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Tuesday, 27 April 2004

The Bush Presidency and Power:
The Guantanamo Cases, the Cheney Case, and the 9/11 Hearings
Thursday, Apr. 22, 2004

There was a time--now ancient history--when the Republican party swept into power on a platform of limited federal government. But that was before they gained control in the White House and the Congress.

Over the past few years, the Bush Administration has aggressively pushed the limits of its executive authority. But that is a statement of fact, not a conclusion about the constitutionality of those actions.

Now, the Administration's forceful tactics are being challenged and reviewed on several fronts -- a sign that the U.S. Constitution is alive and well. In two high-profile Supreme Court cases, the Supreme Court will decide whether or not actions taken have been constitutional, and the Administration will doubtless abide by its decision.

Meanwhile, Administration actions are also being assessed by a different type of review board--the 9/11 Commission. There, the Administration is having to defend its decisions immediately preceding and following 9/11 -- with probing questions raised about its views of Saddam Hussein, and the necessity of going to war with Iraq.

The Guantanamo Bay Cases: How Broad Are Presidential War Powers?

This Tuesday, April 20, in oral argument at the Supreme Court, the Administration argued that it had the power to detain thousands of non-U.S. citizens indefinitely at its Guantanamo Bay facilities -- without recourse to judicial review of their detention. Detainees' family members had brought a lawsuit challenging this power.

The Guantanamo Bay cases--Rasul v. Bush and Al Odah v. U.S. -- implicate constitutional separation of powers issues. The question they raise is this: Just how broad is the President's power to take an emergency action in the context of waging war -- in this case, the war on terror?

The detainees' families seek judicial review of the reasons for their detention. Some detainees claim they are innocent of participating in the war of terror against the United States, and should be able to prove as much in a judicial proceeding through a habeas corpus petition. None has been charged with a crime or designated as a prisoner of war, and therefore all occupy a sort of no-man's land in the war on terror.

The Administration says that is permissible -- for this is war. It urges that the war on terror is a particularly difficult war to wage, and therefore, it argues, it must have the power to hold detainees at Guantanamo, and off American soil, without permitting them recourse to the courts, or the releases that might follow such access. (There is no debate that if the detainees were on U.S. soil, habeas corpus relief would be available.)

A prior Supreme Court case, Johnson v. Eisentrager -- which involved 21 German citizens who were held outside the United States and denied habeas corpus relief -- provides some precedent for the Administration's argument. But the parties to the case dispute whether and how it is applicable.

Oral Argument Revealed the Court Views The Guantanamo Case as Difficult

Which side will prevail?

Generally, war is an arena where the Constitution grants Presidents broad power to conduct operations, and the courts are inclined to defer to those decisions. It is a matter of institutional competence--on these issues, an Administration typically knows considerably more about national security needs than the courts.

Indeed, a number of the Justices expressed concern about what, exactly, the judiciary would, or could, do if it were to hear the detainees' habeas corpus requests. There is no precedent for the courts to do what the detainees' families request -- to review the reasons for which they were detained, to assess whether those reasons are based in fact, and then presumably to free the ones the courts find innocent.

Thus, the courts would have to build from the ground up a habeas corpus doctrine for the detainees in the context of a war on terror. In habeas corpus, federal courts typically review proceedings in a trial in a U.S. federal or state court -- not facts surrounding a detention that occurred abroad in the context of armed conflict.

Yet, the Court's questions showed that it will not reflexively defer to the Administration simply because a war is on. Thus, the oral argument made it clear that the Court believes this is no easy case.

Various members of the Court -- including Justices Ginsburg, Souter, and Breyer -- expressed concern about the extreme nature of the Administration's position -- suggesting that the Court may be uneasy about simply giving its blessing to the Administration's actions. The Administration has drawn a bright line -- broad power; no judicial review -- but Justice Scalia was the only Justice who plainly and wholeheartedly embraced that view

It is impossible to predict the outcome here with any certainty. Each side asks the Justices to make broad precedent in a legal no-man's land. The Court's been offered a rather unappetizing choice between unprecedented executive power, and unprecedented judicial review. Unsurprisingly, the oral argument showed a Court split on the issue. The Court's choice between deference and intervention will not be an easy one.

The Cheney Energy Task Force Case

Second, there is the Cheney case -- more famous now for Justice Scalia's decision not to recuse himself, than for its own facts. There, the Administration asserts that it need not hand over notes of meetings held by Vice President Cheney with energy industry higher-ups.

The Cheney case presents another separation of powers question: Can the courts force the Vice President to reveal with whom he met during meetings of his Energy Task Force?

Unlike in the Guantanamo Bay cases, however, the exercise of executive power is not being justified on national security grounds, but rather executive privilege -- the doctrine that the executive branch may shield at least some of its decisionmaking from prying eyes in order to ensure that the executive has the latitude to get the advice it needs.

Cheney was widely criticized for including only energy industry higher-ups in the meetings and excluding environmentalists. As a result, the Sierra Club and Judicial Watch sued to force Cheney to release the names and positions of those who attended the task force meetings.

In the proceedings below, U.S. District Judge Emmet Sullivan ordered Cheney to produce the notes from the task force. The appeals court affirmed that decision. But Cheney was granted Supreme Court review, and thus has yet to turn over the notes.

Now, the Supreme Court must decide whether the Vice President has an executive privilege covering the papers. The Administration has argued that, if he does not, then in the future, meetings including the Vice President will doubtless occur in a more guarded environment -- with the quality of the advice given watered down substantially due to the knowledge of later disclosure.

That is a potent argument, but not a slam-dunk. In Clinton v. Jones, the Clinton Administration argued that the President should be allowed to assert executive privilege against being hailed into state court on sexual misconduct charges. The argument was that the President should not have to be bothered with such a distraction.

But the Supreme Court, rightly in my view, held that a President is just as subject to the laws of the United States and the states as any other citizen. That is what distinguishes a President from a monarch, after all.

Some have read the opinion to eviscerate executive privileges, some have read it as a disaster for the operation of the Presidency, but it remains an open question whether it will have any affect on this case at all.

The 9/11 Hearings: Systemic Reform Will Not Be Enough

Of course, even as these momentous cases are pending at the Court, the 9/11 hearings have been scrutinizing the decisions of the Bush Administration leading up to that horrific day.

Some have argued that we should not waste our time second-guessing past decisions when so many other pressing issues exist right now. But these critics miss the fundamental need for these hearings: The need to make accountable all those who failed to deter the terrorists.

The Framers were fundamentally convinced that the key to the republican form of government they concocted was a ready supply of "virtuous" men to hold positions of power. We might today call them "heroes." But the hearings are showing that we had a dearth of heroes when it comes to 9/11.

The hearings have demonstrated, sadly, how no one saw beyond his or her bureaucratic or government window to the larger threat before the terrorists could attack. Congress did not perceive the need to fund the CIA and the FBI in ways that would make them battle-ready for the war being launched against us. The agencies did not cooperate with each other because of turf-guarding, and entrenched institutional forms. The Presidents -- both Clinton and Bush -- failed to see through the morass of information with which they are presented, to the terror forming within our own borders.

The only answer for such failures is to assign blame, reform the system, and move on. The problem with the Commission to date, though, is that it appears more focused on reforming the system, surely a good thing to do, than it is on pointing fingers and finding humans responsible for their actions.

For our Executive Branch to be trusted -- and trustworthy -- it must hold individuals personally accountable for the way they handle power. Power without accountability is tyranny. Thus, to the extent that the Commission takes a pass on naming names, it will not only disserve the U.S.'s national interests, it will also disserve our fundamental freedoms.

If this Administration carries on with the same roster after these hearings, it makes the mistake of elevating loyalty above the need for great persons to fill terribly difficult jobs. There is a crying need for this Administration to acknowledge that people run this government, and some of them were inadequate in the face of the growing terrorist threat. If the United States were a corporation, every head would have rolled after 9/11. Would that the market's discipline could be translated into the accountability necessary to make the government better than it already is.

Our Constitution so carefully balances, separates, cabins, and limits government power. In this system, it is an insult to the American People to refuse to hold those in government accountable for the carefully delimited power that it is their duty to exercise.

In the end -- though the Commission's recommendations may disappoint -- the system is working. An aggressive President is exercising what power he has in difficult times, and he is being challenged for the exercise of that power in multiple fora. The Supreme Court will draw limits, and the President will doubtless abide by them -- and those limits will be rooted in our Constitution.

Just after 9/11, in a previous column I wrote an open letter to Osama bin Laden from the United States Constitution, saying that he would have to take it on, to win the war he started. I'm happy to report that he is losing.

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Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University. Her email address is

What the Asterisks Can't Hide:
Problems with the Fourth Circuit's Opinion in the Moussaoui Case
Monday, Apr. 26, 2004

Those who like word-guessing games might enjoy the opinion that the U.S. Court of Appeals for the Fourth Circuit handed down last week in the Moussaoui case. Its text is interrupted in several dozen places with sets of asterisks -- **** -- that substitute for classified information that has been excised.

The deletions add a certain atmospherics to the opinion, reminding the reader that the case is about terrorism and national security. Zacarias Moussaoui, the defendant, is an admitted member of Al Qaeda. He was arrested in August 2001, while enrolled in flight training, having raised his instructors' suspicions by his single-minded interest in training on 747 commercial jet simulators that were ill-suited to his limited flying abilities. He now faces capital charges of conspiring in the September 11 terrorist attacks.

What has slowed down the prosecution considerably is the fact that the U.S. has arrested a number of high-level Al Qaeda operatives who, it seems likely, would offer exculpatory testimony in Moussaoui's defense. Moussaoui argues that these men can attest to the fact that he had no knowledge of the September 11 conspiracy.

The question on appeal to the Fourth Circuit was whether the defendant's Sixth Amendment right to "compulsory process for obtaining witnesses in his favor" requires the government to allow Moussaoui to put these detainees' testimony before the jury that will hear his case.

Unmentioned yet lurking in the background of the Fourth Circuit's newly-issued opinion are a couple of essential considerations. One is that if the federal case against Moussaoui falls apart, there is little doubt but that the defendant will be brought to trial before a military commission. The second is that the detainees to whom Moussaoui seeks access are being held in an extraordinary, extra-legal limbo, and neither the district court nor the Fourth Circuit has any way of monitoring their treatment.

Solomonic Justice

The Fourth Circuit's newly-issued opinion is not a clear win for Moussaoui or for the government. Issued by a divided court, as part of a complex package that includes two partially dissenting and partially concurring opinions, the opinion affirms Moussaoui's right to the detainees' testimony but also defers markedly to the government's stated security concerns.

Rather than allowing Moussaoui's lawyers to depose the detained Al Qaeda operatives via remote video hookup -- or, as would normally be the case, to question them at trial before the jury -- the Fourth Circuit has ordered the crafting of written statements that set out the testimony that the witnesses would likely have given.

In other words, while purporting to uphold the constitutional principle of access to exculpatory witnesses, the court has, in practice, barred the defendant from actually exercising that right. The key pending question now is whether the parties will, under judicial pressure, manage to hammer out a negotiated substitute that protects the core interests behind the right.

In its call for written statements instead of depositions, the Fourth Circuit reiterated an idea that it first proposed a year ago. In an order issued in April 2003, the Fourth Circuit had told the district court, which had been requesting the government to permit a video deposition of the detainees, to give the government the opportunity to propose written substitutions. It had emphasized, in advising this alternative, that the district court should assess whether the substitutions would "provide the defendant with substantially the same ability to make his defense" as would the depositions.

What happened subsequently is that the written substitutions offered by the government did not satisfy this criterion. Indeed, as the district court ruled last year, the substitutions were unreliable, incomplete and inaccurate. They could not, in the court's considered view, serve as reasonable stand-ins for witness testimony.

Essentially, what the Fourth Circuit's opinion does now is tell the district court, the government, and Moussaoui to try harder to reach a compromise. To assist this process, its recent opinion goes a step further than its earlier order in describing how the substitutions should be drafted.

The court explains, specifically, that defense counsel should review classified summaries made from the interrogation of the detained Al Qaeda suspects and select excerpts from those summaries that they want to see admitted at trial. The government should, next, review those excerpts and suggest additional material, and the district court should, based on the parties' submissions, take charge of the production of the final written product.

The Military Option

Two factors, neither of which was mentioned by the Fourth Circuit, will continue to affect the progress of the case. The first is that the alternative to the current federal prosecution is a trial before a military commission. For various overlapping reasons, the possibility now seems less urgent than it once appeared (the planned commissions have yet to start functioning, and they now await the Supreme Court's ruling in the Guantanamo case, not to mention the pending federal suit over their rules).

But it remains clear that the option of Moussaoui's transfer to military custody will continue to affect the behavior of all of the actors in this case, from Moussaoui's legal counsel to the judges in charge of the proceedings. Faced with the possibility of being declared "enemy combatants," defendants in other federal terrorism prosecutions have accepted plea bargains. In the present case, the military alternative will most likely encourage defense counsel to agree to less-than-optimal written substitutes for witness testimony.

It will also encourage the courts, to the extent they believe that terrorism prosecutions belong in the civilian justice system, to continue to bend the rules in the government's favor. (Already, the district court implicitly acknowledged these considerations last year when it exercised its discretion not to dismiss the indictment against Moussaoui when the government flouted its deposition orders. Its call for the case to be resolved in "an open and public forum" made its views fairly clear.)

And, most of all, the military option will encourage the government to be intransigent in its demands in the case. As long as the government has no reason to fear the indictment's dismissal as a sanction -- as long as it believes that trial before a military commission would be an equally viable, or even preferable option -- it has no reason to compromise with defense counsel, or even to comply with the rulings of the district court.

The Hidden Detainees

The second important consideration involves the detainees to whom Moussaoui seeks access. These men, whom the government has deemed enemy combatants, are not detained in military installations on U.S. soil, like Jose Padilla and a couple of others, nor are they held on Guantanamo. Rather, they are held in undisclosed locations abroad -- on aircraft carriers, or perhaps on the British island of Diego Garcia -- outside of the law and beyond judicial scrutiny.

Next to nothing is known about the detainees -- not where they are held, nor how they are treated, nor what, in the long run, will become of them. Indeed, as the district court pointed out in an opinion last year, the government takes the position that "anything" that concerns the detainees is classified information. Even their names have been excised from the courts' opinions, though they are well known to the press: Ramzi bin al-Shibh, Khalid Sheikh Mohammed, and Mustafa Ahmed al-Hawsawi.

Excised, as well, from the Fourth Circuit's opinion is any mention of the word "interrogation" and its variants, although a quick read though the opinion reveals the word's frequent silhouette. The government warns, for example, against disrupting "its detention **** of the enemy combatant witnesses." (Replace the asterisks with "and interrogation ?") It states that any "interruption **** will have devastating effects" on its ability to gather information from them. (Substitute "of their interrogation ?") And so on.

Why is this word so important? Because it reveals a central and worrying problem that clouds the entirety of the Fourth Circuit's proposed approach. In its ruling, the Fourth Circuit ordered the district court to instruct the jury regarding the reliability of the written substitutes that will be provided in lieu of the detainees' testimony. The jury should be informed, the Fourth Circuit has specified, that the substitutes "are derived from statements obtained under conditions that provide circumstantial guarantees of reliability."

But in reality there are no such guarantees, as the district court may have pointed out when it ruled last year that the government's proposed substitutes were unreliable. (Unfortunately most of this portion of the district court's opinion was censored -- again, because it discussed classified information -- so one can only guess at the court's reasoning.)

Indeed, the little information that is known about the treatment of these hidden detainees suggests the Fourth Circuit's assertion is precisely wrong: that rather than guaranteeing the statements' reliability, the conditions of the men's detention render their statements suspect.

Based on interviews with unnamed U.S. officials, several newspapers have published credible descriptions of how the detainees have been abused. The sources detail physical and psychological "stress and duress" techniques to which the detainees have been subject, including being held blindfolded or hooded, bound in awkward painful positions, and deprived of sleep for prolonged periods.

Considering, in addition, that some of the detainees have been held by their interrogators in extra-legal limbo for more than two years, without a moment's access to any neutral arbiter, it is hard to understand how the Fourth Circuit could rule as it did.

A First Encounter with Legality

If Moussaoui's legal counsel was allowed to question the hidden detainees, it would go a long way toward securing the defendant's Sixth Amendment right to the testimony of exculpatory witnesses. Perhaps equally important, it would be the first encounter with lawyers, the law, and legal procedures that the detainees have had since they entered U.S. custody.

Unfortunately, the U.S. government will accept neither of these options. The only alternatives it seems willing to consider range from secrecy to more secrecy, and restricted rights to more restricted rights.

What Do You Think? Message Boards


Joanne Mariner is a FindLaw columnist and human rights attorney.
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THE TRILLION-DOLLAR BREACH OF CONTRACT: Social Security And The American Worker
Thursday, Aug. 30, 2001

George W. Bush managed to find seven Democrats who would support the partial privatization of Social Security. He placed them, along with seven Republicans, on a commission to evaluate the state of the Social Security system. The result? Unsurprisingly, the commission slanted its findings in favor of privatization.

What surprised virtually everyone, however, was the commission's frantic claim that the system would be in crisis not in the late 2030's, but two decades earlier, in 2016. Commentators across the board have been discussing whether the commission's new deadline for reform, and the criterion its members used to arrive at the deadline, make sense or simply serve Bush's political agenda.

The best way to understand what is at issue in the Social Security debate is to view the commission's proposal as an attempt to breach what is, in effect, a contract with the public. That contract was agreed to in the early 1980's and is still being honored today. Bush's commission, however, wants to violate it.

Opportunism and the Social Security Contract

Imagine that you have a wealthy friend, with whom you make a deal to share expenses in a fair manner. You agree to pay more than your share of the expenses for thirty years or so, because while you make a decent living now, you worry that the subsequent decades will be rather lean for you. You'd like to pay more now, and pay less later. For his part, he'll pay less now, but pay more later.

Your friend accepts the deal and, for the next twenty years, gladly accepts your overpayments. But then he tells you he wants to renegotiate. Under the current contract, his payments are about to rise, and he doesn't like that. You are (understandably) very upset. The whole reason you overpaid for so many years was precisely because you expected reciprocal treatment when the time came. "Of course you'll be paying more!" you tell him, "That was the deal!"

This describes the Social Security problem in a nutshell. For a few years in the late 70's, the Social Security system had started to run tiny deficits (less than 0.2% of the Gross Domestic Product). There was a sense that the system needed to be tweaked, so in the early 1980's President Reagan convened a bipartisan Social Security commission.

In the short and medium term, the commission knew there would be no problem at all. The final surge of the Baby Boom was just entering the labor force in the early 1980's, yet most of the boomers' parents were still working. Thus, both boomers and their parents were paying into Social Security, not taking from it.

For several decades, at least, the Social Security system would be in clover. Indeed, had Reagan's commission chosen to do so, it could have both cut payroll taxes and raised benefits, and still not run out of money for Social Security.

Looking ahead, though, the commission saw that the good times would not last. The first boomers would be eligible for full benefits in 2011. Since they had not produced nearly as many offspring per person as their parents had, a relatively small base of working people would be paying into the Social Security system to support them in their retirement years.

To many on the commission, this suggested that the system should run surpluses?a departure from the original design of the system, which was supposed to balance taxes paid in with Social Security payments sent out as closely as possible. Thus, just when the system was least in need of new funds, the payroll tax rates for Social Security were raised.

What should be done with the inevitable surpluses? One might think they should have been invested in the private financial markets. But remember that, in the Reagan years, the rest of the federal government was running deficits. And putting some government money (from Social Security) into the financial markets, yet still running a deficit, would have simply amounted to lending money with one hand, to the corporations in which investments were made, while borrowing it with the other, from the institutions that made loans to the government. In the aggregate, it was a wash.

As a result, rather than recommending that Social Security "invest" its excess funds in private securities, the commission recommended that Social Security turn them over to the Treasury. The long-term plan was this: For thirty or forty years, Social Security would run annual surpluses (which would be turned over to the rest of the federal government). Then, for the next thirty or forty years, Social Security would run deficits (financed by the rest of the federal government). The system would finally return to a rough balance between taxes in and payments out, when the boomers had all died off.

Who Pays the Taxes?

Even though the Social Security system is part of the government, the choice to finance deficits out of Social Security funds, as opposed to other funds, was not merely a technical matter. Instead, it made a real difference whether the deficit was funded out of Social Security or out of other government monies.

That is, in part, because Social Security taxes are among the most regressive taxes in the federal arsenal; they disproportionately affect poor and middle-income taxpayers. Social Security taxes are levied only on labor income (salaries and wages), not on capital income (capital gains, dividends, interest). But the highest income people in the country earn most of their money through investments (even structuring their executive compensation so that they receive stock or options, which result in lightly-taxed capital gains, in lieu of part of their salary). As a result, high-income people largely escape paying Social Security taxes.

Even if high-income people (such as professionals, for example) do pay Social Security taxes, there is a limit to how much they must pay. Currently, wage income above roughly $80,000 is not taxed. Thus, a person who earns $180,000 or $800,000 pays exactly the same number of dollars in social security tax (approximately $5000) as the $80,000 earner. For example, the law firm associate and partner pay only as much into the system as the senior secretary or computer systems person at the law firm.

And below the $80,000 cutoff, each dollar is taxed proportionately. Thus, to continue the example, a messenger or photocopy worker in a law firm, who makes very little, still pays proportionately the same in Social Security as the secretary or computer systems person.

Together, these features of the Social Security tax make it fall proportionately much more heavily on low and middle-income earners than on the rich. Income taxes, on the other hand, are among the most progressive taxes available. All income is potentially subject to tax, not just labor income, and the rates are graduated. (The estate tax, whose future is currently uncertain, is the most progressive tax in the fiscal system.)

For perspective, consider that nearly three-quarters of all Americans pay more in Social Security and federal excise taxes than they do in income taxes. The much-discussed income tax rebates that Democrats in Congress added to the Bush tax cut (for which Bush is now taking credit) were not paid at all to 34 million American adults, while another 17 million received only partial income tax refunds.

Therefore, collecting more money than necessary for Social Security in the 80's, in order to help finance the general budget, deliberately replaced a tax that falls mostly on the wealthy with a tax that falls mostly on middle-income and poor people.

The Contract between the Non-Rich and the Rich

In essence, therefore, the following deal was made in the early 1980's: the non-rich would pay too much in taxes for three or four decades. Then the rich would reciprocate by financing the inevitable shortfalls in the Social Security system by paying higher income taxes.

The famous Social Security Trust Funds are nothing more than an accounting of the terms of that contract. That is, when the trust funds go to zero, both sides to the deal will have paid and received equal amounts of money (after accounting for interest).

The argument that Social Security is going to go bankrupt typically relies on the idea that the trust funds will be depleted. The current best wild guesstimate is that that might happen in 2038. That calculation, however, depends entirely on low-ball estimates of economic growth over the next thirty-seven years. Less pessimistic (but still historically low) rates of economic growth would allow the system to remain solvent forever?meaning that working people (and their working children) who paid high amounts into Social Security in the 80's, 90's, 00's, and 10's will never quite be paid back for their sacrifices.

The current Bush Administration Social Security commission, though, wants to change the focus. They are saying that the system will be in crisis in 2016, which is the first year that the rich will need to start paying in. Rather than raising taxes on the rich ? which would solve the "crisis" and fulfill the Reagan Era agreement ? the commission is suggesting that the government should renege on the promise to working people that was made almost twenty years ago.

If the Agreement Is Breached, Does the Government Have A Defense?

Of course, even formal contracts among private parties are broken and renegotiated all the time. And sometimes breaches of contract are excused ? for reasons including a unilateral, or sometimes a mutual, mistake about the facts. If the commission's recommendation is taken, and the Social Security agreement broken, is there an excuse?

The answer is no. There was no mistake when the initial agreement was made, unilateral or otherwise. Nor has there been any unforeseeable change in circumstances. The only circumstance that has changed appreciably is the political power of those who have always wanted to kill Social Security. Now in power, they will gladly manufacture any excuse to have their way, including the false notion that the system is in crisis.

On the contrary, the agreement is working almost exactly the way it was supposed to. None of the facts noted above are news to anyone who was paying attention. And the rich are fully capable of making good on their part of the agreement.

From a fairness perspective, too, the rich owe the non-rich big time, since low and middle-income taxpayers suffered to fulfill their part of the agreement. Their wages and salaries fell (in real, cost-of-living adjusted terms) until 1998. During the same time period, they also lost the benefit of important budget items. Most of the changes in spending that moved the rest of the federal budget into surplus by the late 1990's were taken directly out of the hides of poor and middle-class people. Yet they were still forced to over fund the Social Security System.

Meanwhile, the incomes of the wealthy went through the roof over the last twenty years, while their taxes, over the same period, went down. Compared to the early 1980's, the wealthy pay lower income tax rates today. The maximum marginal income tax rate has moved around some, but it is now lower than when the Social Security agreement was forget. It has dropped from 50% to 39.6%, and thanks to Bush's tax cut, it is slated to fall further over the next few years.

Capital gains tax rates are lower still. And it is also worth bearing in mind that the direct beneficiaries of a Social Security privatization plan would be Wall Street investment banks, whose high-income owners would be able to charge billions of dollars in fees to manage the new accounts.

If short, the rich have only gotten richer in the period since the agreement on Social Security was made. After making the non-rich pay to create a surplus for years, the rich should now fulfill their part of the agreement by paying into Social Security at a higher rate. If they breach, at the behest of the Bush commission, there will be no excuse.

One still might worry that taxing the rich will shrink the economy. But even if that were so?as the proponents of trickle-down economics want us to believe?we have already given the rich a break. Supposedly, this is what has allowed us to build up the economy before the boomers start to retire.

Because of this buildup, we will be passing a large, productive capital stock on to the next generation, making it easier for the economy to produce the goods and services that we will need. A relatively smaller work force will be able to produce more than enough for everyone, because of the large capital stock that they will inherit. The boomers and their parents are paying for that now. They should receive the benefit of it when they retire.

Forcing Moynihan to Stay Consistent

One interesting sidelight to the Social Security debate is that one of Bush's favored Democrats, former Senator Daniel Patrick Moynihan (who is co-chair of the current commission), was involved in brokering this agreement in the early 1980's. He, of all people, should know how important it is to honor an agreement he had a part in crafting.

The legal maxim known as contra proferentem states that, when interpretation of a contract is at issue, the contract should be construed in the manner least favorable to the party that drafted the contract. Moynihan joined with others to draft the Social Security contract in the early eighties. Now he is trying to re-write that deal now. But he knew full well what he was doing twenty years ago. As a drafter of the agreement, he cannot be heard to claim its plain meaning does not control.

Social Security is the most successful ongoing social program in history. It can and should be financed in part out of general revenues until the boomers pass on. Having the rich finance Social Security's deficits is only asking that they fulfill their part of an agreement from which they have dramatically benefited for decades.


Neil H. Buchanan, Ph. D., teaches economics at the University of Michigan, where he is also a J.D. candidate.
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IS YOUR VOTE A CONTRACT WITH THE GOVERNMENT?: Form Over Substance in the Supreme Court's Election Decision
Tuesday, Dec. 19, 2000

Critics of the decision in Bush v. Gore have faulted the five-justice majority for hypocrisy. Many have asked how these Justices' prior claims of allegiance to the principles of "judicial restraint" and "states' rights" can possibly be squared with the aggressive federal intervention that they used to determine the outcome of the 2000 presidential election.

These attacks are clearly warranted. However, there actually is a consistent (though misguided) legal principle behind the Justices' decision?or, at least, behind the concurring opinion by Chief Justice Rehnquist that was joined by the court's other two reactionaries, Justices Scalia and Thomas. That legal principle comes, surprisingly, not from the high-flown world of constitutional legal theory, but rather, from contract law, one of the most pedestrian of legal disciplines.

Are Voting Instructions A Contract?

Chief Justice Rehnquist's concurring opinion, having explained why this is the one and only case where deference to a state's highest court is inappropriate, turns to the question of the uncounted votes. The Chief Justice points out that there are explicit instructions in all voting booths that use punch card ballots, which read as follows: "After voting, check your ballot card to be sure your voting selections are clearly and evenly punched and there are no chips left hanging on the back of the card." He goes on to claim that "no reasonable person" could say that it is inappropriate to ignore ballots that are "not marked in the manner that these voting instructions explicitly and prominently specify."

For those of us who loved our first-year course in Contract Law, and who have therefore been quietly amused at the difficulty people have had with the seemingly nebulous concept of "intent," this was a delicious moment. The reactionary justices had finally revealed the consistent legal principle that guided them: Classical contract formalism.

Williston and Langdell ? the high priests of classical contract doctrine? couldn't have said it better! If the contract (here, the set of voting instructions) says that your vote will be counted only if you meet certain criteria, and you do not meet those criteria, then your vote will not be counted. Q.E.D. A deal is a deal.

Put another way, the contract said you were supposed to flick off the hanging chads and make sure you had not left any mere dimples; but you, careless voter, never bothered to do so. So too bad for you ? and for your candidate.

The Evolution of Law Away From Contract Formalism

Of course, it's not that simple. Indeed, the path of contract law over the past century has been largely a move away from such formalism.

This has resulted in a somewhat grudging (at least in some quarters) recognition that, in some circumstances, it is reasonable to enforce contracts that do not meet formal requirements. Why? Because, for example, it is often possible to determine the "intent of the parties" indirectly, rather than just from the formal language they used to describe their intent.

Another result has been a parallel recognition that, in other circumstances, it is unreasonable to enforce contracts that do meet formal requirements. Why? Because, for example, the court may have concerns about whether the terms were sufficiently clear to the party who did not draft the contract, or may feel that the exigencies of the situation required a party to act in understandable haste and sign a contract she should not later be held to, and so on, and so on.

Obviously, this path away from formal contract requirements, and towards more situation-specific analyses, has not been a smooth one. And people like Chief Justice Rehnquist and Justices Scalia and Thomas have always regretted the movement of modern contract doctrine away from simplistic formalisms (You signed the contract!) toward a recognition of situational ambiguities (I was not fully informed! I was compelled! I was confused! It was hidden in small print!). As Justice Scalia once put it in a related context, with typical bluntness: "Long live formalism!"

Treating the Voting Instructions as a Contract with the Voter

The evolution of the law away from the type of formalism that provides the backdrop to the three-Justice concurrence was driven by a simple fact: No contract can be as simple, clear, and unambiguous as the formalists claim. Interpretation and clarification are almost always necessary, simply because no written contract can account for all potential sources of disagreement and misunderstanding. Looking more carefully at the voting instructions cited by Chief Justice Rehnquist, it is therefore not at all surprising that these instructions are much more ambiguous than he believes.

What, after all, does "clearly and evenly punched" mean? Must there be not even a shred of paper hanging from the corners where the paper was torn? Will the machine count ballots that have slight irregularities in the shapes of their punched holes? Can a hole be too big, as well as too small, or should a risk-averse voter enlarge the holes to be absolutely sure that the holes are punched in a way that the machine cannot miss? Or will doing so automatically invalidate the vote?

What if a voter does not know what a "chip" is? And, after the card is pulled out of the holder, how is the voter even to tell whether there are holes punched in the right places on a card with no writing on it? Were the instructions really placed "explicitly and prominently," in a visible place in a typeface that could be read by all voters (even those with poor eyesight, who at last check were still eligible to vote)?

To all of these questions, classical contract doctrine had a simple answer: If you do not find out the answers on your own, it is your own fault that your vote was not counted. In other words, protect your own interests! And if you don't, beware.

Why Classical Contract Formalism Doesn't Work For Voting

According to this view, every voter must now become an expert on ballot procedures. But if enough people actually took the time and care necessary to effectuate the Rehnquist vision of responsible voting, the process would surely slow to a crawl. This would likely cause more people to "choose" not to vote (a choice that formalists, ironically, would view as dispositive evidence that the would-be voter's intent was never to vote in the first place ? rather than, say, evidence that many people fear being fired if they take too much time away from work to vote).

What if you ask the precinct worker whether your ballot meets the standards, but the precinct worker gives you incorrect information ? or simply refuses, or is too busy, to clarify? And how can you even ensure that the "contract" is enforced ? that is, that your vote is counted once you have met all the requirements? Surely after all the work Rehnquist would require, the voter ought to have some assurance that the government will uphold its side of the contract.

These are exactly the types of questions that led to the emergence of modern contract doctrine, which substantially modified (if not eviscerated) classical contract formalism. Recognition that rigid rules can easily be used to hurt the powerless motivated much of the movement away from formalism and towards more flexible rules. (The very same recognition, one might suggest, may motivate Rehnquist, Scalia, and Thomas to suggest a return to it).

Rigid rules are not likely to hurt the wealthy, well-educated, time-rich voter (or contract-signer). They are going to hurt the less-educated, hard-working voter who cares enough to vote, but cannot risk dallying forever at the polls or has trouble with instructions that require mastery of the previously obscure distinction between a chip and a chad (if, indeed, such a distinction exists). And when formal rules do hurt the powerful, they make up new rules?or install better voting technology in their own precincts.

Parallels Between Flexible, Modern Contract Doctrine and Florida's Election Code

Modern contract doctrine is admittedly fraught with ambiguities (indeed, some would say that it revels in those ambiguities). It requires "reasonable" actions in particular circumstances, thus applying an inherently variable, fact-specific standard. Moreover, it is tailored to the differing sophistication of the parties and the differing stakes involved: Contracts for commercial real estate rentals, for example, are subject to very different rules than, say, contracts for surrogate motherhood.

In our system of universal suffrage (or, at least, our aspiration toward such a system), voting rules, as well, must certainly take into account differing levels of sophistication of voters ? as well as other situation-specific features of voting such as time constraints, poorly trained precinct workers, etc.

Fortunately, the Florida election code already acknowledges the inherent impossibility of totally objective ballot counting. Therefore, it explicitly provides that votes cannot be thrown out (even if they were not readable by machines) if the intent of the voter can reasonably be determined. In other words, the Florida election laws parallel modern contract doctrine ? providing a variable, fact-specific "reasonableness" standard to encompass a wide variety of possible situations, from chad to chip, with every variety of shred of punch card and voter marking in between.

Now, if the three reactionary Justices who joined the Rehnquist concurrence were truly believers in judicial restraint, they would have admitted that they do not like modernism (in any of its forms, apparently), but they nonetheless would have affirmed that Florida's election code as written does not begin and end with the classical "caveat emptor" requirement that the voter protect herself. Restraint, in this situation, would have meant admitting that Florida's election law standard is a modern, flexible one ? not a rigid, classical one.

Notably, the situation is not symmetric. In other words, even a restrained judiciary might still feel compelled to relax the boundaries of a formal election law, in order to protect the fundamental right to vote that arises once a state has decided to hold an election. Thus, if the Florida election laws had been written as rigidly as Rehnquist, et al. would have liked them to be, and had essentially codified the voter instructions, then large groups of people would have been disenfranchised ? and the U.S. Supreme Court would have been justified in stepping in to correct the resulting inequality.

If the rigid standards of the Florida instructions really were the law, then the voting process would include an implicit literacy test ? and such tests have been illegal for a long time now. Indeed, on some ballots, basic literacy will not even suffice. Figuring out the spatial and diagrammatic arrangement of names (on butterfly ballots, most famously), and deciphering less-than-obvious placement of referenda questions on ballots (as had recently happened in New York State), require more than the minimal skills a literate person has. And we should not forget that illiterate citizens do have the very same right to vote as those more fortunate others who received a better education.

In some cases, therefore, applying classical formalism ? in the form of rigid voting instructions that discard votes as to which the intended candidate choice is clear ? actually would present an equal protection problem. The more voting resembles taking the LSAT (an experience even law students, who've chosen the profession, would hate to repeat), the more people will be disenfranchised.

Formalists can always fall back on the retort "What, they can't follow simple directions?" But the rest of us know that it is never that simple. If we really want "the people" to vote, we must take the people as we find them.

In some cases, we will never know what the voter meant to say; but when we can figure it out, Florida's election law tells us that we must count the vote. That is the real contract between the people and their would-be leaders.


Neil H. Buchanan, Ph. D., is an economist at the University of Michigan. He is also a second year student at Michigan's law school.

Why We Should Not Use Guantanamo Bay To Avoid The Constitution
Thursday, Mar. 07, 2002

What are we fighting for? In the process of liberating Afghanistan from its lawless oppressors, we may be undermining our own position as the champions of the rule of law.

In a case last month here in California - Coalition of Clergy v. Bush - the Administration argued that the Constitution does not bind the United States in our actions against the Guantanamo detainees. The issue is also raised by another case--Rasul v. Bush--pending in federal court in the District of Columbia. The Administration's argument is a mistake, for both principled and practical reasons.

It is wrong for us to deny basic constitutional protections to those who are in our custody. Moreover, doing so will ensure that someday our citizens, when imprisoned abroad, will be denied similar protections by a foreign government, as well. The treatment of the Guantanamo prisoners could also provide a wedge for our own government to erode the civil liberties of citizens, permanent resident aliens, or visaholders - claiming that the Constitution applies in fewer and fewer circumstances, and to fewer and fewer persons.

If we are silent about our own treatment of the Guantanamo prisoners now, we will have little to say about these future abuses when they inevitably occur. As Thomas Paine wrote, "He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

The Administration's Claim: The Constitution Does Not Apply in Guantanamo

The plaintiffs in the California case are a group of clergypersons and lawyers - including a former Attorney General of the United States, Ramsey Clark. They challenge the constitutionality of the confinement of the Guantanamo detainees. Specifically, they claim that the detainees have been denied due process, the right to be informed of the charges against them, and the right to legal counsel.

The Bush Administration could have chosen to defend the case by arguing that the confinement is constitutional. The Constitution requires different amounts of process depending upon the circumstances, and various cases have held that a system of military justice can be appropriate under the laws of war. Here, the Administration could have argued that the detainees are being processed in accordance with the law applicable to enemy combatants; that the right to counsel was inapplicable at this time given the circumstances of the war against terrorism; and that a general regard for the Geneva Conventions on the treatment of captives in war satisfies American constitutional standards.

But the Bush Administration chose to make none of these arguments. Rather than arguing the merits of the claims, the Administration simply denied the right of the detainees to any constitutional protection whatsoever. It argued that the Constitution provides no protections at all to aliens in Guantanamo Bay, since, according to the Administration, they are not in the United States, but rather in Cuba.

The District Court's Decision: The Administration Is Right

The federal district court in Los Angeles agreed with the Government. In a decision last month, the court held that the detainees have never been within territory over which the United States is "sovereign," and that they therefore fall outside the protection of our Constitution.

In a 1950 decision, Johnson v. Eisentrager, the Supreme Court had declared that enemy aliens captured and imprisoned abroad could claim no rights under the Constitution. Relying on that decision, the district court dismissed the case.

Guantanamo as Law-Free Zone? U.S. Power Without "Sovereignty"

The Administration's argument, and the court's decision, might be reasonable if the detainees were held in a place other than Guantanamo. There is a strong argument to be made that, in general, the Constitution does not protect enemy aliens who are located in a foreign country. (There is also a strong, contrary argument, however, that the U.S. should always be obliged to follow the Constitution, wherever it acts around the world. Or, put another way, the Constitution should follow the flag.)

But Guantanamo is not the typical foreign land. It is more akin to a territory controlled by the United States.

The history of our control over this tip of the island dates back to the Spanish-American War of 1898, which sought to liberate Cuba from Spanish oppression. The war concluded with America acquiring significant parts of the Spanish colonial empire for itself - including Guam, the Philippines, and Guantanamo Bay.

Under the terms of a 1903 lease and a 1934 treaty, the United States was granted the power to "exercise complete jurisdiction and control" over Guantanamo Bay, while Cuba would retain "ultimate sovereignty." For the last century, the United States has exercised such control, despite the protestations of the Cuban government for the past few decades that the U.S. presence is illegitimate.

In Coalition of Clergy v. Bush, the court relied on the fact that the lease declared that "sovereignty" over Guantanamo remained with Cuba. With Cuba "sovereign" over Guantanamo, it made little sense, the court believed, to apply the U.S. Constitution to this land.

But this is a very superficial argument. The international order relies upon states exercising their powers to maintain order and certain minimal legal rights within their sovereign territories. Sovereignty without power is an empty concept.

Cuba has no method by which it might maintain order within Guantanamo, even were it inclined to do so. Guantanamo Bay is defended by the American Navy; no Cuban policeman would dare venture into this territory. While formal sovereignty may remain with Cuba, it is in name only. The practical aspects of sovereignty clearly reside with the U.S.

To excuse ourselves from the application of the U.S. Constitution on the basis of Cuba's empty, technical reservation of "sovereignty" is to undermine the international order. This position effectively renders Guantanamo a law-free zone - a place where there is no law, but only power.

The U.S. government argues that American law, and even the Constitution, does not bind it on Guantanamo, at least with respect to how we treat aliens. Yet it would never respect Cuban law either - consider how likely the U.S. government would be to follow a decision by Castro that the prisoners should be treated differently henceforth.

Finding the Right World War II Precedent: Not Eisentrager, But Yamashita

This analysis shows why the Supreme Court's holding in Johnson v. Eisentrager does not even remotely apply to Guantanamo. There, the Germans who challenged their confinement had been tried before a U.S. military tribunal in China with the explicit consent of the Chinese Government, which exercised genuine power over the land at issue.

In contrast, the Guantanamo detainees are being held without any regard for the wishes of the country that the U.S. says is "sovereign." Our lack of relations with Cuba serves our purposes well--we have ignored their objections regarding our actions in Guantanamo for many decades now.

The relevant precedent is not Eisentrager, but another World War II decision - the 1946 case of Application of Yamashita. There, the Supreme Court considered the petition of a Japanese general who had been tried by a U.S. military tribunal in the Philippines--like Guantanamo, a territory we gained as a result of the Spanish-American War.

The Court did not deny that the general had any rights under the U.S. Constitution. Instead, it considered his claim on the merits. By doing so, it implicitly established what the Government today is unwilling to concede--that an enemy alien in a foreign territory under the control of the United States is still within the bounds of the U.S. Constitution.

The general lost on the merits, and so might the Guantanamo detainees. But my point is not that the detainees should win their constitutional case. It is that they should have a right to make it. Instead, the Bush Administration has tried to avoid the constitution by claiming that Guantanamo is, in effect, a foreign country, even though it is entirely within our power.

U.S.-controlled Guantanamo is closer to the U.S.-controlled Philippines than it is to China. We should be disappointed that the Administration argued, and the court held, to the contrary, applying Eisentrager and not Yamashita.

Believing in the Rule of Law As A Requirement, Not A Matter of Grace

The Bush Administration has said recently that it will apply the rules of the Geneva Conventions to at least some of the detainees at Guantanamo, and that it will comply generally with humanitarian law in its treatment of all detainees. The result may be that at least some of the detainees benefit from the same rights that the U.S. Constitution would have afforded them. But this is cold comfort for the other detainees - and cold comfort as a precedent for the future.

As first year law students learn in the famous case of Marbury v. Madison, if there is no way to challenge an executive or legislative action in court, the executive and legislative branch is not truly bound by the rule of law. The Administration has made the decision to provide some of the detainees with some process - as a matter of grace, at its own whim, and without guarantees of fairness or equality. But that is no substitute for the detainees' ability to argue - successfully or not - that all of them deserve whatever process the Constitution says is due.

A Bad Precedent for Our Citizens Abroad

For over a century, we have had complete control over Guantanamo Bay. We should not now argue that - despite this longstanding and thoroughgoing control - we still do not have sovereignty, because Guantanamo is technically Cuban soil. The argument makes a mockery of our legal system and invites other countries to treat our own citizens unfairly in the future by employing similar means.

We should not forget that it was the Bush Administration who chose to bring the detainees to Guantanamo in the first place - perhaps because it could make this very argument. Indeed, one "advantage" of our maintaining a base in Guantanamo is to avoid being required to respect the Constitution there.

What if another country were to arrest U.S. citizens, take them to a location over which that country had control, but no technical sovereignty, and then argue that the country's own law did not apply in that territory - so that our citizens would not have a right to counsel, or even to know what the charges against them might be?

We would be distressed. We should be distressed, too, about our own country's similarly taking the position that Guantanamo detainees do not even have the most basic rights under our Constitution.

To be sure, if the Constitution were held to apply in Guantanamo - as it should be - a federal court might well conclude that the government's treatment of the detainees accords with the Constitution. But we should not seek to do an end run around the Constitution by claiming that it does not even apply.

We should show greater faith in the Constitution's wisdom than that. Let us hope that the federal courts considering this issue, on appeal or in the first instance, hold that the U.S. Constitution follows U.S. power to Guantanamo Bay.

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Anupam Chander is an Acting Professor of Law at the University of California, Davis, School of Law. A graduate of Yale Law School, he specializes in cyberlaw and international law.

Revising the Laws of War to Account for Terrorism:
The Case Against Updating the Geneva Conventions, On the Ground That Changes Are Likely Only to Damage Human Rights
Tuesday, Feb. 04, 2003

With respect to both al Qaeda and Iraq, the Bush Administration claims that U.S. forces have scrupulously observed the laws of war and will continue to do so. Indeed, according to Charles Allen, a senior Department of Defense lawyer I recently interviewed, "The United States has probably the strongest law-of-war program in the world." But assurances like this gloss over the fact that there is, to say the least, a good deal of controversy about how the laws of war (also called "international humanitarian law") apply to armed conflict in today's world.

Many have charged that in its campaign against terrorism, the Administration has not observed, but flouted, the laws of war. And even in more conventional wars, the U.S. military interprets the rules in a way that allows it to take actions - for example, in the kind of targets it chooses to attack - that others consider prohibited by the laws of war.

Whatever your views on the merits of U.S. military policy, there is no doubt that the existing body of international law has gaps and ambiguities that have been exposed - or highlighted - by changes in the nature of war. In turn, those ambiguities have allowed the Bush Administration to define legal terms in any way it sees fit, to its own maximum advantage - treating terrorists as warriors, while denying them the legal rights that enemy soldiers are supposed to enjoy.

The laws of war were codified in the Geneva Conventions of 1949, and the Additional Protocols of 1977. But of course, the world has changed dramatically since then. That leads to a crucial question: Should international humanitarian law be updated to take account of these developments and if so, how?

An Initiative to Re-Evaluate the Geneva Conventions

The question has been much discussed since September 11, and the government of Switzerland - which acts as custodian of the Geneva Conventions - recently launched a public initiative to look into the subject. Last week, this process got underway with an "informal high-level expert meeting" at Harvard University.

The meeting brought together representatives of several countries, the European Union, the International Committee of the Red Cross, and various prominent scholars. Its objective was to set an agenda for further research about the "reaffirmation and development of international humanitarian law."

It is appealing to think that the laws of war could be revised to give them greater precision in relation to contemporary armed conflict. However, there are good reasons for thinking that it will not be easy to frame new rules that can both address the most controversial aspects of modern warfare, and that will be able to gain broad international support. By their nature, the kinds of questions that will come up in any attempt to revise the Geneva Conventions will deeply divide the nations that will weigh in on them.

Moreover, there is a danger that reopening the debate will allow groups to push for other changes in the law, such as allowing the military to attack some civilian targets, that could set back humanitarian values. The question of when, if ever, civilians can legitimately be attacked, and the related question of how much care must be taken to avoid civilian casualties, are likely to be intensely controversial.

International Law Does Not Recognize "War" With an Entity Like Al Qaeda

Broadly speaking, the framework of existing international law envisages two kinds of war: international armed conflicts, between two or more countries, and civil wars, occurring within the territory of a single state.

Thus, the possibility of armed conflict between a state and a transnational organization without a recognized geographical base is never acknowledged - either in the Geneva Conventions, or in the Additional Protocols. (The Conventions do create the category of "unlawful combatants," but do not address the character of a conflict between a force composed entirely of such combatants, and a country or alliance of countries.)

Nevertheless the Bush Administration has unhesitatingly described its campaign against al-Qaeda as a "war." Thus, it claims the laws of war apply: not the provisions of the Geneva Conventions themselves (since they don't cover this kind of conflict) but the underlying principles that inform the Conventions, and are seen as customary law.

Claiming the Laws of War Apply to Al Qaeda Had Led To Bad Consequences

What does that mean, specifically? For one thing, the U.S. claims the right to shoot enemy combatants engaged in active hostilities. That right has in turn, be interpreted by the U.S. to amount to a license for U.S. forces to shoot anyone alleged to be a terrorist, anywhere in the world.

That's a particular problem because terrorists are far less easy to pick out than soldiers, who must (to qualify as such under the Geneva conventions) be recognizable as soldiers by their uniform, flag and so on.

Meanwhile, the U.S. also claims the right to detain enemy captives until the end of hostilities. The problem with this, of course, is that where the "war on terrorism" is concerned, there seems to be no end in sight. Moreover, the Administration has arrogated the definition of who counts as an enemy solely to itself - including many people picked up far from any battlefield, who are being held incommunicado with no chance to assert their innocence before an independent judge.

The U.S. also claims to have shouldered the obligation not to harm enemy fighters once they have been detained, or to punish them without due process. But it resists the argument that either Taliban or al Qaeda detainees qualify for the status of prisoners of war.

The strangeness of the U.S. position, under current international law, thus is plain. It claims that the United States is at war with al Qaeda, giving U.S. soldiers the freedom to attack al Qaeda fighters anywhere it finds them. Yet it claims that al Qaeda members are as a collective group and by definition "unlawful combatants," with no right to use force against members of the U.S. military.

Granted, al Qaeda is a horrific organization. But these legal positions still seem extreme and unconvincing.

Can These Problems With the Law of War Be Solved? Not Easily.

That leads to the key question: What, then, should be done?

One solution would be to reaffirm the traditional legal framework, restricting the notion of "armed conflict" to cases clearly acknowledged in the written law. That would mean that the U.S.'s campaign against al Qaeda is not a war, but the pursuit of a group of international criminals. Accordingly, the U.S. would be limited, in fighting al Qaeda, to the tools of its (and its allies') law-enforcement structure.

War could occur, and the laws of war would only be triggered, when the U.S. took military action against a state, such as Afghanistan under the Taliban, that was harbouring terrorists. This type of country-versus-country conflict would count as an international war, and the laws of war would thus apply.

Of course, the U.S. would never subscribe to these positions, believing that al-Qaeda presents too serious a threat to the United States to be treated this way. And this argument cannot be completely dismissed.

The scale and scope of the September 11 attacks, and the international nature of its organization, put al Qaeda on a different level from terrorist groups of the past. It is reasonable to think that if al Qaeda managed to obtain a biological or chemical weapon, or a radioactive "dirty bomb" it could launch an attack that would dwarf September 11 in the havoc and destruction it caused.

A Possible Revision of the Geneva Conventions

That may lead one to think that the law should be revised precisely to take account of organizations that, like al Qaeda, operate in a netherworld between crime and war. One option would be to go the whole hog, and categorize the campaign against al Qaeda as a new kind of armed conflict. That would have the advantage of setting clear standards that are now absent: rules governing when terrorists can be targeted, what counts as a battlefield in a war against terrorists, or when such a conflict should be said to end.

However, any new treaty to cover transnational wars against non-state organizations like al Qaeda would run up against a very tricky problem: whether terrorist fighters should be given the status of legitimate soldiers.

The U.S., and many other countries would certainly balk at the idea. Treating al Qaeda members as soldiers would give them soldiers' rights, and make their operation seem more legitimate. They could no longer be prosecuted for attacks directed at U.S. military targets, such as the Pentagon, though attacks on non-military targets would still count as war crimes. Al Qaeda fighters detained during the course of the war would be entitled to the full privileges of prisoner of war status.

That option seems unrealistic and unappealing. The alternative would be to formulate new rules for wars against terrorists that preserved the idea - now pushed by the United States - that they are "unlawful combatants." This would effectively put into formal law the unbalanced regime that the Bush administration has proclaimed. States would be able to target terrorists as enemy fighters (at least under certain specified circumstances), or detain them without the benefit of prisoner of war status until the end of the conflict. Terrorists would not have the right to use force - even against military targets - and could be prosecuted for shooting opposing soldiers.

As discussed before, such a legal framework seems lop-sided, even in the case of terrorists for whom few would feel sympathy. But a bigger objection to the idea of a new convention along these lines lies in the difficulty of defining the terrorists to whom it would apply.

As Joanne Mariner discussed in an earlier column for this site, the term "terrorist" is extraordinarily hard to define, for the cliche that one man's terrorist is another's freedom fighter has some truth in it. States could use such a convention as a charter for assassinating or detaining members of rebel groups with a genuine political grievance - or even opposition movements.

Why Revisions Could Be Extremely Harmful to Terrorist Suspects

Even if a solution could be found to this problem (for instance, by giving the United Nations Security Council the power to determine when a terrorist threat is genuine and rises to the level of a war) another huge problem remains. By their nature, terrorists are difficult to distinguish from civilians, and the effort to make this distinction would often take place in fraught or warlike circumstances.

Who is a terrorist fighter, and who is an ordinary civilian? This crucial question would often be hard to answer, and would be answered by fiat, or by a bullet. Look, for instances, at the U.S. government's insistence on protecting its ability to decide unilaterally that even U.S. citizens such as Yaser Hamdi and Jose Padilla are not civilians.

The result would be a massive increase in the vulnerability of civilians during fighting. That would cut against the bedrock principles of international humanitarian law, the protection of people who are not involved in hostilities. States have little incentive to defend that principle when the civilians at issue are a small set of individuals suspected of terrorism. Humanitarian law should not make it easier for them to ignore it.

The Case for Not Updating The Geneva Conventions

For all these reasons, it is not clear that there is anything to be gained in the idea of updating the Geneva Conventions for the age of terrorism. Indeed, such an update may actually be harmful.

So what constructive steps are available to remedy current abuses? Here are a few measures the international community should pressure the U.S. to take: It should clarify and limit its rules of engagement against suspected terrorists. It should either release those being detained, or present evidence to a judge to establish that they are active members of al-Qaeda. In addition, it should give a clearer definition of how it will determine that hostilities have ended.

The Question of Which Targets Are Legitimate

Finally, it is worth mentioning another area in which the Geneva Conventions are sometimes said to be ambiguous or outdated: the question of what targets can lawfully be attacked.

Under principles set out in the first Additional Protocol, it is only legitimate to attack targets that "make an effective contribution to military action" and whose destruction or capture "offers a definite military advantage". (The United States has not signed Additional Protocol I, but acknowledges this rule, and much of the rest of the protocol, as binding customary law.)

But what do these criteria mean in practice? It has been the subject of debate.

Consider wars such as NATO's 1999 attack on Serbia, or the prospective war in Iraq, which are directed overwhelmingly against an individual head of state or a particular regime. The aim of these conflicts is to undermine a political leader (as in the case of Saddam Hussein), or force a leader to comply with certain requirements (as with the Serbian President Slobodan Milosevic over Kosovo)? Traditional objectives of war have been very different: They have focused on repelling aggression or recovering land, for instance.

U.S. officials have argued that these new wars of "compellance" or "regime change" call for a more flexible understanding of what constitutes a military target. In the war against Serbia, NATO attacked objects like power grids, government ministries, and a television studio. Such targets might have a peripheral connection to military activity, but are more obviously part of the apparatus of domestic political and social order. Were they, or were they not, legitimate military targets?

Some military planners say they should be deemed just that, for attacking these objects may undermine a regime's hold over its subjects, or the popular support it enjoys. They would like to codify this new interpretation into any revised version of the laws of war. One conservative international lawyer who took this view recently asked me: "Why should we think it is more acceptable to wipe out a company of conscript soldiers than to destroy a monument to Saddam Hussein?"

But there are a couple of powerful objections to this argument. On a practical level, evidence from Serbia, Iraq and elsewhere suggests that attacks designed to demoralise the population most often have the effect of prompting it to rally around its government. More importantly, on the level of principle, it opens the door to military action that will increase civilian suffering. Bombing of civilian areas or infrastructure that serves civilian needs inevitably leads to civilian deaths.

Thus, in this area, too, the game of change may not be worth the candle. Instead, participants in the Swiss government's initiative should concentrate on reaffirming or strengthening existing protections in the law. Above all, they should avoid new formulations that could weaken them. This is one area where change is not always good.

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Anthony Dworkin is editor of the Crimes of War Project website, an online journal covering international law and armed conflict.

What Would Grotius Do?
The Founder of International Law Speaks Out on Iraq
Thursday, Apr. 03, 2003

Are the U.S. and Britain waging an illegal war against Iraq? And if they were, how would we know?

For centuries, scholars and statesmen have dreamed of devising a system of international law that would provide precise answers to questions like these.

Unfortunately, international law has always been the Snuffleuphagus of jurisprudence. Like Big Bird's elusive mastodon-like pal on Sesame Street, it exists to the extent we believe in it. To some, international law is not only real--it's our best friend. But when they try to show it off to skeptics, it has a tendency to vanish into thin air.

Why? International law is based on universal consent, rather than majority rule. So nations can essentially "opt out" of rules they don't like. Even when the rules are clear, nations have guarded enough of their sovereign privileges to prevent any really effective international arbitrator from arising with the power to enforce them.

Because its jurisdiction is voluntary, the International Court of Justice (better known as the "World Court") is the international equivalent of Judge Judy. Countries may choose to plead their cases in The Hague, but no one can make them show up. If they ignore the Court's judgments, no wail of police sirens will ensue.

Although the U.N. Charter allows the Security Council to authorize the use of force, it also gives veto power to the Council's five permanent members (the U.S., Russia, China, France and Britain). When the interests of the big powers clash, deadlocks and toothless compromises are frequent, while true resolutions remain rare. Badly divided on the use of force against Iraq, the Council could neither authorize the U.S.-led action nor condemn it.

Fortunately, with the legality and legitimacy of the present conflict in Iraq very much in doubt, there is still one untarnished authority to whom we can turn. He has remained largely quiet during the crisis, offending none of the principal antagonists.

To the war's critics, especially in Europe, he is a symbol of balance and humanism, of respect for the rule of law over the law of the jungle. And to the Bush Administration, he represents an era for which they are openly nostalgic--a world of independent states looking out for themselves, their judgments unclouded by the illusory security afforded by ineffective international organizations.

He is the Dutch scholar Huig de Groot. Better known by his Latin pen name, Hugo Grotius, he is perhaps the world's leading authority on international law. According to most accounts, he virtually invented the field.

But you won't find Grotius pontificating about Iraq on CNN or Fox, or even on the Op-Ed page of The New York Times. He's been keeping a low profile--at least since his death in 1645.

Despite this not entirely self-imposed silence, Grotius is willing to share his views with those who patiently inquire. Curling up one evening with an copy of his 1625 bestseller De Jure Belli ac Pacis (On the Law of War and Peace), I was able to ask the old master for his opinions on the present crisis. The questions are mine, but Grotius's answers are quoted directly from the text.

Q: The Bush Administration has argued that it is waging war against Iraq now in order to protect the U.S. from possible attacks in the future. But how can this war be justified on the grounds of self-defense, if Iraq has not actually attacked the U.S.?

Grotius: A just cause of war is an injury, which though not actually committed, threatens our persons or property with danger.... The danger must be immediate, which is one necessary point. [But] when an assailant seizes any weapon with an apparent intention to kill me, I have a right to anticipate and prevent the danger.

Q: The Bush Administration says Iraq has made efforts to acquire chemical, biological and nuclear weapons with just such an intention. But the U.S. has tolerated such weapons in the hands of other countries and holds some of them in its own arsenal. Doesn't this inconsistency undermine its self-defense argument?

Grotius: [T]his kind of defense derives its origin from the principle of self-preservation, which nature has given to every living creature, and not from the injustice or misconduct of the aggressor.

Q: So it's not that the weapons themselves that are bad, it's that they're being developed by a potential adversary? That sounds a bit subjective. We're supposed to be talking about law. Isn't there a danger that leaders will claims fears of attack, and the consequent need for self-defense, as a pretext for conquest?

Grotius: Many wrongs proceed from fear... Xenophon says, "I have known some men, who partly through misrepresentation, and partly through suspicion, dreading one another, in order to prevent the supposed intentions of their adversaries, have committed the most enormous cruelties against those who neither designed, nor wished them any harm."

Q: That's exactly the problem--what if our fears have simply run amok? It's possible that Iraq would never have used its weapons against us. How certain do we have to be about a threat before we can act?

Grotius: Apprehensions from a neighboring power are not a sufficient ground for war. For to authorize hostilities as a defensive measure, they must arise from the necessity, which just apprehensions create; apprehensions not only of the power, but of the intentions of a formidable state, and such apprehensions as amount to a moral certainty.

Q: "Moral certainty" is a pretty high standard. At that point, isn't it already too late? Shouldn't we strike before the threat even arises--by waging what the Bush administration has called "preventative war"?

Grotius: Some writers have advanced a doctrine which can never be admitted, maintaining that the law of nations authorizes one power to commence hostilities against another, whose increasing greatness awakens her alarms. As a matter of expediency such a measure may be adopted, but the principles of justice can never be advanced in its favor.... [T]o maintain that the bare probability of some remote or future annoyance from a neighboring state affords a just ground of hostile aggression, is a doctrine repugnant to every principle of equity.

Q: So unless there's an immediate threat, "preventative" war can never be just. But even so, isn't it better to ensure our safety now and worry about justice later?

Grotius: In matters of moment, where the lives of men are at stake, the decision should incline to the safer side, according to the proverbial maxim, which pronounces it better to acquit the guilty than to condemn the innocent. War being an object of such weighty magnitude, in which the innocent must often be involved in the sufferings of the guilty, between wavering opinions the balance should incline in favor of peace.

Q: Easy for you to say. You're already dead. If we follow your advice and put justice and caution first, can we ever be sure that we are safe from attack?

Grotius: Such, however, is the condition of human life, that no full security can be enjoyed. The only protection against uncertain fears must be sought, not from violence, but from divine providence, and defensive precaution.

Q: "Defensive precaution" sounds like a containment strategy. Do you think there are measures that could have been taken to contain Iraq short of war?

Grotius: If any one intend no immediate violence, but is found to have formed a conspiracy to destroy me by assassination, or poison... I have no right to kill him. For my knowledge of the danger may prevent it. . . . [M]y knowing it will lead me to apply for the legal remedies of prevention.

Q: Many opponents of the war previously criticized "legal remedies of prevention" like sanctions and no-fly zones. If the threat from Iraq doesn't justify war, how can it serve as the basis for a containment regime, which also causes innocent suffering?

Grotius: Sovereign powers have a right not only to avert, but to punish wrongs. From whence they are authorized to prevent a remote as well as an immediate aggression. Though the suspicion of hostile intentions, on the part of another power, may not justify the commencement of actual war, yet it calls for measures of armed prevention, and will authorize indirect hostility.

Q: I take that as a vote for continued containment. But was it working? What about all those U.N. resolutions Saddam flouted? And what about evidence that despite the resolutions, he continued to develop weapons of mass destruction? Aren't they just cause for war?

Grotius: How honorable it is to be heedless of our own lives, where we can preserve the lives, and promote the lasting welfare of others. A duty that should operate with greater force upon Christians, who have before their eyes continually the example of Him who died to save us, while we were enemies and ungodly. An example which calls upon us, in the most affecting manner, not to insist upon the rigorous prosecution of our justest rights, where it cannot be done but by the calamities which war occasions.

Q: Turning the other cheek may sound good in Sunday school, but I doubt we can sell it to the American public after 9/11. Is there any point at which you'd give up on containment, and support the use of force?

Grotius: Now and then a cause of such imperious necessity occurs, as to demand the decision of the sword, and that is when, as Florus says, the desertion of a right will be followed by calamities far more cruel than the fiercest wars.

Q: I don't suppose you can tell me whether Iraq is a case of "imperious necessity" or not. But what about some of the other justifications offered by advocates of the war, such as protecting our oil supplies and enhancing the stability of the region?

Grotius: The advantage to be gained by a war can never pleaded as a motive of equal weight and justice with necessity.

Q: In its recent policy statement, "The National Security Strategy of the United States of America," the Bush administration announced that it will not allow any other country to challenge America's military superiority. It also stated that the U.S. will use its power to promote "freedom, democracy and free enterprise," which it identified as the world's "single sustainable model for national success." If this war allows us to impose our way of life on troubled countries like Iraq, is that such a bad thing?

Grotius: As to the argument in favor of universal dominion from its being so beneficial to mankind, it may be observed that all its advantages are counterbalanced by still greater disadvantages. For as a ship may be built too large to be conveniently managed, so an empire may be too extensive in population and territory to be directed and governed by one head. But even granting the expediency of universal empire, that expediency cannot give such a right...

Q: What about human rights? Saddam is a brutal dictator, guilty of all kinds of cruelties against his people. Isn't that cause enough to remove him?

Grotius: It is a rule established by the laws of nature and of social order, and a rule confirmed by all the records of history, that every sovereign is supreme judge in his own kingdom and over his own subjects, in whose disputes no foreign power can justly interfere.

Q: I expected you to say that. You wrote your book four hundred years ago, before the horrors of totalitarianism shook our belief in state sovereignty and gave birth to international human rights law. But can't you think of any instances where humanitarian intervention was justified?

Grotius: Where a Busiris, a Phalaris or a Thracian Diomede provoke their people to despair and resistance by unheard of cruelties, having themselves abandoned all the laws of nature, they lose the rights of independent sovereigns, and can no longer claim the privilege of the law of nations.

Q: OK, I'm relieved to hear you say that. But here's the problem. How do we know when to believe a leader who says he's waging war for another people's freedom, and when he's abusing our credulity to achieve other aims?

Grotius: Pretexts of that kind cannot always be allowed, [as] they may often be used as the cover of ambitious designs. But right does not necessarily lose its nature from being in the hands of wicked men. The sea still continues a channel of lawful intercourse, though sometimes navigated by pirates, and swords are still instruments of defense, though sometimes wielded by robbers or assassins.

Q: Nice metaphor. I suppose that if our leaders have tolerated Saddam's barbarity for the past twenty-five years, we should be skeptical when they cite it as a reason for going to war now. But you make a valid point--even if our leaders are insincere, they may inadvertently succeed in doing some good. At this point, we can only hope so. It will be sorely needed to counterbalance the unintended harm.

I'm still having some trouble figuring out exactly where you stand. You seem to doubt the justifications advanced for this war, but, like many of us, find it a difficult question. Meanwhile, the decisions are left to those who admit no uncertainty. Does it disturb you that international law could not prevent this war, or at least assure us that if waged, it would be a just one?

Grotius: There is no intermediate line between a straight line and a curve. But it is not so in morals, where the least circumstances vary the subject, and admit a latitude of interpretation, settling the points of truth and justice between two extremes. So that between what is right and what is unlawful there is a middle space, where it is easy to incline to the one side, or to the other. This occasions an ambiguity somewhat like the difficulty of deciding the precise moment where the twilight begins, and where it ends...

For where the power of law ceases, there war begins.

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Dean G. Falvy, a graduate of Yale University and Harvard Law School, is an attorney focusing on corporate and international law. After due consideration, he thinks Gulf War II is a mistake.

Hugo Grotius (1583-1645), a graduate of the University of Leyden and the Universite de Orleans, served as Sweden's ambassador to France after being exiled from his native Holland. He is known to have had doubts about the Thirty Years' War.

Posted by maximpost at 10:55 PM EDT

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