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:
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.
Read the rest of this post »
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.
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.
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.
In a closely watched case, a federal judge has finally called the Justice Department to account for its high‐handed tactics against business firms and businesspeople that are under investigation.
Prosecutors are increasingly using the threat of indictment to pressure firms into discharging certain employees and reneging on pre‐existing company policies that would reimburse employees for attorneys’ fees associated with the business. When a CEO is convinced that some of his employees have engaged in criminal conduct, his decision is easy. But if the CEO is unsure or is convinced of their innocence, shouldn’t he maintain a presumption of innocence and help the employees in question by honoring the company policy? And what if prosecutors step up the pressure by leaking stories to press about the company’s “ongoing failure to cooperate with investigators”?
Here’s an excerpt from today’s NYT story:
In a strongly worded opinion, Judge Kaplan agreed with the defendants’ contention that KPMG, which was under criminal investigation, was improperly pressured to cut their legal fees.
KPMG refused to pay the defendants’ legal expenses, he wrote “because the government held the proverbial gun to its head.”
The government, he said, “has let its zeal get in the way of its judgment.”
In his ruling, the judge wrote that during negotiations with KPMG, the government violated the employees’ Fifth Amendment right to a fundamentally fair trial and their Sixth Amendment right to a lawyer.
An employer’s payment of legal fees is “very much part of American life,” he wrote, and applies to “bus drivers sued for accidents, cops sued for allegedly wrongful arrests, nurses named in malpractice cases, news reporters sued in libel cases and corporate chieftains embroiled in securities litigation.”
The right to legal fees is “as much a part of the bargain between employer and employee as salary or wages,” he wrote.
The judge also dressed down Manhattan prosecutors for being “economical with the truth” about pressuring KPMG to cut off the fees.
In his new book, Trapped, John Hasnas critiques the tactics of federal prosecutors because they so often put CEOs in catch‐22 situations in which they must either act illegally or unethically. To listen to a lecture by the author, go here. For still more background, go here.
An emailer forwarded me a copy of an article in The New Republic by Ezekiel J. Emanuel, “a bioethicist and oncologist.” Emanuel argues against a recent DC Circuit Court ruling on a suit brought by a group called the Abigail Alliance. The ruling gives dying patients access to experimental drugs after they have passed some minimum safety tests but before they have been proven effective.
It would make it much harder to get people to enroll in research studies and get the data necessary to show whether a drug really was effective or not. Why should people enroll in a randomized, controlled study – where they could be put in the group receiving only conventional treatment – when they could just get their insurance to pay for whatever drug they thought was best?
…Expanded access would also rob the rest of us who may never need a cancer treatment. Individuals and society in general are struggling to pay the nation’s $150 billion‐plus drug bill. And that is for medications proven to work. Now add the requirement that insurance companies pay for drugs we don’t know work, and you have a formula for financial disaster. Costs would skyrocket as we pay billions through our insurance premiums and Medicare taxes for worthless drugs.
I agree that it would be wrong to force insurance companies to cover unproven medications – otherwise, there would be no reason to stop individuals from choosing their preferred method of treatment – but the relevant alternative to these patients is not participating in randomized trials. The relevant alternative is death.
Dr. Emanuel describes his approach in a similar case:
Getting Virginia another experimental drug was not going to stop her breast cancer from growing and eventually killing her. I gently explained to her that investing all her energy chasing after another unproven drug was not going to help her and her family. Virginia was disappointed and refused to consider hospice, because she saw it as giving up. Holding her hand, I talked to her about spending time with her husband and daughters and making a videotape for her future grandchildren. We also discussed getting visiting nurses to come to her house. I saw her once more in my office. She was more accepting and found at least some of the activities meaningful. Because of her failing liver, less than three months later, she lapsed into a coma and died with her family present.
If I decide that I want to fight rather than go down graciously with a terminal illness, I will look for a doctor who is not a bioethicist. I found this article so chilling that it leaves me nearly speechless.