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May 22, 2006


Of course it takes time to move, otherwise you'd have a velocity greater than c.

Yes, I know, off to sit in the corner.

Rilkefan, you probably know this one...

There was a young lady named Bright
Whose speed was much faster than light.
She set out one day,
in a relative way,
And returned on the previous night.

Hilzoy, we're stuck all right but this is nothing new. At least more people see it now. Good luck with the move and I hope you cheer up soon.

I always have found moving to new digs greatly improved my outlook on life and gave me new optimism. Been in my current location for 24 years. Actually except for trips to the bathroom and kitchen, been sitting in this spot staring at a monitor for seven years. Sometimes I watch the travel channel or HGTV.

Butternut squash is a great color. My walls are close to that, tho they used to be eggshell. Need to paint over the cigarette stains, I guess.

Don't worry about us, or the news. You have no obligations. Write about whatever, I'll read it. You are my only contact with sanity in this nightmare of a dark pit of despair. But hey, no pressure. Rest awhile, wait for it to get worse. Everything always gets worse. And then it ends, with a whimper unheard in the darkness.

On the bright side, in about a week I will actually move, and then I'll be able to get depressed about politics in my new house, where the butternut squash colored dining room should cheer me right up.

Excellent. Good wishes for the move, if you don't manage to post before then (and even if you do: I find that one can never have too many good wishes on a move).

Congratulations on your move.

Masri's lawsuit is depressing, all right.

People who know more about these things than me think it's more likely than the dismissal of Arar's lawsuit to survive on appeal. Arar's lawsuit was not dismissed based on state secrets privilege--the judge dismissed it before he reached issue. This means, I think, that if Arar wins his appeal, his case will be remanded back to the district court on the state secrets issue, in which case it is probably going to be dismissed all over again on the same grounds as Masri's.

People say that the judge is wrong to say that state secrets privilege is an Article II power. It's supposed to be a common law evidentiary rule and as such would be subject to limits by Congress. (The idea that the President's commander in chief power gives him the power to classify legal violations as long as they involve national security is nutty--it would be an effective license to violate laws that Article I grants Congress the power to enact and which Article II requires the President to faithfully execute.)

But is Congress going to limit it? Hah. Not this Congress.

Which isn't to say we shouldn't try.

It's important to see these state secrets privilege cases as one of several means the executive has of preventing the courts from reviewing the legality of its actions in the war on terror:

--Criminal prosecutions? Very simple: you control the Department of Justice, which is in charge of prosecuting violations of say, FISA, or the anti-torture statute. DOJ can simply decide not to prosecute.

--Habeas corpus? For one thing it's hard for people to sue if they've been disappeared into a secret prison in Afghanistan. To some extent you can get around this with a "next friend" but in Masri's case that wasn't an option because no one knew where he was--his wife thought he had left her, as he was kidnapped on a vacation after they had an argument.

For another thing, it took several years and a Supreme Court decision before the prisoners in GTMO were allowed to meet their lawyers and learn about their habeas cases. And then the lawyers had to go all the way up to the Supreme Court again to argue about whether the prisoners in Guantananmo actually had any legal rights--we're still waiting for that decision. And all of this only applies to Guantanamo, not to Bagram or the Salt Pit or whatever other secret prison or Syrian or Egyptian custody.

If all those obstacles are overcome, and it looks like they're about to lose, they can play their trump card: just transfer the prisoners to Albania the day before oral arguments, or to civilian custody before the Supreme Court grants cert.

--A regular civil suit?

Well, again, no one can actually sue while they're being flown to a secret prison and detained incommunicado. So you'd have to sue before it happened to you, in which case the government could argue that you don't have standing; or you'd have to sue after it happened to you, in which case the government could argue that:
--you're a free man now and your claim for an injunction or declatory judgment is moot, and
--you can't sue for damages because there's no waiver of sovereign immunity.

In the cases that involve surveillance rather than imprisonment, you can file a lawsuit. But you can't know for sure that you're one of the people under surveillance, and the government can use that fact to argue that you don't have standing to sue.

(Sorry for the legalese there. Basically, there are a bunch of technical and procedural arguments that the government can use to dismiss a civil suit.)

And if all else fails, the government can invoke state secrets privilege.

For a while I reassured myself about this administration by saying: they've not yet had a "Justice Marshall has made his decision, now let him enforce it" type moment, where they openly disobey a court order.

But when you realize the extent to which they avoid that by preventing a court from hearing the case in the first place, it becomes a lot less reassuring.

Of course, for this strategy of avoiding judicial review to work, you need Congress and the courts to go along with it to some extent. But we know that Congress will go along with it, and a large number of judges will go along with it, and to the extent that judges won't go along it all hangs on Anthony Kennedy's good will and John Paul Stevens good health.

So basically, on one level I'm left hoping that the Democrats get subpoena power before another Supreme Court justice retires. Which easily could happen, but just as easily could not, and which I have close to zero influence over. (No close house races in my area--I'm moving relatively nearby to one in October, I guess.)

On another level: the reason they fear the courts so much is that lawsuits, discovery orders, court rulings on the administration's constitutional arguments--these are all forms of sunlight. They don't want people to know the facts about these policies. They don't want people to understand the claim of power they're making. They don't want people to know what judges think of their legal arguments. They don't want to have an open confrontation with the courts because they fear the public would take the courts' side.

Well. A lawsuit is probably the most effective way of getting sunlight on these programs. But it isn't the only way.

And when choosing paint colors, I always go wrong.

Join the crowd. This is, primarily, why I acquired the skill of painting my own interior walls: because between the wife and I, we just cannot get it right the first time. It's not so much a matter of paying the painters, either; it's more that neither of us can afford the time of getting estimates, opening up the house to the painters, chasing down the painters to fix that which they've (inevitably) broken while doing the job, etc.

It's only a matter of time before our walls collapse under the weight of all those coats of paint. The house already feels smaller.

K, maybe you have an idea on this, but I don't see why the al Masri case was filed in Virginia, rather than DC. In the latter, there would at least be a chance that a district judge would stand up to the government. And that a panel at the Cir would realize that not every fact essential to al Masri's claim is propperly protectable.

There's some small advantage in 'heightened contradictions' I guess, because the Sup Ct might just take the case if the Fourth Circuit makes the state secret privilege too much of a blank check.

Hilzoy: my immediate reaction to your title was *LIFE is time consuming* :)

Moving has many fun and great sides, but there is a reason it is in the stress top 5 of course. Best wishes and ingore the depressing events for a while, you need to conserve YOUR energy too.

...for, as Poor Richard says,

I never saw an oft removed Tree
nor yet an oft removed Family
that throve so well as those that settled be.

And again, Three Removes are as bad as One Fire....

"The Way to Wealth", 1757

Moving is a pain in the rear before it is a joy - but it sounds like you're making a really good decision. And from what you say the colors in the house are going to be gorgeous.

We just painted ... okay, we painted in mid-April. Is our 4-room apt. put back together? It is not. The problem w/ weekend-only housekeeping. On the other hand, your cats are not 8-year-olds who want to go to Central Park for the spring bird migration (we saw a pair of Blackburnian warblers on Saturday!). Keep wishing there could be 2 or 3 of me - sharing a common consciousness but able to be in multiple places.

As for the dreadful political situation, I'm going to see An Inconvenient Truth next weekend - which will not be cheering - and then plan to concentrate on the Fall '06 elections. It seems like the main thing one can do right now. And hey, Ned Lamont got onto the ballot in Connecticut.

I'm ignoring the Attorney General's remarks about his interest in going after the press for printed classified information, for my own sanity.

My husband is volunteering at YearlyKos in Vegas in June; it'll be interesting, I think that's the right word, to hear how that goes. Heaven knows, we do live in interesting times.

The real key to happiness, hilzoy, will be to have butternut squash in your butternut squash colored dining room!

The real key to happiness, hilzoy, will be to have butternut squash in your butternut squash colored dining room!

Or to write sage articles in the study.

I think al Masri's case was ejected because of international diplomatic implications for US-German affairs. He might try The Hague. I wonder if that would be double jeopardy; maybe redesign the accusations paring back some of the more lurid ones, concentrating on whatever remnant remains of international habeas, always a touchy topic.
On the parlor, I suggest a white admixed with lots of gray, as is common in art galleries; this allows whatever you put in it to provide all the accent, all else receding into the background; some cognoscenti are applying this tint as a high quality semigloss, quite unlike the limpid flat finish of yesteryear; but the white-gray semigloss takes a lot of ingenuity to complement with artifacts, should you be so inclined.
It seems to me Katherine visited the parallel world of nonjusticiable advocacy. The review was scintillating.
John L

Butternut squash ravioli with a sage-browned-butter sauce. Yum.

For two. Start in the dining room and finish on the day bed in the study.

So, the oddest thing happened when I previewed this comment the first time. I was sent to a site by Mithras, I think, entitled Law, Reconstruction, and something or other for an automated robot check.

I wonder if this is an NSA deal and my reference to sage-butter sauce on the day bed has activated SWAT teams in helicopters.

You can't have been as surprised as I was, this morning, when something strange happened while loading NRO's The Corner and I got redirected to Liberation, the French hard-left weekly.

Daily. It's a daily.

Hilzoy: I am undergoing the moving process as well. My legs are about to fall off. (14th floor apartment and the freight elevator broke ☹)

IntricateHelix: One of the joys of advancing age is: movers.

I never used to think this way. I was always mistaken for a self-reliant person, when in fact what was really going on was that it didn't really occur to me to ask people for help -- absent-mindedness taken to extremes. The moment this ended was when I tried and failed to move a very large, very heavy solid oak bureau single-handed, called my little brother to ask if he could help, and when he asked what else I had to move, I said that I'd done the rest, and he said: why on earth didn't you call before moving the bed, the dining room table, and all the rest by yourself, entirely alone?

On reflection, it did seem a little odd that the honest answer was: I didn't think of it.

Now, there are movers. But I'm taking a bunch of stuff over myself anyways.

Moving. I'm working on moving back to Japan but phoo on taking my furniture with me. Apartment is filled with gorgeous traditional Japanese furniture which is now very very well traveled (Japan to London to Nebraska to Chicago.) And I'm supposed to take it BACK to Japan?! Not bloody likely.

Note than an international move once every 5 years is the best way to force one to clean out your closets. And yes, good movers are wonderful to work with. (Don't pack the cat!)

Our weekend was cleaning, not moving, but there was still much aranging of furniture and the like. It's amazing that after you move in, all those boxes that are crammed around don't unpack and shelve themselves...

Just a little aside. In Aus butternuts are called pumkins not squash. wonder why the difference?

It's because they're related, of course. Pumpkin, here in the 'States, is a large orange-ish squash with hard rind. Which puts them in close relation to butternut squash, vegetable spaghetti squash and the like.

Actually they're also related to the cucumber, which more or less explains why my squash plant and cucumber plant look almost exactly alike until they start setting fruit.

Just to be clear, squashes, gourds, and pumpkins are all close relations. Some squashes are softer (zucchini, the verious straightneck and crookneck yellow squashes, and pattypan, all collectively known as "summer squash") and mature quickly and early in the summer; others (the harder varieties) are slower and (I'm guessing) later to mature. I'm partial to both, but butternut and acorn squashes I tend to prepare more like sweet potatoes, while the summer squashes I tend to sautee with a fresh herb and carmelized onion. Or serve raw, if they're small. Or cut in half and broil with a little parmesan cheese on top if they're larger.


No such thing in my universe.

You made it; don't complain if you left something out.

thankyou Slarti. Butternut make great pumkin soup. (almost winter here)

Hm, well, this is all very supportive and community-oriented, but I'm afraid that as an organizer of a serious online discussion forum you have responsibilities, ones beyond your frankly rather self-centered ruminations about color and personal space and happiness and so forth.

Where do you think you are? California? Don't you know we're a Nation At War?

Acorn squash also very good for "pumpkin pie" -- better than pumpkin, actually, because sweeter and less stringy.

The best pumpkin pie of all time is made from sweet potato. I kid you not. The wife's gotten rave reviews; I have almost herniated myself trying to keep from cracking a smile.

The best pumpkin pie of all time is made from sweet potato. I kid you not.

Wouldn't that then be... sweet potato pie? Which is fantastic, don't get me wrong, but that seems a bit like cheating.

Important question: Is "sage green" a deep green, or closer to a medium hue? I remember most of your blogreaders' advice for your study (mine too, iirc) tended towards a darker (hunter) color.

that seems a bit like cheating

It's the Republican way, don't you know. Actually, we usually put the pies out and people just assume they're pumpkin. We don't hasten to correct them.

Sage green is kind of a medium dusky grey-green that seems to be not all that well-defined; I just go look at my sage plant in my herb garden if I want to know what it looks like.

Crud. That was me.

So, anyone been following this case?


House Speaker J. Dennis Hastert (R-Ill.) expressed alarm at the raid. "The actions of the Justice Department in seeking and executing this warrant raise important Constitutional issues that go well beyond the specifics of this case," he said in a lengthy statement released last night.


Former House speaker Newt Gingrich (R-Ga.), in an e-mail to colleagues with the subject line "on the edge of a constitutional confrontation," called the Saturday night raid "the most blatant violation of the Constitutional Separation of Powers in my lifetime." He urged President Bush to discipline or fire "whoever exhibited this extraordinary violation."

I dunno if we heard a decent explanation of why all that cash was in the freezer, though. Maybe it has a freshness date?

"So, anyone been following this case?"

Well, read the lead in the Dallas paper;several left bloggers have called for Jefferson's resignation DKos;some have regretted the dilution of the Republican corruption storyline...but I had on casual reading assumed the raid was on the Louisiana office.

Uncool. FBI and Executive branch Law Enforcement should stay off Capitol grounds. If Bush is using Federal Power to harass and physically intimidate uncooperative Congresspersons, he should be impeached or worse.

Bob, who does have jurisdiction there? I've heard a lot of protesting that the raid was unconstitutional as hell, but so far I haven't heard anyone cite which part of the Constitution is being violated.

"...but so far I haven't heard anyone cite which part of the Constitution is being violated."

From your own cite:

"Legal experts were divided on the legality and propriety of the FBI's raid, but many said that it could raise serious evidentiary problems for prosecutors at trial. In scores of cases of alleged congressional wrongdoing, federal prosecutors and FBI agents have most commonly sought to issue subpoenas for documents rather than conducting an impromptu raid on congressional property, experts said.

At issue is the "speech or debate" clause of the Constitution -- language intended to shield lawmakers from intimidation by the executive branch. Historically, courts have interpreted the clause broadly, legal experts said.

Former House speaker Newt Gingrich (R-Ga.), in an e-mail to colleagues with the subject line "on the edge of a constitutional confrontation," called the Saturday night raid "the most blatant violation of the Constitutional Separation of Powers in my lifetime." He urged President Bush to discipline or fire "whoever exhibited this extraordinary violation."

Article 1:

"Section 6. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place."

I don't remember seeing a lawblog post yet, but haven't been looking. My regulars like Balkin or Lemieux or Unfogged haven't dealt with it.

(I was of course exercising my sense of humor at the end of the 11:30 comment.)

Bob, who does have jurisdiction there?

The Praetorian Guard?

Personally, I'd be more than happy to see him "fired" (impeached &c) right now, or simply voted out in November. That kind of scum is completely unnecessary and unacceptable in either party.

Wait, the FBI raided his office without a subpoena? Ok, that might indeed be problematic.

"Wait, the FBI raided his office without a subpoena? Ok, that might indeed be problematic."

Checked Volokh and Legaltheory;story has not gained traction. I don't think it matters if there was a supoena or not(and I think the supoena would be handed to Hastert to deal with internally), there are SOP traditions and precedents that this just isn't done.

You know, do you really want Roberts, Alito, or Rogers-Brown or whoever signing warrants allowing Gonzalez to send agents to dig through Speaker Pelosi's file cabinets?

I'm a little nervous about it, yeah. If the FBI has videotape of Jefferson accepting bribes, there should be enough evidence to nail him to the wall correctly.

Orin Kerr has a post on it, saying that on a first look he doesn't see any constitutional problems with it.

"Orin Kerr has a post on it"

And the Findlaw article Kerr links is very good, though I then need to know what grounds Hastert et al think they have.

But if that be the state of the law, I don't lie it.

They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

Bribery, etc: felony?

From the article, they had a warrant. A subpoena doesn't sound like it'd be required, but IANAL. They already had the guy on tape accepting $100k in bribes, so I'd think the warrant, etc would be a gimme.

Separation of powers, as I read it, doesn't apply. The Executive isn't usurping the powers of the Legislative, here. Now, the only thing I can imagine could be wrong is if there's a police force that has more jurisdiction over congressional crimes than the FBI. Who arrested and investigated Duke Cunningham? Was it a separation of powers violation then?

Okay, I looked around on warrants and subpoenas, and on those grounds, it seems okay. According to the Kerr post, however, there seems to be grounds for some concern on the "speech and debate" clause. I'd like to see some further clarification on that score.

To be clear: from what I've heard, Jefferson has been proven to be corrupt, and for a pitifully small price, at that. If the story is true, the guy has got to go. I'd like to see him withdraw his seat in favor of a handpicked successor while he fights the charges.

However, I'd like to understand better the separation of powers issue raised by the raid. I don't believe that Gingrinch called this move unprecedented simply because he wanted to protect corrupt Republicans.

I agree with all of that, JM. I am a little perplexed by the repeated invocation of separation of powers, though. I'd like to hear more about that from the people who are bringing it up.

Yes, it could be problematic if the Executive, for instance, is using executive power to intimidate the legislative branch. OTOH it looks far more problematic to me if the legislative somehow places itself, in effect, above the law. Which looks an awful lot like a bill of attainder to me.

It is a worthwhile exercise to see what Constitutional principle is involved here, and I certainly think the "speech or debate" clause is weak and indirect support for immunity from search of House offices. (Put otherwise: if Hastert and Gingrich, and so on want to set this kind of reading as the bar for "strict construction" of the Constitution, then we're not even going to *need* penumbras anymore.)

But I think textual analysis ignores the real issue. Every government--every human community--works with both laws and customs. It manages to stay afloat by respect for written legislation, and respect for unwritten habits, values, and assumptions about what is Done and what is Not Done. There are vast areas of human interaction which are not regulated by law, but which would lapse into chaos if people did not act as they are expected to act. And even in those areas of human interaction that are more closely regulated by law, the expectations and assumptions about behavior still play a huge role in keeping the system on an even keel.

The British system, of course, takes this to an extreme: it has no written Constitution at all. But the government functions on an extensive network of traditions, expectations, and assumptions, some of them written down and codified, some of them the more sacred for not being written down at all.

If Hastert and Gingrich are right that the Executive breach of Legislative offices is completely unprecedented in over 200 years of our republic's history, and if it violates an expectation that has been incorporated into previous generations' views about the proper spheres of the respective powers, then it should already be a matter of concern to us, even if it does not violate any provision in the Constitution.

And what should further alarm us is that this breach is completely of a piece with the current administration's disrespect for any authority, written, legislated, or traditional, that might conflict with its vision of an unchecked executive tyranny.

This Jefferson loser should resign and go to jail. But the House is right to be extremely worried about separation of powers. And that worry is not allayed by the fact that we cannot point to the part of Article I that spells it out.

You can't find much in the Constitution that spells out separation of powers. It's real nonetheless, and the specter of the Executive raiding offices of legislators -- even with good cause -- ought to give some pause.

There was a warrant, and I don't think the speech and debate clause protects everything on the premises. Was the warrant drawn narrowly enough, though, and did the FBI intrude into protected matter? I don't know.

OK, this from the NYT story:

The search warrant affidavit spells out special procedures put in place to ensure the search did not infringe on privileged material. The procedures include use of a ''filter team'' of prosecutors and FBI agents unconnected to the investigation. They would review any seized items or documents and determine whether the documents are privileged and therefore immune from the search warrant.

There's still a comity issue, but I'm not seeing that Mr. Jefferson is going to have much luck with a motion to supress.

I am a little perplexed by the repeated invocation of separation of powers, though. I'd like to hear more about that from the people who are bringing it up.

There are so many more things to worry about, separation of powers wise, that this isn't where I'd feel the need to start fighting. (And cynically, I think this is a very politically disadvantageous issue for Democrats to fight. Were I a public Democrat I would be quietly commenting "Yes, the raid was very inappropriate" when asked directly, and loudly calling for Jefferson's resignation.)

All that said, this is a genuine issue. Prosecution, and prosecution tactics, are highly discretionary, and highly intimidating. Congress is supposed to be a branch of government at least equal to the executive and in many ways superior to the executive in its powers, and there's a real problem if the executive has the power to harass and intimidate Congress at will, and perhaps as a political tool in power struggles between them. (For example, in this case they already had video of Rep. Jefferson taking bribes and $90K in his freezer -- this raid can't possibly have been necessary to make the case against him.) I don't have a sense of the Constitutional arguments in this regard, but from a political point of view, the tradition forbidding this conduct seems very valuable to me.

I wish Mr. Jefferson no luck whatsoever.

But he is not the first corrupt Congressman, nor the first one investigated and prosecuted for corruption.

All of these previous investigations and prosecutions have taken place without an Executive-branch search of Congressional offices.

And as Lizardbreath points out, there was already ample evidence in place to make the case against Jefferson.

So what was the point of the raid? A shot across the bow of Congress, letting it know how little Bush thinks of it? That seems to be the way that Congressional Republicans are reacting (amazing what sledge-hammer blows are required to get anything through their heads).

But I'm reluctant to think so poorly of the lower-level prosecutors. Whoever is leading the charge against Jefferson is at the same level of the hierarchy as, e.g. a certain Patrick Fitzgerald. As far as I can tell, these lower-level guys still enjoy some degree of autonomy from Abu Gonzales. (And on that slender thread may hang our Republic--if we can keep it).

So maybe it's not a targeted challenge to SOP, coming from the Office of Power Monopolization in the West Wing, but just ordinary prosecutorial zeal, combined with a new level of laxity over the issuance of warrants? It will be interesting to see it play out.

So before anyone asks why I haven't condemned this, I did a while back, and I hereby declare, in the strongest possible terms, that absent some very plausible explanation for the video, frozen money, etc., Rep. Jefferson should be tossed out of the House forthwith, and that no Democrat should bother defending him.

I also echo two points made by others. First, from Matt Y:

"Jefferson was a corrupt freelancer . . . a more-or-less random member of congress abusing his office for personal gain. Compare this to the case of Tom DeLay, the key mover-and-shaker in the Republican caucus for many years and an important one for years before that. His muck-worthy activities not only accrued to a more significant player, but also bore a direct relationship to the creation and sustenance of the GOP machine.

Beyond DeLay, the salient point about, say, the Dukester is that his cash-for-contracts scheme was in many ways continuous with standard operating procedure for the Republican Party. It was different. But a difference of degree, not of kind. Normally, the cash comes in as campaign contributions or lobbying jobs for yourself and your retainers rather than pocket money or boats. But the public policy auction is happening at all levels. Look at the energy bill, or the farm bill, or the Medicare bill. Legislation is for sale to the highest bidder in all cases. That -- and not the fact that this or that Republican may or may not be under indictment -- is the point. And it connects up with the pattern of executive branch lawlessness and malfeasance. The overall attitude is that the institutions of government are the property of the people who happen to be holding power; power that can be deployed without constraint on behalf of its holders or their paymasters."

Second, from Kevin Drum:

"I'm a little late on this, but let me join the bandwagon of mockery directed at members of Congress who have finally decided that the executive branch has overstepped its congressional boundaries. After six years of signing statements, domestic surveillance, habeus corpus violations, torture of prisoners, and secret overseas prisons — all done with no oversight from Congress — what finally woke them up was a raid on a congressman's office. That can't be tolerated. Not for one second."

I do think it's a serious matter that the Executive is prowling about in Congressional offices. But I think it's a lot more serious that the President has decided that he doesn't have to obey the law. I find the Congress' priorities -- well, way beyond bizarre.

Policing the Capitol ...the prolific MY

"There's a reason why security for Congress (and the Supreme Court) is provided neither by the Secret Service, nor by the FBI, nor by the DC Police Department, but rather by a special Capitol Police Department (or Supreme Court PD for the SCOTUS)."

I stand with Thomas Beckett in the Cathedral. "Above the law" is a phrase I would never use, but there can several co-equal spheres of law, and competing jurisdictions, and conflicts of authority within a polity. IIRC, Beckett was demanding the right to police his own murderous clerics in order to protect the independence of the Church.

I might actually go that far with Congress, and think the limits in the Constitution and precedent presume a weaker Executive and are in error. Freedom is maintained by competing interests and powers, and I vastly prefer anarchy, an unnatural human condition, to tyranny, the default. It is easier to bottle water than break a rock. Though Iraq puts the question. But tension, crisis, conflict are the necessary conditions of freedom, up to and including war. There is no peace or or stability or security, and those who demand it devalue liberty.

And as Lizardbreath points out, there was already ample evidence in place to make the case against Jefferson.

This (as I see it) assumes that the raid was conducted to procure additional evidence to bolster the case for this one count of bribery. I don't think I'd assume that Jefferson has only made this one transgression, but if there is in fact only the one crime that they're investigating him on, I'd say: yes, this was excessive. OTOH if there are additional crimes that Jefferson could be charged with that Justice believes he's hiding evidence for in his congressional offices, I'd lean more in the raid direction, particularly if there's evidence that could be destroyed or otherwise removed.

Hilzoy, in the event that any of my comments were construed as questioning why you haven't yet condemned Jefferson, that was never my intention. That Jefferson's worthy of condemnation is, to me, not even a question. What's more interesting (to me, anyway) is this sudden uproar from the R side of the aisle concerning separation of powers. I completely do not get it. Which is not the same as saying that I think it's wrong; more like that I don't see how it applies, and am curious to learn.

Slarti -- I didn't mean you. There have been a couple of times recently when someone (can't remember who, but I know it's not you) has said: hey, why hasn't hilzoy condemned X? If it were Bush, she'd have been all over it. So I was just snarking back.

Hope you're well.

Here is an example.

Slart, I think the feeling is that the branches are co-equal and it's important for each to proceed with caution and respect when impinging on another. So it would have been preferable in my view for the FBI to have gone through the Congressional leadership, even if strictly speaking they didn't need to.

I'm well, thanks. I'm getting the other eye done a week from tomorrow, so there goes THAT weekend.

The equilibrium issues have all pretty much faded away, which is making me suspect that a lot of it was due to (believe it or not) my eyeglasses throwing everything out of kilter.

Slart: "this sudden uproar from the R side of the aisle concerning separation of powers. I completely don't get it."

Me neither. But with a little tin-foil shaped like a beenie, I could probably speculate that various people are concerned about much larger, horrendous investigations involving office searches on the horizon.

And then you add in a DKos post regarding the White House inserting language somewhere that John Negroponte can now exempt corporations, etc. from complying with any or all SEC financial disclosure rules on national security grounds (cough, Watergate fun, cough) and I think what we have here is ...

..... a government consisting of very big as--- being covered every which a way.

this sudden uproar from the R side of the aisle concerning separation of powers. I completely don't get it

What happened to the "if you're doing nothing wrong you have nothing to hide" argument?

For some reason I'm reminded of Blazing Saddles:

Harumph!! Harumph!! Harumph!! Harumph!! Harumph!!

Governor (pointing): I didn't get a Harumph out of that guy!

Hedley Lamar: Give the governor a harumph!

Random guy: Harumph!

Governor: You watch your ass.

The comments on this thread over at Volokh are interesting.

Not being a lawyer, nor having any inclination at all to be, it came as somewhat of a surprise to me that "unconstitutional" means not only contrary to what's actually written in the Constitution, but also all that is contrary to case law stemming from decisions on Constitutional issues. Guess that'll teach me not to go running to the Constitution itself when folks are speaking of Constitutionality.

Or did I get it wrong, again? It should go without saying that I don't get out much, legally speaking.

OTOH this could be why Hastert is so up in arms.

Putting on my +4cynicism hat, though, the whole raid on Jefferson's office could have been to bring Hastert to heel.

..."unconstitutional" means not only contrary to what's actually written in the Constitution, but also all that is contrary to case law stemming from decisions on Constitutional issues.

IANAL, but surely the case law embodies the Judges' interpretation of the Constitution? If they say, for example, that the Constitution requires the return of a slave to his owner then, absent a civil war, the Constitution does require that.

Paging Katherine and Sebastian.

Kevin has it exactly right. Slart, if the Florida legislature enacted a statute tomorrow banning marriage between people of different races, we would say it's 'unconstitutional.' Even though there's nothing in the Constitution about marriage, one way or the other, and even though when the thing was written, and when it was significantly amended in 1868, such statutes were common and thought valid. We would say it's unconstitutional, because we now understand the Constitution to protect individuals from this kind of encroachment by state legislatures.

As for the whole 'it's not written in the thing' argument, Chief Justice Marshall dealt with that eloquently in M'Culloch v. Maryland. The question was whether Congress had the power to create the national bank:

Among the enumerated powers, we do not find that of establishing a bank or creating a corporation. But there is no phrase in the instrument which, like the articles of confederation, excludes incidental or implied powers; and which requires that everything granted shall be expressly and minutely described. Even the 10th amendment, which was framed for the purpose of quieting the excessive jealousies which had been excited, omits the word 'expressly,' and declares only, that the powers 'not delegated to the United States, nor prohibited to the states, are reserved to the states or to the people;' thus leaving the question, whether the particular power which may become the subject of contest, has been delegated to the one government, or prohibited to the other, to depend on a fair construction of the whole instrument. The men who drew and adopted this amendment had experienced the embarrassments resulting from the insertion of this word in the articles [17 U.S. 316, 407] of confederation, and probably omitted it, to avoid those embarrassments. A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would, probably, never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but from the language. Why else were some of the limitations, found in the 9th section of the 1st article, introduced? It is also, in some degree, warranted, by their having omitted to use any restrictive term which might prevent its receiving a fair and just interpretation. In considering this question, then, we must never forget that it is a constitution we are expounding.

Although, among the enumerated powers of government, we do not find the word 'bank' or 'incorporation,' we find the great powers, to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies. The sword and the purse, all the external relations, and no inconsiderable portion of the industry of the nation, are intrusted to its government. It can never be pretended, [17 U.S. 316, 408] that these vast powers draw after them others of inferior importance, merely because they are inferior. Such an idea can never be advanced. But it may with great reason be contended, that a government, intrusted with such ample powers, on the due execution of which the happiness and prosperity of the nation so vitally depends, must also be intrusted with ample means for their execution. The power being given, it is the interest of the nation to facilitate its execution. It can never be their interest, and cannot be presumed to have been their intention, to clog and embarrass its execution, by withholding the most appropriate means. Throughout this vast republic, from the St. Croix to the Gulf of Mexico, from the Atlantic to the Pacific, revenue is to be collected and expended, armies are to be marched and supported. The exigencies of the nation may require, that the treasure raised in the north should be transported to the south, that raised in the east, conveyed to the west, or that this order should be reversed. Is that construction of the constitution to be preferred, which would render these operations difficult, hazardous and expensive? Can we adopt that construction (unless the words imperiously require it), which would impute to the framers of that instrument, when granting these powers for the public good, the intention of impeding their exercise, by withholding a choice of means? If, indeed, such be the mandate of the constitution, we have only to obey; but that instrument does not profess to enumerate the means by which the powers it confers may be executed; nor does it prohibit the creation of a corporation, [17 U.S. 316, 409] if the existence of such a being be essential, to the beneficial exercise of those powers. It is, then, the subject of fair inquiry, how far such means may be employed.

Slart, really, you might get something from reading the 'whole thing' -- by which I mean Marshall's opinion, not the arguments of the lawyers. Here's the first paragraph of the opinion, just to get you in the mood:

In the case now to be determined, the defendant, a sovereign state, denies the obligation of a law enacted by the legislature of the Union, and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that state. The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of [17 U.S. 316, 401] hostile legislation, perhaps, of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the supreme court of the United States has the constitution of our country devolved this important duty.

For reference, Slart, every law student since 1819 has read M'Culloch. And while there are people who go around saying that the Chief was wrong about enumeration, or got 'commerce' wrong in Gibbons v. Ogden, got the role of the judiciary wrong in Marbury v. Madison, or the import of international law wrong in Charming Betsy, by and large those people don't wear robes.

Some years ago, I had a case in Kansas City where the other guy claimed that Congress lacked the power to create the federal savings and loan system. I got to call him and ask whether he really wanted to tell his local judge that John Marshall got it wrong in M'Culloch, and re-litigate the question. He (the opponent) withdrew the case shortly thereafter.

I took a look at Gibbons while writing this, by the way, and liked the Chief's discussion of strict construction there:

What do gentlemen mean, by a strict construction? If they contend only against that enlarged construction, which would extend words beyond their natural and obvious import, we might question the application of the term, but should not controvert the principle. If they contend for that narrow construction which, in support or some theory not to be found in the constitution, would deny to the government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for that narrow construction, which would cripple the government, and render it unequal to the object for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as the rule by which the constitution is to be expounded. As men, whose intentions require no concealment, generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction. We know of no reason for excluding this rule from the present case.


As I've said repeatedly, CC, in these matters I am not even an egg yet. Still, the notion that I've got to wade through volumes of case law just to understand how the Constitution even applies in this case...well, it looks like a design flaw. And no, I don't have any better ideas.

Reading through comments at Volokh, though, has clued me in a bit. Hopefully. I can see how the authorities confiscating (even temporarily) the files of a congressman or even attorney (or doctor, for that matter) might be problematic, but I'd want such things to be handled by a) the court issuing the warrant, and b) extra penalties on the party in question for exposing priveleged documents to scrutiny under a warrant. Because if the party in question has committed acts that make exposure of such documents justifiable, isn't it his fault?

Again, with the not-even-an-egg disclaimer.

I hope that my interest in this case isn't the closet lawyer in me begging to come out.

Because if the party in question has committed acts that make exposure of such documents justifiable, isn't it his fault?

The problem with this (and it isn't a silly question at all) is that prosecution, and the investigations related to a prosecution, involves an awful lot of discretion. A court, in issuing a warrant for the search of someone's premises, isn't certifying that yes, there has been wrongdoing and evidence of it will be found there. The court is doing something much more like looking at the story the prosecutor is telling and saying that this looks like a prosecutor doing their job in a normal fashion, and there's no reason to think that the prosecutor is acting arbitrarily or irrationally in seeking a warrant. (Note: words used in this description of what's going on are not used in any technical sense -- I'm trying to give the feeling of the interaction.) The court is trusting the prosecutor not to be misleading it or doing anything peculiar, and doesn't have the resources, at the 'seeking a warrant' stage, to detect anything beyond the most egregious of prosecutorial misconduct.

This is enough of a safeguard, mostly, in interactions between law enforcement and ordinary citizens. Law enforcement mostly isn't out to get specific people, and the warrant requirement keeps overzealous types from unjustified searches by making them lie to a judge to get a warrant, which most people won't do.

When you start getting into the relations between the branches of government, on the other hand, the motivations for prosecutorial overzealousness are obvious, and the potential is enormous -- who in Congress would you not believe committed some violation of campaign finance law, for example, and how could a judge deciding whether to grant a search warrant decide if the prosecutor's allegations were valid without holding a full scale evidentiary hearing? The trust which is extended to law enforcement against ordinary citizens in this context (because withholding it would make law enforcement completely impractical) is misplaced as against a co-equal branch of the government.

I see your point, but is it your case that the court issuing the warrant didn't take that into consideration? It's not as if it was any secret that the subject of the warrant was a member of Congress.

As far as the campaign-finance reform laws are concerned: a) Congress did it to itself, and b) it's pretty clear that in this particular case, there was actual bribe money changing hands. If it's your point that everyone in Congress could be doing this, serve them all, sack their offices; privelege be damned. I'm much more concerned with corruption than I am with violations of that godawful McCain-Feingold thing.

I see your point, but is it your case that the court issuing the warrant didn't take that into consideration?

They aren't equipped to. At the granting-a-warrant stage, a court doesn't really have an opportunity to weigh evidence and decide that it's really good enough to justify a search. It's pretty much in the position of trusting the prosecutor not to shade or misrepresent the facts. It doesn't have the capacity, without procedural safeguards that don't exist now, and which a court can't impose for itself, to protect Congress against intimidation or overreaching by the Executive.

This kind of presumes intimdation and/or overreaching, as opposed to having lots of evidence for criminal activity being conducted by the guy in question.

Or is what's in the pile of evidence not supposed to be a consideration? Or, counterbalancing, the status of the accused as a member of Congress?

You should look at this more like trying to understand than arguing with, note.

No, I understand, and I was actually just about to come back and make the point that Rep. Jefferson, himself, certainly appears to be a bad guy, and this raid appears likely (to put it mildly) to produce evidence of wrongdoing.

The issue is who gets to decide when a raid is necessary for criminal prosecution, and when it's political intimidation or other Executive misconduct? It is vitally important to the separation of powers that Congress not be vulnerable to Executive intimidation -- the Executive is not, and must not be, supreme over Congress. The normal 'getting a warrant' process isn't sufficient to protect Congress from the Executive -- a court handing out warrants doesn't, procedurally, have the capacity to distinguish genuine law enforcement from abuse of the Executive's power. The stakes are too high.

We can look at this case and say "No problem, Rep. Jefferson's a bad guy, and a real criminal," but once the precedent is set, then the FBI can raid Congressional offices at will whenever they have a colorable story of wrongdoing (which is why I brought up campaign finance. I would bet you that a prosecutor could come up with 'probable cause' to suspect a campaign finance violation against anyone in Congress at any time.).

If the courts are expected to grant warrants for searches of Congressional offices under the same standard as they would grant any other warrant, the Executive would essentially be allowed to search and seize documents from Congress at will. They might not abuse that power, but they might, and the Executive, structurally (that is, without reference to who is in office) should not be trusted with it.

(All of this said, my initial comment on this topic stands. If I were a public Democrat I'd be saying the above only mumbled under my breath to get the position on record: fighting for Rep. Jefferson specifically is a political loser. There are enough other separation of powers issues to get loud about these days.)

I think I get you, but is obtaining a warrant something that establishes legal precedence?

No, I really don't know.

And yes, I think that there certainly must be more separation-of-powers issues out there, because this doesn't look to me as if it's actually any sort of usurpation of infringement of legislative power. Not yet, anyway.

And I'm still more than a little confused about whether Denny Hastert is being vocal for personal reasons.

Also I'm very curious to see whether the Jefferson case is in any way related to this:

Sept. 13, 2005 — Amid the chaos and confusion that engulfed New Orleans after Hurricane Katrina struck, a congressman used National Guard troops to check on his property and rescue his personal belongings — even while New Orleans residents were trying to get rescued from rooftops, ABC News has learned.

On Sept. 2 — five days after Katrina hit the Gulf Coast — Rep. William Jefferson, D-La., who represents New Orleans and is a senior member of the powerful Ways and Means Committee, was allowed through the military blockades set up around the city to reach the Superdome, where thousands of evacuees had been taken.

Wonder what was in them there "personal belongings", anyway?

I think I get you, but is obtaining a warrant something that establishes legal precedence.

Sure. All that a precedent is is a statement that what one court has done, another court may do in the future. Where one court has granted a warrant, another court may unless a higher authority contravenes the precedent.

Again, the issue isn't whether anything oppressive to Congress has happened yet, the issue is that allowing this sort of raid puts the decision whether or not to harass and intimidate Congress essentially solely within the power of the Executive -- the courts aren't a useful check on it. That power should structurally not be given to the Executive regardless of the merits of any particular usage of it.

Again, I think I get you, but if what one court has done constitutes precedence, don't subsequent courts need to take into account the entire decision? And isn't it therefore a matter of what subsequent court decisions are made?

I mean, it's not as if this opens the floodgates wide for random sacking of congressional offices because of unpaid parking tickets, is it?

Pretty much it does (well, not parking tickets, but it wouldn't be hard to gin up a felony investigation pretty much at will). The thing is, is that the probable cause standard for getting a warrant really isn't very high -- the prosecutor tells a story, the court believes them, and issues the warrant. After this incident, there is now precedent for granting a warrant using the same low standard that applies to warrants generally. There is no precedent for applying a higher standard just because it's Congress. The state of play, if this stands, is, essentially, that Congressional offices can be raided whenever law enforcement can tell a colorable story of wrongdoing. This is structurably intolerable.

It is possible that such a workably higher standard could be developed that would protect Congress from the Executive. It is not clear to me that this will happen, or how it will happen, or that it would be preferable to the pre-Jefferson-raid state of affairs in which such raids were unprecedented. After all, while there's a reasonable argument that Jefferson is a wrongdoer, I haven't seen any positive support for the proposition that this raid was necessary for his prosecution.

I should say that there is no such word as 'structurably'. My intent is left as an exercise for the reader.

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