On DC Statehood

I support DC statehood. Here's the official site that promotes voting rights for DC residents - DC Votes.

As noted here, DC is more populated than many states.

Matthew Yglesias proposes a federal city - outlined above - that is much smaller than DC now, with the only inhabitants being the First Family.

Either that or we should be exempt from federal tax, as Alex Massie proposes.

But what about a grand bargain? In return for not having a vote in Congress, how about abolishing the federal income tax for DC residents? I suspect there are many who'd be all in favour of that. And of course such a move would do more to repopulate the city - complete with the kind of urban density Matt's in favour of - and regenerate its schools and so on than just about anything else.

Andrew Sullivan supports Massie's idea, and adds, We could become Hong Kong on the Potomac.

James Joyner suggests a third option: Maryland reabsorbs DC. He argues that DC Statehood violates "serious principles," such as it's geographical too small (20x smaller than Rhode Island); that the tiny states in New England never should have been created (because they are too small); DC is not a "state-like" entity (whatever that means). None of these seem like principles to me.

He finishes with this flair:

So, what’s the rational argument for giving DC two Senators when twenty-six other cities and 49 of 50 states are bigger? There is none.

Well, yes there is - residents of DC are taxed by the federal government and have no voting representation in Congress.

Didn't we fight a revolution over taxation with no representation???

Alexandria, Virginia was originally to be part of DC, but Virginia took it back in 1847. That's where James Joyner now lives. Hmmmmm.

With this election, DC residents can finally hope - for some resolution to the injustice. Thank you Obama.

On the Anthrax Case

This is THE guy to read on the anthrx case: Glenn Greenwald.

From Salon.com

The MUST READ - from August 3rd - Journalists, their lying sources, and the antrhax investigation.

Tuesday August 5th - On the "developing case"

From today, August 6th - The FBI's Selective Release of Documents in Anthrax Case

On Obama's Law Teaching

I LOVE LOVE LOVE this.

Here's the New York Times on the subject - with the ACTUAL exams and even from the early years the exam answers! Very, very cool.

Then Slate unpacks and evaluates how he did as a teacher. Verdict - as expected!

From Slate -

Whoa. So here are the roots of Obama's statements that he will pick judges who have "heart" and "empathy" because he thinks that in a small but key set of cases, a judge must fall back on "his or her own perspectives, his ethics, his or her moral bearings." Obama is not a man, or a lawyer, who believes that at least in these hellishly difficult matters of constitutional interpretation, judges are truly guided by legal precedent, or abstract reasoning, or anything other than their gut and the outcome they prefer. This is not the way most politicians talk about the court.

I love this guy's brain. I love the law and I love this guy's brain! The complexity he is willing to see, debate, discuss, embrace is like a cool drink of water on smoggy, muggy, digusting day that has lasted 7 and 1/2 years and seems never to end!

Europeans Yawn Over Civil Liberties

As the far left bloggers (Daily Kos and Moveon.ort) threaten Obama to try and force him into a stronger stand on the FISA bill, Congressional Quarterly publishes a fascinating essay on civil liberties in European countries called We Rage, Europeans Yawn, Over Domestic Counterterrorism Ops by Jeff Stein.

The opening:

Ever since I attended a conference on homeland security in Paris four years ago, I’ve been fascinated by how little the French, Italians, Germans and other continentals worry about violations of their civil rights by their spy agencies.

In fact, outside the United Kingdom, which invented civil liberties with the Magna Carta 993 years ago last Sunday, ordinary Europeans couldn’t care less about wiretapping, national ID cards, preventive detention and police spies in mosques, all of which have millions of Americans, not to mention the ACLU and libertarian Rep. Ron Paul , R-Texas, up in arms.

And even in London, only the newspapers and a few liberal politicians made a fuss over the Labour government’s decision, ratified by the House of Commons on June 11, to extend to 42 days the police’s authority to hold terrorism suspects without charge.

“British liberties have been eroded under Labour. Few seem to mind much,” the Economist headlined one story on the row this week.

“Liberals have long lamented that, despite much stirring rhetoric about the mother of parliaments and Magna Carta, modern Britons have little real interest in their hard-won liberties,” the magazine maintained. “On June 17th, as Gordon Brown gave a speech on the subject, that pessimism seemed confirmed when one rapt listener fell asleep in the middle of the prime minister’s oration.”

I find this strangely both incredible and not incredible, re Italy here:

Prominent civil liberties groups don’t even exist in Rome.

“Occasionally, there are panels on these matters organized by university professors, historians, legal experts, judges or journalists,” Sisti said. “But it’s like talking to the winds.”

The public’s indifference even extends to U.S. covert activities in Italy, where 26 Americans, all but one CIA operatives, are being tried in absentia on charges they kidnapped an al Qaeda suspect in Milan in 2003.

Sisti said that when testimony in the trial recently revealed that the CIA had placed a spy inside the Milan mosque attended by the suspect, Abu Omar, there was “no reaction."

“Sometimes jurists or editorialists try to stir up interest in such legal matters,” he said, “but there are only a few.”

As in France, Italian police keep tabs on the mosques with bugs and informants, generally an anathema here, where the struggle for religious freedom and the separation of church and state are part of the national political fabric.

And Armando Spataro, the Italian prosecutor in the CIA case, told me the public doesn’t worry much about its rights.

“They’d rather watch the football championships!” he said by e-mail on Friday.

I guess I knew this. I read Michael Dibdin who writes very good crime novels set in Italy. I suppose I thought he was exaggerating. (A great read, his Dirty Tricks.)

A European journalist remarks:
“There is a more highly developed sense [in the United States] of what freedom means,” he said.

But here's the salient point, buried at the very end. In all but Great Britain, there's a different judicial system. Britain and the US are common law jurisdictions and the trier of fact is a jury. In France and in other civil code countries, the trier of fact is a judge (or magistrate). The whole set up is different. Here we have the government vs. the defendant, with the judge as arbiter and the jury deciding the case. In Europe, those familiar structures don't transfer.

“We don’t have ‘habeas corpus’ because the investigative magistrate (juge d’ Instruction) is present from the very beginning of the investigation,” Bruguière told me. “Moreover, in the French judicial system, the judge is allowed to conduct wiretaps in order to gather pieces of evidence. For that purpose he issues a special warrant.”

McCain No "Maverick", What He'd Do, What Obama'd Do re Supreme Court

This week's New Yorker includes a pieces by Jeffrey Toobin on McCain's May 6th speech on the judiciary and the Supreme Court.

if he hoped to sneak the speech past a distracted public, and have its coded references deciphered only by the activists who were its primary target, its message should not be lost on anyone. McCain plans to continue, and perhaps even accelerate, George W. Bush’s conservative counter-revolution at the Supreme Court.

After unfolding the implications (dog whistles) of McCain's May 6th speech regarding his outlook on constitutional law , specifically regarding execution of juvenile offenders, right to privacy, Toobin concludes:

In just three years the Roberts Court has crippled school-desegregation efforts (and hinted that affirmative action may be next); approved a federal law that bans a form of abortion; limited the reach of job-discrimination laws; and made it more difficult to challenge the mixing of church and state. It’s difficult to quarrel with Justice Stephen Breyer’s assessment of his new colleagues: “It is not often in the law that so few have so quickly changed so much.” And more change is likely to come. John Paul Stevens, the leader of the Court’s four embattled liberals, just celebrated his eighty-eighth birthday; Ruth Bader Ginsburg is seventy-five; David Souter is only sixty-eight but longs for his home in New Hampshire. For all the elisions in John McCain’s speech, one unmistakable truth emerged: that the stakes in the election, for the Supreme Court and all who live by its rulings, are very, very high.

Toobin was on Bill Moyers Friday night and explained why he wrote his piece-

BILL MOYERS: So what surprised you about McCain's speech enough for you to want to write about it this week?

JEFFREY TOOBIN: Well, what surprised me was the degree to which he embraced, in its entirety, the really strong conservative agenda that President Bush has reflected in his appointments to the Court, that this was not the maverick John McCain. This was the John McCain who needs to ingratiate himself with the base. And he did in a big way.

(snip)

McCain has a problem. His problem is on those issues the public, by and large, is against them. The public doesn't want to see Roe versus Wade overturned, doesn't want to see abortion abandoned, doesn't want to see affirmative action ended, doesn't want to see the death penalty expanded. So what he did was he spoke in code. There were dog whistles in there, words that can be heard and understood by people who are on the inside of the conservative movement - but the way he dealt with the issue was to speak in code but to speak very clearly in code. And that's what I tried to do in my New Yorker story, which was to unravel the code to make it clear what he was saying.

But to me, here was the headline out of Moyers interview with Toobin: what kind of judges would Obama appoint? Here's Toobin's view (emphasis added):

BILL MOYERS: What was the dog whistle Obama was blowing on the campaign trail when he mentioned the late Chief Justice Earl Warren?

JEFFREY TOOBIN: Oh, that's very clear. It is saving Roe versus Wade. It is allowing the consideration of race in college admissions. It is strict limits on the death penalty. It is special regard for the separation of church and state. You know, Obama is a former Constitutional Law Professor. And I've had the opportunity to talk to him about the Constitution. He still follows the Court very, very closely. He mentioned Souter, Ginsburg, and Breyer as Justices he admired. So I don't think there's any doubt what kind of Justices he'll appoint to-

BILL MOYERS: Liberal Justices?

JEFFREY TOOBIN: Liberal Justices but also I think Justices with some real-world experience. You know, this is the first Court in history where all nine Justices are former Federal Appeals Court Judges. I think the Court's missing something. And I think Obama feels that way, too.

BILL MOYERS: Earl Warren had been Governor of California. He was a Republican appointed by Dwight Eisenhower. He became the poster boy, to use that cliché, for the right wing's efforts to impeach him.

JEFFREY TOOBIN: You remember the bumper sticker-

BILL MOYERS: I remember, "Impeach Earl Warren." And that's when this all began because they saw him as a very liberal and activist judge. And I was curious when I saw that speech by Obama as to why he wants to rile the forces against him even further by mentioning perhaps the most hated name in the judiciary as far as conservatives are concerned.

JEFFREY TOOBIN: Well, I think this is something Obama feels strongly about. He has devoted years of his life to studying the Supreme Court. He really knows the subject. And I think the fact that Warren both was a progressive Justice and came from outside the monastery of judges is something that a President Obama, if there is one might well look to in making appointments.

Full transcript here. You can watch online here. The discussion begins with Bush v. Gore, which Toobin wrote about in Too Close to Call, also a good book and which is the subject of tonight's HBO's Recount (and I blogged about here.)

This assessment is in synch with what Obama said yesterday, with respect to who he might pick as his Vice Presidential candidate (emphasis added):

My goal is to have the best possible government. And that means me winning. So, I'm very practical in my thinking. I'm a practical guy. One of my heroes is Abraham Lincoln. Awhile back, there was a wonderful book written by Doris Kearns Goodwin called 'Team of Rivals,' in which she talked about how Lincoln basically pulled all the people he'd been running against into his Cabinet. Because whatever personal feelings there were, the issue was, 'How can we get the country through this time of crisis?' I think that has to be the approach one takes to the vice president and the Cabinet.

Good summary on that front here, from Time's Stumper blog.

This week, Toobin won the J. Anthony Lukas Book Prize given by Columbia Journalism school for his book The Nine. (It should be noted that one of the judges is a colleague of his from The New Yorker). The book is really good. Theme of his book is that the Supreme Court is not apart from politics, and it is absolutely fascinating. (That was also the theme of my Vassar undergrad thesis– around one case, which may be why I loved it).

Reliving Recount, Thanks, HBO

Jonathan Chait has been a favorite writer over at The New Republic ever since he penned, Go Already!, explaining why she didn't have a chance after Texas and Ohio, and which I wrote about here (on my birthday - mid-March).

Now he engages in a discussion the producer and writer of Recount, airing tonight on HBO at 9 pm. (Subtitle is The future of the nation was hanging by a chad). Two radio segments over at NPR here, the second, longer (14 1/2 minutes) one is much better.

What a thing to remember on Memorial Day weekend....That fall saw the onset of my illness, and though bedridden, I vividly remember being riveted by the news, legal arguments and politics of those 36 days. I remember being grateful at least something of import and interest was on the cable news channels.

Here is Chait's best insight:

The recount was the moment when the Republican Party fully realized that, beneath the still-imposing edifice, the old institutions had rotted away and could be brought down with a few swift blows.

Yet the Democrats still believed in the power of the establishment and its ideals. This is a major theme of Recount. Al Gore and his lieutenants agonized about their reputation, their duty, and winning the approval of The New York Times, while Republicans saw the episode as a pure street fight. The Republicans were teeming with rage and paranoia, well-captured in the movie by the "Brooks Brothers Riot" and the bitter commentaries of GOP recount lawyer Ben Ginsburg. This was the political culture of the moment. Liberal editorial pages studiously urged both sides to fight fair, while conservative organs like the Wall Street Journal and the Weekly Standard printed deranged conspiracy theories and urged Bush to do whatever it took to win.

His one criticism of the film:

How did you not include the scene where John Bolton burst into a Tallahassee library and announced, "I'm with the Bush-Cheney team, and I'm here to stop the count!"? That always struck me as the most cinematic moment of the whole episode.

Here's Director Jay Roach's money quote:

Late in pre-production, Danny Strong and I went to Washington, D.C., and interviewed Brad Blakeman, a very charming, intelligent spinmeister in Florida depicted in the film. He was, by his own account, the man at least partly behind "Sore Loserman," "Surrender Gorethy," "The Gorinch Who Stole the Election," and other demonstration characters and stunts that appeared at rallies outside the Florida Supreme Court and outside counting centers throughout the 36 days of the recount...Blakemean also said he helped organize the edgier "Brooks Brothers Riot" from his roving RV office in Florida...this protest..succeeded in intimidating the canvassing board, who shut down the recount right after the protests, even though the board had approved the counting earlier.

Fascinatingly for me, Blakeman told us there was a very deliberate effort by the Republicans in Florida to "act more like Democrats," and to take a page out of the book written by the left-wing protestors in the '60s who used protests and street theater to inject turmoil and chaos into established political processes to make them look flawed, corrupt, or ridiculous...to "preserve the victory," the Republicans this time had to preemptively take to the streets and make the recount seem messy, chaotic, and even dangerous to the country. The hope was to prevent the recount from flipping the victory to Gore, and if it did, to make the recount's results seem illegitimate.

Screenwriter Danny Strong cites A Lion in Winter as inspiration:

A strong argument against any sort of comic tone is that this film chronicles too important an event in American history for any levity. It is a reasonable argument, but ultimately I felt this approach would diminish the power of the film. My personal feeling is that comedy enriches drama. By creating a contrasting tone, drama becomes more fully realized because comedy gives the drama a deeper hole to be mined from. A great example of this is the film/play The Lion in Winter, by James Goldman. It is an historical drama documenting the power struggle between Henry II and his scheming sons for his throne. Brimming with wit, the film is one of the funniest movies I've ever seen, and by maintaining a witty tone, it makes the drama sing with raw emotion and intensity. This is what I was hoping to achieve with the Recount screenplay.

To read the full text of Roach and Strong's response, click here.

'til 9 pm, then.

Rendition is Always Extraordinary

Last week Frontline/World broadcast a story on "extraordinary rendition." It's about a 30 minute video and well worth the time. Keith Olbermann cited the story the next night.

I'm not sure what makes a rendition extraordinary or not. Any rendition is extraordinary. What does rendition mean? It's the practice of scooping up terrorist suspects and putting them into CIA black sites. CIA officers are on trial in Italy for kidnapping a suspect off the streets of Milan.

It's so myopic and short sighted. These terrorists, suspects, criminals - whatever they are - are put into legal limbo and this practice makes holding them accountable impossible. Our government has done this to British citizens, a man who was undercover for MI-6 who basically abandoned him. I'm not saying all these guys are good guys but we hurt ourselves by engaging in this practice - both short term and long term. And we've even scooped up women and children in Kenya via Ethiopia. (Yes, we've got our mits in the conflicts of Somalia and Ethiopia).

Last month at Politics and Prose, Jack Goldsmith noted, correctly, that the first rendition was done under the Clinton administration on September 22, 1995. This fact makes it onto the web site, but not the television program. And the fact that a Bush official can point to the Clinton Justice Department as approving this practice upsets me.

And if you wish to cleans your palette after familiarizing yourself with what atrocities the Bush Administration has committed, check out this book of a literature professor who teaches at West Point about honor. I remember reading that in World War I that German soldiers would search for Americans to surrender to because word got around that the Americans would treat the enemy honorably, more so than the British. That hurts.

Why is Clarence Thomas so Angry?

The answer is self-pity, according to Jeffrey Toobin. The New Yorker published his review of Thomas's memoir, My Grandfather's Son, and it's the best I've seen. Toobin knows enough to be able to point out the inconsistencies of Thomas' wrath, and that makes the review particularly fun. The historical context Toobin provides is also good.

You can listen to a 12.5 minute interview with Toobin here about Thomas and Toobin's book The Nine.

You Must Remember This....

From Richard Wolffe's Newsweek analysis of last night's Democratic debate:
But Clinton's campaign is honing its counterattack. Her aides say the opposition isn't just attacking Hillary, but also impugning her husband—a tack they're confident will turn off most Democrats. "I don't think there's a very large constituency in the Democratic Party for that," says Clinton's communications director, Howard Wolfson. "I think they're misreading the electorate."

Perhaps. Perhaps people don't remember because in contrast to the fiascos since, the Clinton years are easy to romanticize. Or people just don't remember.

But reminders abound in Jeffrey Toobin's book The Nine, which I find hard to put down. I confess I've been skipping around trying to find the discussion on Bush v. Gore (it starts on page 141, at the opening of "Part Two") But I dipped into two other parts first.

The discussion of Kennedy's (a Reagan nominee to the court) evolution, especially in the area of citing international law rivited me as it was pivotal to the overturning of Bowers v. Hardwick - a 5-4 ruling which said the US Constitution does not include the right to practice sodomy. I remember that case from 1986. Lawrence v. Texas overruled that in June 2003 (6-3 - 5 including Kennedy, O'Connor concurring for different reasons than majority and 3 against - Scalia, Thomas and Rehnquist). Kennedy cited the European Court of Human Rights, among other foreign sources. And here's the fascinating part - the Massachusetts Supreme Court relied heavily on Lawrence when it ruled five months later that gays must be allowed to marry. Hmm - just in time for the 2004 election. What if Kennedy hadn't been convinced? Would John Kerry have won without gay marriage as a wedge issue? Isn't history interesting?

Then I fell into the pages describing Ginsburg's and Breyer's nominations to the Supreme Court by Bill Clinton (to replace Blackman and White). Breyer is even more "ardent internationalist" on the court. There is a real division on whether this examination of the legal practices and customs of the rest of the world is at all relevant to the deliberations of the US Supreme Court. Toobin recounts the oral arguments of Roper v. Simmons, a death penalty case in which the legality of executing juvenile offenders was considered. What sources could be cited to determine what was "unusual" (as in cruel and unusual punishment)? Breyer noted that the framers drew on foreign sources, that Lincoln studied Blackstone (a British legal scholar). The funniest point came when the lawyer arguing the case uttered he couldn't speak for Thomas Jefferson. Lawyers arguing the specifics of their cases are often taken unawares by the larger issues the justices start throwing at each other. The court overturned the law and said that juvenile death penalty was no longer permitted.

Anyone who thinks the Supreme Court is not an issue in the Presidential Campaigns is wrong. It is and should be more discussed and debated. They deal with important issues and the court has real power.

Back to Clinton's Supreme Court nominations: the process was nightmarish and disorganized. As Toobin notes, "Clinton's entire first year was characterized by similarly vertiginous swings of good and bad fortune." (similar to the high of Ginsberg's successful nomination and the low of Vince Foster's suicide, which occurred on the first day of Ginsberg's hearings). He continues, "Politically and otherwise, this president lived on the edge." (p. 74) Okay, so he's not running, she is. And she doesn't live on the edge. In fact, too far back from it.

But let's not romanticize the 90s and Bill Clinton. Like everyone else, I was excited, so excited in 1992 for the first Democrat to take office since I was 10. It was the first and only inaugural I went down to the Mall to witness. But these passages brought me right back to Lani Gunier, Zoe Baird, the travel office, Hubbell's resignation, Hillary's windfall profit in commodities trading (remember that?), Paula Jones, etc. etc. etc. Why do we want to go back there?

In other notes from Toobin's book -

• Clinton (unlike Bush) ran both nominees by Orrin Hatch, the Republican chair of the Judiciary committee. That's what working with Congress looks like King George.
• Justice Kennedy is portrayed as hungry for the Supreme Court to be involved in Bush v. Gore from the start. Toobin concedes that Kennedy was just doing his job, as FL fell into his area of responsibility for procedural matters. Kennedy sent memos to update the other 8 justices on the case. I don't read this quite as Toobin does - hunger for involvement. Not yet anyway. Any lawyer half awake was been fascinated by the case. I was very sick that fall, and I remember being very grateful that such intricate and obscure legal matters were the subject of 24-hours news, as it should have been with so much at stake. I was surprised to be reminded it was only 36 days. Kennedy interest strikes me as natural as breathing, and keeping his colleagues up to date responsible.
  

More on both The Nine and the debate to come.

Law & Order: SVU Educates on Terror and the Law

Some have derided popular television, but it's not all bad. The best educates while the stories entertain. On the other hand, the first (and only) comment on the International Movie Database views the episode as a liberal polemic. If you're not familiar with www.imdb.com, the resources on film, television and actors is unrivaled.

I argued in a lengthy law school paper that stories have a better chance at changing minds than legal opinions or OpEd pieces or essays. I referred to novels, but the same goes for any story telling whether in literature, film, television, comics. Why? Because stories get beneath and beyond the dogmatic knee jerk responses that often prevent listening and sympathy. When you care about a character and are drawn into his or her world, you can understand his or her perspective. When you read an Oped piece, it often become easy to dismiss and think "oh that old soapbox again."

This idea is not new. Dickens did knew this, wrote Olivier Twist and child labor laws resulted. The Jungle (published in 1906) and the government enacted the Meat Inspection Act and the Pure Food and Drug Act of 1906. Investigative pieces and their use of fictional elements to create a story out the news make them not only more readable (so the reader actually takes in the news) but more convincing because the heart is convinced as much as the mind. I argue that stories convince the heart and keep the mind from interfering when it shouldn't.

Last night's episode of Law & Order: SVU (Special Victims Unit), entitled Harm, told the story of an Iraqi citizen who was tortured in Iraq by a New York doctor and who later died as a result of his torture. The viewer learns the particulars of how torture affects the victims. And not water boarding but what is called "light torture." It was meant to be affecting, and it was.

The first legal threshold was jurisdictional: did NYC have the jurisdiction to prosecute the doctor for criminally negligent homicide? And they brought in Hamdan v. Rumsfield! The prosecutor argued that the courts determined that the US President doesn't declare what's legal (constitutional) or not. Meanwhile the defendent's lawyer cites an executive order. This point - who declares what the law is - is exactly that Jack Goldsmith's book focuses on and even the first question he got was on Hamdan.

So the viewer learns about what we are really doing in Iraq as well as the legal foundations for what we are doing. Kudos. Catch the repeat, usually on Saturday evening. Elizabeth McGovern guest stars.

On a related note, Law & Order: SVU wouldn't even exist but for Robert Chambers who was on the front page of the New York Times again. He's been arrested for selling drugs. Linda Fairstein (A fellow Vassar grad who is now writing really bad crime novels) prosecuted Chambers when he was 19 for the murder of Jennifer Levin in the so-called Preppy Murder case. Fairstein served as the Bureau Chief of the pioneering Sex Crimes Prosecution Unit on which SVU is based.

Would President Hillary appoint Obama to Supreme Court?

I hate Charlie Rose from my time working with him at PBS,

BUT

Jeffrey Toobin is on tonight (it repeats during the day in most markets) and talking about The Nine. He repeats many of the stories and ideas he talked about in the Book TV interview I saw two weekends ago and referred to below.

Again - he talks of how liberals assumed that because Roberts was smart he was a really a closet moderate. He suggests that if Hillary was elected she'd nominate Barack Obama (get rid of him by promoting him - it is SO Machiavellian). He talks of O'Connors regrets around Bush v. Gore. He discusses how peculiar it is that Thomas so rarely speaks during oral arguments. I got to witness oral arguments at the Supreme Court once in my life (thank you Dan) and I assumed it was because he was not clever and couldn't think on his feet. He apparently has offered several accounts for his reticence; none are very plausible, notes Toobin.

If I can catch a repeat, I'll try and give a fuller executive summary. At some point, you'll be able to view the interview at this site, supposedly.

Which Branch of Govt Defends What?

An oped piece, Lawbreaker in Chief, in the New York Times today written by a professor of constitutional law at Yale Law School, Jed Rubenfeld, is worth a read. He addresses who has the power to decide when a law is constitutional - the executive or the courts or Congress. This power was supposedly determined definitively by Marbury v. Madison - the subject of my undergraduate thesis at Vassar - to rest with the Supreme Court.

Bush and his lawyers have argued that his "authority to defend the nation" trumps his obligation to obey the law. (Goldsmith, see below, does not believe the Presidency is above the law but he would use the term responsibility to defend the country rather than authority and remind us that it is a responsibility that hangs heavily).

Rubenfeld cites the US Constitution and notes that the job to defend the country is expressly listed as a job for (and assigns the power to) Congress. See Article I, Section 8, in pertinent part (emphasis added):
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

Article 2 sets forth what the President is supposed to defend (emphasis added):
Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Funny, isn't it? Or one might say Orwellian.

Note the preamble that sets out the purpose of the Constitution, the purpose of uniting the states. And contemplate how our union now dysfunctions - how none of the goals are now being achieved.
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

We have an imperfect union.

We have a union fiercely divided by the likes of Rove in this country. We have unfair legal access that results in injustices. We have domestic turmoil - floods and fires and foreclosures. We have a weak defense with an overextended military and a overpaid wasteful privatized military. We have increasingly limited freedoms with wiretaps as well as the moralistic intrusion of government into medical research and our bedrooms. And we have uneven posterity - if you are diagnosed with cancer and rich you live, if poor you don't.

Do we promote the general welfare - ensure the faring well of generally all of us? No, the Republicans don't believe in general welfare; it's everyone for him or herself.

This sad state of affairs supports the argument for a constitutional convention.

Jack Goldsmith on The Terror Presidency Q&A

• On Hamdan v. Rumsfeld (548 U.S. ___; 126 S. Ct. 2749; decided June 26 2006) Goldsmith believes the result is okay but the analysis was not. This was the case that affirmed that the President was not above the law and that the military commissions set up to try the Guantanamo detainees were unlawful because they violated the Uniform Code of Military Justice and the 4 Geneva Conventions. For Linda Greenhouse coverage of the decision, click here. For excerpts of the Justices’ opinions, click here. Goldsmith disagreed with the analysis, I think, because he believes that 1) we need new Congressional laws, new conventions, generally that in this new environment we need to go back and look at first principles; 2) that the Geneva Conventions do not apply to al Qaeda; and 3) that the decision made the Geneva Conventions apply to a thing, a non-state actor, which it was not meant to apply.
• It’s too easy to say that torture is bad for 2 reasons. The first reason is that there is a very technical definition of torture that is both express and with contemplative and well considered loopholes. For example, the law says that “prolonged mental harm” is impermissible. The word “prolonged” was added to permit and allow non-prolonged mental harm. This loophole was a deliberate loophole. The second reason I did not catch. My notes say, “If at all that we engage with torture, coercive interrogation techniques” Sorry.
• Re testimony of Attorney General nominee, Mukasey. His view of law is terribly important and fraught. In the past, the state of war was temporary and discreet and defined in time. We are in a state of war; that’s not just rhetoric. All three branches of government have in legal terms - affirmed the use of the term war. Great power should be exception not rule. The Presidency needs 1) power and 2) intense accountability. Goldsmith added that Mukasey didn’t say much in his confirmation hearings.
• A questioner posed that Al Qaeda is not just killing for killing’s sake. And he suggested that fear mongering – that their terrorists are nihilistic and simply without purpose – affected the interpretation of law. It was an interesting exchange because the questioner and Goldsmith were on different planets. Goldsmith didn’t accept the premise of the question which was that the emotional reaction to this culture of fear affected the interpretation and application of law. Goldsmith acknowledged right off that Al Qaeda had political goals and implied, so what? When the questioner pushed that such climate changes law, Goldsmith said not really. The exchange amused me; many females have a story from law school of being told that emotion and passion have no place in the law.
  

More to come.

Jack Goldsmith on The Terror Presidency

On Sunday I went to Politics and Prose and listened to Jack Goldsmith discuss his book The Terror Presidency. A couple of weeks ago, Jeffrey Toobin talked about his book The Nine: Inside the Secret World of the Supreme Court on Book TV. He noted that some liberals had a tendency to believe that conservatives just weren't quite well informed enough and if they were so, then they would be conservative. So these liberals were often befuddled by a smart conservative.

Jack Goldsmith would be one of them. His presentation was terrific and before he admitted to being a law professor, his style made clear he knew how to talk so listeners could take notes and retain the information.

The reviews were good but misinterpreted a little. The title – The Terror Presidency was not to imply that this President is a terrorist. But rather was meant to conjure three specific qualities of the Presidency, the office of the Presidency. The title intended to

1. note that the Presidency exists in an age of terrorism.
2. evoke the idea that the Presidency is deeply fearful
3. acknowledge that Presidents make us fearful. This was as true of FDR and Lincoln as it is of Bush.

There are two fears that compete every day and exist in constant tension.

On the one hand, there is how fearful they are in the executive branch about the next attack. They are more fearful than they let on. Why are they afraid?

1. they read the threat matrix every day
2. They worry that the threat matrix understates it. They feel they don’t have enough data to fight the threats, the probabilities are unknown, and actionable intelligence is lacking.
3. They have a deep sense of responsibility about innocent American being killed, especially since they failed on 9/11

Again in Franklin Roosevelt’s time as well as Lincolns there were those same intense fears, and these set of fears let to relentless aggressiveness.

The other competing fear, in opposition and in tension with the fear of the next attack is a fear of law.

Since the 1970s, laws and restrictions of power on the Presidency evolved. These curbs grew out of the abuses of the government and the CIA during the 50s, 60s and 70s. Certain acts were made crimes. And those laws were new, relatively.

In earlier times, there was a different environment and different culture. Roosevelt and Lincoln, as they considered the fear and responsibility of their office and contemplated their acts and the level of aggressiveness, asked themselves: would democracy support this? And then they did all they could to ensure that support.

Now, with the crimes created in the 1970s, this Presidency asked itself – will we be prosecuted? Are we committing a crime? Will we be indicted when we travel abroad? Could an independent counsel investigate? So they asked for lots of opinions and feared the law. They got legal interpretations on often vague criminal law.

The 9/11 commission noted that our government was too risk adverse. That was one of the criticisms – that the lawyers at the C.I.A. were too restrictive and cautious. We need to be aggressive but not cross the line. The problem is that often that line isn’t clear, and when in a stance of assertiveness, moving toward that line, the odds and fear of crossing it is real.

Also, of important note – one of the central reasons why the laws were unclear and legal interpretation difficult is that that they were written for engagement with or fighting again state actors. In post-9/11, often the opposing force is a non-state actor. Al Qaeda is a non-state actor. So figuring out how laws from the 1970s, written with a different type of enemy in mind, challenged the administration and lawyers alike.

So that tension of fear of law and fear of terror will not go away. The central message of his book is that this particular tension is a problem.

The mistakes of this particular administration take two or three forms.

1. They declined to go to Congress to make the laws clearer, more appropriate to non-state actors, updated to the new environment. This omission is especially remarkable because the Congress was controlled by the same party as the Presidency. They resisted doing so, in his view, because they worried that going to Congress would tie their hands. Didn’t want to ask and be told no, so better not to ask. Goldsmith believes this is a misplace notion of power. Such a stance avoids short term pain, but the lack of engagement with Congress cheated the administration of education and the ability to learn from their mistakes.
2. They were too secretive. Not with the public, but with the relevant Congressional parties. They did not benefit from the input of the pertinent Committees of Congress. This is bad because there is no critical feedback and the process of making decisions and judgement calls becomes insular. Democracies are powerful because there are mechanisms to learn from mistakes and chances to change course. This administration chose not to be secret, not to defend policies, and in doing so took away needlessly from legitimacy.
3. They failed to engage politics. Politics is not a dirty word. Politics is a way of avoiding mistakes. Roosevelt understood three things clearly were necessary as the Presidency pushed up toward the edge of the line. He understood, and acted as though he understood, the importance of
1. trust and credibility
2. congress on board
3. consensus building

Notes on the Q& A period to follow.

A Call for a NEW Constitutional Convention

Yesterday on The Diane Rehm Show, Diane discussed with Larry Sabato his new book, A More Perfect Constitution. Sabato is a political scientist at the University of Virginia and he runs the Center for Politics there.

He is proposing a new Constitutional Convention and notes that Article 5 offers two ways to change the US Constitution - only one has every been used (amendments). The other is to call a convention.

Article V:
"or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress."

I was so fascinated by his proposals. They include increasing the representation in Congress. The House to 1000(#5) ; the Senate to 136, DC would get one, the largest states would get more (#1). Put term limits on the Supreme Court at 15 years (#13) and up the number of Justices to 12 (#15). Fix the War Powers Act and put more power in the Congress as the Framers intended (#10). One six year term for President, with an option 2 year extension - up or down vote on the extension (#9). Add balance budget amendment (#7) as well as the line item veto (#11) and campaign finance reform - public funding for all House and Senate races (#20).

He also suggests helpful remedies to the election process besides public campaign financing. Changes to the state primary dates (involving half time at the Rose Bowl) as well as the Electoral College.

His full 23 proposals can be read here.

Intrigued I skipped the why, when, and how these changes would be implemented and jumped to the renovations to the Capitol building to accommodate all the extra chairs in the House chamber and the desks in the Senate chamber. This morning I thought of the House and Senate office buildings and where would the additional offices go and of all the streets that have been, to me insanely, cut off - security. We could just get rid of those streets all together and build bunkers!

You can listen to the 45 minute interview here. Many of the callers were skeptical and pessimistic. How can you not be in this age? But Sabato countered by citing the young people he's taught over the last 30 years. (people of my generation). He suggested with our generation there is hope because of the intelligence and will power of people my age and younger. Maybe the atrocities of the Bush presidency will motivate and stimulate such a change, or at least a discussion.

If I could have, I'd have gone to the free and open symposium hosted byBob Schieffer of CBS news at the Mellon Auditorium on Constitution Avenue (!) The goal is "to spur a grand, national discussion on the Constitution of the United States and whether the cornerstone of our republic could or should be a means of revitalizing civic and political engagement in America, curtailing apathy and renewing confidence in American politics and government."

A worthwhile, lofty aspiration. Check out these supporters.

What do you think?