Isildur's Bane

by Eric Martin

Elrond and Cirdan counselled Isildur to destroy the Ring immediately in the fires of Mount Doom. But Isildur refused, saying: "This I will have as weregild for my father's death, and my brother's. Was it not I that dealt the Enemy his death-blow?"

-The Silmarillion: "Of the Rings of Power and the Third Age," p. 295

The Obama administration not only appears disinclined to destroy the "rings" forged by the Bush administration, but they are arguing for more and bigger rings:

The line between speech protected by the First Amendment and aid to terrorists appeared elusive at the Supreme Court on Tuesday, and the justices’ lively questioning complicated rather than clarified matters. They discussed travel to Cuba, the Communist and Nazi Parties, Tokyo Rose, treason and whether it is a crime to teach a terrorist how to play the harmonica.

Solicitor General Elena Kagan defended the law at issue in the case, which bars providing material support to terrorist organizations, as “a vital weapon in this nation’s continuing struggle against international terrorism.”

Even seemingly benign help is prohibited, Ms. Kagan said. [...]

Ms. Kagan gave examples of prohibited conduct. A lawyer would commit a crime, she said, by filing a friend-of-the-court brief on behalf of a terrorist group. Helping such a group petition international bodies is also a crime, she added.

Justice John Paul Stevens asked if there was an authentic risk that Mr. Fertig would be prosecuted were he to make a presentation on behalf of the Kurdish group at the United Nations. He seemed to expect a negative answer.

But Ms. Kagan would say only that the matter would involve a “prosecutorial judgment.”

Think about that for a moment: the Obama administration is arguing that it is a crime for a lawyer to defend a group - or even write an amicus brief on behalf of a group  that the administration declares (unilaterally, and without oversight) to be a terrorist organization.  On their word.  Accusation alone.  Amazing. 

Actually, you can't even make a public presentation at the United Nations - maybe, depending on the discretion of the prosecutor, which is a sure fire way to preserve individual freedoms.

Scalia (applying strict textualism, of course) waxes all "Say what you like about the tenets of National Socialism, Dude, at least it's an ethos":

“The Communist Party was more than an organization that had some unlawful ends,” Justice Scalia said. “It was also a philosophy of extreme socialism. And many people subscribed to that philosophy. I don’t think that Hamas or any of these terrorist organizations represent such a philosophical organization.”

As is his custom, he is spectacularly wrong.  There are definite, if wrongheaded, philosophical and theological moorings binding groups like Hamas, and even and especially al-Qaeda.  But no matter, the founding fathers clearly intended for the executive to have this power, etc.

(via BTC News)

Comments

[Bruce Webb]

Elena Kagan is on the Obama short-list for the next Court opening.

Now you can argue that she is just representing the interest of her client, and is not in fact a principal. On the other hand she is explicitly arguing that any such advocate is a principal, if and only if the President claims that advocate is representing a terrorist.

Is she complicit in this argument or not? Is she just being a Good German? Or would she just be arguing a new version of the Nuremburg Defense in her Judiciary Hearings?

"How's that Hopey, Changey thing working out for you?"

Hmm, not as well as I hoped. Criminy Obama was a Professor of Constitutional Law and he is buying off on this?

[jrudkis]

This is a case where I think Kagan was defending a statute in such a way that the SCOTUS will strike it down. I think she is required by law to defend statutes, but her arguments were so over the top that they seem calculated to lose.

[Eric Martin]

jrudkis: That theory would seem more plausible to me if the Obama admin were not also claiming the ability to detain, indefinitely, without trial any suspect that they "claim" (not prove) is a terrorist, and also to kill such a suspect (even American citizen suspects) on the same say-so without proof.

Why would the above arguments be over the top given that?

[Ugh]

I think they're just advancing the argument that the DOJ has advanced all along in various litigations (under Bush and Obama): that if you give $ to a charity that turns out to be a front group for terrorists (or gives some of its $$ to a terrorist group, or in any way supports terrorists), you have given material support to terrorists and can be convicted under the statute.

In fact, Eric is probably giving material support to terrorists in this post.

[Eric Martin]

Yeah Ugh, but they're takin it much farther.

[CharleyCarp]

I'm sure the current clamor about DOJ (and even the SG's office) employing 'Al Qaeda sympathizers' is completely unrelated. But it does add an interesting gloss.

[Jesurgislac]

The Obama administration not only appears disinclined to destroy the "rings" forged by the Bush administration, but they are arguing for more and bigger rings

If I recall correctly (and I do) it was clear by June 2008 that Obama was definitely more of a Boromir or a Denethor than a Faramir: he spoke out in favor of the President having the power to authorize warrantless wiretapping, which at that point was basically a self-gratulatory "I want that power" grab, take, have. Boromir was spectacularly more gorgeous than Smeagol, and Denethor made better speeches than Saruman, but neither one could be trusted one finger'sworth with the Ring.

[Sapient]

If the administration zealously represents these views in court and they're struck down, these issues are done for. There's a reason why issues are fully and fairly litigated.

[Pat]

I think she is required by law to defend statutes....

I ain't no big city lawyer, but I have trouble believing the Executive must take the position that all laws are constitutional. Faithfully execute, yes, but argue for them, no.

And if she wanted to be ridiculous, she should have had Fergin taken away to a black site prison from right there in the Court.

[Rob in CT]

"I would not take this thing if I saw it lying in the road..."

Right Wing: WEAKLING! TRAITOR! YOU SHOULD HAVE BROUGHT YOUR FATHER[LAND] A MIGHTY GIFT!

Serious Stenographers: Some people have serious doubts about Faramir's fitness to be Captain of the Rangers of Gondor. [recap of above]. Officials who commented on condition of anonymity indicated that Faramir may be asked to resign. Others suggested he may be given an nearly impossible mission - either to perish, or return haven proven himself beyond reproach...

Left Wing: Wait, that doesn't make sense... aw, eff it. You all suck anyway. Where's my pipeweed?

[cyd]

I ain't no big city lawyer, but I have trouble believing the Executive must take the position that all laws are constitutional. Faithfully execute, yes, but argue for them, no.

If the Executive is not responsible for defending the laws passed by the legislature, then doesn't that provide an easy way for them to get rid of laws they don't like?

(Yes, I am aware of the existence of signing statements.)

[Julian]

This reminds me of the ongoing smear campaign against the attorneys for Gitmo detainees. Can any lawyers tell me the possible reasoning that would justify indicting a lawyer who files an amicus brief for a "Terrorist Organization," but not the lawyer who defends the "Terrorist Organization?"

Also, I don't understand which legal hair Scalia is splitting. What does Hamas' possession of a philosophy have to do with their rights to counsel?

[Julian]

Also, sorry to not include this in my earlier post, but:

Eric, I don't see where in the nyt article that Kagan argued that is is a crime for a lawyer to defend a terrorist group.

I can see how you might construe that from the "ban on expert advice," but I didn't see Kagan making that explicit. Criminalizing the filing of amicus (amici?) briefs still seems absurd and unjust to me, but at least I can imagine an argument for it: defendants have rights to counsel, but not amicus counsel, so amicus counsel can be outlawed. I strongly disagree with that argument, if that's the argument being offered. It's still at least an argument.

[Eric Martin]

Perhaps Julian. She did not make that explicit argument. But it would be an interesting reading of "aid" that it would include an amicus brief, and help with petitioning an international body, but not counsel itself.

Also, while the point of differentiation is there from the defendant's point of view (right to counsel) the question is about limiting the right of the speaker (the lawyer).

Besides, I'm pretty sure that you do have a right to amicus briefs in certain trials.

[Eric Martin]

If the Executive is not responsible for defending the laws passed by the legislature, then doesn't that provide an easy way for them to get rid of laws they don't like?

Well, only if those laws are challenged in court, and granted certiori by the Supremes. And even then, the Supremes might still hold that the law is Constitutional. They do not rely on the arguments made before them - at least in theory.

[wj]

If the executive is not required to defend laws which he opposes, why is the California Attorney General defending Prop 8 (the anti-gay-marriage initiative passed a couple of years back), even though he personally has been entirely open that he strongly opposes it? Because it is his job to defend it.

Ms Kagen is not, strictly speaking, defending the law. She is defending the actions of the executive (her client) in following that law.

[Sapient]

Eric: "Well, only if those laws are challenged in court, and granted certiori by the Supremes."

From a Feb. NYT article: "The litigation has bounced around in the lower courts for more than a decade as the law was amended and as it took on a central role in terrorism cases. Since 2001, the government says, it has prosecuted about 150 defendants for violating the material-support law, obtaining roughly 75 convictions.

The latest appeals court decision in Mr. Fertig’s case, in 2007, ruled that the bans on training, service and some kinds of expert advice were unconstitutionally vague. But it upheld the bans on personnel and expert advice derived from scientific or technical knowledge."

The Executive has to make sure that the laws are faithfully executed, and can't (shouldn't) pick and choose among the laws that are passed. The most recent court ruling upheld part of the law. It seems to me that the only way to resolve what parts of this law are really constitutional or not is to zealously represent the government's point of view. There's really no other appropriate way to deal with rights that have already been affected - the President can't unilaterally declare the law unconstitutional - what would then happen to the previously litigated cases? I wish the lawyers around here would think more lawyerly and not so politically when passing judgment on the Justice Department attorneys.

[Julian]

Eric, do you know which trials provide the right to amicus briefs and which do not (and why?) I don't know much about them; the wikipedia article covers "rules defining their use in the U.S." but only very briefly and not on the point we're discussing.

I cited the right to counsel because I am surer about that right's existence, I'm not sure that the speaker / lawyer has a right to file an amicus brief. Whence would that right come? Is it a first amendment right?

[Ugh]

Kagan is also probably following the advice of Paul Clement, which is that you might as well take your arguments to their logical conclusion, rather than try to make strained factual or legal distinctions, when arguing before the Court, as the justices like to jump on the latter (his case in point was whether the gov't's argument that a school policy that required drug testing for any extracurricular activity (not just sports) was constitutional would allow testing of all H.S. students - he knew it would and argued so before the court; the justices basically left him alone but when the attorney for the school district (also arguing in favor of the constitutionality) tried to make a distinction they were all over him).

So, if the gov't's view is that filing an amicus brief constitutes material support, she might as well state that.

[Eric Martin]

Eric, do you know which trials provide the right to amicus briefs and which do not (and why?) I don't know much about them

No, I'm not a litigator. But I'm pretty sure that they can be filed in most criminal cases.

I cited the right to counsel because I am surer about that right's existence, I'm not sure that the speaker / lawyer has a right to file an amicus brief. Whence would that right come? Is it a first amendment right?

Yes, the right to file a brief when permissible (and advocate on behalf of a group petititioning an international body) would presumably fall under free speech protections. Thus, if you want to prevent someone from doing so, you have to come up with a reason to deny that speech. Not the other way around (that you have to prove your right to partake in such speech)

[Eric Martin]

It seems to me that the only way to resolve what parts of this law are really constitutional or not is to zealously represent the government's point of view. There's really no other appropriate way to deal with rights that have already been affected - the President can't unilaterally declare the law unconstitutional - what would then happen to the previously litigated cases? I wish the lawyers around here would think more lawyerly and not so politically when passing judgment on the Justice Department attorneys.

But all of her arguments, and the extent of her interpretation, were not necessary to avoid unilateral declaration of unconstitutionality.

She could have argued that material support equals money, arms, and specific training (military/weapons related).

There was nothing about the statute on its face that compelled her to argue that filing an amicus brief, or petititioning an international institution, would be illegal.

So, if the gov't's view is that filing an amicus brief constitutes material support, she might as well state that.

Absolutely. But the govt. doesn't have to have that view. Her hands were not tied on that matter.

[Sapient]

Just off of the top of my head, and I don't have the resources to back this up or be certain, but I'm pretty sure there's no "right" to an amicus brief or to file one. I think (not having the time to research it - sorry) it's a matter of court rules when an amicus brief is allowed or not, and I'm almost sure a court has discretion.

http://www.law.cornell.edu/rules/supct/37.html

Sorry - have to go, and haven't read this rule thoroughly so I might be wrong, but it probably answers some of this.

But do we know how this statute has been used? Certainly, if it's been used in the way that Kagan has argued it can be used, she should be bringing those issues to the attention of the court.

[Eric Martin]

Just off of the top of my head, and I don't have the resources to back this up or be certain, but I'm pretty sure there's no "right" to an amicus brief or to file one.

No, but if the courts allow them in a given case, the government cannot bar someone from submitting one. That would be a violation of free speech. Absent a compelling countervailing interest sufficient to overcome the applicable free speech threshold test.

Certainly, if it's been used in the way that Kagan has argued it can be used, she should be bringing those issues to the attention of the court.

Agreed, but with petitioning the UN, it is clear that the issue hasn't come up, but she says that if it did, it would be a matter of prosecutor discretion.

That is a hypothetical scenario. With amicus briefs, it seems more likely hypothetical too. There is no indication that this has happened, and the petititioners are seeking clarification on the subject seemingly beforehand.

[Ugh]

Her hands were not tied on that matter.

I don't know, the statute reads, in part, that material support includes "any service . . . training, expert advice or assistance . . . ." So she would have to argue that filing an amicus brief in the Supreme Court of the United States by, say, Lawrence Tribe, is not "expert assistance." I don't see anything tying expert advice to things like military training or bomb making (I'm going off the Plaintiff's merits brief for the relevant portion of the statute and haven't read the whole thing).

[Eric Martin]

Yes, but Ugh, the government is invited to provide their interpretation of those words. She can say that their reading of "expert advice" is "a-b-c."

At one point, Sotomayor asks her how broad expert advice is. She asks if harmonica training would count. Kagan doesn't actually answer, but if the answer is "no," not in the government's reading, then you see that the government has some leeway in how it chooses to interpret those words.

There is more latitude than you are acknowledging.

[matttbastard]

OT: RIP 'Jon Swift'. God damn it.

[Pat]

If the executive is not required to defend laws which he opposes, why is the California Attorney General defending Prop 8 (the anti-gay-marriage initiative passed a couple of years back), even though he personally has been entirely open that he strongly opposes it? Because it is his job to defend it.

It could be in California his hands are tied. The Solicitor General of the US is, however, allowed to confess error and apparently does so a handful of times each session. My quick googling brings up Knox v. US (which might not be the best example because of the aftermath) in which the Clinton SG essentially said he disagreed with the Bush administration's position, and the Supremes agreed.

[ThatLeftTurnInABQ]

You know nobody every proved that Boromir was wrong. They could have taken the Ring to use, kicked Sauron's ass with it (actually it would have been more in the nature of the Mother of all Three Stooges Eye Pokes), and then melted down the Ring after the war was over to make a nice set of matching cuff-links.


Or kept it around - hey, why not?


After a change of loyalties the surviving Nazgul (outfitted in expensive Italian suits and mirrored sunglasses) would have made for a pretty cool looking Praetorian Guard, and Barad-dur could have been re-landscaped as a theme park (Mordor-Disney).


Plus Tolkien was always going on and on about those wicked, wicked Southrons with their curved scimitars and their dusky features, so I imagine he would have been totally cool with the GWOT...


More seriously, this news makes me feel ill. There is something deeply ominous about the term "prosecutorial judgment" in this context.

[Sebastian]

"If the administration zealously represents these views in court and they're struck down, these issues are done for. There's a reason why issues are fully and fairly litigated."

I don't think this is a good defense of th administration in this case. First, they may not be struck down, or the Supreme Court may not even take the case. Second, the administration is not required to take ridiculously expansive views of the law. It could take a normal limited view of the law and advocate that. It could try to get the Court to specifically agree with certain guidelines. It could propose certain limits.

[Bernard Yomtov]

Suppose the Administration declares Group X to be a terrorist organization.

X decides to try to persuade Obama that they are not terrorists. Under Kagan's argument, it seems that helping them do this, by providing advice, setting up appointments, preparing documentation, etc., would be a crime.

Isn't that an absurd result? It can't be right. The Court ought to swat this down hard.

[RepubAnon]

Isn't there a 6th Amendment right to counsel any more? Or a constitutional ban on writs of attainder?

Say the government declares an organization like the Tea Party (or ACORN) to be a terrorist organization, then seizes its assets, arrests its leaders, and holds them for "rigorous interrogation" in an "undisclosed location." The government's actions are in effect a writ of attainder (http://en.wikipedia.org/wiki/Bill_of_attainder) - yet any attorney attempting to file a suit to point this out and recover the group's assets (or file a writ of habeus corpus to try and locate the "disappeared" leaders) could be arrested and disappeared for providing material support for terrorists.

Dangerous for the Democrats to argue this on a law that is unconstitutionally vague on its face. Say Glen Beck becomes President, and declares the Democratic Party to be a terrorist organization. You really want that to be considered a constitutional action - or leave the decision to the prosecutorial discretion of someone like Alberto Gonzales?

[elm]

"More seriously, this news makes me feel ill. There is something deeply ominous about the term "prosecutorial judgment" in this context."

The phrase "Chilling Effects" comes to mind.

Additionally, it seems that prosecutors are the worst group to trust with the power to punish attorneys or rights groups for filing briefs on behalf of suspects. It reeks of executive (DoJ) meddling in the Judicial branch (which is a good reason to think the Supreme Court will reject it).

Finally, Eric and Sebastian are right on this and I disagree with Sapient. There's no need for government lawyers to argue for the broadest, most-unprincipled take-everything-that's-not-constitutionally-banned interpretation of the law. If individual prosecutors should have discretion in deciding whether to punish an opposing lawyer or rights group, should the Solicitor General not have discretion in arguing for interpretation of statute?

[Anthony Damiani]

I'll say this for George Bush-- at least when he was president, voting the bums out and reclaiming the government seemed like a viable strategy.

Now? There is functionally no alternative that is not far worse ('double Gitmo' indeed!), and thus no remedy, and thus no hope.

It's very, very sad.

[derek]

Objection, your honor! Counsel is attempting to defend the accused.

[El Cid]

You know, a big part of the movement to defy segregation could be seen as a criminal conspiracy to defy states' laws. And a lot of Communists were involved in fighting for rights for African Americans, even when such struggles were against local law. We can't let such disorders get out of hand.

[Sapient]

Oh, please. Elena Kagan specifically stated that the statute didn't apply to defense attorneys.

"should the Solicitor General not have discretion in arguing for interpretation of statute?"

Do we know how the statute has been used in the at least 150 convictions that have occurred in the past? It might be important for her to state the government's long-held policy in order to clarify what's actually happened. It's not clear to me that the political objective of the administration is to have the broadest interpretation upheld. In making a broad legal case, it will perhaps find out where the lines need to be drawn (including the possibility that the entire statute falls). In mounting a vociferous defense of the statute, they effectively test its limits. In mounting a weak and narrow defense of the statute, questions linger as to whether these other circumstances are covered. Remember: this is a declaratory judgment statute - no one's actual criminal liability is at stake here.

[Ugh]

Eric: There is more latitude than you are acknowledging.

I disagree, based on the face of the statute. Having Larry Tribe file an amicus brief on your behalf is "expert assistance," period (IMHO). I guess there is more latitude in the sense that Kagan could get up there and try to parse the statute in some way to exclude from its coverage the filing of an amicus brief, but I don't see a way for her to do so in a principled manner; hence, she's stuck with the argument she's making, however repulsive.

[Eric Martin]

Elena Kagan specifically stated that the statute didn't apply to defense attorneys

Did she? I missed that, but admittedly didn't pore over the docs. Do you have the relevant citation?

Remember: this is a declaratory judgment statute - no one's actual criminal liability is at stake here.

Then why does she couch actions in criminal terms?

Ugh:

What about Sotomayor's example of harmonica instruction from the foremost harmonica expert on the globe?

[Sapient]

Eric, sorry - I mistyped. It's not a declaratory judgment statute, it's a case petitioning for a declaratory judgment on a criminal statute. But everything in the case is hypothetical in that the petitioners want to do certain things, and those are the things at issue, but they haven't occurred yet, so the elements of a crime are not being tried. Also, there is a temptation to talk about all kinds of occurrences that might or might not ever happen, just because the statute might or might not apply to them. There is some discussion (I think in the oral argument) about why declaratory judgment actions aren't a very good way to litigate the constitutionality of a statute, since the "as applied" reasoning can go all over the place.

As for the criminal defendant argument, sorry for the long quote, but this is from pp. 31-32 of the oral argument transcript:

"JUSTICE SOTOMAYOR: If a terrorist was arrested in the United States from one of these groups, would they be barred under the statute from serving as their attorney in a U.S. court?
GENERAL KAGAN: Justice Sotomayor, if -- if there are -JUSTICE
SOTOMAYOR: Isn't that material support under the definition that you have been advocating?
GENERAL KAGAN: Justice Sotomayor, I believe that that would be excluded from the, statute, should be excluded from the statute, and indeed even Petitioners have never suggested -31
JUSTICE SOTOMAYOR: But I'm asking you why.
GENERAL KAGAN: Because I think that there the canon of constitutional avoidance would clearly come into play. If there is a criminal defendant, even a civil defendant where there may be Sixth Amendment issues, where there may be due process issues, it would -JUSTICE
SOTOMAYOR: And so can I -- can I ask you something? I mean, part of the First Amendment is the right for the -- to petition the government for redress of grievances. Putting aside all of the other aid they are claiming, the tsunami aid, the training and other things, can the statute constitutionally be read to bar them from petitioning legitimate agencies, legitimate government agencies, to peacefully, using the words of the Constitution, to effect legal change?
GENERAL KAGAN: It can -JUSTICE
SOTOMAYOR: That --that's part of what they are claiming their speech involves -GENERAL
KAGAN: The statute -JUSTICE
SOTOMAYOR: -- training and doing that.
GENERAL KAGAN: The statute cannot legitimately be read to -- to include their independent advocacy. But the statute in fact does not cover their
32

independent advocacy. Judge Fertig and all the rest of the Petitioners can lobby Congress, can lobby international organizations
-JUSTICE SOTOMAYOR: But that doesn't
-GENERAL KAGAN: -- as they see fit.
JUSTICE SOTOMAYOR: -- answer, what is the right of the people peaceably to assemble? Now, mind you, I understand this is the right of U.S. citizens in the United States. But what in the First Amendment or even in this statute could justify Congress from barring individuals to petition peacefully United -- world agencies or even U.S. agencies
-GENERAL KAGAN: Again the statute
-JUSTICE SOTOMAYOR: -- for the recognition of a -- of a legitimate goal?
GENERAL KAGAN: Again, the statute does not prohibit the Petitioners from petitioning peacefully. What the statute does is to prohibit Petitioners from giving support to foreign terrorist organizations in their ability to petition international organizations. And that's a very different thing."

[Sapient]

By the way, I'm not defending the statute itself. I just think there's a very good reason to bring up various issues to have them litigated. The declaratory judgement (if the court decides it on the merits) will specifically address the circumstances brought up by the petitioners. If the government presented a weak defense, or conceded that it interpreted certain provisions favorably to the petitioners as a matter of policy, there would still be room for the next (Liz Cheney?) administration to say "look, the last administration didn't use its executive authority to its full potential - this statute actually prohibits everything under the sun" and it would take forever to relitigate actual cases. This way, if the Court decides that the statute is constitutionally applied to bar certain desirable activities, there can be some effort to change it in Congress - at least everyone will know.

That's why I get annoyed with second guessing the administration's legal team who have been well known advocates of human rights throughout their careers. Why do we all think that, all of a sudden, they want to establish a torture regime that ignores the Constitution? The fact is they're in court to test the limits of power rather than abusing it without testing it, and the political system then has a chance to deal with the law as it's written and interpreted. I'm not suggesting that they're perfect, that their arguments are perfect or that they're incapable of abusing power. But it's one thing advocating for certain things in court and actually wanting those things as a matter of policy.

[Eric Martin]

If the government presented a weak defense, or conceded that it interpreted certain provisions favorably to the petitioners as a matter of policy, there would still be room for the next (Liz Cheney?) administration to say "look, the last administration didn't use its executive authority to its full potential - this statute actually prohibits everything under the sun" and it would take forever to relitigate actual cases.

But isn't that what Kagan did with respect to the right to counsel? She interpreted a limitation. Why was that OK, but not with respect to amicus briefs or petititioning international bodies like the UN?

Why do we all think that, all of a sudden, they want to establish a torture regime that ignores the Constitution?

Because the Obama admin has specifically, repeatedly and quite forcefully reserved (and acted on) the legal right to indefinite detention without trial of anyone it declares a terrorist, the right to assassinate US citizens that the executive accuses of being terrorsists, and, actually, torture anyone it accuses of being a terrorist (as long as the torture is conducted by certain government groups in certain locations).

They have done some good things, but have, in my opinion, left too many options on the table to coin a phrase.

[Jesurgislac]

Why do we all think that, all of a sudden, they want to establish a torture regime that ignores the Constitution?

Because they are establishing a torture regime that ignores the Constitution.

Or rather, to be fair, the torture regime that ignores the Constitution had already been established under George W. Bush. Obama made clear as of November 2008 that he did not intend to upset the previous administration's regime.

But it's one thing advocating for certain things in court and actually wanting those things as a matter of policy.,

And yet another to actually do these things as a matter of policy. Obama is running a torture regime. That's the policy he inherited. If he had wanted to put an end to it, he could have done so last year. He didn't.

[Eric Martin]

BTW Sapient, I have edited the post re: the right to counsel. Thanks for the correction. Much appreciated.

[Ugh]

What about Sotomayor's example of harmonica instruction from the foremost harmonica expert on the globe?

Expert assistance and thus material support (unless there is some other definition of what is "material" in the statute). And really, I know that example sounds ridiculous, but if some harmonica playing expert spent two weeks in an al Qaeda camp teaching harmonica playing, you think the government wouldn't want to indict?

[Eric Martin]

I think the government might want to indict.

I also think the government shouldn't be able to indict.

[Sapient]

"But isn't that what Kagan did with respect to the right to counsel? She interpreted a limitation. Why was that OK, but not with respect to amicus briefs or petititioning international bodies like the UN?"

Model Rule 3.1 of the Rules of Professional Conduct: "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law."

I think she couldn't argue in good faith that the statute would criminalize defending someone in an action where they had a right to be defended.

[jrudkis]

Playing the harmonica is a well known skill that prisoners use to calm and sooth fellow inmates, develop prestige, and therefore a powerbase from within the walls of our correctional systems. I don't think that example was simply chosen at random.

[Ugh]

I also think the government shouldn't be able to indict.

Me too but I think the statute on its face allows it.

Playing the harmonica is a well known skill that prisoners use to calm and sooth fellow inmates, develop prestige, and therefore a powerbase from within the walls of our correctional systems.

And part of the mosaic of intelligence! Just how many good harmonica players are there in the world? And these terrorists have been taught by the best! And why has John Popper's appearance changed so much over the years, hmmm?

[Bernard Yomtov]

sapient,

Having read over the part of the transcript you quoted, I do not understand the discussion of petitioning for redress of grievances. These exchanges puzzle me:

SOTOMAYOR: And so can I -- can I ask you something? I mean, part of the First Amendment is the right for the -- to petition the government for redress of grievances. Putting aside all of the other aid they are claiming, the tsunami aid, the training and other things, can the statute constitutionally be read to bar them from petitioning legitimate agencies, legitimate government agencies, to peacefully, using the words of the Constitution, to effect legal change? GENERAL KAGAN: It can -JUSTICE SOTOMAYOR: That --that's part of what they are claiming their speech involves -GENERAL KAGAN: The statute -JUSTICE SOTOMAYOR: -- training and doing that. GENERAL KAGAN: The statute cannot legitimately be read to -- to include their independent advocacy. But the statute in fact does not cover their 32

independent advocacy. Judge Fertig and all the rest of the Petitioners can lobby Congress, can lobby international organizations

...

GENERAL KAGAN: Again, the statute does not prohibit the Petitioners from petitioning peacefully. What the statute does is to prohibit Petitioners from giving support to foreign terrorist organizations in their ability to petition international organizations. And that's a very different thing."

Which of the following is allowed:

1. Helping a designated terrorist organization petition the US government (perhaps to have itself removed from the list).

2. Helping a designated terrorist organization petition some international organization for some purpose.

[Ugh]

Bernard - both. The distinction she is trying to make is that the Petitioners (who are not designated terrorist groups) can, independent of any coordination with a terrorist group, on their own petition the government to, say, take a particular organization off the list (seme for international organizations). They can't do so at the behest of, or in coordination with, a designated terrorist group. Or at least that's the distinction I think she's trying to make (whether it's persuasive is another matter).

So if you wake up tomorrow and decide that Hamas shouldn't be on the list, you can go ask the U.S. Gov't to take them off and (supposedly) not fear prosecution for material support. But if you coordinate with Hamas, or they pay you to petition, or there is some connection between you and them, then you can be prosecuted.

Which, as I type this, seems to me to be a fncking bullsh1t distinction.

[Eric Martin]

But I think Ugh is 100% right about the intention.

[Sebastian]

The problem is that it sounds like a barely tenable distinction for Hamas, but how would we feel if some flunkie tried it on NARAL or the ACLU, or the NRA (they have guns!)?

It just can't be right. It pretty much says: Constitutional protections don't exist the moment we put your name on this special list...

[Katherine]

This statute, by the way, is part of why it actually makes plenty of sense for prosecutors to try terrorism suspects in civilian court: there are more procedural protections, but the substantive law is better for the prosecution. In military commissions, they have to be tried for war crimes. Material support is not really a war crime; it is a federal crime (even if the Supreme Court interprets this statute more narrowly to comply with the First Amendment, which it should). Congress tried to define it as one in the MCA, but it's not clear that it'll fly.

(I'm not claiming that this is the administration's motivation--there IS a strong argument that September 11 was a war crime and/or a crime against humanity, and yet the plan is to try KSM in a civilian court & Omar Khadr in a military commission.)

[Bernard Yomtov]

Ugh,

Thanks. And I agree with your last sentence.

Among other things, how plausible is it that anyone would do this without a connection with the group? Apparently, Fertig wants to act on behalf of a Kurdish group. I don't know his motivation, but Kagan claims it's OK but not if he has family or friends in the group (or is paid by them). Is that accurate?

How can, say, one's brother's activities restrict one's Constitutional rights?

[Sapient]

I wrote an answer to Bernard Yomtov, but my comment disappeared.

I agree with Ugh.

Sebastian, I don't think the statute is applicable to domestic organizations.

Katherine, interesting.

I just think it's fair to give the administration's Justice Department some benefit of the doubt in arguing cases before the court. These are people who have spent whole careers in deep fidelity to Constitutional principles. I see no reason for painting them as though they are members of the Federalist Society when there are perfectly legitimate motivations for their taking the positions they take. And some good news: Dawn Johnsen was approved by the Senate Judiciary Committee today.

[Ugh]

but Kagan claims it's OK but not if he has family or friends in the group (or is paid by them). Is that accurate?

I haven't seen that part of the transcript, but that seems specious and particularly pernicious.

[Ugh]

Bernard - actually, looking back at your question on "which of these things is allowed", I had read "which of these things is NOT allowed" - you can't do either unless you do so all on your own volition (which I think you got from my response to your question but just wanted to be sure that was the case).

[matth]

The criminal law of aiding and abetting is generally very broad: it's easy to commit a crime through constitutionally-protected activities. I might have a first amendment right to stand on a soapbox in the park and rail against the government; but if I do so as part of a coordinated plan to distract the local sheriff while my co-conspirators rob a bank, then I'm guilty of bank robbery.

As incredibly broad as this principle is, you're only guilty of a crime if you intended to help the criminal plan. The challenge here is that you don't have to intend to help the criminal plan; you just have to intend to help an organization.

[Bernard Yomtov]

Ugh,

Yes. I understood your comment.

However:

Me: but Kagan claims it's OK but not if he has family or friends in the group (or is paid by them). Is that accurate?

You: I haven't seen that part of the transcript, but that seems specious and particularly pernicious.

I based my conclusion on the distinction you talk about - whether there's a connection or not. I mean, suppose Fertig's cousin sends him a letter and says, "Look, we're not terrorists, can you talk to your Congressman or something and see about getting us off this list?" Or even suppose if there's general family conversation - "It's terrible they're calling your father a terrorist. Can't something be done?"

Then it's a crime for Fertig to do something that would otherwise be perfectly legal, and even Constitutionally protected?

[Sebastian]

"I see no reason for painting them as though they are members of the Federalist Society when there are perfectly legitimate motivations for their taking the positions they take."

I see no reason to trust them based on a label instead of looking at their actions. They are choosing to defend an interpretation of the law that is frankly crazy under our Constitution.

[Ugh]

Bernard - I was referring to Kagan's comments, not yours.

[Sapient]

Sebastian, how is the interpretation crazy? I don't agree with it, but it's not crazy. If it were crazy or unsupportable, it would violate the Rules of Professional Responsibility and someone (namely opposing counsel and all of the amicus lawyers to start with) would be asking for sanctions and sending notices to the bar. The argument is being made in good faith, and there are multiple reasons why they could have chosen to make it. Some examples: because 150 cases have already been tried under the statute; because there are terms used under the statute which are being challenged as vague - terms that are used not only in this statute but in others; because in a declaratory judgment case a liberal interpretation of the statute is better than a narrow one because you don't know what's really going to happen or who is going to be prosecuted; because the government needs the court to make a determination of unconstitutionality in order to avoid political accusations that it's weak on terror. As Katherine pointed out, having many useful tools to prosecute terrorists and enablers in a U.S. court allows the administration to justify doing so.

Let's say the court interprets the statute as the government requests. Okay, then, it's up to Congress then to change the law rather than allowing the next, less benevolent, administration to bring the same suit in a real prosecution, and win.

As long as there's a good faith argument to make, it's not "crazy" to make it.

[Alex Russell]

Sapient,

The only way I could see making sense of seeing this picture your way, instead of seeing it Sebastian's way, would be if I took trust in Obama's DOJ to be a priority in deciding this. I can't see introducing that as a term. I don't see distrust of Obama's Administration to be a priority or significant either. The thing is that the Administration is presently arguing that, as Sebastian says, all the government has to do is put an organization's name on a list and it becomes a punishable crime to help the organization to do anything, even anything entirely legal, even if all you're doing is speech, and even what you do has nothing to do, directly, indirectly, or in effect, with helping them commit crimes. If this is the case, "material support for terrorism" is a defined crime that does not include the possibility of not being guilty. It's a Be Able To Get Them All hole in the law.

This is an objectionable blank check - and the Administration is insisting on it - and that's the subject. I'm a Democrat, I voted for Obama... and I understand why Sebastian is saying what he's saying a lot more than I understand why you're saying what you're saying. You're putting emphasis on giving Administration lawyers benefit of the doubt, speaking highly of them... and you're very sure, either that they are doing this so that there can be a court decision against them, or that, if they instead win, it is not very important or bad (!?) because then Congress can simply change the law (which is something very uncertain to actually happen - as shown by how well the trimming-back of the PATRIOT Act went). On this basis, you are not worried about this. You are much more worried about people thinking bad things about Obama's Administration.

In the last post I see from you so far, you interpreted Sebastian saying that this was a "crazy" view of the Constitution as saying that some sort of a formal charge of irresponsibility or malfeasance was being made against the lawyers. Concern showed. (I suspect you'd have handled the colloquial better there had it been the Bush Administration at the moment.)

I remember the discussion when Obama asserted the state secrets privilege, Bush's larger stretch of it in fact, in the rendition case with those five victims. The thinking then from people trusting Obama was that, don't worry, Obama is readying his plan for either prosecutions or a Truth Commission, and this just isn't part of that plan. When Obama's intention turned out to be neither one ... eh, that isn't important, it probably wasn't realistic. If Obama's team gets the win on this one and then Congress happens not to change the material-support law, is that going to also turn out to be not very important? What I am saying is that, if the talk is really supposed to be about trust - trusting the Obama Adminstration vs. not trusting the Obama Administration - I will tell you what I do not trust: I do not trust emphasis that the important part in discussing an issue like this should be that people should give Obama and his lawyers the benefit of the doubt. I would rather say that, taking this position, they do not look good, and otherwise just talk about the actual subject at hand and the right and wrong answers about it. Yes, if the DOJ won on this it would actually be a bad thing.

[Alex Russell]

Sorry, I meant "as if some sort of a formal charge of irresponsibility or malfeasance could be made against the lawyers."

[Alex Russell]

Sapient - Dishwashing dilutes my frothing, which I now abjure in memory of hilzoy, and I did not give you your due on a point: it is certainly true that a definitive judicial Constitutional decision does the best "finishing off" of a side. If and when it happens.

But I think that "playing to lose" - by zealously trying to win as hard as possible - is as unwise as playing chicken in cars unless the result can be known in advance.

And people like Sebastian who see this happening are not being unreasonable if they don't see that hazardous strategy as the only explanation of what's being done. It isn't the only explanation that makes sense.

I don't agree with your comment about the general principle that the executive branch should not decline to defend certain laws in court if it doesn't think those laws are good. The Executive Branch is obligated to enforce and obey laws binding on it, but I am not aware of any obligation it has to the Congress to defend all of those laws in court always and zealously, and to the uttermost stretch that can be made of them. If I'm recalling correctly, the Bush and previous Administrations decided not to defend certain laws. (If a law was backed by the previous Administration, and passed by Congress, and the current Administration dislikes it, an obligation to pretend to be the previous Administration sounds a bit unlikely.)

[ThatLeftTurnInABQ]

"The challenge here is that you don't have to intend to help the criminal plan; you just have to intend to help an organization."


So if this passes muster with the SCOTUS, does that mean Rep. Peter King (R-NY) will be taken into custody and put on trial as a result of his past associations with the IRA? Not that he intended anything criminal, mind you. But just knocking down a few in the wrong pub and helping some of the bad boys burnish their public reputations, well hey, where there's smoke there's fire...


This is starting to remind me of some of the stuff I remember from The Gulag Archipelago in which Solzhenitsyn laid out in detail all the various nasty bits of the Soviet criminal statutes - IIRC they had a whole series of sections covering different types of crimes of association with the wrong sort of people. If Orwell were still here perhaps he would coin a new neologism for us and we could it Helpcrime, or AssocCrime.

[ThatLeftTurnInABQ]

Edit: ..we could call it Helpcrime, or AssocCrime.


I'm afraid my current somewhat precarious browser-site compatibility situation only allows for posting comments, not for previewing or editing them, and thus far I'm focusing much of my proofreading on not messing up the html. Expect typos. Sorry about that.

[Sebastian]

"Some examples: because 150 cases have already been tried under the statute; because there are terms used under the statute which are being challenged as vague - terms that are used not only in this statute but in others; because in a declaratory judgment case a liberal interpretation of the statute is better than a narrow one because you don't know what's really going to happen or who is going to be prosecuted; because the government needs the court to make a determination of unconstitutionality in order to avoid political accusations that it's weak on terror."

I don't think most of these really count as good faith measures.

The fact that 150 cases have been tried doesn't help. They werent all tried under the expansive interpretations the government is advocating. (I hope they weren't at least. If they were this is a whole unexlored travesty).

I'm not sure where you are going with the "terms" in other laws thing. Terms are interpreted differently in different contexts all the time. And without a specific example I can't really analyze this.

In a declaratory judgment case, I don't agree that broad declarations are preferable. In fact I would tend to prefer narrow declarations because you aren't applying it to real facts. And "so broad that they make the Consititution look like a joke" probably isn't a good thing to aim for either. And the DOJ lawyers really do seem to be aiming for that.

Your last one seems like a super-high stakes game and/or wishful thinking. If you think they are playing to lose, what evidence would it take to suggest that they are playing to win? To me it appears they are doing what prosecutors almost always do--try to get more and more prosecutorial discretion.

[Hartmut]

As incredibly broad as this principle is, you're only guilty of a crime if you intended to help the criminal plan.

There is at least one citizen on death row for murder because he sat in the escape car when a robbery he thus participated in went bad. He was not present when the murder happened and even the prosecution did not claim that he had anything to do with it, expected or even condoned it. But the (state) law left no wiggle room to just charge him with participating in robbery.

[Hartmut]

After the Yoo&Accomplices whitewash by the DoJ (changing 'misconduct' to 'bad judgement' in the report) my trust in it did not go up. I did not really expect the Obama administration to go after Chain-Eye/Shrub but active whitewashing is worse than simply ignoring. It makes unmistkably clear that no US administration can and will be held accountable for any crimes committed abroad (and few in-country). There should (have) be(en) heads on spikes but we can't even exclude a return of Chain-Eye (and/or his ilk). Even worse, the current driving forces of the Right consider them to be not radical enough ('Dubya too liberal'). And then there is the 'Even the liberal/far-left [insert name] supports/ed....' meme.
And before someone else brings up Bill, yes, Clinton too should be held accountable for his extraordinary rendition program (aka outsourcing of torture).

[Sapient]

Hartmut, first: As to trusting the DOJ because of the Yoo whitewash - I was disgusted too, but the procedure for the internal review that took place there (and, yes, those types of procedures are conducted under rules with the force of law) required that the bureaucratic hack that made the final ruling on the findings have the final word. The guy had been in the Justice Department for decades. That was simply NOT an Obama administration whitewash. Rather, the situation shows how complicated it is to "look back" using the tools that exist.

I never said that the government was "playing to lose." What they're playing to do is to obtain a determination about the law that will clarify it. When Sebastian talks about the 150 cases as possibly being an "unexplored travesty" I fully agree. It is unexplored, and there are many other "unexplored travesties" in the files of the justice department. The justice department is not only worried about its own policies for the future; they're trying to contend with the fact that the Bush administration has used the most expansive interpretation of executive authority to do a lot of things that we, the blogging commenters, haven't explored.

There is a reason why things are tested in court. We, the blogging commenters, tend to support rule of law. Well, this is how the rule of law works - advocates make zealous and thorough arguments before a court of law, and the court decides. When the court looks at a situation and draws a bright line, everybody knows what the law is. If we don't like it, we change it. The system isn't adversarial if both sides make the same argument. The case gets settled, and there's no precedent for the future. That might be a good thing for the parties, but when the next administration (which now has a different policy) arrests someone doing something similar, and the defendant doesn't have the means to obtain an authoritative ruling, the defendant quietly goes to jail like (maybe) those other 150 folks.

[Sapient]

"The Executive Branch is obligated to enforce and obey laws binding on it, but I am not aware of any obligation it has to the Congress to defend all of those laws in court always and zealously, and to the uttermost stretch that can be made of them. If I'm recalling correctly, the Bush and previous Administrations decided not to defend certain laws. "

The failure of the President to faithfully execute the law is a violation of his oath of office. You're absolutely right that the Bush administration failed to execute laws it didn't like, such as environmental laws, etc. Where does that leave our country? It means that laws mean nothing. Yes, that was the Bush administration alright, and I voted to get rid of that way of thinking.

[Jesurgislac]

You're absolutely right that the Bush administration failed to execute laws it didn't like, such as environmental laws, etc.

Not to mention the Geneva Conventions and the UN Convention against torture.

Oh, wait: Obama isn't executing those laws either.

Yes, that was the Bush administration alright, and I voted to get rid of that way of thinking.

Who did you vote for, then? Or did you honestly believe that Obama was going to fulfil his obligations under the law?

At this point, however, it is clear that Obama never will: and I don't see your being able, ever, to vote in a President who will do so. If Bush's successor had been willing to clean house, then maybe: but if Obama's administration simply intends to accept and to reinforce the principle that the President of the United States is above the law - any law - I don't see any future administration even wanting to accept that the law is binding on the President and his minions as much as it is on anyone else.

[Alex Russell]

Sapient - Either you didn't read the bit of mine you just quoted, or you didn't understand my distinction. The President and the Executive branch IS obligated to enforce and to obey the laws. That is faithfully executing them.

You're absolutely right that the Bush administration failed to execute laws it didn't like, such as environmental laws, etc.

That is not what I was saying, and the Bush administration did do that, and I absolutely abhor it. That is different from what the Obama Administration would be doing if it declined to defend in court the broadest possible discretion granted to it by Congress.

I understand your further expatiation on the desirability of getting a clear ruling. I also still think that this course, if that's what they're doing (call it "playing to lose" or not) is extremely dangerous. The Obama Administration has the option of asking the Court to choose between two Constitutional arguments about the allowable reach of the law, with their argument specifically excluding a case like this on First Amendment etc. grounds. The Court might certainly decline to address that portion of the claim in the decision, if it didn't have to, but that is a lesser risk than the risk in the course you think the Administration is pursuing.

[Alex Russell]

I mean, by your reasoning the Administration should always, or whenever possible, with full zeal and evident sincerity and effort to win, pretend to be Darth Vader or Dick Cheney when speaking to the Court. And this doesn't worry you. It's as if the Court could only rule properly.

[Sapient]

"The Obama Administration has the option of asking the Court to choose between two Constitutional arguments about the allowable reach of the law, with their argument specifically excluding a case like this on First Amendment etc. grounds."

Why would they specifically exclude "a case like this" on First Amendment grounds? Which activities of the petitioner are allowable and which are not? That's the trouble with a declaratory judgment action. There aren't any specific activities before the court - everything is theoretical at this point. What activity can constitutionally be prohibited under the First Amendment: can they do this? can they do that? can they say this or that? what if they have friends? what if they have relatives? what if they have a history of criminal behavior or terrorism? what if people in their organization do? The government is not in a position to prove the elements of a crime in a declaratory judgment action.

Proving a criminal case is a very exact narrow court proceeding. Talking about a statute in theoretical terms is a very vague proposition. Why would the government want to tie its hands when there might be twists and turns in a specific case where their interpretation would be perfectly reasonable? And what if the government conceded certain interpretations, without a court ruling? What happens to the statute then? It's still law, isn't it, with no definitive ruling to narrow it? Isn't that more dangerous than having a court say: "This statute is void for vagueness - you can't prosecute under it and neither can your successor," or, in the alternative: "The executive can prohibit speech in the following context because ****."

If the Supreme Court says the latter, isn't it better that people know so that they can try to change the law?

As to your most recent post, Alex, about pretending to be Darth Vader or Dick Cheney, that's ridiculous. These people brought this action during the Clinton administration. Two administrations have used this law to prosecute people. It would be helpful to have full and fair litigation as to what it means.

A lawyer has to represent his client zealously within the bounds of the law. I may not believe in the innocence of my client, and I may personally believe that he is a menace to society, but if I'm defending him, I need to make sure no stone is unturned to make sure that all evidence and a thorough examination of the law in his favor are brought before the court. That's not just the basis of a criminal trial; it's how the adversarial system works. Why is it any different for the government lawyers defending the executive authority to a court under a law passed by Congress? It's playing by the rules so that the court can say what the limit is.

[Sebastian]

There is a reason why things are tested in court. We, the blogging commenters, tend to support rule of law. Well, this is how the rule of law works - advocates make zealous and thorough arguments before a court of law, and the court decides. When the court looks at a situation and draws a bright line, everybody knows what the law is. If we don't like it, we change it. The system isn't adversarial if both sides make the same argument. The case gets settled, and there's no precedent for the future. That might be a good thing for the parties, but when the next administration (which now has a different policy) arrests someone doing something similar, and the defendant doesn't have the means to obtain an authoritative ruling, the defendant quietly goes to jail like (maybe) those other 150 folks.

What is stopping the government from arguing for a bright line OTHER than the most expansive view possible?