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Was It the National Security Bureaucrats Who Forced Obama to Hold on to the Torture Photos?

Allow me to share some analysis about the way things work in Washington. President Obama's flip-flop on his agreement to turn over photographs of detainees being tortured by American soldiers is a message with broad and clear implications. Those who believe that the Obama Administration should expose and prosecute persons who committed war crimes should understand that it is not going to happen the way they would like, or as quickly, because Obama is having internal battles as well. His pullback is not occurring because he fears that Republicans will attack him (he knows they will); rather it is occurring because he needs the national security community behind him, and they fear they will be further embarrassed and humiliated if more information is revealed.

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Are We Civilized Enough to Hold Our Leaders Accountable for War Crimes? The World Is Watching

Remarkably, the confirmation of President Obama's Attorney General nominee, Eric Holder, is being held up by Texas Republican Senator John Cornyn, who apparently is unhappy that Holder might actually investigate and prosecute Bush Administration officials who engaged in torture. Aside from this repugnant new Republican embrace of torture (which might be a winning issue for the lunatic fringe of the party and a nice way to further marginalize the GOP), any effort to protect Bush officials from legal responsibility for war crimes, in the long run, will not work.

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It Is Now Absolutely Crystal Clear That Republican Rule Is Dangerous and Authoritarian

Republicans rule, rather than govern, when they are in power by imposing their authoritarian conservative philosophy on everyone, as their answer for everything. This works for them because their interest is in power, and in what it can do for those who think as they do. Ruling, of course, must be distinguished from governing, which is a more nuanced process that entails give-and-take and the kind of compromises that are often necessary to find a consensus and solutions that will best serve the interests of all Americans.

Republicans' authoritarian rule can also be characterized by its striking incivility and intolerance toward those who do not view the world as Republicans do. Their insufferable attitude is not dangerous in itself, but it is employed to accomplish what they want, which it to take care of themselves and those who work to keep them in power.

Authoritarian conservatives are primarily anti-government, except where they believe the government can be useful to impose moral or social order (for example, with respect to matters like abortion, prayer in schools, or prohibiting sexually-explicit information from public view). Similarly, Republicans' limited-government attitude does not apply regarding national security, where they feel there can never be too much government activity - nor are the rights and liberties of individuals respected when national security is involved. Authoritarian Republicans do oppose the government interfering with markets and the economy, however -- and generally oppose the government's doing anything to help anyone they feel should be able to help themselves.

In my book Broken Government: How Republican Rule Destroyed the Legislative, Executive and Judicial Branches, I set forth the facts regarding the consequences of the Republicans' controlling government for too many years. No Republican -- nor anyone else, for that matter -- has refuted these facts, and for good reason: They are irrefutable.

The McCain/Palin Ticket Perfectly Fits the Authoritarian Conservative Mold

During the 2008 presidential campaign, Senator John McCain and Governor Sarah Palin, the Republican candidates, have shown themselves to be unapologetic and archetypical authoritarian conservatives. Indeed, their campaign has warmed the hearts of fellow authoritarians, who applaud them for their negativity, nastiness, and dishonest ploys and only criticize them for not offering more of the same.

The McCain/Palin campaign has assumed a typical authoritarian posture: The candidates provide no true, specific proposals to address America's needs. Rather, they simply ask voters to "trust us" and suggest that their opponents - Senators Barack Obama and Joe Biden - are not "real Americans" like McCain, Palin, and the voters they are seeking to court. Accordingly, McCain and Plain have called Obama "a socialist," "a redistributionist," "a Marxist," and "a communist" - without a shred of evidence to support their name-calling, for these terms are pejorative, rather than in any manner descriptive. This is the way authoritarian leaders operate.

In my book Conservatives Without Conscience, I set forth the traits of authoritarian leaders and followers, which have been distilled from a half-century of empirical research, during which thousands of people have voluntarily been interviewed by social scientists. The touch points in these somewhat-overlapping lists of character traits provide a clear picture of the characters of both John McCain and Sarah Palin.

McCain, especially, fits perfectly as an authoritarian leader. Such leaders possess most, if not all, of these traits:

* dominating
* opposes equality
* desirous of personal power
* amoral
* intimidating and bullying
* faintly hedonistic
* vengeful
* pitiless
* exploitive
* manipulative
* dishonest
* cheats to win
* highly prejudiced (racist, sexist, homophobic)
* mean-spirited
* militant
* nationalistic
* tells others what they want to hear
* takes advantage of "suckers"
* specializes in creating false images to sell self
* may or may not be religious
* usually politically and economically conservative/Republican

Incidentally, George W. Bush and Dick Cheney also can be described by these well-defined and typical traits -- which is why a McCain presidency is so likely to be nearly identical to a Bush presidency.

Clearly, Sarah Palin also has some qualities typical of authoritarian leaders, not to mention almost all of the traits found among authoritarian followers. Specifically, such followers can be described as follows:

* submissive to authority
* aggressive on behalf of authority
* highly conventional in their behavior
* highly religious
* possessing moderate to little education
* trusting of untrustworthy authorities
* prejudiced (particularly against homosexuals and followers of religions other than their own)
* mean-spirited
* narrow-minded
* intolerant
* bullying
* zealous
* dogmatic
* uncritical toward chosen authority
* hypocritical
* inconsistent and contradictory
* prone to panic easily
* highly self-righteous
* moralistic
* strict disciplinarians
* severely punitive
* demanding loyalty and returning it
* possessing little self-awareness
* usually politically and economically conservative/Republican

The leading authority on right-wing authoritarianism, a man who devoted his career to developing hard empirical data about these people and their beliefs, is Robert Altemeyer. Altemeyer, a social scientist based in Canada, flushed out these typical character traits in decades of testing.

Altemeyer believes about 25 percent of the adult population in the United States is solidly authoritarian (with that group mostly composed of followers, and a small percentage of potential leaders). It is in these ranks of some 70 million that we find the core of the McCain/Palin supporters. They are people who are, in Altemeyer's words, are "so self-righteous, so ill-informed, and so dogmatic that nothing you can say or do will change their minds."

The Problem with Electing Authoritarian Conservatives

What is wrong with being an authoritarian conservative? Well, if you want to take the country where they do, nothing. "They would march America into a dictatorship and probably feel that things had improved as a result," Altemeyer told me. "The problem is that these authoritarian followers are much more active than the rest of the country. They have the mentality of 'old-time religion' on a crusade, and they generously give money, time and effort to the cause. They proselytize; they lick stamps; they put pressure on loved ones; and they revel in being loyal to a cohesive group of like thinkers. And they are so submissive to their leaders that they will believe and do virtually anything they are told. They are not going to let up and they are not going to go away."

I would nominate McCain's "Joe the Plumber" as a new poster-boy of the authoritarian followers. He is a believer, and he has signed on. On November 4, 2008, we will learn how many more Americans will join the ranks of the authoritarians.

Frankly, the fact that the pre-election polls are close - after eight years of authoritarian leadership from Bush and Cheney, and given its disastrous results -- shows that many Americans either do not realize where a McCain/Palin presidency might take us, or they are happy to go there. Frankly, it scares the hell out of me, for there is only one way to deal with these conservative zealots: Keep them out of power.

This election should be a slam dunk for Barack Obama, who has run a masterful campaign. It was no small undertaking winning the nomination from Hillary Clinton, and in doing so, he has shown without any doubt (in my mind anyway) that he is not only qualified to be president, but that he might be a once-in-a-lifetime leader who can forever change the nation and the world for the better.

If Obama is rejected on November 4th for another authoritarian conservative like McCain, I must ask if Americans are sufficiently intelligent to competently govern themselves. I can understand authoritarian conservatives voting for McCain, for they know no better. It is well-understood that most everyone votes with his or her heart, not his or her head. Polls show that 81 percent of Americans "feel" (in their hearts and their heads) that our country is going the wrong way. How could anyone with such thoughts and feelings vote for more authoritarian conservatism, which has done so much to take the nation in the wrong direction?

We will all find out on (or about) November 5th.

Bush May Be Forced to Explain Destroyed CIA Torture Tapes


By my count, there appear to be no less than ten preliminary investigations underway, following the revelation that the CIA destroyed at least two sets of videotapes (containing hundreds of hours of footage) of "advanced interrogation" techniques being employed in terrorism investigations. In fact, every branch of government is now involved.

Within the Executive Branch, according to news reports, the CIA's General Counsel and Inspector General are investigating. The Department of Justice is investigating. On Capitol Hill, both the Senate and House Intelligence Committees are investigating. In addition, the House Committee on Oversight and Government Reform is inquiring as to whether the Federal Records Act has been violated. And Senator Joseph Biden, chairman of the Senate Foreign Affairs Committee, has made preliminary inquiries as well.

The Bush Administration has shown that it is not very good at investigating itself, so no one should hold their breath for the outcome of either the CIA or Justice Department investigation. And Attorney General Mukasey has dismissed an independent special counsel inquiry as very premature. The Democratic-controlled Congress could get to the bottom of all this, but one should bear in mind that our elected representatives have yet to get to the bottom of the political firing of U.S. Attorneys (although, to be fair, they did get former Attorney General Gonzales to resign). Today, Congress suffers from a degenerative spinal malady, and while they can bark, they appear unable to bite.

There are three court orders that may have been violated, but one in particular strikes me as a very serious problem for the CIA. Accordingly, we may well be in the unique situation in which a pending civil lawsuit might flush out some answers, and the federal judiciary might thus embarrass the other branches into actually taking meaningful action. I say "might" because the Bush Administration thinks nothing of stiffing federal court judges who seek information, and they probably figure they can tap-dance for the federal judiciary - along with all the other inquiries -- until they are out of Washington on January 20, 2009.

Nevertheless, the situation in the United States District Court for the Southern District of New York, as a result of Freedom of Information Act requests by the American Civil Liberties Union, could well force the Bush Administration's hand. An order holding the CIA in contempt of court might get the Administration's attention.

The ACLU's Lawsuit, and the Order that the CIA Produce Documents

When word of mistreatment of detainees surfaced, the ACLU filed a Freedom of Information Act request targeting the CIA and others on October 7, 2003 and May 25, 2004, seeking records concerning the treatment of all detainees apprehended after September 11, 2001 and held in U.S. custody abroad. This, of course, would mean not only in Guantanamo but in the secret prisons in Eastern Europe operated by the CIA.

Not surprisingly, the government stiffed the request, so the ACLU filed a lawsuit in June 2004 in the U.S. District Court for the Southern District of New York. The case ended up in the courtroom of Judge Alvin K. Hellerstein. On September 15, 2004, Judge Hellerstein ordered the CIA and other government departments to "produce or identify" all responsive documents by October 15, 2004.

The CIA claimed that some of the relevant documents were the subject of an inquiry by the CIA's Office of the Inspector General, so its attorneys requested a stay of the judge's order and an extension of time to comply with the request for other documents. In February 2005, Judge Hellerstein denied the CIA's request for a stay, but he did not enforce the stay immediately when the CIA moved for the judge to reconsider his ruling based on additional evidence from the CIA's Director - as the CIA entered a full-court press to prevent the ACLU from getting anything.

This stalling action had been playing out, when news of the destruction of the tapes became public. Now, in the action before Judge Hellerstein, he ACLU has moved to hold the CIA in contempt of court, based on the Judge's September 15, 2004 ruling. It is difficult to see why the CIA is, in fact, not in contempt, given the nature of the FOIA request and the judge's order.

Motion to Hold the CIA In Contempt

On December 6, The New York Times reported that the CIA had destroyed two videotapes of CIA detainees who were being subjected to "aggressive interrogation techniques" - more commonly called torture. The Washington Post soon reported that the destruction of the tapes had occurred in November 2005. CIA Director Michael Hayden publicly acknowledged that destruction, and soon confirmed this statement under oath in testimony to the House and Senate, saying that the destruction had occurred before he became Director.

Passing over who did what and why to focus on the situation in Judge Hellerstein's courtroom, on December 12, of this year the ACLU filed a motion to hold the CIA in contempt of court. The ACLU makes a powerful case that the CIA violated Judge Hellerstein's order of September 15, 2005 - issued before the CIA's apparent destruction of the tapes.

The Court's Order required the CIA to "produce or identify all responsive documents." Those not produced had to be identified. Classified documents were to be "identified in camera [that is, only to the court] on a log produced to the court." Recall, too, that the FOIA request sought information on the handling of all but a few detainees, who were within the United States.

It is well- and long-established law that a court order of this nature requires that the party preserve all information possessed that is responsive to the request. Thus, the CIA was obligated to preserve the tapes even if they were hell-bent on fighting in court to deny them to the ACLU. And as this litigation proceeded, Judge Hellerstein's later orders only served to reinforce that obligation, as a string of precedents makes clear.

What Is Next?


In addition to holding the CIA in contempt for destroying tapes that were subject to an FOIA request that surely reached these videos, the ACLU has also requested that the CIA provide some public disclosure of the facts surrounding the destruction of this material. In addition, the ACLU has requested permission to take depositions of those involved, under oath, and has requested that the court issue a further order barring the CIA from destroying, removing, or tampering with other records that are the subject of the ACLU's FOIA request. Finally, the ACLU is seeking costs for its expenses and such other relief as the Court may deem appropriate.

How this is resolved depends on one factor: Judge Hellerstein. Doubtless, the CIA will respond with papers proclaiming its innocence, and no doubt denying that it was aware of the destruction. However, this is where the Judge himself - if he does not give the ACLU discovery powers - may demand that the CIA tell him what they have been up to, given his clear prior orders.

As I have written before, judges appointed by Republican presidents tend to throw cases that might embarrass Republican presidents out of their court, as quickly as they can figure out how to do so. Federal judges appointed by Democratic presidents, fortunately, do not tend to cower when either Republican or Democratic presidents are involved. A judge ends up with a case like this through a random selection procedure; in this case, the CIA happened to draw a Judge it cannot intimidate, which makes it interesting.

More on Judge Alvin K. Hellerstein, Who Issued the Videotapes Order

Judge Hellerstein was appointed to the federal bench by President Bill Clinton in 1998. An editor of the Columbia Law Review during his law school years, he started his legal career in the Judge Advocate General (JAG) Corps of the Army in 1959-1960. An experienced litigator with a prestigious New York City law firm, he is a highly-respected judge. He works hard, is fair, and is savvy.

He is also a nightmare for the CIA in a case like this, because on June 3, 2005 he ordered the release of four videos from Abu Ghraib, along with dozens of photographs - not withstanding an effort of the government to suppress this material from ever becoming public.

Judge Hellerstein appears to have no tolerance for torture. Unlike his former colleague and now-Attorney General Michael Mukasey, who still is not clear that waterboarding is torture, one does not have the sense that Judge Hellerstein suffers from such confusion. While Judge Hellerstein is going to appropriately protect the sources and methods of the CIA, if any judge is going to get to the bottom of this destruction of these records quickly, this is the judge.

Torture by a Different Name

Last week, George W. Bush gave a speech admitting, for the first time, the CIA's secret detention program. A fuller description of the kind of torture comitted in this detention program is contained in John le Carre's new novel. Called The Mission Song, the novel includes an extended description of torture that takes up several pages of text.

President Bush spared the nation such excruciating details. He spoke vaguely and euphemistically of an "alternative set of [interrogation] procedures" - "tough" and "necessary" tactics that made uncooperative detainees talk.

Although he was conspicuously reticent about the methods used, he spoke at length about the results. In defending the CIA's approach to interrogation, he gave a detailed, though suspect, listing of detainees captured, testimonies obtained, and terror plots foiled.

Anyone familiar with the methods that the CIA has been employing, knows that Bush defended torture. Numerous intelligence officials have leaked information about abusive tactics to the media, and former CIA detainees like German citizen Khalid el-Masri have spoken out about them.

It was an ugly speech, and one made at a profoundly opportunistic moment. Most cynically of all, perhaps, was that the President justified his administration's use of "alternative" methods as part of a "struggle for freedom and liberty." We're "fighting for the cause of humanity," he reminded his audience at the speech's end, seemingly oblivious to the contradiction between means and ends.

Torturous Methods

President Bush was able to deny that the U.S. uses torture because his working definition of the term is so indefensibly narrow. Although the Administration did finally repudiate its 2002 claim that only interrogation methods that caused pain equivalent to that associated with organ failure constitute torture, it still defends methods that cause severe pain.

Last year, for example, former CIA director Porter Goss endorsed water-boarding, a form of mock execution in which the victim feels he is drowning. Goss called it a "professional interrogation technique," implicitly lending support to leaked allegations that the CIA has subjected a number of detainees to the practice.

Bush did not mention water-boarding in his speech, nor did he mention any other specific abusive practice. He explained that if he were to do so, it would help the terrorists learn how to resist questioning. But this explanation is nonsense: The tactics are known and the terrorists already expect them.

What probably kept him quiet about the specifics was either the political risk of going too far, or - one hopes -- a modicum of propriety. It is one thing to consider abuse in an abstract and euphemistic way, but another thing to defend its specific manifestations -- the brutality, the pain, and the damage to the human spirit. Few Americans would feel proud if they had to witness the interrogations that took place at secret CIA prisons; even many veteran CIA agents were appalled.

But by leaving the details unsaid, Bush omitted a crucial part of the story. At least when law professor Alan Dershowitz defended torture, he had the honesty to describe exactly what he was proposing (a sterilized needle under the fingernails was his favored technique).

President Bush wants it both ways: to justify torture, and to pretend that he's not.

The President's Draft Legislation

Besides defending past CIA practices, President Bush's speech had very specific ends. He closed his address by pressing for legislation that would reinstate the military commissions struck down by the Supreme Court, and decriminalize forms of abusive treatment of detainees.

The details of the draft legislation he is proposing may seem tedious, but the end result is of enormous concern. Not satisfied with upending the rules by itself, the Administration now (spurred by Supreme Court losses) wants Congress to help it.

But to call the tribunals that Bush is advocating "military commissions" is nearly as euphemistic as calling torture "alternative procedures." Military lawyers have disowned them, and penal experts all over the world have expressed dismay.

Whatever the president might argue, torture and kangaroo courts are not going to solve the problem of terrorism.

Legalizing Warentless Wiretapping

New legislation that would rewrite the rules governing foreign surveillance wiretaps is making its way through the Senate Judiciary Committee. The legislation's content is predictable: The GOP-controlled Congress is giving the President essentially what he wants, by approving his NSA wiretapping program.

What's surprising, however, is that it appears Committee Chairman Arlen Specter - previously a critic of warrantless wiretapping - is fully on board with the legislation. Based on his public statements, the key to Specter's support is his belief that the legislation sets up a meaningful judicial review of the whole wiretapping program, as well as of the President's authority in this area.

But the proposed legislation seems to do the opposite of what Specter says he intends. Far from ensuring meaningful judicial review of the President's power to engage in warrantless wiretapping, it seems the proposed legislation all but ensures judicial approval of the NSA wiretapping program -- even if the President continues to ignore the FISA court process that he now claims he is willing to honor.

Of course, the proposed legislation raises a host of profound questions. But for present purposes I will limit my consideration to the way it subtly (or perhaps not so subtly) changes the basic constitutional questions that will face a court when the program, under the new statute, is ultimately reviewed.

The Controversial Program, and Specter's Prior Position

The Bush Administration's program of secret warrantless wiretaps has been controversial ever since it was first revealed. Critics charge that the Administration violated the Foreign Intelligence Surveillance Act (FISA) by bypassing the secret FISA Court -- which Congress established more than 30 years ago as the exclusive vehicle for authorizing foreign surveillance wiretaps.

In defense, the Bush Administration has claimed that the President's inherent constitutional power to fight the war on terror justified the bypass of Congress' legislation, and thus of the FISA Court.

Specter put himself on record long ago as a skeptic when it comes to such claims. Indeed, as recently as last week, Specter continued to hound the Administration over its handling of the warrantless wiretap issue. Though sharp questioning, Specter got Attorney General Alberto Gonzales to admit that President Bush had personally intervened to scuttle an internal Department of Justice review of the controversial program.

The legislation that's pending in the Judiciary Committee - touted as a compromise - is meant to resolve the issue, and to quiet those who would make an issue out of Bush's aggrandized view of his own power. The proposed law has been touted as a compromise between the Administration and its critics - one that purportedly has Bush acquiescing in the need to have the FISA Court approve foreign intelligence wiretaps.

In fact, this legislation is no compromise. It aims to render the Executive's compliance with FISA voluntary - and that's Attorney General Gonzales's interpretation, not just my own. It also aims to ensure that no meaningful judicial evaluation of the Bush program will ever take place.

Under FISA, as noted above, the FISA Court is the one-and-only authority for granting permission for foreign intelligence wiretaps; circumventing the FISA Court is illegal, and indeed, a federal crime.

But under the new legislation, this would no longer be the case. Instead, the Executive branch could authorize its very own wiretapping, of its own accord.

To this effect, the proposed legislation adds an explicit disclaimer that the legislation "shall not be construed to limit the constitutional authority of the president to collect" foreign intelligence. And it expressly permits foreign intelligence wiretapping not only as authorized by FISA, but also "under the Constitution" - a clear reference to the President's purported independent power to surveil, which the Administration claims stems straight from our founding document.

This language does something anyone who's been reading the news can see: It incorporates and restates the President's argument regarding warrantless wiretapping - that he has the right to do it, and that this right comes from the Constitution -- instead of in any way backing off from it.

Is it really in any sense a "compromise" if the President can bypass the FISA Court any time he feels like it? Separately, Bush has pledged to seek the FISA Court's permission for future wiretaps. But that pledge is not part of the law, and thus it's a pledge that can be broken or reversed without public notice. What if the President changes his mind - and does so secretly? Surely the Administration may be tempted to route its slamdunks to the FISA Court, and keep its dicey surveillance, in close cases, for in-house authorization, purportedly under the Constitution.

In addition, this language also does something that only those who follow constitutional law may fully appreciate: It tries to control the reviewing court's view of the issue (as well as making sure that this review is not that of the Supreme Court, which recently has been clear about the limits to executive power, but of the FISA court instead).

Here's how the legislation tries to stack the deck in favor of the President's program, ensuring it gets upheld when it gets reviewed in court:

In both Hamdi v. Rumsfeld and this year's Hamdan v. Rumsfeld, the Supreme Court has rebuffed the Bush Administration's claims to broad inherent Executive Power to decide how to treat detainees from the war on terror. And - crucially for our purposes -- in both cases, the Court has reaffirmed the time-honored thinking governing claims of Executive authority in the field of foreign affairs: the analysis that Justice Robert Jackson laid out more than fifty years ago in the "Steel Seizure case," Youngstown Sheet & Tube v. Sawyer.

In Youngstown, the Court invalidated President Truman's attempt to nationalize the steel industry to avoid a potentially crippling labor strike during the Korean War - on the ground that Truman's plan was contrary to Congress's expressed view of Executive Power to intervene in labor disputes.

Jackson concurred in the decision - but the Supreme Court has since enshrined his concurrence into law, most recently in Hamdi and Hamdan. (Some boosters of the Administration thought that in these cases, the Court might back off from, or reframe, the Youngstown test. But they were dead wrong; instead, the Court embraced it - and embraced it generally, not only in the context of detainees.)

Under the Youngstown analysis, the President's powers over foreign affairs fall into three categories, depending on the actions of Congress:

First, when the President acts "pursuant to an express or implied authorization of Congress," his power is "at its maximum."

Second, when the President acts "in the absence of either a congressional grant or denial of authority," the Executive acts in a "zone of twilight" in which Congressional silence may, in effect, "enable, if not invite" independent presidential action.

And third, when the President "takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb."

Under the current state of the law, it is readily apparent that Bush's warrantless wiretapping program fits into this third and most problematic category - where the President's power is at its "lowest ebb." After all, in FISA, Congress gave the FISA Court the exclusive power to authorize foreign intelligence wiretaps and it made it a federal crime to circumvent the court's exclusive authority.

The proposed legislation, however, brazenly attempts to catapult warrantless wiretapping out of the third category, and into the first (or, at worst, the second) - with a little sleight-of-hand. After all, the new law expressly authorizes the President to act outside the FISA framework to the extent he can do so "under the Constitution."

The idea, then, is that if Congress says in the legislation that the President can violate FISA, then a Congressionally-forbidden action is neatly flipped -- converted into an expressly-Congressionally-permitted action under Youngstown.

There is an exquisite circularity to all this. Under Youngstown, the President's authority depends on Congress's expression of its will: Has it spoken to permit him to act, kept silent, or spoken to forbid him to act? Under the new legislation, Congress expresses its will by saying it is not limiting the president's constitutional authority - an authority whose force is, under Youngstown, itself defined by Congress's expression of its will!

Will the sleight-of-hand work with the FISA Court (assuming the legislation's bid to designate the FISA court as the exclusive court here indeed works)? Perhaps, and perhaps not.

On one hand, Congress will surely have spoken to this issue, if this bill has passed - and Youngstown says federal courts must listen when Congress speaks, giving Congressionally-blessed Presidential action only weak scrutiny.

On the other hand, though, on matters of constitutional law, the Supreme Court's opinion, as expressed in its precedent, trumps that of Congress - and thus the FISA Court may give little weight to a Congressional attempt to enshrine in a statute what is, in light of Supreme Court precedents like Hamdi and Hamdan, as well as Youngstown itself, a misreading of the Constitution.

Put another way, even if Congress says in a statute that surveillance comes within the President's constitutional powers, that doesn't necessarily make it so.

That brings us, finally, back to Specter.

According to Specter, the beauty of the new legislation is that the Administration, in a supposedly monumental concession, has agreed to let a federal court "consider the [secret wiretapping] program as a whole and make a decision on" its legality.

But what good does federal court consideration do, if the legislation itself has rigged the Youngstown analysis decisively in the President's favor?

Specter, by all accounts, is a very smart man. Is he betting that the reviewing court will simply put Congress' constitutional judgment aside, and look to precedents like Hamdi and Hamdan instead? If so, he may be untroubled by the carve-out for constitutionally-grounded secret surveillance powers, simply because he's confident the Court will hold the President has none.

Or does Specter read the bill as what it purports to be - a rubber stamp of the President's program, and an attempt to force a federal court to rubber-stamp the rubber stamp? If so, is he simply reversing himself because of some kind of political calculation, or re-calculation?

If Congress wants to endorse what Bush has been doing, it should do so honestly and not pretend that it is setting up a genuine judicial evaluation of the President's power to do what he's been doing. And if Specter has changed his mind, he ought to say so.

The principle at issue here could not be more fundamental: It is that of our Constitution's system of checks and balances. If Congress is going to indeed allow the President unilateral surveillance powers, and if it is even going to try to stop any federal court from standing in the way, then the public should know.




Will Brown Go Down?

Last week, the Supreme Court granted review in two cases involving the use of race in pupil placement in public schools. Though the cases themselves hail from Jefferson County, Ky., and Seattle, Wash., the court's eventual decisions will directly affect hundreds of other school districts across the country that use race in some fashion in determining which students will attend which schools.

The decisions will also go a long way towards revealing whether our newly reconstituted court will be changing from the moderately conservative course it has charted on race issues for the last two decades. And, as I will explain, they will help define the court's take on the highly contested legacy of Brown v. Board of Education.

Brown v. Board of Education is surely the most important legal decision of the 20th century. Its holding alone -- declaring unconstitutional the state-mandated racial segregation of public schools -- was momentous. But its meaning was larger still: Brown stands as a huge milestone in the long American journey to overcome the original sin of slavery and redeem the founders' promise of equality for all.

Although Brown generated enormous controversy and furious backlash in some quarters when it was first decided, the decision (if not every aspect of its analysis) has, by now, become almost universally accepted as constitutional gospel.

But for all its importance, and for all the praise it now receives from public officials and aspirants to judicial office, Brown's historical legacy is still very much in flux. After more than 50 years, we are still rethinking and reshaping what we believe Brown actually means -- both as a legal precedent and, more broadly, as the foundation stone for our constitutional commitments on the issue of race.

The leading commentator on Brown, Richard Kluger, described the opinion's moral and historical significance as "nothing short of a reconsecration of American ideals" -- rightly so. Yet we are still working out which ideals, exactly, the decision actually champions.

I remember my constitutional law professor, Burke Marshall (who had been head of the Civil Rights Division in the Kennedy administration) putting the following questions to me:

Does Brown mean only that states cannot require blacks and whites to go to separate schools?

Or, when Brown says that separate educational facilities are "inherently unequal," is it mandating some form of actual integration by creating a right for black school children to attend a racially mixed school?

Or, did Brown mean something in the middle? Did it mean that, on the one hand, states had to remedy their own affirmative acts of segregation by affirmatively eradicating the effects of past segregation, but, on the other hand, government did not otherwise have to provide for racially balanced school systems?

Or, alternatively, is Brown, when read against the backdrop of America's tragic history of race relations, best viewed as calling for a "color-blind" Constitution -- one in which government may basically never use race as a factor in its decision making, even when the government is seeking to help minorities instead of stigmatizing them?

Every one of these positions can be plausibly defended as a way to interpret Brown. In this sense, Brown is something of a Rorshach test for one's views about the nation's complicated history of racial oppression, and its attempts to rectify the consequences of this past.

Now, the new Roberts court -- as deeply divided about this issue as about any other, and including two new justices -- is about to take this test again.

The facts of the cases before the court

The first case, from Kentucky, involves what is known as a "managed choice" plan -- one in which the school district actively seeks to maintain racial balance in its schools. Jefferson County, Ky., which once ran a segregated system, administers its managed-choice system in a way that takes into account student-parental choice, while also ensuring that each of its schools maintains a minority enrollment of between 15 percent and 50 percent. The district as a whole is made up of roughly one-third minority students.

The second case, which comes from Seattle, Wash., involves an "open choice" plan. Under this plan, parents get to choose which school to send their children to. But when schools are oversubscribed, the school district uses certain "tie-breaking" factors to determine which applicants will actually get to attend the school of their choice.

Under some circumstances, those factors include race. Specifically, if an oversubscribed school is racially imbalanced -- meaning that the school's racial balance departs by more than 15 percent from the minority-majority balance of the district as a whole -- then the race of the applicant may be considered in the district's school placement decision.

Seattle's race tie-breaker can effect both white and minority students. A white student might be moved out of a school that had disproportionately few minorities, despite that student's preference, and by the same token, a minority student might be moved from a disproportionately minority school, despite the student's own choice.

The Jefferson County and Seattle programs survived constitutional challenges in the lower federal courts. Both the U.S. Court of Appeals for the Sixth Circuit (in the Jefferson County case) and the U.S. Court of Appeals for the Ninth Circuit (in the Seattle case) ruled that the respective placement programs did not violate the Equal Protection Clause of the Fourteenth Amendment.

Applying the rigorous test the Supreme Court mandates when governmental programs that use racial classifications are at issue, the two circuits deemed their respective programs "narrowly tailored" to advance "a compelling governmental interest."

In reaching this conclusion, the lower courts were applying the test with special attention to the Supreme Court's 2003 decision in Grutter v. Bollinger. There, a narrow majority of justices approved the University of Michigan Law School's affirmative action in admissions program and held that the government has a compelling interest in the societal and educational benefits that flow from diversity in the classroom.

As the Sixth and Ninth circuits recognized, the Jefferson County and Seattle plans sought to advance much the same kinds of interests that were involved in Grutter. In the view of the school districts, diversity in schools improves the critical thinking of students, improves race relations in the community and creates a healthier body politic by inculcating tolerance and other positive values in a new generation.

Neither the Sixth Circuit nor the Ninth Circuit saw any reason to second-guess the empirical and experiential views of these local educators about the compelling benefits of diversity. And, indeed, the court in Grutter had recognized the appropriateness of deferring to such local judgments.

But -- and it's a major " but" -- Grutter was a 5-4 decision in which Justice Sandra Day O'Connor, now retired, wrote the majority opinion. Her swing seat on race issues is now occupied by Justice Samuel Alito, who in the past has expressed quite conservative views on these matters, including a strong aversion to affirmative action. As a result, when the court hears the Jefferson County and Seattle cases, the Grutter-based principles that guided the lower courts will themselves be up for grabs.

Which brings me back to Brown and its legacy. It may be that Brown was never intended to require states to create and maintain integrated schools. And, to be sure, Brown stands as a cautionary tale about the government using race as a factor in its decision making.

But can it really be that the Constitution should be interpreted as preventing government officials from voluntarily seeking to maintain integrated schools, especially when they do so in a way that gives no racial preference and creates no racial stigma?

This is the point underlying a powerful opinion written by Ninth Circuit Judge Alex Kozinski, concurring in the decision upholding the Seattle plan. As Judge Kozinski correctly observes, the effort to maintain racial balance in public schools does not come with the poison that ordinarily infects the use of race by government. There is nothing about these plans that is designed to oppress racial minorities, as the pre-Brown apartheid system did. Nor do the pupil placement systems give one racial or ethnic group an edge over any other. Nor do the programs promote segregation of the races, which can be an evil in itself.

We should blind ourselves to these nuances, Judge Kozinski wisely counsels. Under the Lexington and Seattle plans, individual white and minority students alike may be disappointed in their ultimate school assignment. But in creating these disappointments, school officials are placing no value on one race or another. They are simply seeking to ensure that their schools bear some racial resemblance to their communities as a whole, while recognizing the important truth that we all benefit from developing an ability to interact with those who come from different cultural and racial backgrounds than our own.

Those who advocate a kind of purely color-blind Constitution that would prohibit the Lexington and Seattle programs often quote Martin Luther King Jr.'s famous dream about a nation in which his children would be "judged by the content of their character and not by the color of their skin." Fair enough.

But that wonderful speech had another image in it. King also dreamed of day when little black boys and girls would join hands with little white boys and girls as brothers and sisters. This was a dream, I would argue, that had its birth in Brown.

It is no secret that our public schools remain, as a practical matter, largely segregated -- notwithstanding Brown and all the progress that has been made with respect to racial equality. It would be a tragedy if the Supreme Court abandoned King's dream by prohibiting elected officials from bringing kids of every color to every schoolyard, so that the hand-holding of the next generation may begin.

Torture in the Court

After threatening a veto, the Bush administration has finally acquiesced to the passage of the McCain Amendment, aimed at protecting detainees in U.S. custody from torture and other abuse. The measure, named for its sponsor, Senator John McCain, is likely to pass Congress this week and be signed into law.

That's the good news.

The bad news is that the McCain Amendment was part of a larger package that takes some dismaying steps backward in the treatment of detainees. Think of the Detainee Treatment Act of 2005 as McCain plus anti-McCain: protection plus protection-stripping. Think of it, in other words, as a self-contradictory political compromise.

Via provisions that bar detainees from bringing suits against torture and abuse, the bill stops them from enforcing the very rights that the McCain amendment is supposed to protect. And it undercuts the McCain protections in another important way, as well: by permitting statements obtained coercively to be relied upon in quasi-judicial proceedings.

The United States has never before legally endorsed the use of testimony obtained via torture or other coercive methods. But in a worrying precedent, the new detainee bill implicitly allows review boards at Guantanamo to rely on such evidence in determining whether prisoners should be classified as "enemy combatants."

The bill's language on this question is somewhat oblique. It does not specifically state that statements obtained coercively are admissible before combatant status review tribunals. Rather, it provides that the review boards, in reaching a decision on the status of a detainee, should consider whether statements supporting that decision were obtained under coercion.

If the statements were obtained coercively, the boards are instructed to assess the "probative value" of those statements.

The bill's reference to the probative value of statements obtained coercively - i.e., through torture or other abuse - points to a well-known problem: When torture is used, the resulting testimony is unreliable: people will often say anything to stop the abuse.

But the bill does not definitively bar statements obtained under torture or other abuse. Instead, it leaves open the possibility that a review tribunal will find that a statement obtained coercively is nonetheless reliable. And by leaving the possibility open, it indicates that such statements may be used.

Waterboarding for Testimony

News headlines over the past eighteen months have made it clear that there is nothing hypothetical about the scenario that the bill envisions. Many detainees in U.S. custody have been physically abused; some have been tortured, and a few have apparently been beaten to death.

And yes, some of the terrorism suspects in U.S. custody have talked. Khalid Sheikh Mohammed, whom the 9/11 Commission called "the principal architect" of the September 11 attacks, was allegedly subject to waterboarding, a form of simulated drowning, while in CIA custody. His statements, said to be voluminous, have probably already been by combatant review boards.

Statements by him and by other detained al Qaeda suspects will also likely provide much of the factual basis for the military commission prosecutions.

So why not allow such statements, if the court or administrative body takes their origins into account? First, as mentioned above, statements obtained under torture are untrustworthy. A court or administrative body might be tempted to rely on them in the absence of opposing evidence, but the risk of a wrongful outcome is high.

Second, their use in court and administrative proceedings is illegal under international law. Article 15 of the Convention Against Torture, a treaty that the United States has ratified, requires that governments 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." (The treaty has an exception, however, for the statement's use in the trial of the person accused of committing the torture.)

But most importantly, torture is abhorrent to fundamental values and its use in judicial proceedings shames a democratic state. Just two weeks ago, Britain's highest judicial body forcefully reaffirmed this notion, ruling that evidence obtained under torture may not be relied upon by British courts. Unsurprisingly, several of the law lords hearing the case referred directly to U.S. practices at Guantanamo Bay.

As one law lord explained, the use of torture "corrupts and degrades the state which uses it and the legal system which accepts it."

"Torture is not acceptable," another law lord stated categorically. "This is a bedrock moral principle in this country."

Until recently, one would have thought that it was a bedrock moral principle in ours, as well.



Trusting the Torturers

"Trust but verify," Ronald Reagan once said, describing his approach to Soviet arms reduction efforts. The unspoken corollary to his admonition was that promises alone are worthless.

But even empty promises are tempting when the recipient wants to believe them. And so it is with the U.K. government, which has been making arrangements for the return of security suspects to countries that practice torture. Last week, the British signed an agreement with Jordan that affirmed that deportees to the latter country would not be mistreated. It is believed to be negotiating with nine other countries, including Egypt and Algeria, to obtain similar pledges.

Still reeling from recent terrorist attacks, the U.K. is seeking easy ways to deport foreigners perceived as security threats. But its zeal to be rid of unwanted guests should not blind it to the dangers of its current approach.

Jordan, like Egypt and Algeria, is a country in which prisoner abuse is a serious risk. The "Memorandum of Understanding" that the U.K. and Jordan signed last week will not fix this problem. Nor should such paper assurances convince the British government that any deportees it sends to Jordan will be safe.

"Diplomatic Assurances"

International law establishes an absolute prohibition against torture. The prohibition includes, specifically, an obligation not to send a person to a country where he or she is at risk of ill-treatment.

At present, despite some recent improvements, the risk of torture in Jordan remains real. In its 2004 report, the National Center for Human Rights, an official body, stated that it had logged more than 250 prisoner complaints alleging torture or ill-treatment. Last September the Center announced that a detainee had died in Juwaida Prison as a result of torture.

The "diplomatic assurances" that the U.K. just obtained -- Jordan's formal guarantees that it will treat returned persons in accordance with its human rights obligations -- do not obviate this risk. Diplomatic assurances have already been tried by several other European countries. The record so far gives few reasons to believe that they work.

Reviewing the recent use of diplomatic assurances in Sweden, Austria, Germany and Turkey, among others, Human Rights Watch found them to be ineffective in preventing torture. In an April 2004 report, the organization detailed cases where persons returned based on diplomatic assurances were in fact tortured or ill-treated.

As Human Rights Watch has explained, diplomatic assurances are based on trust, and on trust that itself lacks a firm basis. Governments in states where torture is practiced almost always hide the problem, denying its existence. Where such official assurances are unreliable as a general matter, they will probably also be unreliable in any given case. And it defies common sense to presume that a government that routinely flouts its binding obligations under international law can be trusted to respect those obligations for reasons of diplomatic courtesy.

The Agiza Case

The case of Ahmed Agiza and Mohammad al-Zari is instructive. In December 2001, the two men were expelled from Stockholm to Cairo even though the Swedish authorities had previously determined that the men had a well-founded fear of persecution if returned to Egypt. The government ordered their expulsions based on assurances from the Egyptian authorities that the men would not be subject to the death penalty, torture or ill-treatment, and that they would receive fair trials.

It was subsequently revealed that the men were handed over to U.S. operatives at Bromma Airport in Stockholm; hooded, shackled, and drugged; placed aboard a U.S. government-leased plane; and transported to Cairo. They were held in incommunicado detention for a full five weeks before the Swedish ambassador to Egypt visited them.

The men have credibly alleged that they were tortured and ill-treated in those five weeks and that the abusive treatment continued even after Swedish diplomats began monitoring them. A classified Swedish government report from January 2002 indicated that the men told the Swedish authorities about this abuse, but the Swedish government took no action and in fact omitted these allegations from its public reporting on the cases.

While al-Zari was finally released from prison without charge, Agiza was put on trial in April 2004. (He had been tried in absentia in Egypt in 1999 and sentenced to 25 years of hard labor.) The trial was conducted in a special military court, and the proceedings were flawed by serious violations of the right to a fair trial. In the course of the proceedings, Agiza told the court that he had been tortured in prison and requested an independent medical examination, which the court denied.

The Swedish authorities were denied access to the first two of the four trial hearings, and did not take action on Agiza's claims that he was tortured. But they did finally acknowledge that Agiza's trial was unfair.

In May, the U.N. Committee Against Torture ruled that Sweden had violated the ban on torture by expelling Agiza to Egypt. The committee concluded that the procurement of diplomatic assurances from Egypt, which included no mechanism for enforcement, were insufficient to protect against the manifest risk of torture.

"Prompt and Regular Visits"

The Memorandum of Understanding that the U.K. signed with Jordan purports to have a mechanism for post-return monitoring of detainees. It includes a provision for detainees to have "prompt and regular visits" from a representative of an independent body nominated by the two countries. And it stipulates that such visits "will include the opportunity for private interviews with the returned person."

But this monitoring mechanism provides little additional safeguard against abuse. First, it should be noted, neither Jordan nor the U.K. has any incentive to expose violations. Jordan, of course, could be implicated in torture or ill-treatment, and the U.K. could be implicated in violating the prohibition against returning people to a country in which they face torture.

Second, it is difficult to ensure that detainees will feel confident enough to report any abuse. Terrified prisoners often do not report mistreatment because they may have to face their torturer as soon as the prison visitor leaves.

And perhaps most importantly, the agreement lacks an effective mechanism to secure compliance. It does not establish a penalty for failure to abide by its terms, nor does it even provide that the abused prisoner would be returned to the U.K.

As an agreement based on trust, it reflects wishful thinking where, instead, a healthy skepticism is appropriate.

A Black Robe of Her Own

The news that Sandra Day O'Connor, rather than William Rehnquist, will be the first Supreme Court Justice to retire on President Bush's watch, complicates the calculus for naming a successor. O'Connor's retirement leaves Ruth Bader Ginsburg as the only woman on the high court. And while one female Justice may have seemed sufficient when President Reagan took the historic step of naming O'Connor in 1981, today it is difficult to see why the Court should not, like the country whose laws it interprets, consist of roughly equal numbers of men and women.

Accordingly, President Bush and the Senate will likely feel some pressure to name a woman to fill O'Connor's seat. Is that pressure legitimate?


The considerations are complex, but we can find considerable guidance in some of the legal opinions Justice O'Connor herself has written.

The Long History of Naming Justices for Reasons Besides their Legal Acumen

Although the idea that the Supreme Court should reflect the gender diversity of the nation as a whole may be of recent vintage, the broader notion that criteria other than that of a candidate's legal acumen may be relevant, is as old as the American Republic. Most obviously, party politics has been a constant factor in judicial nominations and confirmation battles.

The Democratic-Republican Party of Thomas Jefferson campaigned constantly against the Federalist judges named by the predecessor administration of John Adams. Indeed, Jefferson's party tried--albeit with limited success--to change the law by naming Justices who would side with Jefferson's own more constrained view of national power.

President Franklin Delano Roosevelt was unable to persuade a Congress controlled by his own party to pack the Court by increasing its membership. Nevertheless, he had little difficulty transforming the law by appointing Justices in the ordinary course of over three terms in office.

And of course, party politics continues to matter a great deal to this day. No one expects President Bush to nominate a Democrat (unless he picks a mere nominal one like Zell Miller). It has long been true that Presidents and Senators alike consider party affiliation and ideology in, respectively, nominating and confirming judges.

There is, to be sure, an important difference between considering, on the one hand, politics and ideology, and on the other hand, factors like gender, in naming judges:

Politicians proudly and legitimately aim to fill the courts with judges who share their approach to interpreting the Constitution and the nation's laws. Although competition between ideological adversaries may lead, on average, to some measure of ideological diversity on the courts, no politician consciously strives for such diversity. We would be surprised indeed to learn of a conservative Senator who said to himself: "There are enough conservatives on the Court; I'll only vote for a liberal" (or vice-versa). In contrast, while ideological sameness is a goal openly sought, these days no one would openly seek a court made up of Justices alike in gender, race, or religion.

Thus, diversity considerations are importantly different from political ones. Yet diversity considerations, too, have a long pedigree. For most of American history, the key axis of diversity was regional. Presidents paid attention to the balance of Northerners and Southerners, Easterners and Westerners. (Former Supreme Court Justice William O. Douglas titled his autobiography "Go East, Young Man," and it made clear that his record as a public servant in Washington, D.C. was shaped by his early years in the state of Washington, on the other side of the continent.)

Ethnic and Racial Identity

In the Twentieth Century, as regional identity became relatively less important, ethnic, racial, and gender identity assumed greater significance in society, and thus in judicial politics.

Thus, for many years there was an unofficial "Jewish seat" on the Court. (Two members of the current Court--Ginsburg and Breyer--are Jewish, but neither appears to have been chosen with religion especially in mind. While Breyer formally occupies what had been regarded as the "Jewish seat," his immediate predecessor in it was Harry Blackmun, a Methodist.)

Although not routinely described in these terms, there now appears to be an African-American seat on the Court. President Lyndon Johnson named Thurgood Marshall as the first African-American Justice in 1967, and when Marshall retired in 1991, the first President Bush named another African-American, Clarence Thomas, to succeed him.

Given Thomas's very brief tenure as a federal appeals judge, many commentators dismissed Bush's description of Thomas as "the best qualified" person for the job as mere hyperbole--a transparent fiction designed to cover up the fact that a President who officially opposed the use of racial preferences for most jobs, was resorting to one in picking a Supreme Court Justice. (The fiction was doubly necessary because Thomas himself was an outspoken critic of race-based affirmative action.)


Nonetheless, there is a sense in which Thomas really was the best qualified person for the job, at least from the perspective of the first President Bush. Understanding the sense in which this was true will shed light on the question of whether the current President Bush can legitimately treat gender as a qualification for the successor to Justice O'Connor.

We might begin by asking why race-based affirmative action is controversial in most contexts. The answer appears straightforward: If someone applies to be a carpenter, accountant, or cook, the applicant's race would appear to have no relevance to the job. We can judge the applicant's qualifications by the quality of his or her work. Giving a preference for members of traditionally disadvantaged minority groups--however justifiable as a response to past discrimination or on other grounds--represents a departure from the generally accepted principle that the job should go to the person best able to perform it.

In some jobs, however, race is not simply an added extraneous factor that distorts the otherwise meritocratic process. Race can be a qualification in itself.

Consider, for example, the job of a police officer whose beat consists of a largely African-American community that is distrustful of the police because of a history of racially charged incidents. Police officers who are able to gain the trust of the community will do a better job of keeping the peace and apprehending lawbreakers than will officers whom the community distrusts. Thus, if--as will frequently be the case--African-American officers more readily gain the trust of the community, then race will be, or at least legitimately may be, a qualification for the job.

How Judging is Like Policing

So, is being a judge more like being a carpenter or like being a police officer? Interestingly, different judges and Justices would likely give different answers.

Justice Thomas calls himself an "originalist." So does Justice Scalia. They believe that statutes and constitutional provisions should be construed by figuring out what the people who enacted them thought they meant. Now, if that's the job of a Justice, it's hard to see how race or sex could be relevant. To be qualified to be a Justice, one needs to be skilled at reading historical materials. Considerations of race or sex would simply be extraneous politics.

But most Justices are not thoroughgoing originalists, and certainly Justice O'Connor was not. Justice O'Connor thought the original understanding of any authoritative text was certainly an important starting point, but she typically considered also how that text might have changed over time through its application to new circumstances. She also acknowledged what originalists often deny: that where the law is unclear, Justices make value judgments.

Justice O'Connor never argued that her job was to substitute her values for those of Congress, the states, or other elected officials. Quite to the contrary, she sometimes chided her fellow Justices for doing just that, as in her dissent earlier this year in Roper v. Simmons. There, she argued that the majority had presented insufficient evidence of a national consensus that Americans deemed the juvenile death penalty "cruel and unusual."

Accordingly, for Justice O'Connor--as for the Justices with whom she disagreed in Roper--the task was not simply to enact her own values into law by judicial fiat. In construing a Constitution that limits majority rule, but does so through often open-ended language, Justice O'Connor tried to "channel" the deepest values of the American people--abstracted from the will of any ephemeral local, state, or national electoral majority.

Seen in this light, racial, ethnic, and gender diversity on the Court begin to look very much like qualifications for the job, rather than extraneous considerations. For it only stands to reason that nine men and women from different ethnic, religious and racial groups, from different parts of the country, and with different experiences, will do a better job deliberating about the values most deeply held by "We the People," than will a monolithic group.

Justice O'Connor's Own Warning: Appearances Matter

Yet if the Court should, on balance, reflect the diversity of the American people, there nonetheless remains something distinctly troubling about the idea that a retiring African-American Justice must be replaced by a new African-American Justice, or that a woman must replace a woman.

In the 2003 case of Grutter v. Bollingera 5-4 decision that could well be overruled following the confirmation of Justice O'Connor's successor--the Court upheld the University of Michigan Law School's program of race-based affirmative action in student admissions. Writing for the majority, Justice O'Connor found that the school had a compelling interest in a diverse student body. At the same time, however, she reaffirmed a longstanding prohibition on strict quotas or set-asides. Race could be a "plus-factor," but not the decisive factor, she emphasized.

As critics of this distinction have long noted, it is highly manipulable. If a sufficiently large plus is granted for race, then it becomes a de facto quota.

Nonetheless, Justice O'Connor adhered to the distinction between quotas and plus factors on the ground that, to quote her 1993 opinion in Shaw v. Reno, "appearances do matter." There, writing for a five-Justice majority consisting of herself and all the Justices who would later dissent from her opinion in the University of Michigan case, Justice O'Connor invalidated a bizarrely-shaped voting district that had been drawn with the clear purpose of maximizing the number of African-American voters contained within it.

Although Shaw and later cases allowed some consideration of race in the drawing of district lines, for Justice O'Connor, the obvious use of race--whether in admissions quotas and set-asides, or in the creation of voting districts--was beyond the pale.

Why? Among other reasons, because when race or sex is the obvious controlling factor in some decision--whether to admit a student to a law school class or to place a voter in one district or another--then the people who are the objects of the decision come to see themselves simply as representatives of their race or sex.

Hence, Justice O'Connor's opinion in the University of Michigan case approvingly described the school's goal of admitting a "critical mass" of minority students, which would ensure that no student would feel as though he or she spoke (or was compelled to speak) for the entire group.

What does all of this mean for the President's decision whether to nominate a woman to succeed Justice O'Connor? The answer is unclear.

On the one hand, it is widely rumored that not a single woman's name appeared on the short list of candidates whom President Bush was considering nominating to the Court in the event that the Chief Justice retired. Under these circumstances, to nominate a woman would reinforce the troubling notion that O'Connor's is a "woman's seat."

On the other hand, failure to name a woman to the seat vacated by Justice O'Connor would mean that Justice Ginsburg would be the only woman on the Court, inevitably leading her seat to be regarded as the "woman's seat." It would then take even longer to achieve rough gender balance on the Court.

Perhaps the best solution is something like the compromise suggested by Justice O'Connor in the University of Michigan case. Noting that race-based affirmative action was never meant to be a permanent feature of university admissions, and that twenty-five years had elapsed since the Court had first approved the practice, Justice O'Connor expressed the expectation that in another twenty-five years, racial preferences would no longer be necessary.

So too, perhaps in the appointments context we should focus on the long term. We should hope and expect that by 2030, if not earlier, the Court's membership will consist of roughly equal numbers of men and women, rendering any talk of a "woman's seat" archaic. That would be a fitting legacy of Justice O'Connor's distinguished career.

A Change of Heart

As 2004 drew to a close, the Office of Legal Counsel of the United States Department of Justice took an important step towards restoring its own integrity: It released a memorandum essentially repudiating its earlier analysis of the circumstances under which someone could be found criminally liable for engaging in torture. That earlier memorandum of August 2002 had turned intellectual somersaults to find loopholes and excuses for the commission of what a lay observer would surely consider torture.

The new memo, in contrast, is fair-minded and reasonable. Accordingly, its author, acting Assistant Attorney General Daniel Levin, deserves considerable praise. As I explain below, the memo definitively repudiates two of the most outrageous positions set forth in the August 2002 memo: the almost impossibly high threshold for finding an act of torture; and the contention that a torturer can escape criminal liability if he engages in torture with a noble goal in mind, such as to extract vital information from the torture victim.

In one particular, however, the new memo could have gone further. The August 2002 memo had set forth a third outrageous proposition: that Congress lacks the power to prohibit torture undertaken at the behest of the president, acting in his capacity as commander in chief. Although the new memo laudably declines to endorse this view, it does not formally repudiate the position either.

That is unfortunate, because the August 2002 memo's contentions regarding the wartime powers of the president are truly frightening. They deserve to be repudiated expressly and unequivocally.

The Political Background of the Torture Memos

The Office of Legal Counsel (OLC) provides legal advice to the Executive Branch of the federal government on important matters of public policy. Its August 2002 memo was signed by Jay Bybee, then the head of OLC and now a federal appeals court judge. Judge Bybee, who was confirmed by the Senate before the memo came to light, has refused to comment on it.

Much of the political heat produced by the Bybee memo has accordingly been directed elsewhere – at the Bush Administration in general and at White House Counsel Alberto Gonzales, to whom the memo is addressed, in particular. Gonzales will shortly face his own Senate confirmation hearings on his nomination to become attorney general. When he does, he will likely be asked why he sought legal advice about the "standards of conduct" under the international treaty and the federal statute barring torture.

The August 2002 memo recites OLC's understanding that the torture issue arose "in the context of the conduct of interrogations outside of the United States." One can reasonably infer, therefore, that the Bush administration, with the approval of Gonzales, was interested in pushing the envelope in its treatment of suspected al Qaeda terrorists and others detained in Afghanistan, at Guantanamo Bay and elsewhere.

That inference receives further support from reports of the treatment of prisoners in Iraq. Together, the evidence suggests that U.S. military and civilian interrogators were given the green light to engage in practices that the International Committee of the Red Cross has described as "tantamount to torture."

The Senate is thus entitled to inquire whether Gonzales knew or should have known that his request for legal advice regarding potential criminal liability for torture was part of a scheme to authorize – or at least turn a blind eye towards – torture.

In the wake of last week's release of the new memo, some commentators have suggested that the administration is hoping to defuse the potentially explosive issue of the role Gonzales played with respect to the August 2002 memo. If that is the administration's hope, however, it seems a vain one; the fact that OLC has now repudiated the views it expressed earlier sheds little light on Gonzales' fitness to serve as the nation's chief law enforcement officer.

If one were to conclude that Gonzales showed poor judgment and disrespect for the rule of law by asking for the August 2002 memo, then it is hard to see how OLC's more recent change of heart would alter this conclusion. A confession of error by Gonzales himself might be relevant, but why should an about-face by OLC be relevant?

The Legal Significance of the OLC Memos

These political considerations will be addressed when Gonzales goes before the Senate. For now, let us focus on the law. What is the legal significance of the August 2002 memo and the December 2004 memo repudiating it?

OLC memos do not have the force of law in quite the way that opinions of the Supreme Court do, but neither are they mere opinion pieces in the way that, say, a scholarly article or a law professor's column on FindLaw's Writ is. OLC is often asked to address constitutional issues that will never to make it to court – what lawyers call non-justiciable political questions. In these circumstances, the formal advice of OLC may be the only sort of "precedent" that exists.

Moreover, although the head of OLC and the top deputies are political appointees, the office as a whole has long had a culture of independence. The dedicated and talented lawyers who work at OLC typically see themselves not as mere servants of the Administration that happens to seek their advice, but also as keepers of an inter-generational trust. Thus, one commonly sees OLC memos taking seriously the views expressed in prior OLC memos prepared for Presidents of either political party. The OLC under Republican administrations approvingly cites the memos of its predecessors in Democratic administrations, and vice-versa.

Against this background, the August 2002 memo can only be described as a serious departure from longstanding OLC practice. In content and tone, the memo reads much like a document that an overzealous young associate in a law firm would prepare in response to a partner's request for whatever arguments can be concocted to enable the firm's client to avoid criminal liability.

The December 2004 memo, however, is markedly different. Although its analysis is no less lawyerly than that contained in the August 2002 memo, it shows a sensitivity to the important role that OLC plays in shaping national policy – a sensitivity that was sorely lacking in the earlier memo.

How Severe is the Pain or Suffering that Torture Must Cause?

As its title suggests, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Acts, prohibits not only torture but also less serious forms of cruelty, inhumanity and degradation. The United States ratified the Convention and subsequently enacted federal legislation that defines torture and establishes criminal liability for Americans and others found in the United States who commit torture abroad.

Significantly, however, the federal statute does not impose criminal liability for cruel, inhuman, or degrading acts. Under a reservation adopted by the Senate when it ratified the U.N. Convention, such lesser acts are equated with treatment that would be considered unconstitutional under the Fifth, Eighth, and Fourteenth Amendments.

The August 2002 memo seizes on the distinction between, on the one hand, torture, as defined in both the U.N. Convention and the U.S. implementing legislation as the infliction of "severe pain or suffering," and, on the other hand, "mere" cruel, inhuman or degrading acts. The basic strategy of the August 2002 memo on this point is to treat all but the most horrific acts as insufficiently severe to constitute torture. Thus, the August 2002 memo sets the torture threshold at "excruciating and agonizing" pain. or pain "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

Although the December 2004 memo recognizes that the plain text of the Convention and federal law do distinguish between torture and lesser degradations, it disavows the extremely high threshold advocated in the August 2002 memo.

To be sure, the new memo is not especially helpful in establishing exactly how much pain or suffering is necessary to count as "severe." For the most part, the memo simply describes cases in which the courts have and have not found torture to have occurred.

But this is probably the prudent course. Cruel, inhuman and degrading forms of treatment are, after all, no more lawful than torture, even if they do not give rise to criminal liability in the U.S. courts. To draw sharp distinctions between torture and these "lesser" horrors, as the August 2002 memo attempted to do, could only serve to signal to potential torturers how they can avoid imprisonment while still inflicting great pain and suffering. OLC apparently now realizes that it is inappropriate to send such signals.

When, if Ever, is Torture Justified?

Perhaps the most jarring aspect of the August 2002 memo was its argument that a defendant could escape criminal liability for committing torture by presenting a defense of necessity or self-defense.

Under either defense, the torturer could argue that he tortured his victim in order to prevent some terrible harm. To use the classic example, one could claim that he had in custody a suspect believed to have planted a time bomb that, if not defused, would kill many innocents. If the defendant reasonably believed that by torturing the suspect, he would learn the location of the bomb and thus save the innocents, the argument goes, he cannot be punished for having done so.

The notion that torture is sometimes morally justified has real appeal. If one stipulates sufficiently great certainty of a catastrophe, all but the most punctilious Kantians will be tempted to say that it is better to torture the terrorist than to allow the catastrophe to occur.

The difficulty, though, is that the real world provides probabilities rather than certainties. Categorical prohibitions against torture like the one contained in the U.N. Convention and federal law are based on the sensible assumption that if torture is condoned in the extreme case of the known terrorist who has certainly planted the ticking time bomb, security officers will come to believe that they hear bombs ticking everywhere, and will use torture against people merely suspected of posing a security threat.

Only by prohibiting torture under all circumstances, such laws assume, can we prevent an extremely limited authorization, for torture in extreme circumstances, from becoming a license for routine torture.

It is possible that this logic is wrong. Perhaps, as Alan Dershowitz and others have argued recently, careful regulation can prevent us from slipping down the slope from rare to common torture.

But if so, that is an argument for a dramatic change in the law, rather than an argument for reading nonexistent exceptions into the existing international and U.S. categorical bans on torture. The August 2002 memo, in proposing such exceptions, would have gutted the laws it purported to interpret.

Accordingly, the December 2004 memo states unequivocally that "there is no exception under the statute permitting torture to be used for a 'good reason.'"

Can Congress Limit the President's Ability to Order Torture?

The principal disappointment in the December 2004 memo is its failure to condemn the view of Presidential power expressed in the August 2002 memo. That earlier memo asserted that "the President enjoys complete discretion in the exercise of his commander in chief authority and in conducting operations against hostile forces." It argued that Congress lacks the constitutional power to limit the President's decisions about how to treat captives.

The August 2002 memo had attempted to justify these sweeping propositions largely by presenting selective, out-of-context citations of broad language in a few Supreme Court opinions, and citing OLC's own recent post-9/11 memos.

The December 2004 memo should have unequivocally repudiated the unlimited view of presidential power espoused in August 2002. Article I, Section 8 of the Constitution commits to Congress the authority "to make Rules concerning Captures on Land and Water." From this language, Congress' authority to limit the President's treatment of captives is clear.

If the August 2002 memo's view of Presidential power were accepted, the president could unilaterally order discipline of U.S. service members even if that discipline clearly contradicted the Uniform Code of Military Justice, enacted by Congress. He could even order that all enemy captives be shot, notwithstanding clear treaty obligations to the contrary. These extreme examples show the absurdity of any claim that the president has an entirely free hand in the treatment of captives or the conduct of war more generally.

The December 2004 memo, by its terms, "supersedes the August 2002 Memorandum in its entirety." For that reason, the August 2002 assertion of the president's virtually unlimited power as commander in chief can no longer be said to constitute official OLC policy.

However, the December 2004 memo does not specifically disavow the August 2002 view of presidential authority. Deeming analysis of such power "unnecessary," the December 2004 memo simply declines to address the subject.

Why did the memo's author feel it was unnecessary to address this key point? The memo itself claims that "[c]onsideration of the bounds of any" presidential authority to authorize torture in violation of Acts of Congress "would be inconsistent with the president's unequivocal directive that United States personnel not engage in torture."

But this explanation for the new memo's reticence as to the scope of presidential authority does not quite wash, for none of the OLC analysis is, strictly speaking, necessary; if the new memo had been limited to necessary analysis, there would have been no memo at all.

Given that U.S. personnel are not supposed to engage in torture or cruel, inhuman or degrading treatment of prisoners, there is no necessity to clarify the line between the two categories of forbidden conduct; yet the December 2004 memo does just that. Similarly, with respect to the question of whether there is a good-reason exception to the torture prohibition, and a number of other issues, the December 2004 memo does not simply wash away the conclusions of the August 2002 memo; it affirmatively draws contrary conclusions.

Accordingly, one is left to worry that OLC declined to assert limits on presidential authority because OLC may continue to entertain a dangerously broad view of that authority.

Nonetheless, putting aside the legitimate worry about what the December 2004 memo does not say about presidential power, the memo is, on the whole, a most welcome development. Whatever the actual motives of the Justice Department officials who released it when they did, the memo itself should have the salutary effect of communicating to personnel overseas that the U.S. neither encourages nor tolerates torture.


Outsourcing Detention

Ahmed Abu Ali, a 23-year-old Northern Virginia man, is being held without charges in Saudi Arabia. Arrested in June 2003, he has spent 18 months in custody but has yet to see a lawyer.

Omar Abu Ali, Ahmed's father, says that after his son was arrested in Saudi Arabia, he and his wife turned to the U.S. State Department for help. Publicly, the State Department proclaims that one of its "most essential tasks" is to provide assistance to U.S. citizens incarcerated abroad. Because detainees in Saudi Arabia often face torture and other abuse, Abu Ali's parents must have imagined that U.S. efforts could be critically important in protecting their son.

As the weeks went by, Abu Ali's parents received worrying reports that their son was indeed being tortured. They claim that an eyewitness informed them that Ahmed's hands were in such pain that he was unable to pick up a pen.

But perhaps more shocking than what Abu Ali's parents learned about their son's treatment, was what they discovered about its causes. A U.S. district court ruling issued last week cites evidence suggesting that U.S. officials initiated their son's arrest, that the U.S. government is behind their son's continued detention, and that the reason the U.S. is keeping their son in Saudi Arabia is to avoid the scrutiny of the federal courts.

In short, far from trying to protect Abu Ali, the American government may have simply outsourced his abuse.

Torture on Demand

Abu Ali is a U.S. citizen, born and raised in this country. Having graduated as valedictorian of his high school class in Virginia, he was in Saudi Arabia for university studies at the time of his arrest.

The arrest, according to evidence presented by Abu Ali's parents in federal court, was orchestrated by the United States. Within days of the arrest, they claim, FBI agents were attending Abu Ali's interrogations, and within a week, another group of agents had raided their home in Virginia, seeking evidence of a terrorist conspiracy.

Saudi officials have reportedly described the detention as an American concern and have said that they would release Abu Ali if the U.S. requested it. According to Abu Ali's parents, U.S. State Department and embassy officials have said that their son would be freed as soon as the U.S. Justice Department's investigation was done.

In its most recent country reports on human rights, the U.S. State Department mentions credible claims that the Saudis have "abused detainees, both citizens and foreigners." Abu Ali's parents presented evidence suggesting that their son was tortured during interrogations with the knowledge of U.S. officials.

Responding to the parents' petition in federal court, Justice Department attorneys asserted that the courts lack jurisdiction over cases involving U.S. citizens in foreign custody – no matter how deeply involved the U.S. government is in their arrest, detention or abuse.

"This position is as striking as it is sweeping," said District Judge John D. Bates in the opinion that accompanied his ruling. It would, the judge warned, allow the government to arrest people and deliver them to another country in order to avoid constitutional scrutiny, or even "to deliver American citizens to foreign governments to obtain information through the use of torture."

Quoting a landmark 1957 case, the judge rejected the notion that "when the United States acts against citizens abroad it can do so free of the Bill of Rights." Without ruling definitively on the question of jurisdiction, he ordered the Justice Department to produce evidence establishing what role, if any, U.S. officials played in Abu Ali's arrest and detention.

"We Send Them to Other Countries"

Last week's ruling was another defeat for the Bush administration's efforts to detain people outside of the law. As with the Supreme Court's decision last summer in a case involving detainees in indefinite custody on Guantanamo, the court found that claims involving the violation of fundamental rights should not be lightly dismissed on jurisdictional grounds.

It is probably no coincidence that Abu Ali's parents filed suit in federal court exactly a month after the Supreme Court issued its landmark ruling in the Guantanamo case. In that case, similarly, the administration deliberately chose a detention center that it hoped would put the detainees beyond the reach of the U.S. courts.

Abu Ali's situation may not be unique, or even so unusual. The United States has developed a whole host of practices since the Sept. 11 terrorist attacks that appear to be designed to evade judicial scrutiny of the detention and interrogation of suspected terrorists.

Indeed, in December 2002, the Washington Post described the transfer of suspected al-Qaeda members from U.S. custody to countries such as Syria, Uzbekistan, Pakistan, Egypt, Jordan, Saudi Arabia, and Morocco, where they were tortured or otherwise mistreated.

As an unnamed U.S. official told the Washington Post at the time: "We don't kick the [expletive] out of them. We send them to other countries so they can kick the [expletive] out of them." It is up to the courts to stop these abuses.

The Scalia Court

Chief Justice William Rehnquist is battling thyroid cancer. Three of his colleagues on the Supreme Court are over seventy. There is no doubt, over the coming presidential term, that George W. Bush will have the chance to name justices to the Court.

The only questions worth asking now are who, how, and how many.

The most obviously pressing question, given the possible chief justice vacancy, is who President Bush's nominees will be. During the 2000 presidential campaign, in a telling comment, Bush named Antonin Scalia and Clarence Thomas as the Supreme Court justices he most admired. While Thomas would be an unlikely choice for chief justice – he's not an intellectual leader, to put it mildly – many believe Scalia is the man to beat for the job.

There could be no better way for Bush to acknowledge the "moral values" vote – that blinkered segment of the electorate that, the polls say, gave him the presidency – than to nominate Scalia to the post. An anti-abortion, anti-gay-rights, pro-school prayer Catholic, Scalia has precisely the record that Bush's red-state constituents want.

Which brings us to the question of how. Scalia is not a moderate conservative, or even a disagreeable but tolerable conservative; he is an extremist. Given the power of the chief justice to shape the Court's decision-making process, as well as the position's symbolic importance, Scalia's nomination would be vigorously opposed.

The Democrats in the Senate would no doubt filibuster to block a vote on the nomination, as they did with unacceptable judicial nominees during Bush's first term. But Republicans, who now have a majority of fifty-five members in the Senate, might seek to change Senate rules to allow them break a filibuster and allow a confirmation vote to proceed. If this last check on conservative extremism were to give way, a multitude of ideologues could be set loose on the courts.

And so finally to the depressing question of how many justices Bush will appoint. This one is hard to predict, but it is perhaps the most crucial of all. The difference between an extremist minority – i.e., Rehnquist, Thomas and Scalia – and an extremist majority is just a couple of seats. If President Bush appoints three or even four new justices, as many believe likely, he could radically change the course of the law.

As paleo-conservative Patrick Buchanan just announced, triumphantly: "The last best chance to overturn Roe v. Wade is at hand."

And it's not just Roe. While the right to choose is no doubt the most prominent target of the Republican majority, other rights are also at risk. If, in four years, a true Scalia Court exists, a number of important rulings might well be overturned.

A glance at cases in which Justices Scalia and Thomas have dissented offers a preview of what to expect. The subjects of their outrage range from affirmative action – stigmatized as racial discrimination – to campaign finance laws, environmental protection regulations, and gun restrictions, among others. They have tried to limit the rights of certain groups – sodomizing adults, suspected criminals, women who need abortions, prisoners, the poor, religious dissenters, detainees on Guantanamo, to name a few - and enlarge the privileges of others.
What is the worst that would happen during the tenure of the Scalia Court? The wall between church and state would crumble if not collapse. Cattle, mining, coal and timber interests would trump environmental concerns. Gays and lesbians would be forced back into the closet. Innocent defendants would face criminal incarceration or long-term detention as due process rights were cut back. Women would face death or permanent injury by getting back-street abortions. No one would have the right to remain silent.

And talk of "moral values" aside, the death penalty would get a big boost.
So we are back to how: how to stop this from happening. Bush has won the election, but it is the battles that will be fought over the next four years that will determine the character of the Court.

The dangers are clear, and the response should be obvious: save the filibuster, block the judicial extremists, and toast the health of the remaining Supreme Court moderates!

Under No God But Their Own

Last week, the House Judiciary Committee voted to send the Pledge Protection Act to the full House, which is likely to take it up today. The Act – a bill that has many cosponsors – would deprive all federal courts, even the Supreme Court, of jurisdiction to hear constitutional challenges to the "under God" Pledge of Allegiance. This is only the latest attempt by Congress to force a pluralist society into a one-size-fits-all set of beliefs.

This is a remarkable violation of the separation of powers and the Establishment Clause. If the Act were to become law - and if it were, itself, to be upheld as constitutional - only state courts would be able to hear constitutional challenges to the Pledge.

We would therefore have a 50-state collection of views as to what the Free Exercise Clause, and the Establishment Clause, mean in this context. And that would be constitutional lunacy. Moreover, we would have Congress making its actions that involve compelled speech and religious viewpoint unreviewable!

The Impetus for the Act: Two Decisions on the "Under God" Phrase in the Pledge

The Act was introduced as a response to two high-profile decisions in a case involving the Pledge.

First, there was the federal decision by the U.S. Court of Appeals for the Ninth Circuit in Newdow v. Elk Grove United School District. There, the Ninth Circuit held that it is unconstitutional to require students to recite the phrase "under God" in the Pledge of Allegiance. This requirement, the Ninth Circuit reasoned, violates the Establishment Clause. (As I discussed in an earlier column, I believe the Ninth Circuit's ruling was correct.)

The Act may also have arisen from Congressional disappointment with the United States Supreme Court's ruling in Newdow. Rather than reaching the Establishment Clause issue, the Court held the plaintiff lacked standing - that is, the legal right – to bring the challenge.

The Supreme Court's ruling opened the way for another possible challenge to the "under God" pledge - one that, with a plaintiff who did have standing - could go all the way to the Supreme Court on the merits.

That, of course, is as it should be. The U.S. Supreme Court is properly the ultimate forum for questions concerning the interpretation of the U.S. Constitution. But the new Act would cut off that proper, time-honored path - and, as I have noted, it would leave Pledge issues to the state courts alone.

The Act Is A Grave Mistake - and a Case of Craven Political Pandering

The reason the Act is moving through Congress now is no mystery. Various polls showed that a majority of the American public believed that the phrase "under God" should stay in the Pledge of Allegiance. So now, in an election year, politicians are pandering to their constituents by supporting a bill that they can spin as one that would protect the Pledge.

Congress's actions are appalling. Of course, polls do not determine what laws should be laws. Far from it. Our elected representatives are supposed to be acting in the public good and according to constitutional principles, not led around by polling numbers. And if members of Congress looked to their constituents' deeper beliefs about the freedom of conscience and the freedom of speech, and to the good of the country, they would strongly oppose the Pledge Protection Act. There should be memorable oratory fighting this latest attempt to impose popular views on every American.

Americans do not support forcing children to choose between pledging allegiance to their country and being true to their religious beliefs. Nor do they support giving the government the power to force its citizens to recite any mantra, whether it is patriotic or not. The powers that be at the moment have covered over these fundamental beliefs with misleading blather about how this is a "Christian" nation, implying that Christians are the sole keeper of conscience and morals in the country.

The truth is, when forced to choose and not responding to some abstract polling question, Americans support the very freedoms our Constitution guarantees: The freedom to freely exercise one's religion, and the freedom from any religion established by the government. This is a country built on the freedom of conscience, a right that must be renewed by each subsequent generation.

Constitutional Principles and Structure Are at Stake, and Are Being Betrayed

The Establishment Clause was motivated by the fear that Congress would oppress the American People in exactly the way Congress is now trying to do. It says that "Congress shall make no law establishing religion. . ." But by attempting to insulate the monotheistic "under God" Pledge from court review, in the Pledge Protection Act, that is exactly what Congress is trying to do. It's a one-God-fits-all formula that hearkens back to Britain under Queens Mary and Elizabeth, who practiced the same principle, and only differed on which religion received their imprimatur.

From their own experiences in Britain and Europe, the Framing Generation knew the baleful consequences of joining the power of a national government with religion. The colonists came here in the wake of the Reformation and the extreme religious turbulence that resulted when Protestants and Catholics jockeyed for power under the British monarchs. They knew, many of them firsthand, what happens when a centralized government becomes a partner with a particular religion.

This was why the Framing Generation instituted one of the most innovative aspects of the Constitution: a rule that denied any religious entity sovereign power, and thereby privatized religion. The result has been to make America a teeming, robust, and extraordinary marketplace in religion like the world has never seen.

The Framers also believed in the absolute freedom to believe whatever one wants - and therefore, they coupled the Establishment Clause with the Free Exercise Clause. They did not believe, of course, in an unfettered right to act, because actions can harm others, and the framing generation believed bad actions should be capable of being punished, regardless of the identity of the actor. But they believed religious practices ought to be left sacrosanct, as long as they stayed within the bounds of the duly enacted laws. They also believed in protecting, under the Constitution, a diversity of religious beliefs.

This is not a country that is based on any single religious vision - nor do we have a Constitution based on any single source, whether religious or secular. To the contrary, the Constitution was built on ideas taken from more than one Protestant theology, Roman and Greek government, and philosophers like Locke, Burke, and Hume. (The Framers also drew heavily on their experiences under the Articles of Confederation – when the country came very close to dissolving into 13 potentates, as opposed to a collection of states with common interests.)

Many of the Framers had rich classical educations - as did those with whom they corresponded. It is an insult to the Framers to reduce the sources from which they derived the Constitution to one aspect of some of their religious beliefs.

In sum, the House is not doing its homework if it believes that the government imposition of "under God" phrase reflects the views of the Framers. The country we have now is the one the Framers envisioned - one filled with religious believers of every stripe. It is an experiment they initiated that has had breathtaking success. Attempting to impose uniformity at this point through the "under God" Pledge betrays, rather than serves, the Framers' vision.

An Attempt to Destroy the Judiciary's Ability to Provide a Check on Congress

The Pledge Protection Act also betrays the Framers' vision in another way - it is a frontal attack on the valuable constitutional check provided by the federal judiciary.

The Framers, of course, believed in the absolute necessity of limiting power and pitting power against power so that no entity could get overweening power. Yet Congress is now attempting, with the Act, to deprive the federal courts of jurisdiction to check Congress's wayward ways – in an arena where Congress was specifically believed by the Framers to be dangerous. (Recall that phrase from the First Amendment's Establishment Clause, "Congress shall make no law.....)

Do the members of Congress genuinely think that 50 state supreme courts - with a host of disparate views - could possibly keep Congress in check? Or do they perhaps, believe that as members of Congress, they need no check? My money is on the latter, but either way, they are very wrong.

The Public Square Does Not Need to Be Protected from the Federal Courts

There is no majority religion in the United States. No sect commands a majority of the United States population, though Protestants (which is in fact a category containing a collection of wildly differing beliefs) have formed a bare majority. However, that majority is slipping away year-by-year. Thus, it will not be long before the multiplicity of religions in this country will be such that Protestants are no longer a majority, and Protestantism is one among many other beliefs. That variety of beliefs fills the public square and fosters debate.

The fundamental disconnect in this entire debate was beautifully illustrated by former Alabama Judge Roy Moore's testimony before the House Judiciary Committee on an even more extreme bill stripping the federal courts of constitutional review. He said that current Establishment Clause doctrine "requires the complete removal of God from the public square." This is constitutional sleight of hand. The public square is that place where the many private voices in this society can be heard. The First Amendment exists to keep the government from intruding on that square, not to ensure the government – or a cabal of believers – dominates it.

In fact, after many years of federal judicial review of First Amendment issues, the public square is filled with a wide array of voices, including many religious voices, like Moore's. What Moore and those behind this embarrassing bill are chafing against is the fact they cannot use the government's power to back up their religious views.

They can hardly succeed in arguing that their views are excluded from the culture. If they are not influencing Congress to enact this crazy law, who is?

A number of religious organizations are admirably fighting this bill. Other religious interests should not squander their moral authority in an attempt to achieve political ends that are inimical to the Constitution and freedom. The Pledge Protection Act is just such an attempt. It is doomed to fail in the courts (for federal courts – least of all the Supreme Court – cannot be stripped of jurisdiction this way). Yet it also signals a larger failure on the part of institutions and persons who should be upholding our system, not trying to undermine it. This is not the time to abandon liberty.


The War on Civil Liberties

Reviewed: Elaine Cassel, The War on Civil Liberties: How Bush and Ashcroft have Dismantled the Bill of Rights (Lawrence Hill Books, 2004)

This week, our nation somberly marks the third anniversary of the devastating attacks against New York and Washington D.C. In the three years since 9-11, America has, thankfully, not suffered a second terrorist attack.

Members of the Bush Administration – especially Attorney General John Ashcroft – have claimed that this is proof of the success of their anti-terror laws, and proof that extending and expanding these laws will make us even safer. Indeed, at the Republican convention, high-level politicians said that Congress must not only reauthorize, but strengthen such legislation.

But even if the laws are effective - and a very strong case can be made that they are not – can we afford the civil liberties cost? In her new book, The War Against Civil Liberties, Elaine Cassel reminds us how much the legal landscape has changed in this short period.

Indeed, Cassel argues that the past three years have altered America's constitutional order such that we may never again be able to enjoy the broad individual rights and presumptions that were the hallmark of our laws before 9-11. The Executive Branch, she persuasively contends, will never give up the power it has been given - and curtailment of our liberties will continue to expand, sweeping in broader and broader sections of the population.

Cassel, an attorney and author, is known for her popular blog covering the Justice Department, federal judiciary and Executive Branch. (She also is a guest columnist and book reviewer for this site). In less than 200 pages – one afternoon of reading – her timely book provides a sweeping yet nuanced look at how our constitutional rights have been drastically diminished since 9-11.

In her book, Cassel has neatly woven three years of national and international media coverage into a series of manageable examples – examples that allow the reader to quickly grasp her larger critical arguments. Cassel skillfully connects individual news stories to a much broader historical context.

Cassel's writing is informative and accessible while still being scholarly, making the book appropriate for both lawyers and non-lawyers - as well as for both newshounds and those new to these discussions.

The War Against Civil Liberties: The Legal Background

Cassel both explains and critiques the major laws at issue in the War on Terror: The 1996 Antiterrorism and Effective Death Penalty Act; the USA PATRIOT Act of 2001, and the Homeland Security Act of 2002. She demonstrates how these laws, especially viewed together, drastically undermine the Bill of Rights - shifting tremendous amounts of power to the Executive branch, severely compromising the American system of checks and balances.

Cassel also adeptly chronicles and comments on federal courts' rulings in a number of terrorism prosecutions - including the problematic cases of Zacarias Moussaoui, John Walker Lindh, and alleged terrorist cells in Lackawanna, Detroit, Portland, Seattle and Alexandria. She contends that in such cases, the courts have allowed violations both of the Fourth Amendment - which limits warrantless searches and seizures - and the Sixth Amendment, which guarantees a fair trial.

In addition, she focuses on two cases involving American attorneys – Lynne Stewart and Jesselyn Radack. Both have been targeted by the Justice Department.

Stewart allegedly aided communications by the terrorists she represented. But her attorney contends, and Cassel believes, she is really being persecuted for that representation itself.

Meanwhile, Radack spoke out against the infringement of John Walker Lindh's constitutional rights, while she was at the Department of Justice - contending that his interrogation violated his Fifth Amendment right against self-incrimination. Her conscientiousness was punished.

The War Against Several American Citizens

In particular, Cassel focuses on the two famous "enemy combatant" cases that involve American citizens - Hamdi and Padilla. As Cassel explains, in practice the enemy combatant designation means solitary confinement in a brig without access to counsel or the outside world, and increased likelihood of being deported or even facing the death penalty. Often, Cassel notes, DOJ will use "enemy combatant" status as a threat against even those defendants for whom it never ultimately seeks such status.

Analyzing these cases, Cassel finds that the Ashcroft Justice Department has followed a predictable pattern: It makes dramatic, highly public allegations that distort the facts. It then accepts pleas to lesser charge, in exchange for prison sentences that are unusually harsh for those lesser charges. Then it claims credit for "winning the war against terrorism."

(With Yaser Hamdi, it seems, the pattern is a new one: Imprison a citizen for years, claiming he is an intense security risk. Then agree to his deportation to the country where he grew up, Saudi Arabia - without admitting you were wrong about the risk he posed.)

The War Against Muslims and Arabs - and Their Charities

Recently, it was reported that the U.S. Census Bureau at least twice gave demographic data about Arabs living in the United States, including their ZIP codes and nations of origin, to the Department of Homeland Security. Plainly, this is an Administration that believes in racial profiling - to say the least.

While Cassel's book went to press long before this development, this recent news fits well with her contentions regarding the administration's treatment of Muslims and Arabs.

As Cassel noted, more than 13,000 Arabs and Muslims have been detained and deported since 9-11. Often, they were not charged with any offense, their families were not informed, and they were denied access to counsel. And not a single one has been charged with an act of terror.

Even the DOJ's own Inspector General's report was highly critical of this racially tainted, dragnet justice (as Anita Ramasastry explained in a column for this site.) Yet as Cassel notes, rather than apologizing, Ashcroft proudly told Congress two days after the report was released that he would do it all again.

Cassel reviews a series of cases where the Bush government has closed Islamic charities. Again, however, this has been a very problematic exercise.

For example, as the staff of the independent 9-11 panel recently determined, the Bush administration's shutdown of two Chicago-area Islamic charities has not produced a single terrorism-related criminal conviction - despite a harsh civil liberties cost.

Unfortunately, Cassel's book, while rightly sensitive to the plights of Muslims and Arabs, seems at times to buy into the kind of damaging sweeping conspiracy claims that greatly harm Jews. She complains, for instance - without any citation – that those with Palestinian heritage are being targeted "at a time when support of Israel is second only to the war on terrorism in the administration's foreign policy agenda."

In addition, Cassel approvingly quotes individuals who share this perspective – and this lack of citation. For instance, she quotes an attorney who in a 2003 speech "noted that for ten years, Muslims have been under fire because of the Zionist lobby." (Emphasis added). In generally, Cassel seems to uncritically accept comments linking Muslim misfortune to groups that are possibly allied with Israel.

To do so is wrong - and beneath a writer who in her book is so rightly focused on the importance of assessing individuals' personal responsibility - or in many cases, lack thereof – for harmful activity. Jews are a section of the population that has historically known what it means to be targeted for persecution during times of great social stress. When Muslims suffer parallel persecution - as they are in America today – Jews should never be assumed to be somehow at fault.

A War Without End?

The War Against Civil Liberties concludes by arguing that the war against terror - far from being "winnable," will be a war without end. Noting that terrorism is a concept, a tactic, and not an enemy - and thus can never be fully vanquished - Cassel also aptly notes how terrorism is being radically redefined and expanded. She argues, too, that such redefinition means there will be no end to the narrowing of our civil liberties.

In particular, Cassel argues that the term "terrorist" is coming to mean "someone with whom the U.S. government disagrees." She provides an alarming list of individuals who have been charged with crimes of "terrorism" that were anything but. They range from a producer of methamphetamine in North Carolina, to the Beltway snipers in suburban Virginia, to a woman on a Hawaii-bound cruise ship who left threatening notes for her boyfriend.

Cassel also describes how the USA PATRIOT Act has been used for obviously non-terrorist crimes. It has supported a subpoena of records in a Las Vegas bribery and racketeering case. It has been used to prosecute a scientist at Texas Tech University who lied about missing vials of bacteria.

Cassel predicts that not only law enforcement, but surveillance as well, will expand as the definition of terrorism bloats to encompass more and more. She cites a number of current examples: Banks are now required to collect more information about people opening deposits; the FBI is increasing monitoring of the Internet; Congress has authorized more control of academic institutions receiving federal funding concerning international topics; and a variety of data mining programs have been created to look for patterns of behavior that the programs' creators believe may point to terrorist threats in our society. (In columns for this site, Anita Ramasastry has commented on a number of these programs.)

Civil Liberties Should Be A Crucial Election Issue

President Bush told Republican convention-goers last week that we can win the war on terror by making preventive, preemptive strikes – including preventive strikes on Americans and people living in America whom the government claims have ties to terrorists.

But Cassel's book adeptly shows how doing so may lead to a loss of the very values that have made the U.S. a model of freedom around the world. Her book should be required reading for every American in this coming election season.

Last week, Bush signed an Executive Order creating the "President's Board on Safeguarding American's Civil Liberties." Yet, within hours, critics strongly urged Congress to reject this suggestion, comparing it to a fox guarding a henhouse. The ACLU argued that the board – as proposed – would be comprised only of the government officials it is meant to oversee, would have no investigative authority, and would be utterly beholden to the White House. Ultimately, it would likely act as an expansion of - not a constraint on - Executive power.

Our society is torn in two by a deep schism over how much our rights can be infringed, and how much power the Executive branch can expand to assume control. Cassel's book offers a valuable guide to these issues - and a passionate argument for favoring the civil liberties that are now under fire.

Redefining Torture

Recently, a U.S. government lawyer argued before a panel of the U.S. Court of Appeals for the Seventh Circuit – including the eminent jurists Richard Posner and Frank Easterbrook – about what the definition of "torture" should be.

The context was an immigration appeal, Comollari v. Ashcroft. But as I will explain, the resonance of the argument was far broader.

According to the government attorney, it would constitute "torture" if a sniper shoots a person in an artery, causing him to slowly bleed to death. But it would not count as "torture" if the sniper were to hit his target in the head, causing him to die instantly. So a painless assassination – by the CIA, perhaps? – would not be "torture" under the government's definition.

Readers will recall that a few months ago, several internal Bush Administration "torture" memos were leaked to the public. The memos showed that the government has been actively working to narrow the definition of "torture," so as to almost shrink it into nothingness, defying international law principles directly to the contrary. The oral argument in Comollari illustrates that the government – despite denials – is still engaged in the same enterprise of defining torture as narrowly as possible, regardless of what the law says.

In this column, I will argue that it is time for Congress to step in to reaffirm, by statute, what America considers "torture" – and ensure that this definition is used in a consistent, principled way. U.S. law already contains a clear definition of "torture," as I will explain. But the U.S. government doesn't seem to be listening to that definition. Congress should make sure it does – through investigation, resolution, and if necessary, statute. This issue is too important to ignore. America's honor and morality are at stake.

Currently, the Administration defines torture one way (and far too narrowly), wanting to protect its soldiers from being accused of it. Yet it defines torture another way when it wants to deport someone who seeks asylum on the ground that he reasonably fears being tortured if he is returned to his home country. This is unacceptable and wrong.

Background: The Torture Memos

Shortly after the Abu Ghraib prison abuse scandal broke, several shocking U.S. government internal memos surfaced. The memos, in effect, offered complex but specious legal arguments to justify the U.S.'s avoiding having to abide by the major international and national laws prohibiting torture.

An August 2002 Department of Justice (DOJ) memo stated that the DOJ advised the White House that torturing suspected terrorists held abroad "may be justified," and that international rules against torture which the U.S. has signed "may be unconstitutional if applied to interrogations" in the terror war. This memo was reportedly prepared to provide legal defenses for the CIA's harsh methods, in case its agents were prosecuted for violating federal statutes prohibiting torture.

Even more significant was the very narrow definition of "torture" the memo proposed that the President could legally adopt. Under this definition, the only treatment that would count as torture would have to be "equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."

In addition, a March 6, 2003 draft report prepared by Pentagon lawyers also defined torture narrowly – and also offered arguments as to why U.S. government agents who torture prisoners could not be prosecuted.

The draft report made the nearly-ridiculous suggestion that if the purpose of the torture was to extract information, not to cause pain, it wasn't really torture: "Even if the defendant [U.S. government agent] knows that severe pain will result from his actions," it suggests, "if causing such harm is not his objective, he lacks the requisite specific intent even though the defendant did not act in good faith."

The draft report also went on to claim that, "in light of the president's complete authority over the conduct of war, without a clear statement otherwise, criminal statutes are not read as infringing on the president's ultimate authority in these areas."

And apparently, when U.S. citizens are deemed "enemy combatants" and imprisoned incommunicado in the U.S., they may be able to be tortured here. According to the report, permissible torture recognizes no boundaries – it can be carried out overseas or in the U.S. without regard to any legal prohibitions.

International Law Offers a Clear Definition of Torture

After the torture memos appeared, more than 120 prominent lawyers, former government attorneys and legal academics sent a letter to President Bush. They expressed the view that the memos misinterpret the U.S. Constitution and laws, international treaties and rules of international law. They also expressed the view that, for this reason, the lawyers who had approved and signed the memos have not met their obligation to defend the Constitution and should be reprimanded.

As the letter reflects, the international legal definition of torture is universally recognized and accepted – and is very different from what Administration lawyers claim. The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (which I will call "the Torture Convention") forbids torture under any circumstances and does not allow the prohibition to be derogated even in conditions of national emergency.

It's important to note here that the U.S. – as well as all other liberal democracies – are signatories to the Torture Convention, and that under the Constitution, treaties ratified by the Senate are U.S. law, just like statutes and Supreme Court decisions. So claiming the U.S. has the right to differ from this definition is simply untenable.

Here is the Torture Convention's definition of "torture": "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."

This sensible definition reflects our instincts about what torture is, and why it is wrong. It makes clear that torture to extract information is still torture. And it makes clear, too, that torture need not put its victim on the brink of death to be torture.

One would have thought these points were intuitively clear – until the Administration memos became public. But even if the point wasn't intuitively clear, it was legally clear – as a matter of a treaty that had become U.S. law.

Even After the Memos, the Government Is Still Trying to Define "Torture" Narrowly

After Abu Ghraib, many Americans called for Congress to investigate allegations of torture at U.S. bases in the Middle East. They raised concerns that important issues related to the treatment of detainees in the "war on terror" and in Iraq remain unanswered, including why detainees were "rendered" to countries such as Egypt, Syria and Saudi Arabia where torture is commonplace, and what interrogation techniques were approved for detainees in Iraq and Afghanistan.

During the scandal, the Bush administration issued a few terse statements claiming that the memos were only advisory; that the U.S. government was not making policy based on these analyses; and that its practices were not torture.

But recent events suggest that's not so. To the contrary, narrowing the definition of "torture" in domestic litigation now appears to be an active part of the U.S. Department of Justice's strategy.

Let's return now to the case with which this column began. The immigrant, Comollari, claimed that if he was returned to Albania, he was at risk of being killed by the political party in power there, due to his own past political activities.

And he pointed out that the Torture Convention forbids expelling a person to a country in which there are "substantial grounds for believing the person would be in danger of being subjected to torture." When are there "substantial grounds"? According to the regulations, it is if the person is "more likely than not" to be tortured.

During oral argument, the government brought up a side issue that, while it may not relate directly to Comollari, could become extremely relevant in other cases. The government's lawyer argued that the definition of torture does not necessarily cover assassination – if the assassination is a "painless death."

Judge Easterbrook then summarized the government's position: The Torture Convention does not bar assassinations provided they are done cleanly and lead to instant death.

The government attorney did not deny the summary's accuracy – and when challenged, repeated that she had "been instructed not to concede this point." Her comment indicates that internal DOJ discussions may be continuing to take place about how to most narrowly define torture.

The fact that the issue was a side issue, but the government dwelt upon it, also suggests it is a subject of ongoing interest to DOJ. As the court noted, the Comollari case itself did not directly raise this question.

Since there was no reason to think Albanian assassins are committed to a "clean kill" philosophy – the court (in an opinion by Judge Posner) wryly noted – Comollari's belief he might be assassinated was tantamount, for legal purposes, to a belief he might be tortured. So the issue boiled down to whether he had "substantial grounds" to believe he might be assassinated – with whatever degree of pain might ensue.

Interestingly, at the same time the court dismissed the government's issue as irrelevant to the case at hand, it also issued a warning of sorts to the government. Judge Posner made clear that even if death itself is physically painless, the anticipation of death by assassination may be a source of mental anguish that rises to a level that satisfies the Torture Convention's definition of torture.

In other words, the court was saying: DOJ, don't assume assassination isn't torture, especially if there is a climate of fear of assassination. You may be proved very, very wrong.

Comollari is indicative of the government's systematic undermining of the Torture Convention. The Torture Convention was the breakthrough international human rights treaty that the United States not only signed and ratified, but also passed implementing legislation, all within a matter of a decade, lightening speed for international law.

But in the immigration context, the government has continued to narrow the definition. According to Chicago immigration lawyer Mirna Adjami, U.S. immigration courts are increasingly reluctant to grant Torture Convention relief.

For instance, in 2000 these administrative courts granted relief in 4.3 percent of 12,432 Torture Convention applications filed; in 2001 relief was granted in only 4.4 percent of cases, even though the number of Torture Convention applications increased 42 percent to 17,660.

It's Time For Congress To Step In

The Bush Administration promised it would not play fast and loose with the well-established Torture Convention definition of torture. But its specious position on torture and assassination shows it is still splitting hairs – and doing so to serve its political agenda.

The question is still very much alive today. The legality of the interrogation techniques used by U.S. personnel on detainees at Guantanamo Bay remains unclear. Human Rights Watch has noted that while U.S. policy is that the detainees be treated "humanely," the Department of Defense has never revealed publicly how the detainees actually have been interrogated.

It's time for Congress to step in. As part of its oversight powers, Congress should expand its investigation of the Justice Department – monitoring how it is defining torture in various cases, and checking to make sure that it is not doing so lawlessly. Congress may also want to consider passing a statute or resolution reaffirming the Torture Convention's definition – though since the definition is already U.S. law, that should not be necessary.

The issue is one of morality and decency – and of honor, and compliance with the law. But it also has a pragmatic side. When U.S. soldiers are prisoners of war, will we want a narrow definition of torture to be used? When it is our people who are in the sights of a gun, will we want that definition to exclude assassination?

A Difficult Delivery

Last week, Tracy Ward of Amarillo, Texas, went on trial for delivering drugs to her unborn child. She allegedly "delivered" the drugs by using cocaine.

As Ward was pregnant at the time, her own ingestion of the controlled substance would necessarily have passed it along to her baby. The authorities discovered Ward's act when her child was born testing positive for cocaine

As of 2003, Texas law has defined an "individual" in its Penal Code and Civil Practice and Remedies Code to include "an unborn child at every stage of gestation from fertilization until birth." The legislature's apparent purpose in expanding the definition of an individual was to allow for prosecutions and lawsuits against third parties who harm unborn children.

For some purposes, the law exempts the mother from criminal liability. But prosecutors and defense attorneys dispute whether the exemption applies in Ward's case.

Let us put aside the question of whether the statute will ultimately be read by an appellate court to apply to the use of cocaine by a pregnant woman. For purposes of this column, we will assume that the statute applies and consider an independent question: Is such a prosecution appropriate, from a constitutional and policy perspective?

Resolution of this issue turns out to be far less simple than might appear at first glance.

An Easier Case Than Abortion?

One argument for opposing a "delivery of drugs to a child" prosecution concerns the right to abortion. If there is a right to kill an embryo or fetus prior to birth, then surely it must follow, the argument goes, that there is a right to harm that same embryo or fetus in a manner that falls short of causing death. The greater power to kill, in other words, includes the lesser power to injure.

Though seemingly logical, this argument is unpersuasive for three reasons. First, abortion is not a per se right to kill. Second, the authority to kill does not necessarily include the authority to injure. And third, abortion and prenatal cocaine use cause harm to distinct entities.

Abortion Not a Right to Kill

The right to abortion, as I have argued in another column , is not truly a right to kill an embryo or a fetus as such. It is a right to choose not to continue being pregnant. That is why, I explained, the right to kill the fetus in utero ends at viability – the point at which choosing not to remain pregnant no longer requires that the fetus die, for it can survive outside the womb.

Once understood in this way, it is clear that a woman does not have the legal right simply to injure an embryo or fetus. Being able to choose not to be an altruist, in other words, does not entail being able to choose to cause injury to another person.

Abortion, so understood, is an on/off proposition – not a license to hurt one's embryo or fetus. Prosecuting a woman for injuring her child during pregnancy is therefore consistent with preserving her right to abortion.

Authority to Kill Does Not Include Authority to Injure

Furthermore, even if there were a right to kill one's fetus, there would not necessarily be a right to injure it/him/her. Injuring, in other words, is not simply a lesser form of harm than killing. It is qualitatively different.

For that reason, for example, our Constitution is understood to permit a person to be executed for a capital offense but not to have a limb severed or be tortured or used involuntarily in a medical experiment.

Similarly, though the law permits some homicides (called "justifiable homicides"), such as in self-defense, it does not thereby permit a person to say "I won't kill the guy, but I will steal his wallet or give him a blanket containing smallpox."

The right to abortion, even if conceptualized as a right to kill, is thus consistent with the prosecution of a defendant for delivering drugs to her unborn child.

Abortion and Drug Use Harm Different Entities

Finally, the harms that are committed in abortion and in the use of a toxic substance during pregnancy, respectively, victimize a baby at two very distinct points in his development.

Abortion commits a harm against a fetus or embryo at whatever stage of maturation it has reached. For that reason, many consider it worse, as a moral matter, to abort a six-month fetus than to terminate during the first month of pregnancy. The further along the gestation, the greater the presumed entitlement of the developing human being to our respect and empathy.

Using a toxic drug during pregnancy, however, is harmful to the baby later on, once he or she is born. To protect that baby, in fact, the most crucial period of time during which a pregnant woman should refrain from exposing herself to harmful substances is during the first trimester, the period during which abortion is widely considered less objectionable than it is later on.

The relevant moment of impact for prenatal exposure to toxins is therefore the time after birth, when the harm will be experienced by the child. In this sense, the use of cocaine during pregnancy is a harm to a child who is later born, rather than a harm to an existing fetus or embryo. If there is an abortion, then the harm of the cocaine delivery accordingly never comes to pass.

Consider an analogy. High school prankster Jim Roe places a highly potent laxative in his rival John Doe's lunch thermos, knowing that John will drink from the thermos in three hours. Sure enough, John drinks his grape juice from the thermos at lunch and soon afterward is plagued with severe diarrhea. It is exactly at that time that John has an important exam he is scheduled to take, but he misses the test, because he is in the bathroom for several hours. Though Jim drugged John's thermos in the morning, the foreseeable impact of Jim's actions was to make John sick at lunchtime and thus to interfere with John's examination.

Similarly, a pregnant woman's use of cocaine will foreseeably have its destructive impact after her child is born (rather than in utero) so that the relevant moment of harm is when the child is outside the womb and hence uncontroversially a full human being. It is because of the harm that occurs at that time (rather than during pregnancy) that the criminal law might step in and hold the woman responsible.

Logically, then, the right to abortion does not include a right to use drugs during pregnancy that will harm the child once he is born.

Does Cocaine's Illicit Status Justify the Ward Prosecution?

On the other side of the balance is a very different sort of argument: No one has the right to use cocaine, a controlled substance the possession of which is criminally banned. By demanding that pregnant women refrain from using cocaine, the law accordingly places no greater burden upon them than it places upon everyone else.

Furthermore, when a non-pregnant person uses a drug, it generally harms only the user him- or herself. When a pregnant woman, by contrast, uses a drug, it has a potentially harmful direct effect on another person, the woman's child. Her use of the substance is therefore more destructive than its use by her non-pregnant counterpart and ought, for that reason, to be subject to greater punishment, as Tracy Ward's cocaine use could be if she is convicted.

Though apparently reasonable, again, like the arguments regarding abortion, the drug use argument is flawed. The regulation of a pregnant woman's use of cocaine is legally questionable not because she has a right to use cocaine. She most certainly does not have such a right, and if she were to be prosecuted for possession in the same way as a non-pregnant man or woman is prosecuted, Ward would have no cognizable cause for complaint.

The problem, however, is that Ward is being prosecuted for harming another person when all she has literally done is to ingest a substance herself. In other words, it is her uniquely female status as a pregnant woman rather than anything distinctive about what she was doing with cocaine that makes her use of the drug a delivery to a child. When the law punishes the pregnant woman more harshly for drug use than it would another person, it consequently burdens her uniquely by virtue of her gender-based status.

Such regulation, moreover, does not admit of a logical stopping point at cocaine. The medical evidence shows, for example, that alcohol use by pregnant women is more destructive to babies than the use of cocaine. The same is true for smoking cigarettes or working at factories in which substances such as lead are in the air. It would thus be bizarre to single out cocaine if the concern is truly the welfare of children.

And if we start down the road of prosecuting pregnant women for doing things to their developing children, then there is almost no activity – however private and protected for the rest of the population – which would not present itself as a potential subject for regulation.

In the end, pregnant women would effectively become wards of the state whose every action could subject them to criminal penalties.

Pragmatic Arguments

As I have argued, then, neither the right to abortion nor generalized prohibitions against cocaine use resolve the question of whether the law ought to punish women specifically for taking a controlled substance during pregnancy. One could logically prosecute them without endangering the right to abort, and one could oppose their prosecution without questioning the state's authority to prohibit everyone, including pregnant women, from using illicit drugs.

How, then, do we decide whether to support such prosecutions, if not ideologically? One useful way to approach the issue is pragmatically.

What can we expect pregnant women to do if faced with the possibility of being prosecuted for delivering drugs to children when they use cocaine? One possibility is that they will not use cocaine. If we believed that would happen, then prosecution might be worthwhile.

Another scenario, however, seems far more likely, given the general failure of the war on drugs to curb use or demand (and the likelihood that a woman using drugs during pregnancy is either addicted or less than fully compliant with the criminal law). The probable consequence of prosecuting pregnant women who use cocaine is that such women will try to avoid getting caught.

The fear of detection will motivate women to do one of two things. First, they might refrain from seeing a doctor, particularly when they are about to deliver their babies (who might test positive for cocaine and provide evidence against their mothers). Second, and perhaps more likely, the women will simply terminate their pregnancies.

If our concern is the wellbeing of children once they are born, we will want to avoid the first scenario. The babies of women who receive no prenatal care or who deliver their babies without some support (whether from a midwife or a doctor) are unlikely to thrive in the face of post-partum complications. Scaring women away from the healthcare system is therefore a dangerous proposition.

If our concern is to protect unborn children, then the correct decision is obvious: Do not prosecute pregnant cocaine users. Offer them opportunities for rehabilitation, because there is a good chance that at least some of them are addicted and would like to stop using, if only for their children's sake.

If, finally, our concern is to avoid the birth of injured babies, then we face a painful dilemma: if women will have already used drugs by the time their babies are due to be born, do we wish for them to abort?

I would suggest that the answer is no. Regardless of one's position on the right to choose, few would propose that the government pressure women to abort "imperfect" children. And it would be ironic indeed, as well as unfortunate, if – as I suspect – the successful prosecution of Tracy Ward resulted not in healthier pregnancies but in more abortions, performed under pressure from the government.

Why Bush Needs a Lawyer

Recently, the White House acknowledged that President Bush is talking with, and considering hiring, a non-government attorney, James E. Sharp. Sharp is being consulted, and may be retained, regarding the current grand jury investigation of the leak revealing the identity of Valerie Plame as a CIA covert operative.

(Plame is the wife of Bush critic and former ambassador Joe Wilson; I discussed the leak itself in a prior column, and then discussed further developments in the investigation in a follow-up column.)

This action by Bush is a rather stunning and extraordinary development. The President of the United States is potentially hiring a private criminal defense lawyer. Unsurprisingly, the White House is doing all it can to bury the story, providing precious little detail or context for the President's action.

According to the Los Angeles Times, Bush explained his action by saying, "This is a criminal matter. It's a serious matter," but he gave no further specifics. White House officials, too, would not say exactly what prompted Bush to seek the outside advice, or whether he had been asked to appear before the grand jury.

Nonetheless, Bush's action, in itself, says a great deal. In this column, I will analyze what its implications may be.

The Valerie Plame Grand Jury Investigation

The Plame investigation took a quantum leap in December 2003, when Attorney General John Ashcroft recused himself. Ashcroft's deputy appointed a special counsel, who has powers and authority tantamount to those of the attorney general himself. That means, in practice, that Special Counsel Patrick J. Fitzgerald, the United States Attorney from Chicago, does not report to the Justice Department regarding his investigation. (In this sense, Fitzgerald's position is similar to that of an Independent Counsel under the now-defunct independent counsel statute.)

Those familiar with Fitzgerald's inquiry tell me that the investigative team of attorneys is principally from his office in Chicago, and that they do not really know their way around the workings of Washington. This has resulted in an investigation that is being handled Chicago-style -- not D.C. -- style. That's significant because in Washington, there is more of a courtesy and protocol toward power than exists in the Windy City.

The Fitzgerald investigation has not made friends with the Washington press corps, many of who are being subpoenaed to testify before the grand jury. Those journalists with whom I have spoken say they are not willing before any grand jury to reveal their sources. So this issue is headed toward a showdown. And under existing law, a journalist cannot refuse to provide information to a grand jury.

Nor, based on the few existing precedents, can a sitting president refuse to give testimony to a grand jury. And that appears to be the broad, underlying reason Bush is talking with Washington attorney James Sharp.

Reasons the Plame Grand Jury May Want Bush's Testimony

Why might the grand jury wish to hear Bush's testimony? Most of the possible answers are not favorable for Bush.

There is, of course, one totally benign way to view the situation. "It is hard for me to imagine that Pat Fitzgerald is going to be going aggressively after the president," one Washington lawyer told the Los Angeles Times. "My guess is that he feels a need to conduct an interview because he needs to be in a position to say, 'I have done everything that could be done.'" The lawyer added, "If [Fitzgerald] closes the case without an indictment and has not interviewed the president, he is going to be criticized."

But from what I have learned from those who have been quizzed by the Fitzgerald investigators it seems unlikely that they are interviewing the President merely as a matter of completeness, or in order to be able to defend their actions in front of the public. Asking a President to testify -- or even be interviewed -- remains a serious, sensitive and rare occasion. It is not done lightly. Doing so raises separation of powers concerns that continue to worry many.

Instead, it seems the investigators are seeking to connect up with, and then speak with, persons who have links to and from the leaked information - and those persons, it seems, probably include the President. (I should stress, however, that I do not have access to grand jury testimony, and that grand jury proceedings are secret. But the facts that are properly public do allow some inference and commentary about what likely is occurring in the grand jury.)

Undoubtedly, those from the White House have been asked if they spoke with the president about the leak. It appears that one or more of them may indeed have done so.

If so -- and if the person revealed the leaker's identity to the President, or if the President decided he preferred not to know the leaker's identity, then this fact could conflict with Bush's remarkably broad public statements on the issue. He has said that he did not know of "anybody in [his] administration who leaked classified information." He has also said that he wanted "to know the truth" about this leak.

If Bush is called before the grand jury, it is likely because Fitzgerald believes that he knows much more about this leak than he has stated publicly.

Perhaps Bush may have knowledge not only of the leaker, but also of efforts to make this issue go away -- if indeed there have been any. It is remarkably easy to obstruct justice, and this matter has been under various phases of an investigation by the Justice Department since it was referred by the CIA last summer.

It seems very possible the leaker -- or leakers, for two government sources were initially cited by columnist Robert Novak -- may have panicked, covered up his (or their) illegality, and in doing so, committed further crimes. If so, did the President hear of it? Was he willfully blind? Was he himself the victim of a cover-up by underlings? The grand jury may be interested in any or all of these possibilities.

Bush Needs An Outside Attorney To Maintain Attorney-Client Privilege

Readers may wonder, why is Bush going to an outside counsel, when numerous government attorneys are available to him -- for instance, in the White House Counsel's Office?

The answer is that the President has likely been told it would be risky to talk to his White House lawyers, particularly if he knows more than he claims publicly.

Ironically, it was the fair-haired Republican stalwart Independent Counsel Kenneth Starr who decimated the attorney-client privilege for government lawyers and their clients -- which, to paraphrase the authority Wigmore, applies when legal advice of any kind is sought by a client from a professional legal adviser, where the advice is sought in confidence.

The reason the privilege was created was to insure open and candid discussion between a lawyer and his or her client. It traditionally applied in both civil and criminal situations for government lawyers, just as it did for non-government lawyers. It applied to written records of communications, such as attorney's notes, as well as to the communications themselves.

But Starr tried to thwart that tradition in two different cases, before two federal appeals courts. There, he contended that there should be no such privilege in criminal cases involving government lawyers.

In the first case, In re Grand Jury Subpoenas Duces Tecum, former First Lady Hillary Clinton had spoken with her private counsel in the presence of White House counsel (who had made notes of the conversation). Starr wanted the notes. Hillary Clinton claimed the privilege.

A divided U.S. Court of Appeals for the Eighth Circuit agreed with Starr. The court held that a grand jury was entitled to the information. It also held that government officials -- even when serving as attorneys -- had a special obligation to provide incriminating information in their possession.

In the second case, In re Lindsey, Deputy White House Counsel Bruce Lindsey refused to testify about his knowledge of President Clinton's relationship to Monica Lewinsky, based on attorney-client privilege. Starr sought to compel Lindsey's testimony, and he won again.

This time, Starr persuaded the U.S. Court of Appeals for the District of Columbia Circuit to follow the Eighth Circuit. The court ruled that exposure of wrongdoing by government lawyers fostered democracy, as "openness in government has always been thought crucial to ensuring that the people remain in control of their government."

Based on these precedents, President Bush has almost certainly been told that the only way he can discuss his potential testimony with a lawyer is by hiring one outside the government.

What Might a Private Attorney Advise Bush to Do?

It is possible that Bush is consulting Sharp only out of an excess of caution -- despite the fact that he knows nothing of the leak, or of any possible cover-up of the leak. But that's not likely.

On this subject, I spoke with an experienced former federal prosecutor who works in Washington, specializing in white-collar criminal defense (but who does not know Sharp). That attorney told me that he is baffled by Bush's move -- unless Bush has knowledge of the leak. "It would not seem that the President needs to consult personal counsel, thereby preserving the attorney-client privilege, if he has no knowledge about the leak," he told me.

What advice might Bush get from a private defense counsel? The lawyer I consulted opined that, "If he does have knowledge about the leak and does not plan to disclose it, the only good legal advice would be to take the Fifth, rather than lie. The political fallout is a separate issue."

I raised the issue of whether the President might be able to invoke executive privilege as to this information. But the attorney I consulted -- who is well versed in this area of law -- opined that "Neither 'outing' Plame, nor covering for the perpetrators would seem to fall within the scope of any executive privilege that I am aware of."

That may not stop Bush from trying to invoke executive privilege, however -- or at least from talking to his attorney about the option. As I have discussed in one of my prior columns, Vice President Dick Cheney has tried to avoid invoking it in implausible circumstances -- in the case that is now before the U.S .Supreme Court. Rather he claims he is beyond the need for the privilege, and simply cannot be sued.

Suffice it to say that whatever the meaning of Bush's decision to talk with private counsel about the Valerie Plame leak, the matter has taken a more ominous turn with Bush's action. It has only become more portentous because now Dick Cheney has also hired a lawyer for himself, suggesting both men may have known more than they let on. Clearly, the investigation is heading toward a culmination of some sort. And it should be interesting.

John W. Dean, a FindLaw columnist, is a former counsel to the President.

Human Rights Abuses Begin at Home

Lately, U.S. conduct abroad has triggered a number of inquiries into alleged -- and in some cases, undeniable -- violations of international human rights.

Photos testify that American troops have abused Iraqi prisoners in terrible ways. Some have argued that the U.S.'s practice of sending accused terrorists to be interrogated in countries where torture is permitted violates America's obligations under the U.N. Convention Against Torture. And allegations of U.S. guards' mistreatment of detainees at Guantanamo seem all the more relevant as the Supreme Court decides whether U.S. federal courts can review detainees' claims.

Meanwhile, as the news gives Americans an education in international human rights issues, American citizens seem more willing to consider the possibility of violations right here at home.

In this column, I will consider one example of this trend: Chicago public housing project residents' contention that the conditions in which they are living amount to human right violations. They assert that, just as the world is paying attention to the human rights abuses taking place thousands of miles beyond our borders, it ought to pay equal attention to the human rights abuses taking place in Chicago.

Chicago Public Housing Residents Call in The United Nations

Last month, Miloon Kothari -- the United Nations Special Rapporteur on Adequate Housing, who reports directly to the UN High Commissioner for Human Rights in Geneva -- flew to Chicago to meet a group of public housing residents.

They were residents of the Cabrini-Green development -- which is one of America's most notoriously dangerous public housing projects, as a result of a long history of neglect and gang activity. They had invited Kothari to visit partly out of desperation -- never expecting he would take their invitation seriously. (Kothari has never done an in-depth study on housing conditions in the United States.)

Currently, Chicago's plan to deal with public housing seems to be to demolish it: More than 20,000 units are slated to be razed as part of the city's 10-year plan to transform public housing. But public housing residents, organized through the Coalition to Protect Public Housing, point out that the result has hardly been an improvement: Some have been forced to move into homeless shelters and temporary dwellings because they are not given assistance in finding new residences.

The Cabrini-Green residents also told Kothari that they are not alone. President Bush has proposed drastic funding cuts for federal programs that provide subsidized housing for America's lowest income families. Just last week, the U.S. Department of Housing and Urban Development announced it is changing the way it funds the 2004 housing choice voucher program. As a result, many local housing authorities will be short of the funds needed to cover all vouchers currently in use. Now, housing authorities across the country are planning for the possibility of having to terminate residents from the program, or otherwise cover funding shortfalls. It seems likely that across the nation, other public housing residents will be in the situation of many Cabrini-Green residents: going from inadequate housing, to no housing at all.

In his discussions with Cabrini-Green residents, Kothari acknowledged that there indeed seems to be a human rights crisis in the forced evictions of public housing tenants from their units.

International Law on the Right to Housing

Readers may wonder: Isn't housing a domestic issue? The answer is that international law clearly says otherwise. And here, I am not referring to unwritten international law principles -- but rather to treaties the U.S. has signed and ratified.

The U.S. has signed and ratified the International Covenant on Civil and Political Rights, which includes a right to protection from arbitrary or unlawful interference with one's home, and the International Convention on the Elimination of All Forms of Racial Discrimination, which prohibits actions with respect to housing that have the effect of discriminating against persons of color. (Most of Cabrini-Green's residents are African-American). It has also signed the American Convention on Human Rights, which requires progressive measures on the part of governments to fully realize adequate housing for all sectors of the population.

In addition, the U.S. was a primary drafter of, and has adopted, the Universal Declaration of Human Rights, which provides that everyone has the right to a standard of living adequate of the health and well being of himself and his family, including housing.

Finally, as a U.N. member, the U.S. is subject to the U.N. Commission on Human Rights Resolution 19993/77 -- which urges governments to undertake immediate measures to prevent forced evictions.

Meanwhile, the residents have several very good reasons to invoke international human rights. First, they have not been offered any domestic redress or remedy -- and they are in a desperate situation.

Second, the international law sources I've mentioned above go further than the U.S. Constitution and federal statutes -- which do not mention a right to housing. (Many state constitutions provide for giving support for the state residents' public health or welfare, but also do not enumerate specific rights to housing.) Thus, they provide especially strong support for the residents' claims. And ratified treaties are legally part of U.S. law, just as the Constitution and federal statutes are.

Third, it is wrong -- and from the government's perspective, embarrassing -- for the U.S. government to trumpet human rights abroad and violate them at home. The members of the Coalition to Protect Public Housing are right to bring attention to this dissonance and hypocrisy.

The Broader Trend Of Which the Cabrini-Green Example Is a Part

The Cabrini-Green residents' experience is part of a larger trend that is taking place on several fronts. Not only are treaties taking a more prominent role in the U.S., but so are decisions by international tribunals and foreign courts.

There is an increasing use of international law and foreign precedents in U.S. courts. Last October, in a speech in Atlanta, Justice Sandra Day O'Connor added fuel to the controversy over this development, predicting that, "over time we will rely increasingly, or take notice at least increasingly, of international and foreign courts in examining domestic issues."

In my prior column, I predicted that there would be growing resistance to views such as Justice O'Connor's. And, indeed, this is exactly what has happened. Recently, Republican House members Tom Feeney of Florida and Bob Goodlatte of Virginia, joined by more than 50 co-sponsors, proposed a non-binding resolution to express the opinion of Congress that judicial decisions should not be based in foreign laws or court decisions. Feeney even went so far as to say that "To the extent they deliberately ignore Congress' admonishment, the judges are no longer engaging in 'good behavior' in the meaning of the Constitution and they may subject themselves to the ultimate remedy, which would be impeachment."

The use of treaties -- which after all, are U.S. and not foreign law -- has been less controversial, and is growing rapidly. The Ford Foundation recently issued an extensive report describing more than a dozen legal and political campaigns in the United States that currently utilize an international human rights strategy.

Groups concerned with women, poor people, Native Americans, and immigrants are all drawing upon, and interposing themselves, in the international legal arena to fight for their rights in the United States. Each of them, like the public housing residents in Chicago, faces frustrating obstacles in U.S. courts. Many are responding by trying foreign and international tribunals.

Why is this happening? Is it because American courts are unfriendly to plaintiffs seeking remedies for alleged discrimination? Is it because there is a long history of racial minorities and disadvantaged groups going to the United Nations seeking relief? Is it because the international community is increasingly concerned about what is taking place within the United States, as a way of understanding how the U.S. operates beyond its borders?

All these possible reasons seem plausible. But it also seems that Americans' growing familiarity with human rights law is closely linked to the media's growing discussion of possible human rights abuses committed by the U.S. in Iraq. Thus, the war, and the surrounding discussion of the conflict, is raising the profile of human rights in a unique and possibly lasting way here in the United States.

Noah Leavitt, a lawyer and author, is the Advocacy Director for the Jewish Council on Urban Affairs. The opinions here do not reflect the official position of his organization. Leavitt can be reached at nsleavitt@hotmail.com.

Remembering Roe

Roe v. Wade, the landmark Supreme Court opinion whose 31st anniversary falls today, was not yet a decade old when I became pregnant. I was 17, living on my own, and the pregnancy was unwanted.

Since graduating from high school I had passed through a succession of menial, low-paying jobs: selling women's clothing at a store in the local mall, working as a waitress, and the most mind-numbingly tedious of all, making rubber skateboard wheels in a machine shop. My savings were nil. With my pay stubs, proof of residence, and the dismaying results of a pregnancy test, I paid a visit to the welfare office and qualified for emergency Medi-Cal, California's program for the public funding of medical care.

The abortion procedure was fast and relatively painless. I faced a couple of anti-abortion protesters in the parking lot when I arrived that morning -- they held up pictures of fetuses for my inspection -- but they were gone by the time I left. My recovery from the procedure was quick and without complications.

The enormous sense of relief I felt after the operation has, over the years, ripened into gratitude. I was lucky that legal abortion was available and doubly lucky that the state of California was willing to fund it. Today not every woman facing an unwanted pregnancy is so fortunate.

Mounting Restrictions

Even though, as the Supreme Court said in 1992, "an entire generation has come of age free to assume Roe's concept of liberty," the right to a safe and legal abortion remains under threat. According to NARAL Pro-Choice America, 335 anti-choice measures have been enacted since 1995. President Bush has openly endorsed the goal of banning abortion, and some of his federal judicial picks have been anti-abortion zealots, a worrying indicator for his possible future nominees to the Supreme Court.

Publicly funded abortion is not available in most states, except in narrow cases of rape, incest, or life endangerment. Since 1977, federal law has prohibited Medicaid from paying for the abortions of low-income women in most circumstances. Because fewer than half of all states offer supplemental funding that goes beyond these federal limitations, the possibility of abortion is foreclosed to many poor women.

Mandatory parental consent or notification rules, which exist in more than 30 states, deter many teenagers from exercising their constitutional right to a legal abortion. Minors with abusive parents may risk physical or emotional harm if required to disclose their pregnancies. Judicial bypass procedures, which the Supreme Court has ruled must be included in parental consent and notice laws, may be ineffective when the reviewing judge is hostile to abortion.

Numerous procedural restrictions continue to impede women's access to abortion. Now, in 20 states, women seeking abortion face mandatory delays in obtaining the procedure, a requirement that is often paired with the obligation of receiving state-dictated informational materials designed to discourage abortion. Such rules particularly burden women who live long distances from abortion providers, or whose transportation arrangements are difficult. Other state laws target doctors who perform abortions, imposing complicated regulatory schemes.

The latest effort to hobble reproductive rights has been to redefine what constitutes an abortion, via legislation like the federal Partial-Birth Abortion Ban Act. Although the Supreme Court struck down the most restrictive of these laws, adopted in Nebraska, others have passed lower court scrutiny. Although they are supposed to cover only late-term abortions, the imprecise and unscientific language of such laws means that their scope threatens to extend far beyond the situations cited by their supporters.

Roe's Beneficiaries

In campaigning to limit or deny reproductive rights, anti-abortion activists have devised not only new strategies but also new justifications. No longer focused solely on fetal rights, the anti-abortion lobby now professes concern for "post-abortion victims" -- that is, women who have undergone abortions. Abortion, in this view, causes inevitable emotional trauma. The denial of abortion has accordingly been recast as a means to save women from a lifetime of psychic pain and regret.

Perhaps the most prominent exponent of this new dogma is Norma McCorvey, the original plaintiff in Roe v. Wade. McCorvey, though, never obtained an abortion; the ruling she is known for came too late for that. And Roe, importantly, was a class action, litigated on behalf of an open-ended group of women seeking to end their pregnancies.

McCorvey may have changed her mind, but many of us who benefited from her legal fight have not. As a fortunate heir to the right she helped establish, I have no regrets about my choice. And I know there are many more women like me who will, on this anniversary, remember their debt to Roe.

Joanne Mariner is a human rights attorney and columnist for FindLaw.com.

Profit Margins and Mortality Rates

Here are some numbers to consider: 14 million, 35.9 billion, and 1.

The first is an estimate of the number of people who will die of AIDS and other treatable diseases over the course of the coming year, most of them in the poor countries of the developing world.

The second figure represents the combined 2002 profits, in dollars, of the 10 biggest pharmaceutical companies listed in Fortune magazine's annual review of America's largest businesses.

The third figure corresponds to the number of countries that, last week, voted against a U.N. resolution on access to drugs in global epidemics such as HIV/AIDS, tuberculosis and malaria. The resolution emphasized that the failure to deliver life-saving drugs to millions of people who are living with HIV/AIDS constitutes a global health emergency. One hundred sixty seven countries voted in favor of the resolution. The single vote against it was cast by the United States.

Sadly, these numbers are closely related. To protect their exorbitant profits, drug companies are fighting the production and distribution of cheap generic versions of patented drugs. Unable to afford the medicines that could save their lives, millions of poor people around the world die of treatable illnesses every year.

And, as the recent U.N. vote exemplifies, the drug companies have a reliable ally. Not only does the U.S. government use its considerable economic power to bully developing countries into restricting access to low-cost generics, it continues to try to change the international rules that allow such generics to be made in the first place.

Unnecessary Deaths

In their vulnerability to treatable diseases, the rich and the poor live in different worlds. Every year, millions of people in developing countries die of illnesses that they would likely have survived had they lived in Europe or the United States. A key factor in the enormous global disparities in death rates is poor peoples' lack of access to needed drugs.

Consider the case of HIV/AIDS. An estimated 42 million people are living with HIV/AIDS worldwide, 39 million of them in the developing world. India alone has at least 4.5 million people who are HIV-positive, and possibly many more.

In the United States and other rich countries, since the advent of anti-retroviral drug treatment, AIDS has become a manageable disease, not a death sentence. But for the millions living with HIV in the developing world, prospects for effective treatment remain dim.

At present, only a tiny minority of HIV-positive people in poor countries have access to anti-retroviral drugs. For the others, as well as some marginalized populations in rich countries, the cost of treatment remains prohibitively high.

Patent Protections and Profits

Nothing in the ingredients of anti-retroviral drug treatment makes it inherently expensive. Indeed, when a combination of generic drugs is used, treatment costs are about $600 per patient per year.

But companies that profit from drug sales prefer to keep drug costs artificially high. In the United States, the cost of anti-retroviral drugs is generally in the range of $10,000 to $15,000 per patient annually, and people with advanced cases of AIDS may pay far more. Relying on international patent protections, drug companies have been trying to maintain high drug prices globally by restricting the production and distribution of low-cost generic substitutes.

Global patent protections are tied to global rules on trade, specifically, the rules of the World Trade Organization. Although the WTO's strict intellectual property rules carve out exceptions for national health emergencies, they still go a long way toward limiting poor peoples' access to life-saving medicines.

And as Oxfam has shown in a paper titled "Patent Injustice," the problem extends beyond HIV/AIDS. Brand-name drugs for a number of major diseases cost several times more than their generic equivalents. The increasing drug resistance of endemic illnesses such as tuberculosis and malaria -- and the resulting need for access to new drugs -- means that the WTO's monopolistic pricing rules threaten many millions of the world's poor.

The Brazil Model

Despite the WTO's restrictions, some developing countries have made important steps in meeting their peoples' drug treatment needs.

In Brazil, notably, extensive prevention efforts combined with state-funded anti-retroviral treatment have reduced AIDS-related deaths by more than half since 1996. The cornerstone of Brazil's treatment program has been the local production of generic equivalents of brand-name anti-retroviral drugs, which has driven down the cost of treatment enormously.

But Brazil's successes, and those of countries like it, have been hard fought. The WTO rules have been a battleground on which Brazil and others have fought a series of high-stakes skirmishes with drug companies.

Backed by one of the world's richest and most politically influential industrial lobbies, the drug companies have enlisted the U.S. government as a loyal ally in the campaign against generics. Through the office of the U.S. Trade Representative, the United States has fought to advance the interests of the pharmaceutical industry, pressuring other governments on a bilateral basis and threatening to seek trade sanctions via the WTO.

The U.S. vote last Wednesday in the Third Committee of the U.N. General Assembly was not too surprising, given this record. Still, it was dismaying to find the United States willing to stand alone against 167 other countries -- as if it were a matter of principle to oppose a resolution calling for widespread public access to the drugs necessary to combat global epidemics such as HIV/AIDS, tuberculosis and malaria.

Future Trade Agreements

The U.N. vote is, moreover, a worrisome portent for the future. At present, the U.S. Trade Representative is negotiating a number of bilateral and multilateral trade agreements, including the proposed Free Trade Area of the Americas. Given U.S. advocacy on behalf of pharmaceutical companies‚ interests, these agreements are likely to go beyond the WTO's rules in protecting drug patents.

President George Bush, in a number of his most high-profile speeches, has expressed a rhetorical determination to assist in the global fight against HIV/AIDS. By allowing U.S. officials to lead the world in protecting the commercial interests of drug companies, he betrays his public commitment to this cause.

Joanne Mariner is a New York-based human rights attorney.

Saving Endangered Animals by Killing Them?

At ceremonies two years ago in honor of Earth Day, President George Bush stood beneath a giant sequoia and called for "a new environmentalism for the 21st century." As fleshed out by his administration, this new environmentalism prefers market-based incentives to government regulation and elevates property rights over wilderness and species protection. It is, in many ways, simply the environmental corollary to the administration's broader deregulatory views.

Peter Huber, a senior fellow at the Manhattan Institute, is one of the brains behind the administration's approach to the environment. His influential political tract, 'Hard Green: Saving the Environment from the Environmentalists,' was published in 2000 as a conservative counterweight to Al Gore's Earth in the Balance.

In 'Hard Green,' Huber lauds Teddy Roosevelt as the ultimate environmentalist role model. Roosevelt, famous as a hunter and safari enthusiast, once killed several hundred wild animals -- including a reported nine lions, five elephants, 13 rhinos and seven hippos -- during a single extended expedition in Africa. As Huber puts it, approvingly: "He loved wild animals. He particularly loved to shoot them."

Roosevelt's 'love them and kill them' approach is the obvious antecedent of a new endangered species policy that the Bush Administration announced this summer. As set forth in a draft document whose comment period expires on Friday, the Administration plans to begin allowing hunters, zoos, circuses and others to kill, capture, and import wildlife facing extinction in other countries.

An Open Door to Corruption

The new policy marks a dramatic break from past practice. Rather than interpreting the Endangered Species Act to protect foreign species from exploitation and slaughter, as previous administrations have done, Bush Administration officials assert that encouraging such actions can contribute to the species' ultimate survival.

Prominent defenders of species preservation disagree. "It stinks, quite honestly," said renowned primatologist Jane Goodall of the proposed change. "It's an open door to corruption. It's disgusting."

The Bush Administration insists that the new rule is consistent with the law's existing provisions. Passed in 1973, the Endangered Species Act was meant to protect wildlife species in danger of extinction. In a landmark 1978 case interpreting the scope of the law, the Supreme Court called it the "most comprehensive legislation for the preservation of endangered species ever enacted by any nation." The law now recognizes more than 1,700 threatened and endangered plant and animal species.

Besides protecting native plants and animals, the Endangered Species Act extends its coverage to wildlife in other countries. At present, 561 foreign species, nearly half of which are mammals, are listed as endangered or threatened under the act. Included among them are the snow leopard, the gorilla, and the South African mountain zebra.

To Enhance the Survival of the Species

In the past, officials of the U.S. Fish and Wildlife Service have interpreted the law to bar the commercial importation of endangered plants and animals to the United States. The clear reasoning behind this refusal was that U.S. demand would further deplete these species' already limited numbers.

The current administration, however, argues that the burgeoning U.S. market for sporting trophies, hides, pelts and other animal parts, as well as the demand for exotic pets and circus animals, could create positive conservation incentives. Section 10(1)(A) of the Endangered Species Act allows the Fish and Wildlife Service to grant exemptions to the law's ban on endangered species imports in order to "enhance the propagation or survival of the affected species." Invoking this section, the administration proposes to permit the importation of wildlife from countries with effective conservation programs.

Imports would be allowed, specifically, in cases where the country has a conservation plan by which the number of wildlife that are killed or captured is offset by increases in the target population. The overall net impact of such a plan should, theoretically, be positive.

The administration's draft policy is crowded with the language of incentive and sustainable use. Its promised benefits are speculative and long-term, however, while its risks are direct and immediate.

By opening up the American market to endangered species from abroad, the proposal creates direct incentives for the depletion of existing wildlife stocks. In contrast, the promised overall growth in endangered species populations will result only in those countries where the conservation plan is well thought out, where the authorities are genuinely interested in implementing it, and where the circumstances are such that implementation is actually possible. Given the corruption, disorganization, and competing priorities in many countries, it is doubtful that the proposed influx of American cash will have the desired effect.

In the end, what the change does is allow Fish and Wildlife Service officials to gamble with the future of foreign wildlife stocks. It substitutes a speculative weighing of incentives for a bright line rule.

False Modesty

Another aspect of the draft policy's reasoning that is worth examining, since it is so jarringly inconsistent with the Bush Administration's approach to other international problems, is its modesty. At several points in the draft policy, the use of market-based incentives is justified by reference to the U.S. government's limited ability to influence other countries' policies.

Here, where the goal is wildlife conservation, the U.S. government underscores the limited nature of its power to promote change in "other sovereign countries that have their own national laws and policies." Given such constraints, the administration argues, market-based incentives are among the "few available means" for encouraging conservation efforts abroad.

For an enlightening contrast, consider the "war on drugs." (Note the declaration of "war," for starters.) In its counter-narcotics efforts, the U.S. government has long eschewed market-based incentives in favor of a range of bullying tactics, which include blatant violations of other countries' sovereignty. The government's coercive measures have included invading a country and prosecuting its president (as with Panamanian strongman Manuel Noriega), abducting foreign citizens (as with Mexican physician Humberto Alvarez Machain, whose plight was eventually ruled on by the Supreme Court), and denying access to U.S. markets in retaliation for insufficient cooperation with U.S. counter-narcotics programs.

As the most powerful country in the world, the United States has enormous leverage in every realm. In approaching trade issues, the drug war, the counter-terrorism effort, or a number of other national priorities, one can be assured that U.S. policymakers are overly focused on their limited options for effecting change.

The Larger Context

It is worth remembering, in closing, that the recent proposals are part of a larger attack on the Endangered Species Act. With the administration's support, Republicans in Congress have been seeking to amend the law in order to weaken it. To achieve the same goal though other means, the administration has also consistently underfunded the endangered species program, creating a work backlog that undermines the Fish and Wildlife Service's ability to enforce the law's requirements.

Several of the administration's federal court nominees, such as Alabama Attorney General William Pryor and Texas Supreme Court Justice Priscilla Owen, have a history of hostility to the Endangered Species Act. Interior Secretary Gale Norton, the head of the department charged with enforcing the law, once filed a legal brief with the U.S. Supreme Court urging significant cuts in endangered species protections. Her assistant secretary for water and science is a former mining lawyer who once called for the abolition of the Endangered Species Act.

The overall picture is, in short, a gloomy one. It may be called the New Environmentalism, but it sounds a lot like the old anti-environmentalism. And Peter Huber is right: it makes Teddy Roosevelt look awfully good.

Joanne Mariner is a FindLaw columnist and a human rights attorney.

A Separation Wall Through the Heart

Imagine having to decide between your country or your spouse. With the passage of Israel's new law on marriage and citizenship, thousands of Israeli Arabs now face this painful and unjust choice.

The law, passed on July 31, bars Palestinians who marry Israelis from becoming citizens or residents of Israel. It formalizes a policy that has been effect since September 2000, when the current violence in Israel began.

Israelis of Palestinian origin have long complained that they feel like second-class citizens. This new law could be a defining step toward making their second-class status official.

Differential Treatment

Israeli law already extends an absolute preference to Jews over members of all other ethnic or religious groups in obtaining Israeli citizenship. The Law of Return, together with the country's Citizenship Law, grants automatic citizenship to Jewish immigrants to Israel. Not only do the country's legal rules benefit Jews over other potential immigrants, they give Jews priority over Palestinians who fled or were driven from the country during the 1948 and 1967 wars.

The law that was just passed, however, goes an important step beyond the previously existing rules. Rather than granting a preference to Jews over all other groups, it specifically singles out Palestinians for adverse treatment.

The new law is thus racially discriminatory against persons of a single nationality. Aside from Palestinians, all other persons who marry Israelis are eligible for citizenship. But the law's discriminatory character extends beyond its impact on the Palestinians who are barred from obtaining citizenship. It is also discriminatory in its impact on Israelis.

The overwhelming majority of Israeli-Palestinian marriages are between Israeli citizens of Palestinian origin (known as Israeli Arabs), and Palestinians living in the West Bank and Gaza. By blocking the reunification of families split between Israel and the occupied territories, the law will have a devastating impact on the family life of Israeli Arabs.

Israeli Arabs who are married to Palestinians will now have to abandon Israel if they want to live with their families. Indeed, the prospect of their emigration may have helped spur the law's passage. As Israelis prepare for the establishment of a Palestinian state, nationalist legislators are anxious to ensure the geographic separation of Jews and Palestinians.

Security or Demography?

Nearly 20 percent of Israelis are of Palestinian origin: an estimated 1.2 million people. Given the Zionist ideal of Israel as the state of the Jewish people, and the demographic realities that this ideal presupposes, many Israeli Jews have watched the growth of Israel's Palestinian population with an anxious eye.

Until recently, the immigration of Jews to Israel more than outweighed increases in the population of Israelis of Palestinian origin. Benefiting from the Law of Return, some 2.7 million Jews immigrated to Israel between 1948 and 1998. At present, however, with the Jewish exodus from Russia having ended, the prospect of continued large-scale Jewish immigration to Israel seems unlikely. The demographic issues that alarm Jewish nationalists are now increasingly apparent.

Because of such concerns, it has never been easy for Palestinians from the occupied territories to obtain permission to join their spouses in Israel. But it was with the outbreak of violence in Israel in September 2000 that the issuing of residence permits to Palestinian spouses was effectively frozen. This de facto suspension of permits was ratified by the Israeli cabinet in May 2002, and was just now formalized into law.

Supporters of the new law, known as the "Nationality and Entry into Israel" law, justify it as a means to prevent terrorist attacks. According to Israeli government minister Gideon Ezra, a member of the right-wing Likud party, there have been some twenty lethal attacks in the last few years involving Palestinians who had gained entry to Israel through marriage.

Ezra also acknowledged, however, that over 100,000 Palestinians from the West Bank had obtained Israeli identity cards since the 1993 Oslo agreement. If the prevention of terrorist attacks were the goal, one would expect the government to seek out a more compelling surrogate for terrorist intent: 20 out of 100,000 people is hardly a close match. Nor is punishing thousands of people for the crimes of a few a very fair approach to stemming terrorism.

Discrimination and Citizenship under International Law

Under international law, Israel is not free to discriminate. The Convention on the Elimination of All Forms of Racial Discrimination prohibits discrimination on the basis of race, color, descent, and national or ethnic origin. Although the treaty does not generally apply to countries' legal rules on citizenship and naturalization, it does bar discrimination against particular nationalities.

In other words, while the treaty may not bar Israel from adopting citizenship rules that benefit a particular group -- as it did with the Law of Return -- it does bar Israel from discriminating against Palestinians specifically.

Recognizing the Israeli law's incompatibility with international norms, Human Rights Watch and Amnesty International sent a joint letter to the Israeli parliament in July to urge legislators to reject it. As the letter stated, in blunt terms, "The proposed law is discriminatory. It targets a category of individuals purely on the basis of nationality or ethnicity, and prevents them from living with their spouses and children."

Even Israel's most reliable supporters appear concerned about the law. Last week, U.S. State Department spokesman Philip Reeker was called on to comment on it. Although Reeker seemed reluctant to use the word "discrimination," he acknowledged that "the new law singles out one group for different treatment than others."

Perhaps more surprisingly, Abraham H. Foxman, the director of the pro-Israel Anti-Defamation League, issued a statement implicitly criticizing the new law. Noting that the law will expire after one year, Foxman said that the ADL hopes that Israel's parliament will review the law when it expires "and explore other methods to ensure Israel's security needs."

Lessons from History

Jews have good reason to oppose discriminatory citizenship laws, having historically been a target of them.

In European countries during the 18th and 19th centuries, Jews and other minority populations were often excluded from citizenship. It was only after the French Revolution that France became the first European country to extend full citizenship rights to Jews.

Adrien Jean François Duport, the Frenchman who proposed the motion on Jewish citizenship, spoke eloquently about the unfairness of singling out ethnic or religious groups for adverse treatment. Discussing the right to citizenship, he concluded: "Jews cannot alone be excluded from the enjoyment of these rights, when pagans, Turks, Muslims, even Chinese -- in short, men of all sects -- are granted them."

Last week, a legal organization for Arab minority rights challenged the constitutionality of the new Israeli law in a petition filed with Israel's High Court of Justice. In considering the law, perhaps the court will recognize that Palestinians, too, should not be excluded from rights that others enjoy.

Joanne Mariner is a human rights lawyer and columnist for FindLaw.com.

Monsieur Moussaoui

It may turn out that the fatal weakness in Zacarias Moussaoui's case is not that the defendant is an admitted member of al Qaeda, but rather that he's French.

Moussaoui, who is charged with conspiring to carry out the September 11 terrorist attacks, is on trial for his life. Whether his prosecution should remain in federal court, or be transferred to Guantanamo for substandard proceedings before a military commission, is the question now facing the Bush administration.

It is, for the time being at least, a political decision more than a legal one. And from Moussaoui's perspective, the political odds are not encouraging.

One Form of Justice for Us, Another for Them

No Americans are being held on Guantanamo, nor will they be. Although the Bush administration has detained two American citizens indefinitely as "enemy combatants," the two are in military custody on U.S. territory. Unlike other such detainees, they do not face the prospect of prosecution before a military commission.

American citizens, even the most unrepentant terrorists, are excluded from military commission trials by the terms of the presidential order creating the commissions. Although the key WWII-era Supreme Court case involving military commissions drew no legal distinction between Americans and foreigners, the Bush administration was savvy enough to recognize that the distinction would resonate with the public. Substandard justice is somehow more noticeable and more galling when it affects a compatriot.

It should surprise no one, therefore, that the British and Australian public have raised an outcry over the Guantanamo substitute for justice. Where we see foreigners, they see fellow citizens.

Ever since it became known that British and Australian detainees were being held on Guantanamo, the two countries' media have featured a steady stream of news and critical commentary about conditions there. But it was earlier this month, with the announcement that two Britons and one Australian were among the first six detainees deemed eligible for trial by military tribunal, that public disapproval of the U.S. approach reached critical mass.

Unjust, Unwise, and UnAmerican

"Unjust, unwise, unAmerican," boomed the cover of The Economist, a normally staid and pro-American publication. In a series of articles dissecting the flaws of the planned military commission proceedings, the magazine described them as the "antithesis of the rule of law which the United States was founded to uphold."

Very quickly, the same sorts of political considerations that protected American citizens from military proceedings came to favor the British. One hundred and sixty-three members of the British parliament signed a petition calling on the U.S. government to repatriate the two Britons facing trial. Tony Blair, President Bush's staunchest ally in the war on Iraq, was equally insistent, raising the issue of his country's detainees in a meeting with Bush last week.

And so it happened that last Friday President Bush announced that the administration was reconsidering whether British citizens would be brought before military tribunals. Instead, a White House statement explained, legal experts from Britain and the U.S. would meet to discuss future options for British detainees on Guantanamo. The statement also said that the Australians on Guantanamo (whose country, like Britain, contributed troops for the invasion of Iraq) would receive a similar status review.

Speaking to a reporter for The New York Times, a senior administration official acknowledged the political underpinnings of President Bush's decision. He said that it was made in recognition that the two countries "are very important allies, partners."

While the decision to reconsider the proceedings is good news for the British and Australians, its message to the rest of the world is provocatively clear. Military commissions are not fit for our own people; they may not be suitable for our close allies; but they're good enough for everybody else.


Even as events conspired to help protect British and Australian detainees from military proceedings, a contrary dynamic was developing in the case of Zacarias Moussaoui. Moussaoui, who was arrested prior to September 11, is being prosecuted in federal court in Virginia. But the future of his federal prosecution is now in real jeopardy.

As a critical component of his defense, Moussaoui wants to depose Ramzi bin al-Shibh, an al Qaeda operative currently held by the U.S. military in an unknown location abroad. (One should note, at least in passing, that bin al-Shibh has been "disappeared," an abhorrent abuse no matter who is subject to it.)

A quick review of Moussaoui's indictment indicates bin al-Shibh's central importance to the case. Only via bin al-Shibh, who once shared an apartment with hijacker Mohammed Atta and who wired money to Moussaoui, does the indictment link Moussaoui to the September 11 conspirators. (The other "overt acts" mentioned in the indictment - taking flying lessons, owning a knife, joining a gym - provide only circumstantial evidence of Moussaoui's involvement in the plot.)

Bin al-Shibh could be the source of crucial exculpatory testimony that could save Moussaoui's life. It has been reported that, during interrogation abroad, bin al-Shibh said that Moussaoui, though a member of al Qaeda, was not involved in the September 11 plot. Moussaoui himself has repeatedly claimed that bin al-Shibh can attest to his lack of participation in the conspiracy.

Nonetheless, citing national security risks, the government refuses to allow Moussaoui to question bin al-Shibh. Although the Sixth Amendment to the Constitution clearly requires that such questioning be permitted, the prosecution has stated that it will not comply with a court order giving Moussaoui access to question bin al-Shibh via videoconference.

Military Commissions for the French

Given the prosecution's recalcitrance, the district court presiding over the Moussaoui case may be forced to dismiss the indictment. This may be all that the government needs to transfer his case to a military commission.

To the extent that a defendant's nationality now determines the quality of justice due him, Moussaoui - citizen of a country that, notoriously, did not support the U.S. war on Iraq - loses out. (Indeed, the jingoistic Wall Street Journal published an editorial calling for Moussaoui's trial before a military commission that described the fact of his French citizenship as "an added bonus.")

But in making this choice, the Administration should be aware of its ultimate consequences. If Moussaoui, without having had access to potentially exculpatory testimony, were to be sentenced to death by a military tribunal, France would not be alone in condemning the United States. The entire world would condemn the proceedings, and rightly so.

The Case for Impeachment

[Editor's Note: John Dean was recently interviewed on Democracy Now! with Amy Goodman.]

President George W. Bush has got a very serious problem. Before asking Congress for a Joint Resolution authorizing the use of American military forces in Iraq, he made a number of unequivocal statements about the reason the United States needed to pursue the most radical actions any nation can undertake -- acts of war against another nation.

Now it is clear that many of his statements appear to be false. In the past, Bush's White House has been very good at sweeping ugly issues like this under the carpet, and out of sight. But it is not clear that they will be able to make the question of what happened to Saddam Hussein's weapons of mass destruction (WMDs) go away -- unless, perhaps, they start another war.

That seems unlikely. Until the questions surrounding the Iraqi war are answered, Congress and the public may strongly resist more of President Bush's warmaking.

Presidential statements, particularly on matters of national security, are held to an expectation of the highest standard of truthfulness. A president cannot stretch, twist or distort facts and get away with it. President Lyndon Johnson's distortions of the truth about Vietnam forced him to stand down from reelection. President Richard Nixon's false statements about Watergate forced his resignation.

Frankly, I hope the WMDs are found, for it will end the matter. Clearly, the story of the missing WMDs is far from over. And it is too early, of course, to draw conclusions. But it is not too early to explore the relevant issues.

President Bush's Statements On Iraq's Weapons Of Mass Destruction

Readers may not recall exactly what President Bush said about weapons of mass destruction; I certainly didn't. Thus, I have compiled these statements below. In reviewing them, I saw that he had, indeed, been as explicit and declarative as I had recalled.

Bush's statements, in chronological order, were:

"Right now, Iraq is expanding and improving facilities that were used for the production of biological weapons."
-- United Nations Address, September 12, 2002

"Iraq has stockpiled biological and chemical weapons, and is rebuilding the facilities used to make more of those weapons."

"We have sources that tell us that Saddam Hussein recently authorized Iraqi field commanders to use chemical weapons -- the very weapons the dictator tells us he does not have."
-- Radio Address, October 5, 2002

"The Iraqi regime . . . possesses and produces chemical and biological weapons. It is seeking nuclear weapons."

"We know that the regime has produced thousands of tons of chemical agents, including mustard gas, sarin nerve gas, VX nerve gas."

"We've also discovered through intelligence that Iraq has a growing fleet of manned and unmanned aerial vehicles that could be used to disperse chemical or biological weapons across broad areas. We're concerned that Iraq is exploring ways of using these UAVS for missions targeting the United States."

"The evidence indicates that Iraq is reconstituting its nuclear weapons program. Saddam Hussein has held numerous meetings with Iraqi nuclear scientists, a group he calls his "nuclear mujahideen" -- his nuclear holy warriors. Satellite photographs reveal that Iraq is rebuilding facilities at sites that have been part of its nuclear program in the past. Iraq has attempted to purchase high-strength aluminum tubes and other equipment needed for gas centrifuges, which are used to enrich uranium for nuclear weapons."
-- Cincinnati, Ohio Speech, October 7, 2002

"Our intelligence officials estimate that Saddam Hussein had the materials to produce as much as 500 tons of sarin, mustard and VX nerve agent."
-- State of the Union Address, January 28, 2003

"Intelligence gathered by this and other governments leaves no doubt that the Iraq regime continues to possess and conceal some of the most lethal weapons ever devised."
-- Address to the Nation, March 17, 2003

Should The President Get The Benefit Of The Doubt?

When these statements were made, Bush's let-me-mince-no-words posture was convincing to many Americans. Yet much of the rest of the world, and many other Americans, doubted them.

As Bush's veracity was being debated at the United Nations, it was also being debated on campuses -- including those where I happened to be lecturing at the time.

On several occasions, students asked me the following question: Should they believe the President of the United States? My answer was that they should give the President the benefit of the doubt, for several reasons deriving from the usual procedures that have operated in every modern White House and that, I assumed, had to be operating in the Bush White House, too.

First, I assured the students that these statements had all been carefully considered and crafted. Presidential statements are the result of a process, not a moment's thought. White House speechwriters process raw information, and their statements are passed on to senior aides who have both substantive knowledge and political insights. And this all occurs before the statement ever reaches the President for his own review and possible revision.

Second, I explained that -- at least in every White House and administration with which I was familiar, from Truman to Clinton -- statements with national security implications were the most carefully considered of all. The White House is aware that, in making these statements, the President is speaking not only to the nation, but also to the world.

Third, I pointed out to the students, these statements are typically corrected rapidly if they are later found to be false. And in this case, far from backpedaling from the President's more extreme claims, Bush's press secretary, Ari Fleischer had actually, at times, been even more emphatic than the President had. For example, on January 9, 2003, Fleischer stated, during his press briefing, "We know for a fact that there are weapons there."

In addition, others in the Administration were similarly quick to back the President up, in some cases with even more unequivocal statements. Secretary of Defense Donald Rumsfeld repeatedly claimed that Saddam had WMDs -- and even went so far as to claim he knew "where they are; they're in the area around Tikrit and Baghdad."

Finally, I explained to the students that the political risk was so great that, to me, it was inconceivable that Bush would make these statements if he didn't have damn solid intelligence to back him up. Presidents do not stick their necks out only to have them chopped off by political opponents on an issue as important as this, and if there was any doubt, I suggested, Bush's political advisers would be telling him to hedge. Rather than stating a matter as fact, he would be say: "I have been advised," or "Our intelligence reports strongly suggest," or some such similar hedge. But Bush had not done so.

So what are we now to conclude if Bush's statements are found, indeed, to be as grossly inaccurate as they currently appear to have been?
After all, no weapons of mass destruction have been found, and given Bush's statements, they should not have been very hard to find -- for they existed in large quantities, "thousands of tons" of chemical weapons alone. Moreover, according to the statements, telltale facilities, groups of scientists who could testify, and production equipment also existed.

So where is all that? And how can we reconcile the White House's unequivocal statements with the fact that they may not exist?

There are two main possibilities. One that something is seriously wrong within the Bush White House's national security operations. That seems difficult to believe. The other is that the President has deliberately misled the nation, and the world.

A Desperate Search For WMDs Has So Far Yielded Little, If Any, Fruit

Even before formally declaring war against Saddam Hussein's Iraq, the President had dispatched American military special forces into Iraq to search for weapons of mass destruction, which he knew would provide the primary justification for Operation Freedom. None were found.

Throughout Operation Freedom's penetration of Iraq and drive toward Baghdad, the search for WMDs continued. None were found.

As the coalition forces gained control of Iraqi cities and countryside, special search teams were dispatched to look for WMDs. None were found.

During the past two and a half months, according to reliable news reports, military patrols have visited over 300 suspected WMD sites throughout Iraq. None of the prohibited weapons were found there.

British and American Press Reaction to the Missing WMDs

British Prime Minister Tony Blair is also under serious attack in England, which he dragged into the war unwillingly, based on the missing WMDs. In Britain, the missing WMDs are being treated as scandalous; so far, the reaction in the U.S. has been milder.

New York Times columnist Paul Krugman has taken Bush sharply to task, asserting that it is "long past time for this administration to be held accountable." "The public was told that Saddam posed an imminent threat," Krugman argued. "If that claim was fraudulent," he continued, "the selling of the war is arguably the worst scandal in American political history -- worse than Watergate, worse than Iran-contra." But most media outlets have reserved judgment as the search for WMDs in Iraq continues.

Still, signs do not look good. Last week, the Pentagon announced it was shifting its search from looking for WMD sites, to looking for people who can provide leads as to where the missing WMDs might be.

Undersecretary of State for Arms Control and International Security John Bolton, while offering no new evidence, assured Congress that WMDs will indeed be found. And he advised that a new unit called the Iraq Survey Group, composed of some 1400 experts and technicians from around the world, is being deployed to assist in the searching.

But, as Time Magazine reported, the leads are running out. According to Time, the Marine general in charge explained that "[w]e've been to virtually every ammunition supply point between the Kuwaiti border and Baghdad," and remarked flatly, "They're simply not there."

Perhaps most troubling, the President has failed to provide any explanation of how he could have made his very specific statements, yet now be unable to back them up with supporting evidence. Was there an Iraqi informant thought to be reliable, who turned out not to be? Were satellite photos innocently, if negligently misinterpreted? Or was his evidence not as solid as he led the world to believe?

The absence of any explanation for the gap between the statements and reality only increases the sense that the President's misstatements may actually have been intentional lies.

Investigating The Iraqi War Intelligence Reports

Even now, while the jury is still out as to whether intentional misconduct occurred, the President has a serious credibility problem. Newsweek Magazine posed the key questions: "If America has entered a new age of pre-emption -- when it must strike first because it cannot afford to find out later if terrorists possess nuclear or biological weapons -- exact intelligence is critical. How will the United States take out a mad despot or a nuclear bomb hidden in a cave if the CIA can't say for sure where they are? And how will Bush be able to maintain support at home and abroad?"

In an apparent attempt to bolster the President's credibility, and his own, Secretary Rumsfeld himself has now called for a Defense Department investigation into what went wrong with the pre-war intelligence. New York Times columnist Maureen Dowd finds this effort about on par with O. J.'s looking for his wife's killer. But there may be a difference: Unless the members of Administration can find someone else to blame -- informants, surveillance technology, lower-level personnel, you name it -- they may not escape fault themselves.

Congressional committees are also looking into the pre-war intelligence collection and evaluation. Senator John Warner (R-VA), chairman of the Senate Armed Services Committee, said his committee and the Senate Intelligence Committee would jointly investigate the situation. And the House Permanent Select Committee on Intelligence plans an investigation.

These investigations are certainly appropriate, for there is potent evidence of either a colossal intelligence failure or misconduct -- and either would be a serious problem. When the best case scenario seems to be mere incompetence, investigations certainly need to be made.

Senator Bob Graham -- a former chairman of the Senate Intelligence Committee -- told CNN's Aaron Brown, that while he still hopes they find WMDs or at least evidence thereof, he has also contemplated three other possible alternative scenarios:

One is that [the WMDs] were spirited out of Iraq, which maybe is the worst of all possibilities, because now the very thing that we were trying to avoid, proliferation of weapons of mass destruction, could be in the hands of dozens of groups. Second, that we had bad intelligence. Or third, that the intelligence was satisfactory but that it was manipulated, so as just to present to the American people and to the world those things that made the case for the necessity of war against Iraq.

Senator Graham seems to believe there is a serious chance that it is the final scenario that reflects reality. Indeed, Graham told CNN "there's been a pattern of manipulation by this administration."

Graham has good reason to complain. According to the New York Times, he was one of the few members of the Senate who saw the national intelligence estimate that was the basis for Bush's decisions. After reviewing it, Senator Graham requested that the Bush Administration declassify the information before the Senate voted on the Administration's resolution requesting use of the military in Iraq.

But rather than do so, CIA Director Tenet merely sent Graham a letter discussing the findings. Graham then complained that Tenet's letter only addressed "findings that supported the administration's position on Iraq," and ignored information that raised questions about intelligence. In short, Graham suggested that the Administration, by cherrypicking only evidence to its own liking, had manipulated the information to support its conclusion.

Recent statements by one of the high-level officials privy to the decision-making process that led to the Iraqi war also strongly suggests manipulation, if not misuse of the intelligence agencies. Deputy Secretary of Defense Paul Wolfowitz, during an interview with Sam Tannenhaus of Vanity Fair magazine, said: "The truth is that for reasons that have a lot to do with the U.S. government bureaucracy we settled on the one issue that everyone could agree on which was weapons of mass destruction as the core reason."

Worse than Watergate? A Potential Huge Scandal If WMDs Are Still Missing

Krugman is right to suggest a possible comparison to Watergate. In the three decades since Watergate, this is the first potential scandal I have seen that could make Watergate pale by comparison. If the Bush Administration intentionally manipulated or misrepresented intelligence to get Congress to authorize, and the public to support, military action to take control of Iraq, then that would be a monstrous misdeed.

As I remarked in an earlier column, this Administration may be due for a scandal. While Bush narrowly escaped being dragged into Enron, it was not, in any event, his doing. But the war in Iraq is all Bush's doing, and it is appropriate that he be held accountable.

To put it bluntly, if Bush has taken Congress and the nation into war based on bogus information, he is cooked. Manipulation or deliberate misuse of national security intelligence data, if proven, could be "a high crime" under the Constitution's impeachment clause. It would also be a violation of federal criminal law, including the broad federal anti-conspiracy statute, which renders it a felony "to defraud the United States, or any agency thereof in any manner or for any purpose."

It's important to recall that when Richard Nixon resigned, he was about to be impeached by the House of Representatives for misusing the CIA and FBI. After Watergate, all presidents are on notice that manipulating or misusing any agency of the executive branch improperly is a serious abuse of presidential power.

Nixon claimed that his misuses of the federal agencies for his political purposes were in the interest of national security. The same kind of thinking might lead a President to manipulate and misuse national security agencies or their intelligence to create a phony reason to lead the nation into a politically desirable war. Let us hope that is not the case.

John Dean, a FindLaw columnist, is a former Counsel to the President of the United States.
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