LawCulture

Solving the Constitutional Crisis -- Part III

A suggestion that I made on this blog some time ago for a bill to establish standing to challenge the legality of the president's NSA surveillance program has now actually become a proposed bill, S.2468, by Senator Schumer.   Its key part provides:

STANDING.—A United States citizen who has refrained or will refrain from wire communications because of a reasonable fear that such communications will be the subject of electronic surveillance conducted without an order issued in accordance with title I of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) under a claim of Presidential authority under either the Constitution of the United States or the Authorization for Use of Military Force (Public Law 107–40; 115 Stat. 224; 15 50 U.S.C. 1541 note) shall have a cause of action and shall be entitled to declaratory or injunctive relief with respect to such electronic surveillance.

For reasons spelled out in earlier posts, I think this is an excellent idea. It represents the most appropriate mechanism for addressing the constitutional crisis occasioned by the President's extraordinary assertion of Article II authority.  And, for reasons given in my earlier posts, without a bill of this sort, I think the chances of such a case being decided on the merits by the high court in the forseeable future are quite slim.

Of course, I am assuming that we should look to the Court to decide such a question.  Should we?   Of course we should.  There's a reason that both Roberts and Alito in their hearings relied on the rationale set forth in the Youngstown case in responding to Senators' questions about the proper scope of presidential war powers.  The reason is that in Yongstown the Supreme Court ruled on whether the President has the authority to disregard a federal statute in a way that tangibly affected the rights of U.S. person pursuant to his claimed powers as commander in chief.  Just as the Court was the appropriate forum for adjudicating the merits of Truman's claim of unchecked authority then, the Court is the appropriate forum for adjuciating the merits of Bush's similar claim now.  Schumer's bill simply removes some technical obstacles -- including some that are included in the current verison of FISA itself -- to the Court doing just that.  If the current administration is confident that its actions are lawful, and that the holding in Youngstown is distinguishable, then I can see no legitimate reason why it should fear having the Court assess whether it agrees or not.  The President has taken a broad view of his powers, but I don't yet think he's been willing to go so far as to say he's not even bound by the Supreme Court's judgment as to what the constitution means.   So let's make sure that the Court has a chance to weigh in on the question.   

One blogger has suggested that the Schumer bill is bad because it's another Schiavo-like statute, dangerously carving out a single case for special judical review.  But that's clearly a strained contention, as Marty Lederman persuasively argues.  After all, in Schiavo, many judges had reviewed the legal issue before Congress passed it's special staute.  Here, no judge has ever weighed in on the issue, and all the Schumer bill does is ensure that some court will have the chance to do so.  Plus, the comparsion of the Schiavo case to the most momentous assertion of presidential authority in modern times -- and one that would potentially affect thousands of U.S. persons -- does not stand up very well upon a moment's reflection.  No doubt, that's why that same blogger has himself conceded that the Schiavo comparison really doesn't hold up very well after all.

Some others no doubt think that censure is the more appropriate route.  I am not one of them, but Senator Feingold himself thinks that Schumer's bill is a good idea, so I don't see why those who support Feingold's censure resolution should be hostile to it.  A Supreme Court decision declaring the president's action unlawful has got to be at least as powerful a rebuke as a censure resolution by the Senate.  Ah, but you say, perhaps the Court would uphold the program?  I do not believe that it would, but I also think that if it did, it would be rather more difficult to argue that the President was a scofflaw.      

In the end, it seems pretty simple to me.  We have a Supreme Court for a reason.  It helps to ensure that no one - not even the president -- is above the law.  A long line of important supreme court cases have adjudicated the extent of the President's Article II powers.  How then can it be that the Supreme Court is not the appropriate institution to assess the lawfulness of the most significant contemporary instance of an aggressive use of presidential war powers?  And thus how can it be a mistake for Congress to do everything in its power to ensure that the Court has the opportunity to perform its historic function in this context?

A dodo of a national security policy

LA Times column from last Friday:

A dodo of a national security policy
Rosa Brooks
March 24, 2006

I USED TO BELIEVE in the theory of evolution, but these days I'm having my doubts.

Consider the Bush administration's National Security Strategy, which has evolved not a jot during the last 2 1/2 years — a time span that in politics is the rough equivalent of a geologic eon.

The rest is here.

Law and Film Conference

This coming weekend, the University of Maryland School of Law is hosting a conference on law and film called "The Impact of Film on Law, Lawyers and the Legal System."  This is the second such conference I will have been to in under a year (the other one was at Fordham Law School), evidence in my eye of the mainstreaming of interdisciplinary legal studies generally and of law and humanities studies specifically.

At this conference, I will be speaking about filmed confessions, but my current interest is the intersection of law and documentary filmmaking generally.  I just finished watching "Death on the Staircase" by  Jean-Xavier de Lestrade (also the director of Murder on a Sunday Morning).  "Death on the Staircase" is about the 2003 trial of Michael Peterson, a Durham, NC resident accused of killing his wife, Kathleen, in December 2001 (whom he found at the bottom of the staircase of their house dead from an apparent fall).

de Lestrade followed the investigation through the trial verdict (over a year and half), editing the footage to eight hours of film.  There was a stunning moment in the film when, during the investigation and criminal defense preparation, it is discovered that eighteen years ago Peterson's next-door neighbor was found dead under similar circumstances as his wife Kathleen (at the bottom of the stairs in her house, dead from an apparent fall).  Upon learning this fact, the defense attorney, who previously had not once in three hours of the finished film addressed the camera, turns to the camera, white faced, and says “Well, now you’ve got yourself a much better film.” 

I am trying to process why I was so moved by this "breaking of the fourth wall," especially when documentary plays on its fictional boundaries so regularly. Perhaps I am moved because it feels like such an authentic moment in an otherwise slick film. The defense attorney has been to this point so deftly ignoring the camera that the audience, too, forgets about the presence and effect of the camera. And yet, when the attorney is shaken by this news because of how it hurts his client, his first response is to turn to the camera and comment on the effect of this fact on the film. This suggests he had not ever forgotten about the camera or the making of the film, only that he had convinced us (his audience) that he had.  The moment that to me feels most authentic in the documentary (most unaffected by the camera) is in fact the moment that reveals nothing is authentic in the documentary.

Torture rules

Turns out the Department of Defense is “considering” a rule barring the introduction of evidence obtained through torture in its military commissions hearing the cases of

Guantanamo

detainees.  “We have not, to this point, believed that a specific commission rule was necessary, and in fact to some degree would erroneously suggest that torture had actually occurred,” Pentagon spokesperson Bryan Whitman was quoted as saying.

I suppose this is progress, though evidence obtained through torture we thought was banned by our Bill of Rights, and then at least in principle in most of the rest of the world by some point in the 19^th century.  Even the Inquisition didn’t accept a confession produced by torture on face value: it insisted that the confession must be repeated twenty-four hours later without torture (though in practice of course this didn’t prevent a further application of torture, should the detainee attempt to revise the record).

Executive Power: what's our role as legal scholars?

I have a short essay on executive power in the Yale Law Journal's new "Pocket Part." Here is part of my argument:

Just as a checkbook can’t balance itself, our Constitutional system of checks and balances only works when most Americans share a disciplined and courageous commitment to making it work. And it’s this shared commitment to checks and balances that we seem to have somehow lost during these past five years – or perhaps we lost it much earlier, and just did not notice until now. The Bush Administration itself clearly has zero commitment to the limits the Constitution places on executive power – but who can blame them trying to circumvent a system that is apparently cherished by neither Congress nor the public?

[.... ]One major moral of this particular story—the story of the Bush Administration's successful power grab – is that law does not exist, and cannot be understood, within its own hermetically sealed universe. Law does nothing and means nothing outside of its cultural context.

As a result, those of us unhappy with the way our constitutional system is working today will not be able to fix the problem through strictly legal means—we already have, on paper, a perfectly workable constitutional system. If we want to roll back unconstrained executive power, we need to look beyond the law to the broader political culture, and work on changing that.

This has powerful implications for how law is studied, discussed and taught within the legal academy. Legal scholarship has become increasingly technical, increasingly theoretical, and increasingly specialized. As Harvard Law Professor Bill Stuntz lamented recently in The New Republic, “Too many scholars write for an audience of dozens (if that – a good friend of mine says he writes for six people), and far too few write for thousands, fewer still for millions.” This, unfortunately, is as true of constitutional law scholarship as it is of legal scholarship more generally.

The result? When an issue comes along that arouses the deepest passions in those of us who study and write about the law, and we finally bestir ourselves to communicate some of our outrage to those outside the legal academy, we find, alas, that most of them aren’t listening to us at all, and fewer still are moved by our concerns.

If the legal academy were to take seriously the notion that law is but a small part of culture writ large, we would do two things. First, we would alter our scholarly agendas and our curricula to reflect a commitment to studying law as a form of culture, striving not simply to develop neater and more original legal theories, but to understand the complex interrelationship between law and other political and social forces. And second, we would recall that in classical Greece and Rome, law was conceived as a close relation of rhetoric. Legal argument was seen not merely as a technical skill, but as a form of rhetorical art, one designed both to engage the mind and stir the passions and, ideally at least, to inspire civic virtue.

In a world of academic specialization and turgid, jargon-laden law review prose, this may seem an odd way to think about law. But if we lawyers and legal scholars value the rule of law, we should strive to reclaim the ancient notion of legal argument as a public-regarding form of rhetoric. Because if we can’t convince our fellow citizens to know or care about our fragile constitutional system, which now lies in tatters, then little of what we do has any point at all.

Shampoo Girls

My LA Times columns often generate nasty emails. My favorite for the week is this one from someone identifying herself as Mary Simpson. It arrived this morning, apparently in response to Immigration- The Game:

"Regarding your "Let reality games begin for members of Congress" editorial, it figures that someone with your opinions on imigration would be named "Rosa."  I'm glad Mr. Brooks was progressive enough to marry the shampoo girl from his hair salon, but I would advise him to keep her on a shorter leash."

That comes a close second to my other favorite theory about the origin of my name: the parent of one of my Harvard classmates asked my mother if I had perhaps been named "for a favorite maid."

Actually, Mary, the truth is even worse... I was named after Rosa Parks and Rosa Luxemburg.

Immigration-- The game

Latest LAT column:

Rosa Brooks March 17, 2006

HERE'S AN IDEA for a reality TV show. Call it "Aliens." The contestants will be drawn from the U.S. Congress.

To start, they'll have their credit cards, cellphones, computers and cars confiscated. Next, they'll be sent — with their families — to live in rural villages and urban shantytowns in poor countries. Each will be assigned a menial job in his new home, for which he will receive a dollar a day.

the rest is here.

Terror insurance

The New York Times reported yesterday that entrepreneurial insurance companies in Iraq are now selling  terrorism insurance policies. Too bad you can't buy policies to insure yourself against foolish wars and bad leaders.

Legal Sculpture

I had the pleasure of attending many interesting panels at the Ninth Annual Conference of the Association of Law, Culture and the Humanities at the University of Syracuse College of Law this past weekend. A paper that stood out for me -- perhaps because it took as its object something I had never considered in my studies of law and culture -- was about the Sissons/Morrow Collection of Canadian Inuit stone carvings.  Justice Sissons was a Canadian judge who presided over disputes in the Northwest Territories in Canada. During the adjudication of one dispute (about a man who was accused of murdering his father, but who explained his father's death as a kind of euthanasia and as part of his Inuit tradition), the defendant carved out of stone a sculpture of Judge Sissons and the defendant facing each other across a small bench. Both are dressed in hooded, fur-lined coats. The judge was very big and the defendant very small.  The carving (and trial) took place in 1956. The defendant was found not-guilty. The defendant gave the carving to Judge Sissons. The receipt of this carving spurred Sissons' collection of many other such carvings, most of which are on exhibit in Toronto.  Shulamit Almog, of the University of Haifa, presented a paper on this collection, analyzing the sculpture as legal cultural objects. She addressed the unique aesthetics of sculpture, generally, and the poetics of these sculptures specifically. In particular, she considered how the collection both constitutes and is one result of the imposition of a new legal order in the Northwest Territories. We can regard these sculptures as a "translation" of the legal process by Inuit populations, newly subject to the Canadian legal system. We can also regard the sculptures -- especially as they form a collection -- as constitutive of the heterogenous community (with its conflicting narratives about right and wrong, necessity and chance) that was forming in the 1960s and 1970s in Canada.  Dr. Almog's paper left me very curious about the life of legal sculpture around us, be it "legal architecture" (courthouses, law schools) or art (The Rape of the Sabine Women, comes to mind, as does the David).  Questions about how we might theorize the sculpture's "point of view" (an intriguing question posed to Dr. Almog by Professor Naomi Mezey), its capacity to address an audience,  its (non)mimetic qualities (texture, size, dimension), and its craft generally make sculpture a rich (and to me, still enigmatic) cultural manifestation of law.

Law, Culture and Humanities

For all those interested, the Association for the Study of Law, Culture and the Humanities is hosting its ninth annual conference this weekend at the University of Syracuse College of Law.  Program and other information here.