Does The Ledbetter Law Benefit Workers, Or Lawyers? By Stuart Taylor Jr.
Democrats and the media have distorted the facts underlying the new equal-pay law.
National Journal, Saturday, Jan. 31, 2009
This has been a good week, and may be a good year, for lawyers, civil-rights groups and others who think that America needs many more lawsuits to combat what they portray as pervasive job discrimination against women, minorities, the elderly, and the disabled.
Things are not going so well for those of us who fear that the Lilly Ledbetter Fair Pay Act, which President Obama co-sponsored as a senator and signed on Thursday, and other job discrimination bills in the congressional pipeline may be bad for most workers and may benefit mainly lawyers.
These measures seem likely to make it harder than ever for employers to defend themselves against bogus (as well as valid) discrimination claims, effectively adding to the cost of each new hire.
This would be justified if job discrimination were indeed pervasive. But the evidence suggests otherwise. Study after study has, for example, cast grave doubt on what appears to be the myth that sex discrimination in the workplace remains rampant more than 40 years after Congress adopted one law broadly banning job discrimination and another requiring equal pay for women and men doing equal work.
Congressional Democrats, liberal groups, and the media have thoroughly distorted the facts underlying the Ledbetter law to advance their agenda of opening the door wide to all manner of job-discrimination lawsuits.
The new law will virtually wipe out the 300-day time limit (180 days in Alabama and some other states) during which employees can file claims of discrimination under Title VII of the 1964 Civil Rights Act. Disgruntled employees will now be free to wait many years before hauling employers into court for supposedly discriminatory raises, promotions, or any other actions affecting pay.
The longer the wait, the more difficult it will be for the employer to contest an employee's one-sided and perhaps false account of the case, because key witnesses may have retired or died and records such as performance evaluations may have been discarded.
Indeed, some of the Ledbetter law's vague language could be construed as opening the doors for people to sue a company even years after retiring, on the theory that each new pension check is too small because of some claim of discrimination by some long-since-departed (or dead) supervisor.
This law represents an overreaction to a May 2007 Supreme Court decision, Ledbetter v. Goodyear Tire & Rubber Co., that provoked an explosion of ill-informed media outrage and propelled the losing party, retired Goodyear employee Lilly Ledbetter of Alabama, to a speaking role at last year's Democratic National Convention.
The 5-4 decision reasonably (if debatably) held that the 180-day time limit for Ledbetter to file her Title VII claim had started running with the most recent act of intentional discrimination that affected her pay in the ensuing years. Ledbetter had argued -- and the new law now provides -- that the 180-day clock should restart with each new paycheck.
For this, the conservative majority was widely reviled as having denied any remedy to Ledbetter, because employees often don't know what their co-workers are paid and thus might not learn that they are victims until more than 180 (or 300) days after the supposed discrimination occurred.
But some critical facts -- ignored by the media and Congress -- belie their portrayal of the case, as detailed in my June 9, 2007, column.
First, Ledbetter waited more than five years after learning that she was paid substantially less than most male co-workers to file her Title VII claim for back pay, compensatory, and punitive damages. Second, by that time a key supervisor -- whom she belatedly accused of holding down her pay raises after she rejected his sexual advances -- had died. Third, Ledbetter chose not to pursue a claim under the Equal Pay Act of 1963, which has a much longer time limit (three years) than Title VII but does not (yet) provide for big-bucks damage awards.
Fourth, her years of poor performance evaluations, plus repeated layoffs that affected her eligibility for raises, convinced a federal magistrate judge (although not the jury) that her relatively low pay did not prove sex discrimination. Maybe Ledbetter was a victim of discrimination, as the jury found. Maybe not. The evidence is too stale to allow for a confident conclusion -- which is one reason the justices ruled against her.
That said, it would have been reasonable for Congress to amend Title VII by specifying (as some lower courts have held) that the clock does not start running until the employee is or should be aware that she is earning less than co-workers.
Instead, Congress chose to shift the balance dramatically against employers by effectively eliminating time limits for filing all manner of discrimination claims that have some impact on pay.
Another bill that may reach President Obama is the House-passed Paycheck Fairness Act. Its confusingly worded amendments to the Equal Pay Act of 1963 seem designed -- or at least likely -- to force pay raises for women who have never been victims of anything that most people would call discrimination.
The bill would, for example, expose an employer to liability for paying a woman less than a man in a similar job unless the employer can convince a jury that the differential is "job related" and "consistent with business necessity" -- and also that no "alternative employment practice exists that would serve the same business purpose."
What's that parade of nebulosities supposed to mean? I think it would invite judges and juries to go beyond providing remedies for real discrimination and to play Robin Hood by second-guessing justifiable pay disparities. It would force some employers who are entirely innocent of sex discrimination to settle unwarranted lawsuits.
An employer that has long paid higher salaries to employees with more experience or better scores on written tests of their job-related skills might be hit for a big damage award for failing instead to provide special training for inexperienced women or to use a different test.
A very big damage award, perhaps: The Paycheck Fairness Act would allow unlimited awards of both compensatory and (in cases of "reckless indifference") punitive damages. Other proposals likely to emerge during this Congress would eliminate the current caps on damages in Title VII lawsuits as well.
Worse, the Paycheck Fairness Act would allow lawyers to include masses of women who have little or no interest in suing in class-action lawsuits, excepting only those who go to the trouble of "opting out." This is a formula for lawyer-generated lawsuits to extort millions of dollars from companies without proving that they ever intentionally discriminated against anyone.
One of the myths underlying this bill is that, as then-Sen. Hillary Rodham Clinton of New York said on January 8: "It is disgraceful that... women in this country still earn only 78 cents on the dollar" earned by men.
No, it's not disgraceful. Nor is it true that "in many instances, the pay disparities can only be due to continued intentional discrimination or the lingering effects of past discrimination," as stated in the findings attached to the Paycheck Fairness Act.
Labor Department data and academic studies show that much of the male-female pay differential is explained by such factors as disproportionate child-rearing and caregiving responsibilities.These cut into women's working hours and motivate many to sacrifice higher pay for shorter hours and the flexibility to take career breaks.
The data also demonstrate that women who work 40 hours a week make 88 percent as much as men who work 40 hours. Economics professor June O'Neill of Baruch College reported in a 2003 article that the female-to-male wage ratio rises to 95 percent when other data -- on child-related factors, demographics, academic majors, work experience, and occupational characteristics -- are also taken into account. The "gender gap can be explained to a large extent by nondiscriminatory factors," O'Neill concluded.
"Men and women generally have equal pay for equal work now -- if they have the same jobs, responsibilities, and skills," wrote Diana Furchtgott-Roth of the conservative free-market Hudson Institute. She added, in a January 21 commentary published by Reuters, that the 5.9 percent unemployment rate for adult women is lower than the 7.2 percent for adult men.
This is not to suggest that sex discrimination is no longer a serious problem. I worry that my two daughters may run into the barriers that still lurk in some unknown percentage of workplaces. But I worry more that they and their peers will have a harder and harder time finding jobs in the first place if the government burdens employers with lawsuits that make it more and more expensive to bring in new hires.
Showing posts with label law. Show all posts
Showing posts with label law. Show all posts
Friday, January 30, 2009
Thursday, January 29, 2009
Yoo: Obama Made a Rash Decision on Gitmo
Obama Made a Rash Decision on Gitmo, by John Yoo
The president will soon realize that governing involves hard choices.
WSJ, Jan 29, 2009
During his first week as commander in chief, President Barack Obama ordered the closure of Guantanamo Bay and terminated the CIA's special authority to interrogate terrorists.
While these actions will certainly please his base -- gone are the cries of an "imperial presidency" -- they will also seriously handicap our intelligence agencies from preventing future terrorist attacks. In issuing these executive orders, Mr. Obama is returning America to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001. He's also drying up the most valuable sources of intelligence on al Qaeda, which, according to CIA Director Michael Hayden, has come largely out of the tough interrogation of high-level operatives during the early years of the war.
The question Mr. Obama should have asked right after the inaugural parade was: What will happen after we capture the next Khalid Sheikh Mohammed or Abu Zubaydah? Instead, he took action without a meeting of his full national security staff, and without a legal review of all the policy options available to meet the threats facing our country.
What such a review would have made clear is that the civilian law-enforcement system cannot prevent terrorist attacks. What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)
Mr. Obama has also ordered that all military commission trials be stayed and that the case of Ali Saleh al-Marri, the only al Qaeda operative now held on U.S. soil, be reviewed. This seems a prelude to closing the military commissions down entirely and transferring the detainees' cases to U.S. civilian courts for prosecution under ordinary criminal law. Military commission trials have been used in most American wars, and their rules and procedures are designed around the need to protect intelligence sources and methods from revelation in open court.
It's also likely Mr. Obama will declare terrorists to be prisoners of war under the Geneva Conventions. The Bush administration classified terrorists -- well supported by legal and historical precedent -- like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.
The CIA must now conduct interrogations according to the rules of the Army Field Manual, which prohibits coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America. Mr. Obama has also ordered that al Qaeda leaders are to be protected from "outrages on personal dignity" and "humiliating and degrading treatment" in accord with the Geneva Conventions. His new order amounts to requiring -- on penalty of prosecution -- that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.
Eliminating the Bush system will mean that we will get no more information from captured al Qaeda terrorists. Every prisoner will have the right to a lawyer (which they will surely demand), the right to remain silent, and the right to a speedy trial.
The first thing any lawyer will do is tell his clients to shut up. The KSMs or Abu Zubaydahs of the future will respond to no verbal questioning or trickery -- which is precisely why the Bush administration felt compelled to use more coercive measures in the first place. Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court.
Relying on the civilian justice system not only robs us of the most effective intelligence tool to avert future attacks, it provides an opportunity for our enemies to obtain intelligence on us. If terrorists are now to be treated as ordinary criminals, their defense lawyers will insist that the government produce in open court all U.S. intelligence on their client along with the methods used by the CIA and NSA to get it. A defendant's constitutional right to demand the government's files often forces prosecutors to offer plea bargains to spies rather than risk disclosure of intelligence secrets.
Zacarias Moussaoui, the only member of the 9/11 cell arrested before the attack, turned his trial into a circus by making such demands. He was convicted after four years of pretrial wrangling only because he chose to plead guilty. Expect more of this, but with far more valuable intelligence at stake.
It is naïve to say, as Mr. Obama did in his inaugural speech, that we can "reject as false the choice between our safety and our ideals." That high-flying rhetoric means that we must give al Qaeda -- a hardened enemy committed to our destruction -- the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.
Government policy choices are all about trade-offs, which cannot simply be wished away by rhetoric. Mr. Obama seems to have respected these realities in his hesitation to end the NSA's electronic surveillance programs, or to stop the use of predator drones to target individual al Qaeda leaders.
But in his decisions taken so precipitously just two days after the inauguration, Mr. Obama may have opened the door to further terrorist acts on U.S. soil by shattering some of the nation's most critical defenses.
Mr. Yoo is a law professor at the University of California, Berkeley and a visiting professor at Chapman Law School. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute.
The president will soon realize that governing involves hard choices.
WSJ, Jan 29, 2009
During his first week as commander in chief, President Barack Obama ordered the closure of Guantanamo Bay and terminated the CIA's special authority to interrogate terrorists.
While these actions will certainly please his base -- gone are the cries of an "imperial presidency" -- they will also seriously handicap our intelligence agencies from preventing future terrorist attacks. In issuing these executive orders, Mr. Obama is returning America to the failed law enforcement approach to fighting terrorism that prevailed before Sept. 11, 2001. He's also drying up the most valuable sources of intelligence on al Qaeda, which, according to CIA Director Michael Hayden, has come largely out of the tough interrogation of high-level operatives during the early years of the war.
The question Mr. Obama should have asked right after the inaugural parade was: What will happen after we capture the next Khalid Sheikh Mohammed or Abu Zubaydah? Instead, he took action without a meeting of his full national security staff, and without a legal review of all the policy options available to meet the threats facing our country.
What such a review would have made clear is that the civilian law-enforcement system cannot prevent terrorist attacks. What is needed are the tools to gain vital intelligence, which is why, under President George W. Bush, the CIA could hold and interrogate high-value al Qaeda leaders. On the advice of his intelligence advisers, the president could have authorized coercive interrogation methods like those used by Israel and Great Britain in their antiterrorism campaigns. (He could even authorize waterboarding, which he did three times in the years after 9/11.)
Mr. Obama has also ordered that all military commission trials be stayed and that the case of Ali Saleh al-Marri, the only al Qaeda operative now held on U.S. soil, be reviewed. This seems a prelude to closing the military commissions down entirely and transferring the detainees' cases to U.S. civilian courts for prosecution under ordinary criminal law. Military commission trials have been used in most American wars, and their rules and procedures are designed around the need to protect intelligence sources and methods from revelation in open court.
It's also likely Mr. Obama will declare terrorists to be prisoners of war under the Geneva Conventions. The Bush administration classified terrorists -- well supported by legal and historical precedent -- like pirates, illegal combatants who do not fight on behalf of a nation and refuse to obey the laws of war.
The CIA must now conduct interrogations according to the rules of the Army Field Manual, which prohibits coercive techniques, threats and promises, and the good-cop bad-cop routines used in police stations throughout America. Mr. Obama has also ordered that al Qaeda leaders are to be protected from "outrages on personal dignity" and "humiliating and degrading treatment" in accord with the Geneva Conventions. His new order amounts to requiring -- on penalty of prosecution -- that CIA interrogators be polite. Coercive measures are unwisely banned with no exceptions, regardless of the danger confronting the country.
Eliminating the Bush system will mean that we will get no more information from captured al Qaeda terrorists. Every prisoner will have the right to a lawyer (which they will surely demand), the right to remain silent, and the right to a speedy trial.
The first thing any lawyer will do is tell his clients to shut up. The KSMs or Abu Zubaydahs of the future will respond to no verbal questioning or trickery -- which is precisely why the Bush administration felt compelled to use more coercive measures in the first place. Our soldiers and agents in the field will have to run more risks as they must secure physical evidence at the point of capture and maintain a chain of custody that will stand up to the standards of a civilian court.
Relying on the civilian justice system not only robs us of the most effective intelligence tool to avert future attacks, it provides an opportunity for our enemies to obtain intelligence on us. If terrorists are now to be treated as ordinary criminals, their defense lawyers will insist that the government produce in open court all U.S. intelligence on their client along with the methods used by the CIA and NSA to get it. A defendant's constitutional right to demand the government's files often forces prosecutors to offer plea bargains to spies rather than risk disclosure of intelligence secrets.
Zacarias Moussaoui, the only member of the 9/11 cell arrested before the attack, turned his trial into a circus by making such demands. He was convicted after four years of pretrial wrangling only because he chose to plead guilty. Expect more of this, but with far more valuable intelligence at stake.
It is naïve to say, as Mr. Obama did in his inaugural speech, that we can "reject as false the choice between our safety and our ideals." That high-flying rhetoric means that we must give al Qaeda -- a hardened enemy committed to our destruction -- the same rights as garden-variety criminals at the cost of losing critical intelligence about real, future threats.
Government policy choices are all about trade-offs, which cannot simply be wished away by rhetoric. Mr. Obama seems to have respected these realities in his hesitation to end the NSA's electronic surveillance programs, or to stop the use of predator drones to target individual al Qaeda leaders.
But in his decisions taken so precipitously just two days after the inauguration, Mr. Obama may have opened the door to further terrorist acts on U.S. soil by shattering some of the nation's most critical defenses.
Mr. Yoo is a law professor at the University of California, Berkeley and a visiting professor at Chapman Law School. He was an official in the Justice Department from 2001-03 and is a visiting scholar at the American Enterprise Institute.
Wednesday, January 28, 2009
Legislating the Lilly Ledbetter lie
Legislating the Lilly Ledbetter lie, by Paul Mirengoff
Powerline Blog, January 28, 2009 at 1:31 PM
President Obama is set to sign into law, as the first legislation of his tenure, the so-called Lilly Ledbetter Act. It changes the rules for bringing lawsuits for alleged pay discrimination, enabling plaintiffs to bring stale claims, as Ledbetter herself attempted to do.
It is fitting that this law will be the first legislative product of the Obama presidency, for it is based on a lie. I demonstrated this last year in a post called "Lilly Ledbetter, Living a Lie."
The Lilly Ledbetter lie is today peddled in this Washington Post story, which suggests that she had no idea she was the victim of pay discrimination until she supposedly received an anonymous note tippling her off. So is the White House. (Hat tip, Openmarket.org.)
In honor of the occasion, I have re-posted my piece on Lilly's lie:
Lilly Ledbetter, the unsuccessful plaintiff in an equal pay case that went to the Supreme Court, has become ubiquitous this political season. She spoke at the Democratic National Convention, has testified in congressional hearings, and appears in an ad for Barack Obama. Congress is considering legislation that bears her name. The Washington Post, in a piece by Matthew Mosk, reverentially described her as "the Alabama woman whose fight for equal pay led her to the United States Supreme Court and inspired. . .fair pay legislation."
Not since the equally alliterative and industrial-sounding Rosie the Riveter, has a working woman become such a folk hero. But like Rosie, the Lilly Ledbetter being presented for public consumption is largely mythical.
The real Lilly Ledbetter worked for Goodyear Tire & Rubber Company from 1979 until she retired in 1998. After she retired, she sued Goodyear under Title VII of the Civil Rights of 1964 for alleged pay discrimination.
Ledbetter's pay discrimination claim went to a jury which found in her favor. However, the court of appeals reversed this verdict on the grounds that she did not file a charge of discrimination with the EEOC within the required statute of limitations period.
In her appeal to the U.S. Supreme Court, Ledbetter raised the following issue: "Whether and under what circumstances a plaintiff may bring an action under Title VII. . .alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period."
Ledbetter framed the issue this way because she did not claim that the relevant Goodyear decisionmakers acted with discriminatory intent during the limitations period. Instead, she asserted that the paychecks she received during this period were unlawful because they would have been larger if she had been treated in a nondiscriminatory manner prior to the limitations period.
In other words, the alleged intentional discrimination had occurred years earlier, outside of the limitations period. But Ledbetter felt its ongoing consequences every time she received a paycheck, until the end of her career, because her pay never caught up to where she believes it would have been absent the early discrimination. An employee's pay at any given point in time is typically a function of years of pay decisions.
The Supreme Court agreed with the court of appeals that Ledbetter's challenge to pay decisions that pre-dated the limitations period was time-barred. In doing so, the Court correctly applied three decades of its own precedent in cases where Title VII plaintiffs have attempted to rely on the current effects of past discrimination to defeat a statute of limitations defense.
The Court also emphasized the common sense proposition that stands behind these decisions: in discrimination cases "the employer's intent is almost always disputed and evidence relating to intent may fade quickly with time." Thus, an employee who waits until years after the underlyng alleged intentional act of discrimination to sue, as Ledbetter did, undermines the ability of the justice system to conduct a fair trial. For example, by the time Ledbetter brought her case to trial, the supervisor whose decisions formed the main basis for her pay discrimination claim was dead.
There is, of course, nothing novel in the Supreme Court's reasoning. Statute of limitations period exist precisely to prevent the injustice inherent in situations where a plaintiff "sleeps" on his or her rights for years.
Ledbetter and her Democratic fan club argue, however, that the result in her case permits hidden discrimination. They would have the public believe that the Ledbetter decision leaves plaintiffs who don't discover concealed discrimination for many years unable to overcome the statute of limitations defense, and thus unable to remedy wrongdoing.
This is nonsense. For decades the Supreme Court has recognized that the limitations period in a Title VII case can be extended or tolled in such circumstances. Tolling is available where, among other situations, the plaintiff has no reason to suspect discrimination at the time of the disputed event.
But Ledbetter did not argue that the limitations period should be tolled in her case, and for good reason. Ledbetter testified that she knew by 1992 that her pay was out of line with her peers. In 1995, she spoke to her supervisor about the problem, telling him that "I knew definitely that they were all making a thousand at least more per month than I was and that I would like to get in line." Yet Ledbetter waited until 1998 to file her EEOC complaint.
This delay is particularly difficult to understand given the fact that, in 1982, she had filed a sexual harassment complaint with the EEOC. That dispute was settled without litigation shortly thereafter. Had Ledbetter followed the same course with her pay claim, she would have had her day in court, and Goodyear would have had a fair chance to defend itself. That this did not occur is Ledbetter's fault.
Prevented by the facts from arguing in a real court that she didn't have enough knowledge about her pay situation to bring a timely EEOC charge, Ledbetter (and those who seek political advantage through her) now raise this false claim in the court of public opinion. For example, Ledbetter claims that "the only way that I really knew [about the pay discrimination] was that someone left an anonymous note in my mailbox showing my pay and the pay for the three males who were doing the same job, just on different shifts." According to Ledbetter, "when I saw that note, it just floored me. I was so shocked at the amount of difference in our pay for doing the same exact job. And I went immediately to EEOC."
This claim, of course, cannot be reconciled with her sworn testimony that three years before allegedly receiving the "anonymous note," she told her supervisor that she definitely knew that she was making thousands less than her male counterparts for the same work.
Lilly Ledbetter is living a lie, one that Barack Obama hopes will help propel him into the White House.
Powerline Blog, January 28, 2009 at 1:31 PM
President Obama is set to sign into law, as the first legislation of his tenure, the so-called Lilly Ledbetter Act. It changes the rules for bringing lawsuits for alleged pay discrimination, enabling plaintiffs to bring stale claims, as Ledbetter herself attempted to do.
It is fitting that this law will be the first legislative product of the Obama presidency, for it is based on a lie. I demonstrated this last year in a post called "Lilly Ledbetter, Living a Lie."
The Lilly Ledbetter lie is today peddled in this Washington Post story, which suggests that she had no idea she was the victim of pay discrimination until she supposedly received an anonymous note tippling her off. So is the White House. (Hat tip, Openmarket.org.)
In honor of the occasion, I have re-posted my piece on Lilly's lie:
Lilly Ledbetter, the unsuccessful plaintiff in an equal pay case that went to the Supreme Court, has become ubiquitous this political season. She spoke at the Democratic National Convention, has testified in congressional hearings, and appears in an ad for Barack Obama. Congress is considering legislation that bears her name. The Washington Post, in a piece by Matthew Mosk, reverentially described her as "the Alabama woman whose fight for equal pay led her to the United States Supreme Court and inspired. . .fair pay legislation."
Not since the equally alliterative and industrial-sounding Rosie the Riveter, has a working woman become such a folk hero. But like Rosie, the Lilly Ledbetter being presented for public consumption is largely mythical.
The real Lilly Ledbetter worked for Goodyear Tire & Rubber Company from 1979 until she retired in 1998. After she retired, she sued Goodyear under Title VII of the Civil Rights of 1964 for alleged pay discrimination.
Ledbetter's pay discrimination claim went to a jury which found in her favor. However, the court of appeals reversed this verdict on the grounds that she did not file a charge of discrimination with the EEOC within the required statute of limitations period.
In her appeal to the U.S. Supreme Court, Ledbetter raised the following issue: "Whether and under what circumstances a plaintiff may bring an action under Title VII. . .alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period."
Ledbetter framed the issue this way because she did not claim that the relevant Goodyear decisionmakers acted with discriminatory intent during the limitations period. Instead, she asserted that the paychecks she received during this period were unlawful because they would have been larger if she had been treated in a nondiscriminatory manner prior to the limitations period.
In other words, the alleged intentional discrimination had occurred years earlier, outside of the limitations period. But Ledbetter felt its ongoing consequences every time she received a paycheck, until the end of her career, because her pay never caught up to where she believes it would have been absent the early discrimination. An employee's pay at any given point in time is typically a function of years of pay decisions.
The Supreme Court agreed with the court of appeals that Ledbetter's challenge to pay decisions that pre-dated the limitations period was time-barred. In doing so, the Court correctly applied three decades of its own precedent in cases where Title VII plaintiffs have attempted to rely on the current effects of past discrimination to defeat a statute of limitations defense.
The Court also emphasized the common sense proposition that stands behind these decisions: in discrimination cases "the employer's intent is almost always disputed and evidence relating to intent may fade quickly with time." Thus, an employee who waits until years after the underlyng alleged intentional act of discrimination to sue, as Ledbetter did, undermines the ability of the justice system to conduct a fair trial. For example, by the time Ledbetter brought her case to trial, the supervisor whose decisions formed the main basis for her pay discrimination claim was dead.
There is, of course, nothing novel in the Supreme Court's reasoning. Statute of limitations period exist precisely to prevent the injustice inherent in situations where a plaintiff "sleeps" on his or her rights for years.
Ledbetter and her Democratic fan club argue, however, that the result in her case permits hidden discrimination. They would have the public believe that the Ledbetter decision leaves plaintiffs who don't discover concealed discrimination for many years unable to overcome the statute of limitations defense, and thus unable to remedy wrongdoing.
This is nonsense. For decades the Supreme Court has recognized that the limitations period in a Title VII case can be extended or tolled in such circumstances. Tolling is available where, among other situations, the plaintiff has no reason to suspect discrimination at the time of the disputed event.
But Ledbetter did not argue that the limitations period should be tolled in her case, and for good reason. Ledbetter testified that she knew by 1992 that her pay was out of line with her peers. In 1995, she spoke to her supervisor about the problem, telling him that "I knew definitely that they were all making a thousand at least more per month than I was and that I would like to get in line." Yet Ledbetter waited until 1998 to file her EEOC complaint.
This delay is particularly difficult to understand given the fact that, in 1982, she had filed a sexual harassment complaint with the EEOC. That dispute was settled without litigation shortly thereafter. Had Ledbetter followed the same course with her pay claim, she would have had her day in court, and Goodyear would have had a fair chance to defend itself. That this did not occur is Ledbetter's fault.
Prevented by the facts from arguing in a real court that she didn't have enough knowledge about her pay situation to bring a timely EEOC charge, Ledbetter (and those who seek political advantage through her) now raise this false claim in the court of public opinion. For example, Ledbetter claims that "the only way that I really knew [about the pay discrimination] was that someone left an anonymous note in my mailbox showing my pay and the pay for the three males who were doing the same job, just on different shifts." According to Ledbetter, "when I saw that note, it just floored me. I was so shocked at the amount of difference in our pay for doing the same exact job. And I went immediately to EEOC."
This claim, of course, cannot be reconciled with her sworn testimony that three years before allegedly receiving the "anonymous note," she told her supervisor that she definitely knew that she was making thousands less than her male counterparts for the same work.
Lilly Ledbetter is living a lie, one that Barack Obama hopes will help propel him into the White House.
On WaPo's position on giving DC a regular seat in the House of Representatives
Pass the Bill and Pass the Buck, by Matthew J. Franck
Bench Memos/NRO, Jan 28, 2009
The editors of the Washington Post are at it again today, impatient to pass a bill to give the District of Columbia a regular seat in the House of Representatives—without senators and without statehood. Continuing its practice of misleadingly calling this a "voting rights" bill, when D.C. residents currently have all the voting rights to which the Constitution entitles them, the Post thinks all debate on this matter should come to an end. Referring to a hearing yesterday before a House Judiciary subcommittee, the editors write:
Much of yesterday's discussion came down to the now familiar back-and-forth over whether the measure is constitutional. There are valid legal arguments for and against, with noted scholars on both sides, but the question is best left to the courts to decide. The use of such concerns to block the bill is a ruse by those who lack the political will to enfranchise D.C. residents.
It's nice for the Post to concede there are "valid" constitutional arguments on both sides. But I think they mean "plausible," since in a world where the Constitution means what it says, only one side can have the "valid" argument—i.e., the correct one. Having examined this matter as closely as anyone I know, I can say that in 30 years of studying the Constitution I've never come across a real (non-hypothetical) constitutional question that is easier than this one. The arguments on the other side, with all due respect to those who make them, are not only invalid but hardly even rise to the level of "plausible," requiring the tortuous misinterpretation of one clause in the text of the Constitution and the suppression of several others. For the short course, go to this recent post of mine, and follow the links for more elucidation.
But the Post, in its anxiety to remedy what it calls an "intolerable injustice," commits an injustice of its own in calling opposition on constitutional grounds a "ruse" by people who are somehow hostile or indifferent to "enfranchis[ing] D.C. residents." The constitutional grounds for a "no" vote on this bill are so compelling that the Post has long since ceased attempting to respond to them, and resorts only to name-calling and temper tantrums. Those grounds are so compelling that members of Congress who vote "no," as they should, can sleep the sleep of the just, knowing they have kept their oath to the Constitution. They don't need to be slandered by the capital's dominant newspaper as heartless bigots where D.C. is concerned.
The Post's editors, by contrast, have enough doubt about their position to recommend that the constitutional issue be "left to the courts to decide"—as if it were a) difficult, b) easy to hand off to the courts in a fashion that shapes it into a question courts can address, and c) appropriate for judicial rather than legislative resolution even if that were done. It is none of the above.
The Post writes also that "[n]o one at yesterday's hearing—even those who vehemently oppose the bill—could argue it's okay for the hundreds of thousands of Americans living in the nation's capital to be taxed, sent to war and governed without any real say in what their government does." I confess I don't get that exercised about the alleged injustice. But if that really concerned the editors, don't you think they'd want D.C. residents to have full representation in Congress—with senators too? Maybe those Americans could, you know, live in a state, which would automatically take care of the problem?
D.C. doesn't need or deserve statehood on its own. The best solution for D.C. residents to get "voting rights" in Congress is for the residential parts of the District to be "retroceded" to Maryland. This is how residents of Alexandria and Arlington, Virginia got to vote for congressmen again.
Majority leader Steny Hoyer of Maryland was a witness at yesterday's hearing and was in high dudgeon about the poor "disenfranchised" residents of D.C. But it's hard to avoid the conclusion that he just doesn't want them back as fellow citizens of Maryland.
Bench Memos/NRO, Jan 28, 2009
The editors of the Washington Post are at it again today, impatient to pass a bill to give the District of Columbia a regular seat in the House of Representatives—without senators and without statehood. Continuing its practice of misleadingly calling this a "voting rights" bill, when D.C. residents currently have all the voting rights to which the Constitution entitles them, the Post thinks all debate on this matter should come to an end. Referring to a hearing yesterday before a House Judiciary subcommittee, the editors write:
Much of yesterday's discussion came down to the now familiar back-and-forth over whether the measure is constitutional. There are valid legal arguments for and against, with noted scholars on both sides, but the question is best left to the courts to decide. The use of such concerns to block the bill is a ruse by those who lack the political will to enfranchise D.C. residents.
It's nice for the Post to concede there are "valid" constitutional arguments on both sides. But I think they mean "plausible," since in a world where the Constitution means what it says, only one side can have the "valid" argument—i.e., the correct one. Having examined this matter as closely as anyone I know, I can say that in 30 years of studying the Constitution I've never come across a real (non-hypothetical) constitutional question that is easier than this one. The arguments on the other side, with all due respect to those who make them, are not only invalid but hardly even rise to the level of "plausible," requiring the tortuous misinterpretation of one clause in the text of the Constitution and the suppression of several others. For the short course, go to this recent post of mine, and follow the links for more elucidation.
But the Post, in its anxiety to remedy what it calls an "intolerable injustice," commits an injustice of its own in calling opposition on constitutional grounds a "ruse" by people who are somehow hostile or indifferent to "enfranchis[ing] D.C. residents." The constitutional grounds for a "no" vote on this bill are so compelling that the Post has long since ceased attempting to respond to them, and resorts only to name-calling and temper tantrums. Those grounds are so compelling that members of Congress who vote "no," as they should, can sleep the sleep of the just, knowing they have kept their oath to the Constitution. They don't need to be slandered by the capital's dominant newspaper as heartless bigots where D.C. is concerned.
The Post's editors, by contrast, have enough doubt about their position to recommend that the constitutional issue be "left to the courts to decide"—as if it were a) difficult, b) easy to hand off to the courts in a fashion that shapes it into a question courts can address, and c) appropriate for judicial rather than legislative resolution even if that were done. It is none of the above.
The Post writes also that "[n]o one at yesterday's hearing—even those who vehemently oppose the bill—could argue it's okay for the hundreds of thousands of Americans living in the nation's capital to be taxed, sent to war and governed without any real say in what their government does." I confess I don't get that exercised about the alleged injustice. But if that really concerned the editors, don't you think they'd want D.C. residents to have full representation in Congress—with senators too? Maybe those Americans could, you know, live in a state, which would automatically take care of the problem?
D.C. doesn't need or deserve statehood on its own. The best solution for D.C. residents to get "voting rights" in Congress is for the residential parts of the District to be "retroceded" to Maryland. This is how residents of Alexandria and Arlington, Virginia got to vote for congressmen again.
Majority leader Steny Hoyer of Maryland was a witness at yesterday's hearing and was in high dudgeon about the poor "disenfranchised" residents of D.C. But it's hard to avoid the conclusion that he just doesn't want them back as fellow citizens of Maryland.
Saturday, January 24, 2009
Conservative Views On Lawful Detainment Framework for the Long War
Holding Terrorists Accountable: A Lawful Detainment Framework for the Long War, by Charles Stimson
Heritage, Legal Memorandum #35, January 23, 2009
During the recent presidential campaign, then-Senator Barack Obama promised to close the Guantanamo Bay detention center and stated that some Guantanamo detainees should be prosecuted or transferred to other countries and that others should be detained "in a manner consistent with the laws of war."[1] President Obama already, on his second full day in office, has taken the first steps in that direction by issuing an executive order calling for the closure of Guantanamo "as soon as practicable" and the prosecution, release, transfer, or continued detention of all detainees housed there following review of their statuses.[2]
This action is bold, comprehensive, yet cautious. In some respects, it represents a continuation, and at most an acceleration, of many of the policies of the Bush Administration. Prior to January 20, some detainees were being prosecuted,[3] and others were transferred to other countries: In fact, that latter group comprises nearly two-thirds of all those who have been held at Guantanamo.[4]
More important is what has not yet been addressed. While the Obama executive orders allude to continued detention of some Guantanamo detainees, they address only the current detainees at Guantanamo. President Obama's bigger decision--one where he is more likely to modify previous practice-- concerns future detainees, not the fate of those already captured and held at Guantanamo Bay.
The Obama Administration will not be ending the practice of military detention. Military detention[5] of some detainees is appropriate, consistent with long historical practice, and a necessary and lawful tool in the current conflict.[6] True, as General David Petraeus and Secretary of Defense Robert Gates have essentially said, we cannot kill or capture our way to victory in this conflict.[7] Yet military detention, properly calibrated and designed to complement our broader national security and counterterrorism policy, is necessary, not only for some detainees currently detained at Guantanamo but also for future captures of high-value detainees.
Indeed, candidate Obama also pledged to continue to build U.S. capacity and international partnerships to track down, capture, or kill terrorists around the world, and this presumably entails holding additional detainees.[8] That promise should assure the American people that President Obama intends to protect us from those terrorists who seek to kill us. But it also begs several key questions:
Defining the Issue
Winding down the detention operation at Guantanamo Bay in a responsible manner will be difficult, will take more than just a couple of months, and requires making difficult decisions and trade-offs.[9] Indeed, President-elect Obama acknowledged that ending the detention mission at Guantanamo Bay will be difficult and, more significantly, that he would consider it a failure if he did not close Guantanamo by the end of his first term.[10] It is a challenge because the process actually has less to do with Guantanamo Bay detainees than with the question of how we wage war in the modern era against non-state actors who are actively waging war against us.
Guantanamo Bay is just a place--a place that admittedly has harmed our country's reputation and whose benefits arguably have come to be outweighed by its costs. To be sure, the United States has gained valuable intelligence from some detainees at Guantanamo over the years and has kept those very same detainees from killing or injuring our soldiers or allies in our ongoing conflict. That intelligence has helped us to understand and fight this enemy more effectively, but its value has diminished over time. More important, that intelligence and security has strained diplomatic relations, undermined the moral authority of the United States in the eyes of some, and raised distracting domestic legal obstacles.
Simply ending the detention operations at Guantanamo addresses only one visible aspect of a broader post-9/11 detention legal framework for the incapacitation and lawful interrogation of terrorists. Closing Guantanamo or merely moving the detainees to the United States without addressing the serious underlying challenges and questions regarding detention policy in this ongoing conflict is essentially changing the ZIP code without confronting the broader challenges.
The new Administration has the opportunity, and an obligation, to build on the strategic rationale, legal and policy underpinnings, and entire framework regarding how to hold accountable and incapacitate terrorists.[11]
It is important to recall that a key recommendation from the 9/11 Commission Report was for the United States to engage our allies and develop a common approach to the detention and humane treatment of captured terrorists, drawing from Common Article 3 of the Geneva Conventions.[12] Much work has been done with respect to this key recommendation;[13] some remains.
Military detention of the enemy during armed conflict is authorized and legal. According to a legal adviser for the International Committee of the Red Cross (ICRC), such detention is an "exceptional measure of control that may be ordered for security reasons in armed conflict or for the purpose of protecting State security or public order in non-conflict situations, provided the requisite criteria have been met."[14] According to the author, "the exceptional nature of internment lies in the fact that it allows the detaining authority to deprive liberty of persons who are not subject to criminal processes but nevertheless represent a real threat to security in the present or in the future."[15]
It is also just common sense. When our military enters armed conflict, however that is defined, it has the legal authority to use lethal force when necessary. It stands to reason that the military must also be able to detain the enemy in a lawful manner, all the while upholding the rule of law, protecting human rights, and adhering to applicable provisions of the Geneva Conventions.[16]
Military detention is not a right-wing proposition; it is a time-honored, legal, proper national security tool during armed conflict. That fact is recognized across the political spectrum. On January 6, 2009, Senator Dianne Feinstein (D-CA), along with Senators John D. Rockefeller IV (D-WV), Ron Wyden (D-OR), and Sheldon Whitehouse (D-RI), introduced Senate Bill 147, the Lawful Interrogation and Detention Act. The act, directed specifically at the detainees currently at Guantanamo Bay, Cuba, specifically authorizes military detention for some detainees who cannot be prosecuted or transferred.[17]
Thus, despite what some have argued over the years, the United States is not required, by its international obligations or otherwise, to "try them or set them free." This false choice is dangerous, and it comes with real consequences. It is widely known that some detainees released from detention in Iraq, Afghanistan, and Guantanamo have taken up arms against Americans and our allies and no doubt have committed further combatant activity.[18] This risk of further combatant activity will always exist, and it is particularly acute in the current conflict.
Reducing that risk through lawful detainment is not always a controversial proposition. For years, the United States has captured, detained, and lawfully interrogated thousands of combatants within the political boundaries of Iraq and Afghanistan, and it will continue to do so for some time in Afghanistan.[19] Most detainees are detained to prevent further combatant activity against the U.S. or our forces--not tried in a criminal trial.
Beyond Guantanamo
With respect to terrorists captured in the future outside of Afghanistan, including by our allies or in a future conflict or other crisis, the detainment situation is more complicated. Neither the criminal law nor the law of armed conflict provides comprehensive and complete policy prescriptions in terms of how best to keep these combatants off of the battlefield and lawfully interrogate them while upholding the rule of law, protecting human rights, and safeguarding our country.
Prior to September 11, 2001, terrorism was treated as a matter of criminal law. The limits of and flaws in that approach have been detailed in numerous articles.[20] It is true that our anti-terrorism statutes have improved over the years and that our track record of trying terrorism in the courts is impressive, but despite the system's strength and flexibility, these improvements will carry us only so far.[21]
A recent report by Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, details over 100 terrorism cases successfully prosecuted in federal court since 9/11. The report covers many, but not all, of the important laws and legal and policy considerations regarding trying terrorism cases in federal district court. Yet it does not mention one case of a terrorist captured overseas on the battlefield after 9/11 and tried in the U.S. courts, nor does it seriously address the issue of the use of hearsay in federal trials for battlefield captures.
Most important, the Human Rights First report downplays the risks associated with the inadvertent disclosure of classified evidence, including valuable (and expensive) sources and methods of intelligence gathering. In every case involving such evidence--and this would include some cases involving terrorists captured overseas--there must be a careful, sophisticated cost-benefit analysis conducted by the highest officials in the government before deciding to disclose certain evidence in courtroom proceedings. Trying some terrorists in federal court should be an option, and it is an option the Bush Administration should have used more often;[22] but it should not be the exclusive weapon in our arsenal for combating al-Qaeda and other unprivileged belligerents.
To its credit, the Human Rights First report does acknowledge that some detainees may properly be held under "the law of war for the duration of active hostilities to prevent them from returning to the field of battle, and without any effort by the government to file charges or impose punishment."[23] In other words, military detention has a place in this conflict.[24]
For the most part, the Bush Administration and Congress, in its Authorization for the Use of Military Force, recognized the terrorist attacks of 9/11 as an act of war, and the law of armed conflict was the foundation for the legal framework surrounding detention. With respect to Guantanamo, the law-of-armed-conflict paradigm was challenged within weeks of detainees arriving in January 2002, and its limitations have become clearer during this long conflict.
Certainly, the law of armed conflict should and will provide the underpinnings for the detention framework in Afghanistan in the years to come, but it does not provide adequate answers to or procedural protections for detainees captured outside of Afghanistan and all of the issues that arise in a conflict of this nature.[25]
A legal regime can only set the boundaries of permissible policy; it is not a substitute for policy decisions to resolve lingering questions. In the future, when we capture a high-value al-Qaeda operative somewhere outside of Afghanistan who plots acts of terrorism or trains fellow terrorists but has not committed a domestic crime that can be prosecuted in federal district court, a court-martial, or even a new national security court, do we release him? If not, should we detain him, and under what legal framework? Where will he be detained? It is highly unlikely that the government of Afghanistan (or any other country) will allow him to be detained inside their country. Should we bring him to the United States? If so, what is his legal status, and what framework is he held under?
Further, in many of these cases, we will want to lawfully interrogate a captured operative to gain tactical or strategic intelligence. How do those lawful interrogations for intelligence reasons affect the potential for criminal prosecution? We may not be able to prosecute some of these individuals, and it may not be in our best interest as a country to try them because to do so might unreasonably risk exposing critical national security secrets.
A Future Framework
The answer, far beyond closing Guantanamo, is to solve the broader challenge of holding accountable and incapacitating terrorists in a detention framework that is lawful, durable, and internationally acceptable. As we capture future high-value terrorists outside of Afghanistan and conclude that some may not be prosecuted in our domestic courts, we will need a sustainable legal framework to detain them.[26]
Creating the right framework will be challenging, but it is necessary. As a former Administration official in charge of detainee matters observed, detention carries risks to both liberty and security.[27] Much thought needs to be given to the characteristics of persons subject to detention.[28] Conceptual criteria such as (among others) dangerousness, active or direct participation, membership in or support for an organization such as al-Qaeda, past acts, and future intentions must all be considered and weighed before drafting an appropriate definition of who may be detained.[29] However, we must remain ever mindful that our service members are facing the enemy on numerous battlefields every day: These questions are not, and should not be treated as, merely academic.
As for procedural protections for future captures, under the law of armed conflict, if there is a question as to a detainee's legal status (e.g., a prisoner of war, a civilian, or some other class), the detaining authority must hold a hearing, similar to an Article 5 hearing provided to prisoners of war under the Geneva Conventions, at or near the time of capture. If the "Article 5" hearing officer finds the terrorist detainable, then he may be detained. Alternatively, the hearing officer could make a finding that the captured person does not meet the proper criteria and order him released after the hearing.
If the person is deemed detainable by the hearing officer, after a defined period of lawful interrogation, the detainee should be given an Article 5- style "competent tribunal" hearing before a military judge where he should have assistance of military counsel.[30] If the military judge, after a full and fair hearing, decides that the detainee qualifies for further military detention, the detainee is thereafter detained pending periodic review.
There should be robust judicial appellate review, and the detainee should be afforded qualified free appellate counsel. The basis for his detention should be reviewed periodically.
Furthermore, military detention should be used only for those detainees who cannot be safely prosecuted.[31] This means, at the front end of the detention matrix, that there must be a robust system in place to determine which cases are prosecutable and which ones are not.
As a legal matter, there is support for the argument that the current Authorization for Use of Military Force (AUMF) authorizes the President to detain militarily a person captured in the United States.[32] However, as a policy matter, the proposed military detention framework should not apply to anyone captured in the United States, at least under current circumstances.[33]
Not even the Geneva Conventions or the principles underlying them answer every question. Once you give future captures an "Article 5" hearing and a "competent tribunal" determines that the detainee may be detained, then what? Does the case get transferred automatically to a federal district court judge for "independent review," perhaps under a newly created national security court? And how long do you detain the individual? How often do you review the basis of his detention? According to the Geneva Conventions, a person subject to detention must have the basis for his detention reviewed periodically, but is that an appropriate standard in this case? I believe it is warranted.
Would this system even be workable if, for example, the United States captured hundreds of detainees at a time? And what impact will these robust new rules and procedures have in the next war against a state actor who will receive fewer safeguards or rights as a prisoner of war?
All of this must be done as transparently as possible.
Finally, the United States must continue to allow the International Committee of the Red Cross[34] to perform its valuable function vis-à-vis detainees, and we must continue to work with and engage the ICRC in a substantive, confidential diplomatic dialogue.
Conclusion
Shuttering detention operations at Guantanamo Bay will be only a symbolic gesture--or perhaps not even that--if the Obama Administration does not also address the broader challenge of lawfully incapacitating terrorists who are intent on waging war against us. The incoming Administration has the duty to think through the strategic rationale of military detention in the broader context of its counterterrorism policies.
Some detainees may be appropriate candidates for criminal prosecution in federal district court, in terrorists' court-martials, or even in a newly created national security court--as long as there is not an unreasonable risk of exposure of critical national security information. Other detainees at Guantanamo Bay and those captured in the future will be appropriate candidates for military detention.
Achieving this new policy will take time. It will require the new Administration to use this "strategic pause" in military commissions, habeas corpus cases, and other ongoing matters to take stock of the best way forward.
We will see how Barack Obama responds to calls from some of his supporters to "try them or set them free." Will he make the case for a thoughtful military detainment policy, or will he give in to their dangerous demand? If Obama acknowledges that al-Qaeda members and others similarly situated are not common criminals and that military detention is a lawful and necessary tool in this ongoing conflict, we will know that our new President is serious about the threats aligned against us.
Charles D. "Cully" Stimson is Senior Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation. He also has served as Deputy Assistant Secretary of Defense for Detainee Affairs (2006-2007) and is a Commander in the United States Navy JAG Corps, reserve component.
Full article w/references here.
Heritage, Legal Memorandum #35, January 23, 2009
During the recent presidential campaign, then-Senator Barack Obama promised to close the Guantanamo Bay detention center and stated that some Guantanamo detainees should be prosecuted or transferred to other countries and that others should be detained "in a manner consistent with the laws of war."[1] President Obama already, on his second full day in office, has taken the first steps in that direction by issuing an executive order calling for the closure of Guantanamo "as soon as practicable" and the prosecution, release, transfer, or continued detention of all detainees housed there following review of their statuses.[2]
This action is bold, comprehensive, yet cautious. In some respects, it represents a continuation, and at most an acceleration, of many of the policies of the Bush Administration. Prior to January 20, some detainees were being prosecuted,[3] and others were transferred to other countries: In fact, that latter group comprises nearly two-thirds of all those who have been held at Guantanamo.[4]
More important is what has not yet been addressed. While the Obama executive orders allude to continued detention of some Guantanamo detainees, they address only the current detainees at Guantanamo. President Obama's bigger decision--one where he is more likely to modify previous practice-- concerns future detainees, not the fate of those already captured and held at Guantanamo Bay.
The Obama Administration will not be ending the practice of military detention. Military detention[5] of some detainees is appropriate, consistent with long historical practice, and a necessary and lawful tool in the current conflict.[6] True, as General David Petraeus and Secretary of Defense Robert Gates have essentially said, we cannot kill or capture our way to victory in this conflict.[7] Yet military detention, properly calibrated and designed to complement our broader national security and counterterrorism policy, is necessary, not only for some detainees currently detained at Guantanamo but also for future captures of high-value detainees.
Indeed, candidate Obama also pledged to continue to build U.S. capacity and international partnerships to track down, capture, or kill terrorists around the world, and this presumably entails holding additional detainees.[8] That promise should assure the American people that President Obama intends to protect us from those terrorists who seek to kill us. But it also begs several key questions:
- When the U.S. captures a high-value terrorist and, for whatever reason, cannot prosecute him, where will he be detained?
- Under what legal framework will he be detained?
- How will all this work given the shifting legal landscape since 9/11?
Defining the Issue
Winding down the detention operation at Guantanamo Bay in a responsible manner will be difficult, will take more than just a couple of months, and requires making difficult decisions and trade-offs.[9] Indeed, President-elect Obama acknowledged that ending the detention mission at Guantanamo Bay will be difficult and, more significantly, that he would consider it a failure if he did not close Guantanamo by the end of his first term.[10] It is a challenge because the process actually has less to do with Guantanamo Bay detainees than with the question of how we wage war in the modern era against non-state actors who are actively waging war against us.
Guantanamo Bay is just a place--a place that admittedly has harmed our country's reputation and whose benefits arguably have come to be outweighed by its costs. To be sure, the United States has gained valuable intelligence from some detainees at Guantanamo over the years and has kept those very same detainees from killing or injuring our soldiers or allies in our ongoing conflict. That intelligence has helped us to understand and fight this enemy more effectively, but its value has diminished over time. More important, that intelligence and security has strained diplomatic relations, undermined the moral authority of the United States in the eyes of some, and raised distracting domestic legal obstacles.
Simply ending the detention operations at Guantanamo addresses only one visible aspect of a broader post-9/11 detention legal framework for the incapacitation and lawful interrogation of terrorists. Closing Guantanamo or merely moving the detainees to the United States without addressing the serious underlying challenges and questions regarding detention policy in this ongoing conflict is essentially changing the ZIP code without confronting the broader challenges.
The new Administration has the opportunity, and an obligation, to build on the strategic rationale, legal and policy underpinnings, and entire framework regarding how to hold accountable and incapacitate terrorists.[11]
It is important to recall that a key recommendation from the 9/11 Commission Report was for the United States to engage our allies and develop a common approach to the detention and humane treatment of captured terrorists, drawing from Common Article 3 of the Geneva Conventions.[12] Much work has been done with respect to this key recommendation;[13] some remains.
Military detention of the enemy during armed conflict is authorized and legal. According to a legal adviser for the International Committee of the Red Cross (ICRC), such detention is an "exceptional measure of control that may be ordered for security reasons in armed conflict or for the purpose of protecting State security or public order in non-conflict situations, provided the requisite criteria have been met."[14] According to the author, "the exceptional nature of internment lies in the fact that it allows the detaining authority to deprive liberty of persons who are not subject to criminal processes but nevertheless represent a real threat to security in the present or in the future."[15]
It is also just common sense. When our military enters armed conflict, however that is defined, it has the legal authority to use lethal force when necessary. It stands to reason that the military must also be able to detain the enemy in a lawful manner, all the while upholding the rule of law, protecting human rights, and adhering to applicable provisions of the Geneva Conventions.[16]
Military detention is not a right-wing proposition; it is a time-honored, legal, proper national security tool during armed conflict. That fact is recognized across the political spectrum. On January 6, 2009, Senator Dianne Feinstein (D-CA), along with Senators John D. Rockefeller IV (D-WV), Ron Wyden (D-OR), and Sheldon Whitehouse (D-RI), introduced Senate Bill 147, the Lawful Interrogation and Detention Act. The act, directed specifically at the detainees currently at Guantanamo Bay, Cuba, specifically authorizes military detention for some detainees who cannot be prosecuted or transferred.[17]
Thus, despite what some have argued over the years, the United States is not required, by its international obligations or otherwise, to "try them or set them free." This false choice is dangerous, and it comes with real consequences. It is widely known that some detainees released from detention in Iraq, Afghanistan, and Guantanamo have taken up arms against Americans and our allies and no doubt have committed further combatant activity.[18] This risk of further combatant activity will always exist, and it is particularly acute in the current conflict.
Reducing that risk through lawful detainment is not always a controversial proposition. For years, the United States has captured, detained, and lawfully interrogated thousands of combatants within the political boundaries of Iraq and Afghanistan, and it will continue to do so for some time in Afghanistan.[19] Most detainees are detained to prevent further combatant activity against the U.S. or our forces--not tried in a criminal trial.
Beyond Guantanamo
With respect to terrorists captured in the future outside of Afghanistan, including by our allies or in a future conflict or other crisis, the detainment situation is more complicated. Neither the criminal law nor the law of armed conflict provides comprehensive and complete policy prescriptions in terms of how best to keep these combatants off of the battlefield and lawfully interrogate them while upholding the rule of law, protecting human rights, and safeguarding our country.
Prior to September 11, 2001, terrorism was treated as a matter of criminal law. The limits of and flaws in that approach have been detailed in numerous articles.[20] It is true that our anti-terrorism statutes have improved over the years and that our track record of trying terrorism in the courts is impressive, but despite the system's strength and flexibility, these improvements will carry us only so far.[21]
A recent report by Human Rights First, In Pursuit of Justice: Prosecuting Terrorism Cases in the Federal Courts, details over 100 terrorism cases successfully prosecuted in federal court since 9/11. The report covers many, but not all, of the important laws and legal and policy considerations regarding trying terrorism cases in federal district court. Yet it does not mention one case of a terrorist captured overseas on the battlefield after 9/11 and tried in the U.S. courts, nor does it seriously address the issue of the use of hearsay in federal trials for battlefield captures.
Most important, the Human Rights First report downplays the risks associated with the inadvertent disclosure of classified evidence, including valuable (and expensive) sources and methods of intelligence gathering. In every case involving such evidence--and this would include some cases involving terrorists captured overseas--there must be a careful, sophisticated cost-benefit analysis conducted by the highest officials in the government before deciding to disclose certain evidence in courtroom proceedings. Trying some terrorists in federal court should be an option, and it is an option the Bush Administration should have used more often;[22] but it should not be the exclusive weapon in our arsenal for combating al-Qaeda and other unprivileged belligerents.
To its credit, the Human Rights First report does acknowledge that some detainees may properly be held under "the law of war for the duration of active hostilities to prevent them from returning to the field of battle, and without any effort by the government to file charges or impose punishment."[23] In other words, military detention has a place in this conflict.[24]
For the most part, the Bush Administration and Congress, in its Authorization for the Use of Military Force, recognized the terrorist attacks of 9/11 as an act of war, and the law of armed conflict was the foundation for the legal framework surrounding detention. With respect to Guantanamo, the law-of-armed-conflict paradigm was challenged within weeks of detainees arriving in January 2002, and its limitations have become clearer during this long conflict.
Certainly, the law of armed conflict should and will provide the underpinnings for the detention framework in Afghanistan in the years to come, but it does not provide adequate answers to or procedural protections for detainees captured outside of Afghanistan and all of the issues that arise in a conflict of this nature.[25]
A legal regime can only set the boundaries of permissible policy; it is not a substitute for policy decisions to resolve lingering questions. In the future, when we capture a high-value al-Qaeda operative somewhere outside of Afghanistan who plots acts of terrorism or trains fellow terrorists but has not committed a domestic crime that can be prosecuted in federal district court, a court-martial, or even a new national security court, do we release him? If not, should we detain him, and under what legal framework? Where will he be detained? It is highly unlikely that the government of Afghanistan (or any other country) will allow him to be detained inside their country. Should we bring him to the United States? If so, what is his legal status, and what framework is he held under?
Further, in many of these cases, we will want to lawfully interrogate a captured operative to gain tactical or strategic intelligence. How do those lawful interrogations for intelligence reasons affect the potential for criminal prosecution? We may not be able to prosecute some of these individuals, and it may not be in our best interest as a country to try them because to do so might unreasonably risk exposing critical national security secrets.
A Future Framework
The answer, far beyond closing Guantanamo, is to solve the broader challenge of holding accountable and incapacitating terrorists in a detention framework that is lawful, durable, and internationally acceptable. As we capture future high-value terrorists outside of Afghanistan and conclude that some may not be prosecuted in our domestic courts, we will need a sustainable legal framework to detain them.[26]
Creating the right framework will be challenging, but it is necessary. As a former Administration official in charge of detainee matters observed, detention carries risks to both liberty and security.[27] Much thought needs to be given to the characteristics of persons subject to detention.[28] Conceptual criteria such as (among others) dangerousness, active or direct participation, membership in or support for an organization such as al-Qaeda, past acts, and future intentions must all be considered and weighed before drafting an appropriate definition of who may be detained.[29] However, we must remain ever mindful that our service members are facing the enemy on numerous battlefields every day: These questions are not, and should not be treated as, merely academic.
As for procedural protections for future captures, under the law of armed conflict, if there is a question as to a detainee's legal status (e.g., a prisoner of war, a civilian, or some other class), the detaining authority must hold a hearing, similar to an Article 5 hearing provided to prisoners of war under the Geneva Conventions, at or near the time of capture. If the "Article 5" hearing officer finds the terrorist detainable, then he may be detained. Alternatively, the hearing officer could make a finding that the captured person does not meet the proper criteria and order him released after the hearing.
If the person is deemed detainable by the hearing officer, after a defined period of lawful interrogation, the detainee should be given an Article 5- style "competent tribunal" hearing before a military judge where he should have assistance of military counsel.[30] If the military judge, after a full and fair hearing, decides that the detainee qualifies for further military detention, the detainee is thereafter detained pending periodic review.
There should be robust judicial appellate review, and the detainee should be afforded qualified free appellate counsel. The basis for his detention should be reviewed periodically.
Furthermore, military detention should be used only for those detainees who cannot be safely prosecuted.[31] This means, at the front end of the detention matrix, that there must be a robust system in place to determine which cases are prosecutable and which ones are not.
As a legal matter, there is support for the argument that the current Authorization for Use of Military Force (AUMF) authorizes the President to detain militarily a person captured in the United States.[32] However, as a policy matter, the proposed military detention framework should not apply to anyone captured in the United States, at least under current circumstances.[33]
Not even the Geneva Conventions or the principles underlying them answer every question. Once you give future captures an "Article 5" hearing and a "competent tribunal" determines that the detainee may be detained, then what? Does the case get transferred automatically to a federal district court judge for "independent review," perhaps under a newly created national security court? And how long do you detain the individual? How often do you review the basis of his detention? According to the Geneva Conventions, a person subject to detention must have the basis for his detention reviewed periodically, but is that an appropriate standard in this case? I believe it is warranted.
Would this system even be workable if, for example, the United States captured hundreds of detainees at a time? And what impact will these robust new rules and procedures have in the next war against a state actor who will receive fewer safeguards or rights as a prisoner of war?
All of this must be done as transparently as possible.
Finally, the United States must continue to allow the International Committee of the Red Cross[34] to perform its valuable function vis-à-vis detainees, and we must continue to work with and engage the ICRC in a substantive, confidential diplomatic dialogue.
Conclusion
Shuttering detention operations at Guantanamo Bay will be only a symbolic gesture--or perhaps not even that--if the Obama Administration does not also address the broader challenge of lawfully incapacitating terrorists who are intent on waging war against us. The incoming Administration has the duty to think through the strategic rationale of military detention in the broader context of its counterterrorism policies.
Some detainees may be appropriate candidates for criminal prosecution in federal district court, in terrorists' court-martials, or even in a newly created national security court--as long as there is not an unreasonable risk of exposure of critical national security information. Other detainees at Guantanamo Bay and those captured in the future will be appropriate candidates for military detention.
Achieving this new policy will take time. It will require the new Administration to use this "strategic pause" in military commissions, habeas corpus cases, and other ongoing matters to take stock of the best way forward.
We will see how Barack Obama responds to calls from some of his supporters to "try them or set them free." Will he make the case for a thoughtful military detainment policy, or will he give in to their dangerous demand? If Obama acknowledges that al-Qaeda members and others similarly situated are not common criminals and that military detention is a lawful and necessary tool in this ongoing conflict, we will know that our new President is serious about the threats aligned against us.
Charles D. "Cully" Stimson is Senior Legal Fellow in the Center for Legal and Judicial Studies at The Heritage Foundation. He also has served as Deputy Assistant Secretary of Defense for Detainee Affairs (2006-2007) and is a Commander in the United States Navy JAG Corps, reserve component.
Full article w/references here.
Thursday, January 22, 2009
Conservative views: A new report on Bush administration hiring practices at Justice
Revenge of the Liberal Bureaucrats, by Hans A. von Spakovsky
A new report on Bush administration hiring practices at Justice.
The Weekly Standard, Jan 23, 2009
JUSTICE DEPARTMENT INSPECTOR GENERAL Glenn Fine, himself a political appointee in the Clinton administration, has released his report on the supposed "illegal" political hiring at the Civil Rights Division of George W. Bush's Department of Justice. [Full disclosure: I served four years as a career lawyer in CRD during the Bush era -- apparently to little notice since the report barely mentions me in passing.] Fine issued the report just days before Attorney General nominee Eric Holder's confirmation hearing. That timing seemed aimed at providing maximum political benefit to Fine's fellow Democrats.
The political left, which never seems to tire of attacking the Bush Justice Department as corrupt, greeted the report with glee. But a dispassionate read can produce only sadness -- sadness that an official report can be so thickly laced with bias, inaccuracies, gross exaggerations, and deliberate misrepresentations of both facts and the law. It is also sad that the biases of those producing the report prevented them from highlighting the blatant examples of ideologically-driven hiring that occurred at Justice when Eric Holder was the Deputy Attorney General.
The report unintentionally demonstrates that what really upset Washington's Liberal Establishment was its temporary loss of power at the CRD. Activist special interests had exercised exclusive control over the Civil Rights Division for decades -- especially with respect to its hiring practices. When that rein was briefly interrupted by outsiders determined to enforce the laws as they are written, the old regime found the situation intolerable.
The Bias of the Report's Authors
The New York Times identifies Fine and Marshall Jarrett, the head of the Office of Professional Responsibility (OPR), which helped prepare the report, as "two veteran Justice Department watchdogs." Yet the OPR lawyer Jarrett assigned to conduct the investigation, Tamara Kessler, is a liberal former Civil Rights Division lawyer who actually worked alongside many of the leading critics identified in the report. Equally incredible, one of the Inspector General's lawyers assigned to probe the hiring practices of former Deputy Assistant Attorney General Brad Schlozman, was none other than Mark Masling, also a former Civil Rights Division attorney and self-proclaimed "proud Democrat." In other words, there was never even any pretense of neutrality, distance, or objectivity. One would think that two "veterans" like Fine and Jarrett would recognize the importance of avoiding personal bias and the basic conflict of interest in having liberal former CRD career lawyers investigating the hiring of CRD career lawyers. Yet both overlooked or deliberately ignored this obvious impropriety.
The bias exhibited by Fine and Jarrett should not surprise. Consider their history in investigating (or, more accurately, ignoring) misconduct by career Civil Rights Division attorneys. Every lawyer knows, for example, that one of the worst things you can do professionally is to reveal the confidences of your client and the legal advice you have provided. Yet when liberal career lawyers leaked internal, privileged memoranda to the media and the Congress on cases like the Texas congressional redistricting and the Georgia voter ID law, Fine and Jarrett exhibited no interest whatsoever in scrutinizing these offenses. (The leakers, of course, complained bitterly about ideological hiring, which is perfectly legal.) The same was true when a particularly strident liberal attorney in the Division -- while still employed there -- contacted the target of an investigation and offered to represent that jurisdiction following his departure! That is an absolute violation of the professional code of conduct. When "watchdogs" repeatedly reveal a history of applying what seems to be a politically oriented one-way ratchet, one cannot expect fairness in their report.
The Skewed Report
The report issued by Fine and Jarrett reads more like a work of fantasy than a sober investigation. For example, the report claims that Schlozman hired only two "Democrats or liberals" during his tenure in the Civil Rights Division. This is utter nonsense. As at least a few media outlets grudgingly acknowledged, Schlozman provided the Inspector General Special Agent on the case a list of more than 25 individuals that he, Schlozman, knew were ideologically liberal or committed Democrats and who he had hired into line attorney or supervisory positions during his tenure in the Division.
Yet Fine and Jarrett rebuffed Schlozman's request that they include this information in the report. Instead, they opted to libel him, apparently to stir up Democratic hostility and thereby pursue their transparently political ends. The Schlozman list squarely rebuts the report's allegation of a political litmus test in hiring. The fact that such critical information was omitted demonstrates emphatically that Fine and Jarrett knowingly and deliberately misrepresented the facts to bolster their false and pre-determined findings.
The report also faults Schlozman for hiring 63 lawyers who were "Republican or conservative." As a threshold matter, the unstated (but quite clear) implication of this point is that conservative attorneys are somehow less qualified than liberal attorneys to work in the Civil Rights Division. I have no doubt that many of the Department's employees genuinely believe this. Perhaps this is why the Division has such a well-deserved reputation as a refuge of the radical left and why a virtual "No Vacancy" sign has historically been posted for any conservative who dared seek employment there.
Of course, in a Division known for its zealous enforcement of racial preferences and general hostility to law enforcement, it is unlikely that many conservatives even wanted to work in the Division prior to the Bush administration. So the fact that a significant number of conservatives came on board only after 2000 shouldn't be a shock to anyone.
When I was hired as a career lawyer in 2001 (two years before Schlozman even arrived), I was greeted with unrelenting hostility by the career staff once they discovered that I had a conservative philosophy and had been active as a volunteer in the Republican party. I was one of just two conservatives in the entire Voting Section, which had more than 80 lawyers and support staff. It was made crystal clear to me that the attorneys and staff considered anyone with a conservative ideology to be unqualified to work as a career civil servant, and they were absolutely furious that, despite their usual screening efforts, I had been hired.
This attitude was prevalent throughout the entire Division of almost 750 people. I mention this because, even if the claim about the 63 lawyers is correct and even if all such individuals remained today (which they clearly do not), it would mean that about 8 percent of the employees in Civil Rights today are conservatives. Yet even that 8 percent gives liberals such angst that trumped up inquiries are necessary.
It is hardly a secret that, until Ralph Boyd, the first Bush Assistant Attorney General for Civil Rights, changed the hiring procedures in 2001, the liberal career managers (many of whom have complained the loudest) made sure that no conservative applicants for career positions were hired. Searching for a conservative in the Civil Rights Division prior to 2001 was like Diogenes searching for an honest man in ancient Greece. The Inspector General and Office of Professional Responsibility were provided evidence of this discrimination during their investigation, but they were not interested in examining the hiring practices of the pre-Bush era. The one-way political ratchet once again.
It's a shame that Fine and Jarrett refused to look at the past. Few may know, for example, that on December 12, 2000, when Eric Holder was the Acting Attorney General and the Supreme Court issued its decision in Bush v. Gore, the Clinton political appointees realized that Democrats would lose control of the Justice Department. At that time, there were more than two dozen open career lawyer positions in the Civil Rights Division. In a federal government that usually takes months to fill career positions, the Clinton appointees (spearheaded by Acting Assistant Attorney General Bill Yeomans, now chief counsel to Sen. Ted Kennedy) filled all of those positions before Inauguration Day!
Every one of those hires was a liberal or a Democrat and, based on Yeomans emails, was sure to be "loyal." Based on what I saw when I arrived in the Division, this same hiring pattern had clearly been practiced during all eight years of the Clinton administration. Indeed, I cannot identify a single conservative who had been hired during the Clinton years. Neither Fine nor Jarrett ever expressed any interest in investigating this blatant "political" hiring either.
Naturally, Fine and Jarrett relied heavily on these same liberal partisans/career attorneys in preparing their deceptive report. It's not like these "witnesses" are beyond reproach. In fact, one of the primary attorneys cited in the report is a defendant in a federal discrimination lawsuit. Her reputation for verbally abusing her staff is legendary (or infamous) in the Division and her exploits have been chronicled on the blog, "Above the Law." One of the Appellate Section attorneys who figured prominently in the report -- a Clinton political appointee who burrowed into the career civil service and then claimed she was victimized by the Bush political appointees -- was promoted to a policymaking counsel position in the Division's new front office on the very first day of the Obama Administration. This is a slot normally reserved for political appointees. You just can't make this stuff up.
Admittedly there were some insensitive comments in some of the emails cited in the report and some inappropriate humor, too. But the report blows them out of proportion. Schlozman was too brash at times and could have chosen his words more wisely. But it is obvious to anyone who knows him -- and it should be transparent to rational individuals who do not know him -- that Schlozman was simply engaging in the type of e-mail humor and rhetorical banter that many in Washington (and much of the country for that matter) participate on a daily basis. The poor jokes don't establish that hiring improprieties occurred, and seem to be offered more to poison the well.
Flawed Legal Analysis
The report is also simply wrong in its legal analysis. It wrongly conflates political affiliation with ideology. It mistakenly claims that hiring on the basis of "ideology" is illegal under the Civil Service Reform Act (CSRA). There is absolutely no case law to support such an interpretation, nor would it make sense for there to be.
What is illegal under the CSRA is hiring on the basis of "political affiliation," which is not at all the same as ideology. In fact, the single appellate opinion cited in the report emphasizes that only political affiliation is an illegal consideration. Of the more than 200,000 emails the report claims were reviewed, investigators reference not a single one that showed that any individual was hired or fired for a career attorney position because of his or her political affiliation as a Republican or a Democrat. The only emails highlighted in the report are emails in which comments were made regarding individuals' ideologically liberal or conservative views of the law.
This is not to say that all ideologies are acceptable. The Inspector General or Office of Professional Responsibility would certainly not find any wrongdoing if the Civil Rights Division refused to hire an otherwise qualified lawyer who was an avowed racist (or who refused to follow the Brown v. Board of Education decision). It would be eminently appropriate to discriminate against such an individual -- based on his ideology -- because he could not be trusted to properly enforce the panoply of anti-discrimination statutes falling with the Division's bailiwick. Such consideration is not only legal, but it is often quite necessary in a Division where the opportunity to abuse the federal government's enforcement authority is so significant and where the historical evidence of such abuse is so acute.
Political ideology can also have significant consequences in litigation policy. When liberal career lawyers had free rein during the Clinton administration, the Division was penalized over $4.1 million in costs and attorneys' fees for pursuing frivolous, vexatious, and unwarranted litigation. That's $4.1 million of your taxpayer dollars. This figure is not the least bit surprising based on my experience. I found that many of the career lawyers in the Civil Rights Division gave grossly flawed legal positions in which they sought to expand the statutes within the Division's jurisdiction far beyond their lawful reach. Too many of these attorneys allowed their political views to permeate their legal judgment and to override their professionalism. The conduct of some may have been unintentional, but others were simply partisan advocates masquerading as career civil servants.
I shook my head in agreement -- as did many others I know -- when I read an email cited in the report where Schlozman lamented about certain Criminal Section prosecutors who were "big libs [who] would enforce certain of our statutes only with great reluctance." Schlozman was almost certainly referring to the fact that the Division had problems with career lawyers in its Criminal Section who resented the Division's dedication of substantial resources towards human trafficking cases over police misconduct cases, or who refused to pursue death penalty cases based on their personal opposition to capital punishment. The bottom line is this: lawyers are tasked with zealously representing their clients and pursuing cases -- within the limits of the law -- whether or not the lawyers like their clients or agree with their positions.
Too many of the liberal career staff simply refused to follow those precepts. When the Voting Section commenced its first case against black officials in Noxubee, Mississippi, for discriminating against white voters, some liberal career lawyers weren't just reluctant to work on the case, they refused to work -- despite evidence of blatant and intentional discrimination. In fact, the career section chief sought to suppress the lawsuit recommendation and would have been successful but for a diligent line attorney who advised the front office of the chief's duplicity. The Section won its discrimination case, but the line attorney was ostracized by other career lawyers.
During my time in the Division I saw more than one memorandum where liberal lawyers would leave out key facts, misrepresent applicable case law, and otherwise manipulate their legal opinions to match their political views -- all because they did not agree with the Division's priorities. For example, they did not believe in enforcing a section of the National Voter Registration Act that requires election officials to regularly clean up or "purge" their voter rolls of ineligible voters who have died or moved away. Six liberal career lawyers were so upset when the first NVRA enforcement case was filed, they tried to use my involvement in that litigation to block my nomination to the FEC. They just could not tolerate that we had dared to override their refusal to enforce this federal legal requirement.
It was those kinds of attitudes and those kinds of actions that no doubt led Brad Schlozman to seek to hire individuals who, regardless of their own personal politics, would actually enforce the law according to the policy determined by the administration. Why would he want left-wing ideologues who would try to stop or sabotage such enforcement efforts?
The painfully partisan IG report gives the liberal career lawyers who overwhelmingly populate the Civil Rights Division their revenge against the Bush administration. Now they can go back to running things the way they always have -- at the beck and call of the Democratic party and radical left-wing civil rights organizations.
And for all of the Inspector General's railings against so-called "political hiring," don't bother applying to the Civil Rights Division if you have anything in your background that indicates you are a conservative. You haven't got a chance of being hired by these guys.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation and a former commissioner on the Federal Election Commission. He was also a career Counsel to the Assistant Attorney General for Civil Rights at the Department of Justice where he worked for all three of the assistant attorney generals who served in the Bush administration.
A new report on Bush administration hiring practices at Justice.
The Weekly Standard, Jan 23, 2009
JUSTICE DEPARTMENT INSPECTOR GENERAL Glenn Fine, himself a political appointee in the Clinton administration, has released his report on the supposed "illegal" political hiring at the Civil Rights Division of George W. Bush's Department of Justice. [Full disclosure: I served four years as a career lawyer in CRD during the Bush era -- apparently to little notice since the report barely mentions me in passing.] Fine issued the report just days before Attorney General nominee Eric Holder's confirmation hearing. That timing seemed aimed at providing maximum political benefit to Fine's fellow Democrats.
The political left, which never seems to tire of attacking the Bush Justice Department as corrupt, greeted the report with glee. But a dispassionate read can produce only sadness -- sadness that an official report can be so thickly laced with bias, inaccuracies, gross exaggerations, and deliberate misrepresentations of both facts and the law. It is also sad that the biases of those producing the report prevented them from highlighting the blatant examples of ideologically-driven hiring that occurred at Justice when Eric Holder was the Deputy Attorney General.
The report unintentionally demonstrates that what really upset Washington's Liberal Establishment was its temporary loss of power at the CRD. Activist special interests had exercised exclusive control over the Civil Rights Division for decades -- especially with respect to its hiring practices. When that rein was briefly interrupted by outsiders determined to enforce the laws as they are written, the old regime found the situation intolerable.
The Bias of the Report's Authors
The New York Times identifies Fine and Marshall Jarrett, the head of the Office of Professional Responsibility (OPR), which helped prepare the report, as "two veteran Justice Department watchdogs." Yet the OPR lawyer Jarrett assigned to conduct the investigation, Tamara Kessler, is a liberal former Civil Rights Division lawyer who actually worked alongside many of the leading critics identified in the report. Equally incredible, one of the Inspector General's lawyers assigned to probe the hiring practices of former Deputy Assistant Attorney General Brad Schlozman, was none other than Mark Masling, also a former Civil Rights Division attorney and self-proclaimed "proud Democrat." In other words, there was never even any pretense of neutrality, distance, or objectivity. One would think that two "veterans" like Fine and Jarrett would recognize the importance of avoiding personal bias and the basic conflict of interest in having liberal former CRD career lawyers investigating the hiring of CRD career lawyers. Yet both overlooked or deliberately ignored this obvious impropriety.
The bias exhibited by Fine and Jarrett should not surprise. Consider their history in investigating (or, more accurately, ignoring) misconduct by career Civil Rights Division attorneys. Every lawyer knows, for example, that one of the worst things you can do professionally is to reveal the confidences of your client and the legal advice you have provided. Yet when liberal career lawyers leaked internal, privileged memoranda to the media and the Congress on cases like the Texas congressional redistricting and the Georgia voter ID law, Fine and Jarrett exhibited no interest whatsoever in scrutinizing these offenses. (The leakers, of course, complained bitterly about ideological hiring, which is perfectly legal.) The same was true when a particularly strident liberal attorney in the Division -- while still employed there -- contacted the target of an investigation and offered to represent that jurisdiction following his departure! That is an absolute violation of the professional code of conduct. When "watchdogs" repeatedly reveal a history of applying what seems to be a politically oriented one-way ratchet, one cannot expect fairness in their report.
The Skewed Report
The report issued by Fine and Jarrett reads more like a work of fantasy than a sober investigation. For example, the report claims that Schlozman hired only two "Democrats or liberals" during his tenure in the Civil Rights Division. This is utter nonsense. As at least a few media outlets grudgingly acknowledged, Schlozman provided the Inspector General Special Agent on the case a list of more than 25 individuals that he, Schlozman, knew were ideologically liberal or committed Democrats and who he had hired into line attorney or supervisory positions during his tenure in the Division.
Yet Fine and Jarrett rebuffed Schlozman's request that they include this information in the report. Instead, they opted to libel him, apparently to stir up Democratic hostility and thereby pursue their transparently political ends. The Schlozman list squarely rebuts the report's allegation of a political litmus test in hiring. The fact that such critical information was omitted demonstrates emphatically that Fine and Jarrett knowingly and deliberately misrepresented the facts to bolster their false and pre-determined findings.
The report also faults Schlozman for hiring 63 lawyers who were "Republican or conservative." As a threshold matter, the unstated (but quite clear) implication of this point is that conservative attorneys are somehow less qualified than liberal attorneys to work in the Civil Rights Division. I have no doubt that many of the Department's employees genuinely believe this. Perhaps this is why the Division has such a well-deserved reputation as a refuge of the radical left and why a virtual "No Vacancy" sign has historically been posted for any conservative who dared seek employment there.
Of course, in a Division known for its zealous enforcement of racial preferences and general hostility to law enforcement, it is unlikely that many conservatives even wanted to work in the Division prior to the Bush administration. So the fact that a significant number of conservatives came on board only after 2000 shouldn't be a shock to anyone.
When I was hired as a career lawyer in 2001 (two years before Schlozman even arrived), I was greeted with unrelenting hostility by the career staff once they discovered that I had a conservative philosophy and had been active as a volunteer in the Republican party. I was one of just two conservatives in the entire Voting Section, which had more than 80 lawyers and support staff. It was made crystal clear to me that the attorneys and staff considered anyone with a conservative ideology to be unqualified to work as a career civil servant, and they were absolutely furious that, despite their usual screening efforts, I had been hired.
This attitude was prevalent throughout the entire Division of almost 750 people. I mention this because, even if the claim about the 63 lawyers is correct and even if all such individuals remained today (which they clearly do not), it would mean that about 8 percent of the employees in Civil Rights today are conservatives. Yet even that 8 percent gives liberals such angst that trumped up inquiries are necessary.
It is hardly a secret that, until Ralph Boyd, the first Bush Assistant Attorney General for Civil Rights, changed the hiring procedures in 2001, the liberal career managers (many of whom have complained the loudest) made sure that no conservative applicants for career positions were hired. Searching for a conservative in the Civil Rights Division prior to 2001 was like Diogenes searching for an honest man in ancient Greece. The Inspector General and Office of Professional Responsibility were provided evidence of this discrimination during their investigation, but they were not interested in examining the hiring practices of the pre-Bush era. The one-way political ratchet once again.
It's a shame that Fine and Jarrett refused to look at the past. Few may know, for example, that on December 12, 2000, when Eric Holder was the Acting Attorney General and the Supreme Court issued its decision in Bush v. Gore, the Clinton political appointees realized that Democrats would lose control of the Justice Department. At that time, there were more than two dozen open career lawyer positions in the Civil Rights Division. In a federal government that usually takes months to fill career positions, the Clinton appointees (spearheaded by Acting Assistant Attorney General Bill Yeomans, now chief counsel to Sen. Ted Kennedy) filled all of those positions before Inauguration Day!
Every one of those hires was a liberal or a Democrat and, based on Yeomans emails, was sure to be "loyal." Based on what I saw when I arrived in the Division, this same hiring pattern had clearly been practiced during all eight years of the Clinton administration. Indeed, I cannot identify a single conservative who had been hired during the Clinton years. Neither Fine nor Jarrett ever expressed any interest in investigating this blatant "political" hiring either.
Naturally, Fine and Jarrett relied heavily on these same liberal partisans/career attorneys in preparing their deceptive report. It's not like these "witnesses" are beyond reproach. In fact, one of the primary attorneys cited in the report is a defendant in a federal discrimination lawsuit. Her reputation for verbally abusing her staff is legendary (or infamous) in the Division and her exploits have been chronicled on the blog, "Above the Law." One of the Appellate Section attorneys who figured prominently in the report -- a Clinton political appointee who burrowed into the career civil service and then claimed she was victimized by the Bush political appointees -- was promoted to a policymaking counsel position in the Division's new front office on the very first day of the Obama Administration. This is a slot normally reserved for political appointees. You just can't make this stuff up.
Admittedly there were some insensitive comments in some of the emails cited in the report and some inappropriate humor, too. But the report blows them out of proportion. Schlozman was too brash at times and could have chosen his words more wisely. But it is obvious to anyone who knows him -- and it should be transparent to rational individuals who do not know him -- that Schlozman was simply engaging in the type of e-mail humor and rhetorical banter that many in Washington (and much of the country for that matter) participate on a daily basis. The poor jokes don't establish that hiring improprieties occurred, and seem to be offered more to poison the well.
Flawed Legal Analysis
The report is also simply wrong in its legal analysis. It wrongly conflates political affiliation with ideology. It mistakenly claims that hiring on the basis of "ideology" is illegal under the Civil Service Reform Act (CSRA). There is absolutely no case law to support such an interpretation, nor would it make sense for there to be.
What is illegal under the CSRA is hiring on the basis of "political affiliation," which is not at all the same as ideology. In fact, the single appellate opinion cited in the report emphasizes that only political affiliation is an illegal consideration. Of the more than 200,000 emails the report claims were reviewed, investigators reference not a single one that showed that any individual was hired or fired for a career attorney position because of his or her political affiliation as a Republican or a Democrat. The only emails highlighted in the report are emails in which comments were made regarding individuals' ideologically liberal or conservative views of the law.
This is not to say that all ideologies are acceptable. The Inspector General or Office of Professional Responsibility would certainly not find any wrongdoing if the Civil Rights Division refused to hire an otherwise qualified lawyer who was an avowed racist (or who refused to follow the Brown v. Board of Education decision). It would be eminently appropriate to discriminate against such an individual -- based on his ideology -- because he could not be trusted to properly enforce the panoply of anti-discrimination statutes falling with the Division's bailiwick. Such consideration is not only legal, but it is often quite necessary in a Division where the opportunity to abuse the federal government's enforcement authority is so significant and where the historical evidence of such abuse is so acute.
Political ideology can also have significant consequences in litigation policy. When liberal career lawyers had free rein during the Clinton administration, the Division was penalized over $4.1 million in costs and attorneys' fees for pursuing frivolous, vexatious, and unwarranted litigation. That's $4.1 million of your taxpayer dollars. This figure is not the least bit surprising based on my experience. I found that many of the career lawyers in the Civil Rights Division gave grossly flawed legal positions in which they sought to expand the statutes within the Division's jurisdiction far beyond their lawful reach. Too many of these attorneys allowed their political views to permeate their legal judgment and to override their professionalism. The conduct of some may have been unintentional, but others were simply partisan advocates masquerading as career civil servants.
I shook my head in agreement -- as did many others I know -- when I read an email cited in the report where Schlozman lamented about certain Criminal Section prosecutors who were "big libs [who] would enforce certain of our statutes only with great reluctance." Schlozman was almost certainly referring to the fact that the Division had problems with career lawyers in its Criminal Section who resented the Division's dedication of substantial resources towards human trafficking cases over police misconduct cases, or who refused to pursue death penalty cases based on their personal opposition to capital punishment. The bottom line is this: lawyers are tasked with zealously representing their clients and pursuing cases -- within the limits of the law -- whether or not the lawyers like their clients or agree with their positions.
Too many of the liberal career staff simply refused to follow those precepts. When the Voting Section commenced its first case against black officials in Noxubee, Mississippi, for discriminating against white voters, some liberal career lawyers weren't just reluctant to work on the case, they refused to work -- despite evidence of blatant and intentional discrimination. In fact, the career section chief sought to suppress the lawsuit recommendation and would have been successful but for a diligent line attorney who advised the front office of the chief's duplicity. The Section won its discrimination case, but the line attorney was ostracized by other career lawyers.
During my time in the Division I saw more than one memorandum where liberal lawyers would leave out key facts, misrepresent applicable case law, and otherwise manipulate their legal opinions to match their political views -- all because they did not agree with the Division's priorities. For example, they did not believe in enforcing a section of the National Voter Registration Act that requires election officials to regularly clean up or "purge" their voter rolls of ineligible voters who have died or moved away. Six liberal career lawyers were so upset when the first NVRA enforcement case was filed, they tried to use my involvement in that litigation to block my nomination to the FEC. They just could not tolerate that we had dared to override their refusal to enforce this federal legal requirement.
It was those kinds of attitudes and those kinds of actions that no doubt led Brad Schlozman to seek to hire individuals who, regardless of their own personal politics, would actually enforce the law according to the policy determined by the administration. Why would he want left-wing ideologues who would try to stop or sabotage such enforcement efforts?
The painfully partisan IG report gives the liberal career lawyers who overwhelmingly populate the Civil Rights Division their revenge against the Bush administration. Now they can go back to running things the way they always have -- at the beck and call of the Democratic party and radical left-wing civil rights organizations.
And for all of the Inspector General's railings against so-called "political hiring," don't bother applying to the Civil Rights Division if you have anything in your background that indicates you are a conservative. You haven't got a chance of being hired by these guys.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation and a former commissioner on the Federal Election Commission. He was also a career Counsel to the Assistant Attorney General for Civil Rights at the Department of Justice where he worked for all three of the assistant attorney generals who served in the Bush administration.
Considerations on Herring v. United States and the exclusionary rule
"Majesty" or truth?, by Bill Otis
PowerLine Blog, January 21, 2009 at 10:09 PM
Last week, the Supreme Court, in the case of Herring v. United States, limited slightly the applicability of the exclusionary rule. The exclusionary rule is the doctrine under which evidence obtained in the absence of a proper search is excluded from criminal trials.
My friend Bill Otis, a former Justice Department lawyer and an occasional Power Line contributor, is an expert on the exclusionary rule. So I asked him to comment on Herring. Here is what Bill wrote:
In Herring, a policeman from one county arrested the defendant based on a warrant listed on a neighboring county's electronic database. In a search incident to that arrest, the police found methamphetamine and a pistol (which is a particularly dangerous mix, even when the arrestee is not a previously convicted felon and therefore categorically barred from possessing a firearm). In turned out, however, that there was no warrant, because it had been recalled five months earlier. It remained on the database because of a negligent failure on the part of the reporting county's police department to clear it.
Herring moved to suppress the gun and meth on the grounds that the search was illegal, lacking either a warrant or probable cause. The district court and the Eleventh Circuit refused suppression, however, on the grounds that, with no intentional police misconduct, the fruits of the search should be admitted under the rationale of the "good faith" exception to the exclusionary rule. That exception was adopted 25 years ago in US v. Leon, where the police acted in good faith reliance on a warrant that was later determined to have been issued without adequate grounding in probable cause. Since Leon, and based on its rationale, the Court had also refused to apply the exclusionary rule to evidence seized in good faith police reliance on a court's database showing that a (non-existent) warrant was outstanding. Viewed narrowly, the question in Herring was whether that holding should be extended to errors in police databases.
The Herring Court, with the Chief writing for himself and Scalia, Kennedy, Thomas and Alito, held that the exclusionary rule should apply only where its deterrent effect on police misbehavior outweighs the substantial cost it imposes in letting guilty and possibly dangerous defendants go free. The majority pointed out that in the cases that gave rise to the Fourth Amendment exclusionary rule (Weeks v. US, decided in 1914; and Mapp v. Ohio, decided in 1961 and extending the rule to the states) involved intentional and gross police misconduct, quite unlike what went on in the case at hand. It would be another matter, said the majority, if the police had been shown to be reckless in maintaining a warrant-tracking system, or had a history of making knowingly false entries to lay the groundwork for future arrests. But that was not this case. The overall rule, as announced by the majority, was that in order to justify its application, the exclusionary rule would have to efficacious in deterring misconduct, and that the benefits of deterrence must outweigh its costs. The foremost of these is that it may let guilty and dangerous defendants go free, something that "offends basic concepts of the criminal justice system."
The dissent saw it differently. While acknowledging that such emminent jurists as Judge Friendly and Justice Cardozo had considerable doubts about the exclusionary rule (including Cardozo's famous observation that it means the criminal should "go free because the constable has blundered," which to its credit the dissent was honest enough to quote), the dissenters said that they preferred a more "majestic" view of the rule. Under this version, the rationale of the rule would go beyond deterring the police. Instead, the rule would be employed to insure that the courts would not themselves become helpless instruments of unconstitutional behavior and a showplace for its fruits.
Some observations:
1. This was a missed opportunity for the majority -- but perhaps intentionally missed lest Justice Kennedy forsake the majority for the dissent.
The principal flaw in the exclusionary rule, from the perspective of disciplined constitutional interpretation, is that it does not exist in the Constitution's text. Not for nothing did it take well over 100 years to discover that the Fourth Amendment contains any such nostrum. The Fifth Amendment does, to be sure: It provides that no one shall be compelled to be a witness against himself. In other words, where the witness's decision to speak is a result of compulsion, the prosecution can't elicit his testimony on the stand; the testimony is, in effect, excluded. But the fact that the Fifth Amendment contains a rule of exclusion is scarcely a reason to read one into the Fourth Amendment. Indeed, the opposite is true: Since we know that the Framers knew how to write in an exclusionary rule when they wanted to, the case for allowing the courts to write one into the Constitution is ostentatiously lacking.
If legislatures want to devise such a rule and put it in the Code of Criminal Procedure, fine, let them try. If they do, my prediction is that we'll see a bunch of new legislators after the ensuing election.
2. One must wonder what the dissenters think is "majestic" about having yet more criminal trials in which the truth is concealed from the jury. The truth is already concealed plenty -- concealed and simply mangled, most often when the defendant's witnesses lie through their teeth, as they did time and again when I was a practicing litigator. They did this, moreover, almost always with impunity: For some reason, it was considered over the top to prosecute lying defense witnesses after the fact.
The dissenters, however, had virtually nothing to say about the costs to the integrity of the justice system by a rule that allows -- nay, requires -- judges to deep-six the truth. Since the principal mission of a criminal trial is to establish the truth, one must wonder what is so appealing, much less "majestic," about excluding it.
3. The dissenters questioned whether anything but an enthusiastic application of the exclusionary rule will have the desired deterrent effect. They noted, for example, that the police could become clever at disguising as negligence a "yes-there's-a-warrant" database where in fact no warrant exists.
One thing to notice about this is that is bespeaks a visceral distrust of the police that would seem less out of place in 1969, but that with 40 years of advancing professionalism must now be viewed as quaint. One other thing to notice is that the dissenters (i.e., the Court's reliable liberals) seem to view deterrence as a sure thing when applied to POLICE conduct (including the conduct in this case, which both courts below found to be negligent at worst, and thus not a particularly promising object for a punitive rule), but a dicey proposition at best when discussing punishment for convicted street criminals, who by definition must have been acting intentionally (mens rea and all that).
PowerLine Blog, January 21, 2009 at 10:09 PM
Last week, the Supreme Court, in the case of Herring v. United States, limited slightly the applicability of the exclusionary rule. The exclusionary rule is the doctrine under which evidence obtained in the absence of a proper search is excluded from criminal trials.
My friend Bill Otis, a former Justice Department lawyer and an occasional Power Line contributor, is an expert on the exclusionary rule. So I asked him to comment on Herring. Here is what Bill wrote:
In Herring, a policeman from one county arrested the defendant based on a warrant listed on a neighboring county's electronic database. In a search incident to that arrest, the police found methamphetamine and a pistol (which is a particularly dangerous mix, even when the arrestee is not a previously convicted felon and therefore categorically barred from possessing a firearm). In turned out, however, that there was no warrant, because it had been recalled five months earlier. It remained on the database because of a negligent failure on the part of the reporting county's police department to clear it.
Herring moved to suppress the gun and meth on the grounds that the search was illegal, lacking either a warrant or probable cause. The district court and the Eleventh Circuit refused suppression, however, on the grounds that, with no intentional police misconduct, the fruits of the search should be admitted under the rationale of the "good faith" exception to the exclusionary rule. That exception was adopted 25 years ago in US v. Leon, where the police acted in good faith reliance on a warrant that was later determined to have been issued without adequate grounding in probable cause. Since Leon, and based on its rationale, the Court had also refused to apply the exclusionary rule to evidence seized in good faith police reliance on a court's database showing that a (non-existent) warrant was outstanding. Viewed narrowly, the question in Herring was whether that holding should be extended to errors in police databases.
The Herring Court, with the Chief writing for himself and Scalia, Kennedy, Thomas and Alito, held that the exclusionary rule should apply only where its deterrent effect on police misbehavior outweighs the substantial cost it imposes in letting guilty and possibly dangerous defendants go free. The majority pointed out that in the cases that gave rise to the Fourth Amendment exclusionary rule (Weeks v. US, decided in 1914; and Mapp v. Ohio, decided in 1961 and extending the rule to the states) involved intentional and gross police misconduct, quite unlike what went on in the case at hand. It would be another matter, said the majority, if the police had been shown to be reckless in maintaining a warrant-tracking system, or had a history of making knowingly false entries to lay the groundwork for future arrests. But that was not this case. The overall rule, as announced by the majority, was that in order to justify its application, the exclusionary rule would have to efficacious in deterring misconduct, and that the benefits of deterrence must outweigh its costs. The foremost of these is that it may let guilty and dangerous defendants go free, something that "offends basic concepts of the criminal justice system."
The dissent saw it differently. While acknowledging that such emminent jurists as Judge Friendly and Justice Cardozo had considerable doubts about the exclusionary rule (including Cardozo's famous observation that it means the criminal should "go free because the constable has blundered," which to its credit the dissent was honest enough to quote), the dissenters said that they preferred a more "majestic" view of the rule. Under this version, the rationale of the rule would go beyond deterring the police. Instead, the rule would be employed to insure that the courts would not themselves become helpless instruments of unconstitutional behavior and a showplace for its fruits.
Some observations:
1. This was a missed opportunity for the majority -- but perhaps intentionally missed lest Justice Kennedy forsake the majority for the dissent.
The principal flaw in the exclusionary rule, from the perspective of disciplined constitutional interpretation, is that it does not exist in the Constitution's text. Not for nothing did it take well over 100 years to discover that the Fourth Amendment contains any such nostrum. The Fifth Amendment does, to be sure: It provides that no one shall be compelled to be a witness against himself. In other words, where the witness's decision to speak is a result of compulsion, the prosecution can't elicit his testimony on the stand; the testimony is, in effect, excluded. But the fact that the Fifth Amendment contains a rule of exclusion is scarcely a reason to read one into the Fourth Amendment. Indeed, the opposite is true: Since we know that the Framers knew how to write in an exclusionary rule when they wanted to, the case for allowing the courts to write one into the Constitution is ostentatiously lacking.
If legislatures want to devise such a rule and put it in the Code of Criminal Procedure, fine, let them try. If they do, my prediction is that we'll see a bunch of new legislators after the ensuing election.
2. One must wonder what the dissenters think is "majestic" about having yet more criminal trials in which the truth is concealed from the jury. The truth is already concealed plenty -- concealed and simply mangled, most often when the defendant's witnesses lie through their teeth, as they did time and again when I was a practicing litigator. They did this, moreover, almost always with impunity: For some reason, it was considered over the top to prosecute lying defense witnesses after the fact.
The dissenters, however, had virtually nothing to say about the costs to the integrity of the justice system by a rule that allows -- nay, requires -- judges to deep-six the truth. Since the principal mission of a criminal trial is to establish the truth, one must wonder what is so appealing, much less "majestic," about excluding it.
3. The dissenters questioned whether anything but an enthusiastic application of the exclusionary rule will have the desired deterrent effect. They noted, for example, that the police could become clever at disguising as negligence a "yes-there's-a-warrant" database where in fact no warrant exists.
One thing to notice about this is that is bespeaks a visceral distrust of the police that would seem less out of place in 1969, but that with 40 years of advancing professionalism must now be viewed as quaint. One other thing to notice is that the dissenters (i.e., the Court's reliable liberals) seem to view deterrence as a sure thing when applied to POLICE conduct (including the conduct in this case, which both courts below found to be negligent at worst, and thus not a particularly promising object for a punitive rule), but a dicey proposition at best when discussing punishment for convicted street criminals, who by definition must have been acting intentionally (mens rea and all that).
Tuesday, January 20, 2009
Next AG Eric Holder, Wiretaps, and FISA
Holder for Wiretaps. WSJ Editorial
The AG nominee bows on Presidential power
WSJ, Jan 20, 2009
First it was the special surveillance court that we learned last week has affirmed the President's constitutional power to undertake warrantless wiretaps. Now comes Attorney General nominee Eric Holder, who endorsed this executive authority during his confirmation hearing late last week.
During Thursday's Senate Judiciary Committee hearing, Utah's Orrin Hatch read Mr. Holder a passage from a speech the nominee gave to the American Constitution Society in June of last year. Mr. Holder had said, "I never thought I would see that a President would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens," referring to the National Security Agency program. "This disrespect for the law is not only wrong. It is destructive in our struggle against terrorism."
The Republican Senator was sniffing out Mr. Holder's views on executive power under the Constitution and whether Congress can pass laws, such as the 1978 Foreign Intelligence Surveillance Act, that limit it. "Do you believe," asked Mr. Hatch, "that the President has -- that whoever is President has -- inherent authority under Article II of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article II?"
Mr. Holder answered with some political tap dancing. "There's an exclusivity provision in the FISA act that essentially says, as Congress has expressed, this is the exclusive way in which that surveillance should occur," he said. "My speech was taking the Administration to task for not following the dictates of FISA. As I indicated -- I think in response to a previous question -- I think that had the Administration worked with Congress, as we are pledging to do, that tool, a very valuable tool, a very valuable tool, could have been in the arsenal of the Administration without any question about its legality."
Senator Hatch pressed him on this point, resulting in the following exchange:
Mr. Hatch: "Back to my prior point, the President's inherent authority under the Constitution. Can that be limited by a statute? You're relying on a statute as though that's binding on Article II of the Constitution."
Mr. Holder: "Well, the President obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier. There are powers that the President has delegated to him -- that he has -- and Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always a tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the President, the executive branch interacting with the legislative branch and coming up with solutions . . ."
Mr. Hatch: "That still doesn't negate the fact that the President may have inherent powers under Article II that even a statute cannot vary."
Mr. Holder: "Sure."
Mr. Hatch: "Do you agree with that statement?"
Holder: "Yeah. There are certain things that a President has the constitutional right, authority to do, that the legislative branch cannot impinge upon."
Hatch: "Okay."
[More faithfully reproduced questioning in Eric Posner's post at Volokh Conspiracy. See at the end]
So let's see. Mr. Holder now concedes that Presidents have inherent powers that even a statute can't abridge, notwithstanding his campaign speeches. That makes us feel better about a General Holder on national security. But his concession is further evidence that the liberal accusations about "breaking the law" and "illegal wiretaps" of the last several years were mostly about naked partisanship. Mr. Holder's objection turns out to be merely the tactical political one that the Bush Administration would have been better off negotiating with Congress for wiretap approval, not that it was breaking the law. Now he tells us.
---
[Eric Posner's post at Volokh Conspiracy, picking from the NYT transcript]
LEAHY: Do you believe that the president of the United States has authority to exercise a commander-in-chief override and immunize acts of torture? I ask that because we did not get a satisfactory answer from Former Attorney General Gonzales on that.
HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed — obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws.
…
FEINGOLD: … First, what is your view of the president's constitutional authority to authorize violation of the criminal law, duly enact the statutes that may have been on the books for many years when acting as commander-in- chief?
HOLDER: The president, as I've said, is not above the law, has a constitutional obligation to follow the law and execute the laws that this Congress passes. If you look at the Steel Seizure concurrence of Justice Jackson that, I think, sets out in really wonderful form the power that the president has and where the president's power is strongest and where it is weakest.
It is weakest in Category 3 where Congress has indicated something contrary to what the president wants to do. That is where Justice Jackson says the president's power is at its lowest level. And I think — I'm not a constitutional scholar — but I think that there has never been a president who's been upheld when he's tried to act in Category 3. I think, but I'm not sure.
FEINGOLD: I believe that's right. And I want to follow that. Using the construct of Justice Jackson, more specifically, does the president, in your opinion, have the authority, acting as commander- in-chief, to authorize warrantless searches of Americans homes and wiretaps of their conversations in violation of the criminal and foreign intelligence statutes of this country?
HOLDER: I think you're then getting into Category 3 behavior by the president. Justice Jackson did not say that the president did not have any ability to act in Category 3. Although, as I said, I'm not sure there's ever been an instance where (inaudible) courts have said that the president did act appropriately in that category.
It seems to maybe it's difficult it imagine a set of circumstances given the hypothetical that you have used and given the statutes that you have referenced that the president would be acting in an appropriate way given the Jackson construct, when I think is a good one.
…
HATCH: … Now, do you believe that the president has — whoever is president of the United States — has inherent authority under Article 2 of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article 2?
HOLDER: Senator, no one is above the law. The president has the constitutional obligation to make sure that the laws are faithfully executed. In rare instances where Congress passes a law that is obviously unconstitutional — if, for instance, Congress were to pass a law that the secretary of defense should be the commander-in-chief, or that women would not have the right to vote — I think that the president in that instance would have the ability to act contrary to a congressional dictate.
…
OK. But back to our prior point, is the president's inherent authority under the Constitution — can that be limited by a statute?
HOLDER: The president's inherent authority. Well...
HATCH: Right.
HOLDER: ... it's...
HATCH: I mean, you're relying on the statute as though that's binding on Article 2 of the Constitution.
HOLDER: Well, the president obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier.
There are powers that the president has, and that have been delegated to him that he has. And in the absence — Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always the tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the president, the executive branch interacting with the legislative branch, and coming up with solutions...
HATCH: That still doesn't negate the fact that the president may have inherent powers under Article 2 that even a statute cannot vary.
HOLDER: Well, sure. The...
HATCH: Do you agree with that statement?
HOLDER: Yes, there are certain things that the president has the constitutional right, authority to do, that the legislative branch cannot impinge upon.
The AG nominee bows on Presidential power
WSJ, Jan 20, 2009
First it was the special surveillance court that we learned last week has affirmed the President's constitutional power to undertake warrantless wiretaps. Now comes Attorney General nominee Eric Holder, who endorsed this executive authority during his confirmation hearing late last week.
During Thursday's Senate Judiciary Committee hearing, Utah's Orrin Hatch read Mr. Holder a passage from a speech the nominee gave to the American Constitution Society in June of last year. Mr. Holder had said, "I never thought I would see that a President would act in direct defiance of federal law by authorizing warrantless NSA surveillance of American citizens," referring to the National Security Agency program. "This disrespect for the law is not only wrong. It is destructive in our struggle against terrorism."
The Republican Senator was sniffing out Mr. Holder's views on executive power under the Constitution and whether Congress can pass laws, such as the 1978 Foreign Intelligence Surveillance Act, that limit it. "Do you believe," asked Mr. Hatch, "that the President has -- that whoever is President has -- inherent authority under Article II of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article II?"
Mr. Holder answered with some political tap dancing. "There's an exclusivity provision in the FISA act that essentially says, as Congress has expressed, this is the exclusive way in which that surveillance should occur," he said. "My speech was taking the Administration to task for not following the dictates of FISA. As I indicated -- I think in response to a previous question -- I think that had the Administration worked with Congress, as we are pledging to do, that tool, a very valuable tool, a very valuable tool, could have been in the arsenal of the Administration without any question about its legality."
Senator Hatch pressed him on this point, resulting in the following exchange:
Mr. Hatch: "Back to my prior point, the President's inherent authority under the Constitution. Can that be limited by a statute? You're relying on a statute as though that's binding on Article II of the Constitution."
Mr. Holder: "Well, the President obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier. There are powers that the President has delegated to him -- that he has -- and Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always a tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the President, the executive branch interacting with the legislative branch and coming up with solutions . . ."
Mr. Hatch: "That still doesn't negate the fact that the President may have inherent powers under Article II that even a statute cannot vary."
Mr. Holder: "Sure."
Mr. Hatch: "Do you agree with that statement?"
Holder: "Yeah. There are certain things that a President has the constitutional right, authority to do, that the legislative branch cannot impinge upon."
Hatch: "Okay."
[More faithfully reproduced questioning in Eric Posner's post at Volokh Conspiracy. See at the end]
So let's see. Mr. Holder now concedes that Presidents have inherent powers that even a statute can't abridge, notwithstanding his campaign speeches. That makes us feel better about a General Holder on national security. But his concession is further evidence that the liberal accusations about "breaking the law" and "illegal wiretaps" of the last several years were mostly about naked partisanship. Mr. Holder's objection turns out to be merely the tactical political one that the Bush Administration would have been better off negotiating with Congress for wiretap approval, not that it was breaking the law. Now he tells us.
---
[Eric Posner's post at Volokh Conspiracy, picking from the NYT transcript]
LEAHY: Do you believe that the president of the United States has authority to exercise a commander-in-chief override and immunize acts of torture? I ask that because we did not get a satisfactory answer from Former Attorney General Gonzales on that.
HOLDER: Mr. Chairman, no one is above the law. The president has a constitutional obligation to faithfully execute the laws of the United States. There are obligations that we have as a result of treaties that we have signed — obligations, obviously, in the Constitution. Where Congress has passed a law, it is the obligation of the president, or the commander-in-chief, to follow those laws.
…
FEINGOLD: … First, what is your view of the president's constitutional authority to authorize violation of the criminal law, duly enact the statutes that may have been on the books for many years when acting as commander-in- chief?
HOLDER: The president, as I've said, is not above the law, has a constitutional obligation to follow the law and execute the laws that this Congress passes. If you look at the Steel Seizure concurrence of Justice Jackson that, I think, sets out in really wonderful form the power that the president has and where the president's power is strongest and where it is weakest.
It is weakest in Category 3 where Congress has indicated something contrary to what the president wants to do. That is where Justice Jackson says the president's power is at its lowest level. And I think — I'm not a constitutional scholar — but I think that there has never been a president who's been upheld when he's tried to act in Category 3. I think, but I'm not sure.
FEINGOLD: I believe that's right. And I want to follow that. Using the construct of Justice Jackson, more specifically, does the president, in your opinion, have the authority, acting as commander- in-chief, to authorize warrantless searches of Americans homes and wiretaps of their conversations in violation of the criminal and foreign intelligence statutes of this country?
HOLDER: I think you're then getting into Category 3 behavior by the president. Justice Jackson did not say that the president did not have any ability to act in Category 3. Although, as I said, I'm not sure there's ever been an instance where (inaudible) courts have said that the president did act appropriately in that category.
It seems to maybe it's difficult it imagine a set of circumstances given the hypothetical that you have used and given the statutes that you have referenced that the president would be acting in an appropriate way given the Jackson construct, when I think is a good one.
…
HATCH: … Now, do you believe that the president has — whoever is president of the United States — has inherent authority under Article 2 of the Constitution to engage in warrantless foreign intelligence surveillance? Or, in your opinion, does FISA trump Article 2?
HOLDER: Senator, no one is above the law. The president has the constitutional obligation to make sure that the laws are faithfully executed. In rare instances where Congress passes a law that is obviously unconstitutional — if, for instance, Congress were to pass a law that the secretary of defense should be the commander-in-chief, or that women would not have the right to vote — I think that the president in that instance would have the ability to act contrary to a congressional dictate.
…
OK. But back to our prior point, is the president's inherent authority under the Constitution — can that be limited by a statute?
HOLDER: The president's inherent authority. Well...
HATCH: Right.
HOLDER: ... it's...
HATCH: I mean, you're relying on the statute as though that's binding on Article 2 of the Constitution.
HOLDER: Well, the president obviously has powers under the Constitution that cannot be infringed by the legislative branch. That's what I was saying earlier.
There are powers that the president has, and that have been delegated to him that he has. And in the absence — Congress does not have the ability to say, with regard to those powers, you cannot exercise them. There's always the tension in trying to decide where that balance is struck. And I think we see the best result when we see Congress interacting with the president, the executive branch interacting with the legislative branch, and coming up with solutions...
HATCH: That still doesn't negate the fact that the president may have inherent powers under Article 2 that even a statute cannot vary.
HOLDER: Well, sure. The...
HATCH: Do you agree with that statement?
HOLDER: Yes, there are certain things that the president has the constitutional right, authority to do, that the legislative branch cannot impinge upon.
Wednesday, January 14, 2009
Brillon case: A perverse legal incentive goes before the Supreme Court
A Foot-Dragger Walks. Washington Post Editorial
A perverse legal incentive goes before the Supreme Court.
WaPo, Wednesday, January 14, 2009; page A16
FROM 2001 through 2004, Michael Brillon was represented by six different publicly funded attorneys. He fired two, claiming they did little-to-no work on his case; he threatened the life of a third -- forcing his withdrawal -- and had two others leave. As a result, Mr. Brillon, who had three prior felony convictions, spent three years in jail before, with the sixth lawyer representing him, he was convicted by a jury of second-degree aggravated domestic assault and sentenced to 12 to 20 years in prison. He was given credit for the time he served before his trial.
The Vermont Supreme Court threw out Mr. Brillon's conviction and barred prosecutors from retrying him after concluding that Mr. Brillon's right to a speedy trial had been violated -- even though the delays were the fault of Mr. Brillon or his lawyers. The court concluded, in part, that because the public defenders were paid with state money, the state must be held responsible. The Supreme Court, which heard arguments in the case yesterday, should overrule the decision.
Public defenders provide an indispensable service. They have been overworked and underfunded for far too long, and it is little wonder that some may not be able to competently manage all of their cases. This neglect risks travesties of all kinds, including the incarceration of innocent people. But letting defendants and their lawyers benefit from delays of their own making would create a perverse incentive for them to drag their feet. Some may question the likelihood of a defendant's choosing to remain behind bars without being convicted, but it is not far-fetched to imagine such a calculus from those who, as Mr. Brillon did, face long sentences.
Linking dismissal to time factors alone is a bad idea, but a defendant must have an opportunity for relief if a public defender's neglect is significant or serious delays are caused because of lawyers' being cycled through a case. Defendants who can prove that such delays and neglect substantially harmed their cases would be entitled to new trials. These kinds of motions are rarely granted, but they provide a safety valve in extraordinary circumstances.
A perverse legal incentive goes before the Supreme Court.
WaPo, Wednesday, January 14, 2009; page A16
FROM 2001 through 2004, Michael Brillon was represented by six different publicly funded attorneys. He fired two, claiming they did little-to-no work on his case; he threatened the life of a third -- forcing his withdrawal -- and had two others leave. As a result, Mr. Brillon, who had three prior felony convictions, spent three years in jail before, with the sixth lawyer representing him, he was convicted by a jury of second-degree aggravated domestic assault and sentenced to 12 to 20 years in prison. He was given credit for the time he served before his trial.
The Vermont Supreme Court threw out Mr. Brillon's conviction and barred prosecutors from retrying him after concluding that Mr. Brillon's right to a speedy trial had been violated -- even though the delays were the fault of Mr. Brillon or his lawyers. The court concluded, in part, that because the public defenders were paid with state money, the state must be held responsible. The Supreme Court, which heard arguments in the case yesterday, should overrule the decision.
Public defenders provide an indispensable service. They have been overworked and underfunded for far too long, and it is little wonder that some may not be able to competently manage all of their cases. This neglect risks travesties of all kinds, including the incarceration of innocent people. But letting defendants and their lawyers benefit from delays of their own making would create a perverse incentive for them to drag their feet. Some may question the likelihood of a defendant's choosing to remain behind bars without being convicted, but it is not far-fetched to imagine such a calculus from those who, as Mr. Brillon did, face long sentences.
Linking dismissal to time factors alone is a bad idea, but a defendant must have an opportunity for relief if a public defender's neglect is significant or serious delays are caused because of lawyers' being cycled through a case. Defendants who can prove that such delays and neglect substantially harmed their cases would be entitled to new trials. These kinds of motions are rarely granted, but they provide a safety valve in extraordinary circumstances.
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