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Terrorism Policy and Predictions of How the Supreme Court May Rule:
Paul Mirengoff makes an interesting point in response to the Post's story yesterday about internal Bush Administration debates on what legal policies to adopt relating to terrorism:
In a few cases, the result was positions that strike me as indefensible, such as the decision to detain Hamdi (an American) for more than two years without a hearing or a lawyer. In other cases, though, "pushing the envelope" consisted of refusing to change a policy based on well-founded predictions that Justice Kennedy, the Court's swing vote, would reject the administration's position. This seems justifiable. The system may be set up to confer Kennedy with ultimate decision-making power on terrorism-related legal issues. But until Kennedy actually speaks, it's appropriate for the administration to take whatever reasonable positions it thinks will best protect the country. A position is not unreasonable merely because Justice Kennedy might well disagree with it.
  I agree with Paul that if an Administration thinks that it needs to take a step to protect the country, and that step appears legal based on existing precedents, it should not rule out the measure because it thinks a future Supreme Court might change the law and take a different course.

  At the same time, the passage in the Post story doesn't suggest to me that the issue in the debates over terrorism was really about national security in the short-term sense. Instead, as occasional co-blogger Stuart Benjamin noted here a long time ago, the debates were mostly about national security in the long-term sense. That is, those wanting to take the strong Executive positions did so to help future Executives to deal with future threats over the next few decades.

  If that's right, then the way the Supreme Court might vote in the short term really does become an important question. Go too far and you trigger a backlash. Lose the court's trust and you're in much worse shape that you would have been with a more moderate position. I gather that's why the lawyers with a deep knowledge of the Supreme Court (Ted Olson, Brad Berenson, Brett Kavanaugh, etc.) were counseling caution. Presumably they figured that the likely choice was between precedents giving a thumbs up to moderate steps and precedents slapping down broader ones.
Anderson (mail) (www):
Mirengoff assumes that the sources were Cheney's enemies, but the authors have stated that some sources were sympathetic to Cheney &trying to make a case for him.

Agree w/ Prof. Kerr's post; one might also note that unfavorable precedents in the short term would tend to prevent favorable decisions in the future, if anyone believed in stare decisis any more.
6.26.2007 6:56pm
Just an Observer:
Predicting some of the "war on terror" cases might have been close (Much of Hamdan, I think, was such a case.) But reading the votes in other cases was a no-brainer. After Hamdi, it was always obvious that the government would lose Padilla. Yet the administration played that in bad faith right up to the wire.

The handwriting has been on the wall for a long time against the general Cheney/Addington/Yoo theory of constitutional supremacy for Article II. A subset of that theory lost 8-1 in 2004. Yet according to the Post story, Cheney and his lawyer continue to advance such unsupportable positions internally. Obviously, the lawyers who actually would have to make these arguments in court are reluctant to do so.

But the resulting strategy of avoiding judicial review of such issues is inherently dishonest. If the administration would stand up in court and make the constitutional arguments that Bush-Cheney &Co. claim to believe in, I would retain some respect for them. But they do not.
6.26.2007 8:12pm
wm13:
Those Administration members who advocated a hard line probably didn't expect that there would be no further terrorist attacks. If there had been several thousand more civilian deaths between 9/11 and the day the Court heard Hamdi, the outcome would surely have been very different. Had the Japanese been repulsed from Wake and the Phillipines, surrendered in large numbers in China, and been making peace overtures by late 1942, I'll bet Korematsu would have come out differently.
6.26.2007 8:48pm
Henri LeCompte (mail):
Orin:
You write:

...the debates were mostly about national security in the long-term sense. That is, those wanting to take the strong Executive positions did so to help future Executives to deal with future threats over the next few decades.

I could have sworn that the consensus (from Paul Newman, et. al.) was that Bush was hell bent on destroying our civil rights, our national spirit, and democracy itself with this "strong Executive" stuff. I mean, isn't that the plan that I've heard about over and over for the past six years?

I find your benign speculations to be very alarming and vertigo inducing.
6.26.2007 9:01pm
Mark Field (mail):
Stuart Benjamin's argument reminds me of Nixon's position:
"That is why I shall continue to oppose efforts which would set a precedent that would cripple all future Presidents by inhibiting conversations between them and those they look to for advice." Link.
6.26.2007 9:02pm
Anonymous Liberal (mail) (www):
I agree with JaO, it's been obvious for a long time that the "Article II trumps everything" argument has no support at all among the current members of the Court (or in any case law or in the Constitution, for that matter).

I'd go as far as saying that this argument was never really intented to withstand judicial scrutiny. What they wanted was an argument that could be put in a memo that gave what they were doing the veneer of legality. The plan was to avoid judicial scrutiny by 1) being very secretive, 2) relying on judicial deference, and 3) relying on threshold issues (standing, state secrets, jurisdictional arguments) to avoid litigating the core executive power claim. They probably figured that if they exercised a claimed power for long enough, the practice itself would create a precedent, and the courts would be wary of rocking the boat. It's like squatters' rights. You live somewhere long enough without being kicked out, and you can claim it as your own.
6.26.2007 9:27pm
Steve:
What they wanted was an argument that could be put in a memo that gave what they were doing the veneer of legality.

You see this behavior in the corporate world all the time. The executives want to get away with every aggressive practice they can imagine; they just want the lawyers or accountants or whoever to sign off on it so that they can claim later they were relying on expert advice.
6.26.2007 9:36pm
William Eric Wolff (mail):
I don't see the current Administration being concerned about future Administrations. So, I don't see the impact of any Court decision on future Administrations as relevant here.

I think they may be more concerned with two more important issues. First, could a Court decision domino through other Administration actions. Second, could the political fallout undermine the Administration's effectiveness.

Congress, perhaps, but not necessarily, because both houses were controlled by Republicans, has been willing to go along with the current Administration to a greater extent than has the Court. It is, of course, more difficult to get 2/3 of the Congress to force the President to do something (or to stop the President from doing something) than it is to get 5/9 of the Court to do so. More importantly, the Court's ability to say what is and/or isn't Constitutional is a more powerful tool than what the Congress has.
6.26.2007 9:36pm
PersonFromPorlock:

...it's been obvious for a long time that the "Article II trumps everything" argument has no support at all among the current members of the Court (or in any case law or in the Constitution, for that matter).

It's been my argument all along that Congress's plenary power to regulate the armed forces necessarily makes the CinC its subordinate. Since that conflicts with the separation of powers vis-a-vis the Presidency, it must be that CinC is an entirely separate office from the Presidency, but one which only the person who is the serving President is Constitutionally able to fill.

Because it is a separate office, its powers don't carry over to the Presidency, which is why the administration's arrogation of power under Article II is so much hooey. When the person-who-is-also-President puts on his CinC hat, he yields rather than gains power.
6.26.2007 10:52pm
Dilan Esper (mail) (www):
By the way, this is an aside, but why do people keep saying there has been no terrorist attack since 9/11? Even if we don't count the British and Spanish attacks (not on American soil) or the Richard Reid attack (foiled by pure luck), doesn't anyone remember the Anthrax attacks, which killed several Americans? That was post-9/11.
6.26.2007 10:56pm
ATRGeek:
I think part of the problem here is personalizing this (ie, making it all about Justice Kennedy). Justice Kennedy cannot do anything by himself. Rather, Justice Kennedy and four other Justices can do something. And then it is not Justice Kennedy doing it, but rather the Supreme Court.

So, if you depersonalize it, this becomes the question of whether government officials should be doing something they believe the Supreme Court would hold is illegal, not Justice Kennedy alone.
6.26.2007 11:04pm
ATRGeek:
By the way, it also seems wrong to me to claim the Administration reasonably thought it had the best argument based on existing precedents, and that if Justice Kennedy disagreed the Court would be changing the law on them. Basically the opposite is true: the worry was that Justice Kennedy would actually go along with a Court that was applying cases like Youngstown, cases which the Administration would prefer to ignore.

So the precise question is should government officials care that their actions are illegal under existing precedents, particularly when they have not yet been able to pack the Court with enough people who might be willing to overrule those precedents?
6.26.2007 11:49pm
Just Dropping By (mail):
doesn't anyone remember the Anthrax attacks, which killed several Americans?

(A) Those happened in very close proximity to 9/11, so they are kind of lost in the shuffle; and

(B) The Federal government would prefer that no one think about those attacks anyway since the evidence runs heavily towards involvement by disgruntled U.S. biowarfare researchers.
6.27.2007 10:37am
Andy L.:

doesn't anyone remember the Anthrax attacks, which killed several Americans? That was post-9/11.


Agree with Just Dropping By. Plus, because the investigation seemed to be a dud and resulted in no indictments, we just don't know who was behind it. My sense is that the govermnent and many in the public suspected that the Anthrax scare was the action of some homegrown criminal like Unabomber.
6.27.2007 3:04pm