A Stitch in Haste

Yes, I know, you've been patiently waiting for me to blog about the situation regarding the President's proposed vacating rewriting "modernization" of the Geneva Conventions regarding torture, "torture-lite" [sic!] and other euphemisms.

Well, what would you have me say? If the "compromise" bill is enacted into law, then the United States — the "Shining City on a Hill" — will be the first non-dictatorial nation to knowingly withdraw from the single best thing the world, as a world, ever did...

...because we must "defend the American way of life"...

...like habeas corpus, or not...

...like having courts, rather than presidents, interpret laws and treaties, or not...

...like prosecuting war criminals, or not...

...like allowing accused persons to see the evidence against them, or not...

...like considering, or at least acknowledging, how our allies and other free nations address such issues, or not...

If you want to see the "compromise" bill, then you can find it here (PDF - 94 pages). If you want the highlights, then you can use the New York Times' convenient flow-chart. If you seek deep legal analysis, then Balkinization is your source: start here, and just keep reading all the posts since.

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A person I have, in other contexts, very little patience with, economist and perennial central planning advocate Robert H. Frank, once wrote a paper, recently turned into a book, called "What Price the Moral High Ground?" In it, he shows, via game theory and behavioral economics, what most people already understand at some level: the concept of "doing well by doing good." See also, Matthew 16:26.

In this context, in our desperate quest to defend the Moral High Ground, upon which is built the Shining City on a Hill, is there no one — George W. Bush, John McCain, Michael V. Hayden, anyone — who will ask, honestly, "What price the moral high ground?"

This price — the end of the Geneva Convention (or at least of its legitimacy in this country) — is too high. How can anyone not see that?

May history forgive us.

It's official:

A stark assessment of terrorism trends by American intelligence agencies has found that the American invasion and occupation of Iraq has helped spawn a new generation of Islamic radicalism and that the overall terrorist threat has grown since the Sept. 11 attacks.

The classified National Intelligence Estimate attributes a more direct role to the Iraq war in fueling radicalism than that presented either in recent White House documents or in a report released Wednesday by the House Intelligence Committee[.]
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Titled "Trends in Global Terrorism: Implications for the United States," it asserts that Islamic radicalism, rather than being in retreat, has metastasized and spread across the globe.

Well that's just lovely.

So the Iraq War, which despite all protestations by the White House, had and has absolutely nothing to do with the War on Terror, has cost us:

--our credibility, and our goodwill, around the world

--$317 billion (and counting)

--2,700 American lives (and counting)

...and has hurt us in the War on Terror.

The War on Terror, meanwhile, has cost us:

--our minds (via the Administration's absurd theories of executive power)

--our hearts (via the eradication of our civil liberties)

--our souls (if we continue to engage in "torture-lite" and essentially withdraw from the Geneva Convention).

How could one President, one Administration and one party do so much damage in such a short time?

Madness. Sheer madness.

POST SCRIPT: I suppose the Bush apologists will now insist that the New York Times was "traitorous" for disclosing the contents of the classified report. If this be treason...

UPDATE: Regarding the White House's response to the stories, keep the following in mind:

--The phrase "not representative of the complete document" is not synonymous with "incorrect" or even with "taken out of context." In fact, "not representative of the complete document" means "indeed an accurate part of the document."

--Similarly, the phrases "only a small handful" and "a fraction of judgments" do not mean "wrong" or "misreported." Quite the opposite.

--Contrary to the rantings of the ever-unstable John Hinderaker, the National Intelligence Estimate is not produced solely by the CIA (which, we are now told, has been waging a "war against the Bush administration" — good grief). No, the NIE is a survey of 16 major intelligence agencies. And they, as a group, came to this conclusion.

Here's a quick summary of the Military Commissions Bill, a/k/a the Alien and Sedition Act of 2006:

Included in the bill ... are unique rules that bar terrorism suspects from challenging their detention or treatment through traditional habeas corpus petitions. They allow prosecutors, under certain conditions, to use evidence collected through hearsay or coercion to seek criminal convictions.

The bill rejects the right to a speedy trial and limits the traditional right to self-representation by requiring that defendants accept military defense attorneys. Panels of military officers need not reach unanimous agreement to win convictions, except in death penalty cases, and appeals must go through a second military panel before reaching a federal civilian court.

By writing into law for the first time the definition of an "unlawful enemy combatant," the bill empowers the executive branch to detain indefinitely anyone it determines to have "purposefully and materially" supported anti-U.S. hostilities. Only foreign nationals among those detainees can be tried by the military commissions, as they are known, and sentenced to decades in jail or put to death.
...
Under the new procedures, trials are supposed to be open, but can be closed to protect the security of individuals or information expected to harm national security.

A few hasty stitches:

--"Detain indefinitely anyone" is generally thought to include American citizens on American soil. And although only foreign nationals can be tried by the military commissions, keep in mind that there need never be a trial at all. It is conceivable, if unlikely, that American citizens on American soil could start "disappearing" they way they did in the Soviet Union (a/k/a "The Evil Empire").

--If you are a textualist (like me), then the bill's revocation of habeas corpus is patently unconstitutional:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.

--Do the Members of Congree even understand what they have done...

Jay Rockefeller ... complained that the White House has concealed all information about the program and that the Intelligence Committee members (including him) know nothing about this interrogation program. ... He then proceeded to vote for the underlying bill anyway.

...and do they care?

During the debate on his amendment, Arlen Specter said that the bill sends us back 900 years because it denies habeas corpus protections. Then he voted for it.

Now it's up to the "activist judges" to restore sanity.

--In case you think you can still reason with the apologists of this Administration and this bill, then try to imagine reasoning with someone who gives this description of Guantanamo Bay:

They were being treated very lavishly, as you know, to Ramadan, and we [ate] the meal that ... when I was down there, that the detainees eat, and very proudly, we were told, as they served up this fantastic meal[.]
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These guys have fantastic facilities, certainly better facilities than anyone in any previous war has ever enjoyed.

That's Bush-worshipper Mark Steyn, who also notes, in passing, that some of the detainees have been there for four and a half years. "Fantastic" indeed.

Stay tuned...

Remember the furor when California Governor Arnold Schwarzenegger vetoed a duly-passed same-sex marriage bill on the grounds that the courts should resolve such issues? The hypocrisy of a Republican calling for courts, rather than "duly elected representatives," to decide "the marriage question" was overlooked by no one — except of course the Republicans.

Apologists for Schwarzenegger wrote the incident off as the bumblings of a populist buffoon (which, of course, Schwarzenegger is — point conceded).

So what's Arlen Specter's excuse?

Judiciary Committee Chairman Arlen Specter (R-Pa.) courageously championed an amendment to restore the judicial oversight that Mr. Bush opposed. When his amendment failed on a 51 to 48 vote, the senator said he would vote against the bill, calling it "patently unconstitutional on its face." Then he voted for it. The bill, he explained, had good points, and the courts "will clean it up."

The judicial oversight referred to is of course the writ of habeas corpus, which as I explained in this post simply cannot be suspended under the current War on Terror, which is unarguably not a "rebellion or invasion."

Is this the grand moral stance of the Republican leadership in Congress these days? Who cares whether it's unconstitutional? The courts (i.e., those "activist judges") will "clean it up." This is how decisions are made in "the world's greatest deliberative body"?

Madness. Sheer madness.

More thoughts from LLP.

Query: Does the Constitution apply to citizens, non-citizens, or both?

Answer: Actually, it's a trick question: The Constitution applies to the government, not to the people it governs.

A point hopelessly lost on NRO commentator Andrew C. McCarthy:

Congress cannot "suspend" habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans[.]

This is, of course, utter nonsense. Indeed, it is about as flunk-the-final a statement as one could make about constitutional law.

Article I grants no rights, to citizens or anyone else. Article I instead limits Congress -- which is not the same as "conferring rights."

Article I achieves this limitation of Congress in two ways.

1. By "clearly"* enumerating the powers Congress has. If Article I does not grant Congress a specific power, then Congress does not have it.

2. By "clearly"* denying Congress certain unconditionally unjust powers: bills of attainder, ex post facto laws, direct taxes, titles of nobility -- oh, and suspension of habeas corpus when not in a state of rebellion or invasion.

The words "citizen," "alien" and "terrorist" are wholly irrelevant to either prong. There is, contrary to McCarthy, no "right against suspension of habeas corpus" to be rationed to citizens over non-citizens, or to be denied (alleged) terrorists. There are no rights at all in Article I. Article I is not about "citizens," "aliens" or "terrorists." Article I is about Congress, and about that which Congress may and may not do. To assert, as McCarthy does, that Article I (as opposed to, say, the Fifth Amendment) "does not apply to terrorists" is to reveal a fundamental and embarrassing ignorance of the basic structure of the Constitution itself.

In any case, as I blogged previously: No amount of sophistry -- even McCarthy's retarded version of it -- can change the fact that we are not now in a state of "rebellion or invasion." This is not a difficult concept, no matter how desperately McCarthy or any Bush apologist wants it to be.

And -- would it do any good to say it again? -- not all those who will be denied habeas review under the Alien and Sedition Act Military Commissions Act of 2006 will turn out to be terrorists. At least a few innocent people have already been detained in the War on Terror, including at Guantanamo, and more undoubtedly will be after the bill is signed into law -- potentially including American citizens on American soil. And -- this cannot be overemphasized -- the interplay of the Commissions Act and the Supreme Court's War-on-Terror jurisprudence will likely result in the guilty getting more justice than the innocent. Only once the government has a "slam dunk" case against a detainee will they proceed to a military commission or civilian trial. The rest, for whom the government's case is flimsy -- those precisely more likely to be innocent -- will languish indefinitely. And, again, this can potentially include American citizens detained on American soil.

Madness. Sheer madness.

(Via How Appealing.)

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*Okay, maybe not so clearly, especially to those who do not wish for them to be clear. But all efforts to cure blindness are wasted on a man who merely refuses to see.

You are no doubt aware that today was D-Day for President Bush and his Military Commissions Act, which among other things suspends habeas corpus in flagrant violation of the plain text of Article I of the Constitution.

The President is confident and unapologetic:

Over the past few months the debate over this bill has been heated, and the questions raised can seem complex. Yet, with the distance of history, the questions will be narrowed and few: Did this generation of Americans take the threat seriously, and did we do what it takes to defeat that threat?

What an astonishingly ignorant thing to say.

The "distance of history"? How kind has history been to hasty and reckless legislation passed during time of war in the name of defending "the American way"?

Did the distance of history vindicate the internment of Japanese-American citizens or the horrendous decision in Korematsu v. U.S., 323 U.S. 214 (1944)? Or did history side against those who trampled upon civil liberties?

Did the distance of history vindicate President Truman's attempted seizure of steel mills during the Korean War? Or did it lead to the near-universal recognition of the doctrine, reflected in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), that the president is simply not a dictator in time of war?

Did the distance of history determine that the Sedition Act of 1918 was in fact a wise piece of legislation, or a regrettable lack of good judgment by those who passed it?

Did the distance of history casually shrug off President Lincoln's patently illegal suspension of habeas corpus during the Civil War, or relegate it to an embarrassing black mark on Lincoln's career?

If there is one thing that "the distance of history" teaches us, it's that sacrificing civil liberties in the name of "winning the war" is a decision that we invariably come to regret. The "distance of history" teaches us that we must never get too distant from the moral high ground.

I too am confident about the distance of history. I am confident that it will prove this Administration, its congressional enablers and its codependent apologists not just wrong, but wrong in epic proportions.

More thoughts at Rolling Doughnut.

"It cannot be presumed that any clause in the constitution is intended to be without effect; and therefore such construction is inadmissible, unless the words require it."
--Marbury v. Madison, 5 U.S. 137 (1803)

The name most associated with the Bush Administration's expansive view of executive power in time of war is Berkeley professor John Yoo.

Yoo is back again with a gloating op-ed in today's Wall Street Journal / OpinionJournal that sounds like a five-year old snickering to a sibling, "Ha-ha, you got grounded!"

In the struggle for power between the three branches of government, it is not the presidency that "won." Instead, it is the judiciary that lost.

This is, of course, utter nonsense.

Here is the reality-based version of what happened regarding military tribunals and limitless detention pursuant to the War on Terror: The President was engaging in A (detention with no due process), without legislative authorization or judicial sanction. The Supreme Court, in Hamdan v. Rumsfeld, No. 05-184 (June 29, 2006), said no, you can't do A, but you could do B (detention with some due process), if Congress authorized it.

The President went, hat in hand, tail between legs and precisely as the Supreme Court said he must, to Congress — which, recall, is controlled by a mixture of blind Bush acolytes (e.g., Frist, Allen) and spineless lapdogs (e.g., Specter, McCain) — and asked, pretty please, for B.

Congress, after some vacuous grandstanding, gave him B — and C (suspension of habeas corpus), which had not been addressed by the Supreme Court and which all objective observers (and even some Bush apologists) insist is itself unconstitutional, will certainly be challenged in court and very likely struck down.

This is what Yoo calls "a direct reversal of Hamdan" (which, he insists, was a "power grab" by the Court). Again, Hamdan said the President must go to Congress; the President went to Congress. If that's a "direct reversal," then I want my law school tuition back, because I apparently didn't learn anything there.

More:

The Constitution gives Congress the authority to determine the jurisdiction of federal courts in peacetime, and also declares that habeas corpus can be suspended "in Cases of Rebellion or Invasion" when "the public Safety may require it." Congress's power is even greater when it is correcting the justices' errors.

I simply cannot fathom what he means by that last sentence — has Congress reversed the Court's single worst error of recent memory — Kelo v. New London, No. 04-108 (2005)? Could it reverse Kelo even if it wanted to?

As for the habeas corpus question: I've seen before this absurd attempt to blank-out Article I, Section 9's express limitation on Congress' power to suspend habeas by leap-frogging instead to the power to establish lower federal courts (Article I, Section 8, Clause 9 / Article III, Section 1) and to grant exceptions to appellate jurisdiction (Article III, Section 2). This twisted logic ignores the simple truth that a writ is not "jurisdiction," and therefore cannot be "excepted" under the Exceptions Clause. It is entirely inapposite. Moreover, as I've blogged previously, no amount of sophistry can change the fact that the War on Terror is not a "case of rebellion or invasion."

It's a bit scary to think that a law professor needs to be reminded of the most basic jurisprudential principle in American law. One that I learned, not in law school, but in high school:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

That was John Marshall. This is John Yoo:

Led by John Paul Stevens and abetted by Anthony Kennedy, the majority ignored or creatively misread the court's World War II precedents. The approach catered to the legal academy, whose tastes run to swashbuckling assertions of judicial supremacy and radical innovations, rather than hewing to wise but boring precedents.

When it comes to preserving basic civil liberties, fealty to judicial review and a commitment to the separation of powers, I'll take swashbuckling any day.

I will never — never — be more afraid of judges than of politicians. And I will always — always — be afraid of those who are.

More thoughts from the New York Times, Balkinization.

To review: In Hamdan v. Rumsfeld, No. 05-184 (June 29, 2006), the Supreme Court told the Bush Administration that it could not try terrorism suspects via military tribunals without congressional authorization. The Military Commissions Act granted the president essentially what he asked for. Oh, and also suspended habeas corpus in seemingly direct violation of Article I, Section 9 of the Constitution.

Many if not most legal scholars, and I, insist that this suspension is unconstitutional.

The process of finding out whether we're right has begun:

A federal judge Friday set the stage for the next push by the Bush administration to get all the lawsuits by detainees at Guantanamo Bay thrown out of U.S. courts.

U.S. District Judge James Robertson laid out a five-week schedule for the Justice Department and lawyers for Salim Ahmed Hamdan to file written arguments in the detainee's challenge to his confinement.
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Ten days ago, the Justice Department filed a copy of the new law with the court in Hamdan's case. Robertson said in a one-page order the Justice Department filing "is deemed to be a motion to dismiss" Hamdan's case.

One way or the other, this motion to dismiss (i.e., because habeas corpus has been questionably suspended) will end up right back at the Supreme Court. Stay tuned.

More thoughts at SCOTUSblog.

Am I reading this correctly?

Congress's removal of jurisdiction from the federal courts was not a suspension of habeas corpus within the meaning of the Suspension Clause (or, to the extent that it was, it was plainly unconstitutional, in the absence of rebellion or invasion), but Hamdan's statutory access to the writ is blocked by the jurisdiction-stripping language of the Military Commissions Act, and he has no constitutional entitlement to habeas corpus.

So concludes Judge James Robertson in upholding the Military Commissions Act against a challenge by Salim Ahmed Hamdan.

So the good news is that a federal judge has indeed issued dicta that Congress cannot suspend habeas corpus incidental to the War on Terror — which is neither "rebellion" nor "invasion" as required by Article 1, Section 9.*

The bad news is that the same judge has ruled that "jurisdiction stripping" is somehow not a violation of due process in and of itself, so the whole "unconstitutional suspension of habeas corpus" problem is irrelevant.

The unconstitutional suspension of habeas corpus is irrelevant.

Madness. Sheer madness.

*As Judge Robertson notes:

Neither rebellion nor invasion was occurring at the time the MCA was enacted. Indeed, Congress itself must not have thought that it was "suspending" the writ with the enactment of the MCA, since it made no findings of the predicate conditions, as it did when it approved Lincoln's suspension in the Civil War and each of the subsequent suspensions in Mississippi, the Phillippines [sic], and Hawaii. Thus, the Great Writ has survived the Military Commissions Act. If and to the extent that the MCA operates to make the writ unavailable to a person who is constitutionally entitled to it, it must be unconstitutional.

Arlen Specter begs to differ. So much for his miserable "the courts will clean it up" blather.

The case is Hamdan v. Rumsfeld (Hamdan II?), No. 04-1519 (D.D.C. December 13, 2006) (PDF - 22 pages).

More thoughts from SCOTUSblog, Unclaimed Territory.

Consider the following hypothetical:

Father tells Child, "You will not get dessert until you clean your room." Child cleans room. Child then approaches Mother and says, "I have cleaned my room -- may I now have dessert?" Mother agrees and provides dessert, and one dollar, to Child.

Would it be appropriate to describe this mini-drama thus: "Mother delivered a sharp rebuke to Father, who had attempted to to take control over eating policy in the family?"

No? Then what the heck is perpetual Bush apologist John Yoo talking about?

The Military Commissions Act represents the agreement of the president and Congress, the political branches charged by our Constitution to conduct war, on anti-terrorism policies ranging from detention to interrogation. While the act fulfills Congress' oversight role, it explicitly acknowledges that decisions about how to conduct war are reserved for the commander in chief.

Just as importantly, the act was a sharp rebuke to the U.S. Supreme Court, which had attempted to take control over anti-terrorism policy in Hamdan v. Rumsfeld (2006).

Same Yoo, different day. He is saying nothing that he hasn't said -- and that I haven't rebutted -- previously:

Here is the reality-based version of what happened regarding military tribunals and limitless detention pursuant to the War on Terror: The President was engaging in A (detention with no due process), without legislative authorization or judicial sanction. The Supreme Court, in Hamdan v. Rumsfeld, No. 05-184 (June 29, 2006), said no, you can't do A, but you could do B (detention with some due process), if Congress authorized it.

The President went, hat in hand, tail between legs and precisely as the Supreme Court said he must, to Congress -- which, recall, [was] controlled by a mixture of blind Bush acolytes (e.g., Frist, Allen) and spineless lapdogs (e.g., Specter, McCain) -- and asked, pretty please, for B.

Congress, after some vacuous grandstanding, gave him B -- and C (suspension of habeas corpus), which had not been addressed by the Supreme Court and which all objective observers (and even some Bush apologists) insist is itself unconstitutional, will certainly be challenged in court and very likely struck down.

This is what Yoo calls "a direct reversal of Hamdan" (which, he insists, was a "power grab" by the Court). Again, Hamdan said the President must go to Congress; the President went to Congress. If that's a "direct reversal," then I want my law school tuition back, because I apparently didn't learn anything there.

More woo from Yoo:

Thoughtful critics point out that because the enemy fights covertly, the risk of detaining the innocent is great. But so is the risk of releasing the dangerous, and perhaps that risk is more of a threat to our national security.

So much for the classic saying, "Better that ten guilty persons escape than that one innocent suffer."* Apparently "classic" is now synonymous with "obsolete."

The terrorists seek to destroy our way of life. With the help of collaborators like John Yoo, they are succeeding.

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*William Blackstone, Commentaries, Book IV, c. 27 (1765-1769).

I can't do justice to the abominable 2-1 decision by the Circuit Court of Appeals for the District of Columbia holding that the suspension of habeas corpus in the context of non-citizen "enemy combatants" at Guantanamo Bay, Cuba is constitutional.

For what it's worth, here are my hasty stitches:

--To claim that Guantanamo, with all its military accoutrements — its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. — is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind. (UPDATE: Excellent discussion of this topic at Balkinization.)

--The judges commit a fundamental, and fatal, misreading of precedent:

The Supreme Court has stated the Suspension Clause protects the writ "as it existed in 1789," when the first Judiciary Act created the federal courts and granted jurisdiction to issue writs of habeas corpus. [INS v. St. Cyr, 533 U.S. 289 (2001)]

Marty Lederman informs us that this claim is inarguably incorrect:

The Court held in St. Cyr that the Constitution protects the writ as it existed in 1789 "at the absolute minimum." ... The Court has not resolved this question, and thus it was a mistake for the D.C. Circuit not to reach it, even if the 1789 writ would not have extended to these alien detainees.

Read Lederman's entire post.

--If it's permissible to base our recognition of habeas corpus — an Article I provision — on what that right purportedly meant in 1789, then why would it not also be permissible to base our recognition of another Article I provision — the War Power — on what it meant in 1789? There was no notion of a "War on Terror" in 1789. There was no notion of "enemy combatant" in 1789. If we're going to freeze, forever more, "habeas corpus" at its 1789 meaning, then must we not also freeze, forever more, "war" at its 1789 meaning? You either believe in "original meaning" construction or you don't. Unless you're a hypocrite.

--Finally, where is that decrepit moron Arlen Specter now? Where is his outrage? Where is his bill re-establishing habeas in all government detentions? The dangerous, destructive fool...

--The detainees have announced plans to apply for expedited review by the Supreme Court. Expedited or not, the Court is virtually assured to hear the appeal, which would be one of the most critical separation of powers cases in American history. Stay tuned.

The case is Boumediene v. Bush, 05-5062 (D.C. Cir., Feb. 20, 2007) (PDF - 59 pages).

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
--Article I, Section 1

The executive Power shall be vested in a President of the United States of America.
--Article II, Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
--Article III, Section 1

Article II, Section 1 ... contrasts with the specific enumeration of the powers -- those "herein" -- granted to Congress in Article I.
--Memorandum for William J. Haynes II (a/k/a the "Torture Memo")

It has long been noted by the sanity-based legal community that John Yoo's "unitary executive" theory of Article II's war power is facially absurd for the simple reason that there are clear references to the military in the enumerated legislative powers of Article I, Section 8. Put succinctly, the president cannot be the commander-in-chief of an army if Congress doesn't give him that army in the first place.

In John Yoo's now-declassified "torture memo," he asserts the following:

In wartime, it is for the president alone to decide what methods to use to best prevail against the enemy. (Page 5)

Really? Consider the following hypotheticals in a pre- or non-9/11 scenario:

1. Congress, as part of a routine defense appropriation, authorizes the funding, commissioning and deployment of a fleet of naval destroyers for the specific and sole purpose of patrolling the Gulf of Mexico to protect U.S. oil rigs in that region. The legislation is unambiguous: the Navy ships are only for the Gulf of Mexico and only there to defend oil platforms. Can the president, under a purported "unitary and plenary" commander-in-chief power, order those destroyers to be redeployed to drug interdiction without a revised Congressional authorization? How would that not be an incursion upon Congress' "unitary" appropriation origination function?

2. Could the president then constitutionally defy an explicit bill (assume a veto and override) reiterating the original legislation after the redeployment? How would that not be an incursion upon Congress' "unitary" veto override function?

3. Now assume that a non-nation-state Islamic fundamentalist terrorist organization, in a coordinated attack, destroys the Golden Gate and George Washington Bridges. Could the president, without Congressional authorization, permanently redeploy those destroyers to New York and San Francisco, despite the original, unambiguous dictate by Congress that the destroyers not leave the Gulf of Mexico? (Ignore temporary redeployments under the War Powers Act.)

4. The nation subsequently learns that the Islamic terrorist organization operates mainly from bases in Hypothestan. Subsequent to either a traditional declaration of war or some analogue to the AUMF, President Sally Kern deploys ground forces to Hypothestan to fight the Islamic terrorists -- and gays (who are, recall, a greater threat to America than Islamic terrorists). Congress did not authorize the use of military force against gays, and indeed expressly forbids it in subsequent legislation comparable to Hypothetical #2. Can Commander-in-Chief Kern disregard the "incursion" of Congress upon her "unitary and plenary" commander-in-chief power under Article II, to "keep America safe"?

To the extent that these hypotheticals are absurd, they are nevertheless robust given how absurd the original thesis of the unitary executive crowd itself is. These people actually believe that the president is, or ought be, a literal dictator in a time of war -- disregarding the pesky fact that the War on Terror will last perhaps forever.

Whatever those three "Section 1" pronouncements about "powers" were intended to mean -- it surely wasn't that.

Yesterday I wrote:

Put succinctly, the president cannot be the commander-in-chief of an army if Congress doesn't give him that army in the first place.

Which got me to thinking: If the president's Article II commander-in-chief power is unitary and plenary, then can the president unilaterally bring back the draft? (Recall that at least one presidential candidate has warned that a draft might be necessary.)

One would think, of course, that if the president cannot unilaterally seize steel mills for no other reason than "there's a war going on" then he certainly couldn't conscript people for no other reason than "there's a war going on," right?

However, since the famous Jackson concurrence in Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579 (1952), does not appear to be cited anywhere in the recently released "torture memo," such "simplistic" or "archaic" reasoning might not apply in the Yoo-based (as opposed to the sanity-based) jurisprudential community.

Just wondering.

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The leading source for torture memo analysis is undoubtedly Balkinization's Marty Lederman. The alpha-and-omega observation:

The memo cites numerous other, as-yet-unreleased memos that appear to contain equally outrageous legal analysis. (Recall Jack Goldsmith writing about Pat Philbin presenting him with a "short stack" of egregious memos.) Those memos should be released immediately. More importantly, I think Congress should strongly consider NOT CONSIDERING ANY ADMINISTRATION LEGISLATIVE PROPOSALS UNTIL ALL OF THE MEMOS HAVE BEEN DISCLOSED AND (APPROPRIATELY) REPUDIATED BY THE DEPARTMENT OF JUSTICE. There is simply no excuse for Congress to have allowed itself to be manipulated like this, and to be kept in the dark about the extent to which the Administration has ignored legislative statutes and treaties. They must use some of the leverage at their disposal.

Sounds about right — especially the "October 2003 memo" referenced in Footnote 10 suggesting that domestic military operations are summarily exempt from Fourth Amendment limitations. That should be a fun read.

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For Discussion: Some are pushing for U.C. Berkeley's Boalt School of Law to dismiss Yoo from its faculty, based on academic incompetence (i.e., no one who is so wrong about such basic constitutional issues should be allowed anywhere near law school students). On the other hand: "tenure." Thoughts?

Much cyber-ink is being spilled on the question of John Yoo's continued employment at U.C. Berkeley's law school, Boalt Hall; I first noted it in passing here.

Boalt's dean, meanwhile, issued a lengthy statement on Yoo that was half "Ford pardoning Nixon," half "Pilate washing his hands."

(Not only is Yoo tenured, but Boalt, as part of a public university -- i.e., the government -- is required to extend certain due process rights above and beyond what a tenured professor at a private law school would enjoy.)

Here was my brief foray into the discussion:

The dean fails to address the underlying question: Do Yoo's memos prove, or even suggest, that he is fundamentally unfit to teach law?

Reasonable minds may disagree on that question, but no reasonable person is entitled to assert that "tenure," "due process" or "the First Amendment" have anything to do with the answer.

Some commenters misinterpreted that to mean that I advocate stripping Yoo of his legal protections. I of course neither said nor advocated anything of the kind. My point was that the question of "Yoo at Boalt" is really two questions: (1) should he be teaching law school students, and (2) if not, and only if not, then can he be removed? I find Question (1) to be infinitely more important than Question (2), but that is not the same as asserting that Question (2) can be completely ignored.

The most comprehensive response I've seen to Boalt's dean, Chris Edley, comes from Scott Horton:

I agree with Dean Edley on two key points. First, John Yoo is entitled to his legal views, however eccentric, radical and harmful to our democracy. The academic community benefits from the presence of the philosophical outlier. It sharpens debate, and can furnish us with a reminder of the fundamental values which the outlier disparages.

That argument only goes so far. There is a line past which "philosophical outlier" becomes "dangerous nutjob." An advocate of leeching has no business on a medical school faculty, an astrologer has no business on an astrophysics faculty, an alchemist has no business on a chemistry faculty -- their presence does not "sharpen debate," it just wastes resources, embarrasses the institution and achieves the exact opposite of disseminating "knowledge" -- properly defined. (What part of "higher" in "higher education" could possibly extend to leeching or astrology?)

Is Yoo the jurisprudential equivalent of an alchemist? Perhaps reasonable minds can disagree, but that is simply not the same thing as suggesting that the question is irrelevant. It is not.

Only yesterday, I learned from one prominent figure that he had seen repeated drafts of the March 2003 Yoo opinion, had cautioned Yoo on serious errors in judgment and interpretation in the memo, and had strongly urged modification of the memo at least to reflect the contrary viewpoint, even if only to distinguish it. Yoo insisted that he wanted it to be "clean." He declined to make any of the changes requested.

Similarly, Yoo was warned repeatedly that his views could not be squared with the overwhelming majority viewpoint in the community of law of war scholarship, and that the risk of criminal prosecution of those implementing his policies was severe.

Telling the client what he wants to hear, instead of what he needs to hear, is the fastest way to a "C" in a first-year legal writing class. Deliberately failing to cite contrary authority is the fastest way to an "F." Advocating the commission of a crime -- including a war crime -- is the fastest way to disbarment.

So I ask again: "Do Yoo's memos prove, or even suggest, that he is fundamentally unfit to teach law?"

The torture memos were not an episode of The Tudors, and John Yoo was not Cardinal Wolsey -- saying whatever needed to be said, no matter how preposterous, to try to secure Henry VIII his divorce from Catherine of Aragon -- in clear defiance of the law, common sense and common decency. This is not the Sixteenth Century, no matter how desperately the "new Divine Right" advocates (i.e., the "unitary executive" crowd) may wish it were.

As President, John McCain will take it as his most sacred responsibility to keep America free, safe, and strong -- an abiding beacon of freedom and hope to the world.
--McCain campaign website

The creation of crimes after the commission of the fact ... and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.
--Federalist #84

I previously wrote:

To claim that Guantanamo, with all its military accoutrements -- its guns, cells, guns, barbed-wire fences, guns, guard dogs, guns, etc. -- is not "United States territory" is such a joke as to bring into doubt the competence of the judges concluding as much. It boggles the mind.

The Supreme Court ruled:

The United States has maintained complete and uninterrupted control of the bay for over 100 years. ... Yet the Government's view is that the Constitution had no effect there, at least as to noncitizens, because the United States disclaimed sovereignty in the formal sense of the term. The necessary implication of the argument is that by surrendering formal sovereignty over any unincorporated territory to a third party, while at the same time entering into a lease that grants total control over the territory back to the United States, it would be possible for the political branches to govern without legal constraint. Our basic charter cannot be contracted away like this.

In a famous case, the Supreme Court once declared that the Fourth Amendment "protects people, not places." Today the Court made the uncontroversial observation that, at least to some extent, so too does the Suspension Clause. May all the Constitution one day be given likewise deference.

---

I previously wrote:

If you are a textualist (like me), then the [MCA's] revocation of habeas corpus is patently unconstitutional[.] No amount of sophistry can change the fact that we do not currently face "rebellion or invasion." Even 9/11 was not an "invasion." The Wars in Iraq and Afghanistan are not "invasions." This is not a difficult concept.

The Court ruled:

Historically, Congress has taken care to avoid suspensions of the writ. ... In contrast, Congress intended the DTA and the MCA to circumscribe habeas review, as is evident from the unequivocal nature of MCA §7's jurisdiction-stripping language, from the DTA's text limiting the Court of Appeals' jurisdiction to assessing whether the CSRT complied with the "standards and procedures specified by the Secretary of Defense," ... and from the absence of a saving clause in either Act.

Congress tried to pretend that it didn't really suspend habeas corpus when it passed the Military Commissions Act and the Detainee Treatment Act. Today the Court made the uncontroversial observation that of course Congress suspended habeas corpus when it passed the MCA -- thanks in large part to John McCain, who conned the Senate, and the American people, into thinking that he was somehow defending the Geneva Conventions when in fact he was gleefully capitulating to the Bush Administration and embracing the law's most draconian provisions:

It immunizes government officials for past war crimes; it cuts the United States off from its obligations under the Geneva Conventions; and it all but eliminates access to civilian courts for non-citizens -- including permanent residents whose children are citizens -- that the government, in its nearly unreviewable discretion, determines to be unlawful enemy combatants.

That last part was the topic of today's monumental ruling.

And, in case you forgot, John McCain sponsored the Detainee Treatment Act himself, complete with its unconstitutional suspension of habeas corpus.

It will be interesting to see how the "straight-talking maverick" tries to spin the Court's decision, which is as much a repudiation of his dangerous theory of constitutional war powers as of President Bush's.

The case is Boumediene v. Bush, No. 06-1195 (June 12, 2008) (PDF - 134 pages). Timeline of the Guantanamo cases here.