State's Secret Privilege Rejected

Great news! The Ninth Circuit Court of Appeals, in a unanimous decision, reversed a lower court ruling that dismissed a lawsuit brought against Jeppson, Inc., (a subsidiary of Boeing). The lawsuit was brought by five individuals who alleged that Jeppson acted tortuously when it flew these men (who were in the CIA's custody) to prisons outside the United States as a part of the "extraordinary renditions" program. The men claim they were tortured and that Jeppson knew, or should have known, that the CIA was rendering these men so that they could be tortured.

The court explained that there are two versions of the state secrets privilege. The Totten version and the Reynolds version.

The Totten version precludes suit when the subject matter of the suit is a secret agreement with the government and the Plaintiff is a party to that agreement. The basic idea is that, if I make a secret agreement with the government(to be its spy) and the government refuses to pay me pursuant to the agreement, I cannot sue the government. This is because: (1) the agreement between a spy and the government is a state secret, given that the Parties to the agreement contractually expected that neither party would ever reveal the relationship; and (2) the very existence of the suit exposes the secret.

The Reynolds version is an evidentiary privilege allowing the government to withhold evidence, provided that it can convince a court (which is supposed to be deferential) that the introduction of the evidence would harm national security.

In the Jeppson case, our government attempted expand the Totten rule to cover any matter the executive considered to be a state secret. It attempted to convince the Ninth Circuit Court of Appeals that the Totten Court's decision stood for the proposition that litigation, "the very subject matter" of which is a state secret, cannot proceed. It then argued that under our constitution, the executive is the sole determiner of what constitutes a state secret.

The Ninth Circuit Court rejected that interpretation. The Court explained that in making that "subject matter" remark (in a later case), the Supreme Court was merely acknowledging that the subject matter of a case (e.g., a spying agreement where the parties had contractual expectation that the "lips of the other party would remain forever sealed") can render a case unlitigatable because the very existence of the suit reveals the secret.

However, the Supreme Court was not saying that any case involving secret government activities, or any case involving information that the government wants to keep secret, is unlitigatable. In such cases, litigation is permitted, subject to the executive's legitimate invocation of the evidentiary privilege. Were this not so, and were the Totten rule to apply to all secret governmental conduct, the government agency could effectively exempt itself from the requirements and restraints of the law (via judicial scrutiny) by declaring its activities "state secrets."

The point to keep in mind is that a government-spy relationship is necessarily a state secret - an exposed spy cannot effectively spy. Wiretapping without warrants and torture are not inherently secret activities. They are merely activities that the government wants to keep secret.

The Court acknowledged that the executive has an important constitutional interest in protecting secrets pertaining to national security. But it pointed out that the Courts have an equally strong (and perhaps more fundamental) constitutional interest in protecting the rights of individuals against government misconduct. The Court explained that the governments' proposed expansion of the Totten rule placed these interests within a zero sum game where the executive's interests are fully accommodated while the Courts' interests are completely sacrificed.

To the contrary, the Reynolds version of the privilege accomodates both constitutional interests, albeit incompletely. Under the Reynolds version of the privilege, the executive cannot simply refuse to litigate - which would be the best way to protect its information. It must instead convince a court that the evidence sought to be discovered or introduced at trial would harm national security. This allows the Court to pursue its interest in protecting the rights of individuals against governmental misconduct up to the point where doing so would harm everyone.

The Ninth Circuit Court also explained that "evidence" is a more limited concept than "information," and the mere fact that a plaintiff's allegations involve classified information does not preclude a suit. The privilege applies to specific pieces of evidence, not to facts or allegations that the privileged evidence purportedly proves. That this is correct is evidenced by the fact that our privilege against self incrimination does not preclude the government from proving our guilt with non privileged evidence.

The Court also explained that United States intervened and filed its Motion to Dismiss at a very early stage in the litigation, before the Defendant had answered the complaint and before any discovery requests had been made. The Court explained that the lower court could not have found that there was no possible way for the Plaintiffs to prove their case until it reviewed the government's assertions of privilege regarding specific pieces of evidence requested. And since the complaint alleged facts supporting legitimate causes of action (i.e., it was a "well pleaded" complaint), the case should move forward to discovery.

This decision is relative short, and I highly recommend it because the Court also articulated very clearly the importance of not allowing the executive to immunize all of its actions from judicial scrutiny. Its easily understandable by a non-lawyer.

Joe H.

From Projecting to Prosecuting - UPDATE I, UPDATE II

Today, Greenwald made an astute point:

Bush-defending opponents of investigations and prosecutions think they've discovered a trump card: the claim that Democratic leaders such as Nancy Pelosi, Jay Rockefeller and Jane Harman were briefed on the torture programs and assented to them. The core assumption here -- shared by most establishment pundits -- is that the call for criminal investigations is nothing more than a partisan-driven desire to harm Republicans and Bush officials ("retribution"), and if they can show that some Democratic officials might be swept up in the inquiry, then, they assume, that will motivate investigation proponents to think twice.

Those who make that argument are clearly projecting. They view everything in partisan and political terms -- it's why virtually all media discussions are about what David Gregory calls "the politics of the torture debate" rather than the substantive issues surrounding these serious crimes -- and they are thus incapable of understanding that not everyone is burdened by the same sad affliction that plagues them.

I think that is exactly right. People who see everything through a leftist or rightist worldview can't imagine that those calling for torture prosecutions can have good motives. They literally can't imagine it. Here's a blogger who personifies this trait.

Let me be crystal clear. I don't want Bush administration officials prosecuted because they are conservatives and I'm a liberal. I want them prosecuted because they and I are Americans and our law rightly requires their prosecution. I want them prosecuted because our failure to prosecute them will set a precedent that practically guarantees that torture will become our official policy sometime in the future. I want them prosecuted because it is illegal for the justice department not to prosecute them. I want them prosecuted because our refusal to prosecute tells the rest of the world that we don't care about our international obligations, and that any agreement they may have with us is worthless if we come to believe that keeping our promises is inconvenient.

Perhaps most of all, I want them prosecuted because their actions were monsterous and their legal machinations, including their misuse of the Office of Legal Counsel, seriously compromised our constitutional order. I also want them prosecuted because they repeatedly and effortlessly lied about what they were doing for years and years.


Call me crazy (my blogger friend called us "feces flinging gorillas" and "insane," which is just as good), but those seem like pretty good reasons to me. Moreover, let me say for the record that any Democrat, liberal, socialist, etc., who had anything to do with authorizing American torture should be prosecuted with equal vigor.

And to leave no doubt - I hereby call for the prosecution of the King of Morocco

Joe H.

UPDATE I

This challenge is a slightly modified version of an argument Andrew Sullivan made on his blog. I'm sure he won't mind me repeating it.

Suppose you were captured by an enemy, thrown into a dark and windowless cell, strung from the ceiling by shackles for many hours at a time, kept awake for weeks on end, thrown headlong against a plywood wall for thirty times and waterboarded 183 times in one month (six times a day, each and every day).

Could you emerge from that ordeal and say, with a straight face, "I wasn't tortured!"

If not, don't ever tell me that the Bush administration didn't torture and commit war crimes.

UPDATE II

Well, what do you know. It turns out that we EXECUTED Japanese soldiers after World War II for waterboarding.

The Quintessential Conservative on Torture

Never let it be said that only "liberals" want to see torture prosecuted.

MESSAGE TO THE SENATE, MAY 20, 1988.sup.1

With a view to receiving the advice and consent of the Senate to ratification, subject to certain reservations, understandings, and declarations, I transmit herewith the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Convention was adopted by unanimous agreement of the United Nations General Assembly on December 10, 1984, and entered into force on June 26, 1987. The United States signed it on April 18, 1988. I also transmit, for the information of the Senate, the report of the Department of State on the Convention.

The United States participated actively and effectively in the negotiation of the Convention. It marks a significant step in the development during this century of international measures against torture and other inhuman treatment or punishment. Ratification of the Convention by the United States will clearly express United States opposition to torture, an abhorrent practice unfortunately still prevalent in the world today.

The core provisions of the Convention establish a regime for international cooperation in the criminal prosecution of torturers relying on so-called "universal jurisdiction." Each State Party is required either to prosecute torturers who are found in its territory or to extradite them to other countries for prosecution.

In view of the large number of States concerned, it was not possible to negotiate a treaty that was acceptable to the United States in all respects. Accordingly, certain reservations, understandings, and declarations have been drafted, which are discussed in the report of the Department of State. With the inclusion of these reservations, understandings, and declarations, I believe there are no constitutional or other legal obstacles to United States ratification, The recommended legislation necessary to implement the Convention will be submitted to the Congress separately.

. . . .

By giving its advice and consent to ratification of this Convention, the Senate of the United States will demonstrate unequivocally our desire to bring an end to the abhorrent practice of torture.

RONALD REAGAN

Rational Argument vs. Ridicule - No contest

On the issue of whether the Bush administration's actions amounted to torture, "rational" discussion (unfortunately) seems to allow those in favor of what our CIA did to maintain their cognitive and moral bearings. Not that it should. The arguments offered in defense of American torture clearly fail. However, its not too difficult to set up a low epistemological threshold for propositions that we want to believe, and a high epistemological threshold for propositions that we don't want to believe.

If I want to accept a proposition like "American officials did not torture the detainees pursuant to orders from our highest elected officials," I'll probably ask myself "can I believe that?" I'll be wondering, even if I don't realize it, "is there any conceivable way to interpret the available evidence so that it will allow me to infer that the proposition is true? And, because there is almost always some way to interpret the evidence to render one's favored belief plausible, one can almost always continue to believe whatever one wants to believe irrespective of the evidence.

Similarly, If I want to reject a proposition like, "American officials tortured detainees pursuant to orders from our highest elected officials," I'll probably ask myself "Do I have to believe that?" In effect, I'll be asking myself,"is the evidence so airtight and unassailable that there is no conceivable way to avoid the stated conclusion?" And again, because the evidence is rarely so airtight that a disliked conclusion cannot be avoided, one can almost always refuse to believe whatever one doesn't want to believe irrespective of the evidence

It would great if everyone constantly asked themselves, "what should I believe, given the evidence that is before me?" But alas . . . partisanship has gripped many like a fever.

That's why rational argument and evidence has so little effect on those who've drank the kool-aid.


Fortunately, this clip by John Stuart really cuts through the crap!

Joe H.

Specific Intent - Good faith Belief UPDATE - S&M vs. Rape

This article explains how the OLC lawyers drafted the torture memos in the style a "tax reliance scam."

Very interesting, especially if you are a lawyer.

Joe H.

UPDATE

Also, This article debunks the argument that what we did to our detainees is okay because we do the same thing to our own soldiers during their SERE training. The "Rape verses S&M" analogy is particularly apt.



http://www.slate.com/blogs/blogs/humannature/

Stand By Me!

This song performance was pretty cool.

Joe H.

Obama's Motives? And Three Cheers for the ACLU!

After giving the matter some additional thought, I'm still not convinced that Obama is a hero for releasing these documents.

The release of the Torture Memos was not an entirely voluntary act on the part of the Obama administration. The decision was prompted by a Freedom of Information Act lawsuit filed by the ACLU. The Court imposed a deadline for the Obama administration to respond to the ACLU's request for the documents. Had the Obama Administration refused to make the documents public, the lawsuit would have been litigated and the government would had had to defend its refusal to turn over the documents in open court.

I suspect that the prospect of having to defend a refusal to release the documents in open court weighed heavily on Obama's decision to release them voluntarily. These were, after all, legal memoranda stating the executive branch's interpretation of US law - and an interpretation that was no longer in force to boot. The memos contained no intelligence data or sensitive information. What possible defense could the Obama administration have offered the court to justify its decision to keep that information secret?

It is also worth emphasising that it was the ACLU that did the heavy lifting for the nation. Its not clear that those memos ever would have seen the light of day had the ACLU not challenged the government on our behalf. We should all be grateful. I'm going to make a donation immediately.

Joe H.

On Prosecuting Torture . . . My Sentiments Exactly

This is a very good summary argument explaining why it is imperative that we punish torture and the officials who ordered it, and what it says about the American people if we follow Obama's lead and "look to the future."

And this piece, by Andrew Sullivan, is a must read for anyone who cares about the character of our democracy.





Joe H.

Convention on Torture

I thought I'd provide a copy of the Convention Against Torture (see below), of which the U.S. is a signatory - President Reagan signed the treaty in 1988 - and which was ratified as a Treaty by the United States' Senate in 1994. I'm just providing Part I. The other parts are organizational.

If you read the treaty, you'll see pretty quickly that U.S. officials have no prosecutorial discretion when credible evidence of torture is presented to them. Prosecustion is mandatory (See the term "shall"). You'll also notice that the "National security" and "I was just following orders" arguments are specifically precluded as defenses to torture.

To the extent Obama (or Attorney General Eirc Holder) refuse to investigate and/or prosecute Bush administration officials and CIA officers for torture, they are acting illegally.

I understand the politics and the practical concerns behind Obama's announcment that the CIA officers who performed the interrogations will not be prosecuted, but even if we collectively acknowledge that non-prosecution of these individuals is wise, we should never lose sight of the fact that it is illegal.

Joe H.

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

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 39/46, [annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987.


The States Parties to this Convention,

Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Recognizing that those rights derive from the inherent dignity of the human person,

Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,

Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment,

Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975,

Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,

Have agreed as follows:


PART I

Article I

1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3

1. No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 5

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

(c) When the victim is a national of that State if that State considers it appropriate.

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Article 6

1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts.

3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.

Article 7

1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

Article 8

1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another. State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.

4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.

Article 9

1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.

2. States Parties shall carry out their obligations under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

Article 10

1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.

Article 11

Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.

Article 12

Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.

Article 13

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

Article 14

1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

Article 15

Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.

Article 16

1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment.

2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.

One Step Backward, Two Steps Forward! Obama Does the Right Thing

So, Obama released the torture memos, unredacted.

On the one hand, I'm impressed. I'm sure that Obama faced enormous pressure from senior intelligence officials to redact information about the specific techniques authorized by the memoranda. In refusing to to so, Obama closed the loop of accountability around Bush administration officials. We'll undoubtedly learn that the specific techniques authorized by the Bush Administration match the interrogation actions taken by CIA officials, as these are described in the confidential report by the International Red Cross.

Then we'll have game, set, and match. There will be no remaining doubt that we were governed by war criminals. The only question will be, what do we do about it?

On the other hand, the fact that I'm inclined to praise President Obama for these actions tells me that our political system is seriously damaged. First, to pacify our own CIA, Obama had to promise not to prosecute the men and women who carried out the torture. That decision is ILLEGAL under the Convention on Torture. The U.S. has no prosecutorial discretion not to investigate and prosecute when there is credible evidence of torture. Moreover, the excuse that a person was acting on orders given by higher officials is expressly precluded as a defense to prosecution under the convention.

Second, the mere fact that there was even a question as to whether Obama should and/or would release these memos is astonishing. Those documents did not contain intelligence information or other legitimately classified materials. They were LEGAL DETERMINATIONS by the Office of legal Counsel specifying what our law allowed. They were, in effect, SECRET LAWS. Allowing the executive branch of our government to operate under secret laws that it creates for itself is about as undemocratic and tyrannical an arrangement as there can be.

Third, in a healthy democracy, the citizens would have demanded the memos. I suppose that, by electing Obama, the citizens kind of did so (in an indirect way). But I'm pretty sure that most of our citizens would either have been delighted that Obama redacted the technique information ( e.g. the hard core 30% who supported Bush to the bitter end), or have accepted it out of a deep trust in Obama. That fact really scares the hell out of me!

Fourth, I am very disappointed that Obama continues to argue that we should "look forward and not backward." Aside from the absurdity of refusing to prosecute because the crimes occurred in the past, our honor and decency as a nation are at stake. Bush administration officials tortured in our name, and on our behalf. We elected and relected them. Are we now going to tell the world that protecting our criminal leaders is more important than honoring our commitments to other nations, particularly when the commitments implicate basic human decency?

God I hope not.

This doesn't excuse Obama's position on the State Secrets privilege, but it is an important step in the right direction.

Joe H

Obama, Secrecy and the Rule of Law - UPDATE

For those of you who think I'm being too hard on Obama, here's what Obama said while speaking from Senate floor on January 28, 2008. He's speaking in opposition to the retroactive immunity bill that eventually passed in last year's FISA bill, but his alleged beliefs on secrecy and the rule of law couldn't have been more clear.

Let's go to the tape.

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

I strongly oppose retroactive immunity in the FISA bill.

Ever since 9/11, this Administration has put forward a false choice between the liberties we cherish and the security we demand.

The FISA court works. The separation of power works. We can trace, track down and take out terrorists while ensuring that our actions are subject to vigorous oversight, and do not undermine the very laws and freedom that we are fighting to defend.

No one should get a free pass to violate the basic civil liberties of the American people - not the President of the United States, and not the telecommunications companies that fell in line with his warrantless surveillance program. We have to make clear the lines that cannot be crossed.

That is why I am co-sponsoring Senator Dodd's amendment to remove the immunity provision. Secrecy must not trump accountability. We must show our citizens – and set an example to the world – that laws cannot be ignored when it is inconvenient.

A grassroots movement of Americans has pushed this issue to the forefront. You have come together across this country. You have called upon our leaders to adhere to the Constitution. You have sent a message to the halls of power that the American people will not permit the abuse of power – and demanded that we reclaim our core values by restoring the rule of law.

It's time for Washington to hear your voices, and to act. I share your commitment to this cause, and will stand with you in the fights to come. And when I am President, the American people will once again be able to trust that their government will stand for justice, and will defend the liberties that we hold so dear as vigorously as we defend our security.

UPDATE

Tomorrow is the Court appointed dealine for the Obama administration to release the remaining "torture memos." It is very likely that these memoranda will contain highly damning information About what CIA officials did to detainees, with authorization from our highest government officials. The Obama administration could redact the specific techniques by claiming (somehow) that revealing them would compromise national security. Of course, that would be complete and utter nonsense, given the fact that none of these techniques are allowed at present or are planned for the future. The only thing it would accomplish is to protect war criminals from shame - Obama has no intention of prosecuting anyone as far as I can tell.

As Andrew Sullivan eloquently put it, tomorrow is Obama's moment of truth. If he covers up for Bush, he lost my support for ever.

Joe H.

Response to Jim

This post is a response to Jim’s comments to my previous post, which I have posted below:

Joe -

Is it possible that, once Obama and his cabinet got to their posts, they discovered that there either:

1. Was indeed material that needed to be hidden for the good of the country? Or, that...

2. The nature of what the Bush administration had done was not as bad as they thought from the outside?

Trying to be charitable to the big O.

Jim


Jim,

If 2 is true, there is no reason to continue to invoke "state secrets" or maintain the right to detain terrorist suspects indefinitely without due (or any) process. Obama repeatedly denounced these practices as a candidate. He called them tyrannical and un-American. And he was right to do so.

Obama's embrace of these practices now, at a minimum, needs a public explanation. If he was secretly planning to defend these practices all along while denouncing them as a candidate, then he is an untrustworthy liar. If he is worried about the political difficulties of our coming to terms with what the Bush administration did in our name, then he's not the leader I thought he was. And if Obama is worried that the CIA and/or other intelligence agancies will revolt and expose the nation to harm, then he is admitting that these agencies have become internal threats to our democracy and need to be dismantled.

With regards to point 1, the basic material facts are already public knowledge in most of these lawsuits.

In the telecom lawsuit, the only relevant facts are that the U.S. government intercepted the electronic communications of specific U.S. citizens without obtaining judicially issued warrants. The dispute in the case concerns "standing," or the plaintiffs' ability to prove that their personal communications were intercepted without warrants. This is usually impossible (because the government classifies information regarding whom it illegaly spies on without warrants). But in this case, the government accidentally sent a document to the Plaintiffs proving that they (and their attorneys) were the targets of warrant less wiretapping.

Thus, the only relevant facts needed to prove that the Bush administration committed felonies have already been judicially established. Yet the government argues that these facts are "state secrets" which preclude litigation. The Government even tried to retrieve the document that it sent to the Plaintiffs from the federal judge - the FBI actually came to the federal court and demanded the document! The judge refused and the FBI backed down.

In short, the Obama DOJ, following the Bush DOJ, is arguing that the warrantless wiretapping of particular individuals is a state secret, even though the fact of it is already a matter of the public and judicial record.

What's more, the Obama administration went way beyond the Bush administration's "state secrets" argument (which was itself an abuse of a historically narrow evidentiary privilege). The Obama DOJ argued that the government is completely immune from lawsuits over warrantless wiretapping, as the sovereign, provided that it does not disclose the information it obtained when it spied.

The Fourth Amendment and federal law? Poof! The Obama DOJ's position is that there is no judicial remedy to enforce the Fourth Amendment or federal anti-spying statutes against the government - even though the sole purpose of the Fourth Amendment and these statutes are to restrain the government!

These radical arguments have only one goal; preventing a judicial ruling on the illegality of what the Bush administration did. There is no other explanation. Obama is complicit in President Bush's criminality by covering it up.

The same reasoning applies to the torture lawsuit. Obama's DOJ continued the Bush administration's assertion of the “state secrets” privilege, even though all of the material facts of the case are public knowledge. The CIA used a particular air service provider - the defendant - to transport a suspected terrorist overseas, where he was tortured. None of these facts are disputed. They are part of the public record.

Yet the Obama administration continues to insist that these facts are “state secrets” that preclude litigation. Regarding this absurd legal position, Plaintiff’s counsel put it best when he noted, "it appears that the only place on earth where these facts cannot be discussed is inside this courtroom."

The “state secrets” privilege was, as Greenwald aptly noted, "the linchpin of the Bush administration's radicalism and criminality." It kept them out of court, where their actions and legal rationales would have received scrutiny. But in cases where the requisite facts are already public knowledge, the only explanation for its continued invocation by the Obama DOJ is to prevent a judicial ruling on the government's actions. It is to protect the Bush administration from legal accountability for its torture and warrant less wire tapping programs.

This is inexcusable. I didn't vote for Obama so that he could hide governmental criminality. And I won't (silently) stand for it.


Joe H.

Obama the Tryant?

BTW, I will be returning to the constitutional interpretation argument shortly. I was hoping to get back to the argument this weekend, but was distracted by the Master's golf tournament, and by President Obama's shocking adoption of Bush Administration positions on the State Secrets privilege, the denial of Habeus Corpus rights for U.S. detainees abducted around the world and flown to Afghanistan, and other matters (which I hope to write about soon - but which you can get a full update on at Glen Greenwald's blog at Salon.com). Go back through Glen's posts last week here and here and here and here.

Obama's justice department's positions are shocking - and Obama is clearly a liar. The positions Obama has taken are completely contrary to the positions he repeatedly and emphatically articulated during his campaign for the presidency. Greenwald documents this meticulously. Unbelievable!

I've completely lost my Obama love. And I'm somewhat in shock. Most of the poeple Obama nominated to the highest positions in the Justice Department, including the Office of Legal Counsel, were vehement critics of exactly these same policies - for years and years!

I'm completely at a loss. Either they are hiding massive criminality on the part of the Bush administration (which they mistakenly believe the country cannot bear to learn about) or they are simply liars that need to be removed from power.

Seriously - I am truly shocked.

I believed.

Joe H.

Love the Sinner . . .

The reason I go to such trouble to circulate these kinds of of articles is I think it is important to expose the "love the sinner . . . hate the sin" rhetoric for what it is - guilt assuaging nonsense.

Anti-gay rights activists - and Christian social conservatives in particular - need to come clean. They don't like gays - period!

Joe H.

Why Women Stay in Abusive Relationships

I stumbled upon this article while surfing the blogs this morning. After reading it, I have a much better understanding of why women stay in physically abusive relationships.

Highly recommended.

Joe

And there goes Vermont - and D.C. - UPDATED

Vermont comes out of the closet, along with Washington D.C.

By the way, for those of you who are interested in reading arguments, this link will take you to an interesting discussion of the issue. But be warned, the Christian anti-gay marriage proponent does not, in my opinion, fare well.

That's not his fault - the arguments are against him. I think that's something we all need to get used to.

Joe H.

UPDATE:

The most interesting thing about this new legal momentum is that Gay marriage now seems quaintly normal. Two thirds of Vermont's legislature voted to override their Governor's veto and extend marriage to Gay people. Two thirds of both houses of Vermont's legislature, which are presumably representative of Vermont's citizenry, have gotten past their culturally cultivated and deeply ingrained "ick" responses to do the right thing.

Remarkable!

Additionally, although I'm not the first person to say this, the heavy lifting needed to make gay marriage seem normal was performed by none other than the fiercest opponents of gay marriage. Over the last ten years, religious conservatives were the activists constantly riding their horses through the countryside shouting "Gay marriage is coming, Gay marriage is coming." The issue was their biggest fundraiser and electoral stimulant. They couldn't stop talking about it.

And look what their efforts have wrought. They warned us about Gay marriage so much that people got used to the idea. They made Gay marriage seem normal - it became something you heard about everyday. No amount of logical argument could ever have accomplished that feat.

What a delicious irony!

Anyway, Kudos's to religious conservatives everywhere for all your heavy lifting during the last decade. You made this possible. And don't be too upset with yourself. In twenty years or so you'll look back at your actions and think, "I acted out of ignorance and religious zeal, but God used it for good."

Joe H

Iowa Legalizes Same Sex Marriage.

I just finished reviewing the Iowa Supreme Court's decision legalizing same sex marriage. I highly encourage everyone to read it in its entirety. It is remarkably well written (very accessible to non lawyers), provides a very useful summary of the way American government is structured(at both the state and federal level), and provides an extremely lucid and systematic defense of its decision, based on the the "equal protection" clause of Iowa's constitution.

Of particular interest to us, based on what we're currently discussing, was the Court's citation to a famous U.S. Supreme Court decision in which the Court noted:

"Times can blind us to certain truths and later generations can
see that laws once thought necessary and proper serve only to
oppress" and that "as our constitution endures, persons in every generation can invoke its principles in their own search for greater freedom and equality." Lawrence v. Texas, 539 U.S. 538,578-579 (2003).

And its citation to a previous Iowa Supreme Court decision noting:

"Our constitution is not merely tied to tradition, but recognizes the changing nature of society." Callendar v. Skiles, 591 N.W.2d 182, 190 (Iowa 1999).

The view expressed in these citations is the view held by those who claim that we have a "living constitution." It is best understood, in my opinion, as the view that the dennotation of the concept "equal protection" can change over time, based on the insights of subsequent generations, while the connotation of "equal protection" remains unchanged, and future generations can invoke it in their search for greater freedom and equality.

I'll get to all of this soon, but this Iowa case, in addition to striking a blow for justice, provides you with a taste of the next installment of my argument.

Joe H.

Let's do Some Philosophy Boys and Girls - Constitutional Interpretation 101

To increase readership, I thought I'd go back to my intellectual roots. Hang on boys and girls. Kant's right around the corner.

No, just kidding. its Rorty! Aaaaahhhh!

BTW, the "increased readership" comment is a joke - I'm not delusional. Many of my students refused to read philosophy when they were being graded on it.

At any rate . . .

Conservatives have long made fun of the idea that the United States has a "living constitution" in the sense that the document's "meaning" changes over time. This will be the first post of a two or three post series defending the claim that we have just such a living constitution. In this post I will describe the ways in which the meaning of concepts, terms, statements, and even imperatives, change over time. In an upcoming post, I'll argue that the claim that we have a living constitution fits perfectly with the way language changes over time. In the third post, I'll deal with loose ends and criticisms of my theory.

1. Concept Evolution: Connotation and Denotation

Logicians typically distinguish between the “connotation” and the “denotation” of a concept. By “connotation,” logicians mean the set of ideas that constitute the heart of a concept, or that capture its essence. By “denotation” logicians mean the set of things constituting all the qualifying instances of a concept. Consider the following examples. The connotation of the concept “even number” is “a whole number divisible into two equal whole numbers.” The denotation of “even number” is the set “2, 4, 6, 8 . . .” The connotation of “odd number” is “a whole number not divisible into two equal whole numbers.” The denotation of “odd number” is “1, 3, 5, 7 . . .”

Because mathematics is a precise and relatively fixed language, a language unaffected by developments in human knowledge, achievement and culture, its terms and concepts are entirely stable. Neither the connotation nor the denotation of “even number” or “square root” will ever change. But this is not the case with non-mathematical concepts. The vast majority of non-mathematical concepts evolve in response to changes in human understanding and circumstance. Changes occur in both the connotations and denotations of concepts expressed via spoken language, even when the words expressing the concepts remain unaltered.

There are, for example, a variety of “open” concepts whose boundaries are inherently fluid. With these concepts, we see regular change both in their connotations and denotations. Concepts like “happiness,” “success,” and “acting morally,” evolve both in terms of their core meanings and regarding the sorts of dispositions or actions that people count as qualifying instances. At one point, or for some people, “being moral” will connote “obeying God.” But at a later point, or for different people, “being moral” will connote “respecting other people’s rights.” And even within a unified and stable connotation of “being moral,” denotation changes will occur when we change our minds about what God commands, or what rights other people actually have.

However, most concepts are more closed than the inherently fluid examples I just mentioned. By “closed” I mean that they are more stable and precisely defined. Because of this, we mainly encounter change in the denotations of concepts. Technological, intellectual, and social progress frequently forces us to alter our understanding of a concept’s denotation without requiring any corresponding change in its connotation.

Consider, for example, the concept identified by the term “skyscraper.” The connotation of “skyscraper” is something like “an unusually tall building.” That connotation has changed little, if any, since the term was first coined. But advances in human engineering have changed the denotation of “skyscraper” dramatically. Whereas an eight-story building qualified as a “skyscraper” once upon a time, the vastly taller buildings of modern cities have driven small buildings entirely out of the concept’s denotation. By this I mean that most people no longer consider eight-story buildings skyscrapers. Nor do they think of eight-story buildings when they hear the term “skyscraper.”

There are numerous examples of such “denotation only” change as it occurs in concepts governing various areas of human life. Terms like “chic,” “reasonable,” “educated,” “masculine,” and “mid-life,” all identify concepts where changes in human circumstance alter a concept’s denotation, while leaving its connotation entirely in tack. Ordinarily, denotation change is a sub-conscious process that few notice as it occurs, and few object to after the fact. But even when denotation change is conscious and deliberate, we frequently welcome it because the updates allow us to more effectively realize our goals.

For example, when new information forces nutritionists to revise their recommendations for maintaining a “healthy diet,” we welcome the denotation adjustment. A “healthy diet” continues to connote “the regular intake of foods contributing to physical health and long life,” and this connotation stability keeps language usable for thought and communication. But the denotation shift provides us with a more accurate understanding of what a “healthy diet” involves, and this renders our application of the concept more effective. That is, it allows us to eat more healthily.

2. Connotation, Denotation, and Textual Interpretation.

The first thing to notice regarding concept evolution and textual interpretation is that connotation shifts are earth shaking in comparison to denotation shifts. It’s one thing to grasp that the concept “healthy diet” no longer denotes the consumption of a particular type or amount of food. It would be quite another thing to be told that “healthy diet” no longer referred to “the regular intake of foods contributing to physical health and long life,” but instead referred to an entirely new set of ideas. Denotation change usually affects only the outer boundaries of a concept. Connotation change, to the contrary, modifies a concept’s essence. This means that connotation change is a far more radical type of meaning change and, for this reason, usually provokes significant interpretive resistance.

The second thing to notice is that the question “What does that term, (or concept, or statement) mean?” requires additional clarification. This is because “mean” in the question “What does that term (or concept, or statement) mean?” can refer to a concept’s connotation only, its denotation only, or both.

Consider the biblical admonition to “love your neighbor as yourself.” A person asking “what does that passage mean?” may alternatively be expressing:

1. Uncertainty about the concept of “love,” in so far as love can be commanded (i.e., uncertainty regarding the connotation of love);

2. Uncertainty about what “love” requires in terms of their actual conduct towards others (i.e., uncertainty regarding the denotation of love);

3. Uncertainty about whether “neighbor” is to be understood relationally, or geographically, or more broadly so as to encompass community members in general (i.e., uncertainty regarding the connotation of "neighbor");

4. Uncertainty about whether a particular person counts as a “neighbor,” even when the criterion for “neighbor” is specified (i.e., uncertainty about the denotation of neighbor).

Such a person may also be confused about:

5. Any combination of these connotation and denotation issues.

Moreover, there are other possible uses of the term “mean” in “What does this term (or concept, or statement) mean?” For example, when a client posses this question regarding the terms of a contract they have entered, they are asking me about the effects of contract terms on their future business activities, e.g. "what does this mean in terms of what I have to do." “Payable on Demand” neither connotes nor denotes asset liquidation, but it may imply this in a particular circumstance. For this reason, this and other uses of the term “mean” must be included in any comprehensive account of textual interpretation. However, because the point of this series of posts is to argue for the legitimacy of a particular interpretive posture regarding constitutional language, I will leave these and other complexities out of the analysis.

Had enough for now! Okay. Tomorrow (or so) we'll apply this to our understanding of the constitution.

Joe H.