More Thoughts on the Trial of KSM

Yesterday, Attorney General Eric Holder defended the Obama administration's decision to try Khalid Sheikh Mohammed in federal court in New York City. While Holder did admit that "we are at war" with al Qaeda, the civilian court system was the best venue to try KSM: “We need not cower in the face of this enemy. Our institutions are strong, our infrastructure is ready, our resolve is firm, and our people are ready.”

But there are still several problems with this decision that bother me, and make me wonder why the Obama administration made this decision.

First, in response to stated worries by the senators (Holder was testifying about the decision before the Senate Judiciary Committee) about the chance that KSM would not be found guilty, Holder responded “Failure is not an option.” Now, it's likely that Holder was speaking rhetorically here and that he didn't actually mean that it is impossible for KSM to get off on the charges. But the remark certainly implies that the civilian trial has been predetermined, or at least will be little more than a show trial. If the decision to shift trial venues was primarily intended to erase the bad taste remaining from the Bush administration's efforts to evade the law and the taint of Guantanamo, anything that calls into question the fairness of the civil trial KSM is about to undergo undermines that intent. When the Attorney General says failure is not an option, it certainly raises questions as to whether KSM can, in fact, receive a fair trial. Is it possible to find American citizens, and more specifically New Yorkers, who won't have prejudged the case and KSM's guilt? Furthermore, the New York Times reports that "other Justice Department officials have said that even if Mr. Mohammed is acquitted, the Obama administration will keep him locked up forever as a 'combatant' under the laws of war." How will that look? How will the international community respond if KSM is acquitted under our domestic laws and then kept indefinitely in military custody? Won't that simply reinforce the perception of injustice?

Second, in an excellent piece over at Slate, David Feige warns that, far from upholding the American principal of law and order, this trial may very well undermine our legal system by "generate a tragic flood of bad law, rendering the defense team's valiant service not merely unsuccessful but actually hostile to the interests of all their other clients." According to Feige, because "No jury on this continent is going to acquit their client, the government is certain to insist on the death penalty, and KSM will almost certainly try to put the government on trial," KSM's defense lawyers will be forced to rely on two strategies: 1) An argument that persuasive evidence of torture should result in the suppression of a great deal of evidence; and 2) to use the discovery process to uncover facts that embarrass or discomfit the government. Feige points out how this strategy forced the US government to back away from its desired three life sentences for "American Taliban" John Walker Lindh and settle for 20 years in prison in exchange for Lindh agreeing to a gag order and dropping his claims of torture and mistreatment. This time, according to Feige:

They'll allege a violation of KSM's right to a speedy trial, claiming that the years he spent in CIA detention and Gitmo violated this constitutional right. They'll seek suppression of KSM's statements, arguing (persuasively) that the torture he endured—sleep deprivation, noise, cold, physical abuse, and, of course, 183 water-boarding sessions—make his statements involuntary. They will insist that everything stemming from those statements must be suppressed, under the Fourth Amendment, as the fruit of the wildly poisonous tree. They will demand the names of operatives and interrogators, using KSM's right to confront the witnesses against him to box the government into revealing things it would prefer to keep secret—the identities of confidential informants, the locations of secret safe houses, the names of other inmates and detainees who provided information about him, and a thousand other clever things that should make the government squirm. The defense will attack the CIA, FBI, and NSA, demanding information about wiretapping and signal intelligence and sources and methods. They'll move to dismiss the case because there is simply no venue in the United States in which KSM can get a fair trial.

...

The judicial refusal to consider KSM's years of quasi-legal military detention as a violation of his right to a speedy trial will erode that already crippled constitutional concept. The denial of the venue motion will raise the bar even higher for defendants looking to escape from damning pretrial publicity. Ever deferential to the trial court, the U.S. Court of Appeals for the Second Circuit will affirm dozens of decisions that redact and restrict the disclosure of secret documents, prompting the government to be ever more expansive in invoking claims of national security and emboldening other judges to withhold critical evidence from future defendants. Finally, the twisted logic required to disentangle KSM's initial torture from his subsequent "clean team" statements will provide a blueprint for the government, giving them the prize they've been after all this time—a legal way both to torture and to prosecute.

By prosecuting KSM in civilian courts, the rule of law itself may very well be damaged. Take the question of torture. Even if a court is willing to determine that waterboarding is not torture but a legitimate coercive interrogation technique, the government's own memoranda make it clear that KSM was waterboarded in violation of the rules established to ensure that the use of waterboarding would not constitute torture. According to the legal opinion written by Steven Bradbury of the Office of Legal Counsel in the Department of Justice (p.15):

The waterboard may be authorized for, at most, one 30 day period, during which the technique can actually applied on no more than five days...Further, there can be no more than two sessions in any 24-hour period. Each session--the time during which the detainee is strapped to the waterboard--lasts no more than two hours. There may be at most six applications of water lasting 10 seconds or longer during any session, and water may be applied for a total of no more than 12 minutes during any 24-hour period.

But, on p. 37, we are informed that the waterboard was used "183 times during March 2003 in the interrogation of KSM (Khalid Sheikh Mohammed)." As I wrote on April 20, if you "do the math on the instructions from p. 15, the rules limit the use of the waterboard to no more than 60 times per month (five days per month, two sessions per day, six applications of water during each session; 5x2x6=60). And yet, KSM was waterboarded 183 times." There is seemingly no question that the government broke its own rules on the waterboard with KSM and that breaking those rules almost certainly means that KSM was tortured, even if the use of the waterboard, in and of itself, does not equate to torture. What will a trial judge and a jury do with this information? What happens when KSM's defense attorneys claim that everything KSM admitted was tainted by the abusive and wildly excessive torture he suffered? As Feige points out, the evidence could be dismissed, raising the likelihood that KSM could be acquitted. Or, the claim will be ignored or, if the government has enough evidence to convict KSM even if all torture-tainted evidence is throw out, rendered irrelevant. Either way, this has the potential to create extremely dangerous precedents and procedures within the US legal system.

To me, this whole thing seems like a no-win situation. If KSM is convicted, it won't put to rest any doubts about the fairness of the American legal system and its application in the war on terror. And if by some unforeseeable development he's acquitted, it's hard to imagine a bigger transgression against justice.

The Trial of Khalid Sheik Mohammed

Last week, the Obama administration annouced that Khalid Sheikh Mohammed, the suspected mastermind of the 9/11 attacks, along with four other suspected members of al Qaeda will be transferred from the detention facility at Guantanamo Bay Naval Base to New York City to face trial in civilian court. Interestingly, however, Obama has not decided to use the civilian courts for all of the Guantanamo detainees; five more face trial by military commission, largely because their crimes were more directly pursuant to military operations:

Holder also announced that five other detainees held at the U.S. military detention facility at Guantanamo Bay, Cuba, will be sent to military commissions for trial. They were identified as Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri.

Al-Nashiri is an accused mastermind of the deadly 2000 bombing of the USS Cole; Khadr is a Canadian charged with the 2002 murder of a U.S. military officer in Afghanistan. Khadr was 15 years old when he was captured in July 2002.

Additionally, several more will not be tried at all; rather, they will continue to be held indefinitely without charge or trial.

This decision has, of course, outraged many who believe that the decision to try KSM in civilian court is dangerous. John Yoo, the architect of many of the most controversial Bush-era legal decisions, argues in the Wall Street Journal:

Trying KSM in civilian court will be an intelligence bonanza for al Qaeda and the hostile nations that will view the U.S. intelligence methods and sources that such a trial will reveal. The proceedings will tie up judges for years on issues best left to the president and Congress.

Now, however, KSM and his co-defendants will enjoy the benefits and rights that the Constitution accords to citizens and resident aliens—including the right to demand that the government produce in open court all of the information that it has on them, and how it got it.

Prosecutors will be forced to reveal U.S. intelligence on KSM, the methods and sources for acquiring its information, and his relationships to fellow al Qaeda operatives. The information will enable al Qaeda to drop plans and personnel whose cover is blown. It will enable it to detect our means of intelligence-gathering, and to push forward into areas we know nothing about.

This is not hypothetical, as former federal prosecutor Andrew McCarthy has explained. During the 1993 World Trade Center bombing trial of Sheikh Omar Abdel Rahman (aka the "blind Sheikh"), standard criminal trial rules required the government to turn over to the defendants a list of 200 possible co-conspirators.

In essence, this list was a sketch of American intelligence on al Qaeda. According to Mr. McCarthy, who tried the case, it was delivered to bin Laden in Sudan on a silver platter within days of its production as a court exhibit.

Bin Laden, who was on the list, could immediately see who was compromised. He also could start figuring out how American intelligence had learned its information and anticipate what our future moves were likely to be.

Even more harmful to our national security will be the effect a civilian trial of KSM will have on the future conduct of intelligence officers and military personnel. Will they have to read al Qaeda terrorists their Miranda rights? Will they have to secure the "crime scene" under battlefield conditions? Will they have to take statements from nearby "witnesses"? Will they have to gather evidence and secure its chain of custody for transport all the way back to New York? All of this while intelligence officers and soldiers operate in a war zone, trying to stay alive, and working to complete their mission and get out without casualties.

...

For a preview of the KSM trial, look at what happened in the case of Zacarias Moussaoui, the so-called 20th hijacker who was arrested in the U.S. just before 9/11. His trial never made it to a jury. Moussaoui's lawyers tied the court up in knots.

All they had to do was demand that the government hand over all its intelligence on him. The case became a four-year circus, giving Moussaoui a platform to air his anti-American tirades. The only reason the trial ended was because, at the last minute, Moussaoui decided to plead guilty. That plea relieved the government of the choice between allowing a fishing expedition into its intelligence files or dismissing the charges.

In response to Yoo and others who have decried Obama's decision, Tommy Crocker of the University of South Carolina's Law School, guest-blogging over Opinio Juris, writes:

Mr. Yoo [does not make] this clear, but [he] seems to rely on a judgment about the nature of the acts perpetrated by terrorists. Are some acts so heinous that by their very nature, they morally “deserve” to be punished by less robust rights-protecting procedures? I can see that for pragmatic purposes, different criminal acts may lead to differing needs to seek punishment in ad hoc tribunals or military commissions which may afford alternative procedures. But to my knowledge special tribunals do not establish differing degrees of rights-protections based on moral judgments about the nature of the underlying criminal acts over which they sit in judgment. Ordinarily, questions of moral desert occur both before and after a trial—in judgments about which acts to criminalize and how severe to punish them—not in decisions about trial procedure itself, nor in decisions about who receives basic human rights protections. Thus, the underlying view is not only that we are engaged in a “new kind of war” facing a new kind of enemy whose very warlike actions are illegal, but those actions are of a kind morally deserving of a lesser legal process.

I think this view mistaken. I also see no reason to think that precluding this type of moral judgment harms national security—quite the opposite. Procedural protections are not, nor should they be, grounded in prior judgments of moral desert. To go down this path is to go down the path of varying human rights protections based on moral judgments about who deserves them. On this score, we make no further distinctions than to say that if anyone deserves them, we all do.

Not surprisingly, I think both of these guys are wrong. Crocker's argument seems a bit bizarre to me. I don't see why or how a moral judgment needs to be part of the equation here. Yoo isn't arguing that members of al Qaeda are inhuman and therefore undeserving of rights and due process; rather, he's arguing that the US is involved in a war with al Qaeda and that different legal codes apply in time of war. People who commit war crimes are not tried in civilian courts; they are tried by military commissions with different legal rights than civilians and under the laws of war which are different than civilian laws. One can argue about whether terrorism of the kind practiced by al Qaeda should be dealt with in a military framework, but Crocker seems to dismiss this argument entirely.

The nature of al Qaeda and its missions do, in my opinion, lend themselves to the military model rather than a civilian legalistic frame. The inter- and trans-national nature of the organization, its efforts to kill large numbers of non-combatants, its frequent targeting of military assets and the difficulties posed by the standard law enforcement models (e.g. its emphasis on procedural justice and ex post, rather than ex ante, actions) are not well suited for a civilian/traditional law enforcement response. That's not to say that law enforcement plays no role, or that the military option is always the proper one. But the US is clearly involved in military operations against al Qaeda and mass terrorism of the kind perpetrated by al Qaeda is much closer to a war crime than it is to murder.

That said, I think Yoo's argument is wrong as well. Well, not so much wrong as problematic. The problem is the poor decisions the Bush administration made in the early days of the war on terror regarding the detainees; decisions in which Yoo was involved as he makes abundantly clear in his memoir War By Other Means: An Insider's Accout of the War on Terror.

As suspected members of al Qaeda began to trickle into Guantanamo Bay (along with hundreds of innocent people handed over to US forces by opportunistic Afghani militants seeking reward money) the Bush administration needed to decide what laws would apply to these people. The choices were civilian law or military law. The Bush administration chose neither.

The selection of Guantanamo Bay as the detention facility was explicitly intended to place the detainees beyond the reach of US civilian courts and laws. Fine. But no one is outside of all law. If individuals seized by US military forces are not to be granted the rights and protections of US civilian law then they must be granted the rights and protections of the laws of war, as embodied in the Geneva Conventions. But the Bush administration sought to deny KSM and his colleagues even these rights.

Following the Geneva Conventions would not have guaranteed KSM protections as a prisoner of war. The Geneva Conventions make it clear that al Qaeda was fighting in violations of the laws of war, and thus not due the protection of POW status and eligible for trial for their actions. All that was needed was an Article 5 hearing to determine status; not guilt, just status. Each detainee needed to be given the opportunity to claim before a competent panel that he was not a member of al Qaeda or that he was fighting in accordance with the laws of war. Once the determination was made that the detainee was a member of al Qaeda and was violating the laws of war, the detainee could be denied POW status and subject to trial by a military commission (Common Article 3 of the Conventions protects the rights of non-POWs by guaranteeing them fair trials).

However, Yoo and the Bush administration sought to have it both ways. They did not want US law to apply, nor did they want the Geneva Conventions to apply. And this kicked off a series of court cases between detainees challenging their status and the administration. If the administration had simply granted KSM and his fellow al Qaeda suspects an Article 5 hearing to determine their status as illegal combatants under the laws of war, we most likely wouldn't be in the mess we're in today. The US would have then been perfectly within its rights under the laws of war to either hold the detainees indefinitely until the end of hostilities or to try them under military commissions. Of course, the argument could still be made that the laws of war were not the appropriate laws to be used. But as it seems that part of Obama's decision to move KSM into the civilian judicial system is to erase the doubts and questions raised by the Bush administration's attempts to escape the law perhaps Obama would have been happy to try KSM under military law as he is doing with Omar Khadr, Mohammed Kamin, Ibrahim al Qosi, Noor Uthman Muhammed and Abd al-Rahim al-Nashiri. In fact, the whole thing might be over by now, as KSM was prepared to plead guilty to a military tribunal late last year.

I certainly understand Obama's desire to make amends for the legal mistakes of the Bush administration, but moving KSM to New York is a risky move. Despite Obama's predictions that KSM will be found guilty and put to death, there most certainly is a risk that KSM will not be given the death penalty (as occurred in the trial of Zacarias Moussaoui, when one juror balked at handing down a death sentence) or that he won't be found guilty at all for a number of procedural reasons. And Yoo's warnings about the threats to intelligence and counter-terror operations should not be taken lightly either. Military commissions can be both fair and efficient; in fact, in this case I'd assume that KSM would get a more fair trial in a military tribunal than before a panel of American citizens. But the die has been cast; let's hope KSM gets what is coming to him.

Should Congress Declare War on al Qaeda?

Testifying before Congress today, Attorney General Michael Mukasey urged Congress to formally declare war on al Qaeda. Appearing to provide testimony about pending legislation concerning the decision in the Boumediene case that detainees in Guantanamo Bay do have habeas rights, Mukasey argued that the legislation should:

prohibit courts from ordering a detainee to be released within the United States, protect secrets in court hearings, ensure that soldiers are not taken from the battlefield to testify and prevent challenges from delaying detainee trials,

In addition, he said, "Any legislation should acknowledge again and explicitly that this nation remains engaged in an armed conflict with al Qaeda, the Taliban and associated organizations, who have already proclaimed themselves at war with us."

"Congress should reaffirm that for the duration of the conflict the United States may detain as enemy combatants those who have engaged in hostilities or purposefully supported al Qaeda," and related groups, he said.

As readers of this blog, I have long argued that the congressional power to declare war is about the legal status of individuals under the jurisdiction of US law, rather than the power to deploy troops and initial hostilities, and Mukasey's request fits along that opinion.

However, it would be disastrous if Congress declared war. Fortunately, it's hard to imagine Congress doing so, especially as the Bush presidency comes to an end. But, if Congress agrees with Mukasey and does declare war, Bush would be placed at the absolute zenith of presidential power. Declarations of war are tools by which Congress recognizes the grave danger faced by the nation and expands presidential power to meet that threat. The expanded power enjoyed by the president under a formal declaration of war is, in essence, the power to legislate normally possessed by Congress. Thus, under a declaration of war, presidents are able to intern US citizens, seize domestic industry, censor the press, and take similar actions of a legislative nature. Clearly, these are the kinds of powers Mukasey has in mind, as he seeks stronger powers to detain, investigate, and try those suspected of involvement in international terrorism.

And that is why Congress should not declare war. Reasonable people can and do debate over the nature of the threat posed to the US by al Qaeda. But al Qaeda does not threaten to destroy the United States, and has not even be able to mount a successful attack against the US since 2001. While the threat may very well be serious, and may even be the most serious threat faced by the US today, it does not justify giving such broad powers to the president. True, the administration has faced several setbacks in its efforts to combat al Qaeda at the hands of the Supreme Court, which very well may hurt those efforts. But cutting the Court out of the process by getting a declaration of war is not the answer. Rather, the Bush Administration should consult more with Congress to get legislative backing for its policies.

Fixing the War Powers Resolution

As readers of Security Dilemmas may know, I am currently working on questions of presidential-congressional war powers, and have a contract with Praeger Press for my book Restoring the Balance: War Powers in an Age of Terror. So, it is of course of interest to me that the National War Powers Commission has published its report (the pdf file of the final report is here) on how to fix war powers. The Commission also published an op-ed in today's New York Times summarizing their findings.

The Commission notes that the War Powers Resolution of 1973 has been monumentally ineffective at resolving fundamental questions -- both constitutional and political -- of war powers. The WPR is also, most likely, unconstitutional, as the stipulation that Congress need only pass a concurrent resolution to force the president to withdraw deployed troops seems to violate the prohibition on legislative vetoes established in INS v. Chadha. But, more importantly, the WPR wasn't really in tune with political reality:

it too narrowly defines the president’s war powers to exclude the power to respond to sudden attacks on Americans abroad; it empowers Congress to terminate an armed conflict by simply doing nothing; and it fails to identify which of the 535 members of Congress the president should consult before going to war.

Their recommendations:

Our proposed statute would provide that the president must consult with Congress before ordering a “significant armed conflict” — defined as combat operations that last or are expected to last more than a week. To provide more clarity than the 1973 War Powers Resolution, our statute also defines what types of hostilities would not be considered significant armed conflicts — for example, training exercises, covert operations or missions to protect and rescue Americans abroad. If secrecy or other circumstances precluded prior consultation, then consultation — not just notification — would need to be undertaken within three days.

To guarantee that the president consults with a cross section of Congress, the act would create a joint Congressional committee made up of the leaders of the House and the Senate as well as the chairmen and ranking members of key committees. These are the members of Congress with whom the president would need to personally consult. Almost as important, the act would establish a permanent, bipartisan staff with access to all relevant intelligence and national-security information.

Congress would have obligations, too. Unless it declared war or otherwise expressly authorized a conflict, it would have to vote within 30 days on a resolution of approval. If the resolution of approval was defeated in either House, any member of Congress could propose a resolution of disapproval. Such a resolution would have the force of law, however, only if it were passed by both houses and signed by the president or the president’s veto were overridden. If the resolution of disapproval did not survive the president’s veto, Congress could express its opposition by, for example, using its internal rules to block future spending on the conflict.

This is an admirable effort, and is infinitely better than the War Powers Resolution (not to mention that it solves the legislative veto problem). However, it is not likely to satisfactorily resolve the concerns over war powers.

On one hand, the proposed statute gives broad powers to the president, but still couches the commander-in-chief power under the domain of the legislative branch. As I have argued multiple times on this site, as well as in two law review articles and my forthcoming book, it is not at all clear that the Constitution intends Congress to have any say whatsoever over the deployment of the armed forces of the United States. If, as I argue, the "declare war" clause is about the power to transform the legal status of the political arenas rather than the power to deploy troops or initiate hostilities, then giving Congress any power to force the president to bring deployed troops home is a violation of the separation of powers mandated by the Constitution.

On the other hand, the method by which the proposed statute functions is unlikely to satisfy proponents of a more robust role for Congress on the issue of war powers. Forcing the president to bring the troops home would require: 1) A vote to authorize the deployment to fail; 2) Both Houses to pass a "resolution of disapproval," and; 3) Both Houses to override the inevitable presidential veto by a 2/3 vote. It is all but inconceivable that this would happen. Even in a fantastically unpopular war, like the current one in Iraq was during its darkest days, it is unlikely that enough of the president's fellow party members would defect. Furthermore, as Iraq has clearly demonstrated, even those congressmen vehemently opposed to the war are loath to go on record opposing the president, and even more hesitant to take actions to end the war when such actions would place blame and responsibility on their heads, rather than on the president's.

The report is a welcome improvement on the War Powers Resolution. But I do not expect that it will have any meaningful impact on the balance of war powers between the president and Congress. It does mandate regular reporting on active troop deployments, and creates a clear mechanism for doing so, and that is a good thing. But, even while rejecting the War Powers Resolution, presidents have tended to regularly report to Congress, so not much will change there either. Still, the War Powers Resolution is a terrible piece of legislation, and deserves to be put to rest. Whether this proposed legislation can and will pass is a question to which I do not know the answer. It definitely seems to reduce the power of Congress (although only hypothetically, as Congress has never even really tried to enforce the WPR), so it should be an interesting debate.

UPDATE: I'm currently teaching US Foreign Policy in summer school, and as we talked about war powers yesterday, we considered the Commission's report today. It occurred to me that there's another reason this proposal might be not-so-good from the perspective of desiring a strong congressional role. Forcing a vote on approving the deployment of force at the 30 day mark may make it more likely that Congress will fail to stand up to the president. It's exceedingly hard for Congress to go on record as opposing the use of force by the president. After all, no one wants to be seen as soft on ____ (Insert communism, terrorism, or whatever bogeyman is popular); furthermore, congressmen don't want to be blamed for whatever happens, especially if they force the troops to come home. So, at the 30 day mark, when the conflict is still relatively fresh, there may be bureaucratic inertia that favors the president and renders any dissent impotent.

The Secret Torture Memo?

The New York Times is reporting that, in spite of congressional legislation passed in December 2005 banning the use of "cruel, inhuman, or degrading" treatment of all prisoners in US custody, the Justice Department had, in February 2005 issued a secret memo providing the CIA witjh "explicit authorization to barrage terror suspects with a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures." Even after the passage of the Detainee Treatment Act in December 2005, the Justice Department memo remained in force and was reinforced by a second secret memo stating that the CIA's methods did not constitute "cruel, inhuman, or degrading" treatment. Such policies would have been in conflict with a public memo released by the Justice Department in December 2004 which declared torture to be an "abhorrent" practice, and broadened its definition.

The Bush Administration is denying this report, claiming that, in the words of White House spokeswoman Dana Perino, "This country does not torture. It is a policy of the United States that we do not torture and we do not." Furthermore:

Asked about the story Thursday, Perino confirmed existence of the Feb. 5, 2005, classified opinion but would not comment on whether it authorized specific practices, such as head-slapping and simulated drowning. She said the 2005 opinion did not reinterpret the law.

Additionally, Justice Department spokesman Brian Roehrkasse said the 2004 opinion remains in effect and that ''neither Attorney General Gonzales nor anyone else within the department modified or withdrew that opinion.''

I am on record as being open to the possibility that torture, or coercive interrogation, is something that must be considered in very specific circumstances and under very specific conditions to protect the US, and that I am skeptical of the claims that the use of torture/coercive interrogation is counter-productive. But this is essentially a different question.

The president is not allowed to legislate, especially when Congress has enacted a law governing a situation or circumstance. When Congress passes a law forbidding the use of coercive interrogation, the president must obey that law. I have written numerous times about this argument of war powers: in the absence of a declaration of war, the president is still bound to follow existing law. In the absence of a specific congressional act, the president does have some latitude to interpret or implement policies. But when Congress speaks, as it did by passing the Detainee Treatment Act in December 2005, the Constitution demands that the president comply with the law. It may be that the president and the Justice Department were able to make a semantic argument that allowed them to define certain tactics as "not torture" but at least on the face of it, such an interpretation would seem to be a flagrant violation of the spirit of the DTA, especially in light of the December 2004 memo.

If the report by the Times is true, this is likely a serious violation of both international and domestic law. The practices at issue -- "a combination of painful physical and psychological tactics, including head-slapping, simulated drowning and frigid temperatures" -- are almost certainly violations of Common Article 3 of the Geneva Convention, which the Supreme Court ruled in June 2006 the US was bound to apply to all US-held detainees. The Military Commissions Act of November 2006 gave the president the power to establish specific permissible interrogation techniques, which President Bush did in July 2007, but with the caveat that the techniques would not violate the rules of the Geneva Convention.

The president must follow the law. Nothing can justify an unconstitutional action. As I have written many times before, if the president believes he needs broader powers to act without congressional authorization, he can ask for a declaration of war. Without one, the law remains.

UPDATE: Over at the Chronicle for Higher Education, it's noted that:

This affair might have played out differently, however, had Congress spelled out exactly which techniques it considers cruel, inhuman, and degrading. Many of the scholars involved in the recent debate over the American Psychological Association’s policy on interrogations expressed concerns about the vagueness of federal and international prohibitions on torture. U.S. laws and international treaties, they said, should more emphatically define and ban so-called soft torture techniques, such as long-term isolation and sensory deprivation.

Mario Cuomo's Straw Man

On Monday, Mario Cuomo, the former governor of New York from 1983 to 1995, had an op-ed entitled "What the Constitution Says About Iraq" in the Los Angeles Times that, to put it bluntly, was an embarrassment. If one didn't know better, reading his opinions on congressional-executive war powers would lead one to believe that Cuomo knows nothing about constitutional law or national security law. Since I'm willing to give Cuomo the benefit of the doubt, we can only assume that he's creating straw man arguments purposively to score cheap political points.

Cuomo's argument is that:

the [Iraq] war happened because when Bush first indicated his intention to go to war against Iraq, Congress refused to insist on enforcement of Article I, Section 8 of the Constitution. For more than 200 years, this article has spelled out that Congress -- not the president -- shall have "the power to declare war."

To Cuomo, this was a disastrous decision by Congress, and in the future:

We must do everything we can to end the war in Iraq and avoid a new tragedy abroad [in Iran] by recommitting to strict adherence to the rule of law and to the Constitution by the president, Congress and the courts -- especially with respect to war powers.

While it's true that the Constitution gives Congress the power to declare war, Congress has only done so five times in history: the War of 1812, the Mexican-American War, the Spanish-American War, World War I, and World War II. And yet the US has used force well over 200 times without a formal declaration of war.

For Cuomo, this precedent has no relevance:

Because the Constitution cannot be amended by persistent evasion, this constitutional mandate was not erased by the actions of timid Congresses since World War II that allowed eager presidents to start wars in Vietnam and elsewhere without a "declaration" by Congress.

This is the first of Cuomo's pathetic straw man arguments. It is of course true that the Constitution cannot be amended by patterns of behavior. But it is equally obvious that Constitutional interpretation does change according to the behavior of government. This is made evident in the famous "Steel Seizure" case (Youngstown Sheet & Tube Co. v. Sawyer), in which Justice Jackson and Justice Frankfurter argued that the interaction between the president and Congress can and should be used to interpret the Constitution. For Frankfurter:

a systematic, unbroken, executive practice, long pursued to the knowledge of Congress and never before questioned, engaged in by Presidents who have also sworn to uphold the Constitution, making as it were such exercise of power part of the structure of our government, may be treated as a gloss on "executive Power" vested in the President by Section 1 of Art. II.

Given that force has been used hundreds of times without Congressional approval or protest but with Congressional knowledge, such a gloss is quite clear. Furthermore, Jackson, in setting out his famous three categories for understanding the scope of presidential power, argued that:

When the President acts in absence of either a congressional grant or denial of authority, he can only rely on his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, on in which its distribution is uncertain. Therefore, congressional inertia, indifference, or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

Congress has not spoken (note, congressmen speaking do not equal Congress speaking. More on this below) against the war in Iraq, nor has Congress ever tried to restrain a presidential deployment of US troops. Such silence can only be read as creating a gloss or as Congress allowing the president to rely on his own independent powers.

But Cuomo is ready with another straw man argument to challenge this claim. It wouldn't matter, he says, if Congress did try to restrain the president:

Even if Congress were able to pass a veto-proof bill with respect to withdrawal, the president would resist enforcement of the bill, insisting that as commander in chief, he is immune from Congress' decision. That would raise a constitutional issue for the courts.

But judging by the courts' history concerning constitutional war powers, including decisions involving the Iraq war in the U.S. 1st Circuit Court of Appeals in Massachusetts, the judiciary would, in all probability, choose not to intervene, claiming that the disagreement between the president and Congress is a political question.

This is an absurd misrepresentation of the concept of a political question. A political question, in which the Supreme Court typically refuses to involve itself in a dispute between the legislative and executive branch, most often arises when Congress fails to speak with one voice to assert its Constitutional power. For example, in Goldwater v. Carter, Senator Barry Goldwater and several other members of Congress challenged the right of President Carter to nullify a treaty with Taiwan in order to establish relations with China, claiming that Senate's constitutional power of advice and consent meant that the Senate needed to vote on the nullification. The Court refused to hear the case, determining that it involved a political question. But what made the question political was not the challenge, but rather the fact that it was not the Senate as a body that was challenging the president, but rather a group of individual senators. Thus, the question of whether the president had the power to act unilaterally was not really being raised, as Congress was not asserting a different interpretation of the Constitution. Justice Powell's concurrence made it clear that if the Senate had, in fact, passed a resolution formally opposing the action by Carter, the Supreme Court very well might have heard the case, settling the question.

If Congress had ever tried to stop a presidential deployment of force by, for example, passing a joint resolution claiming its power to declare war governs all deployments of force (as Cuomo argues it does) or by cutting off funding for the troops, and if the president refused to obey such an action, the Supreme Court would almost certainly have to resolve the issue (although it's possible that the Court would try to defer action while the troops were in the field). Such an dispute would be a constitutional question of the highest order, and if there was a formal clash between the president and Congress, the question would have to be settled.

Cuomo goes on to say that "the sad truth is that the current conservative-dominated Supreme Court would probably support our current conservative president. As a practical matter, that means only the president can end this war or change our strategy in Iraq."

Another ridiculous claim, unless by "as a practical matter" Cuomo means without making the Democratically-controlled Congress take responsibility for ending the war. It is a clear, unambiguous, and well-established fact that Congress could cut off the funding for the troops if it truly wanted to end the war. No one, not even President Bush, disputes this. However, as was made clear during the last round of appropriations hearings, Congress refuses to do this. Of course it would be politically dangerous...but if the congressmen so fear being punished by their constituents, doesn't that give the lie to their claims in the first place?

It is ridiculous and absurd for Cuomo to try to blame the Court for this situation, when the fault truly lies with a Congress that refuses to act according to the principles it so vocally expresses. Cuomo's op-ed is little more than a political screed that ignores fact and constitutional law. It is an embarrassment, as is he.

Tragic Isn't Illegal

This past Sunday, the Tacoma News Tribune published my op-ed piece on the legality of the Iraq War. The argument is nothing I haven't already said here, but if you want to read the whole piece, it can be found here.

De-Authorizing the Iraq War

In the aftermath of President Bush's veto of the Iraq appropriations bill, Senators Hillary Clinton and Robert Byrd have called for legislation revoking the congressional authorization under which the Iraq war is being fought. The Authorization for the Use of Military Force was passed by the House on October 10, 2002 by a 296-133 vote, and by the Senate on October 11 by 77-23 and provide Congress' explicit legal permission for the prosecution of hostilities in Iraq.

The call for de-authorization has some support from, for example, Senator Barack Obama and Governor Bill Richardson (NM). However, it also has run in to opposition from other high-profile war opponents, such as ex-Senator and presidential candidate John Edwards.

Senator Clinton hopes that de-authorization would remove the legal authority of the president to continue the war and force Bush to ask Congress for new authorization. But, would a Act of Congress rescinding the AUMF have that effect? As the New York Times puts it:

Even if Mrs. Clinton and Mr. Byrd succeed in their effort, it is not clear whether President Bush would have to withdraw troops, or if he could resist by claiming that Congress cannot withdraw its earlier authorization but instead has to deny money for the war to achieve that result.

The question could prompt a constitutional debate over war powers that only the federal courts could resolve.

The Times is right that passage of a de-authorization bill (although it would certainly be vetoed, just as the appropriations bill was) might very well provoke a critical constitutional debate over the nature of war powers, but I think they've got the grounds of that debate wrong. The president would most likely claim that he does not in fact require congressional authorization to conduct military operations, and that requesting such authorization is not a legal necessity but rather a political nicety.

One argument that I have made several times is that the continued funding of a standing army, in light of congressional awareness of how that military has been used in the past, constitutes a de facto congressional authorization of military operations. Thus, just as every president since Nixon has rejected the War Powers Resolution, in this view, Congress does not have the power to oversee and control (short of cutting off funding for the troops) each and every use of military force. The congressional power to declare war is, according to this argument, more about the president's ability to take legislative action pursuant to the conduct of the war than it is about giving Congress authority over the deployment of force.

As I have noted before, no one really knows how the judiciary would decide. Which is why a Supreme Court hearing on this would be welcomed. However, it's not likely to happen. Congress is unlikely to muster the political will to pass de-authorization legislation (in my last post on these issues, I noted that the puzzling language in the appropriations bill suggested a need to soften the language of the bill to attract enough support for passage). And even if Congress manages to pass such a bill, if it couldn't override the veto of the appropriations bill it doesn't seem likely to override a veto of what is sure to be an even more controversial bill. So while we might like to see a showdown over this, I wouldn't keep your fingers crossed.

Congress Speaks Up...But What Did It Say?

Yesterday, the Senate joined the House in passing an appropriations bill containing language requiring the president to begin withdrawing troops from Iraq by March 1, 2008, or even sooner if the Iraqi government does not meet certain benchmarks. The bill is certainly destined for a presidential veto...so what now?

I'm not completely convinced that the way in which Congress is trying to impose these deadlines on the deployment of US troops in Iraq is completely legal and constitutional. With this bill, Congress is trying to use the power of the purse to restrict US military activities in Iraq. But, looking at the language of the bill, it's not clear that's what Congress actually did. The parts containing the deadline for troop withdrawal (Section 1904) read as follows:

SEC. 1904. (a) The President shall make and transmit to Congress the following determinations, along with reports in classified and unclassified form detailing the basis for each determination, on or before July 1, 2007--

(1) whether the Government of Iraq has given United States Armed Forces and Iraqi Security Forces the authority to pursue all extremists, including Sunni insurgents and Shiite militias, and is making substantial progress in delivering necessary Iraqi Security Forces for Baghdad and protecting such Forces from political interference; intensifying efforts to build balanced security forces throughout Iraq that provide even-handed security for all Iraqis; ensuring that Iraq's political authorities are not undermining or making false accusations against members of the Iraqi Security Forces; eliminating militia control of local security; establishing a strong militia disarmament program; ensuring fair and just enforcement of laws; establishing political, media, economic, and service committees in support of the Baghdad Security Plan; and eradicating safe havens;

(2) whether the Government of Iraq is making substantial progress in meeting its commitment to pursue reconciliation initiatives, including enactment of a hydro-carbon law; adoption of legislation necessary for the conduct of provincial and local elections; reform of current laws governing the de-Baathification process; amendment of the Constitution of Iraq; and allocation of Iraqi revenues for reconstruction projects;

(3) whether the Government of Iraq and United States Armed Forces are making substantial progress in reducing the level of sectarian violence in Iraq; and

(4) whether the Government of Iraq is ensuring the rights of minority political parties in the Iraqi Parliament are protected.

(b) If the President fails to make any of the determinations specified in subsection (a), the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq no later than July 1, 2007, with a goal of completing such redeployment within 180 days.

(c) If the President makes the determinations specified in subsection (a), the Secretary of Defense shall commence the redeployment of the Armed Forces from Iraq not later than October 1, 2007, with a goal of completing such redeployment within 180 days.

Note that the withdrawal demands make no mention of prohibiting funds being used for the troops. In other parts of the bill, for example Sections 1311 or 1312, Congress places explicit restrictions on the way in which monies can be spent. Section 1311 states that:

None of the funds appropriated or otherwise made available by this or any other Act shall be obligated or expended by the United States Government for a purpose as follows:

(1) To establish any military installation or base for the purpose of providing for the permanent stationing of United States Armed Forces in Iraq.

(2) To exercise United States control over any oil resource of Iraq.

while Section 1312 states that:

None of the funds made available in this Act may be used in contravention of the following laws enacted or regulations promulgated to implement the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

These are clear, unambiguous, and perfect examples of Congress using the power of the purse correctly. Congress is free to place restrictions such as these on monies appropriated to the president, and has, in the past, used such restrictions to bring to an end, or prohibit, presidential foreign policies with which Congress has disagreed, such as the possible expansion of the Vietnam War into Cambodia, the Vietnam War itself, and support for the contra rebels in Nicaragua.

But this is not what Congress has done with the troop deadlines. Section 1904 simply demands that the troops be withdrawn according to the timetable outlined by Congress; there is no language prohibiting funds to be used to maintain troops in the field. I'm no expert on Congress or the specific nature of legislative language, but it seems to me that the president could choose to claim that this attempt by Congress to force a withdrawal is an unconstitutional encroachment of Congress on to the commander-in-chief power of the president. Congress may not tell the president when and where troops may operate, especially not once those troops have been authorized by Congress (as they have with the AUMF) and funded (as they would be with this bill).

What would be ideal, from my academic perspective, is for Bush to sign the bill and then refuse to comply with the deadline, which would put to the constitutional test some serious issues of war powers: Can Congress control the deployment of troops? Does the AUMF equal a declaration of war, as the administration often claims? It's not entirely clear that the president would win in the Supreme Court, but given my reading of case precedent and the make-up of the current Court, it does seem likely.

But the larger question is: Why does Section 1904 lack the language of explicitly prohibiting funds for maintaining US troops in Iraq?

There are several possibilities that come to mind. First is that Congress is trying to use its interpretation of the "declare war" clause, a la the War Powers Resolution, to end the war. In this scenario, Congress believes that the president needs explicit congressional approval to prosecute military operations and that by passing this bill that approval no longer exists. The problem here is twofold: First, it's not clear that this language would serve to undo the AUMF, and that without expressly revoking the authorization granted in the AUMF, any effort to order troops here or there looks like tactical moves that violate the CINC power of the president. Second, as I have argued in many places recently, it's not clear that the War Powers Resolution with its interpretation of congressional war powers is in fact constitutional.

The second explanation for the absence of the prohibiting language is that Congress had to back away from the stronger language in order to assure passage of the bill. The votes in both houses was very close -- 51-46 in the Senate and 217-208 in the House -- and required both moderate Democrats and a few Republicans to vote yes. Those more centrist politicians may not have been willing to vote for a bill that, even if vetoed, would have put them on the record as having voted to de-fund the war. The legislation as passed, however, doesn't de-fund the war.

Despite the publicity surrounding this bill, it seems as if it was never really intended to force the president to bring the troops home. This should not be surprising. Much of politics is about wheeling and dealing and back-room wrangling. Congress tries as much as possible, especially when foreign policy is involved, to voice its opinion without actually taking action. And this bill does exactly that.

A Coming Constitutional Crisis (?)

The US Senate has voted to support a date for the withdrawal of US troops from Iraq. In a 50-48 vote, the Senate rejected a motion to remove the withdrawal language from the spending bill, meaning that the bill providing the money for the military operations in Afghanistan and Iraq requires a gradual pullout of combat troops from Iraq to begin within 120 days and to be completed by March 31, 2008 (although the final date is non-binding). The spending bill will be voted on later this week but is almost certain to pass given this vote outcome. Then, the Senate will have to sit down with the House of Representatives to reconcile the two versions of the bill, as the House version contains a mandatory withdrawal deadline of September 2008. The president has threatened to veto the bill and will most likely do so immediately after final passage.

What's the likely outcome here? When President Bush vetoes this bill, Congress will have two options: Strip the language out in order to get the bill passed (of course, Congress could leave in non-binding language to make a point but not actually have any impact) or pass an identical bill to put the issue back in President Bush's court. Remember, this bill is the funding for the operations in Afghanistan and Iraq. Without it, military operations will have to be halted in a few months, at most. So if Congress continues to pass funding bills with binding withdrawal deadlines, at some point Bush will have to either allow the bill to become law, at which point he could either comply or refuse to comply (more on this later) or he could continue to veto the bill, let the funding run out on the troops in the field and blame Congress for abandoning the troops. For obvious political reasons, that last option is a disaster for Congress and the president alike, and both sides will want to avoid that outcome like the plague.

The most likely result of this is that once the president vetoes the spending bill, Congress will crow about the president obstructing the will of the people and then pass a bill without the withdrawal language. This enables Congress to do what it does best in foreign affairs: Express dissatisfaction with the current policies but avoid taking responsibility for it by refusing to force any changes.

If I had my druthers, however, I'd like to see Congress continue to pass bills that require a withdrawal that would force the president to sign the bill and then refuse to adhere to the deadline, claiming that the congressional action is an unconstitutional encroachment on the presidential war powers, specifically the commander-in-chief power. All too often, pending constitutional debates like these never get resolved because one side backs down for political reasons. But, as I read things, the spending bill as it is likely to be passed is, in fact, unconstitutional. Yes, Congress has the power of the purse over the US military. But the bill is not worded in the proper way to use that power. Simply placing withdrawal language in an appropriations bill is not the same as putting restrictions on the use of the appropriated funds. If Congress wants to stop the use of US military troops in Iraq, it needs to refuse to allow the president to use monies for that purpose. Congress is understood to not be allowed to "micro-manage" the military, and telling the president to withdraw troops is exactly what Congress cannot do. If the president signed the bill and refused to implement it, we would very likely get a Supreme Court decision on the war powers, which is all too rare and all too necessary.

The spending bill as it stands represents a congressional abdication of the role it is all too quick to loudly proclaim for itself. It is not a serious attempt to check the president, to bring the troops home, or to enforce the will of the American public. Rather it has the appearance of doing so without bringing the responsibility for such actions on Congress. The ultimate result of this will be nothing; until Congress grows a spine and refuses to appropriate funds for the war in Iraq, it will continue according to President Bush's plan.

Congress Makes The Wrong Move

The Associated Press is reporting that the US Senate is moving to revoke the 2002 authorization for the invasion of Iraq. That resolution gave President Bush the power to use the American military "as he determines to be necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq."According to the report:

Key lawmakers, backed by party leaders, are drafting legislation that would effectively revoke the broad authority granted to the president in the days Saddam Hussein was in power, and leave US troops with a limited mission as they prepare to withdraw.

Officials said Thursday the precise wording of the measure remains unsettled. One version would restrict American troops in Iraq to fighting al-Qaida, training Iraqi army and police forces, maintaining Iraq's territorial integrity and otherwise proceeding with the withdrawal of combat forces.

Such a plan is more appealing to senators uncomfortable with the other option being explored by opponents of the war: the "slow bleed" plan being developed by Rep. John Murtha that is intended to limit the ability to deploy soldiers into Iraq by placing strict requirements on training and funding.

It probably doesn't matter which route Congress takes to try to end the Iraq war, as both paths are very likely unconstitutional. While it's not clear, Murtha's plan very likely violates the constitutional authority of the president as commander-in-chief as the plan seems to go beyond Congress' role of making rules of the government and regulation of the armed forces. The Senate's plan will likely be vetoed, but it wouldn't have to be. Congress has long ago ceded any responsibility for the control and deployment of the US armed forces. While the president did ask Congress for authorization, the administration also made it clear that it did not have to do, as all administrations have done since the passage of the War Powers Resolution. As I have argued in many posts, Congress' role in such matters is limited to funding the military and declaring war. If Congress really wants to end the US military involvement in Iraq, it will have to cut off funding for the troops.

The Watada Case And The Legality Of The Iraq War

Sean Penn is currently in Tacoma as are hundreds of protesters, all here to offer their support for First Lieutenant Ehren Watada who goes on trial today for his refusal to deploy to Iraq with his unit. Watada is charged with missing a movement and conduct unbecoming an officer for his refusal and his public denunciations of President Bush and the war. While a number of enlisted men have refused deployment, Watada is the first officer to do so. Watada will claim that he has the right to refuse an unjust order and that the war is unjust because no weapons of mass destruction -- the primary justification for the invasion -- were ever found. This claim is exceedingly unlikely to hold up.

But it was not Watada's primary defense. His main reason for refusing deployment, which was thrown out of court by the military judge, was the the war is itself illegal. On what grounds could the war be considered illegal? For the war to be illegal, it must violate either national or international law.

The Iraq War is, plain and simple, legal under US law. Of this, there is no dispute. Congress authorized the war, but even if Congress had not done so there war would still have been legal. Congress has made no legislative effort to end the war or even to constrain the president's ability to prosecute it. Thus, the war is legal under US law (except as argued below).

What about international law? Watada's claim, now barred from being presented in court, was that the war violated US commitments under the UN Charter. The UN Charter is a treaty that was formally ratified by the US Senate; under the Supremacy Clause, ratified treaties are part of "the supreme law of the land"; thus, the UN Charter is, along with its restrictions on the use of force, supreme law of the United States and a war launched in violation of the UN Charter is illegal under both international and national law. Under the UN Charter, the use of force against a state is only permissible under two conditions: Authorization by the UN (which has only occurred twice: the Korean War and the first Gulf War), or in self-defense from an imminent attack (as in the case of Israel and the Six-Day War). Since there was no authorization from the UN, and since Iraq did not pose an imminent threat to the US, the invasion is, according to this logic, illegal.

Unfortunately, this argument fails to hold water on several grounds. First, while many analysts are skeptical, the Bush Doctrine conflates the concepts of preventive war with preemptive war, making it possible to argue that the invasion of Iraq was in fact preemptive. Whether or not one agrees with this claim, there is no objective measure of what constitutes an imminent threat. Thus, the argument fails from being too vague.

Second, the legal status of the UN is questionable in and of itself. Law can only be meaningful and enforceable when and where it enforced fairly and consistently, and the UN is far from meeting this standard. States are free to routinely violate their commitments and obligations to the UN with impunity; genocide occurs with little response; and the UN is incapable of implementing its own rules and laws. Law cannot be selective; if the UN fails to uphold its laws on non-proliferation or genocide it cannot expect adhere to other laws, such as those governing the use of force.

Most importantly, however, is the argument that rests on the Supremacy Clause. In order for a ratified treaty to become "the supreme law of the land" it must either be self-executing or must be passed into law by both houses of Congress, and not just ratified by the Senate. A self-executing treaty is one that is clearly intended to replace or supersede existing legislation and thus would need no further implementation by Congress. According to the American Society of International Law:

Provisions in treaties and other international agreements are given effect as law in domestic courts of the United States only if they are "self-executing" or if they have been implemented by an act (such as an act of Congress) having the effect of federal law. Courts in this country have been reluctant to find such provisions self-executing, but on several occasions they have found them so--sometimes simply by giving direct effect to the provisions without expressly saying that they are self-executing. There are varying formulations as to what tends to make a treaty provision self-executing or non-self-executing, but within constitutional constraints (such as the requirement that appropriations of money originate in the House of Representatives) the primary consideration is the intent--or lack thereof--that the provision become effective as judicially-enforceable domestic law without implementing legislation. For the most part, the more specific the provision is and the more it reads like an act of Congress, the more likely it is to be treated as self-executing. A provision in an international agreement may be self-executing in U. S. law even though it would not be so in the law of the other party or parties to the agreement. Moreover, some provisions in an agreement might be self-executing while others in the same agreement are not.

In order for Watada's claim to hold up, the UN Charter must be seen as self-executing, as there has not been any legislation transferring the war powers of either the president or Congress to the UN. The relevant section of the UN Charter is Chapter VII, the most critical articles of which are:

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

That language certainly does not approach the level of specificity present in congressional legislation to make it self-executing. US courts have repeatedly held that the Charter is in fact not self-executing. Thus, absent legislation authorizing its provisions, the Charter cannot be held to supersede existing US constitutional law or legislation and therefore its rules concerning the use of force do not bind the US government.

Watada will go to jail, likely for four years. US military officers cannot decide for themselves when and where they will serve. I am disappointed that the court will not hear the real "meat" of Watada's argument, as it is both interesting and important. But that does not change the fact that Iraq War may have been ill-planned, but is not illegal.

UPDATE (2/24): The Army has refiled charges against Watada, who stands accused of missing deployment and four counts of conduct unbecoming of an officer for his public speeches. The Army has also added two new conduct-unbecoming charges that were dropped as a result of an agreement in the first trial. Watada's lawyer will file a motion to dismiss based on double jeopardy protections.

NSA Surveillance is Struck Down

This just in: A federal judge in Michigan has found that the NSA surveillance program is unconstitutional.

Some of the critical language from the decision (which I haven't read yet):

"It was never the intent of the framers to give the president such unfettered control, particularly where his actions blatantly disregard the parameters clearly enumerated in the Bill of Rights," she wrote. " . . . There are no hereditary Kings in America and no powers not created by the Constitution. So all 'inherent powers' must derive from that Constitution."

Furthermore, Judge "Taylor said the government's arguments in support of the program appeared to imply that Bush's role as commander in chief of the U.S. armed forces gave him "the inherent power to violate not only the laws of the Congress but the First and Fourth Amendments of the Constitution itself."

This is, more or less, the argument I have been making in several places since the NSA program was revealed. Without express authorization from Congress, either in approval of the program itself or a formal declaration of war, presidential war powers do not inherently authorize such a program.

Why the Left is Responsible for NSA Surveillance, Guantanamo Bay, and Other Abuses of Executive Power

The latest edition of The New Yorker has an article entitled "The Hidden Power," about David Addington, a top adviser and chief-of-staff to Vice President Cheney, who happens to be the legal mind behind the Bush Adminstration's legal strategy for the War on Terror. [The article isn't available through any of my on-line sources...sorry.] In the article, a reference is made to "the New Paradigm," which is the argument that emerged after 9/11 that the president has "inherent authority" to take almost any steps necessary to protect and defend the nation against the threat of terrorism. This is the paradigm that gave rise to the NSA domestic surveillance program, the policies at Guantanamo Bay, and other components of the War on Terror, many of which raise the hackles of civil libertarians and Democrats.

The title of this post argues that, ultimately, it is the Left that is responsible for these policies. Yes, that Left. The Left of the ACLU and Sen. Harry Reid. The Left that foams at the mouth when forced to think about George W. Bush. The Left that sees these very policies as assaults on the liberties that make this country great and underpin our very freedoms. But, how can that be?, you ask. Bush is certainly no Lefty, nor is Cheney, nor any of the main advisers. So how can I claim that the Left is reponsible for these transgressions of American civil liberties?

Several months ago, I wrote a letter to the New York Times which was never published. The letter was in response to a NYT editorial which opposed the Bush Administration's attempt to use the Controlled Substance Act to prohibit physician-assisted suicide (this attempt was ultimately struck down by the USSC, but that's not important here). Here's the text of my letter:

To the Editor:

I find it interesting that you oppose the government’s expansion of the Controlled Substance Act to prohibit doctor-assisted suicide (editorial, Oct. 5), but that you are happy to allow the commerce clause to be broadened to include the Gun-Free School Zones Act, the Violence Against Women Act, and the Brady Handgun Violence Prevention Act.

When you agree to expand the powers of government to produce a desirable outcome, you should not be surprised when those new powers are used for purposes with which you do not agree. Perhaps we need to remember why the Founders believed in limiting the powers of the federal government in the first place. Power once given is exceedingly difficult to take away. Just as we allow Nazis to march and the Boy Scouts to exclude gays to protect our First Amendment rights, we sometimes have to accept unwelcome policy outcomes to preserve the constitutional guarantees of freedom from excessive governmental control.

The point I made in the unpublished letter is the same I want to make here, and the reason I believe that responsibility for the assault on freedom and liberty undertaken by the Bush Adminstration ultimately lies at the feet of the Left. Since the days of the New Deal, the Left has had one answer to all of society's problems: government intervention. Every problem we face -- poverty, unemployment, the environment, smoking -- has been handed over to the government to be solved, and government just keeps growing in size and power to deal with all of the problems we cede to it for solving.

Is it any surprise that when faced with a serious threat from international terrorists, the Right (which has more or less capitulated in its effort to shrink the size and scope of government) turned to Big Government to deal with the problem? I do not believe, and I think it is disingenous to claim, that Bush and Cheney and the current administration is trying to undermine our civil liberties for their own personal gain, or even just for fun. This is not 1984, and the Bush Administration is not Big Brother. The NSA surveillance program, the indefinite detention of suspected terrorists at Camp X-Ray,the use of military tribunals; all of these things are intended to protect the country.

This is the reason that true libertarians (and I don't mean the wackos in the Libertarian Party) fear giving power to government to solve problems; even problems for which we all agree on a solution. You may like what Big Government does today, when your preferred elected official is in office. But what about tomorrow, when the other party holds power? And how do you stop government from taking as much power as it believes it needs to protect the country? The next time you find yourself calling for government regulation, remember where it can lead. Big Government is inherently and necessarily a threat to liberty and freedom.

UPDATE: My friend Geoff Manne over at Truth On The Market makes an excellent point; one that we've discussed many times and I wanted, but forgot, to include in my post. Here's his argument:

So here’s my question (this version is really for the left, but there are analogues for the right): Why, if “Big Oil,” “Big Pharma,” Wal-Mart and Microsoft are so scary, does it make sense to turn to the biggest of the big, the most oppressive of the oppressive, to constrain those other big baddies, to keep them from getting too big, too powerful? Is there anyone who really has so much faith in our democratic process that despite, say, the legal monopoly on the use of force and the ability to print money, he is worried less about “Big Government” than about “Big Tobacco”? I don’t get it. Don’t get me wrong: I realize the biggest of the big is a really effective hammer with which to pummel all those pesky nails. But is it so hard to see the broader, bigger, long-term implications of consistently handing over that power to the government?

A Presidential Smackdown on Hamdan and the Separation of Powers

Yesterday, the Bush Administration's War on Terror was dealt a serious blow by the US Supreme Court which, in a 5-3 decision in Hamdan v Rumsfeld, struck down the president's ability to demand military tribunals to hear the cases of those accused of terrorist activities. In short, the Court ruled that in the absence of specific congressional authorization the tribunals violated both US military and international laws.

I am not a lawyer, so I won't comment on the legal findings. If you want good analysis, go look at the discussions on Opinio Juris or Exploring International Law.

As for my analysis, the Hamdan seems to uphold my general argument about separation of powers, which is no different in this case than in the NSA surveillance. The country is not at war. Period. Yes, we are in a struggle with people that want to, and have, killed Americans. Yes, our soldiers are fighting and dying. But Congress has not declared war. And that means something.

As the Supreme Court determined yesterday, Congress plays a critical role: it controls legislative powers. A legislative act is one which affects the standing or condition of a domestic actor, and choosing military tribunals over courts of criminal law is certainly a legislative act. The executive branch has limited power to act domestically in a legislative manner in the absence of a congressional action. And as was made clear in the concurring opinon by Justice Breyer, returning to Congress to ask for military tribunals remains an option for the administration.

The War on Terror is a terrible and serious struggle, but it is most certainly misnamed as it is not a war anymore so than the War on Drugs or the War on Poverty were wars. In wars, all (or nearly all) the energies of the nation are directed towards the end; and the end is clearly defined by achievable metrics. The War on Terror will never end. One side can hold an edge, but the terrorists will never be defeated and eliminated; certainly the US and other western powers are not about to collapse. In such a conflict, it is even more important than usual to be exceedingly careful when handing unlimited and unchecked powers to the president. In the absence of a declaration of war, the president needs to be much more engaged with Congress, and get permission to do the things he wants, and oversight to ensure they are being done correctly.

The Reaction to the NSA Database

The reaction to the revelation that the NSA has been compiling a database of phone calls has been, to my mind, disappointing. Over at Real Clear Politics, a website which I normally like, has been exceptionally bad on this issue. John McIntyre has a post castigating the "bloggers and pundits out there who are hyperventilating over the latest revelation that our security agencies are actually trying to do their job." He draws a comparison between the reaction to the NSA program to that to the USA PATRIOT Act, saying "show me the real alive Jane and Joe Americans who have had their liberties violated in some grotesque manner by the Patriot Act."

This is a completely disingenuous argument. The Patriot Act, whether or not you like it, was passed by Congress. It is law. About that, there is no debate. It was, more or less, debated, critiqued, and subject to scrutiny, consideration, checks, and renewal. The NSA program is not subject to any of this. As I have made clear, I believe that unwarranted, domestic surveillance conducted outside of wartime (and as I have also made clear, we are not currently in a legal state of war) is illegal. I agree with John that the Patriot Act has not produced any serious violations of civil rights to date; I also believe that the NSA surveillance and database operations probably have not either. And I do not believe that the NSA programs are nefarious attempts by sinister politicians to advance their own personal agendas and consolidate power. But, the NSA programs are domestic and aimed at US citizens, and in that role, they must be held to higher standards than foreign intelligence operations. And the NSA programs are illegal.

Over at Power Line, John Hinderaker has a post entitled "NSA Accused of Protecting US From Terrorists." He argues that the database is a "'data mining project that does not involve listening in on conversations, but merely identifies phone numbers involved in possible terrorist communications," and blasts Qwest for refusing to cooperate with the NSA, stating that "presumably Qwest has now become the terrorists' telecom company of choice." First, the database does not just identify numbers involved in possible terrorist communications; it gathers all available phone records and "mines" them to identify patterns. Thus, records of phone calls, regardless of whether they have anything to do with terrorist activity, are collected. Under Section 22 of the Communications Act, phone companies are forbidden from releasing information about their customers' calling patterns.

If this database is so important to the NSA and the fight against terrorism, then why didn't President Bush go before Congress, or the FISA courts to get warrants? There certainly is no argument about the timely nature of the information, as there was with actually listening in to phone calls. If the NSA just needs the information, whether it gets it today or tomorrow shouldn't make such a difference as to justify breaking the law.

Also, when legitimate dissent and concern gets classified as anti-patriotic or soft on national security, as with Hinderaker's title "NSA Accused of Protecting US From Terrorists," something is dreadfully wrong. The attempt to squash analysis and thoughtful debate with jingoistic and simplistic polemics is exactly the reason that these issues need to be considered openly.

The real question of how to analyze the actions of the NSA depends on two considerations: the role of procedural justice and the nature of the threat posed to the United States by international terrorist organizations. I've blogged about the former many times here; suffice it to say that when you're dealing with domestic actions, procedural rules and laws are paramount. We let known criminals escape punishment if their procedural rights are violated. But, that is because any one "regular" criminal poses less of a threat to the fabric of society than does the undermining of the laws, rights, and civil liberties that define this nation.

When those laws, rights, and civil liberties are fundamentally threatened, however, it is legitimate, and perhaps necessary, to restrict civil liberties in order to preserve them in the long run. The question becomes: Is terrorism such a threat? Does it so fundamentally and systematically threaten this country and its freedoms that we need to violate our liberties in order to save them? I believe the answer is no.

There are two problems. First, the war on terror going to be, at best long, at worst never-ending. If we cede liberties, when will we get them back? What constitutes victory? Lacking metrics, we should not give such powers to the president without oversight from Congress, which has not authorized the president to take such actions, has not declared a state of war, and has not approved of the actions of the NSA.

Second, while the effect of a terrorist attack with WMDs would be, as McIntyre notes in his article, devastating, there are lots of possibilities that could cause huge casualties and lots of damage. So just considering the potential outcome does not necessarily justify any particular action; the likelihood of such an outcome must be considered. This is, of course, difficult to quantify. The benefits gained must be weighed against the costs incurred. 9/11, as terrible as it was, took fewer American lives in 2001 than car accidents (42,900), accidental poisonings (14,500), falls (14,200), or suffocation (4,200) [data from the National Safety Council]. In 2001, 1,775 residents of North Carolina died from the flu. On average, 5,000 Americans die every year from food-borne illnesses like salmonella or botulism. None of this is to minimize those deaths, or those taken on 9/11. But the threat of terrorism needs to be understood and not used as a bludgeon. It is infinitely more complicated than pointing to the dead of 9/11 and saying "we must do anything in our power to prevent this, or something worse, from happening again." I see no convincing reasons why the Bush Administration and the NSA need to pursue extra-legal activities to protect this nation.

In the words of Supreme Court Justice Robert Jackson: "the tendency is strong to emphasize transient results upon policies and lose sight of enduring consequences upon the balanced structure of our Republic." Amen.

NSA Domestic Surveillance, Part 2

USA Today is reporting that "the National Security Agency has been secretly collecting the phone call records of tens of millions of Americans, using data provided by AT&T, Verizon, and BellSouth." The NSA is not actively listening to these calls, but rather is "using the data to analyze calling patterns in an effort to detect terrorist activity." According to an anonymous source cited in the article, the NSA's goal is to "create a database of every call ever made." As with the domestic eavesdropping program, this database has been collected without warrants. However, where the eavesdropping program focused on communications involving at least one foreign-based communicant, the database deals with calls originating and terminating entirely within the United States. According to the article, "customer's names, street addresses, and other personal information are not being handed over as part of the NSA's domestic program. But, the phone numbers the NSA collects can easily be cross-checked with other databases to obtain that information."

I've talked a lot in past posts about questions of international justice, arguing that procedural justice need not be the primary concern. However, that is not the case here. This is a domestic issue, and in domestic politics, procedural justice is the primary concern. As I have argued, the defense that the government is, as a result of the country being at war with terror, not obliged to follow the existing laws and rules is not a sustainable argument. And this seems to be a case in point example of why we, in a domestic system, place procedural justice at the top of the "justice hierarchy." Telecommunications companies are, normally, forbidden from divulging such information without warrants, and it is likely that Bush relied on the same logic for obtaining the information as with the first NSA surveillance program. If that is the case, then this database, as with the eavesdropping program, is illegal.

In defense of the database, Senator Jon Cornyn (R-TX) commented that "to suggest that there's some sort of coverup is not correct, and the motivation of those who would suggest otherwise is obvious." But this is exactly the point. The government is wielding power in secret, with apparently little to no oversight from the legislative branch. And while I do not doubt the motives of those in charge, even the best of motives can go astray. Laws once broken are difficult to fix, and power once given is nigh impossible to take away. And, perhaps most importantly, any time the government takes more power for itself and demands the public trust, I get worried. Very worried.