is here; Prof. Paulsen's forthcoming Yale Law Journal piece, which touches on the constitutional presidential power question, is here. I don't know enough about the separation of powers questions to have an informed opinion, but Paulsen is a serious and thoughtful scholar, and his views struck me as worth passing along. For other views from the same hearing, see Prof. Philip Zelikow's testimony, Prof. David Luban's testimony (which on my quick glance seems to be the one most at odds with Prof. Paulsen's analysis), Prof. Robert Turner's testimony, and Prof. Jeffrey F. Addicott's testimony, and Ali Soufan's testimony.
UPDATE: The comment thread was largely occupied with largely substance-free sniping (plus criticism of the sniping); I deleted most of the comments, and tried to leave the more substantive ones, hoping that this might get it back on the right track.
If an individual believes so thoroughly in a politician to donate personal funds to the advancement of their campaign, career and values... that individual loses the ability to comment rationally and reasonably on questionable actions of said politician.
Paulsen's legal "analysis" is based on personal sentiments and political beliefs alone; it's certainly not based on reality.
Well for a start, look at either the U.S. statutory or ICAT definition of torture and explain how waterboarding does not fit it (e.g., under the U.S. statute, mock executions and even the threat to kill third parties are considered torture). Also, he conveniently ignores the fact that simply "not torturing" is not enough, cruel, inhumane and demeaning treatment is banned by ICAT too.
Congress can pass laws governing the conduct of the military. Where in the constitution does it say that the President, as commander in chief, is not bound by those laws.
However, he's definitely an outlier in his views. E.g., he doesn't believe in using precedent at all.
I gather that this commenter doesn't take Jack Balkin's views seriously.
I have to say that I find it difficult to believe that anyone who has read, for example, the Barron/Lederman two-part Article in HLR last year could make this statement in good faith. Surely, at a minimum, you have to grapple with a long history, stretching from the Revolution through the mid-20th Century, of congressional constraints on presidential war powers. To say, as Paulsen goes on to, that it is self-evidently unconstitutional for Congress to constrain the President's constitutional powers just obfuscates the important point that it's not clear what those constitutional powers are, and the assumption that they must be, in essence, the sole power to make all war-related decisions is at least in serious tension with, if not completely undermined by, history and practice.
Prof. Paulsen's views are probably handy, though, for fundraising, lathering up other extremists, and attempting to occlude an effort to prevent recurrence of wrongs.
All I can say is: wow at the deletions. :/
You wouuld think. But there was another part to my comment. "Substance-free sniping" includes observing that calling a hack "a serious and thoughtful scholar" rebounds upon the observor, and regretting that professors sometimes praise other professors' work when they shouldn't.
Crooked Timber's post on Prof. Volokh and torture comes to mind.
Paulsen's testimony lauds the Bybee/Yoo memos without any argument as to why they are supposedly correct or "clearly ... within the range of legitimate legal analysis." That's just weak. His argument basically amounts to "trust me on this."
I can't download the article at my present machine; anyone know whether it actually goes into any detail on why the Bybee/Yoo memos are valid?
Is the Volokh blog officially pro-torture now? Could we get a declaration to that effect? Maybe a subtitle on the header?
Perhaps the son or grandson of Russian emigres has a more keen appreciation for the rule of law because his family escaped from the grip of a totalitarian state; he does not take for granted what most of us and our ancestors have always known.
Or, hey!, perhaps not.
That's a real winner of an argument. Apparently Youngstown is still verboten.
But Paulsen does cite himself. A lot.
Paulsen reminds us that he is a constitutional law and legal ethics professor and he assures us that Bybee's and Yoo's analysis is right. Nuff said. Based upon his credibility, we should simply accept Paulsen's conclusion that waterboarding is not "torture" in legal terms (even if something like this happens). The many people who think otherwise, including the top military lawyers who opposed the OLC legal analysis at the time, are misguided or wrong.
Fine, but comments addressing Paulsen were also yanked as "sniping" if they offended certain delicate sensibilities.
Surely Paulsen's merits as a scholar are open to criticism. That was my point, as well. For another scholar to characterize him as on the one hand, a serious and thoughtful scholar, and on the other hand, someone who doesn't believe in precedent. . . .
Well, I think that says something about legal academia. I think I may actually agree with Judge Posner about something...
The substance in the criticism of Prof. Paulsen based on his view of precedent was particularly easy to miss, since it wasn't put at all explicitly. If it were put it explicitly and with some reasoned justification, the criticism would have been mistaken: Prof. Paulsen's view, which is (roughly) that courts must be loyal to the Constitution and not to precedent, and that therefore they ought not follow constitutional precedent that they on reflection believe is mistaken, strikes me as an eminently credible and thoughtful position (though I'm not at all sure that I'd follow it). But I wouldn't have deleted it, because then it would have clearly appeared as reasoned argument, which the original comment did not.
It also strikes me as undermining legal opinions that he gives that claim to be based on precedent. In other words, if he claims that under X or Y case, President Bush had the right to order torture, his critics can rightly ask where he gets off arguing that such cases are dispositive.
It also undermines any legal opinion he gives that claims to be directly based on the constitution, because in the real world, precedent does carry the day. For instance, he may not like Youngstown, but it exists and American Presidents are not at liberty to ignore it.
Bottom line is it seems to me that if you don't buy into the system of precedent that is at the root of the American jurisprudential system, that doesn't leave you with much to say about it. Certainly nothing that the rest of us should feel at all persuaded by.
the use of U.S. force – is in my opinion unquestionably correct.
This seems to make the President a virtual dictator in wartime. Does Paulsen think there are any practical limits on Presidential power during war?
Moreover, as a matter of constitutional law, the OLC memoranda’s most sweeping, categorical, and controversial conclusion – that at all events no statute or treaty may limit the President’s sole constitutional powers as military” Commander in Chief” to direct and conduct
the use of U.S. force – is in my opinion unquestionably correct.
If this reasoning is correct, then why did the framers specifically grant Congress the authority to "make Rules for the Government and Regulation of the land and naval Forces;" (art 1 Section 8 of the Constitution)?
If the Commander in Chief's power is excusive and without restriction, any grant of authority to congress is null and void, even if that power is granted by the same Constitution. This does not accord with the concept of checks and balances that appears to be one of the guiding principles of the Constituton.
It makes more sense to see this as a compromise- Congress sets the broad rules and the President fills in the strategic and tactical details. This setup would have been very familiar to the framers- it's basically how the army functioned during the war for independence. The Continental Congress did not dictate details- it set forth broad policy, which Washington translaed into detailed planning. (I would argue that it was Congress's inability to manage anything during that time, much less a war, that led to the designation of the President as CINC).
First, as has already been noted upthread, Paulsen can't possibly say that the Yoo/Bybee interpretation of the commander in chief power is "unquestionably correct" when Youngstown clearly held that it wasn't. He's almost blind to the OLC role here despite having worked there-- the OLC MUST obey Supreme Court decisions. The Court has NEVER said that the President has complete and plenary warmaking power. The Court has certainly given the executive branch deference, but it has never said that deference is complete.
Second, there is absolutely no basis for Paulsen's conclusion that the torture analysis is correct. Like Bybee and Yoo, Paulsen acts as if torture is just a pure matter of opinion that everyone disagrees about. In fact, mock executions have always been considered torture, and there's extensive caselaw, legislative history of the Torture Act, and drafting history of the Convention Against Torture that holds this. There are also various cases on sleep deprivation, slamming people into walls, and use of methods in combination.
Paulsen must, by this point, know about these cases. So why does he pretend they don't exist and pretend that Yoo and Bybee were writing on a blank slate?
His main claim is that the critics of Yoo and Bybee substitute ideology for legal analysis. But it seems to me you can't make that claim unless you want to basically become a critical legal studies type and say that all legal analysis is indeterminate. If any legal proposition has extensively clear support, it's that mock executions are torture.
His last substantive point is that just because the lawyers authorized something doesn't mean they endorsed it. But he is basically deliberately ignoring what actually happened here. If the Administration basically says "we want to do something that is evil and illegal, please give us the legal cover to do it", it really doesn't matter whether the lawyer is ENDORSING the conduct, as he is clearly part of the criminal conspiracy. Similarly, I don't really see why we should worry too much about deterring legitimate advice, any more than we worry about deterring legitimate lawyer-client advice when we prosecute unethical tax lawyers who help their clients dodge taxes.
All and all, a very sorry performance by Professor Paulsen.
Article I, Section 8, clauses 11 through 16 were implicitly repealed by Amendment III.
Congress's sole authority over the C-in-C in wartime is thus limited to prescribing by law the manner in which soldiers shall be quartered in houses.
However, Article III does not apply in Afghanistan or Iraq.
For instance, the Torture Act seems to be undoubtedly in the second category since I think Congress would be well within Art I to pass such a law even in the absence of any international law on the subject whatsoever. It's a total red herring. Thus the matter of waterboarding seems to me (I know C Gittings, if he's still around, will disagree) to be a purely domestic Constitutional affair -- Congress passed a law, the Executive accepted the law but pushed the interpretation (leaving aside any conclusions for the time being, since no one is being convinced at this point) while some claimed that the Executive could not have been bound by the law in the first place. It seemed entirely of a kind with disputes about the Clean Air Act or any other legislation -- i.e. not one that belongs in an exegesis of international law in the first place.
The other plank of his thesis, however, seems much less controversial once separating from what he's welded it to -- that treaties may not change the Constitutional allocation of powers and that the actors in that government cannot be bound by outside forces. A treaty that deprives Congress of the right to declare war, or forbids a war that Congress has declared, is obviously unconstitutional. So is a treaty that places ICJ judgment above domestic courts.
Paulsen's attempts to mix these together to make his point is disingenuous at best and outright dishonest at worst. Whether or not International Law can bind the US Constitution has nothing whatsoever to do with whether Congress can bind the CINC's ability to unilaterally decide how the US prosecutes a war.
Wow, I missed that gem on the first read through. Reason must be right -- those articles giving Congress the power to makes rules for the military and regarding captures must have been repealed or else such a distinguished professor would not write that.
This is starting to feel like the old unitary-executive theories -- proponents of executive supremacy latch on to an academically debatable theory and then pretend that it means what they want to believe. Whether or not the executive is unitary has nothing to do with the scope of exclusive executive power and neither does the question of whether international law can have binding constitutional effect.
And now we see -- he is playing the same bait-and-switch game. He started talking all reasonable about international law and then, whamo, starts getting into purely domestic constitutional law without support (no, citing yourself doesn't count) and in the face of explicit constitutional text to the contrary.
He admits that Congress wrote a statute, but then proceeds to say that the President can interpret or suspends treaties.
How does this man even take his own analysis seriously?
He could have saved ink if he had just expressed his concept with the simple formulation preferred by Nixon and Rice: "When the President Does It, That Means It is Not Illegal."
I think this discussion was held on this site before, and it was pointed out that OLC has consistently held the position that Youngstown constrains only the President's exercise of domestic powers. (There is certainly language in Justice Jackson's opinion that looks in that direction.) So the Paulsen/Yoo/Bybee position is certainly the one with historic (and to some extent judicial) precedent on its side.
It's one thing to hold this position. It's something else to pretend that Youngstown doesn't exist and completely fail to mention it. Trouble is, what Yoo did is the latter. Which is very similar to completely failing to mention the long history of US courts treating waterboarding as a form of torture. These omissions are glaringly, brazenly obvious, and they tell us the memos are a joke.
Suppose that LBJ had directly ordered the My Lai killings of women and children in particular, invoking his CINC power and claiming that only terror and murder would break the will of North Vietnam's southern supporters.
Would that be a Constitutionally "uncheckable" use of the CINC power under the Constitution, on Paulsen's view? If not, why not?
Anyone who thinks the example's absurd can ask whether Congress could have forbidden carpet bombing during WW2, including the A-bomb attacks.
That's fine if OLC wants to think that. But OLC has to remember that the courts are not bound to defer to its interpretations. A client receiving advice is entitled to hear about Youngstown and to be advised (1) of OLC's reading and (2) of the possibility that the courts might not agree.
I wrote a bit about Paulsen's attempt to separate out domestic powers from international ones, but I removed it for space. Like everything else he rights, it's correct for what it's worth but he tries to sell it for much much more.
The Torture Act is unquestionably a restriction on the President's exercise of international and war-making powers. It might be an unconstitutional one (reading Youngstown as applying only to domestic affairs so there's no explicit SCOTUS bar) but it is such a restriction. Paulsen's failure to engage that issue is an egregious omission.
I don't want to rehash the old debate, and this is hardly my field, but I think it perfectly permissible for a lawyer at a government agency to conduct his legal analyses within the framework of settled agency practices and interpretations, so that a particular work product addresses only new issues. Most of the memos, court opinions, and law review articles I read presume a lot of background knowledge.
That's fine, if you TELL YOUR CLIENT THAT'S WHAT YOU'RE DOING.
The problems with the torture memos have always been two - substantive and procedural, if you like.
Apart from the substantive legal analysis, which has shown to be egregious on several points, there's also the "procedural" requirement of providing the client with balanced advice that acknowledges multiple sides to an issue. The torture memos fail miserably here. No client reading them could think that there was any prospect of the law's meaning anything but what Bybee/Yoo said it did.
If it's always OLC's practice to issue oracular memos that admit no possibility of different results, then that's a huge problem at OLC, and a possible defense for Bybee and Yoo.
But, agency practice aside, they are professionals; they are licensed by the bar; they had a duty to provide the client the best legal advice available, regardless of any pattern of agency practice. PARTICULARLY where, for goodness' sakes, we're talking about TORTURE, a felony that could land a client in jail for 20 years (or worse).
Regarding OLC's normal practices, I think it's helpful to pay attention to Doug Kmiec, who "was once head of the Office of Legal Counsel, during the administrations of Ronald Reagan and George H.W. Bush." He mentions this idea: the possibility that the memos were "crafted in order to support preexisting policies and acts." Kmiec made the same point elsewhere:
453 U.S. 654, 668-69 (emphasis added).
Yes, I know, Dames&Moore was about Iranian assets that came within the jurisdiction of the U.S., and so arguably (EV) is really just a domestic powers case. But that, I think, is such a bad argument, that I'm not going to bother to examine it. Iranian assets. Iranian hostage crisis. An executive agreement with, you know, Iran. All involved here.
However, the fact remains that Jackson's op was only a concurrence, whereas the Court pretty much adopted his framework in Dames.
All the more reason why Yoo/Bybee could not responsibly confine their treatment of Youngstown to a citation to another Yoo memo quoting Frankfurter's concurrence.
Wow. That's pretty far out there, considering that even Bybee's own successors at OLC backed off the original assertion by Yoo and Bybee that the Torture Act could not constitutionally restrict the president.
For Jack Goldsmith's view, see The Terror Presidency. Even Steven Bradbury expressly disavowed the extreme view articulated in the Yoo/Bybee memo (and now endorsed by Paulsen.)
In particular, see Bradbury's quotation of his own 2005 response to Senate questions:
What is missing from the testimony, and what, in my opinion makes it fundamentally disingenuous, is that it applies the wrong standard. I have said before in a comment, is that the position taken by these memos would not be "frivolous" if taken in a brief. As works of advocacy, however shoddy, they are insufficiently baseless to warrant sanctions or discipline. But the memos are not supposed to be works of advocacy, they are supposed to be advising the client. The fact that other reasonable attorneys, or even law professors might agree with the assessment is not relevant in this context.
Advising a client is quite simply making one's best guess, based on all information, particularly case law, what a court will say. For example, it may reasonably be one's own legal opinion that Roe v. Wade is "unquestionably" wrong. However, that does not justify writing a memo to the chief of police that the state has the "unquestionable" power to criminalize abortion and that he is therefore free to go down to the local clinic and arrest the staff because in that lawyer's quite reasonable legal opinion the unconstitional statute should still be valid. Such a memo would be even more egregious if the attorney failed to mention that Roe v. Wade might, perhaps dictate a different result.
True, there is no Supreme Court ruling that water-boarding or other enhanced interrogation methods constitute torture, and no ruling whether the statute is to be broadly or narrowly construed. But this alone should have prevented the unequivical nature of the opinions.
But add in the cases where the U.S. has prosecuted waterboarding as torture, the use of common parlance with respect to interrogation techniques that constitute torture, and, I'm sorry, foreign and international rulings on what constitutes torture and it utterly fails to assess what the state of the law is, as opposed to what is basically an argument as to what the administration wanted it to be. There simply is, without doubt, a substantial possibility that the U.S. courts would rule that waterboarding and perhaps other techniques described in the memos do in fact constitute torture. Failure to mention this fact made the memos dishonest.
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