Topic: Law and Civil Liberties

Was Lt. Cmdr. Charles Swift Too Zealous?

One of the nagging questions about the use of military tribunals has been the role of military defense counsel. If military lawyers report to Defense Secretary Donald Rumsfeld and President Bush (and they do), how can they zealously defend the legal rights of a person that the President has already declared an “enemy combatant” who must be punished for war crimes? Isn’t that a classic conflict of interest? The response has been that the defense counsel for these tribunals would not be under any “command influence.”

Lt. Cmdr. Charles Swift was among the first group of military lawyers that were assigned to represent prisoners facing war crimes charges at Guantanamo. As it happened, Swift’s client, Salim Hamdan, was selected to be the first prisoner that would go before the new military tribunals.

Swift promptly challenged the legality of the commission system–and took the case all the way to the Supreme Court and prevailed. Two weeks after his high court victory, the Navy informed Swift that under its “up-or-out” promotion system, he must leave the Navy.

It is a bit peculiar for the Navy not to retain and promote Swift. After all, Swift was recently named by the National Law Journal as among the nation’s top 100 lawyers. When the tribunals were first proposed, the argument was “we have to do this because otherwise Johnnie Cochran will enter the picture and muck everything up.” Now it seems the feds can’t have Charlie Swifts either.

Lt. Cmdr. Swift participated in a debate here at Cato on military tribunals last March. To view that debate, go here. Swift’s co-counsel in the Hamdan case was Georgetown University law professor Neal Katyal. And Prof. Katyal summarized his critique of the tribunal system in this article (pdf) in the Cato Supreme Court Review.

Andrew Sullivan in Multimedia

Andrew Sullivan gave a cogent and provocative speech this week at Cato based on his new book The Conservative Soul: How We Lost It, How to Get It Back. Prodded by a critique from David Brooks, he sharpened and clarified his argument during the question-and-answer session. Together, Sullivan and Brooks produced the kind of vigorous and intelligent discussion that think tanks strive for. You can catch the debate in RealAudio, RealVideo, or MP3 here.

Or if you prefer shorter bites on YouTube, you can find the first part of Andrew’s opening remarks here, the second part here, a closing back-and-forth with Brooks on conservatism, limited government, and the failure of the 1994 Republican Revolution here, and a short colloquy on same-sex marriage here. Finally, watch for the whole thing to appear on C-SPAN’s Book TV soon.

Harvard Lawyers Soon to Know Even Less

I’m fond of my law school (which wasn’t Harvard) and proud of having gotten a legal education, but I am keenly aware of what they didn’t tell me in school. My training was noticably light on constitutional doctrines like separation of powers and federalism — protections of liberty as important as the Bill of Rights. (I had to go and learn them myself. Got a little help from an outfit called the Cato Institute and papers like this one.)

Indeed, I recall a college pre-law class where I was taught the “swirl cake” theory of federalism. ”Sure, there are layers of government, but they mix and overlap in mysterious ways.” Utter claptrap. ”Swirl cake” federalism obscures the workings of government from the people, allows politicians to avoid accountability, and fertilizes the growth of over-large government at every level.

Now comes news (via the Volokh Conspiracy) that Harvard is going to “overhaul” the education first-year law students get. Rather than basics like contracts, torts, property, civil procedure, and criminal law, they’ll learn such things as policy and international law.

In other words, Harvard-trained lawyers will know more about politics and less about law. A step backward for the legal profession and probably for many Harvard lawyers themselves. 

As a law review editor-in-chief, I was aware that many top journals had wandered away from doctrinal work that actually advances law. Maybe the whole legal academy is following suit.

The Weaknesses of Watch-Listing

“Watch-listing” — the practice of putting bad people’s names on a list and treating them differently at places like airports — is fraught with difficulty. 

As to sophisticated threats, it’s a Maginot line. Easy to evade, it provides no protection against people who haven’t yet done anything wrong, who haven’t come to the attention of security officials, or who have adopted an alias. Terrorist planners are nothing more than inconvenienced by having to use people with “clean” records.

Paying to inconvenience any such terrorists are (taxpayers, of course, and) all the people wrongly treated as suspects because they have the same or similar names as listed people. 

On its website, CBS News is previewing its upcoming 60 Minutes story on watch-listing, and they’ve assembled a large group of Robert Johnsons to attest to their experience with watch-listing. They share the same name as a Robert Johnson that someone deemed appropriate to put on a list.

Watch-listing has a deeper flaw, though.  It does not fit with our system of law enforcement.

In the U.S., people who have done something wrong are supposed to be arrested, taken to court and charged, then permitted to contest the accusation. If they are found guilty, they pay money or serve time in jail. 

Watch-listing follows no similarly familiar pattern. Law enforcement or national security personnel place a person on a list and then, wherever that list is used, treat the person (and other people with the same name) differently, stopping them, interrogating them, searching them, or whatever the case may be. This unilateral process is alien to our legal system.

Rather than watch-listing, people who are genuinely suspected of being criminals or terrorists should be sought, captured, charged, tried, and, if convicted, sentenced.  Watch-listing allows law enforcement to be very active and intrusive without actually doing what it takes to protect against crime and terrorist acts.  In Identity Crisis, I wrote that ”watch listing and identification checking [are] like posting a most-wanted list at a post office and then waiting for criminals to come to the post office.”

At the national border, watch-listing must be used — deftly — because we cannot reach wrongdoers worldwide. Those watch-lists allow us to be vigilant against bad people who may arrive on our shores. Domestically, though — in our free country — the practice should end.

Extremism in Defense of Liberty

Michael Cannon, Mike Tanner, and other libertarian health care gurus may appreciate this.  I recently came across an intriguing quote by Founding Father Benjamin Rush, surgeon general of the Continental Army and signer of the Declaration of Independence.  So I did what everyone does these days and went to Wikipedia.  There I learned that:

Rush believed that Americans should enshrine the right to medical freedom in their Constitution, much as the right to freedom of religion is expressly guaranteed in that document.

Rush is reported to have argued that “Unless we put Medical Freedom into the Constitution, the time will come when medicine will organize into an undercover dictatorship … to restrict the art of healing to one class of men, and deny equal privilege to others, will be to constitute the Bastille of Medical Science. All such laws are un-American and despotic and have no place in a Republic … The Constitution of this Republic should make special privilege for Medical Freedom as well as Religious Freedom.”

(Of course, if you read a little further, you learn that some of his medical theories were not so hot). 

Rush was also a rabid antimilitarist who proposed in 1792 that two captions be painted “over the portals of the Department of War”: “An office for butchering the human species” and “A Widow and Orphan making office”–though that’s an idea that would probably be even less popular today.    

Don’t Embarrass the State

Here are the ”core values” of the Federal Bureau of Investigation, which is a division of the Department of Justice:

• Rigorous obedience to the Constitution of the United States;
• Respect for the dignity of all those we protect;
• Compassion;
• Fairness;
• Uncompromising personal integrity and institutional integrity;
• Accountability by accepting responsibility for our actions and decisions and the consequences of our actions and decisions; and
• Leadership, both personal and professional.

Good stuff. 

So what happens when a man comes forward and claims that the bureau violated his constitutional rights and subjected him to abuse?  Does a friendly FBI lawyer rush into court and say, “We checked this out and we really messed up.  We apologize and we hope you will accept monetary compensation?” 

Not exactly.

In fact, according to a report in today’s New York Times, the legal representatives of the federal government are of the view that even if all of the factual allegations are true, FBI officials are immune from legal liability.  Here is how the Times describes what happened in court:

In sharp questioning, a three-judge panel yesterday challenged arguments by federal officials seeking dismissal of a Pakistani man’s suit charging that because of his religion, race or national origin, he, like others, was held for months after 9/11 in abusive solitary confinement before being cleared of links to terrorism and deported.

In the mahogany and marble splendor of the Second Circuit Court of Appeals in Lower Manhattan, lawyers for former Attorney General John Ashcroft and other government officials argued that the officials were entitled to immunity from the lawsuit filed by the man, Javaid Iqbal, who had been known as “the cable guy” to his Long Island customers before he was swept into a federal detention center in Brooklyn as were hundreds of other Muslim immigrants in the New York area.

From the start of yesterday’s two-hour hearing, one of the judges, Jon O. Newman, showed particular impatience with the narrow legal defenses offered by the defendants in the case, which lawyers for Mr. Iqbal say seeks accountability for what they call serious constitutional violations by the nation’s highest law enforcement officials. It is the first case of its kind to reach the appellate level.

Judge Newman was especially scathing in questioning the lawyer for Dennis Hasty, formerly the warden of the Metropolitan Detention Center, where Mr. Iqbal and 184 others designated by the Federal Bureau of Investigation as “of high interest” were confined in a special unit where a 2003 Justice Department Inspector General’s report found widespread abuse.

Mr. Hasty’s lawyer, Michael L. Martinez, had argued in his brief that even if everything alleged in the lawsuit were true — as the appellate judges must assume at this stage of the litigation — Mr. Iqbal’s treatment “never approached the level of a due process violation.”

“Beatings?” Judge Newman asked. “Exposure to air-conditioning after standing in the rain? Needless strip-searches? Never approached a due process violation? If I thought your client really believed that, I’ve got to tell you, I’d be really troubled.”

Judge Robert D. Sack was equally acerbic in commenting on a defense assertion that the complaint failed to link Mr. Hasty personally to what was going on at the detention center.

“He is the warden,” Judge Sack said. “If he didn’t know what was going on — I’m boggled twice in one argument.”

Read the whole article.

Remember this: The federal government spends trillions every year, but it tells people like Mr. Iqbal to go jump in a lake.  This is our Department of Justice.  And don’t be fooled into thinking that it’s only an “isolated incident.”  Lawyers for the government are constantly seeking to further the “interests” of the government.  And those “interests” are not the same thing as justice.

IMHO, America could use more programming that cuts through the pretensions of officialdom.  Memo to Saturday Night Live: Do a skit where President Bush is giving his State of the Union address.  Here’s the scene: After promising more great-sounding programs, Bush points to the gallery where guys like Mr. Iqbal and Mr. Steven Howards are seated between FBI Director Robert Mueller and Attorney General Alberto Gonzales.  Bush declares that “These citizens have been whining about their rights … but by golly we’re at war!  And while I don’t question their patriotism, they did have the temerity to drag my people into court.  If there’s one thing I can’t stand, it’s complaining.  Mr. Speaker, Honored guests, my message to you tonite is simple: Anyone who disagrees with the policies of my administration is soft on murdering terrorists!  “Remove those guys from this hallowed building,” Bush yells.  Iqbal and Howards are then escorted from the Capitol building to the thundering applause of the Congress.

Would such a skit be too harsh?  Or not harsh enough?

The Extraterritorial Constitution: A Short Reading List

For blog readers who slogged through my brief discussion of the Military Commission Act, I should underscore that the post isn’t designed to take a position, but rather to give a necessarily very incomplete overview of the lay of relevant cases–although I am, as an initial matter, intuitively sympathetic to claims that due process requires an Article III court’s independent, do novo factual determination of citizenship status before alleged alien combatants held in Guantanamo are tried in military commissions.

One reason I hesitate to take a position is because the legal questions are deeply underarticulated in the cases and, frankly, in the Constitution itself.  One of the most under-articulated questions, aside from the scope of “constitutional habeas” and the extent of the suspension power, is where, and to whom, the Constitution–particularly the Bill of Rights–applies. 

Here’s what I’m reading right now as I think about the question.  I welcome suggestions of other articles:

1.  Sarah H. Cleveland, Powers Inherent in Sovereignty:  Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1 (2002).  This is a terrifically informative article that surveys (critically) the development of territoriality and citizenship limitations on the Constitution in cases ranging across the Indian Wars, the nineteenth century wars of colonial expansion, and the conflict over Mormonism and polygamy in the Utah Territory.  A great place to get one’s bearings in a sea of very exotic constitutional history.

2.  Gary Lawson, Territorial Government and the Limits of Formalism, 78 Calif. L. Rev. 853 (1990).  Here, Lawson argues, in his typically careful but ambitious fashion, that the proper “formalist vision of a constitutional territorial regime is vastly different from the regime that has been in place for the past two hundred years.”

3.   Gary Lawson & Guy Seidman, The Hobbesian Constitution:  Governing without Authority, 95 Nw. U.L. Rev. 581 (2001).  Here Lawson and Seidman examine the period of military government in California after the Mexican-American war, through the prism of the largely forgotten case (Cross v. Harrison), tracing, along the way, some of the “troubling” consequences of the Court’s disposition of that case “in subsequent legal and political events, most notably the …  Insular Cases,” which loom in the background of the debate over the detainees held in Guantanamo.