What Did You Know and When Did You Know It?

Neil’s post about Orwell and the misuse of language to mask political maneuvering got me thinking about the Court’s cert. grant in Winter v. Natural Resources Defense Council (a/k/a the Sonar case). Last week, the Court agreed to hear the case—putting a potentially stunning array of issues in its October docket. It involves everything from the separation of powers rule that the Executive may not revise Article III court judgments to allocating the burden of proof in modern conservation. But in this first of a few posts, I’ll focus on the meta-ethical issues it raises.

Winter began last year as yet another challenge to the Navy’s use of very powerful sonar, this one brought by the Natural Resources Defense Council (NRDC) and some others concerned that such sonar was/is killing, injuring, and seriously disrupting the behavior of various species of marine life. Specifically, it was a challenge to the Navy’s decision to forego the NEPA Environmental Impact Statement (EIS) in conducting, and also a challenge to the actual conduct of, a series of training exercises using so-called “mid-frequency active” (MFA) sonar. The exercises were off the coast of California, implicating the State’s interests under the Coastal Zone Management Act. California joined in the CZMA claim. To be clear, these were extensive exercises lasting several months and involving a broad cross-section of forces, all meant to improve the Navy’s anti-submarine warfare capabilities. These capabilities were something the Navy concluded was the Pacific Fleet’s “top ‘war-fighting’ priority because of the proliferation of extremely quiet diesel electric submarines throughout the world.” 518 F.3d at 664. By the time the case got to the Ninth Circuit, the Administration was loudly proclaiming the dire consequences of preventing or even delaying this form of training. Id.

Now it was only relatively recently that we’ve had persuasive evidence linking active sonar to things like whale beachings and other bizarre marine mammal behavior. False negatives and a myriad of possible causes left most speculations ungrounded. But by 1996 researchers were able to draw a few firm causal connections (due in part, ironically enough, to data gathered by the U.S. Navy). Of course, before then we had common sense: some of the “active” sonar is emitted at around 235 decibels. (For comparison, your garden variety rocket launch is a modest 195 decibels.)

For perhaps strategic and perhaps tactical reasons, then, the Navy has never argued (at least in this case) that its active sonar is benign. What it argues is that the risks to marine life are justifiable under the governing law and that, if necessary, they can be authorized by the President under his authority as Commander in Chief. Which this President did. Proudly. And it turns out that, at least on the face of the rules at issue, the statutory and regulatory arguments may hold a fair bit of water. (I’ll bracket the constitutional argument here and beg your indulgence on the pun.)

In opting out of its EIS on these exercises, the Navy relied on 40 C.F.R. § 1506.11—one of many “guidelines” on NEPA written and administered by the Council on Environmental Quality (CEQ). CEQ is an extension of the President and designedly so: its members are all Presidential appointees and Presidents have staffed their CEQs with close (or at least trusted) advisors, just as Congress expected when it structured NEPA and the CEQ this way. Section 1506.11 says that

Where emergency circumstances make it necessary to take an action with significant environmental impact without observing the provisions of these regulations, the Federal Agency taking the action should consult with the Council about alternative arrangements. Agencies and the Council will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.

Navy and CEQ had, of course, agreed to “alternative arrangements” in lieu of an EIS. The trouble is that they made this “emergency circumstances” agreement only after the district court had issued a preliminary injunction requiring Navy to complete the EIS. Before then, Navy had argued that an EIS wasn’t necessary because it wouldn’t meet the requisite thresholds for an EIS. When they lost that argument, they turned the judicial relief itself into the exigency supposedly jeopardizing national security (immediate preparedness to meet submarines in battle).

This brings me to my point in this post about the case (and it isn’t about how long we’ve had active sonar or the Navy's known about submarines). Let us suppose the Department of Defense had decided from the start to find whatever means it could to exempt its operation from the public, proceduralistic routine of an EIS. Let us even suppose that it had done so with the White House’s blessing. Should they have made better legal arguments or was this simply a matter of not anticipating the appellate panel they got (B. Fletcher, Reinhardt, and Nelson)? Was it an “emergency circumstance” that a district judge unexpectedly favored NRDC’s claims about the sonar? If not, then consider this: could the Navy have simply delayed scheduling the training exercises to leave inadequate time for an EIS within its “preparedness” criteria—seemingly triggering Section 1506.11 in the most pristine, protected sense possible? All of that was and is completely within the power of the Executive to manipulate.

All hard questions, but one thing is certain. Like Massachusetts v. EPA, this will at least be a good teaching case . . . if not necessarily a huge victory for conservation.

Posted by Jamie Colburn

Um, if I throw you under the bus, is it, well, what it is?

Whenever I can find any excuse to do so, I include George Orwell's classic essay "Politics and the English Language" on my course syllabi. (There is always a reason to do so.) In class discussion, I describe that essay as the most important essay ever written, and -- subject to obvious qualifications that this conclusion is both subjective and limited to the essays that I have actually read -- I mean it.

Most students initially think that they are back in grade school grammar class, seeing Orwell's criticisms of various samples of egregiously bad writing as bordering on priggishness. Some students move beyond that level of understanding and also take away from the essay important lessons in critical reading and listening, with Orwell making arguments about political manipulation of language that are familiar from his much better-known classics 1984 and Animal Farm. There is good reason that the term Orwellian is so potent. Few students, however, see the third and most important message in the essay: language can manipulate us as much as we can manipulate language. Orwell argues and demonstrates brilliantly that it is all too easy to say things that are either banal or actually misleading because one is not thinking about the words one chooses and simply concatenates a series of words and phrases in current usage.

The title of this posting captures a handful of the current grab-bag of words and phrases that seem to have become the best current examples of this kind of Orwellism. Their usage is not limited to any type of speaker or writer (academic, pundit, politician, person overheard at bus stop), nor to any political point of view. I have seen examples of these recently in Paul Krugman's columns as well as segments on Fox News. Our own Mike Dorf has used at least one of them recently on this blog, and I am painfully aware that I probably have defaulted to one or more of these (or to others that I have not yet noticed) in recent posts and comments. We can run, but we can't hide. The point, in fact, is that these things are so seductive because we see and hear them all the time.

In some cases, the problem is simply overuse. The first time I heard the phrase, "Stick a fork in 'em, 'cause they're done," it was both hilarious and evocative. That was twenty years ago. Although I don't know where "throw ____ under the bus" comes from, it also has the virtue of expressing something that is readily comprehensible; but its shelf life is, I hope, going to be much less than 20 years. Um, at least I can dream.

The more interesting cases are those where a phrase has a meaning that does not express what the speaker/writer is apparently trying to convey. Late in the first Bush presidency, the question for a few months became how to "jump-start the economy." The Orwellian moment (the verbal equivalent of "jumping the shark," I guess) was when an administration spokesman argued that we should jump-start the economy by doing nothing and allowing the markets to correct themselves. Whether that was the best policy decision is debatable, but the spokesman clearly meant to say that we shouldn't be jump-starting the economy at all. This is the current fate of "it is what it is," which has gone from meaning that there a some facts that we must accept to meaning, apparently, "I don't want to defend what I just said, so I'll say something that sounds jaded and profound." Um, it doesn't.

Thinking about issues of rhetoric in the popular context is, of necessity, to study a constantly moving target. It is not a matter of purity or being grammatically correct. I simply find it interesting to see these things evolve and, admittedly, often find myself grinding my teeth in frustration. I never understood where "keepin' it real" came from, but it quickly became an exquisitely empty phrase. Earlier this week, the tennis star Venus Williams gave it a nice Orwellian twist: "Let's keep it on the real real." I won't be surprised if that becomes the next, well, real thing.

-- Posted by Neil H. Buchanan

PAKISTAN: Five Questions for Aitzaz Ahsan

(Cross-posted from SAJAforum)

This morning, Aitzaz Ahsan, the President of the Pakistan Supreme Court Bar Association and the leader of Pakistan’s “lawyers’ movement,” spoke to a large audience at the New York City Bar Association about the lawyers’ movement, the importance of an independent judiciary, and the role of U.S. policy in Pakistan’s judicial crisis. During the past year, the New York City Bar has played an active role in support of Pakistan’s lawyers and judges — organizing a solidarity rally with other area bar associations after Gen. Pervez Musharraf imposed “emergency” rule in November, issuing a statement strongly urging Musharraf to restore the rule of law, and awarding an honorary membership, one of the organization's highest honors, to Pakistan Chief Justice Iftikhar Muhammad Chaudhry.

In his remarks, Ahsan thanked U.S. lawyers and bar associations for their “unstinting support for constitutionalism, rule of law, and reinstatement of an independent judiciary in Pakistan.” He said that last November’s rally — which drew hundreds of New York lawyers to the steps of the courthouse in lower Manhattan — “was an unprecedented collective action, and it was noticed throughout Pakistan.” Ahsan expressed his view that “what has endeared the people of America to the people of Pakistan, despite the adversarial policies of the American administration, has been the support of the bar associations.”

Following his address at the New York City Bar, Ahsan briefly talked to SAJAforum about the lawyers’ movement, the prospects for reinstatement of the judges ousted by Musharraf, and the role of Pakistan’s media:

Continue reading at SAJAforum...

Posted by Anil Kalhan

Moves

Okay, it's official. I'm now blogging from Ithaca. Well, actually, I wrote this back in NYC before I left and scheduled it to go up now, on the theory that I might want to unpack some stuff before immediately blogging. But future blog entries will be postmarked Tompkins County, NY. Meanwhile, other Dorf on Law bloggers have also moved: Sherry Colb to Cornell; Jamie Colburn to Penn State; Anil Kalhan to Drexel; and Trevor Morrison to Columbia (along with a player to be named later as part of the trade for me, unless one of us flunks the physical!).

How will all of this movement affect the blog? Not at all, really. That's why they call it the World Wide Web.

Posted by Mike Dorf

Admit Nothing

Earlier this month on this blog, Mike discussed some recent examples of political figures who were caught in sexually charged situations -- Clarence Thomas, Bill Clinton, Larry Craig, and Elliot Spitzer -- and concluded that "the worst thing a public official can do if caught in a sexually charged situation is resign or announce his intention to resign, because that tends to validate the shamefulness of the conduct." On the comment board, I added the example of Barney Frank, the Democratic Congressman from Massachusetts who now chairs the Financial Services Committee. Frank faced a sex scandal of his own back in 1990 (ironically, a scandal in which he was most aggressively attacked by Sen. Larry Craig), but he asserted his innocence in the affair and was ultimately reprimanded by the House after the Ethics Committee found no evidence of involvement in illegal activity by Frank. (Details here under "Reprimand.")

While the salacious details of these and other sex-based cases garner inordinate public attention, the inference that Mike draws is, I think, simply a specific version of a more general rule that has come to dominate American politics in the last twenty-eight years: admit nothing, and bad news will fade away. This appears to be the lesson that Ronald Reagan and his supporters learned from Jimmy Carter's presidency. Carter's "malaise speech" (which, by the way, never used the word "malaise") was an especially memorable example of Carter's tendency to publicly question his own policies, the direction of the country, etc. As a result, his opponents could say: "See, even he admits that he's blowing it." The Reagan administration thus seemed to operate under the rule that the worst thing one can do is admit that anything is wrong. If you are never on record as having admitted error, after all, you have not given your opponents crucial ammunition. They can say anything they want, but unless you give in, they can merely be accused of partisanship in a game of political mudslinging.

Whether or not I am right that this began under Reagan, the second Bush's presidency took this strategy to a new level. Even when, say, Donald Rumsfeld was under the most severe attack, the strategy was to act as if there was nothing wrong. It is true that most of the controversial Bush administration figures -- Rumsfeld, John Ashcroft, and Alberto Gonzalez, to name the most obvious three -- eventually left the administration. Nevertheless, the public posture of the administration was to hold resolutely to the claim that nothing had gone wrong and that there was nothing for which it should even consider apologizing.

Interestingly, the Obama campaign seems to have adopted (consciously or otherwise) a new strategy. They have made quick work of dealing with even relatively minor problems (like Samantha "Hillary Clinton is a monster who will do anything to win" Power) , acknowledging error and moving on. The Wright affair took a bit longer to play out, but it was still handled much more rapidly than anything we've seen under the current administration. The Obama camp thus seems to believe that it is possible to admit a problem and to quickly move past it, rather than simply digging in their heels until the next news cycle. If this works -- and thus far it seems to be a successful strategy -- it suggests that the problem under Carter was not that he admitted the existence of problems but that he all but wallowed in the public admissions and wondered out loud whether there was a bigger problem.

To this point, of course, I have only been describing strategic considerations. As a substantive matter, I genuinely hope that Obama's strategy works -- not because I support his candidacy (although I do), but because he actually deals with problems and moves on to the next issue. If he appoints anyone even remotely resembling a Democratic Rumsfeld, it has to be heartening to suspect that such a person would be gone. Quickly.

-- Posted by Neil H. Buchanan

Guns in Public Housing

Wasting little time, the NRA is bringing suit against cities and suburbs with the country's most restrictive gun laws. Although San Francisco's city-wide ordinance banning guns by city residents had already been held invalid on California state law grounds, the NRA has targeted another San Francisco policy---the housing authority's insistence that tenants in public housing agree not to have guns as a condition of their leases. I have a speaking part in this NPR story on the issue, in which I say that the lawsuit will almost certainly lose in the lower federal courts because, until the Supreme Court overrules Presser and Cruikshank, the Second Amendment does not apply against the states. Although Justice Scalia has said in his off-the-Court writings that this continues to be true, I would not bet a lot of money against the Court incorporating the Second Amendment when the issue comes before it.

Here I'll raise an issue that I discussed with the NPR reporter but that was cut from the story. Suppose the Second Amendment is incorporated. It's pretty clear that if so, a city could not ban gun possession in the home. That, after all, is what Heller expressly says of the federal government. But could a city---ostensibly acting in its capacity as landlord rather than as regulator---forbid tenants in public housing from having guns?

The NRA talking point in favor of this lawsuit is that poor people should have the same right to protect their homes and families as rich people do. That's a fair point, if it really is true that private leases in San Francisco generally do not contain n0-gun provisions. But if they do, then the insertion of a no-guns lease in a public housing lease doesn't put poor people in any worse position than typical renters in the private housing market.

The better argument for the NRA position attacks the regulatory/proprietary distinction. Even if a private landlord could enforce a no-guns condition in a lease, it does not follow that a public housing authority could. Consider an analogy. State law might make enforceable a private lease that authorized the landlord to gain access to a tenant's apartment "whenever, in the landlord's sole discretion, entry is deemed useful for the safety of the other tenants." Yet a parallel provision in a public housing lease would---or at least good liberals would say "should"---raise Fourth Amendment concerns, as it authorizes warrantless searches on less than probable cause. Likewise, here: Just as the government as employer has constitutional obligations that a private employer lacks, so too the government as landlord has constitutional obligations.

The best reason to uphold a no-guns lease would be that public housing is already dangerous, and more guns will likely make it more dangerous. But that argument has just about no chance of succeeding, given that it is precisely the policy argument against a robust private right to gun ownership in the first place. If the Supreme Court eventually incorporates the Second Amendment against the states, it will presumably rule out the argument that guns may be banned because they make people unsafe. Might the San Francisco Housing Authority argue that public housing is akin to those special places recognized as permissible gun-free zones by the Court in Heller: schools and government office buildings? Although this list presumably is not exhaustive---e.g., airport gun bans are certainly valid---the mere fact that a place has a lot of crime is not going to turn it into a permissible gun-free zone. If it could, then the entire District of Columbia would qualify and the exception would have swallowed the rule in Heller.

[NB: I'll be taking a break from blogging as I move from NYC to Ithaca. Look for some posts by Neil Buchanan and possibly other co-bloggers over the next week.]

Posted by Mike Dorf

Five Days? But I'm Mad Now!

Updated: Thus spake Homer Simpson, upon being told by the salesman at Bloodbath and Beyond that state law imposed a waiting period on the purchase of guns. Speaking of the Heller case, here's my column on FindLaw should be up some time today. For this post, I'll quote my conclusion:

Yesterday’s decision may have the eventual consequence of removing strict gun control laws from the list of options available to local elected officials. If so, and if the gun control advocates turn out to have the better of the empirical argument, then the Court’s decision in Heller “will almost certainly cause more Americans to be killed.”

Those are not my words. That is what Justice Scalia had to say in dissent earlier this month in Boumediene v. Bush. He then added that sacrificing American lives “would be tolerable if necessary to preserve a time-honored legal principle vital to our constitutional Republic.” No doubt Justice Scalia believes that a personal right to armed self-defense is such a principle, but then, the majority in Boumediene thought that the availability of habeas corpus is also a time-honored legal principle.

Here I'll simply add a point I've been stewing over since reading Justice Scalia's Boumediene dissent: How does he know? Isn't it quite possible that the consequence of Boumediene will be to hasten the closing of the prison at Guantanamo, thus allowing the next President (whether Obama or McCain) to move more quickly towards restoring the image of the U.S. around the world? And couldn't that in turn lead to a diminution in the number of people who are eager to become anti-American terrorists, or to abet anti-American terrorists, or to turn a blind eye towards the activities of anti-American terrorists? "Almost certainly" is way too strong a statement given the plausibility of this alternative chain of events.

As for Heller, I'll let my column speak for itself.

Posted by Mike Dorf

Lock and Load!

As predicted (by me and everyone else) the Supreme Court affirmed the DC Circuit, 5-4 on an ideological split. Opinion available here. I'll have a FindLaw column up on the subject some time tomorrow.

Posted by Mike Dorf

Death or Torture?

In questioning the logic of yesterday's decision in Kennedy v. Louisiana, Justice Alito poses the following pair of hypothetical examples in his dissent:

With respect to the question of moral depravity, is it really true that every person who is convicted of capital murder and sentenced to death is more morally depraved than every child rapist? Consider the following two cases. In the first, a defendant robs a convenience store and watches as his accomplice shoots the store owner. The defendant acts recklessly, but was not the triggerman and did not intend the killing. See, e.g., Tison v. Arizona, 481 U. S. 137 (1987). In the second case, a previously convicted child rapist kidnaps, repeatedly rapes, and tortures multiple child victims. Is it clear that the first defendant is more morally depraved than the second?

Justice Alito thus appeals to the moral intuition that rape or torture can be at least as bad as, or worse than, murder. He might have made the point even more forcefully by pointing to the Court's own 8th Amendment jurisprudence. Under the Court's cases, torture is categorically forbidden as a form of punishment, while death is sometimes permitted. As Sherry Colb notes in a forthcoming article in the Cardozo Law Review, the categorical ban (under the 8th Amendment as well as international law) suggests that torture is categorically worse than killing---at least when the state does the torturing or the killing.

I suppose it's possible to think that torture is worse than killing when the state is the torturer or killer, but that killing is worse than torture when a private actor commits the torture or killing. But it's not at all clear WHY one might think that, and certainly there's no hint of an answer in the majority opinion in Kennedy. Indeed, the majority does not even seem to recognize the apparent inconsistency between these two branches of the Court's 8th Amendment jurisprudence.

I think it's fair to conclude that the majority in Kennedy was not simply imposing its own subjective value judgment that murder is categorically worse than rape of a child. As Justice Alito's examples and the Court's own jurisprudence show, this is not an attractive value judgment and thus one I doubt a majority of the Court holds. Accordingly, the factors that appear to be doing the work in Kennedy are: (1) the fact that very few states permit the death penalty for the rape of a child; (2) the heightened risk of executing an innocent defendant when the testimony of young children is needed; and (3) the Court's lack of appetite for developing a whole new body of jurisprudence about capital sentencing for child rape.

The Court's reliance on factor (1) can be challenged vigorously (as it was in the case and by Justice Alito's dissent) by noting that Coker itself inhibited states that otherwise would have imposed the death penalty for the rape of a child from doing so. Factor (2) could be a reason to adopt special procedures where the testimony of young children is a key element of a case, but it's not clear that it supports a categorical ban: in some cases there will be physical evidence and eyewitness testimony from unimpeached adult witnesses. That leaves factor (3), which, it seems to me, was crucial.

One can read the Kennedy opinion as an admission that the Court's death penalty jurisprudence since Furman is basically a failure: It requires procedures to narrow sentencing discretion but also forbids taking away the sentencer's ability to consider all manner of mitigating evidence; and still the best (negative) predictor of a death sentence may be the quality of lawyering a defendant receives.

In this regard, it is significant that the Court's three anti-death penalty decisions in recent years---Atkins, Roper and now Kennedy---all make classes of individuals categorically ineligible for the death penalty. None of them imposes procedural requirements in the style of the earlier cases. That doesn't necessarily mean that any or all of these cases is rightly decided. But it does suggest that there is a logic to the Court's recent death penalty jurisprudence.

Posted by Mike Dorf