The Hamdan decision is one of those texts whose meaning will only become clear once it has been thoroughly contested. Certainly, the 5-vote majority struck down the president’s unilateral authority to create tribunals like the ones established for Guantanamo prisoners. That means that Congress must now act to preserve the tribunals, or else they will close. But what is the broader significance of the decision? It seems to me that everything depends on how the public interprets the case and digests bigger questions about presidential power and terrorism.

According to Public Agenda, “Polls taken when the idea was first proposed consistently showed majorities favoring tribunals over civilian courts in terrorism cases, but surveys since then have shown results changing when the question is rephrased. That’s a classic sign of public uncertainly in survey research and a signal that the public is still working through its views on this tactic in the war on terror. When public opinion is firmly settled on an issue, changing the wording doesn’t make much difference.”

The unsettled state of public opinion makes several outcomes possible –and will encourage activists and ideologues to try to shape the public’s interpretation of the Supreme Court’s decision.

I can imagine, first, that Hamdan will become a watershed case, standing for the principle that the executive is a dangerous branch, especially when the country appears to be threatened. The executive has guns, jails, and interrogation rooms; it has the capacity (unlike Congress) to make secret decisions. It is prone to overreach and violate individual liberties. Hamdan could represent the idea that the president must obey laws, including such international treaties as the Geneva Convention. George W. Bush could become an illustration of a dangerous president who was brought under control by the court.

If public opinion crystallized around that view, then Congress would not pass legislation to preserve the tribunals. Many Members would share Rep. Adam Schiff’s view that the Hamdan decision should not only close Guantanamo, but also end warrantless wiretapping. (As Jack Balkin notes, the administration’s use of wiretaps without court orders had the same justification as Guantanamo: the use-of-force resoluton). It is even conceivable that prominent people would start clamoring for prosecutions of men like Donald Rumsfeld for violating Article 3 of the Geneva Convention in contravention of US law.

I can also imagine, however, that Hamdan will be wrapped together with the New York Times’ leaks of banking surveillance and the Democrats’ criticisms of the Pentagon. People will believe that various “elites” are putting the country at risk by following foreign opinion and hamstringing the president. Under those circumstances, Congress will feel safe in reinstating the Guantanamo tribunals by statute. The status quo will resume and the Hamdan decision will become a footnote. It will be cited when people want presidents to consult with Congress, but the executive will feel confident in refusing to do so. (For this scenario, see my colleague Mark Graber on Balkinization.)

One of my conservative friends, a supporter of executive power, believes that Bush botched that cause by overreaching. If, at the height of the president’s popularity, he had sought congressional authorization for military tribunals and warrantless wiretaps, he would have won by large margins and established powerful precedents. Instead, he has provoked a fight over the principle that the executive needn’t consult Congress–a fight that he is losing. That’s a variation of Randy Barnett’s view.

On yet another version of the future, the Administration will benefit by closing Gitmo without losing face. “The court really rescued the administration by taking it out of this quagmire it’s been in,” said Michael Greenberger, who teaches the law of counterterrorism at the University of Maryland law school.

I certainly hope that Hamdan moves the public to support the rule of law and human rights. I also hope that it establishes the principle that the US government acts in our names, so we’re responsible for what it does. As long as the government acts secretly, we can avoid a feeling of complicity. However, if Congress now votes to allow military tribunals–or “waterboarding” and other forms of torture–that will be on our shoulders. I hope that citizens accept that resposibility.

Balkin emphasizes the shift of accountability to Congress. “What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way.” That’s correct, but since Congress acts in public and faces election, we could equally say that the Court has forced the President to go to the people for support. That’s truly “democracy-forcing.”

A lot of us are hoping that the retired generals who are criticizing Defense Secretary Rumsfeld will prevail. That’s because we think–or hope–that they have the right views about Guantanamo and Abu Ghraib, about the huge strategic mistakes that were made at the beginning of the Iraq war, about the value of changing civilian leaders right now, and about the folly of a preemptive attack on Iran. However, we don’t know the full story, so we cannot tell whether they are actually on the right side of these questions. More important, in some future debate, the uniformed military could be wrong and the appointed civilians in the Pentagon could be right. So whether and when generals should criticize political leaders–a question that evidently vexes them more than anyone–should be considered as a general matter of constitutional design, and not simply in response to recent news.

I think several conflicting principles come into play:

1 Discipline. Although members of the armed forces must disobey patently illegal orders, they must obey all other orders without delay or public dissent that might undermine discipline. The rationale is that a military organization cannot be effective unless everyone does his part without trying to play commander-in-chief. One could, however, raise questions about whether that is the best organizational model in the 21st century. Further, it is unclear whether the demands of discipline apply to retired officers and to those who resign in order to dissent. Retired General John Batiste explains that he couldn’t critize Rumsfeld if he were “still in uniform. … I would be arrested.” Even so, he calls his criticism “gut-wrenching, the hardest thing I have ever had to do in my life.”

2. Civilian control. The armed forces have the power to govern but no legitimate right to do so. To control them, we count on constitutional rules plus a strong tradition of deference to civilian leaders. The US armed forces are proud of that deference. General Richard Myers says, “In our system, when it’s all said and done . . . civilians make the decisions. And we live by those decisions.” If generals publicly criticize elected or appointed leaders in a way that changes the political situation, they have challenged civilian control. That has happened many times in the past, e.g., on issues like gays in the military and the procurement of weapons systems. Still, criticizing a Secretary of Defense for his handling of an ongoing war escalates the military/civilian struggle in a way that makes some uniformed officers uncomfortable–and for good reason.

3. Professionalism. A true profession is a defined group that has a legally sanctioned monopoly on certain rights and privileges. In return, its members must follow an elaborate ethical code and both unwritten and unwritten norms. Commissioned military officers are certainly professionals in that sense. Thus, on one hand, they ought to resign and complain rather than do things that violate their professional norms. On the other hand, those norms include discipline and deference to civilian leadership (see above). On such questions as the treatment of detainees, the two aspects of military professionalism have collided.

4. Public deliberation. The ultimate source of legitimate power is not the civilian leadership but the people. We citizens have an obligation to deliberate with good information. Candid comments by retired (or serving) officers could be an excellent source of insights and advice. On the other hand, generals can abuse their credibility by providing selective accounts of secret meetings or by claiming authority on the basis of their own service records.

5. Expertise. Uniformed officers are experts on fighting wars–more so than people like Dick Cheney, who has never been on a battlefield. Expertise is valuable and deserves respect. However, deference to experts always requires several demanding assumptions: (a) they are trustworthy and speak in the national interest; (b) they are reliable and have not succumbed to group-think or closed horizons; and (c) their expertise is about the right topics. In a complex situation like the Iraq conflict, expertise in war-fighting is not enough: you also have to understand various Iraqi cultures, diplomatic processes and techniques, nation-building, economics, and so on. If military expertise dominates, bad planning can result.

6. Policy versus implementation. In rebutting the dissident generals, the administration has argued that the President and his advisors made a decision about broad policy, for which they were accountable to Congress and the voters. They decided to invade; the generals then made the plan for implementing the invasion. This is the same distinction that has been used throughout the executive branch since the 1930s. We are said to live in a democracy, even though appointed experts hold enormous power, because they merely make tactical or technical decisions about implementation, whereas elected leaders set all the strategies and goals. However, a case like the Iraq war shows that no clear lines can be drawn between strategy and tactics or between policy and implementation.

7. A record of personal sacrifice. Military officers gain a huge rhetorical advantage from having volunteered for a job that doesn’t pay well, that involves hardships, and that puts them in danger. Retired General Greg Newbold has written, “My sincere view is that the commitment of our forces to this fight was done with a casualness and swagger that are the special province of those who have never had to execute these missions — or bury the results.” I find that persuasive, but then again, I agree with the substance of his comment. When generals said that Clinton was allowing gays in the military even though he had been too cowardly to serve himself, they were using their bona fides for a bad cause. We have to be careful to honor service without necessarily agreeing with everything a veteran says.

Macon, GA: As I wrote recently, I think the biggest question raised by the warrantless surveillance of US citizens is whether the president knowingly authorized criminal acts under the Foreign Intelligence Surveillance Act (FISA). I don’t know for sure that the acts he authorized were illegal; Orin Kerr says “probably.” If they were, it is very disturbing. A criminal law should be a trip-wire that stops powerful people from doing what they want–or even what they think is best. Otherwise, there is no rule of law.

However, a second question is also interesting and important: Is the FISA a good law or not? Should the Act be changed so that the executive branch can conduct certain kinds of domestic surveillance without warrants?

It seems increasingly likely that the administration wanted to scoop up huge quantities of data in order to look for patterns. Perhaps the main goal was not to identify individuals for prosecution or for any other hostile action. Instead, the government may have wanted to draw statistical conclusions from masses of individual data, much as Amazon and Google learn about consumer tastes by aggregating their information about all our searches and purchases. So, for example, the government might be interested in the percentage of foreign calls placed to Afghanistan that are conducted in Arabic. They might want to know how many of those calls mention Osama bin Laden. They would hope to include calls originating from the USA in their statistics. Ultimately, this information might help to identify a terrorist who fit an emerging statistical profile. But it might also be useful for planning a propaganda campaign or a military strategy.

I suspect that the administration did not ask Congress to amend the FISA to permit domestic searches–nor did officials seek retroactive warrants from the FISA Court after they obtained data on US citizens–because the Constitution forbids the vacuuming up of citizens’ data without their consent. The Fourth Amendment says:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

No searches or seizures without probable cause–but what probable cause exists when the government harvests masses of statistical data from private phone calls and emails?

Still, the Supreme Court might be persuaded to change its interpretation of the Fourth Amendment. It could say that international phone calls are not “papers or effects.” Or it could decide that security threats are so important as to compel some limitations on the Fourth Amendment. After all, “the Constitution is not a suicide pact“; the Bill of Rights cannot be allowed to cause our destruction.

Thus the question is not whether warrantless searches violate Supreme Court precedents, but whether the Court ought to allow them under certain circumstances.

On one hand, we might say that a person’s privacy rights are not compromised if the government scoops up vast quantities of data from huge numbers of people and uses the results for statistical research. Only once the government narrows its interest to an individual can there be any direct negative consequences from a search. Only at that point should a warrant be necessary. If the government wants to count the number of times that “Osama bin Laden” appears in my emails, I shouldn’t complain. No human being will actually read my mail or even know my name unless something about me triggers suspicion. Then a human being must decide whether to monitor me and should seek a warrant to do so. If my information is only used to develop a profile of “normal” behavior so that terrorists will stand out as abnormal, then I have no grounds to complain.

On the other hand, there are arguments for privacy that count against warrantless domestic surveillance. In a 2003 paper for the Journal of Accounting & Public Policy, I listed 10 reasons why we reasonably care about our own privacy. Some of these reasons apply only (or mainly) to commercial situations, when companies want to collect data about our private behavior for marketing purposes. Below I list the eight reasons that are most relevant to the NSA wiretaps.

Continue reading →

For anyone who wonders why torture is wrong, an excellent argument can be found in David Luban’s “Liberalism, Torture, and the Ticking Bomb,” Virginia Law Review, vol. 91 (Oct. 2005), pp. 1425ff. Here I’ll paraphrase a central part of the argument.

While there are no major ancient or medieval critiques of cruelty, the classical liberals (who were the intellectual ancestors of today’s conservatives and progressives alike) focused on cruelty as a special evil because it represented what they feared most: state tyranny. Killing someone can cause more harm than torturing him. Throwing someone in jail for the rest of his life can be worse than inflicting a medium amount of pain. Nevertheless, the torturer is a perfect representative of a tyrannical state–more so than the executioner or the jailor. Luban p. 1430:

the self-conscious aim of torture is to turn its victim into someone who is isolated, overwhelmed, terrorized, and humiliated. Torture aims to strip away from its victim all the qualities of human dignity that liberalism prizes. The torturer inflicts pain one-on-one, deliberately, up close and personal, in order to break the spirit of the victim–in other words, to tyrannize and dominate the victim. The relationship between them becomes a perverse parody of friendship and intimacy: intimacy transformed into its inverse image, where the torturer focuses on the victim’s body with the intensity of a lover, except that every bit of that focus is bent to causing pain and tyrannizing the victim’s spirit.

Some people argue that torture is nevertheless necessary in a society threatened by people who are willing to detonate nuclear bombs in crowded cities. What about the “ticking time bomb”–the terrorist who must be forced to divulge his secrets before there’s a big explosion? Shouldn’t he be tortured to save innocent lives, much as Dirty Harry forced Scorpio to reveal where he’d hidden the kidnapped child in the eponymous 1971 movie?

There are two major responses. First, real life doesn’t present ticking-time bomb situations, and even if it did, torture wouldn’t work to divulge the necessary information, because terrorists can lie. In real-life situations, torturers try to extract whatever information they can from suspected enemies, hoping to gather data that strengthens their overall understanding of enemy networks. No single suspect holds secrets that can by themselves save lives. It follows that a strategy of torture will require lots of it.

In any case, you cannot torture just once in a while. Torture that has any chance of working must be professionalized. The state needs experienced (desensetized) torturers, torture manuals, torture training, torture equipment, and lawyers’ memos rationalizing torture. The effect of all this “infrastructure” is not only to generate a new part of the government that will fight for its own survival. Worse, it tends to “normalize” torture. Normalization is a powerful and dangerous pyschological phenomenon. As Luban writes (pp. 1451-2):

we judge right and wrong against the baseline of whatever we have come to consider “normal” behavior, and if the norm shifts in the direction of violence, we will come to tolerate and accept violence as a normal response. The psychological mechanisms for this re-normalization have been studied for more than half a century, and by now they are reasonably well understood. Rather than detour into psychological theory, however, I will illustrate the point with the most salient example …. This is the famous Stanford Prison Experiment. Male volunteers were divided randomly into two groups who would simulate the guards and inmates in a mock prison. Within a matter of days, the inmates began acting like actual prison inmates–depressed, enraged, and anxious. And the guards began to abuse the inmates to such an alarming degree that the researchers had to halt the two-week experiment after just seven days. In the words of the experimenters:

The use of power was self-aggrandising and self-perpetuating. The guard power, derived initially from an arbitrary label, was intensified whenever there was any perceived threat by the prisoners and this new level subsequently became the baseline from which further hostility and harassment would begin… . The absolute level of aggression as well as the more subtle and “creative” forms of aggression manifested, increased in a spiralling function.

It took only five days before a guard, who prior to the experiment described himself as a pacifist, was forcing greasy sausages down the throat of a prisoner who refused to eat; and in less than a week, the guards were placing bags over prisoners’ heads, making them strip, and sexually humiliating them in ways reminiscent of Abu Ghraib.

I think we should be very careful about any behavior that is not unjust in itself but that can escalate quickly and without natural limits. That is why imprisonment is better than corporal punishment. Ten years in jail is a worse punishment than a dozen lashes. However, an excessive prison term can be reconsidered before it is served, and there is a natural limit to imprisonment (a life sentence). There is no limit to the number of lashes inflicted inside of an hour. That is why the state should never be allowed to inflict deliberate pain, even if we believe that it may deprive people of life and liberty.