Could Gun Case Open 'Pandora's Box' of New Rights?

      What does it mean to be a citizen of the United States, constitutionally speaking? When the Supreme Court first considered that question, nearly 140 years ago, the justices decided, in effect, “Not much.”
      Now, the Supreme Court is being asked, in the context of a gun rights case, to reconsider the cramped reading of U.S. citizenship announced in one of the court’s most controversial rulings ever. The 5-4 majority in the so-called Slaughterhouse Cases (1873) reduced to a virtual nullity the Fourteenth Amendment’s provision that states could pass no law that “abridges the privileges or immunities of citizens of the United States.”
      Gun rights advocates are urging the justices to use the Privileges or Immunities Clause to strike down Chicago’s handgun ban instead of taking a simpler route based merely on “incorporation” against the states of the Second Amendment’s right to keep and bear arms. Libertarian-minded scholars and advocates are cheering that approach, sensing fertile ground for law journal articles as well as the potential for a new panoply of individual rights solidly grounded on constitutional text.
      The stakes in that argument may go far beyond gun rights, though how far and in what direction are unclear. Ilya Shapiro, senior fellow in constitutional studies at the libertarian Cato Institute, says reviving the Privileges or Immunities Clause could open a “Pandora’s box” of new rights. Conservatives and liberals alike could invoke the clause to gain recognition for individual rights that their ideological adversaries would oppose.
      Most Americans know little about the Privileges or Immunities Clause, even though it appears in the same sentence with the well-known clauses that prohibit the states from violating due process or equal protection. The reason is simple. Four years after ratification of the Fourteenth Amendment, the Supreme Court turned the clause into what the dissenters said was “a vain and idle enactment.”
      The court’s ruling in the case upheld a Louisiana law granting a monopoly to a private slaughterhouse in New Orleans. Competing butchers unsuccessfully argued the law abridged a right of livelihood encompassed within the privileges or immunities of U.S. citizenship. For the majority, Justice Samuel F. Miller saw the rights of national citizenship as limited, for example, to the right to travel or to use navigable waterways. A broader view, Miller said, would radically change relations between the state and federal governments and between both these governments and the people.
      The present-day critics say the decisions ignored prior rulings and legislative intent. They point to an 1823 ruling by Justice Bushrod Washington that broadly defined similar language in the original Constitution (Art. IV, sec. 2) as encompassing the right to travel, access to court, use of property and other “fundamental” liberties. They also note that the same Congress that sent the Fourteenth Amendment to the states in 1866 for ratification also passed a broad civil rights statute safeguarding a wide array of economic and legal rights for newly freed black Americans.
      Defenders of the ruling, less vocal, suggest that the court got it right. Kurt Lash, a professor at Loyola University Law School in Los Angeles, points to floor debate by one of the principal authors of the amendment as emphasizing the distinction between the rights of state versus national citizenship.
      Speaking at a program sponsored by the Georgetown Law Journal last fall, Lash also warned of the risk to local self-government of substituting an open-ended use of the Privileges or Immunities Clause for the current, step-by-step incorporation doctrine. “There is good reason to hesitate to jump from incorporated substantive due process to unenumerated privileges and immunities,” Lash said.
      When the justices hear arguments on Tuesday (March 2) in McDonald v. Chicago, attorney Alan Gura will be attacking Chicago’s gun bans on both grounds. He will argue that the Second Amendment — which applies only to the federal government — is incorporated against the states as part of “substantive due process” under the Fourteenth Amendment. But Gura, the lawyer in the court’s 2008 ruling striking down the District of Columbia’s handgun ban, hopes to emphasize the Privileges or Immunities Clause.
      Hardly anyone expects Chicago’s gun ban to survive, but the justices’ views on the Privileges or Immunities Clause are mostly impossible to predict. Only Justices John Paul Stevens on the left and Clarence Thomas on the right have written opinions indicating an interest in re-examining the clause.
      The likely results of reviving the clause are that much harder to predict. Liberals might argue for a national right to education or health care. Conservatives could try to revive freedom of contract as understood by the pre-New Deal court. And libertarians might push for rights to medical marijuana or assisted suicide.
      Shapiro, editor of Cato’s Supreme Court Review, suggests adopting the standard from one of the assisted-suicide cases, Washington v. Glucksberg (1997), and recognize only those rights “deeply rooted in the nation’s history.” Assisted suicide, the court held, was not.
      That test tilts toward political conservatives. Public education and health care lack a historical pedigree. But the current court, with its pro-business orientation, might well invoke a laissez-faire view of economic rights to strike down some parts of the modern regulatory state. So the justices’ most important questions and comments on Tuesday may deal not with guns, but with constitutional language all but forgotten for nearly a century and a half.
      Postscript. As it turned out, justices across the spectrum appeared disinclined to revive the Privileges or Immunities Clause during the arguments in the case on March 2. For my coverage, see "Justices Set To Enforce Gun Rights" on the CQ Researcher Blog, here.

Getting Tough With Terrorists . . . in Civilian Courts

      Marco Rubio, the hard-core conservative vying to become Florida’s next Republican senator, brought the house down at the Conservative Political Action Conference (CPAC) last week [Feb. 18] by calling for prosecuting terrorists in military tribunals instead of civilian courts. But the audience might not have been so enthusiastic if Rubio had told them the record since 9/11: nearly 200 al Qaeda- or Taliban-related terrorism convictions in federal courts and only three in the military commissions operating at Guantanamo.
      Rubio is one of many Republicans rooting for military over civilian trials in terrorism cases with blatant disregard of the successful criminal prosecution of terrorists during the Bush administration. Their number includes former Vice President Dick Cheney, who argued for wider use of military tribunals while in office only to be overruled by President Bush. The Bush Justice Department in fact touted its “considerable success” in prosecuting and incarcerating terrorists in September 2008, on the seventh anniversary of the 2001 attacks.
      The newfound criticism of civilian prosecutions is driven by two Obama administration decisions: Attorney General Eric Holder’s decision in November to try Khalid Sheikh Mohammed (KSM), the alleged mastermind of the 9/11 attacks, in a federal court in New York City; and the joint law enforcement decision to arrest Umar Farouk Abdulmutallab, the Christmas Day bomber, and treat him as an ordinary criminal suspect with all that entails — including Miranda warnings.
      Both of those decisions are open for debate. It should be noted, however, that New York Mayor Michael Bloomberg initially welcomed bringing KSM and the other alleged 9/11 conspirators to justice within a mile of ground zero. Only later did he become concerned about the expense and risks of a high-profile trial in Lower Manhattan.
      As for Abdulmutallab, the Republicans’ earlier complaint that the Nigerian was Mirandized just 55 minutes after his arrest appears to be inaccurate. The detailed timetable released by the administration shows that Abdulmutallab was questioned for 50 minutes without being advised of his rights and gave useful information before being taken away for surgery. After the four-hour procedure, Abdumutallab decided to stop talking. Only then was he given Miranda warnings. And, now, he is talking — after being given a lawyer and hearing from family members in Nigeria who were visited by FBI agents.
      Neither of those two controversies directly implicates the question whether civilian courts or military tribunals are the best forum to prosecute people for aiding al Qaeda or the Taliban against the United States. The Republicans’ demand to treat suspected terrorists as “enemy combatants” in military tribunals sounds tough and resonates not only with conservatives but also with the general public. A poll by CNN three days after Holder’s announcement in November found that 60 percent favored trying KSM in a military tribunal.
      Public opinion would almost certainly change if people read two comprehensive reports on terrorism-related prosecutions since 9/11 — one written by two former federal prosecutors for the group Human Rights First; the other by researchers at New York University Law School’s Center on Law and Security. Both reports, available here and here, say flatly that criminal prosecutions have been successful despite the difficulties inherent in the court system.
      A quick clarification about numbers. The NYU study uses a catch-all methodology to count 523 terrorism convictions since 9/11. President Obama once used a figure of 300. Republicans attacked that number, but, as NPR’s Ari Shapiro pointed out, the figure came from the Bush Justice Department. The most useful figure, however, comes from the two ex-prosecutors, who counted 195 defendants convicted of at least one count in an al Qaeda- or Taliban-related case. With 19 acquittals or dismissals, the conviction rate is 91 percent.
      Some of the convictions came in prominent cases: Zacarias Moussaoui, the so-called 20th hijacker; the Lackawanna Six, an al Qaeda “sleeper” cell; and the Liberty City Six, five of them convicted for plotting to blow up the Sears Tower. Eleven defendants got life sentences; prison terms for others averaged a little over eight years. The few major setbacks, according to report co-author James Benjamin, stemmed from garden-variety trial errors instead of any systemic weakness in using civilian court.
      By contrast, the military commissions have “underperformed,” according to Brookings Institution expert Benjamin Wittes. Only three defendants have been convicted: David Hicks, the so-called Australian Taliban; Salim Ahmed Hamdan, Osama bin Laden’s driver; and Ali Hamza Ahmad Suliman al Bahlul, an al Qaeda filmmaker and propagandist.
      Hicks and Hamdan are both free after being given relatively minimal sentences; Bahlul received a life term. But Hamdan and Bahlul are appealing their convictions on the ground that the offense charged — material support of terrorism — cannot be tried in the military system because it is not a traditional war crime. If they prevail — and the legal issue is close — that very effective prosecutorial tool would be available only in civilian courts, not in the military commissions.
`       The GOP criticism of civilian trials is “silly,” according to Wittes. Like the Obama administration, he would not rule out the use of military commissions. But “any responsible administration” would look first to civilian courts, Wittes says, because of “their much richer history of cases being prosecuted successfully.”

Strong Presidents Have No Need for Torture

     Constitutional law professor John Yoo is out promoting his new book and its stout defense of the need for a strong president in times of national emergencies. But the demonstrators in orange jump suits outside his recent appearance in Washington, D.C., were a reminder that Yoo’s thesis has an inevitable subtext: his authorship of the later-repudiated Justice Department memo claiming a presidential power to commit torture.
     Yoo makes no mention in Crisis and Command of either of the two infamous torture memos that he drafted in 2002 and 2003 as deputy director of the Justice Department’s Office of Legal Counsel under President George W. Bush. Having returned to the University of California-Berkeley law school, Yoo makes his case for a strong presidency by citing assertive chief executives viewed favorably by history: chiefly, Washington, Jackson, Lincoln, and FDR. And he contrasts them with failed presidents, such as James Madison and James Buchanan, who took a less expansive view of their powers.
     Despite all the indicia of respectable scholarship, the book is to some extent an academic sleight of hand. For one thing, Yoo neglects to tell readers of his belief that the president enjoys unbounded power as commander in chief over the detention and interrogation of enemy combatants — even to the point of violating domestic law and international treaties against torture.
     Even in the covered material, however, Yoo glosses over the critical distinction between the use of presidential power in institutional conflicts — with Congress or the states — and the misuse of presidential power against individuals. It is one thing to commend Franklin Roosevelt for skirting neutrality statutes to lead the nation into a just and necessary war. It is another to defend Roosevelt for the internment of Japanese Americans or the summary convictions and executions of German saboteurs.
     Yoo begins with the first president, George Washington, and his assertion of a critical foreign affairs power vis-à-vis Congress in 1793 in issuing a proclamation of neutrality in the war between Britain and France. Two of the framers, Alexander Hamilton and Madison, debated whether Washington had overstepped his powers. As Yoo says, Hamilton’s view defending Washington’s action has prevailed.
     History similarly judges Andrew Jackson to have been right in two important tests of presidential power when he was in the White House. Jackson stared down a Senate censure over his decision to withdraw government funds from the corruption-plagued National Bank. And he stood up against John Calhoun and others who claimed for the states a power of “nullification” over federal laws that they disapproved.
     Turning to the Civil War, Yoo says that both Buchanan and Abraham Lincoln believed that Southern states had no power to secede from the Union. Lincoln succeeded where Buchanan failed, Yoo says, because he thought — unlike Buchanan — that the president could use force against the secessionists. Then, during the war, Lincoln stretched his powers as commander in chief to issue the Emancipation Proclamation, even though Congress had a different approach on freeing the slaves.
     History judges Lincoln right on both counts, but it gives no agreed verdict on Lincoln’s suspension of the writ of habeas corpus — ratified by Congress only after the fact — and his detention of thousands of suspected saboteurs, spies and Confederate sympathizers. Whether justified or not, it should be noted that Lincoln countermanded some of the harsher decisions by military tribunals. And the war was won not by jailing secessionists in the North but by besting the Confederate Army on the battlefields in the South.
     Franklin Roosevelt’s actions in the run-up to World War II demonstrated a resolve similar to Lincoln’s to use presidential power to confront a threat to national security. As commander in chief, FDR helped forge the alliance that defeated Germany and Japan. But history gives him no credit for the decision to send 120,000 Japanese Americans to concentration camps. And it is jarring to hear Yoo cite with approval the Supreme Court’s discredited decision, Korematsu v. United States, upholding Roosevelt’s action.
     The Supreme Court brought no credit to itself either in upholding FDR’s use of truncated procedures against the German saboteurs captured in June 1942 in New York and Florida, who were convicted within two months and put to death even before the justices had time to issue a formal opinion on their appeals.
     Yoo says the Bush presidency must await history’s verdict, but for his part reaffirms his support for all of the post-9/11 policies as consistent with the historical precedents of Washington, Lincoln and FDR. Again, though, Yoo makes no distinction between the use of force to confront and defeat the nation’s enemies on the battlefield and the use of ad hoc procedures against captured “enemy combatants” that skirt constitutional rights and international law.
     Yoo himself is awaiting the verdict from an internal Justice Department investigation on whether he violated legal ethics in providing the advice that permitted the use of waterboarding and other “enhanced interrogation techniques” and that depicted the president in any event as above the law in ordering those policies. He defends those memos, rescinded by the Bush Justice Department itself, as his best judgment as a lawyer. Perhaps they were. But history provides no basis, even in Yoo’s telling, for believing that a strong president needs arbitrary powers, much less the right to use torture, to keep the country safe and secure.

'All Deliberate Speed' on Don't Ask, Don't Tell?

      When the Supreme Court outlawed racial segregation in schools in 1954, Chief Justice Earl Warren tried to soften the impact of the ruling by giving local school systems time to comply. One year after the ruling, the court said in a follow-up that local school systems had to desegregate not immediately but “with all deliberate speed.”
      The strategy paid off — for the segregationists. With no court orders issued or imminent, segregationists mounted a campaign of “massive resistance” at every level of government. A decade later, hardly any school districts had effectively desegregated.
      Today, the Obama administration appears to be following a similar strategy in trying to repeal the “don’t ask, don’t tell” policy on gays in the military. The administration’s hopes depend on the assumption that with enough time and “deliberation,” supporters of the present discriminatory policy will recognize what the top Pentagon leaders now believe: gay men and lesbians can and should serve openly and proudly in the U.S. military.
      The initial indications are mixed. Adm. Mike Mullen, chairman of the Joint Chiefs of Staff, is drawing wide praise for his forthright statement in favor of ending “don’t ask, don’t tell.” In the wake of Mullen’s appearance along with Defense Secretary Robert Gates before the Senate Armed Services Committee [Feb. 2], there is no evidence of a widespread anti-gay backlash among the public at large.
      Indeed, the administration now has an important ally in trying to repeal the policy: retired general Colin Powell. As chairman of the Joint Chiefs in 1993, Powell played the pivotal role in the defeat of President Bill Clinton’s effort to end discrimination against gays in the military and the enactment instead of the compromise “don’t ask, don’t tell” policy. Today, Powell says, “attitudes and circumstances have changed.”
      On the other hand, Republicans in Congress and social conservatives outside the Capitol are digging in their heels to block any change in the policy. Sen. John McCain, R-Ariz., the committee’s ranking Republican, said he was “deeply disappointed” in Mullen’s stance.
      Previously, McCain had said he was open to repealing the policy if the military signed off. After hearing Mullen’s statement, however, McCain insisted that the policy “has been effective” even if “not ideal.” And he emphasized that Congress enacted the policy into law in 1993 and only Congress can repeal it.
      To counter the anticipated opposition, the administration is relying on the high-level study ordered by Gates to be co-chaired by the Pentagon’s top civilian lawyer and the commander of U.S. forces in Europe and due to be completed by the end of the year. The study is aimed at ascertaining the views of service members, examining the impact of gay service members in other militaries, and identifying any specific steps needed after gays are allowed to serve openly.
      Mullen emphasized that there has been no statistically valid study of the troops’ views. The only evidence that supporters of the policy cite is organized letter-writing by retired officers and write-in surveys by present service members who oppose allowing gays to serve openly.
      Anecdotal evidence and a RAND Corporation study of vets in Iraq and Afghanistan suggest most service members will have no problem with gays serving openly. Mullen himself said he had served with homosexuals since 1968. But the relevance is unclear. No poll of students and families in the 1950s would have changed the constitutional imperative to abolish racial segregation.       In addition, as Sen. Kirsten Gillibrand, D-N.Y., pointed out, the present policy effectively prevents gay service members themselves from speaking out on the issue without risking discharge. Gates lamely suggested gathering information from some of the gay soldiers already discharged under the policy.
      As for other issues, the evidence is already in. Based on a study of militaries in six countries and police and fire departments in six U.S. cities, the RAND Corporation told Congress in 1993 that gays were serving openly with no apparent impact on effectiveness or cohesion.
      Seventeen years later, the evidence is only stronger. Of two dozen militaries that allow gays to serve openly, none report negative effects. For the United States, the most visible effect is the loss in manpower. Since 1994, around 13,500 service members have been discharged under the policy. They took with them what the Government Accountability Office estimated in 2005 as close to $200 million invested in their recruitment and training.
      Republican senators at the Armed Services hearing cited no studies to substantiate their warnings of a loss of unit cohesion. They did not contradict the polls indicating public support as high as 75 percent for allowing gays to serve in the military. In The Weekly Standard, the conservative commentator William Kristol described the policy as a success that, in any event, affects only “a few thousand” people. Actually, an Urban Institute demographer estimates 65,000 gay men and lesbians are currently serving in the U.S. military.
      Politics appears to be driving the Republicans’ stance. Sen. Orrin Hatch, R-Utah, made an ambiguous suggestion one day that he was open to repealing the policy only to retreat the next. In a political fight, time can help either side build support and momentum. The Obama administration’s challenge on “don’t ask, don’t tell” is to use the coming months to its advantage instead of letting opponents build up resistance to a change in policy.

Civilian or Military Trials for Terrorism Cases?

      It seemed like a good idea at the time: trying Khalid Sheikh Mohammed and four other alleged 9/11 conspirators in a federal court in New York City. Let’s give the “worst of the worst” the best of American justice, only blocks away from Ground Zero.
      But the Obama administration is retreating from the decision to hold KSM’s trial in Lower Manhattan after New York City Mayor Michael Bloomberg, who had originally supported the plan, changed his mind. Bloomberg told reporters on Wednesday [Jan. 27] that a trial expected to last months if not years would disrupt the city, damage its economy, and cost up to $1 billion in security.
      The White House initially stood its ground, but for less than 48 hours. By Friday, aides were saying the trial, scheduled to begin in September, would be moved — to a location yet to be determined. New York officials were relieved.
      The relocation, however, leaves in place the more fundamental decision — also drawing increased criticism — to try the self-confessed architect of the 9/11 attacks in a civilian court instead of a military tribunals. For the most part, the issue pits a Democratic administration against Republicans in Congress and national security-minded advocacy groups against civil liberties organizations. But doubts raised by some less ideological experts and even some liberals suggest that the question deserves careful consideration without being cast as a litmus test on the administration or the U.S. Constitution.
      Attorney General Eric H. Holder Jr. sought to explain the decision in non-ideological terms in his prepared statement before the Senate Judiciary Committee on Nov. 18, a week after announcing the plan. KSM could be tried in a civilian court or a military commission, Holder said. He made the decision as a prosecutor, the attorney general said, based on “where the government will have the greatest opportunity to present the strongest case in the best forum.”
      As he went beyond his prepared statement, Holder tried to reassure GOP senators about the risk of an acquittal. “Failure is not an option,” Holder said. The reassurance did little to neutralize criticism from the right but provoked tut-tuts from some nonpartisan experts about the apparent assumption of a predetermined outcome: verdict first, trial after.
      The issue receded in the winter holiday season, but gained new traction with the administration’s decision to prosecute Umar Farouk Abdulmutallab, the foiled Christmas Day bomber of flight 253, in civilian court too. Republican and conservative critics saw the decision as further confirmation that the administration naively views al Qaeda-inspired attacks on the United States as merely a law enforcement problem, not a war.
      Civil liberties groups, including the bipartisan Constitution Project, defend use of civilian courts in part by pointing to the record. Nearly 200 terrorists have been successfully prosecuted in federal courts since 2001, they say, compared to only three so far in the military commission system set up at Guantanamo. In addition, they say the use of civilian courts showcases the U.S. legal system and denies accused terrorists the opportunity to depict themselves as victims of a sham proceeding.
      Conservatives counter that accused terrorists will enjoy too many procedural rights in a civilian court and will use a federal trial as a soapbox for anti-American rants. The critique oddly disregards the rights granted the accused in the military commission system and denigrates federal judges’ ability to control a courtroom. But Benjamin Wittes, a scholar at the Brookings Institution who has tried to steer a nonideological course on these issues, says evidentiary and legal hurdles in civilian trials do carry a risk for successful prosecutions.
      From a more liberal perspective, Stephen Vladeck, a professor at American University Law School in Washington, worries that courts will circumvent these problems in terrorism cases at the cost of degrading the criminal justice system for others. In any event, Vladeck says, KSM’s case logically belongs in the military tribunal. He is accused of war crimes — plotting an attack on civilian targets as a ranking al Qaeda leader — and was captured abroad by U.S. intelligence agents. If not for this case, Vladeck asks, what are the military commissions for?
      The Obama administration may be shying away from the military commissions because of their dubious history. The Bush administration created them without adequate safeguards and housed them at Guantanamo with the intention of evading effective legal review. Yet Obama is not abjuring the use of military commissions altogether. At the same time, the administration is saying that roughly 50 Guantanamo detainees may be held indefinitely without any trial either in a civilian or military forum.
      The administration may have a logic to these decisions, but it has yet to emerge. Steven Engel, a Washington lawyer who served in the Bush Justice Department, hints at a concern that the administration is simply manipulating the choice of forums: stronger cases showcased in civilian courts, weaker cases out of sight in military commissions.
      KSM’s trial may yet be held in federal court, and his eagerness to claim credit for 9/11 may moot any concerns about the outcome. But the administration still needs to offer a better explanation of its legal strategy in what the president and Holder both acknowledge is a “war” against terrorism.