Obsidian Wings

His Word Was Law

by hilzoy

I was out and about last night, so I didn't get to write about the IG report (pdf). Luckily, publius covered the part about John Yoo; Anonymous Liberal is also very good on this. I want to focus on another bit. To set the stage: Comey and Goldsmith have been read into the surveillance program, and have discovered that Yoo's memos are both legally flawed and factually inaccurate, and that some parts of the program are probably illegal.

The programs need to be reauthorized by the President, and normally he does so after the Department of Justice certifies that they are legal. By now, Ashcroft is in the hospital, and Comey and Goldsmith refuse to provide this certification. For this reason, Bush sends Alberto Gonzales and Andrew Card to the hospital to try to get Ashcroft to sign off on the reauthorization, which he refuses to do. So:

"On the morning of March 11, 2004, with the Presidential authorization set to expire, the President signed a new authorization for the PSP. [Ed. note: the Presidential Surveillance Programs.] In a departure from the past practice of having the Attorney General certify the authorization as to form and legality, the March 11 authorization was certified by White House counsel Gonzales. The March 11 Authorization also differed markedly from prior Authorizations in three other respects. It explicitly asserted that the President's exercise of his Article II Commander-in-Chief authority displaced any contrary provisions of law, including FISA. It clarified the description of certain Other Intelligence Activities being conducted under the PSP to address questions regarding whether such activities had actually been authorized explicitly in prior Authorizations. It also stated that in approving the prior Presidential Authorizations as to form and legality, the Attorney General previously had authorized the same activities now being approved under the March 11 authorization. (...) 

At approximately noon, Gonzales called Goldsmith to inform him that the President, in issuing the Authorization, had made an interpretation of law concerning his authorities and that DOJ should not act in contradiction of the President's determinations."

'The President had made an interpretation of law'. Think about that. President Bush is not a lawyer. He has no expertise on this matter. Commanding the DoJ to accept his word about what the law is is as crazy as commanding the Environmental Protection Agency to accept his determination that some power plant does not, in fact, pollute, or commanding the FDA to accept his determination that some drug is safe. (Or, alternately, to take his word for it that that power plant or drug is not a "power plant" or "drug" within the meaning of the relevant statutes, and thus that they don't need to make any determinations about it.)

If the President gets to do that, then laws have no meaning, and we might as well have a monarchy.

This would be less awful had the President recognized any obligation to inform the Congress about his novel interpretation of the law. In that case, they could have weighed in on the matter, and passed a new law. More importantly, the President's actions would have been open to public scrutiny: if he said "the law means what I say it does!", and Congress passed a new law that was absolutely unequivocal, he could of course "interpret" that law as well, but it would be clear to the public what he was doing. 

The fact that he was acting in secret prevented that. President Bush was asserting a completely novel power, and no one outside the Executive Branch knew. That should terrify us.

Luckily, some people in his administration had principles. Comey and Goldsmith threatened to resign. Mueller refused to let the FBI participate without DoJ approval, and threatened to resign if he were ordered to participate anyways. The President met separately with Comey and Mueller, and suddenly

everything changed:

"On the morning of March 12, 2004, Comey decided not to direct the FBI to cease cooperating with the NSA in conjunction with the program. Comey's decision is documented in a one page memorandum from Goldsmith to Comey in which Goldsmith explained that the President, as Commander in Chief and Chief Executive with the Constitutional Duty to "take care that the laws are faithfully executed", made a determination that the PSP, as practiced, was lawful. Goldsmith concluded that this determination was binding on the entire Executive Branch, including Comey in his exercise of the powers of Attorney General."

On March 16 Comey advised the President that some activities under the PSP were illegal and should be scrapped or changed. On March 17, the President did so.

It's hard not to conclude that Comey, Goldsmith, and/or Mueller cut a deal with the President. They were willing to resign rather than accept the President's "interpretation" of the law one day; the next, they did a complete about face, quickly followed up with their opinions about which aspects of the programs were illegal, and those aspects were immediately brought into line with their interpretation of the law. 

But I think it's profoundly dangerous to have, on the record, a statement that the President's interpretation of the law is binding on the Executive Branch. The President does have an obligation to "take care that the laws are faithfully executed". I can imagine cases in which a President with no legal training might go against the DoJ and still fulfill that obligation (e.g., if the DoJ were wholly corrupt.) This is not one of them. 

The fact that the President was willing to defy the Department of Justice on a question on which he had no expertise shows that he was not taking his obligation seriously. Going along with the idea that even in a case like this, he has the authority not just to set policy but to decide what the law is, and to do so in secret, without allowing for any checks and balances, is antithetical to our system of government.

I'm glad Comey, Goldsmith, and Mueller managed to stop those parts of the PSP that they believed were illegal. But they should not have played along with the fiction that the President gets to say what the law is. In our system, the President is not a dictator, and public servants should not pretend that he is.

Our Man in OLC

by publius

As I noted earlier, John Yoo played a starring role in the new IG report (pdf) on the Bush administration’s surveillance program (PSP).  And it wasn’t a flattering one.

Yoo’s actions were dishonest and inappropriate on so many different levels that I’m going to try to break them up into three categories:  (1) procedural abuses; (2) legal inaccuracies; and (3) factual inaccuracies.

First, procedure.  As Ackerman has already noted, Yoo was the only member of OLC who analyzed and knew about the PSP from 2001 to 2003.  Notably, his immediate superior – Jay Bybee – didn’t even know Yoo was working on it.  The upshot is that the PSP was legally approved in secret by one man – Yoo – without any sort of legal input or peer review from the rest of OLC, including his boss.

The IG Report described this arrangement as “extraordinary and inappropriate” (p.30).  Other OLC officials explained that this type of program would generally get a rigorous peer review.  Of course, avoiding peer review is exactly why only Yoo was invited.  The Addington cabal knew that Yoo would give them exactly what they needed (which was, essentially, a conclusion that the President had unlimited authority). 

So that’s the procedural abuse.  Next, law. 

Yoo’s legal inaccuracies were so egregious and blatant that they surprised even me.  Yoo’s basic argument was that FISA didn’t apply to the surveillance program.  His reasoning was that the statute lacked a “clear statement” that FISA limited the President’s wartime authority.  Here’s the IG Report:

Yoo wrote that “unless Congress made a clear statement in FISA that it sought to restrict presidential authority to conduct warrantless searches in the national security area – which it has not – then the statute must be construed to avoid such a reading.”

In other words, the statute explicitly enacted to limit executive surveillance authority didn’t clearly limit executive surveillance authority.  And as Ackerman notes, the statute is actually extremely clear on this point by using the term “exclusive means.”  Here’s 18 U.S.C. 2511(2)(f):

[T]he Foreign Intelligence Surveillance Act of 1978 shall be the exclusive means by which electronic surveillance . . . and the interception of domestic wire, oral, and electronic communications may be conducted.

“Exclusive means” is pretty strong language.  On top of that, another provision in FISA gives the President a 15-day exemption from seeking FISA warrants following a declaration of war (p.12).  The clear implication is that FISA applies even in wartime.  

And here’s what future OLC chief Steven Bradury had to say about all this (p.12 n.12):

Bradbury stated that [Yoo’s] proposition “is problematic and questionable, given FISA’s express references to the President’s authority” and is “not supported by convincing reasoning.”

In short, Yoo started with a conclusion and ignored all law to contrary.  It’s not so much his conclusion that is surprising, but the cavalier way he utterly ignored clearly-applicable law.  He just pretended like it didn't exist.  (And we haven’t even discussed Youngstown, which he also completely -- and amazingly -- ignored).  Interestingly enough, these potential problems are precisely why the OLC has things like peer review.

And finally, we have the factual inaccuracies. To back up, there are other aspects of the surveillance program beyond what we actually learned in 2005.  According to the IG Report, later OLC officials like Goldsmith thought that Yoo had inaccurately described the facts surrounding these other programs in his legal analysis approving them.  Here’s the Report (p.13):

[The DOJ OIG found that] Yoo’s discussion of some of the Other Intelligence Activities did not accurately describe the scope of these activities.  Yoo’s factual discussion . . . was later identified by his successors . . . as insufficient[.]

In short, he lied about the program too. 

It’s all pretty convenient.  Present a false version of the surveillance program.  Then conclude that it’s legal by lying about the law.  And then hide your analysis from everyone else in the department. 

Was Jay Bybee really such a threat to national security that even he couldn’t see the analysis?  Of course not.  The isolation of Yoo is strong evidence that everyone involved knew precisely how egregiously flawed his analysis was.

There’s a lot more to talk about in the IG Report, but I’ll stop there and just send you to Spencer and Marcy Wheeler for the rest.

John Yoo: Even Worse Than You Thought

by publius

And I already thought he was pretty bad.

As you've probably heard, the Inspectors General report on the surveillance program was released today.  I'm still reviewing it, but Spencer Ackerman is all over it -- here, here, here, and here.

I'll have a more detailed post later.  But the highlight so far is just how unethical John Yoo's actions were.  The sheer magnitude of the legal and factual inaccuracies actually surprised me.  But I'll get into the legal details later today.

More Alito

by publius

Justice Alito’s racially inflammatory concurrence doesn’t get any better when you read the lower court opinion (pdf).  What’s specifically objectionable is not so much the reference to Kimber, but the needlessly inflammatory description of him.

Admittedly, Kimber does appear in the lower court opinion (pdf).  The firefighters had alleged that New Haven discriminated because the City feared political backlash, particularly from the African-American community and Reverend Kimber.  This was the “pretext,” legally speaking.

Unlike the Supreme Court, the lower court actually ruled on the pretext issue, so it makes sense that he came up.  But the lower court opinion makes only passing references to him in the employment discrimination discussion.  And even when he does come up, the lower court opinion describes him in far more general terms – e.g., he is a “vocal” and influential pastor.  The opinion doesn’t go into detail about him personally – largely because that’s not relevant to anything.

Alito takes a much different approach.  It’s not merely that he mentions Kimber (though even that was wholly unnecessary because the Court didn’t rule on the pretext issue).  What makes Alito’s concurrence so distasteful is the manner of the description. 

Alito goes out of his way to paint Kimber as Public Enemy Number #1, and uses racial innuendo to do so.  Alito writes, for instance, that Kimber (1) calls lots of people racist; (2) threatened a race riot during a trial of a black man for the murder of a white Yalie; (3) was convicted for stealing funeral payments and commiting perjury; and (4) made racist slurs as chairman of a government board of fire commissioners.  (See p. 3-4 of Alito’s concurrence – p. 44-45 of the pdf).

Look, Kimber may be a very bad dude.  But none of this stuff is relevant in the slightest.  It’s unnecessary to even bring him up.  But if he must be included, the only even potentially relevant facts are that he’s influential and vocal.  There’s no need to include any of the rest.

Unless of course you want to push white people’s buttons in inflammatory ways.  But then again, maybe the firefighters’ description of Kimber pushed Alito’s buttons.  Either way, it’s unseemly for a Supreme Court Justice in 2009 to be writing this stuff.

Justice Alito's Disgraceful Concurrence

by publius

I must confess that Justice Alito’s concurrence in Ricci was one of the most bizarre opinions I’ve ever read.  The kindest thing I can say is that it’s gratuitously inflammatory.  Alito goes out of his way to paint a very unflattering portrait of a black New Haven pastor who allegedly has the New Haven government on a leash.  It would be a cool storyline for The Wire, but it’s a little weird to see it in a Supreme Court opinion.

Anyway, Alito’s concurrence is inappropriate on multiple levels.  And you can’t really appreciate how bizarre Reverend Kimber’s role is until you see how utterly unnecessary and irrelevant the discussion of him was.

First, Alito was analyzing an issue that the majority opinion didn’t even reach.  It was completely unnecessary.  To grossly simplify, employment discrimination cases go like this.  The court first decides whether the employer acted legitimately.  If not, the employer can respond that its inappropriate action was justified.  Third, assuming the employer meets this step, the employee can turn around and say, “that justification is merely a pretext for discrimination.” 

The Court’s opinion in Ricci was technically about Step 1, although Step 2 came into play.  The Court never reached Step 3.  But Alito went there anyway – in weirdly specific detail.  Basically, he said, “even if the dissent is right about Step 1 and 2, the firefighters could still easily win at Step 3.”  His reasoning was that the professed fear of litigation could be a “pretext” for pleasing a “politically important racial constituency” (i.e., black people in New Haven).

So just to be clear before we continue – he’s analyzing an issue that’s completely unnecessary.

From there, he goes on to paint a sordid tale (taken virtually entirely from the firefighters’ description of the facts) about a politically important and controversial black pastor in New Haven who, according to Alito, apparently runs the city.  This pastor was also upset about the tests and spoke out at the public meetings.  Alito described this pastor in exceeding detail, as if he were writing a Richard Price novel or something.

Here’s Alito’s Rube Goldberg logic.  The pastor has influence on the mayor.  The mayor, in turn, has influence on the government board that actually made the decision.  Understand that the stars of Alito’s concurrence – the pastor and the mayor – didn’t actually make any decision on the tests.  That decision was made by a separate “politically insulated” entity, to use Ginsburg’s terms. 

So the mayor is legally irrelevant here.  And the black pastor (who supposedly influenced the mayor) is doubly irrelevant.  How exactly Alito establishes this “influence” in the first place is a separate and interesting question. 

But even assuming the mayor is relevant and that he influences the government board, Alito assumes the worst.  Instead of assuming the mayor was trying to avoid liability under federal law, Alito sees him as caving to a certain constituency for illegal reasons.  But how exactly can a Supreme Court Justice make that conclusion about New Haven politics?  It’s almost like multiple dimensions of inappropriateness folded together in space-time.

It’s the weirdest thing I’ve read in a while.  And it's disgraceful.  At best, he's seen too many Wire episodes.  At worst, he's playing on prejudices to help justify the Court's decision.

Notably, Roberts didn't join this concurrence, although Scalia and Thomas did.  Sort of interesting, I think.  Roberts is just politically smarter than the rest of them.

[Adam Serwer has more on the Alito concurrence here and here.]

The Politics of Ricci

by publius

I’ve been traveling today, and have tried to avoid the Ricci commentary as best I could.  But my take is that Ricci is an extremely political opinion – and a deeply flawed one at that.  Simply put, it’s politics masquerading as legal doctrine.  Indeed, Ricci is a perfect example of why the politics of judicial nominees matters. 

The reality is that political preferences often determine legal outcomes.  And when I say that politics matters, I mean it in two different respects – one appropriate, one inappropriate. 

First, politics comes into play when judges must choose between two equally plausible interpretations of indeterminate law.  Here, the decision is generally (and rightly) made on policy grounds whether the judge admits it or not.  And I’m fine with that.  We should be debating many of these issues on pragmatic policy grounds rather than cloaking them in inaccessible legalese.  It’s more democratic.

But politics can also enter in a second, and more pernicious, way.  Politics can often drive judges to ignore clearly-applicable laws, procedures, and norms that are obstacles to their preferred political outcome.  It is here that politics becomes inappropriate “activism.”

Ricci has elements of both.  That is, it has both appropriate and inappropriate political considerations driving the outcome.

To step back, Ricci doesn’t really turn on all the various complex legal doctrines that you’ve probably read about.  When you scrape away the legalese (i.e., the Matrix), the case is really about one’s political opinion of certain remedies for historical racial discrimination.  Conservatives like Roberts don’t really (in their heart of hearts) think racial discrimination is a problem anymore.  Innocent white people can’t keep paying the price for crimes their ancestors committed.

Others, like Ginsburg, view the issue more historically.  They don’t see racial discrimination in terms of the personal moral failings of our ancestors, but as deep structural harms whose legacy lives on and must be addressed.  It’s like a river that has carved a deep canyon over centuries.  Even when the water gets turned off, the canyon remains.

That’s what Ricci is about.  The legal doctrine is simply a mask for this political fight. 

And the Court’s majority opinion is political in at least three different ways.  In other words, there are at least three points in the analysis where the actual decision is best explained as political rather than legal (warning – some of this gets wonky).

First, there is the threshold question of whether New Haven rejected the tests “because of” race (i.e., whether it was clearly “disparate treatment”).  The Court summarily said “yes,” and then proceeded with the subsequent analysis.  But the answer isn’t nearly as clear as the Court claimed.  As Ginsburg explained, New Haven could have rejected the tests because of various potential flaws. 

And besides, rejecting tests to prevent discrimination is not the same as discriminating because of race.  But these are largely political opinions.  And I’m actually ok with politics entering here.  The law isn't clear, so let’s assume this dispute falls into Category #1 above.

The second and third points in the analysis, however, are examples of inappropriate politics (Category #2).  To make a long story short, the Court reached decisions it should never have reached, and that it could not procedurally reach at this early stage of the litigation.

To begin, there was the decision not to remand.  Remember that the Court announced a new (and demanding) standard regarding when employers can justify decisions based on fear of disparate-impact litigation.  The appropriate response (at the summary judgment stage) would have been to send the case back down to let the lower courts take a crack under the newly-announced standard.

But the Court didn’t do that.  It announced the new standard – and then proceeded to play the role of trial court by making factual decisions from cherry-picked pieces of the record. 

Technically, the Court could only proceed at this stage if there were NO material factual disputes on the various legal issues (e.g., business necessity).  The conclusion that there were no such disputes is simply laughable.

It’s ok to proceed with a summary judgment if the material facts are undisputed.  That happens a lot.  And to be realistic about it, it happens a lot even when there are a few disputed material facts, or when the legal issues don't turn on fact-intensive questions.

But this case was different.  The legal disputes here were incredibly fact-intensive – and the record was full of material factual disputes that cut to the very heart of the legal issues.  In short, the case needed to go to trial. 

Next, there was the specific analysis of individual questions like the “business necessity” defense.  I won’t belabor it, but “business necessity” is a demanding standard that is fact-intensive.  The Court, however, concluded that scoring a written exam was vitally necessary to being a firefighter by ignoring other parts of the record.  In short, it was a political decision.  The Court essentially covered its ears and said, “nah, nah, business necessity, nah, nah, can’t hear you.”

Pure politics – all the way down.

I’ll stop there.  But on deck – Justice Alito’s bizarre concurrence.

The Strip Search Two-Step

by publius

To echo Scott, consider me pleasantly surprised by the Court’s ruling today on school strip searches.  Below are a few scattered thoughts:

The Virtues of the Two-Step

This is mostly for non-lawyers, but note that the Court actually made two different holdings today.  First, the Court held that the search in question (requiring a student to open her bra to search for Demon Advil) violated the Fourth Amendment.  Second, the Court held that the school official was nonetheless immune from suit because the law wasn’t clear at the time.  In short, the ruling applies prospectively to future illegal searches, but Assistant Principal Advil won’t be liable.

This latter holding may seem ridiculous, but it’s probably a necessary evil that ultimately protects constitutional rights.

To back up, these cases are known as “constitutional torts” – and they help give teeth to our constitutional rights.  Basically, when a government official violates a person’s constitutional rights, that person can sue to obtain damages.  These types of cases are commonly brought against school and law enforcement officials.  A typical case goes something like this – A guy gets indicted for drug possession.  The court ultimately dismisses the indictment on Fourth Amendment grounds.  The guy then turns around and sues the police department for money damages.

So here’s the problem with constitutional torts – the people committing the constitutional violations are often sympathetic actors (e.g., police, teachers).  And the plaintiffs whose rights were violated are often un-sympathetic actors (e.g., accused drug dealers).  The fear, then, is that courts may be unwilling to find constitutional violations if it means punishing police officers who were often acting in good faith.

The Court has, however, developed a way to get around this problem – a doctrinal “two-step.”  Essentially, the Court divides the analysis into two parts.*  First, it decides whether a constitutional violation has taken place.  If so, it then decides whether the law was “clearly established” at the time.  This allows the Court to say (as it did today), “Yes, that search was unconstitutional, but this particular defendant didn’t know that for sure.”

The upshot is that the Court prevents future constitutional violations, but doesn’t punish prior ones.  And while that’s not ideal, it’s probably a net benefit.  Without this “two-step,” many courts would simply find no constitutional violation.  If, however, courts aren’t required to punish sympathetic government officials, then they are more likely to give constitutional rights more teeth. 

And that’s exactly what happened today.  The right was established, but the individual defendant didn’t have to pay.

Does The Ruling Matter?

It’s easy to argue that today’s decision won’t matter that much.  After all, the facts were pretty specific – Assistant Principal Advil wasn’t looking for “hard” drugs, and there was no evidence of danger.  In theory, schools could get around today’s ruling by claiming to look for more dangerous drugs.

But that said, today’s ruling still has some strong “signaling” benefits.  The idea is that the Court has signaled that lower courts should be less tolerant of intrusive body searches of students.  Risk-averse school boards will therefore tighten up standards for such searches – and, in general, will hesitate to get close to the “line.”  In this way, students’ constitutional rights will (one hopes) be more secure.

A Question for Justice Thomas

David Bernstein has a good question for Justice Thomas, who by my reading thinks the Constitution does indeed stop at the schoolhouse door:

If school officials had conducted a body cavity search, instead of just a strip search, would Justice Thomas have still dissented? I'm not confident that there is anything in his reasoning that suggests otherwise.

Me neither.

[*The Court recently held that the courts don't have to do this analysis in any particular order, but that level of complexity isn't necessary for this post.]

The Horrors of Demon Rum Online Poker

by publius

Be afraid America -- a great scourge is spreading across our land.  And it must be stopped.  Right now, as you are reading these very words, millions of Americans are facilitating criminal behavior.  They are sitting at their computers, accessing the Internets, and ... [dramatic chord] playing poker!  For money! 

I know, because I am one of these Americans.  The Demon Rum Flop is a wily temptress I can't resist.

Fortunately, a crack team of federal prosecutors is on it.  To make sure no one in America is exposed to the horrors of alcohol playing the best card game ever, a New York-based U.S. Attorney has frozen various bank accounts of online poker players.  God forbid that Americans be allowed to use their computers to play poker.  God knows what could happen next.  Human sacrifice.  Dog and cats living together.  Mass hysteria. 

Reason Online has a roundup of pretty much everything you wanted to know about the absurd attempts to ban online gambling (most comprehensive article here).  I haven't studied it closely, but the legal authority seems to be extremely murky.

But even assuming there's anything illegal about online poker, the law is simply stupid.  Indeed, the Reason articles illustrate that the most recent legislative crackdown was a classic example of interest group legislation -- namely, an unholy alliance between social conservatives and entrenched gambling interests who don't want competition.

And just so we're clear -- I'm allowed to play government-administered lotteries, to bet on horse races, to go to casinos, and to purchase things from AIG.  But the federal government is apparently drawing the line at Demon Rum online poker.  We delicate snowflakes simply cannot endure its horrors.

But I have a solution.  If I took my potential winnings streams, chopped them up and converted them into securities, and slapped stickers on them with various capital letters arranged in pretty designs, I suspect everything would be kosher.  Then it wouldn't be gambling anymore -- it would be unleashing the powers of the free market.

[On an aside, yet another reason why Barney Frank is awesome (via Jacob Sullum)].

The Education of Ed Whelan

by publius

One of the most annoying aspects of the larger Sotomayor debate is this idea that courts don't make policy.  Of course, people may disagree in good faith about whether text and precedent answer a particular question in a given case.  But everyone who has spent a week in law school knows that courts do policy.  It's inherent to the process -- and it's often inherent to the very text and doctrine at issue.

Anyway, Ed Whelan has a good chuckle at the very notion that Supreme Court Justices should be pondering policy.  Here's an excerpt (and note the Update - we'll come back to that):

So Sotomayor thinks an unobjectionable and apt description of what is most distinctive about the role of Supreme Court justices in making decisions involves is “ponder[ing] about … policy implications.”  [Update:  Eugene Volokh offers a characteristically thoughtful critique of the original version of this post.  In response, I have tweaked my language in this paragraph; the italicized words are new.]

Volokh actually decimates Whelan's argument.  For you Whelan fans out there, it's definitely worth a read to see him so thoroughly embarrassed.  With detailed and thoughtful explanations, Volokh obliterates the idea that judges don't do policy.  It's the definitive post on the subject.

And don't feel sorry for Ed.  He knows all this -- he's a smart guy with outstanding legal credentials.  He just enjoys playing the role of know-nothing demagogue.  Anonymous Liberal pretty much captured it:

This is Whelan's role in the conservative world, his niche. He's the guy Republicans look to when they need to discredit a Democratic legal or judicial nominee. He pores over their record, finds some trivial fact that, when distorted and taken totally out of context, makes that person look like some sort of extremist. Whelan knows this is what he's doing. It's willful. He's essentially a legal hitman, someone who provides the "expert" opinion that the right wing echo chamber then uses as the basis of its attack campaign.

Yep.

How Far Does This Go?

by hilzoy

Jack Balkin thinks, as I do, that the person who killed George Tiller is a terrorist. And he has some excellent questions about what that implies. Here are some of them:

"(1) Should the United States be able to hold Roeder without trial in order to prevent him from returning to society to kill more abortion providers? If we believe that Roeder and other domestic terrorists will plan further attacks on abortion providers and abortion clinics if we let them free, can we subject them to indefinite detention?

(2) The Obama Administration is currently considering a national security court to make decisions about the detention of suspected terrorists, with the power to order continued preventive detention. Should this court be able to hear cases involving U.S. citizens, whether they are Muslim or Christian? (...)

(4) One of the most important reasons for detaining terrorists (suspected or otherwise) is to obtain information about future terrorist attacks that may save lives and prevent future bombings. To procure this information, can the government dispense with the usual constitutional and legal safeguards against coercive interrogation? Should it be able to subject Roeder to enhanced interrogation techniques, including waterboarding and other methods, to determine whether Roeder knows of any other persons who are likely to commit violence against abortion clinics or against abortion providers in the future? Would your answer change if you believed that an attack on an abortion provider or a bombing of an abortion clinic was imminent?

(5) Terrorists and terrorist organizations need money and resources to operate effectively. Often the only way to stop them is to dry up their sources of financial and logistical support. Can the U.S. government freeze the assets of pro-life organizations and make it illegal to contribute money to a pro-life charity that it believes might funnel money or provide material support to persons like Roeder or to organizations that practice violence against abortion providers? Can the government arrest, detain, and seize the property of anti-abortion activists who helped Roeder in any way in the months leading up to his crime, for example by giving him rides or allowing him to stay in their homes?"

Obviously, this is the problem with all these novel legal ideas: they are infinitely extensible. After all, why concentrate on terrorists? It's not as though murder, rape, and the like are not horrific for their victims. Rapists have pretty high recidivism rates; should we be able to detain them indefinitely lest they rape again? People who are caught engaging in various kinds of financial fraud would seem to offer excellent targets for waterboarding: they are likely to have intelligence about other criminals, and might not be able to hold out for very long. And who could possibly object to waterboarding, say, the senior leadership of Enron? Next time a pedophilia scandal pops up in the Catholic Church, we could put various Cardinals and Bishops in tiny little boxes with their own individual spiders, or pour holy water down their noses. (Seizing their assets would be a special bonus: goodbye deficits!) 

Don't even get me started on what we might do to the next televangelist caught violating sodomy laws. Don't you want to find out what all the other televangelists do when no one is looking? Can you think of a better way? And wouldn't it be fun to see whether their hair stays perfectly coiffed when they're hanging upside down?

Obviously, though, these tactics were never meant to be used against people like us. It's only other people -- scary, presumptively guilty other people -- whom we get to detain without trial, based on evidence that would not win a conviction in a normal court of law. Not people like us.

Personally, I think this would be a bad idea. But a lot of people seem to disagree. They seem to think it's fine to toss aside centuries of legal tradition, not to mention our civil liberties. What's really strange is that they claim that they are doing this because they love freedom.