Wednesday, June 30, 2004

To recruit or not to recruit in law schools?
Today, I will attend oral argument in the case of FAIR v. Rumsfeld, which is being heard in Philadelphia by the 3rd Circuit Court of Appeals. The case involves a challenge by FAIR, a group of professors and law students, to the "Solomon Amendment" which conditions the receipt of federal funding to universities on those universities' allowance of military recruiters on campus. This particular case arises in the context of law school recruiting by JAG officials, and the desire of law professors to protest the military's "don't ask/don't tell" policy by excluding the military from law schools. I helped write an amicus curiae brief on behalf of the UCLA Law School Veterans Society , which we we filed with the 3rd Circuit. I'm looking forward to oral argument by our attorney, Howard J. Bashman, as well as that by counsel for opposing amici, Walter Dellinger and Paul Smith. I'll report later this afternoon on the hearing.

Update I: The hearing just concluded and I'm on my way to the train station, with a quick stop at Starbucks to check e-mail via wi-fi. It was hard to gauge the court's sentiment on the case, because they seemed quite willing to ask both sides tough questions that had no easy answer. Nonetheless, I was extremely impressed by the performance of counsel on all sides. E. Joshua Rosenkrantz did a great job for the plaintiffs, particularly during his rebuttal, although he took a few liberties with the facts in the name of zealous advocacy. Walter Dellinger and Paul Smith performed very well for plaintiffs' amici, as can be expected for lawyers of their caliber. It was a treat to watch Howard Bashman in action as my organization's counsel, as amici for the government. And the Justice Department attorney demonstrated a brilliant grasp of the law in his Q&A; with the panel. Honestly, I think the case can go either way, depending on which way the court decides to see the 1st Amendment issues (and thus, which level of scrutiny they choose to employ.)

Update II: Here are some more notes on the hearing, which I e-mailed last night to my friends involved with the case.

Again, I should say that the lawyering was really good. Josh Rosenkrantz, a Heller Ehrman partner, argued the case for the plaintiffs (FAIR), and he did an exceptional job - especially on rebuttal. Paul Smith and Walter Dellinger were also very good. The court treated Dellinger with a great deal of deference, as you might imagine they would for a former Solicitor General. The DOJ attorney started off a little awkwardly, but he got better and better during his argument, and ultimately I think made some really big points with the judge who led most of the discussion (Judge Ambro). Howard Bashman did a great job of making our group's argument about the balance of harms, and also the point that the student interests were not all aligned on the side of the plaintiffs.

As for the actual arguments, some details stood out more than others. Mr. Rosenkrantz' argument focused on the 1st Amendment argument. He tried very hard to persuade the 3rd Circuit that the government (through the Solomon Amendment) was both compelling and suppressing speech, thus strict scrutiny should apply. A majority of his argument (and Q&A; with the judges) focused on the issue of which 1st Amendment paradigm to apply, and the appropriate type of scrutiny to use as a result. The plaintiffs wanted to use a paradigm that got them to strict scrutiny; the government argued for one that got them to intermediate scrutiny. It wasn't clear who carried the day here.

Another big issue that Judge Ambro hit repeatedly was the lack of an evidentiary record to support the government's argument. The plaintiffs, as can be read here, made a big deal about filing declarations with the district court in order to bolster their case. The government filed no such affidavits or declarations regarding military recruiting, JAG recruiting, or the need for the Solomon Amendment. (As a side note, I think it easily could've gotten such documents from the four services if it had wanted to — the facts are there, just not in evidence.) Consequently, there was very little evidence that the court could look to support the arguments of the government. At several points, Judge Ambro asked for evidence of the need for the Solomon Amendment. He understood the compelling interest in having a military and recruiting for it. But, Judge Ambro wanted to see some evidence that the Solomon Amendment was necessary to effectuate this compelling interest. Unfortunately, there was none in the record. I think this deficiency owes to the strategy of DOJ at the trial court level, which was to fight this case on legal grounds rather than building a record. I'm not sure whether this point will make a difference when the court decides, but it certainly stood out at argument.

A third big point was the likely result if the plaintiffs were to prevail. Here, the DOJ attorney and our attorney (Howard Bashman) scored big points with the court. They said, emphatically and without any room for misunderstanding, that the result would be nothing less than a wholesale exclusion of the military from law school campuses. The point was made that American Association of Law Schools (AALS) policy mandates the exclusion of the military, because it conflicts with the AALS bylaws regarding non-discrimination. Without the Solomon Amendment in place, something like 96% of law schools would be required to toss the military off campus. This argument was something we raised in our amicus brief, and I think it had an impact on the court.

The plaintiff's attorney tried to make a huge deal out of the free speech rights of law professors and law schools, to "teach by word and deed" about non-discrimination through their exclusion of the military. I don't think the court really bought this argument, but it sounded good. There was also some discussion with respect to the government's message. Judge Aldisert caught the Mr. Rosenkrantz off guard when he asked what the average person would think of the military recruiting on campus, and whether they would see a military uniform and instantly think "anti-gay". Mr. Rosenkranz first answered "no", and then later changed his mind and said that a gay person might see the military that way. But I don't think the court was really convinced of his answer. There were also some interesting questions about how to frame the 1st Amendment challenge, and whether this was really a 1st Amendment challenge to the Congressional military powers and taxing/spending powers under Art. I.

There was very little discussion about "don't ask/don't tell" per se, or the fact that the military doesn't have the discretion to change this policy. Maybe it was so self-evident that it didn't warrant any argument. Or, more likely, the gays-in-the-military issue may not be relevant to this 1st Amendment suit, because there's no requirement in free speech law that the plaintiffs actually target the correct branch of government. (For the record, DADT is codified in statute at 10 U.S.C. 654, so the military is being targeted here for a rule that it can't change without an act of Congress and the President.) Our amici counsel, Mr. Bashman, made the point that the military is unlike the typical private sector employer, which can easily abandon an offending employment practice, because a separate federal statute, not directly challenged by the plaintiffs, prohibits the military from dispensing with the "don't ask, don't tell" policy."

There was also no discussion of the Lawrence decision, or how its holding might impact this policy. (As a side note, there are cases pending now before the U.S. Court of Appeals for the Armed Forces that specifically target the military's criminal laws on homosexual conduct, and those should be decided sometime this summer.) At the end of his rebuttal, Mr. Rosenkrantz tried to make a veiled reference to Abu Ghraib and Guantanamo as a riposte to the government's "national security deference" argument, but the court actually said the government's arguments didn't stretch that far.

Prediction: Yesterday, I said this would go 2-1 for the government. It may well do so, because the government has a lot of law on its side. I don't know that oral argument changed the positions of any of the judges, notwithstanding the excellent advocacy on display yesterday in Philadelphia. However, if the court buys into the plaintiff's 1st Amendment arguments, and employs strict scrutiny, then this case comes out for the plaintiffs. The government did not meet its burden under that level of judicial review. If that result occurs, then I think we're going to see similar suits brought around the country by law schools (and possibly by colleges and universities generally) to overturn the Solomon Amendment as an unconstitutional spending condition that infringes on their free speech. We'll see.

Tuesday, June 29, 2004

Saddam to face the music
The AP reports that Saddam Hussein and several of his top lieutenants will be handed over tomorrow to Iraqi authorities, with criminal charges soon to follow. Iraqi leaders have indicated that they plan to charge Mr. Hussein almost as soon as he's transferred to their custody with crimes running from 1968-2003, under a special war crimes statute passed in late 2003 by the Iraqi Governing Council.
Iraq will take legal custody of Saddam from the U.S. Army on Wednesday and the former dictator is to make his first court appearance Thursday, where he will be informed of the charges in his arrest warrant, Prime Minister Iyad Allawi announced Tuesday.

Salem Chalabi, director of the Iraqi Special Tribunal that will try Saddam, said Thursday's appearance at the tribunal, housed in a courthouse with a prominent clock tower inside Baghdad's sealed-off Green Zone, is expected to be filmed for public release.
For more analysis of Saddam's case, see this Writ article titled "Trying Saddam" (also available at CNN.Com). Also, I'm currently scheduled to appear on MSNBC tomorrow morning at 8:15 a.m. to discuss Saddam's transfer and some likely issues that will come up during his trial.

More to follow on this incredibly interesting legal story as it unfolds.
The operational implications of yesterday's Supreme Court decisions
In this Slate article titled "Taking It To The Trenches", I discuss some of the ways in which yesterday's Supreme Court terrorism decisions will affect the way the U.S. actually conducts the war on terrorism. Of course, much of this is speculative, based on my interviews with experts in the field and my own personal experience in this area. Overall, these cases are going to have a profound impact on America's conduct of the war on terrorism.

Case in point: the Pentagon announced plans today to start its military commissions for the trial of three foreign citizens held at Guantanamo Bay, Cuba. The commissions, aka military tribunals, have been planned for some time. But presumably, lawyers within the Bush administration declined to go forward until they knew they would be on firm ground based on the outcome of these three terrorism cases. In many ways, I think that certain language in these opinions actually pushed the Pentagon to make this decision today. Given the fact that many critics have called these tribunals themselves unconstitutional, that's an ironic effect for these opinions to have.

Update: I'm scheduled to discuss this issue on NPR's "Day to Day" program on Thursday, which airs at various times of the day depending on your local NPR affiliate. (A digital replay of the segment is available online.)

Monday, June 28, 2004

High court issues momentous trio of terror cases
The AP is reporting that the Supreme Court has issued a decision in Hamdi v. Rumsfeld that effectively gives the President the power to detain U.S. citizens as enemy combatants, but also provides some role for the judiciary.

Update: Via Goldstein & Howe's SCOTUSblog, all three of the terrorism cases were reversed and remanded by the Supreme Court today. Here are the outcomes in the terrorism cases:
Nos. 03-334, Rasul v. Bush, and 03-343, Al Odah v. United States, per Justice Stevens, reversed and remanded [6-3; win for detainees]

No. 03-6696, Hamdi v. Rumsfeld, per Justice O'Connor, reversed and remanded [8-1 decision]

No. 03-1027, Rumsfeld v. Padilla, per the Chief Justice, reversed and remanded [5-4 on jurisdictional grounds]
More to follow...

Update: I originally penned this note under a separate header, but decided to place it here instead.

One of the themes running through the Justice Department and Defense Department torture memoranda is that of plenary Presidential power where matters of war are concerned. Indeed, this power is construed by DOD and DOJ attorneys as a Constitutional value, capable of trumping federal statutes, treaties, and other restraints on presidential power. White House Counsel Alberto Gonzales repudiated this line of reasoning in a press conference last week, saying it was both overbroad and flawed. He promised that DOJ lawyers were hard at work on new memoranda covering the legal terrain of interrogations for the administration.

Lest anyone mistake this point, the Supreme Court decided to weigh in today on the matter. On page 29 of Hamdi v. Rumsfeld, 542 U.S. ____ (2004), Justice O'Connor writes this for the 8-1 majority:
[W]e necessarily reject the Government's assertion that separation of powers principles mandate a heavily circumscribed role for the courts in such circumstances. Indeed, the position that the courts must forgo any examination of the individual case and focus exclusively on the legality of the broader detention scheme cannot be mandated by any reasonable view of separation of powers, as this approach serves only to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Sheet & Tube, 343 U. S., at 587. Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake. Mistretta v. United States, 488 U. S. 361, 380 (1989) (it was .the central judgment of the Framers of the Constitution that, within our political scheme, the separation of governmental powers into three coordinate Branches is essential to the preservation of liberty.)

* * *
Thus, while we do not question that our due process assessment must pay keen attention to the particular burdens faced by the Executive in the context of military action, it would turn our system of checks and balances on its head to suggest that a citizen could not make his way to court with a challenge to the factual basis for his detention by his government, simply because the Executive opposes making available such a challenge. Absent suspension of the writ by Congress, a citizen detained as an enemy combatant is entitled to this process.
(Note: this last part has no citations, meaning this is basically what the justices think about this issue without reference to past decisions. That's a good indicator to me of how strongly the justices feel on this issue.)
A mother's personal protest
The Los Angeles Times reports this morning that Nadia McCaffrey — mother of slain California Army National Guardsman Patrick McCaffrey — has plans not only to allow media photographing of her son's casket as it returns to Sacramento, but to encourage it. In conjunction with the California National Guard, Ms. McCaffrey is planning an honor guard at the Sacramento airport, followed by a motorcade from the airport. All of these ceremonies will be open to the press. Ms. McCaffrey intends this to be a protest against the Defense Department's policy against photographs of flag-draped caskets returning from the war.
"I don't care what [President Bush] wants," Nadia McCaffrey said of the administration's policy that bans on-base photographing of coffins returning from Iraq and Afghanistan.

She planned to hold a short ceremony in front of reporters and photographers inside a Delta Airlines cargo terminal at the airport shortly before Flight 1583 was scheduled to arrive from Atlanta at midnight with the body of her son, National Guard Spc. Patrick McCaffrey, 34.

* * *
Patrick McCaffrey was killed June 22 along with Lt. Andre Tyson, both members of the Santa Rosa-based 579th Engineer Battalion, when the two were ambushed by insurgents near Balad, Iraq.

* * *
Since Sacramento Airport is not a military facility, it is under no obligation to keep the media away. Both the airport and the California National Guard worked Sunday to arrange for the ceremony.

The Pentagon's rules "are specifically for the airlift command, when [the caskets] are on the military plane," said Lt. Jonathan Shiroma of the California National Guard. "This is a commercial jet, so it's a different jurisdiction, so to speak. We cannot stop the media from filming."

Shiroma added that it was the Guard's policy to follow the wishes of the family — sometimes helping keep the media at bay during services, sometimes helping arrange for cameras. A spokeswoman for the airport said that although its security personnel were helping with arrangements, the Guard was performing the majority of the work.
My thoughts: The public has been invited to watch, through the media, funerals of other servicemembers killed in Iraq. Indeed, there have been a number of high-profile funerals held at Arlington National Cemetery where the media have been allowed to watch from close or afar. So this may not be as novel as the Times makes it out to be. Nonetheless, I think it's a poignant way of making the point that I made when I wrote on this subject earlier. These casualties don't belong to the Pentagon or the White House so much as they belong to us — they are our finest sons and daughters. SPC Patrick McCaffrey, though his casket may be shrouded in the American flag, ultimately belongs to his mother and his family. I think that they should have the ultimate say as to how he is respected in death, and I applaud their decision to allow the public to share in his final return. I also applaud the decision by the California National Guard to assist in this ceremony, notwithstanding any of the politics involved. SPC McCaffrey belonged to them too, and this decision shows their commitment to their soldiers over politics.

Some critics will say that Ms. McCaffrey is using her son's death for political purposes. Perhaps — but that is her right. I might not agree with the way that anti-war protesters use casualties to bolster their cause, but I can hardly criticize a mother for seeking to use her son's death as a platform for discussion of the war. This is precisely why we must be circumspect about the decision to wage war — it does have a human cost. We can never forget that, and I think that's what Ms. McCaffrey is trying to remind us of.