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Finding a Remedy for Gitmo

By Aziz Huq – 06/05/07

Tags: Justice, Liberty & National Security, Detention & Habeas Corpus

Time to Let a Little Sunshine In

By Laura Klein Abel – 04/11/07

*Cross posted from TortDeform.com

Sometimes, complex, intractable problems require complex, expensive solutions. So it’s particularly frustrating when government refuses to adopt a free, simple and proven method to address an important social issue.

That’s the case in New York City, where social services officials are struggling to get public assistance benefits to the people who need them most. A recent report by the grassroots group Community Voices Heard shows that people with disabilities continue to have a hard time getting the help they need, despite a city program dedicated to helping them.

According to the report, one of the program’s failures is its inability to ensure that people with disabilities receive the information and support that they need to navigate the complicated public assistance application process, which involves multiple appointments in various locations.

We feel the City’s pain. It’s not easy to provide the millions of New Yorkers eligible for public assistance with all of the specific information they need about the many different rules governing public benefits programs. The task is made harder by the many different languages spoken in the city, and by the fact that a substantial proportion of the people needing public assistance have a low level of literacy.

That’s why it’s particularly surprising that the city is placing obstacles in the way of non-profits that want to help get information to the people who need it. Since the Giuliani Administration changed the city’s welfare policy, New York City has forbidden advocates from setting up help tables in the government offices where people apply for benefits. Groups literally left out in the cold include the New York City AIDS Housing Network, which wants to get benefits information to HIV positive people, and Make the Road by Walking, which wants to let people with limited English proficiency know about their right to an interpreter. The result is incomplete applications, and families left without Food Stamps, Medicaid, and other life-sustaining benefits, solely because they don’t find out what they need to know to submit effective applications for those benefits. Advocates will help to ensure that there is less error in the distribution of public benefits, which benefits low-income families, city agencies, and the general public.

Now, the New York City Council is considering a bill, the Ready Access to Assistance Act, that would require the city to allow advocates to set up help tables in the public areas of benefits offices. It shouldn’t take a piece of legislation to require such a common-sense measure. But since that seems to be the only thing that will move the bureaucrats to let a little sunshine in, we hope it passes, and soon.

* Laura K. Abel is Deputy Director at the Brennan Center Strategic Fund.

Tags: Fair Forums

Restoring the Right to Vote Gains Momentum

By Erika Wood – 04/09/07

*Cross-posted from The Huffington Post 

 

Florida, the scene of infamous election-day chaos and massive voter purges during the 2000 presidential election, took an important step towards resolving its democratic crisis yesterday. With the stroke of a pen, Governor Charlie Crist issued new Rules of Executive Clemency that restore voting rights to potentially hundreds of thousands of Florida citizens who had been permanently disenfranchised as the result of a felony conviction.

Governor Crist's bold action was just the latest in a national movement that has gained significant momentum in the past year. Across the country, states are moving to reinvigorate our democracy by removing the last of the Jim Crow-era barriers to the ballot box--the laws that disenfranchise people with felony convictions, even after they have been released from prison and are living, working, paying taxes, and raising families in our communities.

Florida's voting ban was one of the harshest in the nation, disenfranchising more people than any other state. Over 950,000 Floridians, including one in three African-American men, remained permanently disenfranchised even after they had served their entire sentence. The Brennan Center for Justice at NYU School of Law challenged the state's voting practices in a federal lawsuit--Johnson v. Bush, which helped focus national attention on Florida's criminal disenfranchisement scheme.

Florida's old clemency rules required everyone with a felony conviction who wanted to vote to apply individually to the Governor and the Clemency Board. The burdensome process took years, and even then there was no guarantee that one's rights would be restored. In fact, former Governor Jeb Bush denied over 200,000 applications during his tenure.

Unlike his predecessor, Crist seems to understand that increasing access to the polls only strengthens our democracy. But even with the new rules, Florida's felony disenfranchisement laws lag far behind most of the country. Large numbers of would-be voters are still required to navigate a slow, complicated, and expensive bureaucratic process and be subject to the whim of the Clemency Board. The new rules also condition the right to vote on an applicant's ability to pay restitution. And there is no easy way for people who finished their sentence long ago to have their rights restored.

Crist's actions come just one week after legislators in Maryland took a better route to reforming their complicated felony disenfranchisement scheme. Last week the Maryland General Assembly passed a simple bill that would take voting rights away from those convicted of only the most serious crimes, and will streamline the process by which people get their voting rights restored once they have served their sentence. The bill now awaits Governor Martin O'Malley's signature.

Maryland law disenfranchises anyone who has been convicted of an "infamous crime" - an archaic legal term that is as hard to apply as it is to understand. Until the current bill is signed into law, Maryland was one of only six states that took voting rights away from those convicted of misdemeanors, and one of only two states in which someone could lose the right to vote even if he never spent a single night in jail. A complicated series of qualifications and waiting periods created needless barriers to people regaining their voting rights even after they had served their entire sentence. All this will be simplified by the Assembly bill.

While it would be better if Florida's law were more like Maryland's, it's a step in the right direction. Five years ago, Maryland changed its law, from a lifetime ban to the complicated system it now has in place. But the new law proved difficult to understand and administer, and the frustration with it helped build momentum for this year's change. No doubt as the Florida Executive Clemency board applies its complicated rules, it too will begin to see the wisdom of a simple and fair restoration process.

But the larger point remains: in the 2000 election, both Florida and Maryland had lifetime felon voting bans. In the 2008 election, neither will. Lawmakers are truly beginning to understand the fundamental unfairness of banning persons with criminal convictions from the ballot box. And it is not just lawmakers that have come to this understanding. The American public is overwhelmingly in favor of welcoming voters back into the political process. A 2002 Harris Interactive poll found that eighty percent of Americans favor returning voting rights to citizens who have completed their sentences.

This public support was confirmed this year in Rhode Island. For the first time in history, voters went to the polls on Election Day and cast a vote in favor of reenfranchsing persons with criminal convictions. The voters of Rhode Island amended their state constitution to restore the right to vote to their fellow citizens as soon as they are released from prison. A coaltion of Democrats, Republicans, law enforcement officials, religious organizations, labor unions, affected communities and civil rights and advocacy groups banded together to place the measure on the ballot to let the people decide who should participate in voting. And they chose to invite people who had paid their debt back onto the voter rolls.

In the last ten years, seventeen states have reformed their laws or policies to reduce barriers to voting for people with criminal convictions. Dozens of states, including Alaska, Arizona, Colorado, Iowa, New York, and Washington are currently considering new measures to bring more voters back to the polls. The time has come for Kentucky and Virginia, the only states that continue to permanently ban all people with felony convictions from voting, to join Florida and the rest of the country by bringing people into the democratic process, not shutting them out.

Tags: Democracy, Voting After Criminal Conviction, Voting Rights & Elections

Carving Up the Constitution

By Jonathan Hafetz – 04/05/07

Co-authored with Susan Lehman

*Cross-posted from The Huffington Post

Khaled el-Masri was vacationing in Macedonia when he was abducted by local police. Mr. el-Masri was then beaten, drugged, and interrogated at gunpoint in a Skopje hotel room. After 23 days of incommunicado captivity, Mr. el-Masri was taken to the airport and turned over to masked CIA rendition agents. He was shackled and also diapered, and flown to a CIA-run secret prison near Kabul, Afghanistan. Once Mr. el-Masri was in Afghanistan, CIA officials soon realized they had made a mistake: Mr. el-Masri was not the man they were looking for; nor was there reason to suspect he was a terrorist. The U.S. nevertheless secretly jailed Mr. el-Masri for five months before deciding to deposit him, without explanation, on a hilltop in Albania.

During six years of the so-called "war on terrorism," we have grown disturbingly used to stories like this one. What is most frightening about Mr. el-Masri's ordeal, however, is not the news that U.S. officials may have conspired in torturing and imprisoning an innocent man for months on end. Instead, it is the news from a federal appeals court in Richmond, Virginia, last month that U.S. officials cannot be held accountable for engaging in such conduct.

In a unanimous decision, the appeals court ruled that Mr. el-Masri's case had to be dismissed before a hearing took place. The court found that merely requiring the United States to respond to Mr. el-Masri's claims that the CIA had masterminded his illegal kidnapping, abuse, and wrongful imprisonment could jeopardize national security by leading to a "cascading" of disclosures about the CIA's "extraordinary rendition" program. The fact that the existence and details of this program have already been made public was deemed irrelevant. The bottom line consideration remained: US national security would be compromised if questions about the government's possible complicity in wrongful detention and torture of Mr. el-Masri were allowed in open court..

Mr. el-Masri's is not an isolated case, but it is part of a now familiar pattern. Time after time, the present administration has put itself above the law by carving out a series of exceptions to the essential liberties of our Constitution.

Maher Arar is another victim of these un-American practices. Mr. Arar, a Canadian, citizen, was catching a connecting flight through New York's JFK International Airport in 2002, on his way back to Montreal after a family holiday in Tunisia. Mr. Arar was detained by airport security who questioned him about terrorist ties, and then taken to a federal jail. Ten days later, Mr. Arar was sent to Syria, where he was held in a dark, rat-infested cell that resembled a grave. Mr. Arar was beaten on palms, hips, and lower back with a two-inch-thick electric cable and threatened with electric shocks. He was released after almost a year. No charges were ever filed.

Like Mr. el-Masri, Mr. Arar sought to hold the United States accountable. He filed a lawsuit claiming that the United States had deliberately conspired to render him to Syria for torture. But a federal judge in Brooklyn dismissed the case last year without even requiring the government to so much as answer the allegations. Any inquiry into the U.S. government's complicity in Mr. Arar's illegal rendition, the court explained, could compromise national security by "embarrassing" the United States. To summarize: the more egregious the governmental wrongdoing, the more reason to prevent public exposure. This is the modus operendi of autocracies, not democratic governments committed to individual liberty and accountability.

Canada, notably, responded differently, mounting a full-scale investigation into Mr. Arar's case. A specially appointed commission compiled a 1000-page report, which described Canada's role in Mr. Arar's detention, cleared Mr. Arar of any terrorism connections, and compensated him $9 million for the grave harms he endured. The United States, meanwhile, refuses even to apologize.

Then, there is Guantánamo, the living symbol of a prison beyond the law. Since September 11, the United States has detained more than 700 people at Guantánamo without due process or habeas corpus. Many of these individuals have been abused. Indeed, the treatment of one detainee was so bad, the Wall Street Journal recently reported, that a military officer refused to prosecute him for terrorism because interrogators had wrung his confession through measures that were both illegal and morally repugnant.

How does the United States justify Guantánamo? With more legal loopholes. It argues that Guantánamo detainees have no rights because they are foreign nationals held outside the sovereign territory of the United States. The fact that the United States has exercised complete and exclusive jurisdiction over Guantánamo for a century is irrelevant to this self-serving calculation. Remarkably, a federal appeals court in Washington, D.C., recently agreed with the government, finding that Guantánamo detainees lack even the most basic human rights, and the Supreme Court declined to review the case at this juncture.

Such end-runs around the Constitution present grave threats to the cornerstone principle that no one is above the law. Once we start finding that the normal rules do not apply, secret jails, torture, and prolonged detention without charge become a fixed and permanent part of our legal landscape.

American Exceptionalism once signified the values that made this country a beacon of liberty. Since 9/11, this phrase has come to mean something very different: a series of Kafkaesque carve-outs to the Constitution that tarnish the image of a country founded upon a commitment to justice and the rule of law.

Tags: Justice, Liberty & National Security, Checks & Balances, Detention & Habeas Corpus, Domestic Counterterrorism

Further Thoughts on the Court’s Refusal to Hear the Guantanamo Detainee Appeals

By Jonathan Hafetz – 04/04/07

*Cross-posted from Balkinization

The Supreme Court this week narrowly declined to hear the habeas appeals of the Guantánamo detainees. The detainees had sought review of the D.C. Circuit's decision detainees in Boumediene v. Bush and Al Odah v. United States, upholding the jurisdiction-stripping provisions of the Military Commissions Act of 2006 (MCA). In a joint statement respecting the denial of certiorari, Justices Stevens and Kennedy explained that the detainees should first exhaust their remedies in the D.C. Circuit available under the Detainee Treatment Act of 2005 (DTA). It is too early to assess the long-term impact of the certiorari denial and, as Marty Lederman points out in his excellent summary similar challenges are expected to reach the Court through DTA petitions. Still, the Court's refusal to hear the cases provides a window into some troubling legacies of the Guantánamo detainee litigation.

Nearly three years have passed since the Court handed down Rasul v. Bush, ruling that Guantánamo detainees have the right to habeas relief and directing district courts to consider their petitions in the first instance. Though the Court also suggested in Hamdi v. Rumsfeld, decided the same day as Rasul, that a lawfully constituted military tribunal might provide this inquiry in the narrow circumstances of a traditional combatant captured on an actual battlefield (citing, for example, standard hearings provided under U.S. army regulations), where no such process was provided, habeas was expected to fill in the gap. Yet, Rasul has become an increasingly distant memory: as much time has passed since Rasul as between Rasul and the arrival of Guantánamo's first prisoners in January 2002. And still no detainee has had anything approaching his day in court.

It is difficult to see a principled basis for exhaustion, especially after more than five years of detention without charge. As the dissent from the certiorari denial explained, the D.C. Circuit has already held that the detainees have no constitutional rights, period. So, until that ruling is reversed by the Court, the underlying Combatant Status Review Tribunal (CSRT) process that the D.C. Circuit reviews under the DTA need not comply with basic constitutional safeguards, including the right to see the government's evidence, to the assistance of counsel, to be free from detention based on evidence gained through coercion, and to compel production of exculpatory evidence.

The Court's refusal to hear the detainee cases highlights the continuing absence of meaningful review in the new system of indefinite executive detention that has taken root in the so-called "war on terror." The CSRT, recall, was concocted nine days after Rasul to help avert district court hearings. It is so deeply flawed that it would pose a challenge for any court to uphold under even a crimped due process analysis. (Since the D.C. Circuit found the detainees had no Fifth Amendment rights, it was relieved from having to try.). The DTA and MCA, in turn, sought to eliminate the basis for those hearings under the habeas statute, described in Hamdi as providing a "skeletal outline" for adjudicating the factual and legal basis for a prisoner's confinement. What habeas provides – and what the administration most fears – is the possibility that a federal judge will examine whether a detainee is actually an "enemy combatant" (even under the CSRT's virtually limitless definition), an inquiry that, in many cases, would require assessing whether any statements were wrung by coercion from the petitioner or from another detainee.

The Court's refusal to hear appeals in Boumediene and al Odah, then, marks merely the latest chapter in the United States' ongoing failure to provide a fair and lawful process to those it imprisons. It is this failure that has made Guantánamo a lightening rod for criticism and prompted calls for its closure at home and abroad. (Matters reached a new low in recent weeks with the nakedly political deal struck in the David Hicks case, the first "conviction" by Guantánamo's military commission, and by the release of CSRT records redacting allegations of torture in the name of "national security"). To be sure, the courthouse doors still remain open to the Guantánamo detainees. But it is difficult to see what it is to be gained by subjecting detainees to more delay and to a process intended, as one MCA supporter put it, to "get the lawyers out of Guantanamo." Guantánamo was designed by the Executive to create a prison beyond the law. The record of the other two branches in coming to grips with the fall-out from this ill-advised decision has been disappointing at best, resulting in the human rights debacle that Guantánamo has come to symbolize.

Jonathan Hafetz: "Further Thoughts on the Court's Refusal to Hear the Guantanamo Detainee Appeals" (PDF)

Tags: Justice, Liberty & National Security, Detention & Habeas Corpus

Restoring Voting Rights: A Progressive Goal Conservatives Can Share

By James Sample – 04/03/07

Stating "I believe in my heart that everybody deserves a second chance," Florida's Republican Governor Charlie Crist is hoping to announce this week that Florida will restore voting rights for most people with felony convictions who have completed their criminal sentences. Restoration is a long-overdue reform. Nationally, it is also a reform on which the left and the right increasingly agree.

Still, the relic of disenfranchisement is not entirely without defenders. In order to effect the change in Florida, Governor Crist needs the support of two other members of the four-member Board of Executive Clemency. One of those cabinet members is state Attorney General Bill McCollum, who took to the op-ed pages of the St. Petersburg Times yesterday in a misguided attempt to perpetuate the myths and half-truths propagated by supporters of the status quo. For example, in a glaring non sequitur allegedly supporting his position, he states that "more than 70 percent of arrestees test positive for drugs, and studies show that drug traffickers live lives of violence." (emphasis added).

McCollum emphasizes concerns about recidivism but he completely elides -- or simply misses -- the contradiction of his lamenting that ex-offenders "would be able to acquire a state-licensed job, whether as a household pest exterminator, residential building contractor or alarm system installer." Just as restoring the right to vote reintegrates individuals into a participatory society -- and thus helps reduce recidivism -- removing overly-broad barriers to gainful employment serves democracy and criminal justice alike.

Governor Crist's proposal accelerates a trend that already has momentum. Since 1997, sixteen states have reduced barriers to voting by people with criminal records. Leaders embracing the trend span the political spectrum. Ten years ago then-Texas Governor George W. Bush -- hardly known as soft on crime -- signed a bill into law that restored voting rights to people who completed their sentences. Likewise, the bipartisan Carter-Baker Commission on Federal Election Reform, which last fall released its report, "Building Confidence in U.S. Elections," agreed that re-enfranchisement of ex-felons is a voting-rights issue, not a punishment issue, and that states should restore voting rights to persons who have completed their sentences.

On the left, Iowa Governor Thomas Vilsack issued an Independence Day Executive Order in 2005 restoring the right to vote to tens of thousands of Iowans who had completed their sentences. And last week, the heavily Democratic Maryland legislature passed a bill restoring the right to vote to 50,000 Maryland citizens, which Maryland Governor Martin O'Malley is expected to sign into law soon.

Politicians' efforts to restore voting rights have been surpassed by the political rank-and-file. Last November a majority of Rhode Island voters approved a ballot measure amending the state constitution and restoring the right to vote to 15,000 of their fellow citizens as soon as they are released from prison--even prior to the completion of supervised release.

The United States is the only democracy in the world that disenfranchises people who have completed their criminal sentences. By comparison, in most European nations, some or all prisoners are entitled to vote. Although the practice of disenfranchisement predates the Civil War, many states enacted or modified their felony disenfranchisement laws in the Jim Crow era as a way to suppress the voting power of black citizens. Make no mistake; the laws continue to have that effect. Nationwide, 13% of black men are disenfranchised because of a felony conviction, a rate that is seven times the national average. In Florida that figure is a startling 18.8%.

It is the role of the criminal justice system, not the electoral process, to punish individuals based on the severity of their crime. The durations of criminal sentences reflect agreed-upon societal norms, and when those sentences are fully completed we should encourage participation in one of society's most constructive acts. Yet many states have complex, multi-tiered restoration schemes that predictably lead to confusion, chilling effects, intimidation, manipulation and delay. In short, recall Katherine Harris and Florida's "voter cleansing" program immediately prior to November 7, 2000--a program marked by incompetence on a Katrina-esque scale and driven by nefariously partisan purposes.

Americans overwhelmingly oppose the political chicanery and disenfranchisement such systems produce. A 2002 Harris Interactive poll found that eighty percent of Americans favor returning voting rights to citizens who have completed their sentences for felony convictions. In other words, Governor Crist is marching in lockstep with Americans--liberals and conservatives--who believe in the redemptive value of second chances.

Restoring voting rights to people who have completed their sentences is a goal that conservatives and progressives can share. And to that point, the Sunshine state may soon be a shining example.

Tags: Democracy, Voting After Criminal Conviction

Supreme Court Rewards Administration’s Delay and Obfuscation Strategy on Guantanamo

By Aziz Huq – 04/02/07

*Cross-posted from The Huffington Post

The Supreme Court this morning said that it would not review the case of the Guantánamo detainees. Three Justices (Souter, Breyer, and Ginsburg) voted to grant the detainees a hearing. But you need four votes for a case to be heard (and five votes to win). Justices Kennedy and Stevens issued a statement saying there was no reason to set aside traditional rules that require "the exhaustion of available remedies as a precondition to accepting jurisdiction over applications for the writ of habeas corpus." What this means is that the detainees--many of whom have been detained for more than five years without any form of independent review--have been denied an opportunity to expeditiously vindicate their constitutional rights.

Generally, when the Court decides not to hear a case, this has little consequence. That is not the case here. The Court's decision not to hear this case is a major blow to human rights values. It leaves on the books a wretchedly bad (and intellectually dishonest) opinion from the D.C. Circuit Court of Appeals, and rewards the Administration's deeply nefarious strategy of delay and obfuscation around Guantánamo.

Readers who haven't been following the rather complex chain of litigation around Guantánamo may find some background helpful. The first group of Guantánamo detainees arrived in Cuba in January 2002. Some had been picked up off the battlefield in Afghanistan, but many others had been handed in by Afghan or Pakistan allies, keen for the $5000 bounty offered by the United States. None of them had been screened through the battlefield hearings required by the laws of war and the Geneva Conventions.

The Center for Constitutional Rights and a small group of private lawyers filed habeas suits on the detainees' behalf, arguing that they had a right to challenge the factual and legal basis of their detention in federal court. The government, perhaps aware that many of its detention decisions could not be defended, threw up a series of barriers, arguing principally that Guantánamo lay outside the jurisdiction of the federal courts. In 2004, the Supreme Court rejected this argument, and it looked like the detainees would get their day in court.

But the Government hadn't emptied its quiver. In short order, it managed to finagle the passage of first the Detainee Treatment Act and then the Military Commission Act, both of which purported to strip the federal courts of power to hear the cases. In February this year, the Court of Appeals in Washington DC held that the Military Commissions Act had indeed done so. In an opinion that rested on a distorted and partial view of history, the D.C. Circuit held that the Guantánamo detainees had no constitutional rights. Hence, it dismissed their five-year-old case.

That was the decision that the Supreme Court could have taken for review. But didn't. The result? The detainees can have recourse to a narrow and arguably insufficient channel of review left open by the Detainee Treatment Act: But they must start from scratch with no guarantee that the channel of review available will be meaningful--or a sham.

(The question of how future challenges will proceed is complex. The government successfully argued that review be confined to an appellate court, which lacks the power to find facts and depends on the Army for building a record. The best case scenario might be that the Court of Appeals requires the military to restructure their fact-finding procedures. But this is a long shot).

This is bitter news. It is deeply unfair and inflicts grave harms today on the detainees. Five years after their first detention, many of the detainees, I am told, are at the end of their psychological tethers. There have been multiple suicide attempts. Given the endless and the uncertainty of their confinement, this is hardly surprising. Detention without end, often for no reason at all, is a kind of torture (even if it doesn't meet the strict legal definition of that term).

I'm happy to field questions about the decision.

Aziz Huq: "Supreme Court Rewards Administration's Delay and Obfuscation Strategy on Guantanamo" (pdf) 

Tags: Justice, Liberty & National Security, Detention & Habeas Corpus

Subpoenas and the Exercise of “Executive Privilege”

By Aziz Huq – 03/22/07

*Cross-posted from The Huffington Post

We all stand on the shoulders of giants. And few giants loom larger in the study of "executive prerogatives" than Arthur Schlesinger Jr., that great American historian--and that great American--who recently and sadly passed away.

Let's pause and ponder for a moment what Schlesinger has to say about this notion of "executive privilege" in his magnum opus The Imperial Presidency, and what this means for the subpoenas just authorized (but not issued) today by the Senate Judiciary Committee against Karl Rove and other presidential advisors.

According to Schlesinger--and I am unaware of anyone who has proved him wrong--the term "executive privilege" can be dated to precisely 1958, when a new Attorney General William P. Rogers used the term for the first time in American history. As Schlesinger explains at pp. 156-59 of the Mariner Books edition: "What had been for a century and a half sporadic executive practice employed in very unusual circumstances was now in a brief decade hypostatized into sacred constitutional principle."

What light does Schlesinger's wisdom cast on today's subpoenas and the looming Congressional battle over information, especially concerning what went on within the White House?

Notice that Schlesinger does not say that it was unknown for presidents to keep information from Congress, or to claim that they could information from Congress. Presidents from George Washington have claimed the power to do so. Their claims have, however, rarely been tested in a court of law. Rather, as several commentators have noted, they are played out in the court of political contest between the branches.

In fact, presidents' power to keep information from Congress is more uncertain than the President's supporters claim. There are few definitive judicial opinions on the matter. And, for the most part, courts have bent over backward to avoid any definite solution to the conflict. In the most recent high-profile case, the challenge to the Vice President's secretive "energy taskforce" (remember when that was the most scandalous thing about this Administration ?!), the Supreme Court expressly declined the Government's invitation to dismiss out of hand the effort to cast sunlight on the task force. Certainly, the Court showed great deference to the Administration, but there was no suggestion that courts have no role in determining the balance of secrecy--or that the say-so of the President or a close colleague is sufficient to end the story.

But the judicial opinions that do exist are fairly clear on a couple of points.

First, presidents can invoke a presumption that some documents can be kept secret, and this presumption is especially strong in case involving advice being given to the President. This is the principle the President relied on in his speech this week.

Second, even when these documents involve communications from the president himself (or perhaps one day, herself), this privilege dissipates when the need on the other side of the ledger is sufficiently great. And there is no requirement of an absolute privilege short of allegations of criminality. (To the contrary, the Supreme Court in 2004 eschewed such an absolute rule in favor of the executive branch, explicitly declining to dismiss a civil suit against Cheney for information).

What does this mean for any subpoenas that may be issued by Leahy, or, for that matter Conyers?

For a start, it is far from clear here that there has been no criminal conduct here, as explained by Marty Lederman here. Certainly, there is sufficient to justify the kind of careful probing both Conyers and Leahy suggest. Whether there is enough to warrant appointment of a Special Prosecutor is a separate and harder question.

Even if there were no suspicion of possible criminal conduct, there is still reason to query whether the protection of advice to the President really does justify an absolute privilege against Congress.

Without question, we want executive branch advisors to be candid. But we also want executive branch advisors to remain within the law. And we want everyone on the federal payroll to feel some loyalty not only to the Administration of the day, but to the vision and values of the U.S. Constitution.

It is, moreover, simply not the case that a presidential advisor has be assured that his or her counsel will never come to light. No one can absolutely control the documentation that they provide while working in the federal government. Criminal investigations can result in the disclosure of presidential communications. And as the Supreme Court held in 1977, even former Presidents do not yield an unfettered veto over what happens to their non-personal papers. That means that advisors in fact must - and indeed should - operate according to the principle that their words might one day filter into the public domain.

In fact, the President's justification of executive privilege--which is the standard justification that the executive branch has given for fifty years--is surprisingly weak. Perhaps, in other words, we ought to be recalling Schlesinger's advice, and asking whether we indeed need this "sacred constitutional principle," or whether we are better of with more ad hoc and finely tuned devices to manage the flow of information between the President and Congress.

Incidentally, in the "is-it-funny or scary" category, I note that President Bush in his address commented that U.S. attorneys are "decent people. They serve at our pleasure." Having just finished a book arguing that this Administration has unhealthy inclinations toward the less savory habits of the British royals, I'm tickled to see Mr. Bush confirm his monarchical identity.

Now all we need are some corgis.

Aziz Huq: "Subpoenas and the Exercise of 'Executive Privilege'" (pdf) 

Tags: Justice, Liberty & National Security, Checks & Balances