Frank’s Case Book

If it were a rhetorical contest based solem on style, former Vice-President Dick Cheney could hardly compete against President Barack Obama. Obama is lean, tall, and athletic in poise. Cheney is overweight and supports a large head unburdened with hair. Obama has a smile that could melt more icebergs than rising levels of carbon dioxide. Cheney’s barely visible smile, composed of teeth in need of braces during adolescence, resembles an impish smirk. Obama has a cadence in his delivery that lends itself to lofty linguistic flourishes. Cheney has a systematic and clear delivery, but cannot modulate either the volume or rhythm of his voice sufficiently to evoke emotion. Obama is extremely popular, and Cheney is not. The fact that Cheney seems to tying the Obama Administration up in knots with his articulation of the need for enhanced interrogation techniques suggests that he is winning purely on the merits of his arguments.

Perhaps this is partly due to Obama’s obvious disingenuousness.  On one hand he says, “… I have no interest in spending our time re-litigating the policies of the last eight years,” but spends most of his recent speech in harsh criticism of the previous Administration. This might be acceptable if he recognized it is possible to come up with legitimately different positions in the difficult struggle between maintaining the safety of Americans and minimizing harsh treatment of prisoners who have information that could save American lives.

Instead, Obama argues, without providing independent evidence, that enhanced interrogation techniques have made us less safe. However, in the 1990’s there were attacks  in America that culminated in the 9/11 attacks in 2001. After that point, the Bush Administration has managed to keep attacks from American soil. This accomplishment would have been unexpected if people were asked in the period following the 9/11 attacks about the prospects of a future attack.

The enhanced interrogation technique that elicits the most attention is waterboarding, which some argue is torture. However, it was only used against three of the very highest Al Qaeda operatives, over five years ago, including Khalid Sheikh Mohammed (KSM). At time when Americans rightly felt another attack could come unexpectedly, KSM boasted of upcoming attacks on the US and personally slitting the throat of US journalist Daniel Perle. It is hard to argue that KSM is a sympathetic victim. The enhanced interrogation techniques did no severe harm to him and were successful, in providing important information. George Tenet, a CIA Director appointed by President Bill Clinton,  stated “Information from these interrogations helped disrupt plots aimed at locations in the United States, the United Kingdom, the Middle East, South Asia and Central Asia.”

On the positive side, there is evidence that Obama is learning in office, as he shoulders the responsibility to protect Americans. He now sees the need for military tribunals to adjudicate cases of detainees — a practice that he sharply criticized Bush for during the campaign. Against his initial impulses, he correctly decided against releasing provocative photos taken by the US military in their prosecution of those who abused prisoners. He recognizes that there may be those that need “prolonged detention” without convictions for some extremely dangerous detainees. He may still come to see that whatever protections he wishes to provide detains at Guantanamo can be provided at the state-of-the-art facilities recently constructed there. After having to grapple with the same issues that Bush did, Obama is drawn to some of the same policy positions he criticized before.

Unfortunately, Obama has set himself up for embarrassment and political division in the country. If he changes course significantly with respect to US foreign policy and the way he deals with extremists and if there is a successful attack on the US, his policies will compare unfavorably with those of the previous administration. This is true, irrespective of whether any specific changes are in any way related to a future attack. Under such circumstances his wonderful smile and suave demeanor with only serve to indicate a lack of seriousness.

Sometimes you have to sit by and marvel either at President Barack Obama’s political skill and other times you have to wonder why the press seems to be so inept in asking questions without adequate follow-up. At this week’s presidential news conference we were provided the opportunity to experience both.

Virtually everyone, at least until  Obama’s recent comments, acknowledges that there are instances when extraordinary interrogation techniques are not only necessary but morally required. The ticking time-bomb scenario (you need information about the location of a ticking time bomb to save many innocent lives) represents the extreme case. Senator John McCain, who has some moral authority in this area because he was deliberated tortured by the North Vietnamese, recognizes this exception.

When asked about an analogous dilemma that might face him as president, Obama refused to acknowledge the possibility and established a impossible standard to meet with regard to the efficacy of such decisions. He said:

“But here’s what I can tell you, that the public reports and the public justifications for these techniques, which is that we got information from these individuals that were subjected to these techniques, don’t answer the core question.Which is, could we have gotten that same information without resorting to these techniques?”

Of course, it is impossible to conduct a controlled experiment or prove a negative with regard to alternative strategies. We do know that a number of former CIA directors and others have insisted that the techniques in question have saved lives. Even Dennis Blair, Obama’s director of national intelligence, concedes that. “High-value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qaeda organization that was attacking this country.” [1]

Of course, we can never know with precision what would have happen if an alternative policy had been pursued. Assume that after a long period of conventional interrogation, a high-level Al Qaeda operative provides little useful information. Then extraordinary interrogation techniques are used and the detainee provides information that breaks up a plot days away from execution.

There is no way to know with certainty that if we had not extended conventional questioning a few more days that the information would have finally been revealed. We would never know with certainty if a foiled plot might have been adverted another way, including clumsiness on the part of the terrorists. In other words, Obama has relieved himself of moral responsibility by setting up an impossible burden of proof for others. While this is rhetorically clever, it avoids dealing with a critical issue that may confront an administration. We hope that more serious discussions about such issues are going on behind the scenes, even is dismissed in public. If not, the refusal to confront such issues guarantees that if such a situation arises, decisions will have to be made without the benefit of patient consideration.

All we know is that the policies followed before 9/11 were insufficient to prevent an attack and the policies afterward did protect the United States for the entire Bush Administration. We hope that whatever policies with regard to extraordinary interrogation Obama implements are as successful. The extraordinary interrogation techniques were used in the immediate aftermath of the capture of high-level Al Qaeda operatives. Since we are unlikely to have a similar opportunity in the near future, the question may be moot.

[1] Blair’s conclusion was edited from White House information releases. When the Obama Administration does this, it is careful editing. If the Bush Administration had edited a rhetorically inconvenient conclusion of the intelligence community, it would be cherry-picking information.

Successful democracies are not just about elections and voting, they are also about a collective political culture that recognizes institutional limits. The temporary losers in a democracy recognize they will have an opportunity to make their  political case later and need not resort to violence or other illegal means to circumvent election results. Likewise the temporary winners recognize that their time in power is also limited. Winners must show respect for the process and not try to use their position to undermine the very democracy that granted them temporary power.

It is, therefore, unfortunate that the Obama Administration is apparently trying to politicize an important function of government, the dicennial census, that ought to be free from politics, by having it supervised from within the White House.  The US Constitution calls an “actual enumeration” of people for the purpose of apportioning the number of representatives in House of Representatives. Interesting the first nine censuses were conducted by the judicial branch, the least political, not the executive branch as it now. The census clause in the Constitution is included in Article I of the Constitution suggesting a role for the legislative branch. In any case, direction by clearly partisan agents undermines confidence in the census.

The fact that the actual counting is performed by professionals in the Department of Commerce has kept the census free from scandal, but certainly not controversy. Certain groups claim that they are not sufficiently captured by the census, but the Census Department has extended programs to find people who are less likely to be counted.

The Constitution calls for an an “actual enumeration,” but some groups have argued for a statistical sampling to estimate populations. Though the use of sampling for compiling a census has not been tested in court, unless the Supreme Court elects to ignore the actual words of the Constitution, statistical sampling for the purposes of apportionment is clearly unconstitutional.

However, this does not mean the mischief cannot occur in an actual enumeration. Resources can be allocated to find every last person in a certain area with less diligence in devoted in other areas. The current plan is for the census to be supervised from the White House under highly-partisan Rahn Emmanuel, President Barack Obama’s  Chief of Staff. Even if Emmanuel were to act a thoughtful and purely apolitical manner, the prescedent of having leading the census from the White House would set the stage of future politicization. Imagine consternation among Democrats if a future Karl Rove were to be charging of supervising a future census from the White House.

If the White House cannot recognize the precedent it is setting in politicizing the census, it is unfaithful to democratic ethos and conceding that for them it is just about power.  Moving the census to the White Hous is the moral equivalent to using the IRS or the Justice Department to go after political adversaries.

Whenever a court over rules a law, it is, by definition, in conflict with the democratic decision of the people. We, however,  wisely give courts the authority to interpret between laws that are in conflict and to hold us collectively to state or the federal constitutions, laws we democratically agreed would be supreme law.

The courts have  a prudential obligation to exercise this authority sparingly lest they diminish the moral authority of judicial system and decrease the ability of courts to exercise such authority in crucial cases. When overturning long-held societal conventions, courts must be able to point to a clear constitutional mandate. If courts are perceived to be acting politically rather than under legal authority, they distort the balance between the legislative and judicial processes.

The courts were correctly used to overturn racial discrimination when practiced by state or federal governments in the twentieth century, but it took federal law, the 1964 Civil Rights Act, to eliminate any legal sanction for racial discrimination. The endorsement by a popularly-elected legislature completed the process.

By contrast, the clearest recent example of the overstepping of judicial authority was the Roe v. Wade decision which concluded from ambiguous and dubious constitutional jurisprudence that states essentially have no right to regulate abortion in at least the first trimester. If there were clear rather than convoluted authority to support the decision, it would have been easier to reconcile it with popular opinion.

At the time of the decision in 1973, abortion was still prohibited in many states, but legal in quite a few others. The country was coming to grips with how it wished to deal with issue. If the courts had declined to preempt the political process, we would now probably have a web of diverse laws from state to state, some more liberal some less so on abortion. Some states would be more rigorous about parental notification and about waiting periods. It would have been far easier to experiment with the different approaches from jurisdiction to jurisdiction.

These political decisions would have carried the moral authority of the majority and resulted far less rancor. If mistakes were made, they could more easily been undone. Instead, we have a divisive issue that has made the appointment of each new Supreme Court justice an acrimonious affair and has distorted jurisprudence in other, particularly free speech, cases.

You might think that the courts would have learned their lesson in dealing with these  highly-charged social issues, but in 2004 the Massachusetts Supreme Court declared that the Massachusetts Constitution required that the state offer same-sex marriages. This decision survived in Massachusetts and indeed in a 4-3 decision the Connecticut Supreme Court forced that state to recognize gay marriages.

The consequence of such judicial meddling is that across the country states are passing laws directly preventing same-sex marriages. Despite the rather overwhelming Democratic national victories last Tuesday, the issue of gay marriage failed miserably at the polls. After a California Supreme Court decision compelling the state to recognize gay marriages, Proposition 8 passed with 52% in California vastly out performing presidential candidate, Senator McCain who managed only 37% of the vote. The Proposition 8 decision was a particularly dramatic vote, because it imposed a state constitutional amendment to tie the hands of the California Supreme Court. It is not politically healthy to have people overturn a court decision by referendum, but this is what happens when decisions are removed from the legislature where they are more properly decided.

Other states followed California’s example. Arizona and Florida passed anti-gay marriage propositions, also out polling Senator McCain in those jurisdictions. Arkansans voted for an act to prohibit non-married couples from adopting children and becoming foster parents;  an act largely directed at same-sex partners.

Given expected changes in the national culture including relentless promotion of a pro-gay rights agenda in the national media, it is reasonable to expect that some states will vote to recognize gay unions in some form. The most likely is some civil union arrangement that provides for simple inheritance and other financial rules that mirror some marriage protections. These will be instituted in fits and starts using different models as different jurisdictions find ways  to deal with the issue.

There is no reasonable construction of most state constitutions and the national constitution which compels acceptance of same-sex marriages. The more courts attempt to force the issue the more likely there will be political blow back that will undermine the authority of the courts, increase the political acrimony, and extend the time before which some reasonable and widely popular resolution of the issue is accepted.

One might have expected more news coverage of a particular decision handed down by the US Supreme Court this week in Medellín v. Texas. The Bush Administration had exerted executive authority and was rebuffed by the U.S. Supreme Court. Such a decision would surely play into the main stream media’s conventional wisdom about the Bush Administration trampling over individual liberties. The case was not trumpeted in the news, because Administration was attempting to use an executive order to compel state compliance with a decision of the International Court of Justice in the Hague. Using executive authority to compel states to comply with international decisions is to some appropriate use of executive power.

This story begins with the case of Sanchez-Llama v. Oregon. Moise Sanchez-Llama of Mexico was convicted of attempted murder in Oregon and Mario Bustille, a citizen of Honduras, was convicted of murder by a Virginia court.  According to the Vienna Convention on Consular Relations a consulate needs to be informed when “within its consular district, a national of that State is arrested or committed to prison.” Unfortunately, in these cases, the appropriate consular officials were not notified in a timely manner. The defendants sought to have the evidence introduce in their trials before notification of the consul excluded from the case.

The local state supreme courts ruled against the defendants. In such cases according state procedural rules, the claim to exclude evidence must be made during trial. The International Court of Justice ruled against the states and the case wound up in the US Supreme Court. The Court re-affirmed the authority of the states in this matter. Although treaties carry the force of law, the Supreme Court noted that compliance with treaties is usually codified by Congressional legislation, not enforced by order of an extra-territorial court. Specifically, the court ruled that, “While a treaty may constitute an international commitment,it is not binding domestic law unless Congress has enacted statutes implementing it.”

Moreover, the US had withdrawn from the protocol specifying that “disputes arising out of the . . . Convention shall lie within the compulsory jurisdiction of the International Court of Justice.” This specifically remove the jurisdiction of the International Court of Justice.

Medillin v. Texas is a similar case revolving around a citizen of Mexico who was convicted without proper notification of the Mexican consulate. The International Court of Justice ruled that the rights of a number of foreign nationals had been violated and that the states should reconsider the convictions.  The President wrote an memorandum directing such reconsideration. As the branch of government that negotiates with foreign powers, the President has an important interest in the faithful application of reciprocal foreign agreements. Nonetheless, the Court ruled that direction of the application of state law to foreign nationals is outside the Presidential authority.

Sometimes freedom, federalism, and sovereignty are maintained by heroic and conspicuous actions. Other times this service is performed deliberately and quietly in considered judicial opinions. Medillin v. Texas is such case.