What if big corporations didn’t have to worry about making safe products because they knew they couldn’t be taken to court even if their products caused serious harm? 

These are the stakes in Wyeth v. Levine, which was argued in front of the Supreme Court on November 3rd, and is one of the most important consumer rights cases to come along in years. We are thrilled to have Diana Levine with us today to share her story. As Diana’s case demonstrates, courts make decisions on a host of issues—health care and consumer safety just to name two—that affect every American.

To argue its case, Wyeth is relying on a radical new interpretation of an age-old legal theory called preemption.

For more than a hundred years, individuals harmed by unsafe products have been able to sue in state courts. But Wyeth now argues that if it receives permission from a federal agency, such as the FDA, to market a product, that permission preempts unsafe product lawsuits at the state level, even if the product turns out to be harmful.

If the preemption doctrine is so broadly applied, many corporations may lose an important incentive to keep their products safe, and those harmed would have no recourse.

For nearly 10 years, Diana has pursued her case so that what happened to her will not happen to the rest of us. Please join Diana and thousands of others in this fight. Together, we can support judges who understand the law’s implications for ordinary Americans. Together, we can tell Congress to pass legislation that protects our health and safety and holds corporations accountable.

We at Alliance for Justice were thrilled to work with Emmy-award winning filmmakers Jon Alpert and Matt O’Neill—you may know them from their great HBO documentaries Baghdad ER and Section 60—in telling Diana’s story. I hope you enjoy watching the film as much as we enjoyed making it.

Please, watch the film, tell a friend and sign the petition to stand up for our rights as consumers at Access Denied.

A note from Diana Levine:

I’m the Levine of Wyeth v. Levine, the human at the heart of one of the most important cases to go before the US Supreme Court this term. I’m the migraine-suffering musician rendered abruptly one-armed because Wyeth’s anti-nausea drug Phenergan was administered via IV Push and caused gangrene. I’m the woman whose jury of her principled peers ruled Wyeth be held accountable for a label that should have better warned about that particular nausea-fix, given the gangrene-risk.

The corporation, the FDA, the Administration–I wonder what the real people inside these bureaucratic organizations so willing to sacrifice my right arm to further their preemption agenda would say. Do you think any one person in the FDA would choose this method for their daughter’s nausea, when perfectly safe methods are available? Do you think any one person, be it President, Solicitor General, or any of the little people working for the big pharmaceutical giants would object to all medical personnel being warned of the dangers of using this method? Do you think a drug company that knows they could eliminate risk by a simple label change has the responsibility and the right to do so immediately? No matter what Wyeth’s lawyers may say, I still have supreme faith in the individuals that comprise these organizations, especially those who sit on the bench at the US Supreme Court will reject the arguments made by the drug company.

With one less hand, I’m still armed with a voice and here is my warning: The label for the anti-nausea drug Phenergan (and any equivalent generics) should carry with it a strong warning.

Hopefully, Wyeth will be motivated to provide necessary warnings on IV push should the Supreme Court uphold the decision made by that jury back in Vermont (I have all 4 fingers crossed).

Please welcome Diana and the folks from AFJ. And with that, I open the floor to your comments and questions.

Photo of sun setting on justice via mindgutter.

Today is the first day of the October term in the SCOTUS. AFJ previews the term. SCOTUSblog details three cases argued today, and will be posting oral argument links when available. They have also detailed cases coming up this week, including background thereon.

ACLU has some information on cases of concern this term.  Stephen Shapiro, ACLU’s legal director, said this:

The upcoming Term will inevitably provide more insight into the judicial personality of the Roberts Court. Some of the most important cases are still in the pipeline, however, including two significant cases involving the ACLU. In al-Marri v. Pucciarelli (08-368), the ACLU has filed a petition for certiorari asking the Court to determine whether someone lawfully residing in the United States can be designated an "enemy combatant" and imprisoned by the military without charges or trial. And, in Northwest Austin Municipal Utility District v. Mukasey (08-322), the ACLU is opposing an appeal that seeks to challenge the constitutionality of the Voting Rights Act, which Congress reauthorized in 2006….

Constitutional rights can be overruled directly, or the ability to enforce those rights can be whittled away slowly without much public discussion or accountability.  The cases on the Court’s docket this year open the door to a stealth attack….

John McCain and his 527 allies are trying to raise questions about potential Obama court nominees. Looking at how the Roberts Court has slapped down years of precedent on equality and whittled away at choice, pay equity, civil rights, and civil liberties, I’d think the last thing McCain wants is remind us he wants more Roberts and Alito.  No thank you.  Prof. Erwin Chemerinsky says "no thanks" to McCain as well.  

Should be an interesting term.

[This month's First Monday, with the Alliance for Justice, will be slightly delayed -- we'll be premiering a film, and there is a hold-up getting some footage cleared.  Soon as we can, we'll host it with a live chat with an attorney who is arguing before SCOTUS this morning.  Thanks.  -- CHS]

[Please welcome Georgetown Law Professor and constitutional scholar Marty Lederman for another great installment of the First Monday series, in collaboration with the Alliance for Justice.  We are thrilled to have Marty here to discuss the rule of law, the DOJ, and his thoughts on restoring both.  Please stay on topic and be polite to keep discussion flowing smoothly for Marty's time here today.  Please take off-topic discussions to the prior thread.  Thanks!  -- CHS]

It’s a pleasure to be participating in this "First Monday" chat at Firedoglake. There are certainly a great number of things to discuss regarding the Bush Administration’s detention, torture and surveillance policies, as well as the U.S. Attorney scandal and, more generally, the Administration’s radical view of Executive prerogatives.

The granular details of the story are becoming a bit clearer all the time, especially with the publication of superlative accounts such as Philippe Sands’s Torture Team, Jane Mayer’s The Dark Side, and, tomorrow, Bart Gellman’s long-awaited book Angler, on the central role played by Vice President Cheney and his staff. (You can read some excerpts from the latter here. Jim Comey’s remarkable draft letter of resignation in March 2004 is here. And I’ve posted about the NSA story in Angler here and here.)

I thought I’d begin by posting some testimony that I and some of my former Office of Legal Counsel colleagues have just submitted to the Senate Judiciary Committee for a hearing on "Restoring the Rule of Law" that the Subcommittee on the Constitution, Civil Rights and Property Rights is convening tomorrow [link]:

United States Senate Committee on the Judiciary, Subcommittee on the Constitution, Hearing on “Restoring the Rule of Law”, September 16, 2008 Joint Statement of  David J. Barron, Professor of Law, Harvard Law School; Walter E. Dellinger, Visiting Professor of Law, Harvard Law School, Partner, O’Melveny & Myers, LLP; Dawn E. Johnsen, Professor of Law and Ira C. Batman Faculty Fellow, Indiana University School of Law-Bloomington;  Neil J. Kinkopf, Professor of Law, Georgia State University College of Law;  Martin S. Lederman, Associate Professor of Law, Georgetown University Law Center;  Trevor W. Morrison, Professor of Law, Columbia Law School;  Christopher H. Schroeder, Charles S. Murphy Professor of Law and Public Policy Studies, Duke University School of Law.

We are professors of law and former attorneys in the Justice Department’s Office of Legal Counsel (OLC). We wish to commend the Subcommittee for holding this hearing on the rule of law. As former OLC attorneys we have seen firsthand the ways in which this principle has protected fundamental liberties and promoted the proper functioning of government. Adherence to rule of law principles, moreover, has ensured that a President’s rightful assertion of constitutional authorities is not undermined by doubts about the Executive Branch’s commitment to the separation of powers. We are deeply concerned by actions in the past few years that have eroded the force of this vital principle.

While no Administration has been perfect, for almost all of our history Presidents from all political parties have demonstrated a fundamental commitment to the principle of obedience to statutory and constitutional limits on executive power. That is, until now. Recent secret abuses of power and extravagant claims of unilateral authority have called seriously into question the Executive Branch’s willingness to adhere to lawful limits on executive authority. The resulting crisis of legitimacy makes urgent the need for reforms to promote the rule of law throughout the federal government. In our testimony, we will focus upon ways to promote adherence to the law within the Justice Department, and particularly at OLC.

The fundamental precept that no one, not even the President, is above the law is enshrined in the Take Care Clause, which provides that “the President shall take Care that the Laws be faithfully executed.”^[1] Rarely has any President directly challenged the principle that the President must obey the law. President Nixon came close with his extraordinary assertion that, “when the President does it, that means it is not illegal.”^[2] The current Administration’s challenge to the rule of law has been more subtle, and for=2 0that reason may prove more difficult to redress. That simply makes it even more imperative that we do all we can to understand and respond to this challenge

In our system, the Constitution, of course, is the supreme law of the land. Congress at times may enact statutes that violate the Constitution, and the courts possess the clear authority to declare such statutes invalid and unenforceable. In some rare circumstances, the President’s duty to faithfully execute the laws counsels him to decline to enforce an unconstitutional statute even absent a judicial order. And under the system of separated powers, one way a statute can be unconstitutional is if it unduly impinges on powers that the Constitution assigns to the President. Whether it is appropriate in any given circumstances for the President to decline to enforce a statute he believes to be unconstitutional involves a complicated calculation, about which previous Administrations and past practice offer much guidance.^[3] At least one predicate is absolutely clear: to comply with th e rule of law, in order to reach a sound conclusion that a statute unduly impinges on the President’s powers, the scope of the President’s powers must be correctly stated. Under this Administration, lawyers in the Executive Branch have wildly misinterpreted what the Constitution says about the extent of presidential authority, and as a result the President has erroneously claimed the authority to disregard laws that he is obligated to follow.

A second danger to the rule of law arises when, instead of directly challenging a statutory restriction on the President’s powers as unconstitutional, the Executive Branch relies on constitutional concerns about the statute to justify a strained interpretation of the statute so that it no longer means what Congress said. The canon of constitutional avoidance instructs that when a statute can fairly be interpreted in two different ways, one of which would violate the Constitution (or would raise a serious constitutional concern) and one of which would not, the statute should be interpreted to avoid the constitutional problem. Courts often employ this sound rule of statutory interpretation. The Bush Administration, however, has repeatedly misused and abused the avoidance canon, twisting the meaning of statutes beyond recognition.^[4] This second danger to the rule of law is related to the first.  Because the Bush Administration endorses such an expansive and erroneous interpretation of the President’s exclusive powers, its lawyers have raised constitutional objections to statutes with unprecedented frequency. The result is that reasonable and permissible statutory regulations of the Executive Branch are misconstrued, contorted, or even eliminated, all in the name of avoiding constitutional concerns that actually flow from an implausible view of the Constitution.

When the secret Torture Memo of August 1, 2002^[5] became public, it provided a vivid – indeed, a shocking – example of the harm that could be done by the invocation of indefensibly sweeping constitutional claims of presidential authority to defy the law and by the perverse twisting of statutory language. A federal law makes it a crime for anyone acting under the color of law to enga ge in torture outside the United States. OLC nevertheless concluded that this federal law, which implements our treaty obligations under the Convention against Torture, could not operate to prohibit the President from ordering the use of torture in interrogating enemy combatants.^[6] First, the memo used the canon of constitutional avoidance to suggest that the statute’s unambiguous and unqualified prohibition on torture by all government personnel simply “does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority.”^[7] Second, and alternatively, the memo concluded that if the statute cannot be read to exclude persons acting under Presidential orders – a meaning that the words cannot support — and instead must be understood to cover interrogations ordered by the President, then it is unconstitutional. On both points, the memo’s reasoning is premised on such a broad conception of the President’s authority as Commander in Chief that it would allow the President to ignore virtually any statute that regulates the military or the conduct of war.  The memo also never even acknowledges that the Constitution explicitly assigns to Congress significant authority relevant to regulating the military, the conduct of war, or the nature of interrogations.^[8] The Administration’s interpretation of the constitutional distribution of war powers has no support in judicial precedent. Former OLC head Jack Goldsmith observed that the Torture Memo, and other memoranda authored to support the Administration’s counterterrorism activities, “were deeply flawed: sloppily reasoned, overbroad, and incautious in asserting extraordinary constitutional authorities on behalf of the President. I was astonished, and immensely worried, to discover that some of our most important counterterrorism policies rested on severely damaged legal foundations.^[9]

Not only is the theory of presidential power found in the Torture Memo unjustified, but OLC also betrayed its proper role in arriving at its conclusions. Instead of enforcing valid legal constraints within the Executive Branch, OLC seems to have allowed its interpretation of applicable laws to be infected by its outsized view of the President’s power to disregard limitations on his authority to do whatever he thought necessary. As a result, the memorandum reads more like a one-sided justification for conferring legal immunity than as a sober assessment of the actual state of the law.

The Torture Memo was by no means an isolated incident. Indeed, the highly inflated view of presidential power contained in the Torture Memo appears to have informed a vast array of the legal advice given during the Bush Administration. OLC, for example, issued a memo asserting that the President may initiate a full-scale, long-term war even if Congress has not declared or otherwise authorized it, and even if it is prohibited by the War Powers Resolution.^[10] Similarly, the Justice Department issued a memo — which no official seems to have been willing to sign — arguing implausibly that FISA does not apply to the President’s Terrorist Surveillance Program and, further, that FISA would be unconstitutional if it did apply to limit this program.^[11] In another memo dealing with torture and numerous other statutory limits on interrogation, issued in March 2003 but released just this past March, OLC repeated the extreme theories of presidential power it had voiced in the original Torture Memo.^[12] The Administration only released each of these memos years after it began to disregard the statutes in question, in response to leaks about the memos or the underlying programs.

The Bush Administration’s practice with respect to signing statements offers many additional examples of just how expansively it views presidential power. President Bush, like Presidents of both parties before him, has used signing statements to express his view that certain provisions of a new law are unconstitutional. In the first six years of the Bush Administration, the President issued 223 objections citing his commander-in-chief power or his authority over foreign affairs. These objections were raised against statutes addressing a wide variety of issues, from personnel matters^[13] to the use of torture.^[14] The common element shared by a great many of the statements is that the alleged constitutional concern was based on an unjustifiably far-reaching and preclusive view of the President’s commander-in-chief authority. Moreover, this overreaching was not limited to the areas of foreign and military affairs. An erroneous, expansive view of presidential power was imported to domestic matters under the heading of the unitary executive theory. During his first six years in office, President Bush issued signing statements objecting to 363 new provisions of law on this ground alone.  Yet in many instances, the statute in question raised no discernible constitutional problem and the President’s objection was either unsupported or unsupportable.

Without regard to who wins the upcoming presidential election, we recommend that the next Administration make three commitments. First, the next President should promote a reasonable view of presidential power that is grounded in the Constitution’s text and structure as well as settled judicial and political-branch precedents. Second, the next President should commit to greater openness and the accountability that goes with it. Third, the next President should commit to respecting important structural safeguards that check against presidential aggrandizement.  Within each of these categories, we recommend a number of more specific steps.

1. A Well-Founded View of Presidential Power. To advance the first commitment, the next President should initiate a process to ensure that the new Administration withdraws and repudiates the reasoning of memoranda and opinions that overstate the President’s constitutional powers and that minimize those of Congress and the courts. We have not conducted a comprehensive review of OLC opinions, nor could we as many are classified or otherwise inaccessible. Thus, we cannot offer an exhaustive list of the opinions that should be withdrawn. We do believe, however, that the list should include the Torture Memos,^[15] the DOJ Whitepaper on the Terrorist Surveillance Program,^[16] and the September 25, 2001 opinion on war powers.^[17].

The next President should also affirmatively adopt a view of presidential power that recognizes the roles and authorities of all three co-equal branches and that takes account of settled judicial precedent. We believe that a model the next President should seriously consider adopting is “The Constitutional Separation of Powers between the President and Congress.”^[18] Setting forth the principles that will govern the determination of questions of presidential power will provide a constraint against the sort of result-oriented advice-giving that proved so problematic in instances such as the Torture Memo.

2. Openness and Accountability. To advance the commitment to openness and accountability, we offer several recommendations. OLC should review its procedures for releasing opinions and publicly release guidelines that will govern publication decisions. The goal of the review should be to make sure that OLC’s memoranda and opinions are made available to the public to the maximum extent possible consistent with the legitimate confidentiality interests of the Executive Branch.^[19]

Congress, the Courts, and the public are unable to check against abuses of executive power if they do not know about them. In this regard, the experience of the past eight years is instructive. It was only years later and due to leaked information that we learned of highly consequential opinions advising that the Executive Branch was not bound to comply with statutory limits on its power, including opinions relating to the treatment of detainees, the President’s domestic surveillance program, and the use of secret prisons overseas for detention and interrogation.

The review of OLC disclosure procedures should place special emphasis on the importance of releasing legal memoranda and opinions that conclude that statutory constraints on the Executive Branch do not apply because they are unconstitutional or will be interpreted as inapplicable by means of the avoidance canon. The Bush Administration has frequently misused this canon to resist compliance with a wide array of statutory obligations. Congress can potentially remedy such misinterpretations by amending the relevant statute to make it expressly and absolutely clear that the statute applies where the Executive Branch has said it does not. But that cannot happen if Congress is not told of the executive’s interpretation in the first place.^[20] Federal law already requires the Justice Department to report any instance in which it declines to defend the constitutionality of a law or does not enforce the law because of a view that it is unconstitutional.^[21] The statute does not cover invocations of the avoidance canon, which has become a significant loophole over the past eight years. As a result, we do not know what laws the Adm inistration is refusing to enforce and our ability to hold the government accountable is impaired. We strongly urge Congress to enact a law to require the Justice Department to report instances in which it employs the avoidance canon or other recently misused canons of statutory construction to yield a conclusion that a law does not apply to the Executive Branch or need not be executed. We would particularly commend to Congress’s consideration “The OLC Reporting Act of 2008,” to be introduced by Senator Feingold.^[22]

The next President should also commit to review the Executive Branch’s practice in asserting privileges, including executive privilege. The presidential communications privilege is, according to the Supreme Court, a legitimate constitutional privilege rooted in the separation of powers.^[23] Nevertheless, this privilege is not absolut e and judicial precedent as well as long Executive Branch and congressional practice recognize that the President’s constitutional interest must be balanced against Congress’s legitimate interests in conducting investigations and oversight.^[24] The next President should commit that, when disputes over privilege arise, the executive will seek to resolve them through good faith negotiation and meaningful accommodation. This negotiation and accommodation process must include recognition by the Executive Branch of the legitimate claims to information that the Congress does have in its legislative, oversight and investigatory functions. In a recent and highly relevant case, Judge Bates authored a helpful discussion of Congress’ legitimate interests in information, which in our judgment is largely correct.^[25]

The next Administration should review the grounds and procedures for invoking the state secrets privilege. In recent years, the Executive Branch has increasingly used this privilege as a categorical bar to litigation and as a shield to avoid scrutiny of legally questionable executive programs, such as the Terrorist Surveillance Program.^[26] The next President should commit to invoking this privilege only where national security interests (rather than the interest in avoiding embarrassment or judicial scrutiny) truly require it.

In addition, the next Attorney General should reverse the presumption against disclosure of information in response to a Freedom of Information Act (FOIA) request. On October 12, 2001, Attorney General John Ashcroft issued a new Department of Justice Freedom of Information Act Policy Memorandum to the heads of all federal departments and agencies.^[27] This memorandum reversed the existing presumption in favor of disclosure and instructed agencies that, in making discretionary FOIA decisions, they should consider the values behind the exemptions – emphasizing interests such as national security and privacy – that militate against disclosure.^[28] This presumption against disclosure prevents accountability on a broad range of government decisions and actions. To maintain secrecy where there is not a clear reason or threat of harm to the national interest undermines both the reality and public perception that government decisionmaking comports with the rule of law.

3. Structural Safeguards against Abuse of Power. To advance the third commitment to enhance structural safeguards, we suggest that the President instruct the Attorney General to pay particular attention to the procedures of OLC. Together with a number of our former colleagues, we have written a set of guidelines that OLC should foll ow in order to best effectuate its role.^[29] We have appended these guidelines to this testimony, and with one exception, we will not elaborate further on those guidelines here. We would like to highlight the first of the principles, which counsels that:

When providing legal advice to guide contemplated executive branch action, OLC should provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies. The advocacy model of lawyering, in which lawyers craft merely plausible legal arguments to support their clients’ desired actions, inadequately promotes the President’s constitutional obligation to ensure the legality of executive action.

We do not want to be misunderstood. Although we do not believe that OLC should act as an advocate as described above, we do believe that OLC can and should play the role of honest adjudicator of legal questions even while serving as close legal advisor to the Attorney General and the President. It is OLC’s duty to give the President its best appraisal of what the law allows and forbids, even if this means informing the President that some proposed course of action would be illegal. In order for OLC to play this role effectively, however, the President must have confidence that OLC is willing to assist the President in advancing his or her policy objectives in a legally permissible manner. If this confidence is lacking, there is a real risk that on important matters the President will go elsewhere for legal counsel. The roles of presidential advisor and honest, neutral arbiter of legal questions, then, are not mutually exclusive, but mutually reinforcing.

It is also important to see the failure of OLC in the current Administration to live up to its proper role – including its willingness to operate as an advocate and to offer thinly plausible, or even implausible, legal justifications for the President’s policy goals – in the broader context of attempts to politicize the Department of Justice more generally. Congress has held hearings, and the Inspector General and Office of Professional Responsibility have issued a number of reports, with more forthcoming, on these activities. There have been troubling revelations that partisanship played a role in hiring decisions for career attorneys and for immigration law judges, and also indications that the decision to fire United States Attorneys was influenced, at least in part, by a design to encourage partisan-influenced prosecution decisions.^[30] If our commitment to the rule of law has any meaning, these abuses cannot be tolerated. The next President should instruct the Attorney General to adopt measures to ensure that nothing similar ever happens again and that Justice Department decisions taken in the future are free of any lingering taint of partisanship.

Public confidence in the impartial administration of justice must be restored. It is not sufficient that the President and Attorney General themselves be satisfied that they have addressed the problem. Their efforts must be considered credible on bipartisan and interbranch bases.* * * * *

Executive Branch lawyers play a critical role in ensuring that the government adheres to the rule of law. To address past abuses and restore the Department of Justice’s integrity and credibility, we urge the next President and Attorney General to undertake the various recommendations that we have laid out above. Our recommendations also reflect our appreciation of the important role that OLC plays in safeguarding those presidential powers that rest on secure constitutional foundations. Indeed, one of the reasons to correct the abuses of the current Administration is to ensure that the President and his lawyers do not operate under clouds of suspicion and skepticism when they do their duty and defend executive authority in appropriate circumstances. The next Administration, whoever heads it, will no doubt engage in controversial assertions of executive power. These assertions should not be alarming from the standpoint of the rule of law if they are made openly and accountably, are based on well-supported constitutional interpretations, and emerge from a process that respects the structural checks against abuse of power.

^[1]U.S. Const. art. II, , § 3.
^[2] Excerpts from Interview with Nixon about Domestic Eff ects of Indochina War, N.Y. Times, May 20, 1977, at A16 (interview by David Frost).
^[3] See Walter E. Dellinger, Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. Off. Legal Counsel 199 (1994); Benjamin R. Civiletti, The Attorney General’s Duty to Defend and Enforce Constitutionally Objectionable Legislation, 4A Op. Off. Legal Counsel 55 (1980); David Barron, Constitutionalism in the Shadow of Doctrine: The President’s Non-Enforcement Power, 63 Law & Contemp. Probs. 61 (2000); Dawn E. Johnsen, Presidential Non-Enforcement of Constitutionally Objectionable Statutes, 63 Law & Contemp. Probs. 7 (2000)… < /span>

^[4] See generally Trevor W. Morrison, Constitutional Avoidance in the Executive Branch, 106 Colum. L. Rev. 1189 (2006). 

^[5] Memorandum from Jay S. Bybee, Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President, Standards of Conduct for Interrogation under 18 U.S.C. 2340-2340A (Aug. 1, 2002), available at http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf..

^[6] Although this memo was later rescinded, the Bush Administration has not repudiated this constitutional conclusion or the legal rationale on which it was based. Moreover, as we discuss below, the rationale found in the Torture Memo has been deployed in a number of memos that the Justice Department has not rescinded. And it also formed the basis for the ultimate conclusion of the Administration’s most comprehensive war powers opinion, one that OLC has officially published. Memorandum from John C. Yoo, Deputy Ass’t Att’y Gen., Office of Legal Counsel, to Timothy Flanigan, Deputy Counsel to the President, The President’s Constitutional Authority to Conduct Military Operations against Terrorists and Nations Supporting Them (Sept. 25, 2001), available athttp://www.usdoj.gov/olc/warpowers925.htm.

^[7] See Memorandum from Jay S. Bybee, supra note 5, at 34-35.

^[8] Congress has broad authority in this area. It is authorized, inter alia, to define and punish offenses against the laws of nations, U.S. Const., art. I, § 8, cl. 10, and to make rules for the government and regulation of the land and naval forces, id., cl. 14.

^[9] Jack Goldsmith, The Terror Presidency: Law and Judgment Inside The Bush Administration 10 (2007).

^[10] Memorandum from John C. Yoo, supra note 6.

^[11]Memorandum from U.S. Department of Justice, Legal Authorities Supporting the Activities of the National Security Agency Described by the President 35 (Jan. 19, 2006)(“Indeed, if an interpretation of FISA that allows the President to conduct the NSA activities were not “fairly possible,” FISA would be unconstitutional as applied in the context of this congressionally authorized armed conflict.”).

^[12] Memorandum from John C. Yoo, Deputy Assistant Att’y Gen., to William J. Haynes, Gen. Counsel, department of Defense, Military Interrogation of Alien Unlawful Combatants Held Outside the United States, (Mar. 14, 2003), available at http://www.fas.org/irp/agency/doj/olc-interrogation.pdf.

^[13] Consider, for example, a provision limiting the number of government relations personnel employed in the Department of Defense. President Bush contended that this limitation would raise serious constitutional questions relating to his authority as commander in chief. Yet, the statement did not specify the nature of those objections and it is difficult to imagine what they might have been, other than the implausibly exaggerated view of the President’s commander-in-chief power expressed in the Torture Memo. Statement on Signing The Department of Defense and Emergency Supplemental Appropriations for Recovery from and Response to Terrorist Attacks on the United States Act 2002, 38 Weekly Comp. Pres. Docs. 46 (Jan. 10, 2002).

^[14] Consider, for example, the signing statement objecting to the McCain Amendment prohibiting military personnel from engaging in cruel, inhuman, or degrading treatment of detainees. President Bush asserted that this prohibition could violate his commander-in-chief power and strongly indicated that the judiciary had no authority to enforce it. Statement on Signing the Department of Defense, Emergency Supplemental Appropriation to Address Hurricanes in the Gulf of Mexico and Pandemic Influenza Act 2006, 41 Weekly Comp. Pres. Docs. 1918 (Dec. 30, 2005).

^[15] Jay S. Bybee, supra note 5; Memorandum from John C. Yoo, supra note 12.

^[16] U.S. Department of Justice, supra note 11.

^[17] Memorandum from John C. Yoo, supra note 6.

^[18] 20 Op. Off. Legal Counsel 124 (May 7, 1996).

^[19] This recommendation is discussed more fully in the document appended to this testimony, Principles to Guide the Office of Legal Counsel. Some of us have addressed this issue in previously submitted testimony. See From the Department of Justice to Guantanamo Bay: Administration Lawyers and Administration Interrogation Rules, Part III Before Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on the Judiciary, 105th Cong. (forthcoming 2008) (statement of Christopher H. Schroeder), 2008 WL 2537928; Secret Law and the Threat to Democratic and Accountable Government Before the Subcomm. on the Constitution of the S. Comm. on the Judiciary, 105th Cong. (forthcoming 2008) (state ment of Dawn E. Johnsen), 2008 WL 1923041.

^[20] See Morrison, supra note 4, at 1237-39.

^[21] 28 U.S.C. § 530D (2008).

^[22] We also recommend consideration of similar legislation that we understand Rep. Brad Miller plans to introduce in the House of Representatives.

^[23] United States v. Nixon, 418 U.S. 683 (1974).

^[24] See, e.g., United States v. Am. Tel. & Telegraph Co., 567 F.2d 121 (D.C. Cir. 1977); Senate Select Committee v. Nixon, 498 F.2d 725 (D.C. Cir. 1974).

^[25]See Committee on the Judiciary, U.S. House of Representatives v. Miers, 558 F. Supp. 2d 53 (D.D.C. 2008).

^[26] See, e.g., Al-Haramain Islamic Found. v. Bush, 507 F.3d 1190 (9th Cir. 2007); ACLU v. Nat’l Sec. Agency, 498 F.3d 644 (6th Cir. 2007).

^[27] Memorandum from U.S. Dep’t. of Justice, Office of Info. and Privacy (Oct. 12, 2001), available at www.usdoj.gov/oip/foiapost/2001foiapost19.htm.

^[28] See The Ashcroft Memo, Coalition of Journalists for Open Government http://www.cjog.net/background_the_ashcroft_memo.html.

^[29] Dawn E. Johnsen, Faithfully Executing the Laws: Internal Legal Constraints on Executive Power, 54 UCLA L. Rev. 1559 app. at 1603-11 (2007).

^[30] Office of the Inspector Gen. & Office of Prof’l Responsibility, U.S. Dep’t of Justice, An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General  (July 28, 2008); Office of the Inspector Gen. & Office of Prof’l Responsibility, U.S. Dep’t of Justice, An Investigation of Allegations of Politicized Hiring in the Department of Justice Honors Program and Summer Law Intern Program (June 24, 2008).  These reports are available at http://www.usdoj.gov/opr/index.html.  For a discussion of the adverse effects of the politicized hiring of immigration law judges, see Charlie Savage, Vetted Judges More Likely to Reject Asylum Bids, N.Y. Times (Aug. 23, 2008).

Photo of justice before the SCOTUS via mindgutter.

[Thanks for joining us for another edition of First Monday, presented in conjunction with the Alliance for Justice.  Please welcome Vince Warren, the Executive Director for the Center for Constitutional Rights.   Please also welcome Steven Watt of the ACLU.  As always with guests, please stay on-topic and be polite -- any off-topic discussions should be taken to the prior thread. Thanks! -- CHS]

Two weeks ago, Attorney General Michael Mukasey tried to tempt Congress into blocking justice for the men in Guantanamo yet again.  Enough already. The Supreme Court has chastised Congress on it’s several eleventh-hour attempts to deny the men access to federal courts by passing the Detainee Treatment Act of 2005 (DTA) and the Military Commissions Act of 2006 (MCA).

This June, the Court called “strike three” on these unlawful policies by upholding the detainees’ right to have access to federal courts for a third time – in Rasul v. Bush in 2004, Hamdan v. Rumsfeld in 2006, and Boumediene v. Bush in 2008.  Congress should be a part of the solution this time by simply letting the courts do their job. 

The stripping of habeas corpus and the accompanying legal contortions of the past six years are emblematic of this administration’s contempt for the law.

The Boumediene case was an historic victory and gives some hope that we can still count on the courts to protect the most fundamental of our rights, at least when it involves another branch stepping on judicial toes. The Center for Constitutional Rights has led the legal battle for the hundreds of detainees held at Guantanamo, neck and neck with the Bush administration’s attempts to justify unjust detention. We sent the first habeas attorney to the base and the first attorney to meet with a former CIA “ghost detainee” there. That we might have to go another round, and watch the men at Guantanamo languish another two years, is unthinkable.

We have arrived at a critical point in American history and in the evolution of how our leaders interpret, manipulate, and even ignore our laws. Over the last six years, the Bush administration has systematically dismantled some of the most important rights and protections in the United States Constitution.

Bush was able to sign away our constitutional and human rights during his time in the Oval Office, often with only the stroke of a pen—in a signing statement, an executive order or pursuant to a dubious legal memo. It’s imperative that we all let the next president know we are watching closely and expect him to restore the Constitution and make it a priority in his first 100 days in office.

We’ve started a 100 Days campaign that will provide a detailed blueprint of policy prescriptions for the next president to put the Constitution back together again. We are trying to ensure that power actually gives up power in the face of public pressure and scrutiny.

But the other issue we must address is accountability for the crimes this administration has committed.

This fall, in addition to the 100 Days campaign, we’ll be releasing our book, The Trial of Donald Rumsfeld, which lays out the torture case against the former Defense Secretary as well as Gonzales, Tenet, Yoo, Bybee and others guilty of war crimes.  We’ve filed cases in Germany and France under universal jurisdiction laws, and continue to pursue accountability. But we’ll need the support and the pressure of the public to make it all work.

The Alliance for Justice has put together a fact sheet on the Mukasey response to Boumediene and habeas, as well as an action request for you to contact your representatives and tell them to just say no. We all need to stand up for habeas — be the change you wish to see.  – CHS

Specifically about some of the work the Center For Constitutional Rights, the ACLU and others have done…fighting indefinite detention, torture, rendition, all those things that the Bush Administration denounced in public while encouraging them vociferously behind their own hand-drawn veil of state secrets.  Hope you can join us.

From the very beginning, the Center for Constitutional Rights and the ACLU have stood for the rule of law. Trying to stop the Bush Administration’s dismissal of long-held, long-fought-for human rights laws which the United States previously championed.

Before we became a nation, George Washington’s decision to treat prisoners humanely stood in stark contrast to the treatment our soliders were given by the British, who argued that torture and other harsh methods were perfectly acceptable because American rebels were enemy combatants who refused to accede to British law and obeisance to the king. 

Today, we have become that which we sought to throw off at our nation’s founding. To our shame.

The Hamdan defense case rested last week, with closing arguments this morning.  The case is expected to be in the jury’s hands later today.  There are things I want to bring to everyone’s attention:

…The defense team…asked if the jury was surprised to learn that Hamdan’s boss, Abdullah Tabarak, in charge of bin Laden’s security detail, including bodyguards and drivers, had himself been detained at Guantánamo Bay but was released and sent home to Morocco in 2004. And they shared with the jury video footage of Hamdan taken soon after he was captured, showing him shackled, hooded and scared, as he was badgered by a U.S. military interrogator and in obvious pain from sitting too long trussed about the legs. 

Yet, through it all, it seemed that Team Hamdan could barely solicit a raised eyebrow among the jury members. Maybe such revelations would have shocked a military jury in the past. But the trampling of rights at Guantánamo Bay has so permeated the national consciousness (if not its conscience) that such abuse seems almost commonplace — a simple byproduct of the war on terror that must be endured…. (emphasis mine)

Glenn has a great interview with Ben Wizner of the ACLU who has been working on Hamdan’s defense team at Gitmo. As Ben points out, Hamdan was allowed to remain in the courtroom to hear testimony from Special Forces personnel about his own torture despite its high level of classification because "[t]he government doesn’t mind revealing that information to detainees because it doesn’t plan ever to release them." 

Andy Worthington has a few choice words about the trial proceedings, including this:

…The Commissions’ former chief prosecutor, Col. Davis resigned in October 2007, complaining that his superiors had politicized the process, and explaining that he could not continue in his job because he refused to take part in trials that allowed evidence obtained through torture. In February 2008, Col. Davis reported that, during a discussion of the Nuremberg Trials with the Defense Department’s chief counsel William J. Haynes II, in which Davis noted that there had been some acquittals, which had "lent great credibility to the proceedings," Haynes told him, "We can’t have acquittals. We’ve been holding these guys for years. How can we explain acquittals? We have to have convictions."

I’ve been reading Jane Mayer’s book, The Dark Side, and it’s been giving me nightmares. Because it is the stuff of nightmares for a lawyer who takes a commitment to the rule of law and justice seriously. In the recent NYTimes book review, Alan Brinkley hits this head on:

…The tactics the president denounced were precisely those he had authorized and encouraged in the growing network of secret prisons around the world. The detainees in these scattered sites — many of them innocent — have been held for months and years without charges, without lawyers, without notification to their families and often without respite from torture for weeks and months at a time. The Bush administration’s response to the Abu Ghraib scandal was not to stop the behavior, but to try to hide it more effectively. 

No one knows how many people were rounded up and spirited away into these secret locations, although the number is very likely in the thousands. No one knows either how many detainees have died once in custody. Nor is there any solid information about the many detainees who have been the victims of what the United States government calls “extraordinary rendition,” the handing over of detainees to other governments, mostly in the Middle East, whose secret police have no qualms about torturing their prisoners and face no legal consequences for doing so.

This is not who we are supposed to be, who we ought to be. Exposing this is one step forward, fighting it directly is necessary — and incredibly difficult and thankless work.  As folks at the CCR and ACLU can tell you, they get called traitors and worse every day for standing up for the principles enshrined in our nations laws, its Constitution and its Bill of Rights. And thank god they do so. 

Please take some time later today at 3 pm ET/noon PT to speak with Vince Warren from CCR and folks from the ACLU who fight these battles every day. For all of us.

(YouTube — Vince Warren discussing CCR’s work on human rights issues before the SCOTUS on Democracy Now.)

This coming Monday, August 4th, at 3:00 pm ET/noon PT, our guest will be Vince Warren, Executive Director of the Center for Constitutional Rights and some folks from the ACLU — all of whom have been working diligently over the last few years for civil liberties for American citizens and those we detain and to restore the rule of law.  

So, mark your calendars — it’s going to be a great discussion.

Ben Wizner of the ACLU has been blogging from Gitmo this week, where he is working on the Hamdan case.  Salon has an update from there as well, including this:

…Although Allred acknowledged in a ruling issued the day before trial that Hamdan was subjected to "various types of coercive treatment," he overruled the objection to the tapes, saying that the rules allow the admission of coerced testimony if it is deemed "reliable" and "the interests of justice." Those tapes, he concluded, served the interest of justice and were allowed in. Never mind the coercion. 

Defenders of the military commission process will point to other statements that Allred has excluded from trial, because they were coerced, to argue that the process is fair. But with some evidence admitted that was clearly obtained through coercion, those claims ring hollow.

Although the videos were entered into the record, aired in court, and viewed by those in the gallery, the Department of Defense will not release them to the general public. According to one Pentagon source, the DoD is withholding them out of an "abundance of caution." Perhaps the DoD fears that the American public will know a coercive interrogation when it sees one?

The WaPo has more.  And, according to McClatchy, the defense rested today in the Hamdan trial, with testimony on paper coming from Khalid Sheik Mohammed:

”He was not a soldier, he was a driver,” Mohammed said in an English translation of his written testimony.

"He was not fit to plan or execute. But he is fit to change trucks’ tires, change oil filters, wash and clean cars and fasten cargo in pickup trucks.”

Odd, and it underscores the unusual nature of these proceedings from the outset. Definitely something we can talk about on Monday with our guests. 

Marty Lederman of Balkinization and Gabor Rona of Human Rights First tackle indefinite detention and the Al-Marri case. Great reads.

Meanwhile, is it any wonder that allies such as Britain and Canada are now questioning US representations on any number of intel issues, given that allegations of yet another series of US lies to Britain have surfaced?  This time, it looks like Gen. Hayden of the CIA on the "not so honest" hook, but this isn’t the first time something like this has surfaced.  Spencer has much more.

Jack Balkin has some analysis on the recent RAND report on militarism versus rule of law in the age of terror — and concludes:

The irony is that the Bush Administration has devoted itself to eliminating the threat of terrorism using as much military force as it can muster, by refusing to characterize the problem as one of law enforcement, and by perpetuating and even increasing the American military presence in the Middle East. If the RAND report is to be believed, the Bush Administration has systematically chosen the worst policies in the last seven years.

Funny how that "might does not equal right" concept keeps coming back to haunt us.

(YouTube — Part I of the Democracy Now! interview with Philippe Sands.  Part II is here. Interview transcript here, with a later interview transcript here.)

[Today is the next installment of the First Monday series in conjunction with Alliance for Justice.  We are pleased to have Slate's Dahlia Lithwick here to discuss the recently concluded SCOTUS term and its implications.  The Alliance for Justice has put together a comprehensive SCOTUS summary report which you can read here.  (PDF)  And, with that, please welcome Dahlia -- as always, stay on topic and be polite.  Thanks! -- CHS]

First of all I want to thank Christy and the folks at Alliance for Justice for inviting me to participate in this terrific series. For all that the web often serves to fracture and polarize us, I am so happy to be involved in enterprises – like the First Monday series – that try to bring us together to talk. 

My topic today is the just-completed October 2007 term at the high court and its implications for the future. We can certainly discuss specific cases and trends if you all want to do that. But what I am most interested in today is the perennial question of whether liberals believe the composition of the court is a voting issue in November, and if they don’t why not?

My own impression, having covered the past two presidential elections is that most liberals simply don’t vote with the composition of the Supreme Court in mind at all, or that it ranks somewhere in their top 14 concerns, but rarely breaks into the top five. There is just no analogue on the political left for the focused, court-obsessed judge-watchers who populate the conservative base and holler “activist judge” every time a decision comes down with which they disagree.

I have some theories for why this is the case but look forward to yours: What the Supreme Court does is so removed from public life; the lag time between a court decision and its effects on the ground can be enormous; the court’s work is shrouded in jargon and secrecy; and despite the advancing years of the court’s liberal wing, it’s very hard to scare voters into caring about the Supreme Court with an election ad that warns:

Some justices may leave the court at some point soon. Some other justices may replace them and those new justices may decide some cases we don’t know about yet. And that might be bad for America.

Far easier to vote for the guy who promises to lower gas prices. 

But the real reason liberals don’t seem to worry much about the composition of the high court may simply be that we have been on the winning side of constitutional history for too long. We’re like that frog in the caldron of boiling water who just can’t seem to see how much hotter it’s become in just a few years.

The reason the conservative base is so very angry at the judiciary – decades of Republican appointees steadfastly but inexplicably refusing to overturn Roe v Wade – is the same reason liberals have become so complacent. We take new justices at their word that they won’t disturb settled precedent. We get sucked into the expert claims that the court decides too few cases (only 67 this term!) to really matter, or the characterization of those decisions as humble or narrow, even when many are nothing of the sort. We secretly believe that no matter who departs the court and who replaces them, the Warren-era achievements are somehow frozen in constitutional amber.

Or we forget to take off our Roe-colored glasses – the ones that lead us to think that the only issue that matters with respect to the high court is the right to abortion.

Maybe. Or maybe we have just been snookered into believing that whether we call it the Burger Court, the Rehnquist Court, or the Roberts Court, some secret force will ensure that it’s always a 4-4 court with a “swing justice” in the middle. That ignores the fact that this allegedly divided court is, as Prof. Geoffrey Stone has argued, is comprised of seven justices appointed by Republican Presidents; that each successive swing justice has been markedly more conservative than their predecessor; and that as Stone notes, “four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.”

Justice John Paul Stevens himself has observed that every justice replaced in the past forty years, has been replaced by someone more conservative. Even if these labels – “conservative” and “liberal” are too rough to be truly descriptive when it comes to the cases, it’s hard to deny that the court has lurched to the right with every new appointment. But Democrats don’t seem to notice.

I have argued for a long time that one of the biggest drawbacks in the national debate about the courts is the absence of a really compelling judicial theory for Progressives. It’s so easy for John McCain to bang on about activist judges and strict construction and judicial humility. Even if they are nonsense words, they mean something to his supporters and even his detractors are aware that these terms – while hollow – signify a general principle of constraining unelected judges. But Barack Obama has been less clear and less persuasive in his attempts to explain what he’d like to see in a judge. Perhaps because we lack a crystalline definition of what liberal jurists do and how their decisions can be constrained, we prefer to change the subject when it comes to judicial vacancies and hope things don’t get any hotter.

So my question for you today is why? How might we turn the Court into a voting issue on the left? How do we talk about future justices without being labeled elitist and out-of-touch? And what might we do to change confirmation hearings into a meaningful process for vetting judicial candidates.

Thanks again for having me here today. I look forward to meeting you.

(YouTube above — the "magic words" argument on issue ads between Toby, Bruno and Sam on West Wing.  One of my all-time favorite haggles over issues and the law…and loopholes.  – CHS)

[Today's First Monday discussion, in partnership with Alliance For Justice, addresses the recent decision in CA's Supreme Court to allow same sex couples to marry. For more on the 4-3 decision, see this from the ACLU. We welcome Seth Kilbourn, formerly of the HRC, and now with Equality For All, to discuss grassroots work on this issue -- and how everyday citizens can make their voices heard on legal issues important to them. As with all guest chats, stay on topic, be polite, and take any off-topic discussion to the prior thread. Thanks! -- CHS]

”In light of the fundamental nature of the substantive rights embodied in the right to marry — and their central importance to an individual’s opportunity to live a happy, meaningful, and satisfying life as a full member of society — the California Constitution properly must be interpreted to guarantee this basic civil right to all individuals and couples, without regard to their sexual orientation.”

- California Supreme Court Chief Justice Ron George

"As we have said before, any accommodation of the homosexual agenda is a ‘give an inch, take a mile’ proposal and will be used to accomplish their ultimate goal, which is not just same-sex ‘marriage,’ but the destruction of the institution of marriage."

- The Patriot Post

Those two quotes say it all. While we celebrate the landmark decision by the California Supreme Court allowing gay and lesbian couples to marry, those who oppose the Court’s powerful acknowledgment of the dignity of our love and relationships are determined to deny us the fundamental freedom, fairness and equality we have worked so hard to achieve. They have already submitted what appear to be enough signatures to place a constitutional amendment on the November ballot that would recognize only marriages between a man and a woman.

The moment has arrived. The battle is on.

We didn’t arrive at this moment by accident. Legal, political and grassroots organizations along with countless individual community, faith and civic leaders have been working together for years in California. We have educated millions of people all across the state and in the last ten years passed more legislation protecting the lesbian, gay, bisexual and transgender (LGBT) community than any other state in the country.

Because we had such a strong coalition with incredible grassroots strength, we were able to pass bills to allow same-sex couples to marry in not one, but two successive legislative sessions. Because of the “echo chamber” that we’ve created in California on the issue of marriage, a September 2006 poll by the Public Policy Institute of California (PPIC) (PDF) showed that roughly as many Californians support the right to marry for gay and lesbian couples as oppose it. A Field Poll this month shows even more progress (PDF).

But we cannot sit back and assume Californians will vote our way in November. Those who oppose any kind of legal recognition for LGBT people are in apoplexy, determined to deny us the fundamental freedoms that every other American enjoys. They know the significance of California and the impact a loss for them could have across the country.

Just as we have worked together to move forward, so too will we work together to defend what we’ve achieved.

Equality For All is a large and diverse coalition of civil rights, faith, choice, labor and community of color organizations working to defeat this ballot initiative. It is a coalition born from years of working together to achieve common goals. It officially formed as a campaign in 2005 when we thought we’d face a ballot initiative in 2006. Our opponents failed to qualify anything then, in part because Equality For All was clearly organized, raising money and ready for a fight. They weren’t.

But now they are back. ProtectMarriage.com and the National Coalition for Marriage are well funded and well organized. They have vowed to put $10 to $15 million or more into this campaign, and we need to match them at least dollar for dollar if we have any chance of winning. As with so much in politics, the campaign with the most money usually wins. We can’t afford to let that happen—not now, not in California.

And as with any campaign, we will need a grassroots army to make phone calls to voters, walk precincts, have conversations with their friends and families, and get into email debates with people they know who are on the fence. Many of our friends and family don’t know that the freedom to marry we just won is already under threat. Talk with them; tell them why the freedom to marry is important to you. We know that individual conversations about this issue are what change hearts and minds. And please let them know about Equality For All and encourage them to volunteer.

The results of the California campaign will have a dramatic impact on the trajectory towards equal rights for LGBT people not just in California, but across the country. Defeating this constitutional amendment in California will significantly help increase national political and public support for ending the exclusion of same-sex couples from marriage. A loss in California will dramatically slow, if not halt, progress toward full equality for LGBT Americans, and it will give anti-gay activists significant momentum to attack existing victories on domestic partnerships, civil unions, adoption and school safety.

We can win this campaign if we all dig deep and contribute what we can, whether we live in California or not. This has to be a national effort. As we have demonstrated time and time again in California: working together we can ensure fundamental freedom, fairness, and equality for all.

Click here to join Equality For All.  And for more legal facts and information, check out the issues pages at the Alliance For Justice website.

(YouTube — News footage from Sacramento the day of the court decision.)

Photo of the SCOTUS via Drama Queen.

[Please welcome Prof. Peter Edelman of the Georgetown Law Center for today's edition of our First Monday series, in conjunction with Alliance for Justice. As always, please stay on topic and be polite, and take any off-topic discussion to the prior thread. thanks! -- CHS]

This chat was billed by my friends at the Alliance for Justice as an analysis of Justice Scalia’s recent public commentary, along with some comments about the balance of the current Supreme Court. I’m more interested in the latter than I am in talking about Justice Scalia in particular, and I’m especially interested in a conversation about what we can do to avert further deterioration in the direction the Court is taking.

Justice Scalia is a brilliant, somewhat charming, self-styledly prickly, apparently nice-to-his-friends-and-family man. Some people find all of this interesting. It’s not. The main point about Justice Scalia is that he is an almost-down-the-line conservative verging-on-radical judge who is one vote away from being one among five of the most powerful people (as a bloc) in America.

He writes beautifully, tossing off sarcastic and acerbic bon mots that, rather ironically, tend to distract from his mission to rewrite large parts of the Constitution as its meaning has developed over the past 200-plus years. We need to keep our eyes on his mission.

Justice Scalia purports to be on an archeological expedition – perhaps more precisely, he purports to have concluded his dig and to have found out what the framers of the Constitution intended. His “discoveries” divide roughly into two parts – purported knowledge about the original intent behind the parts of the Constitution where there are words that cover such matters as speech and religion, and purported knowledge, again derived from original intent, about matters where the Court has found constitutional protection for rights that are not “enumerated,” as the jargon goes. As things have evolved, most of these so-called unenumerated rights have found a textual home in the word “liberty” in the Fifth and Fourteenth Amendments. Justice Scalia thinks almost all of that is hogwash.

Justice Scalia tells interviewers that because he’s really a sweetie-pie moderate he wouldn’t go back and overrule all of the erroneous decisions that dozens of his misguided forbears put into the United States Reports. Unlike his truly radical brother, Justice Clarence Thomas, he’s only after some of the really bad ones, like Roe v. Wade. And of course he’s not above inventing new rights when it suits him, as he did in Bush v. Gore.

One has to skirt over a lot of messy stuff to be such a stout-hearted originalist. Whose intent, for example? The writers? Do we know what they each had in mind? Justice Scalia has excoriated those who think they can find meaning in statutory words by divining the purposes of those who did the legislating. His view about the Constitution seems at odds with that. How about the voters in each state – the people whose votes ratified the Constitution? Does he know what they had in mind? Apparently, although it may differ from state to state, and is perhaps different from what was on the minds of the drafters.

And even at the time, there were people – Chief Justice John Marshall is the outstanding example – who said this was to be a document for the ages. Never forget that this is a Constitution we are expounding, we were enjoined.

Think about the words “equal protection.” Meant to cover women. Funny how we didn’t discover that was true until the 1960s. Well, he might reply, plain meaning. Okay. How about why “equal protection,” which was meant to protect African-Americans, turns out to ban legally mandated segregation of children in schools, when there was a widespread understanding at the time of the 14th Amendment’s ratification that school segregation was acceptable. What’s the original intent? Specific or general? You’d have to say it was general, in order to conclude that the Court could decide Brown as it did without amending the Constitution. Writing on a different aspect of the 14th Amendment, Justice Scalia has insisted that the level of protection accorded by the constitutional language must be at the “most specific level at which a relevant tradition . . . can be identified.”

Oh well, consistency is for little minds.

One could go on and on. Is Scalia an apostle of judicial restraint? One recalls his concurrence in Webster, an important pre-Casey abortion case, where – even though the case did not need to call Roe itself into question – he called for reaching out to overrule Roe, asking why the Court should “needlessly . . . prolong this Court’s self-awarded sovereignty” in the area of abortion.

So much for Justice Scalia, for the moment anyway.

The real question is the danger we are in as a nation. Whatever some people thought, it is now clear that Chief Justice Roberts and Justice Alito are on the same mission as Justices Scalia and Thomas: to rewrite the Constitution and take it back anywhere from 40 to 70 to 100 to 200-plus years, depending on the Justice and depending on the area of the law.

We are hanging by a thread. It has a name – Justice Kennedy. Justice Kennedy is what remains of the center on the Court. Even with Justice O’Connor there were many troubling 5-4 decisions, especially in the areas of federalism, criminal justice, and corporate power. Justice Kennedy votes with the more liberal members of the Court now and again, and has done so in a few extremely important cases. If Justice Scalia gets one more fully reliable ally, the course of American history will change.

Yet the American people seem unaware of – or not to care about – the danger. Of course – at least from a progressive point of view – the Supreme Court has never been a particularly salient issue, at least not since the 1930s. Conservatives seem more successful in making a politics out of what they call “activist” judges (never mind that it was a conservative Court that overturned a long list of federal statutes in the 1990s). Those who would uphold individual rights and liberties and curb untrammeled Presidential power are on the whole ineffective in stirring public concern.

My questions are why and does anyone have any idea of what to do about it? I’m happy to chat about Justice Scalia and the current Court during today’s session, but what I’m really interested in are your ideas about how to inject the looming dangers to our rights and liberties into the current electoral conversation.

Photo of sun setting on justice via mindgutter.

[Please welcome Erwin Chemerinsky, the Alston & Bird Professor of Law and Political Science, Duke University, to the comments of this First Monday chat, brought to you with the invaluable help of the Alliance for Justice. As with all guest chats, please stay on topic and be polite. Any off-topic discussions should be taken to the prior thread. Thanks! -- CHS]

Why aren’t the presidential candidates speaking out against the egregious abuses of the Bush administration in fighting the war on terrorism? Last week, as a result of a Freedom of Information Act request by the American Civil Liberties Union, the infamous torture memo authored by John Yoo became public. It is an astounding document that asserts that the President has the unilateral authority to ignore statutes and treaties ratified by the United States which prohibit torture. It argues for a narrow definition of torture, which would make acceptable countless practices, such as waterboarding, commonly regarded as torture.

Yet none of the three presidential candidates, Hillary Clinton, John McCain, or Barack Obama discussed this or how the attitude of the Bush administration led to the torture that occurred in Abu Ghraib, in Guantanamo, and at CIA rendition camps. The Bush administration has repeatedly taken the position that the end of fighting terrorism justifies any means and the means became horrific and unconscionable.

Why haven’t the presidential candidates spoken out against the unprecedented claims by the Bush administration of the authority to detain human beings, including American citizens, without providing any semblance of due process? I am still waiting for the first presidential candidate to ask the simple question: How many people is the United States now detaining or has it detained as part of the war on terrorism?

 The government never has disclosed the answer to this question, nor even begun to try. For example, how many individuals are being held at rendition camps across the world that operate immune from public scrutiny and the bounds of the law? We don’t know.

The Bush administration has claimed the authority to indefinitely detain American citizens and resident non-citizens apprehended in the United States for crimes planned in the United States without providing any of the Constitution’s protections. This is no less than a claim of presidential authority to suspend the Fourth, Fifth, and Sixth Amendments.

Why haven’t the presidential candidates spoken out against the government’s action in holding prisoners in Guantanamo Bay, Cuba, in a manner that clearly violates international law? Guantanamo has become a symbol throughout the world of the United States ignoring fundamental principles of human-rights law. The Bush administration has claimed that it can detain individuals it designates as enemy combatants in Guantanamo until the end of the war on terrorism, which the President says will last long beyond our lifetimes.

Why haven’t the presidential candidates spoken out against the Bush administration’s illegal and unconstitutional program of electronic surveillance of American citizens without a warrant? The Fourth Amendment requires a warrant for wiretapping of conversations or interception of electronic communications. A federal statute, the Foreign Intelligence Surveillance Act, is explicit that all electronic surveillance must be pursuant to a warrant under the procedures prescribed in that law or under Title III of the Omnibus Crime Control Act of 1968.

But the Bush administration has claimed that the President has the authority to ignore the Constitution and the federal statute in the name of national security. There is, though, no stopping point to this argument. If the President can authorize warrantless electronic surveillance, why not warrantless searches of people’s homes? In fact, if the President can suspend the Fourth Amendment for the sake of national security, why not the First Amendment or even the Constitution’s requirement for elections?

Few, if any Presidents, in American history have shown such disregard for the Constitution and the rule of law. Yet none of the presidential candidates have made this a campaign issue. Why? The answer is clear: they don’t think it will sell with the voters. They fear that criticizing the abuses of the Bush administration will be taken as being weak in fighting terrorism.

But I believe that the candidates underestimate the American people and the national commitment to the Constitution and the rule of law. It is not about questioning fighting the war on terrorism. But it is about expressing the view that we can do so effectively without giving up our moral and legal commitment to the most basic human rights. I do not believe that I am overestimating the American people in thinking that the vast majority agree that George Bush, Dick Cheney, John Ashcroft, Alberto Gonzales, and Donald Rumsfeld have unnecessarily trampled fundamental constitutional rights.

Unquestionably, they have done so for the noble goal of making the country safer. But the presidential candidates need to remind the voters of the wisdom of the late Justice Louis Brandeis, who observed that the greatest threat to liberty comes from those acting for beneficent purposes. He said that people born to liberty know to resist the tyranny of despots. The insidious threat to freedom comes from well meaning people of zeal with little understanding of what the Constitution is about. Justice Brandeis, of course, never knew Alberto Gonzales or Donald Rumsfeld, but he could not have picked better words if he had.

CHS Note: I’d also encourage everyone to watch the just released short film from Alliance for Justice, One-Sided Debate.