller – gun regulations, but this issue will resurface.

Now, in the most recent development in the “Is Hillary Clinton Constitutional?” saga the OLC reversed its own position from 1987 just in time for federal prosecutors to file a motion to dismiss a lawsuit challenging Clinton’s appointment that cites the new memo (see footnote 21).  Indeed, the motion was filed the same day Acting Assistant Attorney General David Barron – who had previously rebuffed Holder on the DC Voting Rights Act (though we still have to see what the next confirmed OLC head says, be that Dawn Johnsen or someone else) – signed the new OLC memo.

The issue is that Clinton’s appointment to the cabinet – as well as that of Interior Secretary Ken Salazar – violates the Emoluments (sometimes called Ineligibility) Clause of Article I, section 6 because both she and Salazar were sitting Senators when cabinet salaries were increased.  Congress later passed short laws reversing these raises for the duration of both officials’ tenures but, as I’ve argued previously – and as OLC head Chuck Cooper spelled out in the 1987 memo – there is no “net accounting” proviso which somehow erases the constitutional defect.  While the new memo relies heavily on historical practice – several presidents going back to William Howard Taft (most recently Bill Clinton in appointing Lloyd Bentsen to be Treasury Secretary) have proceeded in this manner – the fact that political branches have acted in a certain way doesn’t speak to the constitutionality of that action.

In short, again the Obama Justice Department has found a politically expedient way of dealing with pesky constitutional issues.  In this case, that way involved issuing a memo to buttress a motion being filed that very same day in federal court.

H/T: Tom Fitton of Judicial Watch, which is involved in the suit challenging Clinton’s appointment.

Cheney vs. Obama: Tale of the Tape

In case you missed it, President Obama and former Vice President Dick Cheney spoke separately today on terrorism and national security. Like two boxers at a pre-fight press conference, they each touted their strength over their opponent. They espoused deep differences in their views on national counterterrorism strategy.

The Thrilla in Manilla it ain’t. As Gene Healy has pointed out, they agree on a lot more than they admit to. Harvard Law professor and former Bush Office of Legal Counsel head Jack Goldsmith makes the same point at the New Republic. Glenn Greenwald made a similar observation.

However, the areas where they differ are important: torture, closing Guantanamo, criminal prosecution, and messaging. In these key areas, Obama edges out Cheney.

Torture

Cheney:

I was and remain a strong proponent of our enhanced interrogation program. The interrogations were used on hardened terrorists after other efforts failed. They were legal, essential, justified, successful, and the right thing to do.

Obama:

I reject the assertion that these are the most effective means of interrogation. What’s more, they undermine the rule of law. They alienate us in the world. They serve as a recruitment tool for terrorists, and increase the will of our enemies to fight us, while decreasing the will of others to work with America. They risk the lives of our troops by making it less likely that others will surrender to them in battle, and more likely that Americans will be mistreated if they are captured.

Torture is incompatible with our values and our national security interests. When we break our own rules (read: laws) against torture, we erode everyone’s faith that America is the good guy in this global fight.

Torture has been embraced by politicians, but the people who are fighting terrorists on the ground want none of it. As former FBI agent Ali Soufan made clear in Senate hearings last week, it is not an effective interrogation technique. Senior military leaders such as General Petraeus, former CENTCOM commanders Joseph Hoar and Anthony Zinni, and former Commandant of the Marine Corps Charles Krulak all denounce the use of torture.

If we captured Al Qaeda operatives who had tortured one of our soldiers in pursuit of information, we would be prosecuting them. Torture is no different and no more justifiable because we are doing it.

Closing Guantanamo

Cheney:

I think the President will find, upon reflection, that to bring the worst of the worst terrorists inside the United States would be cause for great danger and regret in the years to come.

Obama:

[I]nstead of serving as a tool to counter-terrorism, Guantanamo became a symbol that helped al Qaeda recruit terrorists to its cause. Indeed, the existence of Guantanamo likely created more terrorists around the world than it ever detained.

This is an area where Cheney is disagreeing not just with Obama but with John McCain. We would be having this debate regardless of who won the last Presidential election. Get over it.

The current political climate gives you the impression that we are going to let detainees loose in the Midwest with bus fare and a gift certificate for a free gun at the local sporting goods store. Let’s be realistic about this.

We held hundreds of thousands of prisoners of war in America during World War II. The detainees we have now are not ten feet tall and bulletproof, and federal supermax prisons hold the same perfect record of keeping prisoners inside their walls as the detainment facility in Guantanamo Bay.

Criminal Prosecution

Obama basically said that we will try those we can, release those who we believe pose no future threat, and detain those that fit in neither of the first two categories. That’s not a change in policy and that pesky third category isn’t going away.

Obama and Cheney do have some sharp differences as to the reach of war powers versus criminal prosecution.

Cheney:

And when you hear that there are no more, quote, “enemy combatants,” as there were back in the days of that scary war on terror, at first that sounds like progress. The only problem is that the phrase is gone, but the same assortment of killers and would-be mass murderers are still there.

Obama:

Recently, we prosecuted and received a guilty plea from a detainee - al-Marri - in federal court after years of legal confusion. We are preparing to transfer another detainee to the Southern District of New York, where he will face trial on charges related to the 1998 bombings of our embassies in Kenya and Tanzania - bombings that killed over 200 people.

I have written extensively on al-Marri, the last person to be detained domestically as an enemy combatant. The FBI did everything right when it investigated and indicted this Al Qaeda sleeper agent masquerading as an exchange student, only to have the Bush administration remove those charges in order to preserve the possibility of detaining domestic criminals under wartime powers. This claim of governmental power is a perversion of executive authority that Obama was right to repudiate.

The man being indicted in New York is Ahmed Gailani. If he is convicted for his role in the bombing of American embassies in Kenya and Tanzania, he will join his co-conspirators Wadih El-Hage, Mohammed Odeh, Mohammed al-Owhali, and Khalfan Mohammed in a supermax.

This is also where we hold 1993 World Trade Center bombers Ramzi Yousef, Sheikh Omar Abdel Rahman (the “Blind Sheikh”), Mohammed Salameh, Sayyid Nosair, Mahmud Abouhalima, and Ahmed Ajaj.

Not to mention would-be trans-pacific airline bombers Wali Khan Amin Shah and Abdul Hakim Murad.

Al Qaeda operatives Mohammed Jabarah, Jose Padilla, and Abu Ali will share his mailing address.

Let’s not forget American Taliban Johnny Walker Lindh, Shoe Bomber Richard Reid, Al Qaeda and Hamas financier Mohammed Ali Hassan Al-Moayad, Oregon terrorist training camp organizer Ernest James Ujaama, and would-be Millenium Bomber Ahmed Ressam.

That’s a lot of bad guys. It’s almost like we’re checking names off a list or something.

Messaging

Cheney:

Behind the overwrought reaction to enhanced interrogations is a broader misconception about the threats that still face our country. You can sense the problem in the emergence of euphemisms that strive to put an imaginary distance between the American people and the terrorist enemy. Apparently using the term “war” where terrorists are concerned is starting to feel a bit dated.

Obama: no quote is necessary here. The differences in narrative between Obama and Cheney are clear and woven into what Obama says.

Terrorism is about messaging. America finds herself in the unenviable position of fighting an international terrorist group, Al Qaeda, that is trying to convince local insurgents to join its cause. Calling this a “War on Terror” can create a war on everybody if we use large-scale military solutions for intelligence, law enforcement, and diplomatic problems.

We have to tie every use of force or governmental power to a message: drop leaflets whenever we drop a bomb, hold a press conference whenever we conduct a raid, and publish a court decision whenever we detain someone. Giving the enemy the initiative in messaging gives them the initiative in the big picture.

Conclusion

Once we get past the rhetoric, the differences are few but worth noting. I take Obama in the third round by TKO.