The Volokh Conspiracy

This morning the Supreme Court accepted certiorari in Clapper v. Amnesty International USA, which presents the question whether journalists and human rights organizations have standing to challenge the constitutionality of electronic surveillance of international communications without direct evidence their communications have been surveilled. In this case, the U.S. Court of Appeals for the Second Circuit held standing could be claimed because the plaintiffs had a reasonable fear of surveillance and undertook “costly and burdensome measures” to protect the confidentiality of their communications. Unsurprisingly, the SG’s office filed a cert petition. Because this decision created a circuit split with the U.S. Court of Appeals for the Sixth Circuit, a cert grant was virtually assured.

Thus far, the Roberts Court has stood pat on standing, neither raising nor lowering the hurdles to Article III standing. In this case, it will be interesting to see whether this trend continues.

Orin also blogged on this case here and here.

Judge Katherine B. Forrest of the Southern District of New York, a freshly-appointed Obama nominee, issued a surprising ruling on Wednesday preliminarily enjoining Congress’s recent law providing the President with the authority to detain individuals indefinitely as part of the war on terror. I find Judge Forrest’s analysis quite puzzling, so I thought I would blog a bit about the opinion.

The law is Section 1021 of the National Defense Authorization Act for Fiscal Year 2012. Entitled “Affirmation of Authority of the Armed Forces of the United States to Detain Covered Persons Pursuant to the Authorization for Use of Military Force,” the Section states:

(a) In General. Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the [AUMF] includes the authority of the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b) Covered Persons. A covered person under this section is any person as follows
. . .
(2) A person who was part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under the Law of War. The disposition of a person under the law of war as described un subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of hostilities authorized by the [AUMF].

Some readers may recall that President Obama issued a signing statement when he signed the bill that added a cautious note about this provision. It stated in relevant part:

Section 1021 affirms the executive branch’s authority to detain persons covered by the [AUMF]. This section breaks no new ground and is unnecessary. The authority it describes was included in the 2001 AUMF, as recognized by the Supreme Court and confirmed through lower court decisions since then . . . . Moreover, I want to clarify that my Administration will not authorize the indefinite military detention without trial of American citizens . . . . My Administration will interpret section 1021 in a manner that ensures that any detention it authorizes complies with the law.

In this case, Hedges v. Obama, Congress’s statement about the Executive Branch’s power has been challenged as facially unconstitutional by a group of plaintiffs, consisting primarily of a member of the Icelandic Parliament; a London-based pro-Wikieaks activist; and two U.S. based journalists who write about the war on terror. The plaintiffs claim that Congress’s effort to provide the executive branch indefinite detention power makes them fear that they are “subject to prosecution under Section 1021,” and that the law infringes upon their First and Fifth Amendment rights. In defending the law, DOJ has taken the view that the law merely restates the Executive Brach’s power under the AUMF. Although DOJ declined to say whether the detention power could cover any of the individual plaintiffs, DOJ also claimed that the plaintiffs lacked standing.

In her opinion, Judge Forrest finds that the plaintiffs have standing to challenge the law because they might be “prosecuted” under the law, particularly because DOJ refused to answer whether the law covered any of the individual plaintiffs. She then preliminarily enjoins the law because it likely violates the First and Fifth Amendments. The key to the First Amendment analysis seems to be this passage:

Here, each of the four plaintiffs who testified at the evidentiary hearing put forward evidence that their expressive and associational conduct has been and will continue to be chilled by § 1021. The Government was unable or unwilling to represent that such conduct was not encompassed within § 1021. Plaintiffs have therefore put forward uncontroverted proof of infringement on their First Amendment rights.

Applying strict scrutiny to the question of whether there is a compelling government interest that outweighs infringement upon First Amendment rights, the Court finds that plaintiffs have shown a likelihood of success that there is not. Again, that is particularly so in light of the Government’s position that §1021 does no more than the AUMF; therefore, the infringing potential for § 1021 may well be unintentional, but it is real nonetheless. There is no doubt that the type of speech in which Hedges, O’Brien, Wargalla, and Jonsdottir engage is political in nature. It is also likely that some of their views may be extreme and unpopular as measured against views of an average individual. That, however, is precisely what the First Amendment protects.
. . .

This Court is left then, with the following conundrum: plaintiffs have put forward evidence that § 1021 has in fact chilled their expressive and associational activities; the Government will not represent that such activities are not covered by § 1021; plaintiffs’ activities are constitutionally protected. Given that record and the protections afforded by the First Amendment, this Court finds that plaintiffs have shown a likelihood of succeeding on the merits of a facial challenge to § 1021.

Judge Forrest next concludes that the law also is likely void for vagueness under the Fifth Amendment because it doesn’t indicate clearly what conduct Congress is subjecting to criminal penalties. First, she concludes that Congress’s effort to give the President detention power is effectively a criminal law:

[T]his Court preliminarily finds that § 1021, which could be used for the indeterminate military detention, is sufficiently akin to a criminal statute to be treated as such. At the hearing on this motion, the Government was unwilling or unable to state that these plaintiffs would not be subject to indefinite detention under § 1021. Plaintiffs are therefore at risk of detention, of losing their liberty, potentially for many years. In relevant part, then, that is the analytical equivalent of a penal statute.

Treating Congress’s statement about the President’s detention power as akin to a criminal statute, Judge Forrest concludes that the statute is not sufficiently clear as to what is made a crime under void-for-vagueness principles. Judge Forrest again focuses on the fact that DOJ refused to take a position on whether the law applied to the individual plaintiffs: “Finally, and most importantly of course, the Government was unable to state that plaintiffs’ conduct fell outside § 1021. In the face of what could be indeterminate military detention, due process requires more.”

Whatever the merits of Section 1021 as a matter of policy, I find Judge Forrest’s opinion quite puzzling as a matter of constitutional law. First, Section 1021 does not seem to prohibit conduct or impose punishment. It appears to be a statement of Executive branch detention authority, not a law that criminalizes certain activity. As a result, I’m not sure it makes sense to treat Section 1021 as if it were a prohibition of conduct, and then to strike down the law facially on the basis of constitutional doctrines, like the First Amendment and the void-for-vagueness doctrine, that limit the government’s power to prohibit conduct. You could have an as-applied challenge to detention under the First Amendment, but I don’t see how a law expressing Congress’s view of the Executive Branch’s detention power can be subject to this sort of facial challenge. Also, I don’t understand why Judge Forrest sees DOJ’s refusal to say whether the law authorizes the detention of any of the individual plaintiffs likely renders the law facially unconstitutional. I can see why it helps grant standing under Clapper, but why does it indicate the unconstitutionality of the statute on the merits? Further, Judge Forrest’s view that Section 1021 is akin to a criminal statute because it might be used to justify military detention strikes me as odd: The authority that Section 1021 tries to reaffirm is not detention relating to criminal authorities, so I don’t know why the statement of authority is “the analytical equivalent” of a crime. Finally, I’m not sure how a member of the Icelandic Parliament who lives in Iceland has standing to bring a facial challenge to a federal law. What U.S. constitutional rights does an Icelandic member of parliament have that this law might violate? I realize that the Second Circuit’s view of standing is now super-broad under the recent Clapper case, which DOJ recently asked the Supreme Court to review, but I’m not sure I follow how Article III standing is that broad.

My reaction may partially reflect my familiarity with the many statutes that Congress has passed authorizing federal agents to make criminal arrests — that is, detentions for criminal activity. For example, 18 U.S.C. 3052 authorizes FBI agents to “make arrests without warrant for any offense against the United States committed in their presence, or for any felony cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such felony.” This is a statute that tries to define executive power, not to punish conduct. It would be pretty strange if a group of plaintiffs could file a civil lawsuit, express fear that they might be arrested by the FBI, and thereby obtain an injunction against warrantless arrest under 3052 if DOJ refuses to say if the plaintiffs might be arrested — all on the ground that 3052 authorizes detention and is therefore like a criminal statute, while it isn’t sufficiently clear as to what conduct it “prohibits.” Such a suit would seem quite strange because 3052 doesn’t “prohibit” anything; it merely provides for a detention power to help enforce conduct prohibited elsewhere. I’m not sure why Section 1021 should be treated differently.

Anyway, Judge Forrest’s decision has more symbolic importance than actual importance: It’s not clear what it even means to enjoin a law that expresses Congress’s view about executive power. And this is just a preliminary injunction ruling, not a final ruling on the merits. But I thought the opinion is pretty interesting nonetheless, and I look forward to comments from readers who think there is more to the decision than I am currently seeing. (I should add that Glenn Greenwald — a harsh critic of the detention law on policy grounds — has a post celebrating the decision that runs through some of its reasoning. Glenn doesn’t express a view as to whether the decision is persuasive as a matter of law, but he does call the ruling “amazing” and indicates that he saw the case as an “uphill battle” for the plaintiffs and that he did not expect the plaintiffs to succeed. For Glenn’s views, see here.)

UPDATE: For more good questions about the decision, check out the LawFare Blog: In particular, Steve Vladeck’s post, Why Hedges v. Obama is Terribly Perplexing, and Bobby Chesney’s post, Issues with Hedges v. Obama, and a Call for Suggestions for Statutory Language Defining Associated Forces.

Last month, Virginia enacted a law forbidding state officers, including police, from helping the federal government investigate, surveil, or detain terrorist suspects who are U.S. citizens. This may or may not be good policy. David Rivkin and Charles Stimson argue it’s also unconstitutional. They write:

It trenches on the federal government’s war powers and violates conditions under which Virginia and other states have received billions of dollars of federal funding. It has dangerous symbolic and practical consequences and undermines the cooperation necessary to disrupt and defeat al-Qaeda plots on our shores. . . .

The Virginia legislation, and similar legislation in other states, violate the U.S. Constitution. It has nothing to do with states’ rights. It is a dangerous mistake, perpetrated by groups and people who misunderstand detainee law, including the NDAA, or who, since Sept. 11, have viscerally opposed the laws-of-war paradigm. Whatever their motivations, they are wrong, and their efforts should be strongly opposed.

This is an odd argument. It’s black letter law that the federal government may not “commandeer” state officers to enforce or implement federal law. This is true without regard to the purpose of the requirement. If a particular federal policy is that important, the federal government can expend its own resources and direct its own officers to implement and enforce the law. This is true even if, as Rivkin and Stimson maintain, that Virginia’s legislation is premised upon mistaken assumptions about what federal law authorizes or requires.

Rivkin and Stimson imply that Virginia’s new law violates conditions imposed on funds Virginia willingly accepted from the federal government. Maybe so, but this does not make Virginia’s law unconstitutional. It just means Virginia may have to give up some federal funds, provided that the conditions were clear when Congress authorized and Virginia accepted the relevant funds. There is no general requirement that states enforce all federal policies just because they accept some federal funds. And just because a policy is enacted pursuant to the “war on terror” does not mean that states have to go along.

A unanimous panel of the Ninth Circuit (Fisher, Smith, Pallmeyer (dj, NDIll, by designation)) held today that former OLC Deputy Assistant Attorney General John Yoo is entitled to qualified immunity in the lawsuit brought by former detainee Jose Padilla.  If you’re just tuning in, the first two paragraphs set forth the nature of the lawsuit and the court’s reasoning in some detail:

In this lawsuit, plaintiffs Padilla and his mother, Estela Lebron, seek to hold defendant John Yoo, who was the Deputy Assistant Attorney General in the U.S. Department of Justice’s Office of Legal Counsel (OLC) from 2001 to 2003, liable for damages they allege they suffered from these unlawful actions. Under recent Supreme Court law, however, we are compelled to conclude that, regardless of the legality of Padilla’s detention and the wisdom of Yoo’s judgments, at the time he acted the law was not “sufficiently clear that every reasonable official would have understood that what he [wa]s doing violate[d]” the plaintiffs’ rights. Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (internal quotation marks omitted). We therefore hold that Yoo must be granted qualified immunity, and accordingly reverse the decision of the district
court.

As we explain below, we reach this conclusion for two reasons. First, although during Yoo’s tenure at OLC the constitutional rights of convicted prisoners and persons subject to ordinary criminal process were, in many respects, clearly established, it was not “beyond debate” at that time that Padilla — who was not a convicted prisoner or criminal defendant, but a suspected terrorist designated an enemy combatant and confined to military detention by order of the President — was entitled to the same constitutional protections as an ordinary convicted prisoner or accused criminal. Id. Second, although it has been clearly established for decades that torture of an American citizen violates the Constitution, and we assume without deciding that Padilla’s alleged treatment rose to the level of torture, that such treatment was torture was not clearly established in 2001-03.

When the Israeli government exchanged over 1000 captured terrorists for captured Israeli soldier Gilad Shalit last fall, I pointed out that the deal was likely to cost a lot more innocent lives than it saved, because many of the freed terrorists are likely to go back to their old ways. Sure enough at least two of them have already done just that . And they are apparently not the first Shalit exchangees to have done so. Given that there are 1000 more where these two came from, this is likely to be just the tip of the iceberg.

As I explained in my original post on this subject, the likelihood that freed terrorists will commit further atrocities is just one of several grave flaws with these types of deals. They also incentivize future terrorism and hostage taking by showing the terrorists that such tactics work. In addition, endangering innocent civilians in order to save a captured soldier who volunteered for combat duty is a wrongheaded inversion of moral priorities. Still, the high likelihood of recidivism by released terrorists is a sufficiently grave risk that it by itself outweighs any possible benefits of such deals, especially if the ratio of released terrorists to freed prisoners is so absurdly lopsided that it becomes nearly certain that the exchange will cause more harm to innocent people than it prevents.

This conclusion is inescapable on utilitarian consequentialist grounds. But it is also compelling in terms of theories of natural rights. After all, every time the freed terrorists kill or injure innocent civilians, they violate their victims’ rights to life, liberty, or bodily integrity. And the release is likely to cause far more such rights violations than it prevents.

UPDATE: I advanced some additional criticisms of the Shalit deal in this post, which also includes a response to a critique of my position by economist Tyler Cowen.

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

Ben Wittes had this interesting post on the Lawfare blog about research by Haridimos V. Thravalos suggesting the Hamdan plurality got its history wrong concerning whether conspiracy could be tried as a war crime.  See also this response from Kevin Jon Heller and Wittes’ rejoinder.

The NYT’s Charlie Savage has an interesting report that begins:

For more than two years, a handful of Democrats on the Senate intelligence committee have warned that the government is secretly interpreting its surveillance powers under thePatriot Act in a way that would be alarming if the public — or even others in Congress — knew about it.

On Thursday, two of those senators —Ron Wyden of Oregon and Mark Udall of Colorado — went further. They said a top-secret intelligence operation that is based on that secret legal theory is not as crucial to national security as executive branch officials have maintained.

H.R. 1540, the National Defense Authorization Act for Fiscal Year 2012, has already passed the House, and is currently before the Senate. One section of the bill gives the President the authority to detain indefinitely American citizens, picked up on American soil, because they are allegedly supporting the enemy:

SEC. 1034. AFFIRMATION OF ARMED CONFLICT WITH AL QAEDA, THE TALIBAN, AND ASSOCIATED FORCES.
Congress affirms that—
(1) the United States is engaged in an armed conflict with al-Qaeda, the Taliban, and associated forces and that those entities continue to pose a threat to the United States and its citizens, both domestically and abroad;
(2) the President has the authority to use all necessary and appropriate force during the current armed conflict with al-Qaeda, the Taliban, and associated forces pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 23 1541 note);
(3) the current armed conflict includes nations, organization, and persons who—
(A) are part of, or are substantially supporting, al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners; or
(B) have engaged in hostilities or have directly supported hostilities in aid of a nation, organization, or person described in subparagraph (A); and
(4) the President’s authority pursuant to the Authorization for Use of Military Force (Public Law 11 107–40; 50 U.S.C. 1541 note) includes the authority to detain belligerents, including persons described in paragraph (3), until the termination of hostilities.

Yesterday the Senate rejected an amendment by Senator Mark Udall (D-Colo.) that would have stricken the detention provisions, and required the Executive branch to submit a report (within 90 days) on the the legal and practical issues involving detention, and required Congress to hold hearings on the detention within the next 45 days after receipt of the report.

The bill also includes provisions to prevent civilian trials of prisoners currently held at Guantanamo. The Obama administration is threatening to veto the bill, although the objections appear to involve Guantanamo-type issues, and not the expansion of the executive’s detention powers. [Note: The bill version quoted above is the version as passed by the House and sent to the Senate. It is the latest version available on Thomas. The numbering for some sections may be different in earlier versions of the bill.] Kudos to Senator Udall, one of the few genuine civil libertarians in Congress, for taking the lead on this issue.

UPDATE: A commenter points out that, according to Senator Carl Levin, it was the Obama administration which told Congress to remove the language in the original bill which exempted American citizens and lawful residents from the detention power. See the C-Span video of the debate on the floor of the Senate, at 4:43:29. This is not the Obama I caucused for in Feb. 2008.

A recently leaked United Nations report claims that the new rulers of Libya have committed numerous human rights violations:

Thousands of people, including women and children, are being illegally detained by rebel militias in Libya, according to a report by the Secretary-General of the United Nations. Many of the prisoners are suffering torture and systematic mistreatment while being held in private jails outside the control of the country’s new government.

The document, seen by The Independent, states that while political prisoners being held by the Gaddafi regime have been released, their places have been taken by up to 7,000 new “enemies of the state”, “disappeared” in a dysfunctional system, with no recourse to the law.

The report will come as uncomfortable reading for the Western governments, including Britain, which backed the campaign to oust Gaddafi….

The report says that “while political prisoners held by the Gaddafi regime have been released, an estimated 7,000 detainees are currently held in prisons and makeshift detention centres, most of which are under the control of revolutionary brigades, with no access to due process in the absence of a functioning police and judiciary.”

Of particular worry was the fate of women being held for alleged links with the regime, often due to family connections, sometimes with their children locked up alongside them.

“There have also been reports of women held in detention in the absence of female guards and under male supervision, and of children detained alongside adults,” says the report.

A number of black Africans were lynched following the revolution following claims, often false, that they were hired guns for the Gaddafi regime.

I have long expressed the concern that Libya’s new rulers might turn out to as bad or worse than the old (e.g. here and here). The leaked UN report provides further evidence showing that such concerns have a reasonable basis.

However, there are two important caveats. First, the UN is far from a completely reliable information source when it comes to human rights issues. Its record on such matters is a very poor one. The UN Human Rights Council, for example, is often stacked with egregious human rights violators, and, until recently, actively promoted violations of religious freedom and freedom of speech. Given the UN’s dubious record, it’s certainly possible that this report is either wrong or at least exaggerated. Second, even if the report is correct, the new Libyan regime might still be less bad than the old. Even a government that falls well short of being a paragon of liberal democratic virtue can still be better than Gaddafi’s dictatorship was.

Despite these important caveats, the new Libyan government certainly isn’t looking too good so far. And if radical Islamist elements in its leadership get the upper hand, things might get a lot worse before they get better.

The jury is still out on whether NATO intervention in Libya will achieve its original objective of improving respect for human rights in that country. The new Libyan government might yet clean up its act, or be forced to do so by Western pressure. On the other hand, President Obama’s war in Libya may turn out to have been counterproductive as well as illegal.
.

Today the U.S. Court of Appeals for the D.C. Circuit ordered the release of a redacted copy of its opinion in Latif v. Obama.  When the case was first decided in October, the opinion was classified. Based on his initial read, Ben Wittes thinks the opinion is “a very big deal” because it “expressly adopts a presumption in favor of the government’s evidence in Guantanamo habeas cases.”

On Thursday, U.S. District Court Judge Reggie Walton dismissed Kucinich v. Obama, a suit filed by ten members of Congress alleging that President Obama’s use of military force in Libya was unlawful as it violated the War Powers Act and lacked Congressional authorization.   Judge Walton held the members of Congress lacked standing to bring the challenge, as they had ample legislative means at their disposal to oppose the President’s use of military force.  Judge Walton noted a “long line of cases” that “all but foreclosed the idea that a member of Congress can assert legislative standing to maintain a suit against a member of the Executive Branch,” including a relative recent case involving a suit by Rep. Kucinich against then-President Bush. Judge Walton added in a footnote:

Interestingly, Representative Kucinich, the lead plaintiff in Kucinich v. Bush, the case in which these words were written, is the lead plaintiff in this case in which members of Congress are again attempting to bring an action against Executive Branch officials. Indeed, the plaintiffs “acknowledge the contrary result” reached by the District of Columbia Circuit in a case also involving alleged presidential violations of the War Powers Clause and the War Powers Resolution. See Pls.’ Opp’n at 17. While there may conceivably be some political benefit in suing the President and the Secretary of Defense, in light of shrinking judicial budgets, scarce judicial resources, and a heavy caseload, the Court finds it frustrating to expend time and effort adjudicating the relitigation of settled questions of law. The Court does not mean to imply that the judiciary should be anything but open and accommodating to all members of society, but is simply expressing its dismay that the plaintiffs are seemingly using the limited resources of this Court to achieve what appear to be purely political ends, when it should be clear to them that this Court is powerless to depart from clearly established precedent of the Supreme Court and the District of Columbia Circuit.

As noted by Politico, Rep. Kucinich’s attorney, GWU law professor Jonathan Turley, objected to Judge Walton’s suggestion this suit should not have been filed.

I must strongly disagree with the Court’s statement in a footnote that, because the D.C. Circuit previously ruled against members in an earlier challenge, no further challenges should be made by members who disagree. If that were the standard, many of our most famous cases in history, like Brown v. Board of Education, would never have happened. Changes in precedent are often secured only after years, if not decades, of challenges. These members strongly disagree with the D.C. Circuit case law and the only way to ask the Circuit to reconsider those holdings is to first receive a decision from the district court.

Of course it is sometimes necessary to raise claims that are squarely foreclosed by precedent in order to prompt the Supreme Court to revisit its own prior decisions. But such a legal strategy only makes sense where intervening precedents and other decisions raise questions about prior decisions or otherwise expose tensions or contradictions in contemporary doctrine. Simply repeating failed legal arguments in the vain hope the judiciary will alter course, as the plaintiffs did here, borders on the frivolous, and creates the impression those filing suit are more interested in publicity and making a political point than in prevailing in court.

Majority public opinion in Israel continues to support the recent deal in which the Israeli government traded over 1000 terrorist prisoners for kidnapped soldier Gilad Shalit, which I criticized here. But as this interesting CNN article explains, there is growing dissent:

While the deal to free Shalit was backed by a commanding Cabinet majority of 26-3 and enjoys wide support from the Israeli public, there is growing debate about the price Israel is willing to pay in order to free a single soldier.

Families of victims of terror, as well as some members of the Israeli government, have expressed fierce opposition to the deal. One minister who voted against the agreement called it “a great victory for terrorism,” and there are fears that the release of convicted murderers will lead to further attacks on Israeli civilians — a fear that, critics say, is borne out by statistics.

According to Israeli association of terror victims Almagor, 180 Israelis have lost their lives to terrorists freed in previous deals since 2000….

If the figure of 180 Israelis killed by exchanged terrorists is even remotely accurate, it greatly outweighs the number of Israeli hostages freed in such deals (16 according to this Slate article). And that number does not include the additional hostages taken by terrorists as a result of the success of previous efforts at hostage-taking. It also does not include Israelis killed by terrorists freed in deals prior to 2000, while the total of 16 Israelis exchanged includes all deals going back three decades.

Ironically, as the CNN piece points out, Israeli Prime Minister Benjamin Netanyahu, the man who signed off on the current deal, understands the perversity of these kinds of arrangements perfectly well. He was a prominent critic of similar (though somewhat less lopsided) exchanges that the Israeli government agreed to in the 1980s:

Three years after the [1985] Jibril Deal, Netanyahu explained his philosophy about negotiating with terrorists to CNN’s Larry King. “On one case I did not swallow it. When my government did something that I simply could not live with, which was the release of jailed terrorists for three of our POWs. We wanted to get our POWs back, and the government, in my judgment, made a big mistake and traded terrorists. And here I was confronted with a situation that everything I believe in, in fact agitated for and tried to use an example of Israel for, to encourage other countries, especially the United States, to adopt a tough no-concessions policy against terrorists.”

In his 1995 book “A Place in the Sun” Netanyahu called the Jibril Deal “a fatal blow to Israel’s efforts to form an international front against terrorism” and warned of the hazardous consequences of such moves. “The release of a thousand terrorists…will inevitably lead to a terrible escalation of violence, because these terrorists will be accepted as heroes,” Netanyahu wrote.

Netanyahu’s critique of the 1985 deal applies with even greater force to his own more lopsided agreement.

UPDATE: Various commenters on this and my previous post on the same subject claim that the Israeli government had to do this in order to send its citizens a “message” about how much it valued their lives and was willing to pay a high price to save them. But if these deals lead to the deaths of far more innocent Israelis than they save, the real message sent will be exactly the opposite: that the government is willing to make a large net sacrifice of innocent life in order to gain short term public relations benefits or a short-term boost in national morale. It’s possible, of course, that Israeli public opinion is myopic enough that they will think that the government is saving life despite the fact that it is actually sacrificing a much larger enough of innocent lives. If so, there could be a more permanent and substantial boost in national morale. Even then, it will probably fade as public attention shifts to other issues. In any event, it’s not worth the sacrifice of numerous innocents and the creation of perverse incentives for terrorist groups.

UPDATE #2: Tyler Cowen responds to this post here:

Ilya is possibly underrating the power of signaling models. It is precisely the fact that that Israeli government will trade for this single life, even apart from whether it is instrumentally rational, that sends the relevant signal. The less “rational” the act, the more potent the signal of concern, and in this case the possible irrationality is stochastic, not certain…..

One can also read the Israeli government as signaling (correctly or not) that it has the power to prevent or at least limit future kidnappings. It is an expression of strength, or at least a belief in strength, and citizens seem to like that signal from their leaders.

I am not at all persuaded by Tyler’s argument. If Israel meant to signal that they can prevent future kidnappings, they have clearly failed. Hamas leaders have repeatedly stated that this exchange encourages them to take more hostages in the future. As soon as they do so, any Israelis who may have been deluded by this signal of “strength” will be disabused of the notion that strength is what is being signaled here.

If the goal is to show that Israel is willing to save its citizens even when it’s not “rational” to do so, then the message is self-defeating. In this case, it’s irrational because israel is actually sacrificing many more innocents than it will save. To the extent that the Israeli public understands that, they will be demoralized rather than encouraged. If they don’t understand it, they won’t understand that the action isn’t “rational” and thus won’t get the message that Tyler thinks the Israel government is trying to convey.

I was not planning to write a post on the Israeli government’s recent deal exchanging over 1000 Hamas prisoners for kidnapped Israeli soldier Gilad Shalit. I was certain that someone more prominent would write a column explaining why this was a terrible decision. But even conservative commentators like Jennifer Rubin are praising it as a testament to Israel’s concern for the lives of its people. The US government has also praised the agreement.

I understand the emotional appeal of securing the release of a young soldier who has been in captivity since 2006. Nonetheless, the Israelis should have said “no.” Far from saving innocent life, the deal puts at risk many more innocents than it saves. It also incentivizes future acts of hostage-taking by Hamas and other terrorist organizations.

Among the Hamas prisoners released in the deal are dozens who have committed brutal acts of terrorism against civilians in the past. If even a few of them commit further terrorist atrocities in the future, the resulting death toll is likely to far outweigh the benefit of saving Shalit. Moreover, such a lopsided deal (trading hundreds of hardened terrorists for an ordinary soldier) incentivizes future hostage-taking. Hamas officials have already said that the deal encourages them to kidnap more Israelis. If one hostage is worth 1000 prisoners, what can they get for two or three or ten? As one Hamas leader puts it, “[s]omeone who agrees to release 1,000 prisoners will agree to release 8,000 in the future.” If even a right-wing Israeli government that has otherwise taken a hard line against Palestinian terrorism is willing to go for such a deal, what about other liberal democracies? The precedent set by the Israelis is likely to endanger other nations as well as themselves.

Both the Israelis and other democratic states (including the US) have signed bad deals to get hostages back in the past, and such agreements have repeatedly backfired. For example, President Reagan gave Iran arms in exchange for American hostages held in Lebanon, only to see Iranian-backed terrorist groups seize more hostages as a result. But it’s hard to think of another hostage deal more ridiculously lopsided than this one, though a few previous Israeli exchanges come close.

Finally, it should be emphasized that Gilad Shalit is a soldier. The moral significance of that status seems to have been ignored. The job of soldiers is to protect innocent civilians from attack, sometimes at the risk of their own lives and freedom. Soldiers’ acceptance of these risks is why we rightly hold military service in such high respect. Although Shalit was apparently a draftee, he volunteered to serve in a combat unit, thereby accepting the attendant risks (the moral issue might be different had he been forced to take that risk against his will). To put numerous civilians at risk of future terrorist attacks in order to save a single soldier is a reprehensible reversal of moral priorities. It is similar to starting a fire that endangers civilians for the sake of rescuing a firefighter.

Shalit’s plight has been highly visible to the public for several years, and his friends and family have understandably been pressuring the Israeli government to secure his release at any price. By contrast, the identities of the future victims of the terrorists released in the deal, and the future hostages who will be taken as a result of it are as yet unknown. Because we don’t yet know who they are, the media can’t cover them and their relatives can’t lobby to protect them. It is a classic example of public opinion focusing on the seen while ignoring the unseen.

I don’t blame Shalit’s family and friends. Most other people in their position would feel the same way. But the Israeli government, like any government, has a broader duty to all of its citizens. It failed in that duty when it put numerous civilians at risk in order to secure the release of a single soldier.

UPDATE: Here is yet another Hamas leader stating that the deal proves that kidnapping works, and promising to take more hostages in the future:

Senior Hamas leader Khalil al-Hayya says the Shalit-for-terrorists deal proves kidnapping works, and he promises more abductions. The Israeli Cabinet late Tuesday night approved freeing kidnapped soldier Gilad Shalit for 1,027 terrorists and security prisoners.

Al-Hayya, a Gaza legislator and a senior academic and political figure, told the Chinese news agency Xinhua, “Our prisoners can only be released through this way. The release of prisoners will lead to a bigger victory and will break forever the siege that had been imposed on the Gaza Strip for five years.”

Last week, he urged Palestinian Authority terrorists to kidnap more Israeli soldiers to gain the release of all prisoners, including terrorists, in Israeli jails.

“The one and only solution is more resistance against the Israeli oppression, and more abduction of Israeli soldiers and settlers,” he told the Al Quds satellite television network.

It’s worth noting that, in Hamas’ terminology, all Israeli Jews are “settlers” and not just those who live on the West Bank.

I have little to say about the tenth anniversary of 9/11 that hasn’t already been better said by others. I was fortunate enough not to lose any relatives or friends in the attacks. I had briefly met Barbara Olson (who died on the plane that hit the Pentagon), and a couple of friends of friends from Amherst College perished in the World Trade Center. But I did not know any of these people at all well. Since then, I have had several friends and acquaintances who served in Iraq and Afghanistan, and almost went to Iraq myself in 2005 to consult on the federalism issues in the drafting of the new Iraqi Constitution (my trip was cancelled because the drafters went into a security lockdown after some of them were targeted by terrorists). But those are stories best told at another time.

My own experience of 9/11 was much less interesting or moving than that of many others. But it does include a minor example of how knowledge of social science and history can sometimes steer you wrong. I recounted it in this post:

I was clerking for a Fifth Circuit judge in Houston at the time, and was driving to work, listening to a top 40 station that never had any news reports. The regularly scheduled programming was interrupted by a breathless announcer who said that there were reports that multiple planes had hit the World Trade Center. I was skeptical. Why? Because I was familiar with the famous Orson Welles “War of the Worlds” incident in 1938, when a radio station broadcast fictional reports of an invasion by aliens from Mars, sparking a minor panic (the public reaction is recounted in Hadley Cantril’s classic book, which I had read in grad school). For some reason, I decided it was possible that the top 40 station was trying to boost ratings by repeating a version of Welles’ stunt. The scenario of multiple airliners crashing into the World Trade Center seemed almost as implausible as an alien invasion. And this station had never broadcast any other news during the weeks I had been listening to it. I decided to withhold judgment until I could check the news on the internet when I got to the office. When I arrived and found that CNN.com couldn’t be accessed, I realized that the reports were true.

Iran is to cyberwar what 1930s Spain was to airwar – contested ground where everyone tries out new technology and tactics.  After being on the receiving end of Stuxnet, which sabotaged the Natanz enrichment plant and showed that cyberweapons could replace cruise missiles, it looks as though the Iranian government has gone on the offensive.

The Dutch government’s electronic certification authority, DigiNotar, was compromised by a hacker in July of this year.  DigiNotar handled the hack badly, trying to fix the problem without disclosing it. As a result, DigiNotar’s credentials are being revoked by all of the major browsers.  This means that most web users will not be able to verify the bona fides of any site that DigiNotar has vouched for.  That includes a lot of Dutch government sites, and there are some reports that the Dutch government is leaning on Microsoft to keep the credentials operative for another week.  It also means that DigiNotar will be either out of business or buried in lawsuits that could also reach its parent, VASCO Data Security International.

The hacker who pulled off the compromise has posted messages claiming that the hack was revenge for Dutch peacekeepers’ surrender of thousands of Muslim men to Serb militias during the Balkan wars; the men were executed. The hacker says nothing about Iranian government sponsorship.

So why do I think the Iranian government was involved?

To understand that requires a bit of background about the role of certificate authorities on the Internet.  One of Netscape’s cleverest technological innovations was its solution to the problem of Internet eavesdropping.  It used public key encryption to encrypt the channel between a website and each user.  The user could look up a site’s public key and use that key to encrypt all of the user’s communications with the site.  (I’m oversimplifying here, but that’s the idea.)

The only problem was that the system was open to a “man in the middle” attack, where Mallory turns what’s meant to be a secure link between Alice and Bob into two secure links with himself as a secret hub and Alice and Bob as unsuspecting spokes.

Put another way, if an Iranian user asks Google for its public key, and he uses it to encrypt his communications, how does he know that he’s really using Google’s key?  If the Iranian government wants to read his Gmail, it could intercept his request and send him its own key.  He’d set up a secure channel with the government, which would then simply pass his login credentials on to Google.  For the rest of the session the government would sit in the middle, reading and passing on all the packets from both sides of the transaction.  Not good.

To prevent that, Netscape decided to bake a set of public keys into its browser.  The companies with the baked-in keys were certification authorities.  They could issue certificates vouching for the credentials of every site that wanted to offer secure, encrypted communications.

It was a great system, lightweight and very secure.  But only if the certification authorities kept their credential-signing process completely secure.  If they didn’t, then users would not know who was at the other end of the line, the website they wanted or a man in the middle.

Occasionally, of course, some fraudster would use fake documents to persuade a certification authority to sign credentials for a site the fraudster didn’t own.  That sort of thing could be fixed pretty easily.  Browser providers had already recognized that there had to be a way to revoke website certificates obtained by fraud, so browsers now do an online check each time they use a certificate; in essence, they ask an online server whether the certificate they are about to use has been revoked. So a single fraudulently obtained credential can be rendered harmless as soon as the fraud is discovered.

What happened to DigiNotar was not so easily fixed.  It appears that the hacker gained control of the credential-signing process for some weeks during July of this year, and he signed credentials for hundreds of online sites, including Google, Microsoft, and the CIA.

Now, that’s deeply embarrassing, and it probably would have been enough on its own to spell the end of DigiNotar.  But what came next was even worse.

Starting in August, according to investigators, online revocation checks for DigiNotar certificates jumped. Suddenly lots of people wanted to know whether the DigiNotar certificate for Google had been revoked.  This meant that hundreds of thousands of users were sure that DigiNotar was the authority that had signed Google’s credentials.  (In fact, Google signs its own credentials.) And 99% of the users asking about DigiNotar’s certificate for Google came from Iran. (Even the 1% of requests that didn’t come from Iran seem to have come from proxies and TOR routers in other countries, meaning they too could have been Iranian users.)

Clearly a lot of Iranian users had been fooled into thinking that DigiNotar had issued Google’s credentials.  I can only think of one way that could happen – if the Iranian government and ISPs were systematically intercepting packets bound for Google and saying, in effect, “I’m Google. Here are my credentials, signed by DigiNotar.  Let’s go secure and foil any eavesdroppers.” The user’s browser would say, “Wait a minute while I check to make sure DigiNotar hasn’t revoked your DigiNotar credentials, Google… Ok, you check out, let’s talk.”  As soon as the user started sending his login name and password to the fake Google, the middleman would use those credentials to log in to Google, which would set up a secure communications channel with the middleman.  The entire session would be encrypted unbreakably at every point in the chain save the one that mattered:  the government listening post in the middle. The Iranian government would be sitting pretty — Mallory between Alice and Bob.

Some observations, mostly additional reasons for thinking that this was an Iranian government operation, and what that means:

• The notes posted by the DigiNotar hacker make him sound like a flake and a braggart, hardly the kind of postings you’d expect from the Iranian secret police. Maybe this is misdirection, or maybe he pulled off the exploit and then handed over his loot to the Iranian government, voluntarily or involuntarily. But the implementation of the man-in-the-middle attack was so quick and so smooth that it looks to me as though the hacker was working with the government from the start.
• The same hacker who compromised Diginotar claims to have carried out attacks on Comodo and Globalsign, two other certification authorities. Both companies agree that they were hacked, although Globalsign is not admitting that its credentials were compromised. Again, compromising certification authorities is a great idea if you’re in the business of man-in-the-middle attacks; otherwise it’s got mostly nihilistic look-at-me-trashing-your-infrastructure appeal, which might make you wonder why this hacker has specialized in such attacks if he doesn’t work for the government.
• If this were an Iranian government op, the websites for which fake credentials were issued should be an Iranian government wish list — all the places where it most wants to be in the middle between the site and Iranian users. If so, the point of the fake CIA certificate wasn’t help hackers break into the CIA’s network. The point was to impersonate the CIA on line – to lure dissidents into setting up an apparently secure communications channels with a foreign intelligence service.  Iranian government paranoia about the CIA’s influence is so profound it’s almost flattering, and the Iranian government probably is kidding itself that the election protests were the result of foreign meddling, not the government’s unpopularity.
• In fact, the domains whose credentials were falsified do seem to be a kind of museum of Iranian government paranoia. Along with Google, Microsoft, and the CIA, the hacker made fake credentials for Mossad, MI6, Facebook, Skype, WordPress, Twitter, azadegi.com (an Iranian dissident site in Persian), Walla.co.il (a site in Hebrew), torproject.org, and Yahoo, along with others.  The full list is here.  In some ways, it’s an honor roll.
• It’s also a tell — more evidence that the attack on DigiNotar was government sponsored.  After all, if the DigiNotar hacker was really acting on his own, without government guidance, how did he manage to create so many certificates that would have so much value for an Iranian government man-in-the-middle attack?
• If this is cyberwar, it’s an Iranian government war against its own people.  And a very dangerous one. The flood of revocation checks coming from Iran continued all through August, meaning that anyone in that country who logged on to Gmail or Hotmail or the other honor-roll sites has probably lost control of everything – not just emails they sent in August but their passwords, their stored emails, their stored files, anything that could be accessed by passwords they used in August.
• As a result, DigiNotar’s security breakdown could foretell a new human rights disaster, with hundreds of thousands of victims. And, since we know the IP addresses that checked DigiNotar’s certificates, we could probably identify each victim individually.
• Which raises this question: We know from the online revocation checks that three hundred thousand Iranian users were fooled into using fake  DigiNotar certificates for Google. The same information should be available for Microsoft, Facebook, and every other fake certificate that was issued by the hacker.  Those numbers are the big story, and I don’t understand why reporters have dropped the ball on it, unless they don’t appreciate its significance.
• Mozilla has done a particularly good job of dealing with this issue, communicating more details earlier than most browser companies. Most recently, it called on the certification authorities it bakes into its browser to audit their security — and to put automatic blocks on some of the names, such as Google or Facebook, that are most likely to inspire man-in-the-middle attacks and least likely to change certificate authorities on short notice.  In contrast, Apple handled the whole affair pretty badly, taking days longer than the other big browsers to announce that it was revoking DigiNotar’s credentials.
• Iranian dissidents probably could protect themselves from these attacks by installing a browser extension called CertPatrol, which warns you if a site you’ve visited before has suddenly changed its certificate authority.  CertPatrol likely would have told all those Gmail users that, instead of going to a “Google” site that Google vouched for, they were instead going to a “Google” site that DigiNotar vouched for. They could also protect their Google account by turning on Google’s two-step verification process, which won’t let you log on from strange IP addresses until you’ve typed in a separate code sent directly to your phone.

As always when I venture too far into technical territory, I am quite aware that there are fine points I may be missing.  I welcome corrections and comments.

CNN has an interesting article about Abdul Hakeem Belhaj, a radical Islamist who is a prominent leader of the Libyan rebels whom the US and its allies have supported against Gaddafi. Belhaj has a long history of association with radical Islamist groups, including fighting for the Taliban against the US (he fled Afghanistan after the collapse of the Taliban regime in 2001).

The prominent role of such people among the rebels highlights one of the risks of the US intervention Libya that I noted here: the possibility that the new government will be as bad or worse than the old. If radical Islamists take over the new regime, their rule would likely be just as oppressive as Gaddafi’s was. In addition, they could use Libya’s oil wealth to sponsor anti-Western terrorism, something Gaddafi has abjured since cutting a deal with the US and Britain in 2003.

To be sure, Belhaj claims that he doesn’t want to establish an Islamist regime and has no desire to support terrorism against the US. However, this is what we would expect him to say at a time when he still needs US support against the remnants of Gaddafi’s regime. Even if he is sincere on these points, other radical Islamists among the insurgents may not be.

It’s also possible that a radical Islamist government will be deterred from supporting terrorism by fear of US retaliation. That still, however, would not make the Libya intervention a success. After all, Gaddafi had been similarly deterred since at least 2003. If a nonterrorist but highly oppressive new government takes power, we would still have gained nothing from removing him.

Obviously, not all of the Libyan rebels are radical Islamists, and it’s far from clear that Belhaj and others like him will control the new regime. A much better outcome is certainly possible, perhaps even probable. On the other hand, many historical examples demonstrate the advantages that well-organized, ruthless radicals have in a revolutionary situation. Often, they can seize power even if more moderate groups have greater public support. The French Revolution, Russia in 1917, Cuba in 1959, and 1979 Iran are among the best examples of this phenomenon.

I worry that the Obama administration and its European allies have not given this problem sufficient consideration. Obama’s greatest success in Libya so far has been to facilitate Gaddafi’s overthrow with only a minimal commitment of US and NATO forces. But that very minimalism will make it more difficult for the US and its allies to prevent radical Islamists from taking over if the latter win the internal struggle for power among the rebels after Gaddafi is gone.

On this point, Obama’s failure to follow the Constitution by getting congressional authorization for the Libya war also increased the chance of failure on the ground. Given the narrow base of political support for the intervention and the lack of “buy-in” by Congress, Obama will find it difficult to increase our level of commitment if it becomes necessary to do so to stave off a radical Islamist takeover. Even setting aside legal considerations, he might well have done better to either get congressional authorization or not intervene in Libya at all.

I have an op-ed in the NY Post, commenting on the role that bureaucratic turf fights may play in the Associated Press story looking for scandal in NYPD’s counterterrorism tactics. 

Here’s a sample:

When you’re done [with the story], you find that NYPD is uniquely determined to find terrorists before they strike.  To do that, NYPD is willing to go far outside its borders — to London, to Jerusalem, even to New Jersey.

It partners with counterterror analysts at the CIA.  It looks for leads in places where terrorists have been found before – in immigrant communities and in mosques, for example – and it doesn’t give terrorists a haven where they know the cops can’t  go.  It takes advantage of its diversity by asking its officers to hang out in communities where they blend in.  It recruits street sources wherever it can find them. It maps the neighborhoods it’s most concerned about.

Shocked yet?

Me neither. 

So what gives? How come we’re getting this story, at this length, at this time?

One possibility is turf…. 

Glenn Greenwald draws an interesting, if unfavorable, comparison between the actions of lawyers in Department of Justice under President Bush and President Obama.

Bush decided to reject the legal conclusions of his top lawyers and ordered the NSA eavesdropping program to continue anyway, even though he had been told it was illegal (like Obama now, Bush pointed to the fact that his own White House counsel (Gonzales), along with Dick Cheney’s top lawyer, David Addington, agreed the NSA program was legal). In response, Ashcroft, Comey, Goldsmith, and FBI Director Robert Mueller all threatened to resign en masse if Bush continued with this illegal spying, and Bush — wanting to avoid that kind of scandal in an election year — agreed to “re-fashion” the program into something those DOJ lawyers could approve (the “re-fashioned” program was the still-illegal NSA program revealed in 2005 by The New York Times; to date, we still do not know what Bush was doing before that that was so illegal as to prompt resignation threats from these right-wing lawyers).

That George Bush would knowingly order an eavesdropping program to continue which his own top lawyers were telling him was illegal was, of course, a major controversy, at least in many progressive circles. Now we have Barack Obama not merely eavesdropping in a way that his own top lawyers are telling him is illegal, but waging war in that manner (though, notably, there is no indication that these Obama lawyers have the situational integrity those Bush lawyers had [and which Archibald Cox, Eliot Richardson and William Ruckelshaus had before them] by threatening to resign if the lawlessness continues).

Greenwald also ponders why the Obama Administration never went to Congress. During the Bush Administration, the White House did not seek Congressional approval of some anti-terror initiatives because some within the Administration — most notably, Dick Cheney — wished to establish the principle that the Executive could act unilaterally to address national security concerns. This approach was unwise, but it is easy to understand. But what is the explanation here? It is hard to see what larger legal principle the Administration is trying to vindicate.

UPDATE: What principle is the Administration vindicating? One possibility, suggested in the comments, is the principle that approval by a multinational entity (the UN, NATO, etc.) should be sufficient to authorize U.S. military action. One data point in support of this theory is the line of division within the Administration: attorneys at Justice and Defense versus Koh at State.

Jack Balkin blogs on the Obama Administration’s decision to overrule OLC at Balkinization.  He compares the Obama Administration’s actions with those of the Bush Administration. The Bush White House undermined OLC’s role by cocooning those who were working on certain questions and short-circuiting intra- and interagency rule. Through this process, the White House got the OLC opinions it wanted on key questions related to the War on Terror. This was only the Bush Administration practice for a short period, however. Beginning with Jack Goldsmith’s tenure, OLC began to assume a more traditional role and, as a consequence, OLC issued some opinions that were definitely contrary to what the White House wanted to hear. In one infamous case, OLC concluded that prior opinions approving the constitutionality of a terrorist surveillance program were in error. Confronted with this information (and the threat of resignations from within the Justice Department), President Bush acquiesced, and the program was altered to conform with OLC’s understanding of the relevant constitutional constraints.

The Obama Administration has not repeated the Bush Administration’s early mistakes with OLC, but it is now clear it is making errors of its own. As John Elwood notes below, this is not the first time this Administration has overruled OLC when the office did not reach a desired conclusion. The Administration bypassed OLC’s determination that Congress could not grant full congressional representation to the District of Columbia absent a constitutional amendment.

Writes Balkin:

Obama’s strategy, like Bush’s, also short circuits the normal process of seeking opinions from the OLC; it simply does so in a different way.

By bypassing a careful set of procedures designed to produce careful legal opinions, George W. Bush was able to say that he was following the OLC, or at least a rump of the OLC. But he was effectively undermining the OLC’s function as an honest broker of executive branch opinions. Obama also bypassed this same careful set of procedures by canvassing various lawyers until he found opinions he liked better than the OLC’s. If one is disturbed by Bush’s misuse of the process for vetting legal questions, one should be equally disturbed by Obama’s irregular procedures.

Here is how Balkin concludes:

The fact that Obama is a former professor of constitutional law does not justify his scuttling practices that are designed, over long periods of time, to improve legal deliberations and help ensure that presidents conform to the law. Former professors of constitutional law, like current ones, have been known to disagree among themselves about what the law requires; they have even been known to make mistakes and engage in serious misjudgments.

The fact that Obama may think he is smarter and more learned than George W. Bush also does not justify his practice. The next President, or the one after that, may think themselves smarter than Obama. They will certainly find a group of able lawyers somewhere in their Administration to tell them so. Obama came into office promising to reform the abuses of the Bush Administration and its manipulation of the OLC. The best way to do that is not to create entirely new abuses of one’s own.

The NYT‘s Charlie Savage has confirmed that the President overruled the Department of Justice Office of Legal Counsel’s opinion of what constitutes “hostilities” under the War Powers Resolution, preferring instead the conclusion reached by the White House Counsel’s office and the State Department’s Harold Koh.  In another story earlier this week on the Administration’s explanation to Congress that U.S. participation in NATO operations in Libya do not constitute “hostilities” under the law, Savage reported that White House Counsel Bob Bauer refused to say whether the Administration’s position was based upon an OLC opinion.  Now, however, Savage is able to report that the Administration rejected the legal position of both OLC and that of Defense Department general counsel Jeh C. Johnson.

Presidents have the legal authority to override the legal conclusions of the Office of Legal Counsel and to act in a manner that is contrary to its advice, but it is extraordinarily rare for that to happen. Under normal circumstances, the office’s interpretation of the law is legally binding on the executive branch. . . .

The administration followed an unusual process in developing its position. Traditionally, the Office of Legal Counsel solicits views from different agencies and then decides what the best interpretation of the law is. The attorney general or the president can overrule its views, but rarely do.

In this case, however, [acting OLC head Caroline] Krass was asked to submit the Office of Legal Counsel’s thoughts in a less formal way to the White House, along with the views of lawyers at other agencies. After several meetings and phone calls, the rival legal analyses were submitted to Mr. Obama, who is a constitutional lawyer, and he made the decision.

A senior administration official, who spoke on the condition of anonymity to talk about the internal deliberations, said the process was “legitimate” because “everyone knew at the end of the day this was a decision the president had to make” and the competing views were given a full airing before Mr. Obama.

The story quotes former Clinton OLC head Walter Dellinger saying the Administration’s legal conclusion was “defensible” despite the problematic decision-making process.  Former Bush OLC head Jack Goldsmith, on the other hand, finds the Administration’s position “aggressive” and unpersuasive.

The NYT reports that a former CIA official is alleging that the Bush Administration sought damaging information on liberal blogger Juan Cole, a University of Michigan professor who had been quite critical of the Bush Administration’s foreign policy..  From the story:

In an interview, [former CIA officer Glenn L.] Carle said his supervisor at the National Intelligence Council told him in 2005 that White House officials wanted “to get” Professor Cole, and made clear that he wanted Mr. Carle to collect information about him, an effort Mr. Carle rebuffed. Months later, Mr. Carle said, he confronted a C.I.A. official after learning of another attempt to collect information about Professor Cole. Mr. Carle said he contended at the time that such actions would have been unlawful.

It is not clear whether the White House received any damaging material about Professor Cole or whether the C.I.A. or other intelligence agencies ever provided any information or spied on him. Mr. Carle said that a memorandum written by his supervisor included derogatory details about Professor Cole, but that it may have been deleted before reaching the White House. Mr. Carle also said he did not know the origins of that information or who at the White House had requested it.

Intelligence officials disputed Mr. Carle’s account, saying that White House officials did ask about Professor Cole in 2006, but only to find out why he had been invited to C.I.A.-sponsored conferences on the Middle East. The officials said that the White House did not ask for sensitive personal information, and that the agency did not provide it.

Cole comments here.

GWU law professor Jonathan Turley has filed suit against the Obama Administration on behalf of several members of Congress, including Reps. Dennis Kucinich (D-OH) and Walter Jones (R-NC).  The complaint alleges that President Obama acted unlawfully by going to war in Libya  without Congressional authorization and seeks, among other things, an order that the military action in Libya constitutes a war that was undertaken without Congressional authorization, as required by the Constitution, and an injunction ”to end the violations alleged above, including but not limited to an order to suspend military operations in Libya absent a declaration of war from Congress.”

It is extremely unlikely this lawsuit will go anywhere.  I would be very surprised were it not dismissed on political questions grounds, and simply flabbergasted were a court to actually order that the U.S. military suspend operations in Libya (or anywhere else, for that matter).  If Congress feels that the President has overstepped his authority, then Congress has to act directly, conducting oversight and (if necessary) cutting off funds for operations it seeks to stop.

I doubt Congress will use the power of the purse, but a milder confrontation over the war power is possible.  Speaker of the House John Boehner recently called upon the Adminsitration to seek Congressional approval of the Libya operations or explain why the War Powers Act is inapplicable.  As Charlie Savage reports in the NYT, the Obama Administration has taken the latter course, telling Congress that this is not the sort of operation covered by the Act.

“We are acting lawfully,” said Harold Koh, the State Department legal adviser, who expanded on the administration’s reasoning in a joint interview with White House Counsel Robert Bauer.

The two senior administration lawyers contended that American forces have not been in “hostilities” at least since April 7, when NATO took over leadership in maintaining a no-flight zone in Libya, and the United States took up what is mainly a supporting role — providing surveillance and refueling for allied warplanes — although unmanned drones operated by the United States periodically fire missiles as well.

They argued that United States forces are at little risk in the operation because there are no American troops on the ground and Libyan forces are unable to exchange meaningful fire with American forces. They said that there was little risk of the military mission escalating, because it is constrained by the United Nations Security Counsel resolution that authorized use of air power to defend civilians.

“We are not saying the president can take the country into war on his own,” Mr. Koh said. “We are not saying the War Powers Resolution is unconstitutional or should be scrapped, or that we can refuse to consult Congress. We are saying the limited nature of this particular mission is not the kind of ‘hostilities’ envisioned by the War Powers Resolution.”

The article also contains this interesting tidbit, which raises the possibility that the Justice Department’s Office of Legal Counsel does not wholly agree with the official Administration position. Writes Savage:

While many presidents have challenged the constitutionality of other aspects of the War Powers Resolution — which Congress enacted over President Nixon’s veto — no administration has said that the section imposing the 60-day clock was unconstitutional. In 1980,the Office of Legal Counsel concluded that it was within Congress’s constitutional power to enact such a limit on unauthorized hostilities.

Mr. Bauer and Mr. Koh said the 1980 memorandum remains in force, but that their legal argument does not invoke any constitutional challenge to the act.

It was not clear whether the Office of Legal Counsel has endorsed the White House’s interpretation of what “hostilities” means. Mr. Bauer declined to say whether the office had signed off on the theory, saying he would not discuss inter-agency deliberations.

Another interesting aspect of this conflict is that, in the past Republicans were the ones to be dismissive of the War Powers Act, often claiming it impermissibly interfered with the executive’s commander-in-chief power. Today, however, some seem all too happy to rely upon the Act if they think it can hamstring a Democratic president, just as some Democrats seem to forget the limits on executive authority they championed under Presidents named Reagan or Bush.

The NYT reports on pending revisions to the FBI’s Domestic Investigations and Operations Guide that will give agents more leeway in their investigations.

The F.B.I. recently briefed several privacy advocates about the coming changes. Among them, Michael German, a former F.B.I. agent who is now a lawyer for the American Civil Liberties Union, argued that it was unwise to further ease restrictions on agents’ power to use potentially intrusive techniques, especially if they lacked a firm reason to suspect someone of wrongdoing.

“Claiming additional authorities to investigate people only further raises the potential for abuse,” Mr. German said, pointing to complaints about the bureau’s surveillance of domestic political advocacy groups and mosques and to an inspector general’s findings in 2007 that the F.B.I. had frequently misused “national security letters,” which allow agents to obtain information like phone records without a court order.

Valerie E. Caproni, the F.B.I. general counsel, said the bureau had fixed the problems with the national security letters and had taken steps to make sure they would not recur. She also said the bureau, which does not need permission to alter its manual so long as the rules fit within broad guidelines issued by the attorney general, had carefully weighed the risks and the benefits of each change.

“Every one of these has been carefully looked at and considered against the backdrop of why do the employees need to be able to do it, what are the possible risks and what are the controls,” she said, portraying the modifications to the rules as “more like fine-tuning than major changes.”

The LA Times has an article describing how ROTC programs have returned to many elite universities in the wake of the abolition of the Don’t Ask Don’t Tell policy:

Helped by the recession, more active recruiting and a sea change in student perceptions of the military, enrollment in ROTC programs on college campuses is booming.

Even with ongoing U.S. involvement in conflicts in Afghanistan, Iraq and now Libya, participation in the program has surged 27% over the last four years — to 56,757 men and women, according to the Defense Department. The military boosted the number of ROTC scholarships to help expand the wartime officer corps, and the recession made the offers attractive to students.

Today’s college students, who never faced a military draft and whose childhood memories include the terrorist attacks of Sept. 11, 2001, are more receptive than their parents’ generation to seeing fellow students in uniform. Returning veterans who served in Iraq and Afghanistan and are now enrolled in college also create a more sympathetic, and familiar, image of the military.

In another sign of the changing times, the congressional rescinding last year of the “don’t ask, don’t tell” ban on gays serving openly in the military has recently led Stanford, Harvard and several other elite universities to take steps to welcome the ROTC back to their campuses for the first time in 40 years.

On-campus military training still raises hackles for some. Yet even critics acknowledge that most current college students are willing to accept the ROTC.

I previously wrote about the return of ROTC here and here. Although I thought that DADT was a shortsighted and unjust policy, I also argued that banning ROTC and military recruiters from campus was not the right way to combat this form of anti-gay discrimination. Be that as it may, the return of ROTC to schools that had previously banned it is a positive development.