Archive for
August, 2007

Open Security Council Debates: Substance and Process

by Kristen Boon

Texas Governor Commutes Death Sentence: Did the EU Pressure Make a Difference?

by Julian Ku

Iraqi Chemical Weapons Found… at the UN?

by Chris Borgen

Human Rights Watch Issues Report on Hezbollah’s Targeting of Civilians

by Roger Alford

How should the IMF’s Managing Director be Chosen?

by Kristen Boon

Can Alberto Gonzales be Sued in Federal Court for Violations of International Law?

by Chris Borgen

What if Erie had nothing to do with the status of customary international law in U.S. law?

by Duncan Hollis

Ugandan Rebel Wanted by ICC Starts a PR Campaign

by Julian Ku

The Network of Terror and the Network of Law

by Chris Borgen

Economic Dimensions of Post-Conflict Reconstruction: Overlapping Mandates?

by Kristen Boon

New and Lateral International Law Professor Hires

by Roger Alford

New Essay on SSRN: International Law & Information Operations

by Duncan Hollis

Legal Challenges: Post-Conflict Reconstruction

by Kristen Boon

Welcome to Guest Blogger Kristen Boon

by Peggy McGuinness

Thanks to Eugene Kontorovich

by Peggy McGuinness

Why Does the Charles Taylor War Crimes Trial Cost $4 Million?

by Julian Ku

Texas Governor Responds to EU’s Request for Death Penalty Moratorium

by Roger Alford

Uganda Inches Away From the ICC

by Julian Ku

Being a POW Doesn’t Mean You Can’t Be Extradited

by Julian Ku

Bush v. Texas: It’s a Tough Choice for the U.S. Supreme Court

by Julian Ku

A Volokh Conspirator on Posner and Vermeule

by Kevin Jon Heller

Who Needs An International Law Professor?

by Duncan Hollis

Burqas in My Backyard

by Peter Spiro

Opinio Juris — For Adults Only!

by Kevin Jon Heller

Appeals Court Upholds François-Xavier Byuma’s Conviction

by Kevin Jon Heller

More on the Drug Kingpin Who Wants to Be Extradited to the U.S.

by Kevin Jon Heller

Online Symposium: Conclusion

by Roger Alford

Closing Thoughts

by Eric Posner

The State Secrets Privilege. I know little about this doctrine and defer to Bobby’s superior expertise. I will just make a simple point that will by now be familiar. The state secrets privilege, like the other rules we have discussed, reflects a tradeoff between liberty (or some other value at stake in a particular case) and security. The privilege allows the executive to maintain secrecy where publicity would aggravate a security threat, but by the same token enables the executive to engage in various forms of abuse without detection and serious review by the courts. It is tempting to say, and it is said often, that whatever other powers the executive should have during an emergency, at least its actions should be transparent, so that the public can evaluate them. If it must detain people without charges, for example, at least make it do so in the sunshine. Unfortunately, this response simply denies the premise that in some cases loss of secrecy can have devastating consequences, a premise that no one denies but everyone tries to minimize in arbitrary ways (typically by admitting only that troop movements might appropriately be secret, as though troop movements were a phenomenological category carved into the structure of the universe). The risk of executive abuse is the necessary cost, just as it is when one sets up a government in the first place. In this respect, I believe that our view is no different from Bobby’s. What I would add is only that while the privilege must surely be necessary during normal times, it ought to be broader during emergencies, for all the reasons that we have been discussing: when the threat to security increases, a higher risk of executive abuse needs to be tolerated. Of course, if the threshold is already extremely low during normal times, it might not be necessary to expand it during emergencies (but then the privilege should probably be more limited during normal times); or it might be that the degree of emergency is implicitly built into the threshold.

Alternatives. Julian’s post correctly notes that most legal academics think that the judiciary should play a significant role to restrain the executive during the emergency. But there is a third view, generally associated with Cass Sunstein, and Rick Pildes and Sam Issacharoff. On this view, courts should be deferential as long as Congress has authorized the executive action in question. The kick here is that congressional authorization that would not immunize executive action from judicial challenge during normal times does so in an emergency. I do not agree with their arguments, but I can see how many people would find them appealing. If we could reproduce something like the war cabinet system that has served Britain well, that would indeed be worth considering. But the U.S. system is nothing like the British system, and I do not think Congress or members of Congress or particular committees could operate as a kind of war cabinet. Still, the Sunstein/Pildes/Issacharoff proposals have a very significant merit: they make clear that the problem of emergency powers is just an institutional problem. It involves thinking about decision costs, error costs, and the relative capacities of the different branches of government. We all might have different ideas about how to weigh these factors, and once we discuss these different ideas, it becomes clear that the debate is empirical and (at a very low level) analytic, not ideological. Worries about tyranny, fascism, deontological principles, and the like, could be put in the same dustbin as the Federalist Papers.

Censorship. I do think that censorship raises the same issues as the other types of executive actions that we discuss, and that the tradeoff and deference theses apply with equal force. It is interesting to speculate about what would happen if the U.S. had the homegrown terrorism problem that currently afflicts Britain. Would U.S. authorities try as hard as the UK government to censor firebrand imams? It’s hard to say. I expect they would if the problem was serious enough, and I expect courts would defer. But, given U.S. traditions, the problem would probably have to be more serious than it currently is in Britain.

A general thought. One other thought, which has been provoked indirectly by a few of the posts and some of the comments, but mainly by other reactions I have seen from time to time: many people seem to think that the question of the proper tradeoff between security and liberty during emergencies, and the proper role of different government institutions, can be resolved by parsing doctrine. This is most definitely not our view. Given certain broad institutional constraints, the problem is mainly normative and empirical. The contributors to this debate who pour over opinions, statutes, and the constitutional text are often very impressive lawyers, but they are going about the problem the wrong way, and, inevitably, they end up supplying answers by smuggling in normative and empirical assumptions that they do not acknowledge and defend.

Kevin’s Questions. On the first, the book not being a brief for the Bush administration, the only question is whether the hypothetical second 9/11 attack sheds new light on the relative institutional capacity of the presidency. It might not; or it might show that the presidency is not strong enough; or it might show that the presidency is too strong. Everything would depend on the reasons for the attack’s success, and whether one thinks a more constrained president would have either prevented the attack or done less harm to civil liberties in the course of failing to prevent it. Suppose that during World War II, the German offensive in the Ardennes had succeeded and allied troops were driven off continental Europe. Would it have been proper for Congress and the courts to assert control over the executive on the grounds that FDR was incompetent? It would probably take something even worse than that to precipitate such a constitutional crisis.

On the second question, I can’t think of any off the top of my head, but that is probably just due to my ignorance. But one can think of hypotheticals. An extreme example I suppose would be a full-scale invasion of Iraq, designed to weed out some suspected al Qaede elements and to convert Iraq into a model Muslim democracy, a beacon for the Muslim-Arab world, one that would help eliminate the roots of the extremist ideology that resulted in the first 9/11. Although judges could do nothing about this hypothetical Iraq invasion, it would probably not deserve deference from Congress.

My thanks again to Opinio Juris, and Roger in particular, for organizing this symposium. I am sorry that I have not been able to respond to the many interesting comments.

The State Secrets Privilege and the Deference Thesis

by Bobby Chesney

I appreciate Adrian’s thoughtful response to my post on military detention, and would now like to shift gears to a distinct topic of at least equal current significance: the state secrets privilege (“SSP”).

We could have a whole symposium on this issue alone, no doubt. In fact, we had one a few months ago over at my usual blogging abode, National Security Advisors; I strongly recommend that exchange for anyone who wants to get down into the details of the SSP debate. I do not propose to rehash the entirety of that debate here, though, but instead simply to flag this topic as one in which the deference thesis is currently in issue in live litigation; anyone who has listened to last week’s oral argument in Hepting v. AT&T Corp, before a Ninth Circuit panel, will appreciate that there continues to be great uncertainty even among judges with respect to (a) the doctrinal details through which the SSP is implemented and (b) the separation of powers principles that should give rise to those details (see in particular the exasperated exchange between Judge Pregerson and Dep. SG Garre with respect to the deference judges owe in this context).

According to the Supreme Court’s 1953 decision in Reynolds, the substantive test for application of the privilege is whether disclosure of the information in issue poses a “reasonable” risk of harm to national security. As a formal matter, the existence of such a risk must be expressly asserted by the head of the agency or department with responsibility for that information (the DNI, for example). At the same time, the majority in Reynolds expressly rejected the proposition that the mere assertion of the privilege by the executive should bind the court; whatever deference the executive official should receive, it ultimately is the responsibility of the court to decide whether the reasonable-risk predicate truly has been satisfied.

Assuming that description of the doctrinal status quo is correct, would the deference thesis require a shift in the doctrine such that the executive invocation of the privilege becomes dispositive? I’m not sure that this is so—perhaps the thesis would cash-out in this context precisely where the doctrine already is—but if it is, then it seems to me that this would not be desirable. On one hand, the existence of at least some prospect for judicial review has a salutary effect: the possibility that a judge might reject an assertion of the privilege serves an important role in disciplining executive officials in their invocation of it, counterbalancing any temptation there might be to invoke the privilege in entirely unwarranted circumstances (something that I think would be rare, but which I would not rule out). Against that benefit, there is a potential cost: a judge might improperly reject a valid invocation of the privilege (something that I think would be rare, but which I would not rule out).

Does one consideration outweigh the other? Before answering that question, I think it is important to recall the relatively-forgiving substantive standard to which the judge holds the executive official: demonstration of a reasonable risk to national security should disclosure occur. Because that threshold is quite low, it is relatively difficult for a judge to plausibly assert that the executive official has not satisfied it (indeed, this is the cause of considerable criticism of current SSP doctrine). As a consequence, the potential for unwarranted rejections of the privilege is constrained relative to what might occur under a tougher predicate requirement. I can’t quantify the resulting costs of permitting second-guessing by the judge, and therefore can’t entirely follow through on this cost-benefit analysis. Still, this constraint on the judicial error variable gives me some reason to believe that the benefits are indeed worthwhile.

(Knowing that many readers are extremely critical of the SSP, by the way, I feel obliged to add at this point that I do think that there is room for creative measures designed to alter the SSP status quo in limited ways. I’ve argued elsewhere that Congress should consider creating FISC-like fora for litigation of certain claims that otherwise would be dismissed under the SSP, and that there might even be ways to provide expert assistance to judges engaged in the process of considering whether the reasonable-risk standard has been met in a given case.)

That probably will be my final contribution to this terrific discussion. I’d like to thank Roger and the rest of the OJ crew for having me, the other participants and commentators for their thought-provoking observations, and Eric and Adrian for making such a significant contribution to the literature.

Smoking Out the Alternatives to Dominant Executive Power

by Julian Ku

Military Detention: A Follow-Up

by Adrian Vermeule

Bobby Chesney’s post about military detention asks all the right questions and I agree with the first several steps in his analysis of those questions. I want to record some questions or quibbles about the later steps in his analysis, however. It is true that Hamdi baldly forecloses “indefinite detention for the purpose of interrogation,” but it is possible that the emphasis here should be on “indefinite,” rather than on “interrogation”, especially in the context of the Court’s discussion, in which the central worry seems to have been that detention could go on forever (whatever the grounds of detention). In any event, our point of course is to criticize Hamdi’s procedural framework for detention, although of course we approve of its holding that detention is substantively authorized by the AUMF. We don’t take Hamdi‘s procedural holding as a fixed point; its correctness is what we mean to question.

If Hamdi’s holding (dictum?) barring detention to acquire intelligence is correct, it would have to be because, as Chesney explains lucidly, there is some predictable skew in the government’s decisionmaking, such that it will detain too many people, inflicting too many costs for too little benefit. The benchmark for determining whether such a skew exists is not just the number of false positives and false negatives, but a weighted comparison of their costs and benefits. A false positive – here, detaining someone who has no useful intelligence – might be less costly overall than a false negative – failing to detain someone who does have useful intelligence. The former is of course more costly to the detainee, the latter to society; a rational and well-motivated government would weigh these costs impartially. The crucial questions, then, are the rates of false positives and negatives, the costs of false positives and negatives (which are not necessarily equivalent), the government’s incentives to conduct the calculus accurately, and whether the judges can improve upon the government’s decisionmaking.

I have not yet heard any account suggesting that if the government could detain in order to gather intelligence it would do so to excess, or that the judges could improve upon its decisionmaking, although I am open to thinking that there is such an account. I will say only that false positives are hardly costless to the government in this setting. One of the comments to Chesney’s post (by Geoffrey Corn) mentions several such costs, such as “distracting resources from more precisely focused intelligence gathering, and overwhelming the logistical capability to hold and care for such individuals.” Even if the government only cares about its own costs, not total social costs, it will have an incentive to keep down the number of false positives. Whether the incentive is adequate is difficult to say; by the same token, however, I see no basis for judges to be confident that it is not. Corn mentions that front-line military personnel may have an incentive to over-detain, but by doing so they are imposing costs on their superiors, who will be aware of the perverse incentive and will try to do something about it. If the problem is agency slack within the military – the commanders cannot fully control the line officers — the notion that judges can fix the problem through due process review strikes me as far-fetched.

As this will have to be my final post, I want to thank our commentators and my co-author for their interesting remarks, and thank Roger Alford for hosting this event.

Censorship and Institutional Competence

by Roger Alford

Detention Policy, the Executive Interest in Intelligence-Gathering, and the Calibration of Procedural Safeguards

by Bobby Chesney

I’d like to steer the discussion toward the question of military detention for a moment.

Military detention has been and continues to be the subject of extensive litigation, and it therefore presents a series of occasions implicating the deference thesis. Eric and Adrian discuss the matter from several angles, including one that strikes me as particularly important: procedural safeguards (i.e., the mix of rights, procedures, and rules governing the process of determining whether a particular individual satisfies the substantive criteria for military detention).

In any fact-finding system, the applicable procedural safeguards reflect (even if only implicitly) an underlying judgment regarding the appropriate rates of false positives and negatives to be tolerated by that system, as well as a judgment regarding the mix of safeguards likely to produce such rates (all of which, of course, is but another way of stating the tradeoff thesis). From the perspective of the deference thesis, the question that arises is whether courts (or Congress) should second-guess executive determinations of the calibration most appropriate for military detention in the current security environment. Eric and Adrian note that the Supreme Court did precisely that in Hamdi, and they criticize the court for doing so (pp. 256-57). Because the question of procedural safeguards continues to be a point of special significance and sharp dispute, it seems to me that their argument on this point deserves close consideration.

As an initial matter, Eric and Adrian make clear that they concur in the need for a cost-benefit analysis regarding procedural safeguards in this context. They would leave that determination in the hands of the executive, however, in the absence of an explanation as to why judges will conduct a more accurate analysis. “One needs a theory,” they point out, “to explain why the government will weigh the relevant factors with systematic bias, as opposed to random error . . . .” (p. 256).

Hamdi does not offer such a theory (at least not expressly), and this prompts Eric and Adrian to identify and then critique an account that might explain the court’s approach: “One such theory . . . is that the government will just want to detain in perpetuity or convict before a military commission everyone the president alleges is an enemy combatant, so the procedural cost-benefit analysis will be distorted.” (Id.). They describe this account as “mystifying,” however, explaining that “[t]here is no reason to think that the executive would benefit from an excessive detention or conviction rate, or that political constraints would permit the executive to implement such a preference in any event.” (Id.) (emphasis added). Later on the same page they explain that the government has a strong interest in accurately sorting “real enemy combatants from those who are swept up in the fighting by mistake,” and that this interest involves the desire to “incapacitate and deter terrorists and attackers . . . .” (Id.)

If it were the case that the executive interest in detention were limited to the incapacitation of detainees themselves and the deterrence of others, I would find this to be a fairly persuasive line of argument. But it seems to me that the executive interest in detention goes beyond incapacitation and deterrence, encompassing also the powerful interest in gathering intelligence about al Qaeda and the like. In light of that interest, there is at least some reason to believe that the range of persons whom the government would like to detain might exceed the range of persons properly subject to detention pursuant to the traditional armed conflict rule relating to internment for the duration of hostilities. Put another way, the government’s interest in gathering intelligence may lead it to wish to detain (and then interrogate) persons whose detentions might be difficult to justify under conventional understandings of the scope of internment power.

Let’s assume this is so. So what? We need two additional premises before we can adopt this as a viable theory for why the executive might indeed preference an excessive rate of false positives in the detention process.

First, we need to assume that the government will not or cannot invoke intelligence-gathering, standing alone, as a detention predicate. That seems a safe assumption, actually, in light of the express language in Hamdi foreclosing that option (noted by Eric and Adrian at p. 254).

Second, we need an account that explains why heightened toleration for false positives might facilitate the intelligence-gathering interest. Is there such an account? Possibly so. Much of the information that would be most helpful in unwinding al Qaeda and comparable terrorist networks lies in the hands of individuals who might not easily be described as actual members of such groups, let alone individuals who engaged directly in hostile acts. Financiers, document forgers, and other components of the logistical back office for terror networks serve a critical function, and may be positioned to provide tremendously useful information about other parts of the network. Some such individuals can of course be categorized as sufficiently associated with a hostile force so as to justify detention even on a relatively strict reading of traditional detention criteria. Others, however, present a more difficult case. The weaker the procedural safeguards involved in the process of determining detention eligibility, however, the easier it becomes to finesse such distinctions (and the more intel-rich detainees in theory might come into long-term custody).

Certainly this account provides an explanation for the importation of “material support” concepts from domestic criminal law into the military detention context. Whether it also provides a plausible account for questioning executive decisions relating to procedural safeguards is less certain, but worth considering.

Two Questions

by Kevin Jon Heller

Coercive Interrogation: Legal vs. Moral Prohibitions

by Adrian Vermeule

In Terror in the Balance, we put aside the view that there is an absolute moral prohibition on coercive interrogation necessary to save third-party lives. For one thing, we claimed, it is very hard to find moral philosophers who defend that view; most waffle, in the end, by adopting some variant of the view that there is a “catastrophe” exception to the moral prohibition, so that if enough lives are at stake a utilitarian override kicks in. Roger Alford, our gracious host, suggests (among other things) that we radically understate the appeal of absolutism. He points out that the McCain Amendment and various sources of international law create an absolute legal ban on “torture,” of which coercive interrogation is a subset.

But this point conflates the moral question with the legal question. There is no doubt that most people believe that coercive interrogation should be illegal, and indeed it is; but they also believe that it would be morally permissible or even obligatory for officials to torture, in some vaguely defined set of extreme circumstances, at least if those officials openly take responsibility for their actions and throw themselves on the mercy of juries and the public. McCain himself, in an article in Newsweek, wrote that torture should be illegal, but that in an “urgent” ticking time-bomb case “an interrogator might well try extreme measures to extract information that could save lives. Should he do so, and thereby save an American city or prevent another 9/11, authorities and the public would surely take this into account when judging his actions and recognize the extremely dire situation which he confronted.” In this, our guess is that McCain speaks for many Americans. (In the Pew Research Center poll that Roger links, “15 percent of respondents said that the use of torture against suspected terrorists in order to gain important information can often be justified, while 31 percent said it is sometimes justified, 17 percent said it is rarely justified and 32 percent said it’s never justified.” So despite the legal ban, 63 percent believe that torture is at least sometimes justifiable; we read this to mean morally justifiable.)

We label the view that McCain defends the OAF view — “Outlaw and Forgive” — and our objection to it is not that nobody holds it, but that it is bad in various ways: self-defeating, unstable, and socially undesirable. There is no need to repeat those points here. Conceptually, however, the undoubted legal prohibition on coercive interrogation does not show that anyone holds the absolutist moral view. Law and morality are not coterminous, in general or in the debate over coercive interrogation.

Absolute Prohibitions of Torture

by Roger Alford

The Scope of Deference

by Eric Posner

I agree that the concerns that Bobby Chesney identifies are real and important. There are no answers at the level of theory; the scope and level of deference must be worked out at the level of practical politics. In practice, as we have seen, the president (and presidents generally) press for maximal powers where they think they need them, subject to political constraints. President Bush has not argued that his commander-in-chief power gives him the right to dictate educational policy because such an argument is a loser politically as well as legally. The courts defer with respect to some actions and not others. Presidents often acquiesce when courts refuse to defer, but sometimes they put up varying levels of resistance—appealing up the chain, or jurisdiction-shopping until they get a better result, or exploiting loopholes, or buying for time, or in rare instances (FDR, Lincoln) disobeying or threatening to disobey judicial orders. Public and elite responses to the performance of the relevant actors gradually determines the practical limits on presidential, judicial, and congressional action. I’m afraid we don’t have anything illuminating to say about how boundaries should be determined in practice, or how context-specific deference ought to be.

But we do want to avoid the legalistic impulse to try to determine in advance what the rules should be. (Again, this is the impulse behind Ackerman’s Emergency Constitution.) There are obvious benefits from having rules stated in advance, but the rules/standards literature makes clear that there are costs as well. Emergencies are not like the revenue-generating behaviors that are regulated by the tax code. Because it is hard to anticipate the next emergency, rules determined today will inevitably be poorly suited to the emergency that occurs tomorrow. On balance, the unpredictability of emergencies argue in favor of general standards of conduct rather than rules.

On a somewhat related issue, some of the comments might give readers a misleading impression that we take a dichotomous view: that the choice is between presidential dictatorship or not, and we opt for the former. Bobby Chesney correctly notes that the real debate is about the proper location on a continuum. To pick silly numbers for clarity, suppose 0 is pure executive government, 100 is pure legislative government, and 50 is some mix of deference and congressional/judicial oversight. We do not argue for 0, nor does anyone argue for 100. To pick more silly numbers, suppose that on most issues in normal (non-emergency) times the system is at 50. During emergencies, it typically goes down to (say) 20. Some civil libertarians seem to argue for, say, 40 or even 60 during emergencies. We want to say that 20 seems right—or, more precisely, there is no reason for thinking that 20 is wrong. Civil libertarians make a series of arguments that 20 is too low—the panic argument, etc., as we noted earlier. In trying to refute these arguments, we are not committing ourselves to 0; we are committing ourselves to 20 for the duration of the emergency.

A complicating factor, which I referred to in an earlier post, is the existence of other trends—technological, cultural, geopolitical—that affect the optimal location on the continuum. So it may be that as weapons become cheaper, smaller, and more destructive, we will have to reconcile ourselves to a long-term decline from 50 to, say, 40. On the other hand, if foreign political extremism fades (as it has in the past, and will surely do again), the optimal point could rise from 50 to some higher number.

Online Symposium: Introduction to Part II of

by Roger Alford

The President Versus The Presidency

by Eric Posner

The post 9/11 debate on presidential power has, inevitably, been overshadowed by the actual performance of the current president. I say “inevitably” but the confusion between the president and the presidency has greatly limited the value of the academic discussion, which has been unfortunate.

Consider, as an abstract proposition, the claim, which could be made at any time in American history, that “Because President X did Y [something bad], the presidency should be deprived of the power to do Y.” Stated in this bald form, the proposition is obviously false. No one thinks that because President Johnson mismanaged the war in Vietnam, presidents should be deprived of the commander-in-chief power. Nor does anyone think that because President Bush’s subordinates mismanaged the response to the Katrina hurricane, the presidency should be deprived of (statutory) emergency-response powers. Presidents have caused countless diplomatic fiascos, but no one has said that for this reason the power to engage in diplomacy should be lodged in Congress or somewhere else.

Why not? The answer is that the presidency is an institution that is occupied by a succession of persons, and the proper structure of this institution is independent of who happens to occupy it during a particular term (unless you have an extremely short time horizon). Of course, the behavior of the individual in power provides some evidence of how that presidency’s power can be used and abused, but one needs to take account of the evidence of the behavior of earlier presidents as well.

It turns out that nearly all of our presidents have been pretty ordinary people. Very few geniuses (fewer still after the era of mass democracy began), and a lot of mediocrities, at least, if one uses the standards that are regularly applied to presidents by academics and journalists. But I don’t think anyone thinks that the case for presidential power rests on the premise that the occupants of the offices will be extraordinary people. (The popular books about the follies of the Bush administration have countless precedents for all earlier administrations.)

As the founders understood (oops!), power not given to the presidency must be given to some other institution, and so, to stick within the framework of the federal government, the real question is whether we want to give power to the mediocre president, the mediocrities in Congress, the mediocre supreme court justices, or (I suppose) the mediocre heads of agencies. Or we could let the “people” handle the terrorists themselves.

To focus our intuitions, then, let us imagine that all the members of Congress are little Bushes (as people like Kevin Heller imagine him) – ideologues in part, practical politicians in part, but (apparently) not very smart and morally fallible or repulsive or whatever. The point is to avoid loading the dice and imagining that everyone in Congress is a Henry Clay (funny how rarely one hears any mention of who belongs to the current crop of congressional geniuses).

The case for giving emergency power to the president rather than Congress rests on the simple point that a multi-member body cannot act quickly, decisively, and secretly. Once we reject the assumption that the members of Congress are likely to be smarter than the president, I don’t see how any other factor would play a role.

The conventional critique of our views is not that Bush is an idiot, so we must be wrong, but that if presidents are given too much power, they will trample on civil liberties, favor supporters at the expense of others, or become dictators. The Bush-is-an-idiot crew overlook the fact that by the standards of earlier presidents, Bush looks rather good.

With respect to civil liberties, the infringements have been trivial compared to, say, Lincoln and FDR, and either less than, or on par with, the infringements that occurred during the early cold war and the Vietnam war. The worst one can say about Bush is that he has turned the clock back to the 1960s, though ordinary criminal law enforcement remains largely unchanged.

With respect to favoring supporters, there is no doubt that Bush, like most presidents, has tried to favor his supporters, but little of this has translated into war-on-terror policy. The main complaint has been the distribution of war-on-terror related pork, but this is business as usual in any administration.

With respect to becoming a dictator, Bush has, as nearly everyone acknowledges, been rather ineffectual as president. Crucially, unlike many past presidents (including Lincoln (through his generals), of course, but also, say, Johnson and Nixon) Bush has not used his emergency power to harass political opponents and their supporters.

Finally, in terms of overall competence in the execution of the war-on-terror, the Bush administration has been reasonably successful. We know that al Qaeda and its affiliates and epigones remain dangerous, as they execute attacks on the soil of other nations like Britain and Spain. Yet no such attack has occurred in the United States in six years. The real question is whether the Bush administration could have obtained the same result with less aggressive actions. I don’t know the answer to this question but I don’t think anyone knows. One can point to bungled investigations, implausible legal claims, and troublesome prosecutions, but this is just how governments operate, how they have always operated, and not much different from previous administrations – fallible people operating in a fog make mistakes. The incompetence claims are, I think, largely unsupported, no doubt infected by frustration with the Bush administration’s many other failures, most prominent among them that of the initiation and execution of the war in Iraq.

Meanwhile, Congress’s historical record is hardly sterling. Congress, too, has trampled on civil liberties (think of the McCarthy era) and favored supporters of the party in power. True, Congress has not acted in dictatorial fashion (at least, not since the Reconstruction), but then, as I said, a multimember body can rarely be an effective dictator. The beef against Congress is that it is weak, and no one today wants to be led during an emergency by a weak political institution, unless the alternative is extremely horrible. And, finally, Congresses have enacted a great deal of idiotic legislation.

Congress’s particular advantage is generally thought to be that it is a more representative institution, and thus perhaps confers legitimacy on the government in the way that president cannot. This is at best arguable. Arguably also, a many-minds style argument can be made that Congress aggregates information better than the presidency does, though I am skeptical about this. The president has greater control over agencies, and greater access to agencies’ information; agency heads know that their political fates are intertwined with that of the president, not that of Congress or any particular member of Congress.

Whatever the case, these advantages are less important for security issues than for other issues. This being the case, there is little or no public support for rolling back presidential powers (though there is a great deal of public support for having a new president). The president is weak but the presidency is as powerful as ever. What this means is that our next president, be it Obama or Clinton or Giuliani or someone else, will most certainly build, or at least rest, on Bush’s legacy. If a Democrat wins the election, you might expect some meaningless symbolic acts (such as the replacement of Guantanamo Bay with a hidden prison in Afghanistan), but don’t expect any changes in presidential powers. No serious presidential candidate, Taft-like, campaigns on a platform of limited presidential powers because no such candidate could possibly win.

History and Terrorism–Three Approaches

by Adrian Vermeule

In a comment to an earlier post by Eric, Marty Lederman has very helpfully raised the issue of how history is relevant to our discussions. I think it is relevant in three different ways: as originalist evidence, as evidence of what is desirable institutional behavior, and as evidence of what is politically possible. After some brief thoughts on the first two, I want to focus on the third, and pose a question to Marty and the other commentators.

Some constitutional scholars take founding-era history as evidence of the original understanding of the constitutional allocation of national security powers. Eric and I are not originalists, and as Eric points out in his earlier post, it is particularly difficult to think that the original understanding is useful when the issue is how to allocate national security authority among the branches of government in 2007. Emergencies by their nature present unanticipated circumstances, and the framers’ conditions were so remote from our own that it is hard to see why we should try to settle these questions by poring over their writings. Moreover, as circumstances change over time, the relevant constitutional texts and framers’ discussions become more and more indeterminate, because the framers were not focused on the questions that are critical today.

To be sure, founding-era history might be a bit useful in the second way, as evidence of what is desirable institutional behavior during emergencies. Perhaps the weaknesses of the national government under the Articles of Confederation show that an alliance of states acting through a legislative council can’t handle a truly national security crisis. But no one alive today seriously proposes that anyway, so that information is of low value. However, as one moves through American history closer to the present, the value of history as information increases, and historical examples accumulate. Taking into account the Civil War, World Wars I and II, the early Cold War, and the post-9/11 period, there is some information about what the presidency, the Congress, and the courts ought to do during emergencies. As Marty said in a different comment, perhaps the accumulation of historical examples embodies a kind of “collective wisdom,” though this seems a bit ambitious and too Burkean for my taste. More soberly, it just gives some information about or evidence of relevant propositions, such as that there are cycles of deference to the executive during emergencies, that these cycles do not generally stick (civil liberties bounce back when the cycle has run its course), and that executive government during emergencies has brought us through several major crises, although with clear abuses along the way. This evidence is hardly conclusive, but it is something; and if we lack lots of other good evidence, it might be decisive.

But what I most want to emphasize is that history is also relevant in a third way, as showing what is politically possible (whether or not desirable) during emergencies. Ought implies can; those who want to say that Congress or the courts should be less deferential than they historically have been during emergencies need to show, first of all, that less deference is politically possible. I am not at all sure that this can be shown, or that it is true. The pressures that cause Congress and the courts to defer to the presidency during emergencies are powerful; there is a kind of inevitable logic to Justice Jackson’s observation in Korematsu that “courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint.” This point generalizes beyond military orders and Korematsu. In an earlier post I brought up the recent action of the Democratic Congress in voting the administration further surveillance authority, despite the administration’s lack of credibility. If the executive is warning of terror attacks that might be prevented by changing a relevant legal rule, what else can legislators realistically do?

So my compound question to Marty and others is: could things have been different, in a realistic political sense rather than a logical sense? Can we identify an emergency in, say, the past century in which we can realistically imagine Congress or the courts being substantially less deferential than they actually were? Can we really imagine that the World War II Congress would not have ratified Roosevelt’s internment order, or that the Supreme Court could have decided Ex Parte Quirin differently than it did? Of course counterfactual claims are tricky, but implicit counterfactuals already underpin oft-heard claims that Congress or the courts should (and thus could) have acted differently in past emergencies. My suspicion is that the more deeply we understand the historical conditions in which institutions acted, the more we will think that great deference to the executive in America’s historical emergencies was politically inevitable. And if so, the many commentators (not necessarily those participating here) who suggest that Congress or the courts should have acted differently in the past may be whistling in the wind.

Operationalizing the Deference Thesis: Boundary Uncertainty and Other Difficulties that May Arise

by Bobby Chesney

[Bobby Chesney is an Associate Professor at Wake Forest University School of Law, and the Chair of the AALS Section on National Security Law. He is the author of the forthcoming article Disaggregating Deference: The Judicial Power and Executive Branch Treaty Interpretations (Iowa Law Review 2007)]

As Adrian noted yesterday in his post “First-Order and Second-Order Judgments,” he and Eric state clearly in the book that “[t]he deference thesis does not hold that courts and legislators have no role at all.” The question thus is not whether the courts and Congress are to be disabled from checking the executive branch, but rather the extent to which their checking capacity will be limited. Significantly, Eric and Adrian concede that the extent to which deference should increase during emergencies “is always a hard question,” one that “depends on the scale and type of the emergency.” Having said that, however, they note that as a general proposition the pattern of past practice suggests “very great” levels of deference are given to the executive during emergencies, and they conclude that this pattern should be continued in the current climate of mass casualty terrorism threats.

I tend to agree with the comparative institutional-competence premises that undergird this theoretical framework, and accordingly I also agree that in many if not most security-related contexts a substantial degree of deference should indeed be afforded to executive branch judgments relating to security policy. But at the risk of jumping the gun on our subsequent discussions (I gather we are to focus on the theoretical framework for now, but will engage particular applications of the deference thesis soon enough), I want to articulate a trio of concerns that arise when one considers the practical operationalization of the substantial-deference precept.

My first concern has to do with boundaries. While some executive policies or actions relatively clearly fall within the category of security-related matters to which substantial deference would apply, the precise boundaries of that category are sufficiently uncertain to give me pause. Does the principle extend to some or all aspects of immigration policy, for example?

Perhaps the boundary concern can be set aside on the ground that, by definition, it fails to speak to core applications of the deference thesis. Even so, the very notion that there are distinctly marginal and core applications suggests that policies and actions to which the thesis might be applied vary by matters of degree in their relationship to security concerns. If that is correct, it seems to me that we should be wary of a one-size-fits-all approach to deference; the grounds for deferring may be stronger in some contexts than others, and as a result the degree of deference afforded arguably should be calibrated accordingly.

That brings me to my third concern, which has to do with the practical implementation of the deference concept (whether applied uniformly or on a sliding-scale). How precisely do we operationalize any commitment we might have to strong deference? Strong deference is not binding deference in this model, and thus it necessarily remains open for a judge to break with executive preferences in some particular cases. It is difficult, however, to put into words the triggering conditions under which it would be proper for a judge to do so. This does not mean that the strong-deference obligation has no bite, of course, but it does increase the probability that substantial deference will mean different things to different actors, or be implemented by them in different ways, even when confronted with comparable policies or actions. Indeed, something very much like that can be said with respect to the very muddled record associated with the implementation of the doctrine of judicial deference to executive branch treaty interpretations. I’ll try to say a bit more about this later in the week as we turn to the particular applications of the deference thesis that Eric and Adrian offer in the book itself.

Psychologists and Interrogations

by Kevin Jon Heller

The Founders

by Eric Posner

Let me say a few general words about one of Lou’s points, as endorsed and restated by Marty in his comment: “First, the Framers had seen up close what can happen when too much “emergency” power is concentrated in the executive (short answer: it wasn’t pretty), and therefore established substantial checks (mostly structural, but, esp. in the Bill of Rights and laws of war, also substantive) to prevent that from happening here.”

I’d like to explain why we don’t say much about the founders in our book, which was not inadvertent.

The writings of the founders are interesting for what they say about their times. These writings also identify some of the basic problems, tensions, and tradeoffs of constitutionalism, though these are all commonplaces today. It is understandable that people continue to honor the founders, read their biographies, and (in academia) occasionally read their writings. The founders belong to a very select group of practical politicians who both thought intelligently about long-term issues of governmental structure and could write clearly about their ideas, and, of course, they managed to found a relatively humane (putting aside slavery) and advanced (ditto) constitutional order that lasted more than seventy years, or maybe more than 200 years, depending on how you think about the post-Civil War settlement. About few other politicians can one say something remotely similar. But the claim that their writings can provide useful guidance about presidential power today defies common sense. The founders wanted a stronger executive than had existed under the Articles of Confederation, but not an executive that was too strong, and they all had different ideas about what too strong or too weak meant. As guidance for today, where circumstances are unimaginably different to boot, this is worse than useless.

(Gary Lawson has written a paper called “Ordinary Powers in Extraordinary Times: Common Sense in Times of Crisis,” 87 Boston University Law Review (2007) (forthcoming), which argues that our theory is consistent with the original understanding. I don’t know whether he is right or not, but the more important point for present purposes is that it illustrates the chronic indeterminacy of arguments based on founding-era materials.)

This type of preoccupation with the founders and what they would do today, reminds me of a science fiction book that I read as a child, I think it was The Foundation Trilogy by Isaac Asimov. If I remember correctly (and I might not), the premise of this book was that a great statistician had founded a new republic, and, using his statistical skills, had predicted all of the problems it would face for many years into the future, and how these problems could be solved. So whenever the republic’s leaders faced a problem, they needed only to play the video that the founder had stashed away somewhere. (For a reason that escapes me, they couldn’t play the video or portions of it until a crisis was upon them.) I like to think that Asimov was teasing constitutional lawyers, biblical literalists, and others of this ilk (and it is the same ilk, in terms of habits of mind, I think) who believe that they can solve today’s problems by examining an ancient text written by an all-seeing author.

I realize that when one makes constitutional arguments to courts one needs to dress up one’s arguments with citations to the framers (though I find it extremely unlikely that any of these arguments have had any influence on courts in at least the last one hundred years). But I don’t understand why people would think this would be useful for academic debate. If academics on both sides of the issue could agree to debate the presidency, emergency powers, and the constitution without mentioning the framers, this alone would count as progress.

Is the Empirical Irrelevant?

by Kevin Jon Heller

First-Order and Second-Order Judgments

by Adrian Vermeule

There is an issue that comes up repeatedly in discussions of national security law. Suppose we define “law” broadly to include the optimal allocation of institutional authority to establish and execute national security policy. On what grounds can academic commentators who lack expertise in national security policy argue for any particular allocation of such authority, in particular circumstances? If one is agnostic about the merits of first-order policies that one cannot judge, for want of expertise, how can one make a second-order argument that some institution is relatively more likely to make “good” national security policy? To know what counts as “good”, wouldn’t one have to judge the merits of first-order policies? In our book, Eric and I are agnostic about the merits of many national-security policies the executive has pursued during emergencies, in particular the post-9/11 emergency. But we urge the second-order claim that the executive does and should receive even more deference during emergencies than during normal times. Is this inconsistent? (Lou Fisher’s post can be read to suggest that it is).

On closer inspection, however, this looks like a pseudo-puzzle. In fact it is routine to make second-order judgments when, and indeed because, one cannot make first-order judgments. I may have no idea whether the diet prescribed by my Harvard-trained doctor is superior to that suggested by the diet guru Dr. Atkins; but I can make a coherent judgment to trust the former’s credentials and expertise over the latter’s. Where one cannot judge outputs or results, one can still judge inputs, such as training, resources and expertise. Moreover, it is often easier to make relative judgments than absolute ones. (How tall is the Sears Tower? I have no idea. But I am confident it is taller than the Washington Monument, whose height I do not know either). And the thesis we defend in our book is entirely relative: as one moves from normal times to emergencies, the executive’s comparative advantages increase and other institutions should shift more authority to the President. “The deference thesis does not hold that courts and legislators have no role at all. The view is that courts and legislators should be more deferential than they are during normal times; how much more deferential is always a hard question and depends on the scale and type of the emergency.” (Terror in the Balance, p. 6). Because it is so hard to know how much deference is correct, we plump for the historical level of deference, which has been very great during emergencies; those who would argue that the historical level has been too great have a kind of burden of proof.

Our particular second-order judgment about the relative benefits of shifting power to the executive during emergencies may be right, or wrong, on the merits. But there is nothing inconsistent in combining (1) agnosticism about first-order judgments of national security policy with (2) clear second-order judgments about relative institutional capacities. Indeed, to the extent (1) is correct, (2) is all the more pressing.

Executive Motivations, Credibility and Distrust

by Adrian Vermeule

A crucial issue in this conversation is that of presidential motivation. Explicit or implicit claims about presidential motivations underpin many worries about increased deference to the executive in emergencies. Yes, the executive’s capacities may be impressive, but its motivations are suspect (the suggestion often runs). Thus Kevin Jon Heller suggests, en passant, that the executive’s motivation is to maximize its power. What to make of this suggestion, and of the general problem of distrust of the executive?

Of course, the “executive” is to some extent a they, not an it, although it is plausibly a more centralized and hierarchical institution than the American Congress, which displays fairly weak party discipline. To clear away this issue, let us focus on the President, ignoring that in practice the President is constrained by the need to coordinate many different executive officers, offices and institutions. What motivates Presidents? No single thing. Different presidents have different motivations, and whatever their motivations, they are constrained in various ways by political circumstances. In Chapter 1 of the book (pp. 53-57), we recount the cross-cutting motives that Presidents and other executive actors hold, including the desire for power, the converse desire to duck responsibility, the desire to advance preferred ideologies (which may or may not include executive aggrandizement), and even the desire for leisure time. Following an important paper by my colleague Daryl Levinson (“Empire-Building Government in Constitutional Law”, Harvard Law Review 2005), we doubt there is any sense in which power-maximization is the dominant presidential motive, let alone the sole one. Moreover, Presidents cannot always act on their motives; they are bound down by political and reputational constraints, such as the need to please both a political party and the median general-election voter (for first-term presidents) or to please the historians (for second-term presidents). Some presidents are power-maximizers, some are not, and power-maximizers may be constrained to act as if they were not, depending upon political circumstances.

What is true, as Heller’s post exemplifies, is that distrust of presidential motivations is a real obstacle to interbranch and bipartisan cooperation in the war on terror. In other wars, such as the Civil War and World War II, presidents used credibility-generating devices to enhance public trust; thus both Lincoln and Roosevelt placed members of the opposition political party in their war cabinets, and President Clinton made a moderate Republican his Secretary of Defense. The current Bush administration can very plausibly be faulted for failing to employ these and other institutional devices for generating credibility and trust (devices that Eric and I discuss at length in “The Credible Executive,” University of Chicago Law Review 2007). These devices have their costs – the price of generating credibility is that the President surrenders some control over policymaking to political competitors — but for a President like George W. Bush whose credibility is exceedingly thin, the benefits would be greater still.

All that said, however, we ought not overlook a positive point: in an uncertain security environment, legislators often have overwhelming incentives to transfer new powers even to a President with very little credibility. The Democratic Congress recently gave the administration a temporary enhancement of its surveillance authority, in part because the administration warned of an increased risk of terror attacks. The legislators’ political calculus seems to have been that even if the warnings could not be verified, and even if there was no reason to trust the administration’s claims, still the warnings might be true, and the political risks of rebuffing them were too great; what if an attack actually occurred and legislators were blamed for their inaction? Executive credibility is important, but it is not the only thing that is important. The circumstances of emergency politics will often produce legislative deference even to a noncredible executive in matters of national security.

Online Symposium: Presumptive Validity of Executive Emergency Action?

by Louis Fisher

[Louis Fisher is with the Law Library of the Library of Congress. He is the author of numerous books, including Presidential War Power (2d ed. 2004).]

In their book, “Terror in the Balance” (2007), Posner and Vermeule make a straightforward defense of placing emergency power in the President and advise federal courts and Congress not to interfere. I think their first two sentences in the Introduction are largely on point: “When national emergencies strike, the executive acts, Congress acquiesces, and courts defer. When emergencies decay, judges become bolder, and soul searching begins.”

I am less confident about this assertion: “We maintain that the civil libertarian view, in any version, rests on implausible premises and is too weak to overcome the presumptive validity of executive action during emergencies” (p. 5). Presumptive validity? Why is that their starting point? Truman thought the Chinese would not intervene if he went north into Korea. Wrong. LBJ escalated the war in Vietnam on the basis of a second attack in the Tonkin Gulf that did not happen. Bush II justified war against Iraq on the basis of many assertions (Iraq-al Qaeda link, uranium ore, aluminum tubes, mobile labs, drones, chemical and biological weapons, etc.) that were false. I see no grounds for presumptive validity or any automatic trust in superior expertise that resides in the executive branch.

As a second point, I find it curious that the two authors regularly claim a lack of competence or expertise on their part to second-guess decisions by the executive branch in time of emergency. As they say, “as lawyers, we do not have any experience regarding optimal security policy” (p. 6). “We have no opinion about the merits of particular security measures adopted after 9/11. . . . We hold no brief to defend the Bush administration’s choices, in general or in any particular case” (p. 9). They hesitate to criticize the internment of Japanese-Americans in WWII “on the merits, because we lack the necessary expertise to judge, even in hindsight, whether the action was justified, all things considered” (p. 113). Without explaining why, they later say that the Court’s decision was “notorious” (p. 121). Why can they make a decision on the merits in one case but not the other?

If they are that agnostic, on what grounds do they take presidential power as of presumptive validity, compelling other branches to defer? Nowhere do they explain, and especially is that so in terms of the values and structures behind separation of powers, checks and balances, and the fear of concentrated power that are so basic to the U.S. Constitution.

They fault the Supreme Court in Rasul for challenging the position of the executive branch that Guantanamo provides immunity against any lawsuit brought by detainees. They find very “dubious” the Court’s failure to follow its 1950 holding in Eisentrager (p. 258). They’re not neutral here. Why not find “dubious” the Justice Department’s argument? The detainees in Eisentrager had been charged and convicted. The detainees in Guantanamo had not been charged and convicted. Why show intellectual independence and skepticism against the judiciary but not against the executive?

Some Initial Thoughts on Posner and Vermeule

by Kevin Jon Heller

Online Symposium: Opening Remarks

by Eric Posner and Adrian Vermeule

[Eric Posner is Kirkland and Ellis Professor of Law at the University of Chicago School of Law. Adrian Vermeule is professor of law at Harvard Law School]

Our thanks to Opinio Juris for organizing this symposium. The market has become crowded with post-9/11 books and articles discussing the role of courts in the war on terror. Most of this work goes after the Bush administration for violating civil liberties; after Congress, for giving Bush what he wanted; and after the courts, for (with a few exceptions) standing out of the way. The deferential attitude of the courts and the legislature was predictable, and we predicted it in our earlier work on which the book was based; but, in this, we were hardly alone. The pattern of deference to the executive during emergencies is a clear one in American history, and many others had noticed it. What makes our book unusual is that we defend this pattern (what we call the “deference thesis”). Our defense rests on an extremely simple institutional analysis that has two pieces. First, rights and liberties are not absolute; they are traded off against other things people care about, such as security, a tradeoff that is largely conducted in everyday legislative, judicial, and executive action (the “tradeoff thesis”). Second, during emergencies the relative institutional competence of the executive places it in a better position to respond to threats, and so Congress and the courts ought to defer to the executive more than in normal times. The bulk of the book is devoted to criticizing the stock methods for rejecting the deference thesis, including the panic theory (only judges can prevent the executive from panicking, or from exploiting public panic for nefarious ends), the ratchet theory (judges should reject short-term constraints on civil liberties, even if justified by a threat, because of their long-term ill effects), and the democratic failure theory (emergency-related measures are especially likely to be undemocratic). We argue that these theories, which are often rhetorically effective, and are endlessly repeated both in academia and the media, do not survive scrutiny.

In this opening post, we want to briefly address the role of the idea of “emergency” in our work, and the literature on post-9/11 legal theory. A common criticism of our view goes like this. “Even if we might agree with you that the other branches should defer to the president during an emergency, we are not willing to accept the possibility that the emergency will never end. And who determines when the emergency ends? If the president, what prevents him from maintaining the state of emergency indefinitely?” We think that much of the literature does trade on an ambiguity in the meaning of emergency, namely, are we in a state of emergency as long as al Qaida or a similar hostile organization remains in existence (in other words, forever), or are we in a state of emergency only in the immediate aftermath of a disastrous attack such as the 9/11 attack itself, or some future detonation of a nuclear bomb in Manhattan or Washington, D.C. (meaning not as of now, mid-August 2007). The former seems unacceptable, and the latter case suggests that we should have long returned to normalcy, and yet Congress keeps giving the president more powers – even the new Democratic Congress, which recently expanded the executive’s surveillance authority, at least for the time being.

The dichotomy is a false one, as can be illustrated with reference to another approach, that of Bruce Ackerman, in his article, The Emergency Constitution. Ackerman proposes that the president be given the unilateral power to declare an emergency; once he makes that declaration, he has enhanced executive powers, including, apparently, the power to detain without charges. Ackerman might be seen to embrace the second view, but in fact that is not the case at all. By giving the president the power to declare an emergency, he greatly expands the president’s powers, and his emergency statute or constitutional amendment would be implemented now, and left on the books, indefinitely, as far as we can tell. So Ackerman simply proposes to enhance the executive’s power; that is all. He does not want to enhance the executive’s power as much as we do, and he is a lot more formalistic about it, requiring an elaborate system of rules and procedures. But in the essentials, our views are similar.

So what we need to see is that 9/11 does not, or not only, justify giving the president temporary emergency powers. What it has done is effect a permanent change in the Constitution, a permanent (at least until conditions change dramatically yet again) enhancement of executive power at the expense of Congress and the judiciary. The reason for this constitutional change is very simple: the public is more vulnerable to a devastating terrorist attack today than it has been in the past, and the executive is in the best position to protect the public. The change is due to changes in technology and global conditions. In the past, terrorists could not reach the United States as easily as they can today, and they did not have the technological means to kill as many people as they can today. And when the United States was not a global player, foreigners had little incentive to commit terrorist acts on American territory—even at times when international terrorism was very common.

The answer to the question above, then, is that the “emergency” (in the broad sense) never ends, though perhaps (we’re not sure) the 9/11 emergency itself has ended; the Supreme Court’s Hamdan opinion can be read in that light. This means that the entire armory of war-on-terror techniques—spying, detaining, coercive interrogating, procedurally limited trying of suspects—will be used indefinitely. Certainly, we are comfortable making this prediction. We do not think a President Clinton or Obama with Democratic majorities in both houses will cut back on the FISA amendments, the MCA, the Patriot Act, or any of the war-on-terror practices of the Bush administration. The question, then, is not how do we know whether to trust the president when he says the emergency continues, but how do we know whether to trust the president when he says that he is using his enhanced powers against terrorists (or people who can reasonably be suspected of terrorist activities) and not against ordinary people. This question is not really new, however. As long as the presidency exists, people have wondered how we can trust the president to use his powers (for example, his power to command troops) in an appropriate manner. This is just a version of the “who guards the guardians” question, and the answer seems to be just a complicated mixture of electoral control, limited public surveillance of government activities, political competition, and so forth.

The costs of a powerful executive have been endlessly described, and there is no reason to repeat them here. It is enough to recognize that these costs are real. But no one has come up with a serious alternative to an institutionally dominant executive, and, in practical political terms, the issue was settled more than one hundred years ago. Given our executive-dominated system, the only question is whether, on the margin, the executive’s power should be enhanced or reduced when new challenges to national security arise. Unless one can make a plausible case that the presidency was too strong or just strong enough before 9/11 (and we have not seen such a case), the answer is clear.

Online Symposium: An Introduction to Part I of

by Roger Alford

Online Symposium: Eric Posner and Adrian Vermeule’s “Terror in the Balance”

by Roger Alford

Opinio Juris is very pleased to host for the next few days an online symposium on Eric Posner and Adrian Vermeule’s new book, Terror in the Balance recently published by Oxford University Press.

The format for this symposium will be familiar to those who followed the symposium we held three weeks ago on Michael Ramsey’s book, The Constitution’s Text in Foreign Affairs. We will begin with a few posts introducing the broad outlines of the book. We will then have comments from experts who will address various aspects of the book. Professors Posner and Vermeule will then respond to any of the posts as they deem appropriate. Because the book is clearly divided into two parts—the first offering broad theories of the security-liberty tradeoff and the second applying the tradeoff theory to specific contexts—we likewise will divide our discussion in a similar fashion. We will start with the theoretical arguments the first day or so and then focus on specific applications—such as torture, speech, due process, and military detention in subsequent days. We will then provide some concluding thoughts near the end of the week and offer Posner and Vermeule the final word.

In addition to Eric Posner and Adrian Vermeule, our other guest participants in this symposium include two national security experts: Louis Fisher of the Library of Congress and Professor Bobby Chesney of Wake Forest University School of Law. Of course, the permanent contributors to Opinio Juris will also add their reflections on the book.

We look forward to an exciting symposium and warmly welcome Eric Posner, Adrian Vermeule, Lou Fisher and Bobby Chesney to Opinio Juris.

From the “It Seemed Like a Good Idea at the Time” Department

by Chris Borgen

Are We Heading Toward a North American Union? Not Yet.

by Julian Ku

Extradite Me — Please! (Updated)

by Kevin Jon Heller

Move Over Angelina Jolie….Ricky Gervais Goes on Humanitarian Mission to Africa

by Peggy McGuinness

Peru vs. Chile – The ICJ Awaits

by Julian Ku

The End of the European Community?

by Duncan Hollis

Do You MissionFish?

by Roger Alford

New Essay on SSRN

by Kevin Jon Heller

Celebrating the Benin-Niger ICJ Judgment (By Reading It Aloud)

by Julian Ku

A Swiss Backlash Against International Law?

by Julian Ku

Some Real “Sovereigntists”: U.S. Presidential Candidates Ron Paul and Dennis Kucinich

by Julian Ku

The Most Offensive Advertisement Ever

by Kevin Jon Heller

Facing Russian Threat, Canada Militarizes the North Pole

by Julian Ku

Critical Elections in Sierra Leone

by Kevin Jon Heller

Softwood Lumber Goes to LCIA Arbitration

by Roger Alford

A Fair and Balanced Discussion of the Military Commission Act of 2006?

by Julian Ku

Jury Trials and Choice of Law in ATS Cases

by Roger Alford

Behind the Scenes of the Darfur Referral — and Thoughts on the ICC’s “Gravity” Requirement

by Kevin Jon Heller

Human Rights Without Foundations

by Roger Alford

Kristof’s Advice to President Bush on Darfur: Guess What’s Missing?

by Julian Ku

Terrorism Claims Require a U.S. Nexus

by Roger Alford

Darfur War Crimes Suspect to ICC: Come and Get Me

by Julian Ku

ICC Submissions and the “Continuing Violation” (Non-)Doctrine

by Kevin Jon Heller

“What’s Canada For?” To Do Good in the World, Says Michael Byers

by Julian Ku

Australian Aborigine Wins Landmark Case

by Kevin Jon Heller

French Court Frees Rwandans Sought by ICTR

by Julian Ku

Opinio Juris Symposium: In Conclusion

by Michael Ramsey

Opinio Juris Symposium: Additional Thoughts on the President’s Military Response Power

by Michael Ramsey

Can Russia “Discover” the Arctic Sea?

by Julian Ku

Opinio Juris Symposium: Thoughts in Response to Professors Spiro and Ku

by Michael Ramsey

Opinio Juris Symposium: The Temptation of a Coherent Constitution

by Martin Flaherty

I am happy that any disagreement Professor Ramsey and I have regarding history is more a matter of degree than of kind. That said, the matter of degree may well be greater than even he acknowledges. To that extent, I believe he may oversell a number of the ostensibly textual points he makes in his work.

The agreement in kind relates to the potential ambiguity of historical sources. It is indeed refreshing – and doubtless a source of Professor Ramsey’s own substantial historical research – for a legal scholar to concede that history may frequently produce answers every bit as contradictory, unclear, and messy as other sources of constitutional interpretation. I further agree that the use of “Laws” in Article II, section 3, and the use of “Laws” more generally in the Constitution, resisted a public consensus in any individual case, much less anything approaching a consensus across the board. Conversely, I myself concede that in certain instances history can yield a sufficiently clear, general understanding at the time a particular text was ratified. Here as well, Professor Ramsey’s reliance on the “Declare War” Clause hits the mark. In line with Treanor and many others, yet contrary to Yoo, I too read the relevant sources as confirming the view that the Clause means that Congress must initiate hostilities.

Yet there remains the difference in degree. Decades of poking around in these materials convince me that cases in which a dominant or prevailing public understanding emerges as applied to modern controversies are few and far between – especially in the context of separation of powers. I do not necessarily go as far as Justice Jackson in Youngstown, who famously declared that what the Founders thought about specific separation of powers issues are “as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh,” that is, never clear. But I tend to come close.

At the risk of extending an overlong debate, a case in point is Professor Ramsey’s central reliance on the term “executive power.” His basic contention remains Hamiltonian, or at least consistent with what Hamilton argued briefly in passing. “Executive power,” the argument goes, included a general conception of foreign affairs power as generally understood in the 18th century. It then follows elegantly that the Constitution’s text becomes marvelously coherent. Unless otherwise specified, the default position in foreign affairs controversies is that executive assertions prevail. To his credit, Professor Ramsey tempers this key assertion with a generous view of instances in which the Constitution brings in the other branches, especially the Senate. The problem with all this is simply that beyond its core meaning of “implementing laws,” executive power commanded no general agreement. To the contrary, almost no one even made the specific argument that the term included foreign affairs powers. Sadly, forests have been felled and global warming advanced by detailed debates between myself and Curtis Bradley on one side, and Professor Ramsey and Saikrishna Prakash on the other. My point here is less about who is right or wrong. It is, rather, that I believe the exchange at a minimum indicates that the certainty of history does not go anywhere as far as Professor Ramsey generally assumes.

To this I would add a more nearly textual point, though one rooted in historical reality. Professor Ramsey’s constitutional approach may flirt too much with what Christopher Eisgruber refers to as the “aesthetic fallacy.” By this Eisgruber – in the spirit of Henry Monaghan, oddly enough – means the view that the Constitution is a wonderfully coherent document in which nearly all language and structure clearly relates to each other, and that if we just think about it hard enough, we too will appreciate its elegance and clarity. A historian, conversely, presupposes that this is a document chock full of compromises hammered out piecemeal by men with very different backgrounds, all of whom were sweating in wool clothing during a hot Philadelphia summer wanting to get home sooner or later. One would expect, in other words, that the Constitution would be filled with certain gaps, inconsistencies, and surprises notwithstanding a general elegance.

The allure of an aesthetically pleasing Constitution is seductive. It makes for a powerful theory, one reason why I think that Professor Ramsey’s book will be influential. The appeal of such a Constitution nonetheless leads interpreters astray. Nowhere is that more true than where the quest for textual coherence tends to eclipse the historical complexity that should give anyone pause before embracing global coherence in the first place.

Goldsmith on Bridging the US-European Divide on Terror

by Peter Spiro

Opinio Juris Symposium: The Textualist Case for Congressional Control Over Responses to Military Attacks

by Andrew Kent

One of my major purposes in discussing Professor Ramsey’s treatment of the scope of the president’s power to respond to attacks was to suggest that here, on this topic, his book may not meet its goal of giving dispositive interpretive weight to the written constitutional text as understood by Americans at the time of ratification. To the extent, then, that my initial post savored of “abstract intent-oriented reasoning” rather than textualist originalism, I failed to explain myself clearly enough.

As I said in my earlier post, I find Professor Ramsey’s analysis of the President’s power to respond to attacks too focused on the Declare War Clause. Because he interprets “declare” to mean only that Congress may begin war, responding to already existing warfare against the United States is not a declaration and therefore not a congressional prerogative. His “executive power” default rule means this power must be wholly the President’s. It can be exercised offensively and “without limitation,” Professor Ramsey suggests, unless Congress can pass a restrictive statute by a veto-proof margin.

But, as I suggested before, this analysis downplays other relevant clauses of the Constitution. In reading the Constitution on this issue, my background assumption is that a nation attacked has a full spectrum of possible responses, ranging from doing nothing to using all of its resources to obliterate the enemy’s homeland. Deciding whether and how to respond is a policy question of substantial moment. In the eighteenth century, there were several common ways of responding to attacks and other serious provocations by another country, each of which would be located somewhere between the poles of my spectrum of potential responses. A nation could strike back by issuing licenses to private seamen to attack the aggressor’s shipping. This is the Marque and Reprisal Clause, found in Congress’s Article I. A nation could impose an embargo or other retaliatory commercial sanctions. This is Congress’s Foreign Commerce Clause. A nation could denounce treaties of amity, alliance or commerce previously contracted with the aggressor. This, as I suggested in a recent article, is Congress’s power under the Law of Nations Clause (giving power “to define and punish . . . offences against the law of nations”). A nation could refuse admittance to, or expel once admitted, individual subjects of the aggressor nation. This is Congress’s power over naturalization and, as Necessary and Proper to implementing that, immigration and deportation. A nation could authorize its public warships to seize enemy warships or private shipping. This is Congress’s power to make rules concerning “captures.” If the enemy’s conduct violated international law, Congress could use Article I powers (under the Law of Nations and Inferior Tribunals Clauses) to institute criminal prosecutions against captured enemies.

These are all powers to calibrate and moderate, for policy reasons, the United States’ response to provocations. These powers have both positive and negative components. They authorize responsive measures; but they are also powers to decide not to respond to hostilities by full-scale warfare. These powers are all given to Congress. (With one exception: another common way a nation might retaliate short of warfare – by expelling the aggressor’s diplomats – is pretty clearly a presidential power, either implied from the duty/power to receive foreign ministers or found, though Professor’s Ramsey’s reasoning, in the Vesting Clause.)

Congress’s prerogative to make the policy decisions about how to measure and target the nation’s responses to hostilities is, I believe, clearly found in the Constitution’s text. Under Professor Ramsey’s theory, these cannot then be within the “executive power” of the President. Putting aside that textual theory and relying just on common sense, it is not hard to see why this must be true. These congressional powers would be substantially or wholly vitiated if the President could decide on his own that the proper response to an attack was full-scale offensive warfare. It is not an answer to say that Congress could always limit the President’s discretion by statute and therefore protect its responsive powers. Because he is continually in office (while Congress has lengthy recesses), and is a single and hence fast decision-maker, the President could react faster than Congress to an emerging crisis and outrun Congress’s ability to pass a restrictive statute by a veto-proof margin.

Adding up all of these congressional powers to calibrate hostilities, joining them to the Declare War Clause, and giving them the fulsome scope suggested by the Necessary and Proper Clause, we have, I believe, a nearly complete textual vesting in Congress of the power to decide how to respond to enemy attacks. Several parts of the Constitution – the Commander-in-Chief Clause; the duties to protect implied by President’s oath, the Take Care Clause and the nature of the office; and the fact that the Constitution contemplates Congress but not the President taking recesses – suggest to me that the President has textual authority to repel hostilities launched against the United States. And when the speed of events and a congressional recess mean that Congress cannot be consulted in time, the President’s would have authority to move beyond the strictly defensive and take effective offensive actions designed to preempt further enemy attacks likely to occur in the near future. But the nearly-full spectrum of responsive powers given to Congress, and the fact that the Constitution contemplates the President convening special sessions of Congress, suggest to me that the President has a constitutional duty to convene Congress and take its direction as soon as possible. Until that time, the President has a constitutional duty (Take Care Clause) to protect the nation in a way that preserves as much as possible the constitutional discretion of Congress to decide how to calibrate the nation’s response to attack.

Would President Obama, if he were to take office in 2009, have constitutional authority – independent of any authorizing statute like the post-9/11 AUMF – to attack al Qaeda forces holed up in Pakistan, with or without the consent of the Pakistani government?

Opinio Juris Symposium: Original Meaning Comes Up Short in Foreign Relations Law

by Peter Spiro

Justice Alito Teaches the War Powers Clause

by Roger Alford

Opinio Juris Symposium: Are Non-Self-Executing Treaties Unconstitutional?

by Julian Ku

Opinio Juris Symposium: Can President Obama Attack Pakistan?

by Julian Ku

Opinio Juris Symposium: A Clarification on the President’s Power to Respond to Attacks

by Michael Ramsey

Opinio Juris Symposium: Thoughts in Response to Professors Flaherty and Kent

by Michael Ramsey

Opinio Juris Symposium: Can History Determine Textual Meaning?

by Martin Flaherty

[We are pleased to have Martin S. Flaherty as a second participant in the discussion today. Professor Flaherty is the Leitner Family Professor of International Law at Fordham Law School and a Visiting Professor at the Woodrow Wilson School of Public & International Affairs at Princeton University. A widely published scholar in the fields of constitutional law and history, foreign relations, and international human rights law, we are thrilled to have his comments here today.]

Mike Ramsey’s book, The Constitution’s Text in Foreign Affairs, will without question be a major and outstanding contribution to the field of U.S. foreign affairs law. The field itself has never been more important yet is only now benefiting from new, comprehensive, theoretical monographs. The current importance of U.S. foreign affairs law needs little elaboration. Iraq, Afghanistan, the “Global War on Terror,” ongoing detentions in Guantanamo Bar, not to mention globalization, the International Criminal Court, and human rights means that judges, lawyers, and citizens will need to examine this subject as never before. There are, however, almost no works that attempt to present a unified theory of foreign affairs law in the manner commonly seen on the domestic front. Probably the closet thing remains Louis Henkin’s magisterial Foreign Affairs and the Constitution, but his volume is more in the nature of a treatise than a work of constitutional theory.

Ramsey’s approach is original. As he indicates, the conventional wisdom among scholars who agree on little else is that reliance on the Constitution’s text to resolve foreign affairs law disputes is all but quixotic. Ramsey nonetheless offers an approach which points toward answers in an array of current and longstanding disputes that relies on text to a great extent. That said, he admits he must also rely upon history, if only because the meaning of various key texts has been lost. Nonetheless, his reliance on text appears always to remain the point of departure and the book never loses cite of its textual moorings notwithstanding its excursions into history.

The theory that results from this approach is coherent, if ultimately problematic. A certain degree of foreign affairs scholarship, to be sure, also reflects a certain coherence, whether Harold Koh’s emphasis on Congressional power or John Yoo’s focus on executive authority. Much if not most foreign affairs scholarship nonetheless tends to be piecemeal. Even so great a theorist as John Hart Ely, for example, in War and Responsibility did not offer a unified vision of U.S. foreign affairs, but instead concentrated on one aspect, the war power. Ramsey’s book, by contrast, applies an integrated separation of powers model across the board to areas ranging from detention, treaty termination, executive agreements, federalism, war, and torture. Whether one agrees with its prescriptions or not (and in many cases I don’t), it must be said that the theory he constructs rests upon concept that is readily grasped yet wide-ranging.

The results that Ramsey’s approach indicates are surprisingly balanced, both in the context of foreign affairs scholarship and politics more generally. Many of his doctrinal conclusions would enervate “liberals.” The President, for example, would be able to fight undeclared “defensive” wars, to undertake even provocative actions short of war, and to terminate treaties under their terms without Senate approval. Likewise, the powers of the states would not be affected by executive agreements, presidential orders, and customary international law. Yet many of Ramsey’s prescriptions would likely alienate “conservatives.” The President’s “executive” foreign affairs authority would have to be tethered to some enactment, whether treaty or statute. Thus, the President could not unilaterally seize steel mills, order detention or torture, or terminate treaties that did not so allow under their terms. In addition, Ramsey also largely defends a role for the courts in foreign affairs. Finally, the book rightly argues that the exercise of Constitutional authority abroad can be done only subject to the Constitution’s limitations on power, adjusted to various special circumstances overseas.

My major significant qualm about The Constitution’s Text in Foreign Affairs – and fair warning, it is significant — is its use of history.

Opinio Juris Symposium: The President’s Residual Power to Use Military Force

by Andrew Kent

[We are very pleased to have Andrew Kent’s participation in this online symposium on The Constitution’s Text in Foreign Affairs. J. Andrew Kent is an associate professor of law at Fordham University School of Law. Although he is new to the academy, Professor Kent has already published important works in the area of foreign relations law including “A Textual and Historical Case Against Global Constitutionalism”, 95 Georgetown L. Rev. 463 (2007) and “Congress’s Underappreciated Power to Define and Punish the Law of Nations,” 85 Tex. L. Rev. 843 (2007). ]

Like Professor Ramsey’s previous work, I found The Constitution’s Text in Foreign Affairs to be exceedingly thoughtful, careful, even-handed and provocative. I’m a huge fan of Ramsey’s work, including this book. Today’s format, however, suggests I should poke and prod and critique, not flatter. So I will use Ramsey’s discussion of the President’s power to respond to a state of war created by an enemy attack on the U.S. to raise some questions.

The Constitution’s Text argues that when Article II vested “the executive power” in the President, it transferred a knowable, definable quantum of what eighteenth century Americans would have understood to be discretionary power to act independent of the legislature in the realm of foreign affairs. But unlike in the British constitution, the model for many executive power theorists read by the American Founders, the U.S. Constitution gave several key pieces of executive power to Congress as a whole or the Senate, including the power to declare war, issue letters of marque and reprisal, and approve treaties. Ramsey argues that the best meaning of the Constitution is that these exceptional grants of executive power to other branches must be read strictly, and that all residual executive power, not given to Congress or the Senate, went to the President. Ramsey further argues that “declaring war” meant, to an eighteenth century audience, initiating hostilities in the first instance by either word or deed. The President cannot intentionally begin a war, then, when the country is at peace. But all other war powers not given to Congress remain with the President, Ramsey argues. This means, among other things, that when the U.S. is attacked by another country and a state of war thereby created, the President has independent constitutional authority to respond as he chooses.

On this issue, The Constitution’s Text follows through only partially on its textual method; it gives insufficient weight to the Constitution’s truly massive transfer of “executive” war power away from the American Executive. The Declare War Clause and Marque and Reprisal Clause are discussed at length but somewhat in isolation. Many other “executive” war-related powers, clearly granted to Congress by the Constitution, receive shorter shrift in the book’s discussion of force initiation responsibilities – the powers to raise and support armies and navies, make rules and regulations for the armed forces, make rules concerning captures, constitute courts (for condemnation of prizes of war or trial of enemy war crimes, e.g.), call out the militia, impose embargoes and other trade sanctions (Foreign Commerce Clause), and punish offenses against the law of nations. With the exception of the Commander-in-Chief Clause and treaty power, every single identifiable war-related aspect of eighteenth-century “executive power” named in the Constitution is in Article I, not Article II. Since war was, in bulk, given to Congress, and since the Necessary and Proper Clause is also in Article I, why isn’t it textually-structurally more plausible to read the Constitution as commanding the reverse of Ramsey’s default interpretive rule: war powers are congressional unless clearly given to the President?

A large part of Ramsey’s answer relies on the precise wording of the Declare War Clause. Because he interprets “declare” to mean only that Congress may begin war, responding to already existing hostilities is not a declaration and therefore not a congressional power. But this ignores other relevant clause. The Marque and Reprisal Clause authorizes responsive, defensive (as well as offensive) force. When the U.S. is attacked or molested, Congress may strike back by issuing licenses to private seamen to attack the aggressor’s shipping. What becomes this power if an enemy attack automatically triggers the Executive’s power to respond at will with whatsoever amount of force it desires? Congress’s power to calibrate national responses to provocation is lost. Similarly, Congress’s powers to authorize U.S. warships to “capture” foreign vessels and its power to lay embargoes and other retaliatory commercial restrictions – additional powers to respond to provocation in a measured and targeted manner – are substantially vitiated by Ramsey’s reading of the Declare War Clause. Moreover, Congress’s negative power to decide against force as a response to provocation – recognized as crucial by, for example, Washington, Adams, Jefferson, Madison, Marshall, Iredell, Monroe, Gallatin, Gerry, Knox and others – is gone. A complete textual-structural account of war powers must, I think, account for the significance of Congress’s powers to decide whether and when to use responsive force short of war, or even no force at all.

The Constitution’s Text slights illuminating judicial doctrine and post-Founding executive-congressional practice on this issue. Two Marshall opinions are on point. Brown v. United States (1814) showed that the Declare War Clause must be read in light of the Captures Clause. And Little v. Barreme (1804) held that congressional statutes authorizing only limited responses to enemy provocation bind the Executive. Notably, the executive order at issue in Little was an isolated instance where President Adams did not wholly defer to Congress to decide how to respond to France’s Quasi War against us. Similarly, the practice of President Washington in the face of Indian attacks on the U.S. and even formal declarations of war by Indian nations was to allow Congress to decide how to respond. Ramsey’s discusses but steeply discounts these precedents, for reasons with which I do not agree.

For example, he warns that using post-ratification evidence “carries its own caveats and dangers. Once the Constitution was ratified and its government began operating, American leaders developed personal, political, and institutional commitments to views not necessarily founding upon anything in the Constitution’s text” (p.74). Ramsey is particularly wary about any evidence of constitutional meaning from beyond the “immediate post-ratification experiences of 1789-1797” (75), apparently because it is distant in time from the Founding, giving more time for political etc. bias to accrue and linguistic usages to change. As a result, the Constitution’s Text consistently privileges the writings of Europeans who shaped the intellectual worldview of the Founding generation by writing about law, politics and governance before the Constitution was drafted (e.g., Blackstone, Locke, Grotius, Vattel, de Lolme, Montesquieu), over the directly expressed views of Founding generation Americans interpreting the actual Constitution after it was put into practice.

It seems to me, though, much easier and – hence ultimately more accurate – to understand and discount the potential biases of familiar American men (how many volumes do we have by and about Hamilton, Washington, Adams, Jefferson, etc.?) holding familiar government positions than it is to implement Ramsey’s preferred method: doing the difficult work of analysis, inference and translation required to, first, accurately understand eighteenth century British and European politico-legal concepts like “executive power,” “legislative power,” “declare” and “war,” and then understand how Americans assimilated them into their unique world view, and how their meanings would have changed as they were molded and rearranged into the wholly novel U.S. Constitution. Pre-Constitution concepts and language are, of course, vitally important tools of analysis. But not more important, I think, than post-ratification commentary and practice directly on point.

To understand the President’s power to respond to hostilities initiated by others, The Constitution’s Text devotes the same space to Englishman Richard Lee’s little known 1760 treatise on the international law regarding war-time seizures of shipping as it does to the actual practice of government under both the Washington and Adams administrations. If a rock-solid methodological commitment required this choice – say John Yoo’s sometimes-expressed claim that the Constitution’s legitimacy derives only from its adoption by the People in 1787-88, and therefore any post-dated evidence has little value – I could better understand Ramsey’s choice. As it is, he describes his project as attempting to determine the Constitution’s meaning to ordinary Americans at this time of ratification (vii, 8-9). Stated at this level of generality, this goal wouldn’t seem to require the choices about evidentiary weight made in The Constitution’s Text.

I have a few other issues with Ramsey’s discussion of the power of the President to respond to attacks:

Opinio Juris Symposium: Introducing “The Constitution’s Text in Foreign Affairs”

by Julian Ku

Opinio Juris Symposium: “The Constitution’s Text in Foreign Affairs”

by Julian Ku

Local Citizenship, No Matter Your Immigration Status

by Peter Spiro