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9/11 and the Law, Five Years Later:
Today marks five years since the 9/11 attacks, and I wanted to offer a few thoughts on the big picture of how 9/11 has shaped the law. This is an enormous topic, and my views on this are pretty tentative, but I'd like to suggest that 9/11 has had a significantly smaller impact on the law than most of us expected five years ago.

  During the week following the September 11 attacks, most major newspapers ran stories on the very plausible prospect that 9/11 could lead to a radical overhaul of civil liberties in the United States. The articles included sober discussions by law professors of whether we would have internment camps for Muslims, citing the camps for Japanese during World War II, or whether there would be a suspension of habeas corpus, citing the precedent of the Civil War. Fortunately for all of us, this didn't happen. While there were some aggressive law enforcement steps taken, particularly with regard to immigration offenses, for the most part the changes in existing statutory and constitutional law have been minor.

  Granted, it took a while for the press to catch up to this reality. For two or three years following 9/11, it was often repeated that the USA Patriot Act had dramatically changed civil liberties laws in the United States. Everyone seemed to think that the Patriot Act had changed everything, with the caveat that no one seemed to know what was actually in the Patriot Act. In time, though, more and more people have begun to realize that the Patriot Act (fortunately) was never anything like the hype. And I think we can all agree on the basic constitutional picture: the constitutional law "on the books" as it relates to civil liberties is pretty much the same today as it was on September 10, 2001.

  The key thing that has changed, it seems to me, is primarily the nature of the claims of executive authority that the Administration has made since 9/11. Some of these claims were made out in the open, such as claims relating to the detention of enemy combatants. Others were made in secret, such as the constitutional and statutory claims justifying the NSA domestic surveillance program. If you're going to assess the impact of 9/11 on the law, it seems to me that one of the big and difficult issues to consider is the future of these arguments. In 10 years, or 20 years, are the strong Article II claims going to be accepted as a basic part of the constitutional separation of powers? Or are they going to be thought of as a relic of particular figures from the Bush Administration?

  We don't yet know the answer to that, of course. If I had to guess, though, I would guess that the latter is probably more likely than the former. I suspect there is only one vote on the current Supreme Court for the strong Article II theory. Further, my sense is that the existing political constituency for a strong view of Article II is a short-term constituency; it presumably ends as soon as a Democrat is elected President. (When Hillary becomes Commander-in-Chief in 2012, will the folks at Powerline Blog zealously defend the Commander-in-Chief power?) Given that, it would not be surprising to me if today's debates over Article II prove somewhat short-lived.

  Where does that leave us? To me it suggests that the impact of 9/11 on the law is still largely an open question, but that as a general matter the impact has been notably less significant than most of us would have predicted on the afternoon of 9/11. Maybe this will change in the future: Senator Specter's NSA bill is still pending, and a few Supreme Court vacancies might alter the picture. But on the five-year anniversary of 9/11, I'm struck more by how little the law has changed than by how much.

  That's my impression, at least. I look forward to your comments.

  UPDATE: I have fiddled with the second paragraph to make it more accurate. Thanks to Craig Oren for flagging the issue in the comment thread.
Medis:
OK, but suppose President Clinton also enjoys a Congress which her party controls in both Houses? Or what about the next time the GOP controls the entire government?

In general, I think the basic problem is that if there are in fact no legal consequences to this President's assertions of exclusive executive power, then these precedents will at least lay dormant, to be reawakened the next time a President has this sort of compliant political environment.

Fortunately, the Supreme Court has established some useful principles in cases like Hamdi and Hamdan, but we are still waiting for the case in which the President's Article II theories get a final and definitive smackdown. And until we do, I think the risk of all this repeating under a new Administration will continue.
9.11.2006 4:44pm
steve k:
While there have been wide claims made about Article II powers, I think you're overestimating how novel this is. The previous administration regularly took a broad view of its powers, for example. It fought more than once in the courts to defend its ability to secretly keep track of citizens, for example.

Also, during the Reagan and first Bush administration, there were large arguments about how far may the President go--specifically against the Congress (the present Bush probably is doing what they'd allow him to do if asked)--in waging an undeclared war.

Then, of course, we have actual war presidents, like Lincoln and FDR, who went much further in taking powers for themselves than anyone is contemplating today.
9.11.2006 4:48pm
Cold Warrior:
Thank you, Prof. Kerr, for your thoughtful analysis.

I was an early defender of both the Bush Administration's post-9/11 efforts and the Patriot Act. And I still believe the steps the Administration (and Congress) took were necessary, prudent, and measured in light of the threat that 9/11 brought to our attention.

Even when the Administration was criticized, in retrospect the criticisms appear misguided. Yes, there was a major sweep of foreign nationals accused of immigration and/or criminal offenses. Yes, the Government withheld names of some civil immigration detainees from the public. But it is clear today that these detainees were not held "incommunicado" in immigration jails. Their status as detainees was not publicized, but (with a few rare and short-lived exceptions) they were able to communicate with family, obtain legal counsel, and otherwise defend against the Government's charges. The Government's actions were not perfect in a time of emergency, but they were generally honorable and transparent. We should be proud of the efforts of our leadership and the thousands of hardworking Government agents and officers who performed admirably during this time.

And that is why I am so disappointed that the Administration engaged in a separate, sub rosa antiterrorism agenda. Even the Administration's defenders must admit that many of these actions push hard against the boundaries of the law, be it the Constitution, treaty obligations, or Congressional authorization. Of course, what makes it worse is that there was no public debate about these measures. The Patriot Act may be ridiculed as "the Act the Congress never read," but the language of the statute was available to all, and thus the opportunity for a full and fair debate. The sub rosa war on terrorism was and is a different animal, and sadly I do not have the same admiration and sense of honor with respect to how my Government has fought it.
9.11.2006 4:49pm
Tom Holsinger (mail):
Professor Kerr,

You assume the war is over and that we won't be attacked at home again, i.e., that we are the only actors. This is narcisstic.

The enemy has a vote.

[OK Comments: Tom, I don't think I understand. I would assume we will be attacked again; that seems inevitable to me. Can you explain what leads you to announce that I make the contrary assumption? I don't understand.]
9.11.2006 5:18pm
John (mail):
"The key thing that has changed, it seems to me, is primarily the nature of the claims of executive authority that the Administration has made since 9/11."



Oh? You think Lincoln wouldn't have claimed the same, or greater powers? One thing about the "doing it in secret" stuff you talk about is that past Presidents who might have "done it in secret" haven't had their secret stuff exposed. That's why we call it secret.



C'mon, Orin. What's changed is the PUBLICITY given to formerly secret things that our government does to protect us. That's surely new.



[OK Comments: John, when I say something has changed, I am referring to pre-9/11 vs. post 9/11, not comparing 1862 to the present. Can you give some examples of what you have in mind?]
9.11.2006 5:21pm
Le Messurier (mail):
Orin Kerr

(When Hillary becomes Commander-in-Chief in 2012, will the folks at Powerline Blog zealously defend the Commander-in-Chief power?)

This is gratuitous and childish sniping. Coupled with the other "flip and simplistic" comment you made in this post I think that I would not like you very much were we to meet. A little too impressed with yourself I'd say.
9.11.2006 5:26pm
ThomasL (mail):
For as long as we have an executive branch, we will have proponents of a strong view of executive power. Some will be principled and some will be partisan, but it is safe to assume they'll be around.

I think it's also safe to say what the Supreme Court has to say about separation of powers isn't necessarily definitive in the eyes of the proponents of executive power. They are no less an interested party than the executive, after all.
9.11.2006 5:30pm
Craig Oren (mail):
could you briefly cite us to immediate post 9-11 predictions of internment camps or suspensions of habeas corpus? I'm probably wrong, but I don't think those were predictions from anything like the mainstream.
9.11.2006 5:32pm
OrinKerr:
Le Messurier,

Satire, I assume? If so, well done.
9.11.2006 5:32pm
Houston Lawyer:
I would hope that with a new president we would have the luxury of arguing over whether a felony constitutes "high crimes and misdemeanors" and the extent of executive privilege in covering up such crimes. However, the last time we went that way, our enemies were watching and making their plans against us.

I hope our next president is at least as determined to take on our enemies as our current president and has all the power our current president claims to have.
9.11.2006 5:36pm
OrinKerr:
Craig,

A westlaw search in allfeds for [da(2001) &japanese &"habeas corpus"] returned 49 hits. Here is a fairly representative story.


************************

South Florida Sun-Sentinel
September 16, 2001


CRISIS THREATENS LIBERTIES
Terri Somers Staff Writer

The United States' record on civil liberties in times of crisis portends a blow to Americans' civil liberties in the wake of last week's terrorist attacks, civil libertarians and other legal experts say.

They point to President Abraham Lincoln's suspension of habeas corpus during the Civil War, the World War II internment of Japanese-Americans and McCarthyism during the Cold War. All were at first supported by the U.S. Supreme Court, though when each crisis subsided, the court changed its mind in response to public outcry.

With every national security crisis, the nation rushes to react with measures that infringe on individual freedom, said Gary Gershman, a constitutional law expert at Nova Southeastern University.

President Bush on Saturday prepared to sign a law, approved overwhelmingly by Congress, giving him new authority to conduct a broad international campaign against terrorism.

An existing anti-terrorism law, passed in the wake of the Oklahoma City bombing, has been criticized by lawyers who say it infringes on constitutional rights yet provides little real protection against terrorism. There has been a push to repeal some of its tougher elements.

Now politicians and policy-makers are considering legislation that would extend the powers of the CIA and expand the use of wiretaps. They have resurrected a proposal to toughen penalties for leaking government intelligence.

Those measures would require new legislation, and while they might be placed on a fast track, the process still takes time and requires debate. But the changes felt most immediately by Americans will not necessarily require new laws, experts said.

"We'll use our same standards, use the same words, but the flexibility will lie in the execution," said Mary Cheh, a constitutional law expert at George Washington University in Washington, D.C.

For instance, the Fourth Amendment promises Americans protection against unreasonable search and seizure. But in the wake of terrorist attacks on the World Trade Center and the Pentagon, the definition of "unreasonable" changes.

"To put it in stark terms, did racial profiling become appropriate at 8:45 a.m. Tuesday?" asked Steve Wermiel, a constitutional law expert at American University's law school. "Is it now OK for law enforcement to stop someone because they look Arab or Muslim?"

That would be punishing those who fit a profile but aren't guilty of any crime, according to Wermiel. "I think this is a major concern, and I don't hear our national leaders saying enough about the need to protect against that," he said.

Also, if sky marshals are put on planes, what are the standards they will use to identify suspicious behavior?

"If you ask for a knife to cut your chicken, is that reasonable suspicion for a sky marshal to bring you to the back of the plane for questioning or a search?" Wermiel asked.

Are Americans ready to deal with other possible measures, such as carrying a national identification card? These measures infringe on Americans' cherished right to be left alone, experts said.

"In times of crisis, national security becomes this hammer by which government can beat back terrorist opportunity, and it excuses many actions previously seen as unacceptable," said Charles Zelden, a constitutional historian at NSU's law school.

The problem is inherent in the government's design, he said.

"This nation was formed with two conflicting goals: to provide order, peace, security and stability, while also protecting the liberties for which we fought the revolution," said Zelden. "While they're not completely exclusive, achieving stability often comes at the expense of our freedoms. It's a balancing act."

Like other legal experts, Zelden hopes that in the country's current and understandable mood of hyper-patriotism, there is no rush to relinquish personal freedoms unnecessarily. He recalled President Lincoln's words to the South during his first inaugural address, when the nation was ripping apart at the seams:

"Nothing valuable can be lost by taking time. If there be an object to hurry any of you in hot haste to a step which you would never take deliberately, that object will be frustrated by taking time; but no good object can be frustrated by it."

After taking his time and thinking about what he should do during the Civil War, Lincoln suspended the writ of habeas corpus, allowing jailing without charges. Lincoln, a scholar of the U.S. Constitution, reasoned that it could stretch and spring back again, said Zelden. One right could be violated to protect the greater good.

Leaders who followed him agreed.

During World War I, free speech was infringed when speaking out against the government was outlawed, Gershman of NSU recalled. During World War II, after the attack on Pearl Harbor, the government allowed the internment of Japanese Americans. The Cold War brought McCarthyism, which trampled upon people's freedoms to associate and to hold leftist political beliefs, Gershman said. The Vietnam War tested Americans' rights to assemble and to free speech.

By the time people went to the courts to challenge these laws, the crisis was over. And the courts were more willing to let the pendulum swing back toward greater personal liberty.

Years after the end of World War I, the Supreme Court reworked the standard that limited free speech by saying it must create a "clear and present danger."

During World War II, the U.S. Supreme Court initially supported the internment of Japanese Americans. The justices declined to second-guess the military on issues of national security, Gershman said.

Decades passed before the government tried to make amends. Father Robert Drinan, a constitutional law expert at Georgetown University School of Law, was a member of a presidential committee that in 1991 recommended Congress award reparations to survivors of the internment camps.

"It cost the country $1.3 billion to pay for that mistake," Drinan said.

Wermiel said the internment camps were the result of a panic similar to what followed the attacks last week. "Not a running in the street panic, but at a larger scale, a kind of national consciousness panic fueled by military leaders," he said.

In the past few years the conservative-leaning U.S. Supreme Court has been reconsidering civil liberties issues and tending to give more leeway to the government and police, particularly on search and seizure issues, the experts said.

"I'm afraid we will willingly take steps that individually may seem necessary, but collectively can be troublesome in the long run," Zelden said. "These things tend to build on themselves. And they are hard to take away later.

"If the use of wiretaps is expanded, what is to stop people from misusing that power and listening in on conversations that have nothing to do with terrorism?" Zelden said. He gave the example of the Nixon administration misusing IRS information to punish those on his "enemies list."

Wermiel said there's another civil liberty people need to hold onto -- skepticism of what government tells them.

"It is a time to respect the government, a time to come together and believe in the government," he said. "But it doesn't mean we have to give up the nation."
*****************************
9.11.2006 5:42pm
Just an Observer:
It strikes me as a bit too early to make generalizations about this phase of history.

As far as jurisprudence goes, because this administration's strategy in recent years has focused on avoiding judicial review, we still do not have a straighforward resolution of the "Article II theory" propounded out of court. When facets of this theory have been encountered in the Supreme Court, in Hamdi and Hamdan, it has lost. But the core theory hides from the courts. Perhaps some version of the NSA cases eventually will present the theory for adjudication, but that remains iffy.

Within the executive branch, DOJ and DOD especially, the legacy already is clear: The traditions of good-faith government lawyering have been sullied badly as this President has gamed the legal system with the willing connivance of senior legal officials. If anything, this era has proved so far what such lawyers can get away with.

As far as the legislative framework goes, we may yet end up with some sweeping changes before the 109th Congress adjourns. Specter's bill as it stands now would be a huge rollback of FISA, almost as significant as the 1978 passage of the original act. Short of that, there still may be changes to FISA fundamentally or marginally enabling warrantless surveillance. And Congress might yet buy into the administration's attempt to amend the provisions of the War Crimes Act committing the nation to enforce Common Article 3 of the Geneva Convention. On the more narrow question of military tribunals, we may actually see Congress step up and legislate something on its own.
9.11.2006 5:45pm
OrinKerr:
Craig,

Actually, I'll amend the post a bit: I think it's more accurate to say that camps and the suspension of habeas corpus were discussed as real possibilities, not that they they were "predicted."
9.11.2006 5:45pm
Le Messurier (mail):
OrinKerr

...the other "flip and simplistic" comment you made in this post...

What flip and simplistic comment? You made the characterisation, not me. Then you deleted it and changed (I believe) the post itself. It's customary among good blogs to leave in errors and omissions, once posted, in their original form and to note (as you had) changes and corrections. Why delete it?

Though I'm rather accomplished at satirization I wasn't.

[OK Comments: Huh?? I don't recall deleting anything, or calling anything "flip and simplistic." I altered a paragraph as explained in both the update and the comment above, but I have no idea what you have in mind. Perhaps you are confusing me with someone else?]
9.11.2006 6:11pm
josh:
I'd like to say how much I appreciate Prof Kerr's commentary on this blog. To be honest, I don't think my political views regularly square with his, but I nevertheless always find his analysis thoughtful and, more importantly, intellectually honest, which is a characteristic I don't find often enough in the blogosphere. His Powerline comment, for example, is appropo. I don't think anyone (including Le Messurier) could argue that if the name "Bush" were ever replaced with "Clinton" in any current debate, the legal analysis on that blog would always be entirely different.

As to this post, Prof Kerr, I do wonder whether your comments in paragraph 3 necessary turn on your thoughts in the rest of the post. Specifically, I've always found the debate over the Patriot Act rather irrelevant based on the administration's claims about Art II. Who cares whether the law allows an expansion of investigative powers into, say, one's library-book history when faced with claims of inherent authority to data mine Americans' telecommunications without a warrant in the face of Congressional prohibitions to the contrary?

Prof Kerr, I would appreciate hearing your thoughts on how the Patriot Act matters in the slightest considering the administration's view of its authority and the separation of powers.
9.11.2006 6:20pm
Cernig (mail) (www):
Good post, Prof. Kerr.

It's interesting that very few Democrats have been as vocal about saying they won't take Bush's Article II assumptions as a useful precedent (when they eventually come to White House power) as have been prepared to speak out saying Bush is grabbing then misusing power.

We can assume that Dems like Clinton wouldn't use that precedent but that's a big assumption. I'd feel happier if they would just tell us so we didn't have to guess.

Unfortunately, most of the left are busily playing ostrich on the issue.

Regards, Cernig @ Newshog
9.11.2006 6:32pm
Zed (mail) (www):
Between Jose Padilla, Mike Maginnis, Bev Harris, Chuck Clark, and other U.S. citizens that have been detained or had property seized without any evidence of a crime ever being presented, or any penalty being applied to the authorities involved, I'd say that the legal landscape after 9/11 has, indeed, been dramatically changed, particularly with respect to a massive chilling effect on free speech and public investigation. And this doesn't even touch upon the issue of immigrants, some of whom (including children) have basically been imprisoned indefinitely without any evidence being presented, and no presumption of innocence being afforded them.

And given that in both the cases of Padilla and Hamdi the government was doing its very best to get the exact functional equivalent of a suspension of habeas corpus, stopped only at the very end by the Supreme Court, I'd say that the concern was a rather valid one. Thankfully, we seem to have dodged a bullet.

But when you can be detained or have your privacy invaded or property seized for taking pictures of public places, voicing political dissent, investigating governmental wrongdoing, or simply giving the wrong person a Muslim greeting, the idea that "little has changed" seems a bit strange. A great amount of damage has been done to civil liberties, and it will probably take a long time to fix.
9.11.2006 6:34pm
Steve:
Prof. Kerr, who is a very smart guy, always has a little bit of an elitist air when he pokes fun at critics of the Patriot Act critics for acting like the law represented some kind of major overhaul of our established legal order, when in fact it was mostly unremarkable stuff. And he does have a point in that people on both sides can get rather overwrought for no real reason.

But I'd just point out that for many opponents of the Patriot Act, it wasn't so much that they knew about and were offended by a specific statutory subsection, as it was a gut feeling that this bill was the product of a rather hostile attitude towards civil liberties. Without resorting to "Bush is shredding the Constitution" rhetoric, it does seem to me that as we've learned more about this administration's secret activities, it becomes more and more apparent that the Patriot Act opponents had a point, at least in regards to the big picture.
9.11.2006 6:35pm
A.S.:
I don't think anyone (including Le Messurier) could argue that if the name "Bush" were ever replaced with "Clinton" in any current debate, the legal analysis on that blog would always be entirely different.

And this blog. And Orinkerr.com. And Balkinization. And Glenn Greenwald's blog. And so on.
9.11.2006 7:53pm
josh:
Again, anyone want to address the point that the Patriot Act is superfluous if a President can do anything he wants under his alleged Art II authority under the guise of national security?
9.11.2006 7:54pm
OrinKerr:
Josh,

Unfortunately I wrote a long respose and it was eaten when the site was down about an hour ago. The much shorter version: Most of the Patriot Act dealt with issues far from Article II.

A.S.,

The trick is that I try to alternate between being a conservative hack and a liberal hack; it makes things much more exciting that way.
9.11.2006 8:13pm
PersonFromPorlock:
The only way to square Congress's power to regulate the military with the President's standing as Commander-in-Chief is to assume that President and CinC are two different jobs held by one man, with the former job being co-equal with Congress and the latter subordinate to it.

All of President Bush's claims about enhanced Article II powers founder on the fact that in his role as CinC he is more, not less, subject to Congressional supervision.
9.11.2006 8:15pm
Medis:
josh,

Obviously it is a very important point. Indeed, FISA was amended in the USA-PATRIOT Act, a fact frequently overlooked by those who like to portrary FISA as a purely pre-9/11 law. In that sense, it would seem quite remarkable that the President sought to amend a law at the very same time that he was secretly ordering that the law would be bypassed.

But then again, that is a common practice judging from his signing statements. And perhaps that should be on the list of things to worry about going forward: how the President has increasingly created two sets of laws, the public laws as they are written, and the secret laws the President has put in their place. And as a matter of fact, this practice hasn't been limited to national security matters under this President.
9.11.2006 8:17pm
Steve:
And this blog. And Orinkerr.com. And Balkinization. And Glenn Greenwald's blog. And so on.

I realize it's an article of faith that everyone who complains about Bush would be perfectly a-ok if it were Clinton doing the very same things, and thus I won't attempt to argue with it.
9.11.2006 8:19pm
Tom Holsinger (mail):
Just An Observer is entirely correct:
It strikes me as a bit too early to make generalizations about this phase of history.

War is a process, not an event.
9.11.2006 8:32pm
A.S.:
I realize it's an article of faith that everyone who complains about Bush would be perfectly a-ok if it were Clinton doing the very same things, and thus I won't attempt to argue with it.

Just as I realize it's an article of faith among those on your side that everyone who agrees with Bush would completely disagree if it were Clinton doing the very same things, and thus I didn't attempt to argue with it.
9.11.2006 8:34pm
A.S.:
More substantively, I think that the "strong Article II" claim is mostly a mirage, out there to draw attention from lawprofs like Orin and Marty and such (and me). I mean, when has the Administration actually relied on such a claim, in court? Ever?

They throw it out there - a bit in the NSA White Paper, a bit in a signing statement - as a red herring. It draws fire away from the rest of their arguments, because it is a tantalizing target. But what is the effect of these "stong Article II" claims so far? Not much.

So I think that in 20 years, Presidents will still be making strong Article II claims. And relying on other, less far reaching legal justifications for their actions, or just acting in compliance with the laws they claims they can ignore if they want to. Just like Presidents have been doing for the last 20 years (at least) (Anyone recall the ivory tower debate over whether the War Powers Act requires the President to stop military action in 60 days if not approved by Congress?)

And the ivory tower will still be pondering and debating the issue.
9.11.2006 8:53pm
OrinKerr:
A.S.,

I'm curious: Do you really think that I would have a more favorable view of the strong Article II argument if Clinton were President? Why would that be?
9.11.2006 8:53pm
Just an Observer:
A.S. :More substantively, I think that the "strong Article II" claim is mostly a mirage, out there to draw attention from lawprofs like Orin and Marty and such (and me). I mean, when has the Administration actually relied on such a claim, in court? Ever?

The administration did rely on a facet of that separation-of-powers theory in Hamdi v Rumsfeld, and lost that question 8-1.

I do agree that Bush's lawyer's do not assert that theory forthrightly in court in the NSA case. They can count to nine, and know they would lose if the issue were framed for SCOTUS review. I have made that point here repeatedly.

But DOJ, and its surrogates -- ranging from anonymous blog commenters up to the Vice President -- have advanced the theory, at least as a PR ploy. I think some of them believe it. I don't know about you.

I do find it interesting that after spending much energy selling the theories of the "white paper" in comments here months ago, you now distance yourself from the "strong Article II theory." New tactical talking points dictate that change, I suppose, now that the endgame objective is to get legislation from Congress.
9.11.2006 9:12pm
Archon (mail):
It is worth noting that the Courts didn't back Lincoln when he suspended the writ of habeus corpus. See Ex Parte Merryman, 17 F. Cas. 144. Lincoln simply ignored Taney's repeated court orders and went on fighting the war. Mych like Bush should have done when the Supreme Court announced assinine opinions such as Rasul and Hamdan.

You can't expect to win a war if you go into battle with both hands tied behind your back.
9.11.2006 9:22pm
The Original TS (mail):
Orin,

Off topic, perhaps, but congratulations are in order. I see that Kurtz cited you in Media Notes.

WaPo Media Notes>
9.11.2006 9:32pm
JohnAnnArbor:

But when you can be detained or have your privacy invaded or property seized for taking pictures of public places, voicing political dissent, investigating governmental wrongdoing, or simply giving the wrong person a Muslim greeting,

Complete and utter garbage.
9.11.2006 11:13pm
A.S.:
I'm curious: Do you really think that I would have a more favorable view of the strong Article II argument if Clinton were President? Why would that be?

Are you asking whether I think you're a hack? The answer, based on the evidence available to me - solely your blogging, is probably not. But if you can dish it out ("When Hillary becomes Commander-in-Chief in 2012, will the folks at Powerline Blog zealously defend the Commander-in-Chief power?"), I would hope that you would also be willing to take it. I mean, as to your insinuation that Powerline would be less willing to support strong Article II powers with President Hillary... why would you think that?
9.11.2006 11:37pm
OrinKerr:
A.S.,

I'm not sure if you've noticed, but Powerline always follows the party line, if there is a clear party line. And if Hillary is ever elected, the party line will shift. This is what usually happens, in my experience: whenever the political implications of a particular legal theory changes, the most partisan proponents on both sides switch their positions on a dime. Recent (but not too-recent) examples on the right include conservative support for Bush v. Gore and conservative criticism of the courts in the Schiavo case. And there are lots of exampes on the left, of course, among them liberal insistence on sticking with precedent and original intent in the Article II debates.

In any event, I am happy to "take it," but I guess I'm not clear on what I was supposed to be taking. Oh well.
9.11.2006 11:56pm
A.S.:
JaO:

Depends on what is meant by the "strong Article II" claim, I guess. I usually think of it as being a case in which the the executive's Article II authority empowers him to disregard a contrary act of Congress. That is, a claim that the executive would win even where we are in Youngstown category 3. And that was not the case in Hamdi. In Hamdi, rather, the court found (by 8-1) that the executive could not disregard the courts (not a contrary act of Congress). So, if by "strong Article II" claim you mean that the executive could disregard both a contrary act of Congress AND the courts, then, yeah, it appears that that would only have one vote. But I don't think there's anything in Hamdi that would lead one to believe (as Orin and Marty seem to, for example) that the Youngstown Category 3 cases in which the Executive wins consists of... the null set.

You also write: But DOJ, and its surrogates -- ranging from anonymous blog commenters up to the Vice President -- have advanced the theory, at least as a PR ploy. I think some of them believe it. I don't know about you.

No, that's really my belief. My point is just that it seems doubtful that it will be sent to the Supreme Court. It's fun to argue about, but not really relevant in any real court cases. Which is, I think, a good thing. I'd rather the legislative and executive branches work out their differences rather than bring such a clash to the Court; hard cases make bad law.
9.12.2006 12:25am
A.S.:
I'm not sure if you've noticed, but Powerline always follows the party line, if there is a clear party line.

Correlation =/ causation.
9.12.2006 12:26am
mistermark:
Now you've done it. John Hinderaker is so going to come after you now.

Nice work, Orin. Balanced and well thought out, as usual.
9.12.2006 12:27am
Fub:
JohnAnnArbor wrote:
[quoting Zed:]
But when you can be detained or have your privacy invaded or property seized for taking pictures of public places, voicing political dissent, investigating governmental wrongdoing, or simply giving the wrong person a Muslim greeting,
Complete and utter garbage.
Bruce Schneier has some items about photographers detained when engaged in perfectly lawful acts. WAPO has an article on a public photography ban enacted by local authorities. Another incident, apparently a baseless criminal charge, but with a somewhat happier ending, is here.

Google will turn up far more than these.

Granted that none of these incidents appear to be legally related to the PATRIOT Act. Some do, however, appear to arise from the foolish actions of authorities who appear to believe they are acting either to enforce the act, or otherwise supporting it.

Although such detentions are not mandated by the PATRIOT Act, it is undeniably true that they have happened, and more frequently after 9/11/01 and the subsequent passage of the act.
9.12.2006 12:35am
Medis:
Of course, the Administration knows as well as anyone that if the Supreme Court didn't buy their argument that the courts should stay out of these matters, then the Court almost certainly isn't going to buy their argument that Congress should stay out of these matters (and even Thomas in Hamdi suggested his dissent rested on this distinction). And although the issue was not squarely addressed in Hamdan, the Court's holding that the military commissions were illegal as conducted because they violated Article 36 of the UCMJ is a nasty precedent for the President's Article II arguments.

So, to quote Bob Dylan, you don't need a weatherman to know which way the winds blows.
9.12.2006 12:48am
josh:
AS can believe what he likes, but if Clinton were doing what Bush is doing, I (proud of the L word) would simply be against it. That was the point of my original post. While Prof Kerr may make light of himself as a sometimes liberal, sometimes conservative hack, he actually exhibits what I appreciate most, which is intellectual honesty.

Are there those on the left who are not intellectually honest? Of course. And unlike the POwerlines and Instapundits of the world, I try to take them on when I see them, even when we agree on most other issues.

To doubt that Powerline would take a different view of the law were Hillary president simply demonstrates either (1) a failure to regularly read the blog (I do), or (2) a willingness to avoid fact.

Prof Kerr, as to your mysteriously deleted post (you hack), I wonder how most of the Patriot Act "dealt with issues far from Article II." The complaints I recall of the law focused on such provisions as that allowing more intrusion into such things as what books one checks out at the library. Again, I don't see how a president that feels he has inherent authority to surveil in times of war needs a law allowing him to do so.

Finally, Medis, I agree with your point that "it would seem quite remarkable that the President sought to amend a law at the very same time that he was secretly ordering that the law would be bypassed." That's why I posted originally.
9.12.2006 1:03am
OrinKerr:
A.S. writes:

Correlation =/ causation.

A.S., you crack me up. LOL. Seriously, you need your own blog.

Josh, to be clear, there are indeed parts of the Patriot Act that implicate Article II issues. But note that Section 215 has barely been used, and I don't think it was used at all in any library. The provision was controversial mostly because the American Library Association led a very effective lobbying campaign raising concerns that it might be so used: the Bush Administration defended the provision somewhat half-heartedly, but it was never considered an important stick in the bundle of authorities.

In that sense, I suspect that the opposition by civil liberties groups and the outcry over the Patriot Act actually helped the Bush Administration. The media spotlight had to go somewhere, and the attention put the media spotlight on sections that weren't particularly important, and kept the spotlight away from issues that were much more important. It's one of the reasons why I get so worked up about press miscoverage of these issues: press miscoverage warps the democratic process by focusing attention on fake issues rather than real ones.
9.12.2006 1:15am
josh:
PS

I wonder if Prof Kerr's reference to Powerline was intentional in light of Prof. Volokh's experience with John Hinderaker at the recent 10th Circuit conference. See http://www.dailykos.com/story/2006/9/7/202217/4439. Of course, Hinderaker did not mention this mack down in his version of the conference. See http://powerlineblog.com/archives/015242.php
9.12.2006 1:15am
OrinKerr:
Nope Josh, I hadn't seen that.
9.12.2006 1:24am
Medis:
By the way, there was an interesting article in last Sunday's San Francisco Chronicle rounding up some commentary on legal developments since 9/11. It included this little gem from John Yoo:

"We are used to a peacetime system in which Congress enacts the laws, the president enforces them, and the courts interpret them. In wartime, the gravity shifts to the executive branch."

I agree this is still an outlier view, but the fact that Yoo can still float it despite Hamdi and Hamdan is a bit disturbing.
9.12.2006 6:13am
Just an Observer:
A.S.,

However one analyzes a case that is in Youngstown's Category 3, Justice Jackson said this: "Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject." In other words, the courts would have to find FISA unconstitutional, at least as applied.

So I am still confused about your position and that of the Bush adminstration today:

1) Is FISA unconstitutional?

2) Does the President believe that?

The only thing I am sure of with respect to Bush is that his lawyers shrink from making that argument explicitly in court. As Judge Taylor observed, they have merely "suggested" it. They did say in the 42-page press release called a "white paper" that FISA may be unconstitutional as applied.

It now seems that you are disavowing that "argument" altogether.

Once again, I have always found your comments here to be a reliable indicator of White House talking points, and I find it interesting that surrogates such as you now downplay the Article II theory. I think it is because Bush is now desperate to get authorization from Congress for a program that a federal judge has held to be illegal.
9.12.2006 8:47am
Medis:
JaO,

There is an argument that I think was hinted at in the government's briefs in New York and Detroit, and which has been more or less explicitly made by Bryan Cunningham and others. It basically goes like this:

1) The rule in Youngstown for Category 3 cases only applies to issues well within Congress's control over domestic affairs (e.g., steel plants, being part of domestic commerce), and doesn't apply when it is more of a foreign/core-military affairs case (the TSP is presumed to be in this category).

2) In a foreign/core-military affairs case, the rule in Category 3 would be more of a totality-of-the-circumstances/balancing test, in that if the President reasonably determines that given the circumstances, his constitutional duty to protect the United States from foreign threats requires him to bypass a law passed by Congress, he is constitutionally authorized to do so.

Or something like that (I've tried to state it fairly, but actual proponents of this view can chime in). In any event, the idea is that in some contexts, and some circumstances, even if Congress was acting pursuant to its enumerated powers, the President still might not lose in a Category 3 case.

As I have suggested before, to get this reading, proponents seemingly have had to rely heavily on Curtiss-Wright and the dicta in In re Sealed Case, and pretty much have had to entirely ignore Dames &Moore, Hamdi, and Hamdan.
9.12.2006 2:15pm
Just an Observer:
Medis,

I have seen the version of the theory that Youngstown simply doesn't apply because it is "domestic" articulated by some unofficial players, notably John Yoo. And I agree that it has little chance of acceptance by the courts for the reasons you mention.

In my view, the rest of the theory you describe, based on dicta from Curtiss-Write, etc., is still a Youngstown Category 3 case. I don't believe Jackson said that Congress must win every such case; he merely described the framework. But within that framework, for the courts to uphold the President's exclusive power, they would have to find that Congress had acted unconstitutionally.

Such an unconstitutional act could take one of two forms, as I see it:

1) Congress could lack the authority to pass a given law, regardless of Article II. I have even seen comments here claiming that the Commerce Clause and the Necessary and Proper Clause do not permit Congress to regulate wiretapping at all. That presumably would invalidate the Communications Act and the Wiretap Act, as well as FISA. Those comments seem frivolous in the extreme, because they assume the Supreme Court would overturn precedents established for decades or even centuries.

2) Congress could pass a law that actually impinges on a legitimate authority of the President that really is plenary, exclusive and indefeasible. For example, I don't think Congress properly can pass a law forbidding the President to pardon spies or deserters. I think the species of argument advanced out of court about FISA today -- what we are calling the "strong Article II claim" -- is that foreign-intelligence surveillance is such a situation. I do think such an argument theoretically can be made within the Youngstown framework. I also think it would fail. And I think DOJ lawyers do, too.

But in any case, as you know, I object to granting serious intellectual status to a constitutional "argument" that the administration is afraid even to make in court. The comments A.S. makes in this thread are an example of the continued shell game being played.

Since the real venue is political, and there is no requirement that members of Congress or voters act rationally, the adminstration may achieve its aim of getting Congress to capitulate.
9.12.2006 3:25pm
Steve:
Medis,

That's an interesting argument, but I think it's pretty clear why Truman wanted to nationalize the steel mills, so I don't see that distinction carrying the day.

A court would have to accept both that Truman's action was primarily a domestic matter, and that wiretapping U.S. persons is tantamount to "signals intelligence," to conclude that the latter but not the former is a fundamental incident of war. It strikes me as a long shot.
9.12.2006 5:44pm
Medis:
Steve,

To be clear, I'm not endorsing that argument at all, and I agree it doesn't make much sense even on the basis of Youngstown itself (after all, logistics is no less important to war than intelligence). But even insofar as it was a colorable argument, it cannot be sustained in light of subsequent cases in which the Supreme Court specifically applied Youngstown to foreign/core-military affairs.
9.12.2006 5:57pm