Topic: Law and Civil Liberties

Military Tribunals Plan B, or C, or D, or…

Yesterday, the Supreme Court ruled that the Bush administration’s military tribunals violated the law. On the news today, I heard someone say that the White House must now consider “Plan B.” 

Ahem — we passed Plan B some time ago.

Here’s a recap of what has transpired over the past four years:

PLAN A: Issue “military tribunals” order. (The resistance may be negligible.)

On November 13, 2001, President Bush quietly and matter-of-factly issued a “military order” to establish military tribunals for prisoners in the “war on terror.” The order stated that any prisoner designated by the president to be an “enemy combatant” would be imprisoned by the military. The order boldly declared that such prisoners could be tried before tribunals and that the prisoners “shall not be privileged to seek any remedy in any court of the United States.”

When the prisoners did get legal representation, Mr. Bush’s people told the defense lawyers that the military order precluded them from challenging the legality of the tribunals in court. After all, that’s what the order said. 

However, Plan A failed; legal challenges were filed anyway.

PLAN B: Make the argument to the judges. (They may buy it.)

The Bush administration argued in federal court that legal challenges to the tribunals must be dismissed immediately because the president’s order clearly said that prisoners may not “seek any remedy in any court.” 

But Plan B failed; the court was not persuaded.

PLAN C:  Appeal. (Keep arguing until some court buys it.)

A key aspect of the controversy reached the Supreme Court in Rasul v. Bush in 2004. Mr. Bush’s lawyers argued that U.S. courts lack jurisdiction to consider any legal challenges from prisoners held at Guantanamo Bay. 

Plan C failed; the Supreme Court was not persuaded.

PLAN D: Start the tribunals anyway, and handle any legal challenges later. (Perhaps by bringing strong cases against unsympathetic figures like Hamdan, the judicial system will acquiesce.)

Hamdan’s lawyer immediately challenged the legality of the tribunal. Mr. Bush’s lawyers responded by telling the court that Hamdan’s argument was without merit. The judge was not persuaded.

PLAN E: Appeal. (Keep arguing.)

At first, Plan E appeared to work. The appellate court overturned the district court and ruled that the tribunals were legal. But Hamdan’s lawyers refused to go along, and they appealed the case to the Supreme Court.

PLAN F: Persuade the Supreme Court not to hear Hamdan’s appeal. (This will secure the lower court victory.)

But the Supreme Court was not persuaded, and granted certiorari.

PLAN G: Persuade Congress to pass a law that will prevent the Supreme Court from hearing Hamdan’s appeal. (The legislative branch could check the judiciary.)

With time growing short before the High Court would hear Hamdan’s opening arguments, Congress passed the Detainee Treatment Act, ostensibly blocking the case. But the Supreme Court responded that it would hear arguments on the new law at the same time that it would hear arguments on the merits of the military tribunal controversy.

PLAN H: Argue again that the new law means the Court has no jurisdiction to hear Hamdan’s case, then argue that Hamdan’s objections should be heard on post-conviction appeal, and then argue that the tribunals are lawful and proper. (The plan could also be called “Broken Arrow.”)

But Plan H failed. The Supreme Court was unpersuaded by all three arguments and found the tribunals unlawful.

PLAN I is presently in the works, under the codename “Plan B.” 

When it arrives, scrutinize it.

Russ & John’s

From The Onion:

Citing a longstanding need to “restore honor and dignity to the American food-service industry,” Sens. John McCain (R-AZ) and Russ Feingold (D-WI) announced the public debut of their joint business venture Monday, a chain of integrity-themed restaurants which opened in 12 locations nationwide.

The new Russ & John’s chain, which the two senators funded privately via small financial donations of no more than $2,000 per investor, was founded on the idea that “today’s customers want quality food without all the lies and exaggerations that all too often accompany it,” according to McCain.

[…]

In an effort to avoid the “thinly veiled bribery” found in the majority of restaurants, Russ & John’s prohibit tips, disparaging them as “the worst kind of soft money,” according to the “Message From The Founders” on the restaurant’s menu. Instead, management will distribute company-issued “server grants,” intended to prevent undue influence on the waitstaff’s performance and ensure that every customer receives the same quality service.

McCain said the staff has been trained to deliver “straight talk” to customers.

“Our servers are not there to just tell you what you want to hear,” McCain said. “If a customer asks how the Zesty Three-Cheese Ranch Chicken Platter is, and if it’s not particularly good, they’re going to be up-front with you and say, ‘Frankly, the chicken is not that good.’”

“Same goes for the Lasagna Rollups, which, to be perfectly honest, are terrible,” McCain added.

The restaurants are apparently not doing well. They’re losing customers to “McConnell’s Pork Barrel,” the BBQ joint.

Hamdan v. Rumsfeld: A (Tentative) Guide for the Perplexed

Hamdan v. Rumsfeld, the recent Supreme Court case concerning the use of special military commissions to try Guantanamo prisoners, is a bear to boil down, accurately, in a single blog post. It touches on a perfect storm of arcane questions: customary international law, treaty interpretation, the common law of war, the Uniform Code of Military Justice, and jurisdiction-stripping.

The Court’s basic argument, as I understand it, is this: Congress can set the rules governing military commissions in most cases, including this one. Those rules, spelled out in the U.S. Code of Military Justice and corresponding treaties, specify as follows:

  • The commissions must conform as much as practical to the procedures that govern standing courts-martial (the standing tribunals in which U.S. serviceman can be tried) and ordinary civil criminal trials.
  • The Geneva Convention sets additional, overlapping requirements that trial of prisoners must occur in “regularly constituted” courts.

Those requirements have been violated. While the commissions depart from the standard procedures of courts-martial, the president hasn’t made a sufficient showing that consistency with the procedures of ordinary courts-martial isn’t a “practical” option, as U.S. law (specifically, Article 36 of the U.S. Code of Military Justice) requires. Because the president hasn’t made that showing, the Gitmo commissions also aren’t “regularly constituted” courts — and therefore trying persons before the commissions violates Common Article 3 of the Geneva Convention.

Got that? Good, because there are some more wrinkles:

The Court also holds that Common Article 3 of the Geneva Convention is part of the “law of war” that governs military commissions under U.S. law. That means that Common Article 3 of the Geneva Convention is a restraint on the procedures that govern the commissions. Furthermore, the Court holds that Common Article 3 of the Geneva Conventions applies to the armed conflict with al Qaeda. That suggests that the Geneva Convention is a restraint on the way we treat prisoners who are in U.S. custody, since Common Article 3 requires that they be treated humanely.

Finally, the Court lays out a safe harbor for the administration. If the administration (1) adopts procedures and oversight mechanisms that apply to courts-martial — particularly, standards and procedures that insulate the “presiding officer” (judge-like officer who presides over trials in commissions) from control by political appointees selected by the SecDef, and (2) conform standards governing admission of evidence to the rules that govern courts-martial, the commissions might be upheld. Also, if the administration offers record evidence that the procedures of courts-martial are impractical, it might also secure judicial approval of the commissions. Even if it doesn’t do this, the military can still hold Guantanamo detainees indefinitely without trial. The administration can also convince Congress to approve the procedures it prefers.

Here’s some of what the Court didn’t decide:

  1. Can Congress withdraw the Supreme Court’s authority to hear future challenges to the military commissions by persons who aren’t yet enmeshed in a prosecution before a commission? We don’t know. The Court holds only that Congress hasn’t withdrawn its jurisdiction over prosecutions already initiated.
  2. Is the Detainee Treatment Act — which removes Supreme Court jurisdiction to hear appeals by Guantanamo detainees based on U.S. statutes or the Constitution, gives lower courts discretion to deny appeal of non-capital cases in which defendants face short prison sentences, and limits appeal to judgments contained in a “final decision” of a military commission — valid as applied to persons who haven’t yet been charged? No answer.
  3. Does the president have inherent power to ignore Congress in cases of “controlling necessity” in, for example, the field of combat? The Court doesn’t clearly answer that question. Says the Court: “Whether Chief Justice Chase was correct in suggesting that the President may constitutionally convene military commissions ‘without the sanction of Congress’ in cases of ‘controlling necessity’ is a question this Court has not answered definitively, and need not answer today.” The Court specifies, in footnote 23, only that the President “may not disregard limitations that Congress has, in proper exercise of its own powers, placed on his powers.” The meaning of that all important qualification — “proper” — remains undetermined.
  4. Can the president establish commissions that depart from ordinary procedure of courts-martial? Yes — if he shows that the ordinary procedures are impractical. The Court holds only that the president hasn’t made such a showing — not that he can’t ever make such a showing. The Court also doesn’t settle when such a showing is substantial enough to deserve deference.
  5. Can civil courts hear claims raising violations of the Geneva Convention? This, too, remains unanswered. The majority, including Justice Kennedy, holds that only the Convention is enforceable under the Uniform Code of Military Justice as part of the “law or war” that governs military commissions. That ruling has no necessary application to civil courts. However, the opinion is quite suggestive. Both the majority and concurrence cite 18 U.S.C. § 2441, which Justice Kennedy stresses makes violation of Common Article 3 of the Geneva Convention a war crime punishable as a federal offense, enforceable in federal civil court. The majority holds, of course, that trying pesons under the president’s military commission order violates Common Article 3 of the Geneva Convention, suggesting that trial is a war crime within the meaning of 18 U.S.C. § 2441. Furthermore, the majority stresses that the Geneva Conventions “do extend liability for substantive war crimes to those who ‘orde[r]’ their commission” and “this Court has read the Fourth Hague Convention of 1907 to impose ‘command responsibility’ on military commanders for acts of their subordinates.” The Court’s emphasis on the liability that attaches to “orders” is significant, because trials in the military commissions are, of course, pursuant to a direct presidential order. Even so, its difficult to imagine circumstances in which charges under Section 2441 might actually be prosecuted.

[Ed. note: In the original post, the author mistakenly cited 18 U.S.C. § 2241.  The correct citation is 18 U.S.C. § 2441, updated in the text above.]

Competitive Federalism Can Reform Health Insurance, Med Mal

In a previous post, I suggested that my brother and his family could save thousands on their health insurance if they moved in with his former college roommate’s family in Pennsylvania, rather than settle and buy coverage in New Jersey.

I thought that former roommate’s wife (Kristin, another college friend) would shoot me virtual daggers. Instead, she wrote:

Wow — guess we’re pretty lucky! Although, we can’t seem to keep our doctors here in PA due to high malpractice insurance costs. So maybe the best deal for everyone would be to buy their insurance in PA, then drive to NJ for their doctor’s appointments.

That’s one way to get around unwanted costs imposed by a state’s medical malpractice laws. In our book Healthy Competition, Mike Tanner and I suggest another: Let patients, doctors, hospitals, and insurers agree up front on the level of malpractice protection that patients receive.

 

You like caps on non-economic damages? Sign yourself right up. You want more malpractice protection than that? It might cost you more, but the choice is yours. The contracts that providers are willing to write could even tell patients something about the quality of care.

Patients can already choose a different level of malpractice protection by traveling out-of-state or out-of-country for treatment. Why not let them do so without leaving home?

Loneliness is Such a Drag

I knew, just knew, there had to be a public policy proposal somewhere in this Sebastian Mallaby column about some new data from the American Sociological Review on loneliness in America. And sure enough, it shows up right at the end of the piece:

But there’s one antidote to loneliness that is at least intriguing. In an experiment in Austin, Princeton’s Daniel Kahneman found that commuting — generally alone, and generally by car — is rated the least enjoyable daily activity, but commuting by car pool is reasonably pleasant. Measures that promote car pooling could make Americans less isolated and healthier.

There’s a new frontier in nanny statism. It’s not enough that government at all levels has moved beyond the prosaic tasks of protecting life, liberty, and property toward promoting clean living through sin taxes, fat taxes, and the like. Now it’s going to lean in real close and ask, “Are you happy, buddy? I mean really happy?” — and regulate you further in the hopes that you’ll make some new friends.

Alito vs. Roberts

I’m wading into the decisions this week somewhat belatedly, as I have spent the last two days, like many homeowners in the D.C. metro area, salvaging my flooded basement. 

John notes below some of the bad news leaking between the lines of Justice Breyer’s opinion in Randall v. Sorrell:  namely, Justice Breyer’s paean to the precedential status of Buckley v. Valeo, the fount of the modern First Amendment framework governing campaign finance regulation.

I’d make two addendums to John’s comments:  First, I’m less concerned than he is about Justice Alito’s vote in the case.  It’s true that Alito, like the Chief Justice and unlike Justices Kennedy, Thomas, and Scalia, joined the bulk of the Breyer opinion, including the application of Buckley to contribution limits.  John’s reading–that Alito is a foe of the First Amendment in the realm of campaign finance–may well prove to be right.  But not necessarily.   Note that Alito refuses to join the portions of Breyer’s opinion that specifically reaffirm Buckley as a matter of stare decisis, based on the fact that the parties didn’t brief Buckley’s continued validity in any serious, meaningful way.  (See page 2 of Alito’s concurrence in the Court’s attached slip opinion:  ”[O]nly once in 99 pages of briefing from respondents do the words ‘stare decisis’ appear … . Such an incomplete presentation is reason enough to refuse respondents’ invitation to reexamine Buckley.”).  That caveat gives him more than enough room to join Kennedy, Thomas, and Scalia in a later case, where the validity of Buckley–applied to either expenditures or contributions–is squarely presented on the briefs.  Indeed, Alito’s concurrence is an invitation to lawyers to attack Buckley in a future case.  He’s saying, “When you’re ready to argue, I’m ready to listen.”  This is a rather cautious approach to judging, but one that is perfectly compatible with overruling Buckley in toto in a later case.

Roberts, on the other hand, is a different matter.  He joins the portions of Breyer’s opinion that state Buckley is good law as a matter of stare decisis–the only other justice in the majority to do so–committing himself, it seems, to the kind of case-by-case “narrow tailoring” scrutiny of state contribution limits that Breyer envisions.   This is more tea leaf evidence of Roberts’ minimalist approach to judging.  While Breyer favors this approach based on his belief that the First Amendment should be used to further the “active liberty” of democratic participation in government, my guess is that Roberts is committed to the same framework based on a simple commitment to the values of precedent, fueled by his belief that courts should do as little as possible to displace democratic debate in a “complex” regulatory arena.  (The irony, of course, is that the complexity of campaign finance law is a creation of the diffident, muddled approach to First Amendment restraints on regulation of campaign expenditures and contributions pioneered by Buckley). 

The contrast suggests what may turn out to be a subtle but very important difference between Alito and Roberts.   Alito and Roberts have a cautious, conservative with a small “c” streak.  But Alito, I’m guessing, is cautious as a pragmatic, belt-and-suspenders matter, because he wants to make sure that the Court’s big decisions have the benefit of the most considered legal arguments available in their favor.  Thus, he doesn’t want to shift the legal landscape until he has the benefit of lots and lots of smart lawyerly briefs giving him a menu of the widest possible top-shelf legal thinking in favor of change.  Roberts, by contrast, is cautious out of a theoretical commitment to judicial caution for its own sake.  He simply doesn’t like it when the Court makes “big decisions” that reshape the legal landscape, especially in areas where politicians are heavily invested in the outcome.  The latter approach–if this indeed characterizes the Chief, which the evidence increasingly suggests–is far more troubling over the long run.

Breyer’s Gambit

In the Supreme Court’s ruling in Randall v. Sorrell, six justices agreed that Vermont’s campaign spending and contribution limits violated the First Amendment. That majority split, however, on what made the Vermont law invalid, resulting in what was in essence a plurality ruling.  Justices Breyer, Roberts and Alito affirmed Buckley v. Valeo’s finding that spending limits violated the First Amendment. In striking down Vermont’s contribution limits, the plurality sought to break new ground.

In the past, the Supreme Court has said contribution limits should not be so low as to prevent “effective advocacy.” In fact, the “effective advocacy” standard did not constrain legislatures; the Court approved contribution limits deferring to the legislature’s “expertise” in this matter.

Vermont’s contribution limits, however, went too far, according to Justice Breyer, because they harmed “the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders, thereby reducing democratic accountability.”

For Breyer, the First Amendment is not a constraint on state power expressed as “Congress shall make no law.” Rather, it is a means to realize the value of democratic accountability. That value requires that challengers be able to mount effective campaigns against incumbents. The government can prevent such effective campaigning through contribution limits. Hence, Vermont’s limits must be struck down.

Of course, the Constitution does not demand that Congress advance democratic accountability. But the language of the Constitution has not constrained the Court for some time. Five members of a future Court majority might well explicitly import “democratic accountability” into the First Amendment as a way of enlarging, rather than constraining, state power.

Citing Breyer’s opinion, a future Court might require taxpayers to fund campaigns as way to enable effective challenges against incumbents, thereby increasing democratic accountability. It might also cite democratic accountability as grounds for imposing draconian restrictions on groups that have “undue influence.”

People concerned about free speech welcomed the Randall v. Sorrell decision, but the plurality sought to affirm “democratic accountability” and not the idea of limited government spelled out in the First Amendment. This is not surprising. Justice Breyer is no friend of free speech in campaign finance. That Justices Roberts and Alito signed on to his opinion cannot be a good sign for the future of free speech.