April is now here — the Cherry Blossoms are blooming in D.C., warmer weather has returned, and many are at least thinking about spring cleaning. April is also a time for commemorating Equal Pay Day. Equal Pay Day is observed in April to mark the point in each year at which an average woman’s wages finally catch up to the wages earned the year before by the average man. And this year women, who make 77 cents for every dollar a man makes (63 cents for African American women and 52 cents for Latinas), reach that point on April 22nd.

I’ve already decided what I want for Equal Pay Day. True, typically gifts are not exchanged — indeed, if there were a gift it would be finally closing the wage gap so that Equal Pay Day would no longer be a necessary commemoration. But this year workers are still reeling from the Supreme Court decision in Ledbetter v. Goodyear Tire & Rubber Co. from last term and so a shorter term gift is in order.

Just a bit of background on the decision — for many years, the supermajority of courts (indeed, 9 of the 10 courts to consider the issue) and the EEOC applied a commonsense rule to pay discrimination claims: each paycheck renews the discrimination and the statute of limitations. Then came Ledbetter. Lilly Ledbetter spent close to 20 years at Goodyear receiving pay that was far less than the amounts earned by male co-workers performing the same job. But she did not have firm evidence of discrimination until very close to the time she retired, when she received an anonymous note informing her of the pay discrimination. Nonetheless, last May the Supreme Court ruled 5-4 that employees have only 180 days after the first discriminatory paycheck to file a formal complaint, even when the discrimination persists to the present time and even when employers continue to gain a windfall from it.

The Ledbetter decision turned the longstanding circuit court and EEOC rule on its head. Not only is it unworkable (pay information is often confidential and, unlike other forms of discrimination, paychecks are not announced, or treated by employees, as adverse employment actions), but it also provides incentives for employers to hide discriminatory pay decisions for the first six months, hoping to then discriminate free of charge.

Last summer the House of Representatives responded swiftly by passing legislation to restore the law to the way it has always been. The Senate introduced similar legislation in the Fair Pay Restoration Act . The Act makes clear that compensation discrimination claims accrue whenever a discriminatory compensation decision or practice is adopted, when a person becomes subject to the decision or practice, or when a person is affected by the decision or practice, including whenever he or she receives a discriminatory paycheck . This legislation would ensure that workers are protected from workplace discrimination as Congress intended.

The National Women’s Law Center has more information on how you can help commemorate Equal Pay Day or participate in the Fair Pay Campaign. Lawyers and law students can also get involved here.

President George W. Bush is demanding that the Senate essentially abandon its constitutionally-mandated “advise-and-consent role” in selecting lifetime judges. Bush’s string of nominees is a blatant attempt to force the Senate into a Hobson’s choice: rubber-stamp his unilateral, extreme choices or create artificial vacancies that rally the President's narrow, right-wing base. Senators must Just Say No and insist they will only confirm nominees who are competent, fair and independent, and who demonstrate that they will uphold and enforce our Constitution and laws.

A Tale of Two Nominees

Major new developments regarding President George W. Bush’s torture policies focus on Jay Bybee and William J. Haynes, two of his nominees for lifetime seats on federal appeals courts.

On February 22, the Department of Justice’s Office of Professional Responsibility revealed that for more than three years it has been investigating whether an Aug. 1, 2002 DOJ legal memorandum improperly declared that interrogation methods were not torture unless they produced pain equivalent to that produced by organ failure or death. This memorandum, which was signed by Jay Bybee, as head of DOJ’s Office of Legal Counsel, was withdrawn in 2004.

The Justice Department is “examining whether the legal advice in [this and other] memoranda was consistent with the professional standards that apply to Department of Justice attorneys.” This is too late, however, to inform Senators’ advice-and-consent duty; on March 13, 2003 the Senate voted 74-19 to confirm Bybee’s nomination to the Ninth Circuit Court of Appeals.

In contrast, evidence of the role of Defense Department General Counsel William J. Haynes II emerged in time to raise concerns that led Republican and Democratic Senators to derail his Fourth Circuit nomination in Committee.

returning to private life” following the news that he had echoed the “sentence first - verdict afterwards” demand of the Queen of Hearts’ in Alice in Wonderland . Col. Morris Davis, the former Guantanamo military commission chief prosecutor, revealed that he had suggested to Haynes that, as in the Nuremberg tribunals, some acquittals could result in great credibility. Haynes replied by insisting “we can't have acquittals. If we've been holding these guys for so long, how can we explain letting them get off? We can't have acquittals. We've got to have convictions.”

Curiouser and Curiouser

Maryland’s Senators testified against Claude Allen’s nomination to a Maryland Fourth Circuit seat because he lived in Virginia and had a questionable record. After Allen withdrew, he pled guilty to shoplifting theft.

District Judge James Payne’s Tenth Circuit nomination was withdrawn after reports that his “career on the federal bench was riddled with conflicts of interest: . . . he issued more than 100 orders in at least 18 cases involving corporations in which he had reported stock holdings” despite legal and ethical bans against sitting on such cases.

Charles Pickering’s lifetime Fifth Circuit nomination was blocked in part because, as a District Judge, he unethically solicited attorneys with cases pending before him to send him letters supporting his elevation to the appeals court.

Fifth Circuit nominee Michael B. Wallace withdrew after he received the first unanimous American Bar Association "Not Qualified" rating for an appellate nominee in 24 years.

When failed Ninth Circuit nominee William G. Myers was the Interior Department’s top lawyer, his pro-industry refusals to enforce laws that protect the environment and tribal rights were rejected by federal and state courts and by his own Department. He was the only judicial nominee ever opposed by the National Wildlife Federation and by the National Congress of American Indians, which represents more than 250 tribal governments.

Bush is unnecessarily antagonizing home-state Senators from six states by refusing to discuss appellate nominees and nominating those he knows they oppose. For example, Senators John Warner (R-VA) and Jim Webb (D-VA) interviewed many candidates for two 4^th Circuit vacancies and jointly recommended a Bush district court judge and four others. Bush ensured a continuing vacancy by nominating E. Duncan Getchell, whom they had interviewed and rejected Getchell withdrew after he was named in $7.5 million defamation suit by another lawyer, who alleged that Getchell, so as not to "doom his judicial aspirations," shifted blame for the Virginia Supreme Court’s dismissal of an appeal because trial transcripts were not filed on time.

President Bush’s controversial nominees tend to have extremely restrictive views on the same vital constitutional issues. These include how much Congress can allow citizens to challenge government decisions in court and the scope of the Constitution’s Commerce Clause, which is the source of congressional authority to protect workers, consumers, civil rights, and the environment.

Controversies regarding two pending Fourth Circuit nominees raise other issues.

Robert Conrad Jr. denounced Sister Helen Prejean as a "church-hating nun" and her book, "Dead Man Walking," as "liberal drivel." He approved burying streams with mine waste--which three dissenting judges said "eviscerates" Clean Water Act language.

Steve A. Matthews was an officer and director of the Landmark Legal Foundation when it tried to nominate Rush Limbaugh for a Nobel Peace Prize. Landmark is headed by Mark R. Levin, who ridicules global warming as “nonsense” and “phony,” and Sen. John McCain (R.-Ariz.) and Joe Lieberman (I-Ct) as “liberal idiots.” In “Men in Black: How the Supreme Court Is Destroying America,” Levin thanked Matthews for having “supported me in all I do and wrote that the Supreme Court was “merely upholding the Constitution” in its long-discredited 1936 ruling that Congress lacks authority to regulate employer-employee relations, including “wages, working conditions, the right of collective bargaining, etc.”

Advise and Consent and Just Say No

The Constitution entrusts Senators with an “advise and consent” role in selecting lifetime members of our independent third branch of government, the federal judiciary. Our Senators essentially conduct job interviews to decide whether to confirm judges who serve for life and cannot be fired.

The importance of who serves on the bench was illustrated by a series of recent 5-4 Supreme Court decisions. For example, President Bush’s nominees, Chief Justice Roberts and Justice Alito, have been decisive votes in gutting landmark civil rights laws. In Massachusetts v. EPA, Roberts, Alito, Scalia and Thomas were one vote away from holding that the Constitution prohibited the case from ever being filed and that the Clean Air Act does not cover global warming gases from motor vehicles.

In nearly all federal cases, however, U.S. Circuit Court of Appeals judges have the final word on a wide range of Constitutional and other vital issues. We rely on fair and impartial judges to ensure citizen access to courts and to uphold and enforce laws that are violated by big corporations and powerful government officials.

In turn, we rely upon our Senators to ensure that they do not confirm unqualified nominees. This includes nominees whose records show that they would rewrite the Constitution to deny access to court and to strike down laws they personally do not like that protect our individual rights, health, safety, and environment.

President Bush’s pattern of choosing nominees because they will not be confirmed creates artificial vacancies that he has highlighted in a series of events designed to inflame his right-wing base.

The Senate, however, has amply demonstrated that it is more than fair by confirming 298 of Bush’s judicial nominees. If the Senate Just Says No to all controversial nominees, President Bush may begin to respect the Senate’s constitutional advise-and-consent role in selecting lifetime judges.

Guantanamo Naval Base, February 5, 2008-- After more than six years, the basic questions of who can be tried by military commission, for what charges and under what procedures remain unresolved. Yesterday’s pretrial hearing in Omar Khadr’s case only underscored this point. Yet the U.S. government continues to insist on trying to use these military commissions as an end-run around standards and procedures for criminal justice that have served the United States well for over 200 years.

Four Lessons Learned

Lesson 1: Many long-standing principles of fundamental justice – American or international – seem not to count in Guantanamo (Part A: juvenile justice).

Omar Khadr is accused of killing U.S. Army Sergeant First Class Christopher Speer in Afghanistan in 2002. The government alleges that Khadr threw a hand grenade at the soldier from a house during a firefight with U.S. forces. Khadr was fifteen years old at the time.

If Khadr ultimately is tried by military commission, he may not be the first person ever put on trial for alleged war crimes committed while a minor, but it could well be a first for the United States. The defense argued yesterday that Congress never intended to have these military commissions try juvenile offenders.

This isn’t to say that Khadr shouldn’t be held responsible if he indeed committed serious offenses; even the defense conceded that Khadr could properly be tried as a juvenile in a system incorporating fundamental standards of juvenile justice and other fair trial rights. But the Military Commissions Act (“MCA”) makes no mention of juvenile offenders. Since the military commission process is modeled after the Uniform Code of Military Justice (“UCMJ”), the defense argued that the presumption should be in favor of following the UCMJ, under which general military criminal jurisdiction is limited to adults. The defense also noted that every “civilized justice system” in the world – including the United States – distinguishes between minors and adults in imposing criminal punishment.

The defense also cited the Optional Protocol to the Convention on the Rights of the Child on Involvement of Children in Armed Conflict (“Optional Protocol”). The Optional Protocol was ratified by the United States in 2002 and took effect in 2003. It prohibits both armed forces and even mere “armed groups” from recruiting or using in hostilities juveniles under the age of eighteen. It regards child soldiers as victims in need of rehabilitation, not as true volunteer “soldiers” capable of making an informed choice to join a military force. Under the Optional Protocol, said U.S. Navy Lieutenant Commander William Kuebler, Khadr’s lead defense counsel, Khadr is “a victim of al Qaeda, not a member of al Qaeda”; as a result, he does not have the requisite military status for military jurisdiction to be imposed.

Kuebler accused the government of attempting to create a “one-size-fits-all justice system” that fails to differentiate between minors and adults. The government contends the MCA provides jurisdiction over “all persons” who are designated enemy combatants irrespective of their age. The government’s interpretation, according to Kuebler, could lead to the ridiculous result of charging five-year-olds with war crimes, and even subjecting them to the death penalty. The government acknowledged yesterday that its interpretation of the MCA would allow for the imposition of the death penalty on juveniles. The government called this argument a “red herring” because no juvenile – including Khadr – has to date been charged with a capital offense.

What explains the government’s determination to try Khadr under the MCA for alleged offenses which – if he committed them at all – he committed as a juvenile? Rather than acknowledge error in detaining child soldiers like Omar Khadr in Guantanamo Bay, the government at least fosters an impression that it would rather dig its heels in and use the MCA to cover past mistakes. 

Lesson 2: Many long-standing principles of fundamental justice – American or international – seem not to count in Guantanamo (Part B: ex post facto laws).

Another of Khadr’s lawyers, Rebecca Snyder, argued yesterday that applying the MCA to Khadr also would violate constitutional and international legal principles banning ex post fact o laws, because the MCA was not even enacted by Congress until four years after Khadr committed his alleged offenses. None of these offenses violated the law of war as it existed at the time of the alleged events , nor did they violate any applicable U.S. law in effect when Khadr was captured in 2002.

The prosecution argued that ex post facto principles do not apply in this case. According to the government, the U.S. Constitution does not protect aliens detained as enemy combatants at Guantanamo Bay – although the Supreme Court has questioned whether Guantanamo, which is under effective U.S. government dominion, is truly “abroad” for purposes of determining what law applies – and international ex post facto principles are irrelevant because Congress is not bound by international law.

Let’s take this out of the context of point/counterpoint by the defense and prosecution in this particular case. The prohibition against ex post facto prosecution is without doubt simply one of the most fundamental principles of both U.S. constitutional and international criminal law, including the law of war. It certainly is an intrinsic element of Common Article 3 of the Geneva Conventions, which requires fair trials in accordance with international standards. And the Supreme Court has already determined that Common Article 3 is indeed a part of U.S. law and applies to the Guantanamo detainees.

Contemporary statements by congressional sponsors of the MCA that the MCA fully complies with Common Article 3 – and indeed was intended to do so – can only be seen as a clear refutation of the argument the U.S. government made in Guantanamo yesterday: that ex post facto principles that apply in the United States and throughout the “civilized world” do not apply in Guantanamo Bay.   

Lesson 3 :  Military commission proceedings are transparent only when the government wants transparency, and remain shrouded in secrecy when the government does not.

Yesterday’s pretrial hearing took several hours, but the greatest excitement occurred after the hearing, when the Office of Military Commissions discovered that a protected government document marked FOUO (“For Official Use Only”) had been inadvertently disclosed to the media. 

The document is potentially critical for the defense, apparently summarizing an interview by U.S. government investigators of a purported witness who said Khadr was not the only “enemy combatant” in the house when the grenade was thrown. According to Commander Kuebler, the witness said he saw a second individual in the house with Khadr – a second person, a combatant, who was alive and armed and fighting. 

The government properly turned this document over to the defense in discovery. Then the defense attached it as an exhibit to one of its court filings. Since the government had marked the document as FOUO, however, following military commission rules the defense agreed to withhold the document from copies of the filing released to the press. When the brief was distributed yesterday morning, however, the FOUO document was accidentally attached.

At a press conference after the hearing, Kuebler explained that although the defense was bound by a protective order to withhold the document, since it had been inadvertently released, “we’re content with the public disclosure…. Frankly, we’re happy to have it out there.”

Kuebler believes the government is abusing its power by over-classifying documents and “playing games with protective orders.” According to Kuebler, nearly all the evidence in Khadr’s case has remained outside public view. Evidence is disclosed only when “the government decides to dribble it out.” As an example, Kuebler accuses the government of leaking several prejudicial and unnecessary facts in its filings responding to defense motions to dismiss.

It’s not necessary to accept everything Khadr’s lawyer says at face value. From what we know of this particular document produced by the government, documenting a witness interview conducted by the government, there is no good reason – no compelling national security reason – why its substance should be kept from the public, responsibly protecting of course the identity of individuals participating in the interview.

So much for transparency. If the government continues to withhold as “secret” such evidence from public (and sometimes defense) view, it cannot expect to gain public trust and confidence in the process. Observers may be inclined here to conclude that the government’s reason for wanting this document withheld from public view is to keep from the public a piece of evidence that suggests someone other than 15-year-old Omar Khadr may have thrown the grenade that killed a Sergeant Speer. That may be an accurate assessment, or it may not. But it is the government’s approach to these military commissions, and its rejection of so many fundamental principles of justice, that has created this mistrust. 

Lesson Number 4: The government seems to have forgotten the meaning of proof beyond a reasonable doubt.

The document described above that was the subject of yesterday’s excitement reportedly does more than provide evidence that there was a second person alive – and fighting – in the house where Khadr was taken. According to Commander Kuebler, the document also indicates there were no eyewitnesses to the actual killing of Sergeant Speer; thus no one saw whether it was Khadr or the other person who threw the grenade.

If true, it’s difficult to conceive that the prosecution would be able to carry its burden of “proof beyond a reasonable doubt” against Khadr in a regular civilian criminal court – or even in a regular U.S. military court-martial. Perhaps the government believes this standard of proof will have a different meaning to a military commission.       

More disturbingly, according to Kuebler the document provides evidence that U.S. soldiers shot Khadr twice in the back after he had already been wounded, and was sitting and out of the fight: “[I]t would be difficult to describe his near fatal shooting while wounded and hors de combat as anything other than something very akin to an attempted summary execution,” says Kuebler. “This could explain the government’s decision to hold him responsible for tossing a hand grenade despite the absence of any eyewitness to the incident … and [despite] the fact that at least one other person was alive and fighting when Sergeant Speer was mortally wounded.”

If Kuebler’s claims are correct, the Khadr prosecution smacks of desperation – at best. Of course, we have no way of fully weighing Kuebler’s arguments – the American people have no way of weighing them – because the U.S. government chronically withholds relevant evidence necessary to evaluate what really is happening in these proceedings in Guantanamo. Even when the government produces evidence to the defense it often does so (as it did here, or tried to) on condition that the defense not make it public.

Allowing a handful of NGOs and media to observe these proceedings does not make them transparent. Legitimate judicial proceedings are not truly transparent when they are transparent only to the extent the government wants transparency, but remain shrouded in secrecy when the government does not. It’s not hard to understand why the word “Guantanamo” now carries such a stain that even President Bush has said the camp should be shut down.

A Final Lesson

The lesson of these four lessons? Pay no attention to the man behind the curtain. What we saw yesterday in Guantanamo are precisely the kinds of short-cuts around, and even wholesale abandonment of, core principles that can lead to unjust convictions – or to the government’s inability we’ve see for years to be able to obtain sustainable convictions at all, even in cases that demand prosecution and conviction. This approach to prosecuting detainees has harmed U.S. government efforts to win hearts and minds in its counterinsurgency efforts by allowing the adversary to portray U.S. government conduct as illegitimate by the United States’ own standards of justice and humane treatment, running counter to core teachings of the U.S. Army’s and U.S. Marine Corps’ own Counterinsurgency Field Manual, drafted so recently under the supervision of General Petraeus. By so doing the government has denigrated the reputation of the United States for fairness and has undermined the United States’ efforts to promote human rights worldwide.

As Congress begins to investigate allegations concerning the destruction of videotapes of detainee interrogations by the C.I.A., there are questions that arise concerning the ability of Congress to engage in effective oversight of executive branch agencies in the area of national security. The Department of Justice has already pushed back and asked Congress to stay its inquiries into the destruction of the tapes, citing potential interference in the concurrent criminal inquiries initiated by the Department.

This well known Kabuki dance between Congress and the Executive branch over the intersection between oversight and criminal law enforcement has played out hundreds of times since the beginning of the Republic, in our lifetimes most notably in Watergate and Iran-Contra. There is an equally insidious way in which these shared investigative powers collide—and that is in the way in which the Executive seeks to control and intimidate Congressional oversight by reliance on the classification system and the veiled, and sometimes direct, threat of prosecution of members of Congress for disclosing classified information in the course of performing their oversight responsibilities.

One such recent episode illustrates the way in which this threat unduly and illegitimately inhibits the kind of oversight Congress should be doing in this area. In 2003, Senator Jay Rockefeller, the ranking Democrat on the Senate Intelligence, felt compelled to write a handwritten secret letter to the Vice President expressing his concerns about the Executive’s surveillance program. See Charles E. Schumer: Under Attack: Congressional Power in the Twenty-First Century . According to media stories at the time, Senator Rockefeller felt constrained to use this low key fully private approach for fear that a more robust formal official channel would have been subjected to charges that he violated strictures on the disclosure of classified information.

Of course, from a constitutional and legal prospective, any such fear was unfounded, as established by the landmark Vietnam era case Gravel v. United States .

On June 29, 1971 Senator Gravel  convened a night-time meeting of the subcommittee on Buildings and Grounds, which he chaired, and placed the 47 volumes of the Pentagon Papers (a study of the causes and conduct of the Vietnam war) into the public record. The Justice Department commenced a grand jury investigation into possible criminal conduct in the release and publication of the study by Beacon Press and subpoenaed an aide to the senator. Senator Gravel intervened on his behalf and asserted that questioning the aide about his involvement in the committee hearing or the subsequent publication by Beacon Press contravened the Constitution’s “speech or debate” clause, which provides immunity to Members of Congress for their performance of legislative acts. The Court held that neither the Senator, nor his aide, could be questioned concerning their preparations for the hearing, communications between the Senator and aides relating to that meeting or anything said or done at the hearing. The Court also held that the grand jury could question the arrangements with Beacon Press concerning private publication of the Pentagon Papers because efforts to disseminate the study outside of Congress didn’t constitute protected legislative activity.

The Court protected the conduct of the hearing, even though the hastily convened night-time meeting was a none too subtle attempt to shield the dissemination of classified material, and even though such acts of dissemination, if performed outside of Congress, would be subject to criminal prosecution.

Under Gravel, Senator Rockefeller (nor any other member of Congress) need not have been either so secretive or reticent to use official channels to question the surveillance program, or for that matter any other subject of national security. Indeed, he could have officially communicated with relevant Executive officials, shared that correspondence with his colleagues on the Committee, or even taken to the Senate floor to speak about the issue. (Whether such conduct would have been consistent with Senate and Committee rules governing classified information would be a matter only for the Senate and could play no part in any Executive branch examination of his conduct). The "Speech or Debate" clause protection is based on its English antecedent, the product of several centuries struggle by Parliament to attain independence from the Crown. In this country it was adopted without debate at the constitutional convention to provide the same independence to legislators to be free from intimidation by the executive, or accountability before the judiciary.

The Rockefeller episode illustrates how too often legislators are cowed into acquiescence or timid supplications with respect to issues involving classified documents or matters by an aggressive or threatening Executive branch. Of course, over 30 year ago in a case eerily reminiscent of the current controversies, the Supreme Court laid to rest the notion that legislators could be questioned by the Executive branch for doing their job. Every member of Congress needs to read the Gravel decision to appreciate the broad constitutional protection they have been afforded by the Framers to inquire into the Executive’s administration of our national security apparatus.

    We are now several weeks into the Supreme Court’s 2007 Term. We should keep a watchful eye on the Court. With Chief Justice Roberts and Justice Alito now firmly ensconced, we might be on the verge of a significant paradigm-shift within the Court. If their performance last Term is any indication of what is to come, we may be in for quite a ride.

    In the media, we constantly read about how “closely divided” the Court is and about how many cases are decided by a vote of five-to-four. There are, according to the media, the “conservative” Justices – Scalia, Thomas, Roberts, and Alito; the “liberal” Justices – Stevens, Souter, Ginsburg, and Breyer; and Justice Kennedy -- the “man in the middle.” The impression created by such accounts is that this is an “evenly balanced” Court. This is a fallacy, and a dangerous one at that. What do we mean by “balance”? Why don’t the many five-to-four decisions prove that this is a “well-balanced” Court?

    The Supreme Court has discretionary jurisdiction. It generally agrees to decide only the “hardest” cases. What are the “hardest” cases? Most often, they are the ones about which the Justices are divided. That, indeed, is largely what makes them “hard.” Thus, one can reasonably expect that the Supreme Court is most likely to hear those cases that will most sharply divide the Justices, because those are the cases about which the law is most uncertain. Even a Court consisting of nine Scalias or nine Ginsburgs would eventually wind up dividing five-to-four in the cases it agrees to decide, because it is the division within the Court itself that defines the cases that most demand the Court’s attention.

    The important question, then, is not whether the Court often divides five-to-four, but where on the constitutional spectrum the decisive Justice sits. Depending on the makeup of the Court, that Justice might split the difference between Scalia and Thomas, on the one end, or she might split the difference between Brennan and Douglas, on the other.

    Within any set of nine Justices, some will be relatively more “conservative” and some will be relatively more “liberal.” That they often divide five-to-four tells us nothing about “balance” and nothing about whether the Court as a whole is “liberal,” “conservative,” moderate, or whatever. It tells us only that the Justices often divide five-to-four, which tells us nothing about the Court as a whole.

    The current Supreme Court is not “balanced” in any meaningful sense of that term. It is, in fact, an extremely conservative Court – more conservative than any group of nine Justices who have sat together in living memory. Here are some ways of testing this proposition:

• Seven of the current nine Justices were appointed by Republican presidents.

• Twelve of the fourteen most recent Supreme Court appointments have been made by Republican presidents.

• Four of the current Justices are more conservative than any other Justice who has served on the Court in living memory.

• The so-called “swing vote” on the Court has moved to the right every single time it has shifted over the past forty years, from Stewart to Powell to O’Connor to Kennedy.

• As Justice Stevens recently observed, every Justice who has been appointed in the past forty years was more conservative that the Justice he or she replaced.

• If we regard Warren, Douglas, Brennan, and Marshall as the model of a “liberal” Justice, then there is no one within even hailing distance of a “liberal” Justice on the current Supreme Court.

    In fact, the current Court consists of five conservative Justices, four of whom are very conservative, and four moderate Justices, one of whom, Ginsburg, is moderately liberal. As Justice Stevens recently observed, it is only the presence of so many very conservative Justices that makes the moderate Justices appear liberal. But this is merely an illusion.

    Now, I know I have been tossing around the terms “conservative” and “liberal” as if they have clear, well-defined meanings, when of course they do not. So, I must clarify what I mean by these terms.

    When people think of a “liberal” Justice, they are usually thinking of Justices like Earl Warren, William Brennan, and Thurgood Marshall. What made these Justices “liberal”? To begin with, they shared a common vision of the purpose of judicial review. They believed that a primary responsibility of the judiciary is to protect individual liberties, and most especially the rights of minorities and others whose rights might not be fairly protected in the majoritarian political process. They believed that this responsibility was both contemplated and intended by the Framers of our Constitution as a fundamental check on the power of the elected braches of government, and they believed that courts can fulfill this responsibility only by actively interpreting the Constitution to ensure that democracy operates both properly and fairly.

    It was therefore a “liberal” approach to constitutional interpretation that produced such decisions as Brown v. Board of Education, forbidding racial segregation, Engel v. Vitale, prohibiting school prayer, Reynolds v. Sims, protecting the principle of “one person, one vote,” Gideon v. Wainwright, guaranteeing the right to counsel to those accused of crime, Goldberg v. Kelly, requiring a hearing before the termination of welfare benefits, and the Pentagon Papers case, forbidding the government to enjoin the publication of classified information about the Vietnam War. Each of these decisions, and many others besides, illustrates what most people mean by a “liberal” approach to judicial review.

    Defining a “conservative” Justice is more difficult. I would identify at least three different types of judicial conservatives. First, there is what we might call the “judicial passivist.” This type of “conservative,” typified by Felix Frankfurter and John Marshall Harlan, acts on the view that judicial review is an extraordinary exercise of undemocratic governmental authority, and that it should therefore be employed only when a law is clearly unconstitutional. At their best, such judicial passivists are principled, even-handed, and neutral in their reluctance to invoke the power of judicial review.

    The basic assumption of this type of “conservative” jurist is that democratically-enacted laws are presumptively constitutional and should be invalidated only when there is no doubt of their invalidity. To do otherwise, they believe, would be an illegitimate judicial usurpation of the legitimate authority of the majority to make whatever laws they see fit, subject only to clear and unequivocal constitutional limitations.

    When critics attacked the “liberal” Justices of the as “activist” in the 1950s and ‘60s, what they usually said they wanted were “passivist” Justices who would exercise “judicial restraint” and give the democratic branches of government the deference they deserve. I should note, by the way, that judicial passivists do not necessarily reach politically “conservative” results. On some issues, such as the constitutionality of affirmative action, campaign finance regulation, regulations of the market, and regulations of commercial advertising, principled passivists will reach results that are politically liberal. Thus, this approach is institutionally, but not necessarily politically, conservative.

    A second form of “conservative” Justice is the so-called “originalist.” Originalism is, in a sense, a variant of “passivism,” but it is not institutional passivism. That is, it is not based on the assumption that courts should err in favor of upholding laws. Rather, it is based on the assumption that courts should invalidate laws only when they are confident that the Framers affirmatively intended the particular practice at issue to be unconstitutional. Thus, in theory, originalists can be either activist or passivist, depending on their reading of the Framers’ intent in any specific situation.

    Justices Scalia and Thomas are the best examples of “originalist” conservatives. Unlike “liberal” Justices, they do not ask whether the law at issue infringes the underlying purpose of a particular constitutional provision; and unlike conservative passivists, they do not uphold every law that has a reasonable justification. Rather, they ask whether the Framers themselves affirmatively intended to prohibit the practice or policy in question.

    In theory, originalism can be “liberal” as well as “conservative” in its results, depending upon what the Justice thinks the Framers intended. Justice Scalia, for example, has taken what might be seen as conventionally “liberal” positions in cases involving such issues as flag burning, the Confrontation Clause, and habeas corpus, because of his understanding of the Framers’ intent. Most often, however, originalism, at least as it applied by its typically conservative adherents, leads to results that are conventionally conservative.

    The third form of “conservative” Justice is the “conservative activist.”  A conservative activist aggressively interprets the Constitution and invokes the power of judicial review to implement conservative political values. Justices McReynolds, Sutherland, and Peckham are good examples, as illustrated by their decisions during the early years of the twentieth century, when they broadly construed the so-called “freedom of contract” to invalidate all sorts of progressive legislation. In the modern era, I would describe Justices Rehnquist, Roberts, Alito, and sometimes Scalia, Thomas, and Kennedy, as “conservative activists.”

    Recent cases that illustrate “conservative activism” include decisions that aggressively interpret the First Amendment to invalidate restrictions on commercial advertising and campaign finance regulations,  aggressively interpret the Equal Protection Clause to invalidate affirmative action, aggressively interpret the takings clause to invalidate laws regulating property, and aggressively interpret the principle of federalism to invalidate federal laws dealing with such issues as domestic violence, handguns,  the environment, and age discrimination.

    In my view, “conservative activism” is the least principled and least justified of the four approaches I have identified. Unfortunately, it is also the prevalent form of constitutional interpretation on the Supreme Court today.  Because it is so important, I should illustrate just how strongly this approach has shaped the jurisprudence of some recent Justices.

    A good example is the approach adopted by Justices Rehnquist, Scalia, and Thomas with respect to the Equal Protection Clause. My interest in this particular example was triggered several years ago by the Court’s five-to-four decision in Bush v. Gore, in which the majority held that the recount process ordered by the Florida Supreme Court in the 2000 presidential election violated the Equal Protection Clause. The decision in Bush v. Gore rested upon a conventionally “liberal”-type interpretation of the Equal Protection Clause. What was surprising, at least to me, was not the constitutional principle, but that Justices Rehnquist, Scalia and Thomas endorsed it.

    No one familiar with the jurisprudence of Justices Rehnquist, Scalia and Thomas could possibly have imagined that they would vote on this basis to invalidate the Florida recount process in light of their own well-developed and oft-invoked approach to the Equal Protection Clause. In the decade leading up to Bush v. Gore, Justices Rehnquist, Scalia and Thomas cast 65 votes in non-unanimous Supreme Court decisions interpreting the Equal Protection Clause. Nineteen of those votes were cast in cases involving affirmative action, and I will return to them in a moment.

    Of the 46 votes that these Justices cast in cases not involving affirmative action, Rehnquist, Scalia and Thomas collectively cast only two votes to uphold a claimed violation of the Equal Protection Clause. Thus, these three Justices found a violation of Equal Protection only 4 percent of the time in non-affirmative action cases. For the sake of comparison, over this same period, and in these very same cases, the colleagues of Justices Rehnquist, Scalia and Thomas collectively voted 74 percent of the time to uphold the Equal Protection Clause claim. 74 percent versus 4 percent. Of course, those cases involved laws that disadvantaged African-Americans, women, gays, the disabled and the poor -- groups that are surely less deserving of concern under the Equal Protection Clause than the beneficiary of the Court's decision in Bushv. Gore.

    But this is not a fair characterization. After all, I have excluded from the above analysis the votes of Justices Rehnquist, Scalia and Thomas in affirmative action cases. In those cases, these three Justices consistently demonstrated the same spirit of bold and innovative interpretation of the Equal Protection Clause that they manifested in Bush v. Gore. Indeed, in the decade leading up to Bush v. Gore, these three Justices collectively cast 19 votes to invalidate various forms of affirmative action. This represents 100 percent of their votes in those cases -- a perfect record. (Their colleagues, by contrast, voted only 33 percent of the time to invalidate such programs.)

    What does this tell us? It tells us that Justices Rehnquist, Scalia and Thomas have a rather odd view of the United States Constitution. Apparently, the Equal Protection Clause, which was enacted after the Civil War primarily to protect the rights of newly freed slaves, is to be used for two and only two purposes -- to invalidate affirmative action and to invalidate the recount process in the 2000 presidential election.

My second illustration of “conservative activism” involves Justice Rehnquist and the First Amendment. Here is a straightforward analysis of Rehnquist’s record in cases involving the First Amendment's “freedom of speech, or of the press.” In his more than 30 years on the Supreme Court, Justice Rehnquist participated in 197 non-unanimous decisions involving these freedoms. In these cases, Rehnquist voted to support the First Amendment claim only 8 per cent of the time. In these same cases, the other Justices voted to uphold the First Amendment challenge 55 per cent of the time. Thus, in non-unanimous decisions, the other Justices were 6 times more likely than Justice Rehnquist to find a law in violation of “the freedom of speech, or of the press.”

There were only four areas in which Justice Rehnquist showed any interest in enforcing the constitutional guarantee of free expression: in cases involving commercial advertising, religious expression, campaign finance regulation, and the right of the Boy Scouts to exclude gays. Rehnquist was 2.6 times more likely to invalidate laws restricting commercial advertising than laws restricting political or artistic expression. He voted to invalidate campaign finance legislation 67 per cent of the time, and he voted to invalidate restrictions on religious expression 100 per cent of the time. Indeed, in non-unanimous decisions, Rehnquist was 14.7 times more likely to vote to invalidate a law restricting commercial advertising, campaign expenditures, or religious expression than one involving any other aspect of “the freedom of speech, or of the press.”

What all this leads me to conclude is that Justice Rehnquist’s record with respect to “the freedom of speech, or of the press” cannot be defended as principled, coherent, or neutral. His inclination to sustain First Amendment claims only when they involved commercial advertising, campaign expenditures, religious expression, or the exclusion of homosexuals belies any plausible theory of originalism, judicial restraint, or even-handed constitutional interpretation. When all is said and done, Justice Rehnquist's First Amendment belongs to corporations, wealthy political candidates, churches, and homophobes. This is what I mean by “conservative activism.”

Why Judicial Passivism, Originalism, and Conservative Activism are Misguided

Having identified three conservative approaches to constitutional interpretation –passivism, originalism, and conservative activism, I would like now to evaluate the relative wisdom of each.

Passivism – the approach that says courts should uphold all laws unless they are unconstitutional beyond a reasonable doubt – has the virtue of insulating courts from difficult constitutional issues and giving great deference to the decisions of the democratically-elected branches of government. Unfortunately, these are also its vices. Most fundamentally, this approach misapprehends the essential nature of our constitutional system and abdicates a central responsibility of the judiciary.

To understand why this is so, it is helpful to return to the original debate over the adoption of a Bill of Rights. Those who opposed a Bill of Rights argued, among other things, that a list of enumerated rights in the Constitution would serve little, if any, purpose, for in a self-governing society the majority could simply run roughshod over whatever rights are guaranteed in the Constitution. How would listing our rights restrain the people from violating them? Moreover, as skeptics about human nature, the Framers had little doubt that for reasons of self-interest, prejudice, panic, passion, and intolerance, the majority of the people would pay little attention to the rights of minorities.

James Madison, the most influential of the Framers, understood that the protection of rights in a self-governing society posed a novel question. Where traditional theory had focused on rights as necessary to protect the people against the King, Madison recognized that in a republic rights are necessary to protect one segment of the community – particularly minorities – against the self-interested demands and interests of the majority.

As wrote at the time, the real source of the problem “lies in the people themselves,” because they see democracy as a means to enforce their own private interests over and against both the public good and the rights of their fellow citizens. This led to pose the following question: “In a republican Government the majority . . . ultimately give the law. Wherever therefore an apparent interest or common passion unites a majority, what is to restrain them from unjust violations of the rights and interests of the minority. . . .?”  “What use,” he asked Thomas Jefferson, “can a bill of rights serve in popular Governments?” Jefferson wrote back to , “Your thoughts on the subject” of a Bill of Rights fail to address one consideration “which has great weight with me, the legal check which it puts into the hands of the judiciary. This is a body, which if rendered independent . . . merits great confidence for their learning and integrity.”

On June 8, 1789, proposed a Bill of Rights to the House of Representatives. He acknowledged that some might think that such “paper barriers against the power of the community, are too weak to be worthy of attention,” but then, echoing Jefferson’s argument to him, Madison insisted that if these rights are “incorporated into the constitution, independent tribunals of justice will consider themselves . . . the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.”

The Framers’ “solution” to the seemingly insoluble dilemma of how to enforce individual liberties in a self-governing society against the “overbearing majorities” that control the legislative and executive branches of government was the third branch of government – the courts, which could serve as “an impenetrable bulwark” against majoritarian encroachments on the liberties of political, social, religious, and other minorities.

Alexander Hamilton penned an eloquent statement to this effect in Federalist 78. argued that constitutional limits could “be preserved in practice no other way than through the medium of the courts of justice.” The courts, he maintained, are “designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” The “independence of the judges,” added, is intended to enable them “to guard the constitution and the rights of individuals from the effects of those ill humours which . . . sometimes disseminate among the people themselves.” Judges, he insisted, the right and the responsibility to resist invasions of constitutional rights even if they are “instigated by the major voice of the community.”

The problem with “judicial passivism,” in other words, is that it abdicates judicial responsibility and subverts a fundamental part of the genius of the American constitutional system. By evading their duty to enforce the Constitution in a meaningful manner, judicial passivists betray a central feature of our constitutional system.

“Originalism” purports to respect the intent of the Framers. But it has gained no credibility over the past quarter-century, despite the earnest efforts of its proponents, in part because it does precisely the opposite. The central intellectual premise of conservative originalism is that courts should hold nothing unconstitutional that the Framers themselves did not intend to hold unconstitutional. But this conception of constitutional law misreads the intent of the Framers. It assumes that the Framers intended to limit the effect of the Constitution to only those outcomes that they themselves consciously expected and intended.

But in drafting the Constitution, the Framers were not enacting a series of specific and predetermined rules. “Congress shall make no law prohibiting the “free exercise” of religion or abridging “the freedom of speech,” No person shall “be deprived of life, liberty, or property, without due process of law,” and the prohibition of “cruel and unusual punishments,” were not designed as crabbed, narrow-minded ordinances like speed limits. Rather, they were intended to serve as open-ended aspirations that would gain meaning and vitality over time.

As men of the Enlightenment, the Framers conceived of rights as inherent in nature and “founded on the immutable maxims of reason and justice.” They understood them much as they understood the laws of science. That is, just as they knew that they did not know all there was to know about biology and physics, so too did they know that they did not know all there was to know about their rights. Just as reason, observation and experience would enable man to gain more insight into philosophy, science, and human nature, so too would they enable him to learn more over time about man’s inalienable rights, which would have to be distilled from “reason and justice.”

With this mindset, the notion that any particular moment’s conception of rights should be taken as exhaustive would have seemed patently wrong-headed to the Framers, just as it would have seemed wrong-headed to them for anyone to assume that their knowledge of the human body or of the universe should be taken as final and conclusive. Such a conception was antithetical to the very core of Enlightenment thought and to everything the Framers stood for.

They were not timid men. They were bold. They knew full well that the rights they had identified did not “exhaust the great treasury of human rights.” They knew full well that their understanding of these freedoms “marked out the minimum not the maximum boundaries” of man’s inalienable rights. The “preservation of liberty,” they knew, “would continue to be what it had been in the past, a bitter struggle with adversity,” which would demand constant vigilance both to protect the rights they had recognized and to be alert to the recognition of new rights yet to be discovered.

The crabbed, frightened originalism of Clarence Thomas and Antonin Scalia would have seemed absurd to the Framers. As a constitutional methodology, it not only invites manipulative and result-oriented history, but it also and more fundamentally denies the true original understanding of the Framers of our Constitution.

“Conservative activism” sounds like an oxymoron, and it should. But it is in fact the dominant form of jurisprudence on the Supreme Court today. As we have seen, it is conservative activism that explains the Court’s decisions invalidating regulations of commercial advertising, invalidating campaign finance regulations, invalidating affirmative action programs, invalidating the use of race to increase integration, invalidating zoning laws, invalidating laws prohibiting the Boy Scouts from discriminating against gays and lesbians, and invalidating federal laws dealing with the environment, handguns, domestic violence, and age discrimination.

Conservative activism offers the worst of both worlds. It undermines the decisions of democratic majorities, not to protect the rights of minorities, or the powerless, or the oppressed, or the disenfranchised, or the dispossessed, or the poor, or the downtrodden, or the accused, but to protect the interests of whites, corporations, the wealthy, the privileged, and the powerful. Like the Lochner era of which it is the constitutional and moral descendent, modern-day conservative judicial activism is a perversion of the values that the Constitution is designed to protect and, more specifically, of the values the Constitution relies on the Court to protect.

Of “Constitutionalism”

This brings me to the fourth approach I have discussed, which has  variously been called “liberalism,” or “judicial activism,” or “not strict constructionism.” In my view, a better and more descriptive term would be “constitutionalism.” The central mission of this approach to constitutional interpretation is to embrace the responsibility the Framers imposed upon the judiciary to serve as a check against the inherent dangers of democratic majoritarianism and to maintain the vitality of fundamental individual liberties in a constantly changing world.

This is not an easy task. But nor is self-governance easy. Constitutionalism is not mechanical, it is not mindless, it is not value-free. It requires judges to exercise judgment. It calls upon them to consider text, history, precedent, values, and ever-changing social and cultural conditions. It requires restraint, humility, curiosity, wisdom, and intelligence. Perhaps above all, it requires intellectual honesty, courage, a recognition of the judiciary’s unique strengths and weaknesses, and a deep understanding of our nation’s most fundamental constitutional aspirations.

Let me use the Warren Court as an example. Is the a better or worse nation today because of the decisions in Brown v. Board of Education, prohibiting racial segregation in public schools, Engel v. Vitale, prohibiting school prayer, Goldberg v. Kelly, guaranteeing a hearing before the termination of welfare benefits, Reynolds v. Sims, guaranteeing “one person, one vote,” Mapp v. Ohio, guaranteeing meaning protection of the constitutional prohibition of “unreasonable searches and seizures,” Gideon v. Wainwright, guaranteeing all individuals the right to counsel in criminal cases, and New York Times v. Sullivan, protecting a robust freedom of the press?

That is a fair question. The proof, after all, is in the results. In my judgment, however controversial some or all of these decisions might have been, every one of them properly understood and implemented the values with which the Framers sought to imbue our Constitution. And however controversial those decisions might have been at the time, every one of them is today regarded as a beacon of what the stands for in the world. (I can say with absolute confidence that Justices Roberts, Alito, Scalia, and Thomas would have reached the opposite result in every one of these cases, had they been on the Court at the time.)

Speaking of counter-factuals, let me step off the cliff a bit further and tell you what issues I think a Court made up of justices committed to a theory of constitutionalism would today be deciding:

Not that affirmative action is unconstitutional, but that are there circumstances in which affirmative action is constitutionally required.

Not that cigarette companies have a constitutional right to shill their product to children, but that children have a constitutional right to an adequate education.

Not that the state can execute juveniles, but that individuals accused of crime have a constitutional right to DNA testing.

Not that the government can constitutionally ban partial birth abortions even when the ban endangers the lives of women, but that the government cannot constitutionally ban stem-cell research in order to enforce the faith-based beliefs of the religious right.

Not that billionaires have a constitutional right to spend millions of dollars to buy the elected representatives of their choice, but that public officials cannot use partisan gerrymandering to ensure their perpetuation in power. 

Not that the Boy Scouts have a constitutional right to discrimination against gays and lesbians, but that gays and lesbians have a constitutional right to marry.

Constitutional law is about precedent, and text, and history, and law. But it is also about values and vision. I ask you, what is your vision for the constitutional future of our nation?

by Douglas Kendall, founder and executive director of Community Rights Counsel, a public interest law firm that promotes constitutional principles.

Media coverage of the Supreme Court tends to be dominated by the scoreboard, with stories chronicling the number of closely divided cases won by the “liberal” and “conservative” wings of the Court.   But before we start chalking up wins and losses for the October 2007 term, we should pause: too much staring at the scoreboard can obscure what’s really happening on the field (or bench).   Conservative “wins” mean something very different now, because the conservative judicial project has changed dramatically.

For decades, conservative legal giants were apostles of judicial restraint – Justices like Felix Frankfurter and the younger John Marshall Harlan and theorists like Harvard Law Professor Alexander Bickel.  Their goal was to cabin what they deemed to be the “excesses” of the and to make the Supreme Court the “Least Dangerous Branch,” as Bickel once described it.

But restraint fell away in the 1980s as conservative domination of the Supreme Court became possible.  Almost overnight, Bickel, Harlan, and Frankfurter were displaced by radical libertarians such as Richard Epstein, prophets of law and economics, such as Richard Posner, and conservative originalists, such as Raoul Berger and Robert Bork.  In 1985, Epstein took to the opinion pages of the Wall Street Journal with a piece entitled “Needed: Activist Judges for Economic Rights,” a move that would have been considered heresy a decade before.  

This heady brew of activist conservative approaches to the law fueled the rise of the Federalist Society.  It was institutionalized at the Reagan Justice Department when Edwin Meese became Attorney General in 1985.  Charles Fried, Reagan’s Solicitor General at the time, highlighted one aspect of this new approach when he wrote of the “quite radical project” by Meese and his Federalist Society advisors to use the Fifth Amendment’s Takings Clause “as a severe brake upon federal and state regulation of business and property.”

Meese himself called for “constitutional calisthenics” and he commissioned a series of reports with titles such as “The Constitution in the Year 2000 and “Economic Liberties Protected by the Constitution.”  These little blue books distilled the various threads of conservative legal thinking into a concrete agenda for constitutional change.

The four members of the Court’s conservative wing – Chief Justice John Roberts, and Justices Clarence Thomas, Antonin Scalia, and Samuel Alito -- are all products of this Reagan Administration/Federalist Society milieu, and you can trace many of the legal conclusions in the opinions these Justices wrote or joined last term to their roots in these little blue books.  Most notably, you see past as prologue in the radical reconstruction of the Equal Protection Clause advanced in the portions of Chief Justice Roberts’ schools opinion that Justice Kennedy refused to join, and in the dramatic constriction of access to federal courts advocated by the Chief in his dissent in the global warming case.

Today, the biggest open question is whether Roberts will be able to secure the fifth vote necessary to make these positions the law of the land.  Five like-minded justices, steeped in the conservative project of the 1980s and 1990s could also dramatically change the direction on law in a host of areas in which the Court is now closely divided – the executive power of the President, takings, the Establishment Clause, and more.   If all you see is the scoreboard, you’ll miss the stakes – higher than they have been in years – of the game.

by Pamela S. Karlan, Kenneth and Harle Montgomery Professor of Public Interest Law, Stanford Law School

by Priti Patel.
Priti Patel is an attorney at Human Rights First focusing on U.S. detention practices and the impact of these practices on human rights and civil liberties. This is the second in a series of posts from the military tribunals at Guantanamo Bay, Cuba

Today, two military judges hammered a couple of more nails into the coffin of the military commissions when they dismissed the cases of Omar Khadr and Salim Ahmed Hamdan.  Army Col. Peter Brownback III and Navy Cpt. Keith Allred both held that the prosecution had failed to show that Omar Khadr and Salim Ahmed Hamdan were unlawful enemy combatants and thus the military commissions did not have jurisdiction to try them.   

The primary grounds for the dismissal were the same in both cases.  Basically, the Military Commissions Act of 2006 (MCA) provides the military commissions with jurisdiction over: (1) individuals who meet the MCA’s definition of unlawful enemy combatant (which HRF has criticized for being overbroad and vague) or; (2) over individuals who have been found to be unlawful enemy combatants by a Combatant Status Review Tribunal (CSRT) or by another competent tribunal.  The MCA specifies that military commissions do not have jurisdiction over so-called “lawful enemy combatants.”  And herein lies the problem.  The CSRTs established by the Bush Administration beginning in 2004 only determined whether a person was an enemy combatant, using a different definition than the MCA’s, for the purpose of detention.  The CSRT did not determine if a person was an unlawful enemy combatant – as defined in the MCA – for the purpose of trial by a military commission.    

In both the Hamdan and the Khadr cases, the prosecution attempted to argue (among other things) that this distinction didn’t matter.  According to the prosecution, based on President Bush’s February 7, 2002 memorandum (in which the President found that Taliban and al-Qaeda detainees did not qualify as prisoners of war under the Geneva Conventions), all al-Qaeda and Taliban detainees were unlawful combatants.   In addition, the CSRT proceedings found each of Khadr and Hamdan to be enemy combatants.  Merging these two determinations, the prosecution argued, Khadr and Hamdan were unlawful enemy combatants for the purposes of the MCA.    Both Col. Brownback and Cpt. Allred disagreed.

In fact, Cpt. Allred rejected the prosecution’s argument, based on the President’s memorandum, that the President could determine unlawful combatant status for a group of people, as opposed to an individual basis, for the purpose trial before a military commission.  Indeed, during the argument, Cpt. Allred asked the prosecutor (and I am paraphrasing) if he wasn’t troubled by the idea that the President could declare an entire group of people to be unlawful combatants without any individual, factual finding. 

Cpt. Allred put his finger on one of the major problems with the administration’s detention, interrogation, and prosecution policies over the past five years.  The reason there is so much confusion – including among military judges! – about what constitutes an “unlawful enemy combatant” vs. “an enemy combatant” vs. an “alien unlawful enemy combatant” is that most of these categories have no basis in the laws of war and their definitions in the last five years have constantly changed.  In his February 2002 memorandum, the President and his administration invented a whole new category for prisoners.  Since then, members of the administration have greenlighted the use of harsh interrogation policies on this new category of people (policies that have since been rejected by Congress), subjected them to indefinite detention, and fashioned a wholly new trial system to prosecute a small number of them.  The military commissions are the latest manifestation of flawed policy choices.