McCain or Obama: The Election and Its Implications for the Courts

Earlier today, ACS joined the Federalist Society in presenting McCain or Obama: The Election and Its Implications for the Courts, a debate featuring Ilya Shapiro, a Senior Fellow at the Cato Institute, and Jeh Johnson, a Partner at Paul, Weiss.

Mr. Shapiro spoke first and began by citing polling data that he argued revealed a stark difference between how Obama supporters and McCain supporters view constitutional interpretation. He claimed that McCain supporters tended to favor interpreting the Constitution "as it was written" while Obama supporters prefered an interpretation tending toward "justice and fairness." Mr. Shapiro then presented a quotation from Obama indicating a desire to choose judges who have empathy for other people with vastly different lives, backgrounds and experiences. Mr Shapiro argued that this reflected a desire for "activist" judges who will fail to adhere to the Constititon "as it was written." He suggested that Obama would select judges who look to foreign law for guidance and trample upon property rights. Mr. Shapiro noted that McCain would apply the law "as it was written," and that McCain had previously voted to confirm Ginsburg and Breyer, suggesting a desire to approve qualified nominees, rather than resort to a litmus test.

Mr. Johnson began by noting that he admired McCain's efforts to ban torture. He then described his extensive experience in evaluating judicial nominees and candidates on behalf of the New York Bar Assocication. In Mr. Johnson's view, there should be no ideological litmus test. Furthermore, Mr. Johnson cautioned against approving only nominees who have what has come to be the usual Supreme Court justice resume, as "greatness in a Supreme Court justice dos not always present itself in conventional terms." He noted that while ever current Supreme Court justice had previously served on a Circuit Court, no members of the Supreme Court as constituted in 1954 had served as Circuit Court judges. Mr. Johnson cited the Obama quote that had been previously identified by Mr. Shapiro and noted that would-be judges ought to have some real-life human experience and empathy. Furthermore, he argued that the selection of future Supreme Court justices should be conducted with an eye toward balancing the Court's current composition. What is wrong, he asked, with a judge that can identify with other types of people, particularly given the current Court?

THIS WEEK @ ACS

3/24 - 3/28

THURSDAY March 27
12:30 PM; JG 107

Info Session on Running for the ACS Board

We are holding an info session to 1) explain what each of the board positions entails, 2) encourage you to run 3) explain how to do so.

EVERY DAY This Week

Dean's Cup Tickets on Sale

Tickets are on sale this week from 11-2 every day in the lobby. When you buy your ticket, please tell them you want your purchase credited to ACS.

Is the Race (Problem in this Country) Over?

A Conversation with CLS Professor Olati Johnson and Dr. Abigail Thernstrom, a Republican member of the U.S. Commission on Civil Rights and Senior Fellow at the Manhattan Institute.

Professor Johnson began by reflecting upon the fact that 40 years ago, the year of her birth, the Civil Rights movement was only beginning to incorporate a focus on poverty issues, and that this focus was quickly dissipated following Dr. Martin Luther King's assassination. Now, thinking about race issues focuses more upon the intersection of race and poverty, as well as latent racism and the lingering effects of structural discrimination.

If race is less salient, it is only because it is now more complexly understood and manifested. Professor Johnson discussed the idea of "concentrated poverty" representing the intersection of poverty and race issues, noting that middle class black families are much more likely to reside in areas of concentrated poverty. These areas are ground zero for a confluence of educational, economic, racial and social problems and deficiencies.

Pointing to the recently publicized studies of incarceration rates in the U.S., Professor Johnson noted that the increase in incarceration was driven by enforcement of drug laws and that this enforcement was disproportionately aimed at minority populations. Even if this was driven by a higher rate of law-breaking among minority groups, that should not relieve of us of having to consider the conditions that create these trends.

Dr. Thernstrom disclaimed her remarks as a sort of brainstorming session, inviting the audience to help her more fully form her ideas. Beginning with points of agreement, Dr. Thernstrom pointed to the racial divide in many areas, but also pointed to trends decoupling the effects of race and poverty. Urban schools are unacceptable to people of all colors, and Dr. Thernstrom believes that they pose eminently redressible problems.

Turning to candidate Obama, Dr. Thernstrom analyzed the level of white male voting for Barack Obama. These numbers are very high, almost 50% in many states and over that mark in several. These results evidence a turning point for race relations in this country to Dr. Thernstrom. Obama's self-announced "post-racial" campaign belies the fact that black voters see him as a black candidate and are drawn to that. Dr. Thernstrom praised the 1965 Voting Rights Act at the time of passage, but blamed it, as interpreted, exclusively for the persistent pattern of black candidates only running in majority black settings. These safe districts are encouraging white Americans to think of African Americans as "others".

A lively question and answer session followed.

The Columbia Chapters of the American Constitution Society and the Federalist Society would like to thank Professor Johnson and Dr. Thernstrom for the remarks and all for joining this valuable discussion.

No Day is Super When You're Being Detained Indefinitely

This afternoon, ACS was excited to welcome Jonathan Hafetz of the Liberty and National Security Project of the Brennan Center for Justice at NYU.

He began by providing an overview of the recent history of Guantanamo litigation, which has been going on since about 2002. In that year, the Bush administration made several key decisions (like deciding not to follow the Geneva Conventions) that led to the current “special prison” situation in Guantanamo and around the world. Despite how long this has been going on, the rights of the detainees have never been clearly determined. There are currently some large cases that seem likely to clear up some of the confusion.

Hafetz focused on Guantanamo specifically, because it is emblematic (and the most iconic one) of the administration’s extra-legal detention centers. Hafetz sees Guantanamo as representative of a larger effort to establish prisons that exist outside of the law.

When lawyers became aware of the situation in Guantanamo, they began attempting to represent the detainees. In 2004, Rasul v. Bush, the Supreme Court rejected the idea that Guantanamo detainees had no right to habeas. Many more cases were subsequently filed and more lawyers began visiting Guantanamo.

The process was then derailed. In December of 2005, Congress passed the Detainee Treatment Act. It contained some prohibitions on cruel treatment, but its most significant effect was to strip detainees of Federal habeas rights.

In 2006, the Supreme Court decided Hamdan v. Rumsfeld, which challenged the legality of using military commissions to try suspects at Guantanamo. The Court sidestepped the constitutional challenge to the Detainee Treatment Act by saying it didn’t apply to pending habeas cases (of which there were about 200). They then struck down the commissions on the grounds that they violated the Geneva Conventions.

Later that same year, Congress passed the Military Commissions Act, which gave legislative approval to the commissions struck down in Hamdan. To deal with the Court’s ruling on the pending habeas cases, the act stripped all habeas rights retroactively and replaced them with a less robust system of adjudication, with the possibility of appeal to the DC Circuit Court.

In February of 2007, the DC Circuit upheld the Military Commissions Act’s suspension of habeas as constitutional because enemy combatants are not U.S. citizens. The Supreme Court initially denied review of this case. Then, on a petition for rehearing, they changed course and agreed to hear it.

Another important case pending decision pending decision is Boumediene v. Bush, which contains two major issues: (1) the question of whether the constitutional right to habeas corpus is limited to the geographic United States. This has broad implications for enemy combatants all over the world. (2) If combatants on foreign soil have habeas rights, is the alternative provided by the Commissions Act a constitutionally adequate substitute? (There are a number of serious flaws in the system).

These issues are now complicated by separate litigation that has proceeded under the Detainee Treatment Act since its passage. There are now separate petitions for review under the substitute scheme, which itself may be ruled unconstitutional.

A recent DC Circuit ruling expanded their power of review of status tribunal and allowed them to look at all of the relevant evidence that led to a conviction, instead of the more limited record they had previously been sent. An en banc hearing on the case was denied 5-5, and the government has petitioned for cert on an expedited schedule so that the case can be heard this term.

Hafetz believes that the Supreme Court will have to clarify the legal rules in Guantanamo in some of these decisions, which will be a big step for detainees. He views Guantanamo as one island in an archipelago of a new kind of prison set up to avoid legal processes.

Clarification of the legal rights of detainees will hopefully lead to some positive change in a dire situation. Before last week, of the 750 inmates that had been at Guantanamo bay, only 5 had ever been charged with any crime. (It is now around a dozen).

Thanks to Jonathan Hafetz for this interesting talk!

The Wu'Tierney Factor II

Due to the unfortunate absence of Professor Tierney (who is getting out the vote in Paris), the title was changed to the slightly less catchy “Wu’Persily Factor.” A panel consisting of Professors Wu and Persily, as well as students David Gringer (3L) and Steve Nadel (2L) dissected Super Tuesday and offered their opinions on the race.

Professor Wu started by noting that, “if you’re into politics, this is just a great time to be alive.” He found Super Tuesday very interesting and claimed that he didn’t understand what was going on with American politics this year. Why, for example, did Obama carry Alaska but not San Francisco? He thinks there are factors here people are missing, and he doesn’t know exactly what they are.

Professor Wu compared the upcoming dynamic to a cartoon grudge match, where each candidate gets one really good shot at the other. First, February seems to favor Obama, and he has a month to exploit that. Then, March, with Texas and Ohio, seems to shift the other way and give Clinton an advantage. The question is whether she can survive February in order to take the race back in March, and, if she does, whether she can win decisively then.

With regards to the delegate totals, Wu predicted that Clinton will have a total lead of about 100 after everything is tallied. Obama will be seeking to even up the score in February and try to gain an edge. If neither can knock the other out during their strongest month, then the election moves into uncharted territory, and perhaps all the way to the convention.

Professor Persily began by offering some generalizations that he said were “about 80% true.” He noted that, for the most part, Clinton is getting the larger share of the Latino vote (by about 2:1), less educated whites, older voters, and women. On the other hand, Obama is winning among African American, higher educated whites, and whites in red states. Professor Persily admitted that this oversimplified things. For example Obama did well in the southern states, but also managed to carry Connecticut and Delaware. Obama also seems to have a natural advantage in caucuses.

Persily personally thought Clinton did much better than expected on Tuesday, especially in California. To win that by such a significant margin bodes well for her.

Additionally, he’s very concerned about the way this race is going because he’s worried that this is going to end up depending on the most undemocratic aspects of the primary process. In a race this close, three things come into play that candidates can’t control. (1) Delegate apportionment. (2) Superdelegates. (3) The Florida/Michigan votes, which might be reinstated despite not really having contested elections.

On the Republican side, Persily thinks McCain wrapped it up last night.

Steve Nadel, who worked on the Romney campaign, had some insights into the Republican contest. First, he discussed Romney’s campaign strategy, which was to win the big states early and knock out McCain and Giuliani. It appeared over the summer that everyone who saw Romney liked him, so they aimed to increase his exposure. When other candidates starting coming to the fore, Romney basically fell off the map. Nadel thinks this speaks poorly of him as a candidate.

Nadel thinks the Republican primary is over, and that everyone except the CNN commentators realize this. He does not think Huckabee can win, but thinks the governor might still be relevant.

As for the Democrats, Nadel is “amazed at how long it’s going to take”. He expected like Clinton would walk away with the nomination early, like everyone else. Obama has really shown impressive staying power and ability to enlarge his natural constituency. He’d still give it to Clinton, though, because Obama now has to win big in places not suited to him.

David Gringer began by talking about the media. They are having a huge effect on this race, and he wanted to highlight just how badly they’ve done. He also pointed out that endorsements don’t seem to actually mean anything to voters, only to the media.

In Gringer’s view, perhaps the most important aspect of the campaign is organization. The strength of the candidate’s ground team in each state seems to have a huge effect on the outcome. Obama’s team in Iowa and Clinton’s in New Hampshire were particularly effective, and he is wondering where they will be sent next.

Attempting to explain the strange voting results noted by Professor Wu, Gringer hypothesized that there are two different kind of Democratic voters at issue here. What he calls the “machine” wing of the Democratic party dominates in places like New York and California, places where Democrats dominate and have established power structures. These states seem to favor Clinton. By contrast, states like Idaho and Kansas don’t have “machine” structures, and there have been recent grassroots organizing efforts to rebuild the Democratic Party in these states. These non-machine states favor Obama.

Gringer uses this model to suggest that we might see surprising results. For example, Louisana, thought to be an Obama stronghold, has a strong machine structure. On the other hand, Texas, which is thought to be likely Clinton territory, has more of a grassroots organization structure. He is excited to see how the next few months turn out.

A very interesting presentation from a great panel. Thanks to all who participated and attended. For those who missed out, it looks like we will soon need the Wu’Tierney Factor III.

The Right to Bear Ye Olde Arms

The ACS/Federalist Society-sponsored discussion/debate on DC v. Heller – the first SCOTUS case since 1939 to address the meaning of the Second Amendment – won't begin for another 2 hours, but I am prepared to upstage the speakers by offering a workable solution for Second Amendment jurisprudence in the 21^st Century.

Although the language of this amendment provides infinite grist for the mill of constitutional interpretation, my solution focuses exclusively on one word: arms.

My proposal: The Second Amendment protects an individual right to bear arms as such arms existed at the ratification.

Arms in 1791

Let's look at arms – specifically, guns – as they existed at the time of the ratification.

Guns in 1791 WOULD

• ...be made by a gunsmith.
• ...have rudimentary rifling.
• ...be single-shot weapons.
• ...be loaded through the muzzle.
• ...fire by means of a flintlock.

Guns in 1791 WOULD NOT

• ...have interchangeable parts. (Popularized in 1798)
• ...be revolvers. (Invented in 1835)
• ...be breachloaded. (Popularized in 1810)
• ...use smokeless powder. (Invented in 1885)
• ...use a percussion cap, necessary for modern cartridged bullets. (Invented in 1842)
• ...load bullets from a clip. (Invented in 1890)
  

Courts can't wish the Second Amendment away, but they can construe it in a manner that works in today's society.

Arthur Goldberg, the little-remembered Supreme Court Justice who sat on the bench from 1962 to 1965, has been long-derided by social and political conservatives as something of a fool due to his concurrence in Griswold v. Connecticut, where he found a right to privacy in the Ninth Amendment. Lately, these same conservatives have been quoting and paraphrasing Justice Goldberg when they say things like "while the Constitution protects against invasions of individual rights, it is not a suicide pact," a line Justice Goldberg included in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159-60 (1963). Applying an admittedly severe form of originalism to cabin the Second Amendment prevents the kind of suicide pact that Goldberg was worried about.

Michelle Obama created a bit of a stir earlier this week when she talked about how the need for guns might vary regionally within the United States. A backstop interpretation of the Second Amendment – one that only protects the individual right to bear arms as they stood in 1791 – permits states to develop right to bear arms appropriate to their circumstances.

Prosecuting the War on Terror...Literally

Tonight, the Columbia ACS, FedSoc, and CSIL hosted a discussion with Assistant U.S. Attorneys Kelly Currie and Todd Harrison (E.D.N.Y.) and Andrew McCarthy (S.D.N.Y.) on the role of the federal prosecutor in fighting terrorism.

The attorneys began with a chronological overview beginning with the 1993 World Trade Center bombing. That event challenged American legal ideas - international terrorism was unknown to U.S. prosecutors. Since that plot had been completed, the proseuctorial structures could address it. Later, inchoate plots stressed our legal doctrines of conspiracy and attempt. Furthermore, racketeering statutes were ill-suited to the task as well because they were aimed at organizations with financial purposes.

In 1996, the statutory landscape changed. The provision of material support to terrorist organizations became a cognizable charge, which provided a highly effective new tool to prosecutors.

After 9/11, the focus shifted dramatically to prevention of terrorist activities. This muddied the task before U.S. Attorneys. Prosecutors bring a substantial set of useful skills to this intelligence endeavor. Focusing on issues of evidence, corroboration, and their own high burden of proof allowed U.S. Attorneys to provide a valuable contribution to intelligence and law enforcement efforts.

The attorneys also discussed the internal procedural changes that have been made to better integrate intelligence, enforcement, and legal offices. The Patriot Act also implemented laws that permitted broader options for prosecutors seeking charges that better fit international terrorism issues. For example, extraterritorial jurisdiction for U.S. Attorneys has been expanded. There has also been an attitudinal change - the D.O.J. has naturally become more proactive and aggressive in using laws not directly terrorism-related in order to squash nascent terrorist activity.

A rousing and intriguing round of student questions ensued in which the attorneys gave candid and insightful responses. One interesting theme was that the "War on Terror" is distinct from both traditional criminal issues and traditional warfare. The most difficult challenge, ultimately, implicated by this observation is that it may be impossible to imagine a world after the War on Terror - unlike imagining the world after a conventional war or without crime.

As a side note: Tonight, Columbia ACS President Jake Honigman earned the distinct honor of having asked the longest question in a CLS event on record. His 3 minute, 36 second statement touched on intriguing issues of politics and policy, raising serious concerns as to the future of the Department of Justice. His question culminated with "Alright go with that." Jake is to be commended for his big-picture perspective and ever-present desire to put speakers in the awkward position of evading questions about their bosses.

Columbia ACS would like to thank its co-sponsors and guests for the interesting and enlightening discussion.

THIS WEEK @ ACS

11/5 - 11/9

TUESDAY November 6
6:30 PM, JG 106

Prosecuting the War on Terror...Literally
A discussion with Assistant U.S. Attorneys Kelly Currie and Todd Harrison ( E.D.N.Y.) and Andrew McCarthy (S.D.N.Y.) on the role of the federal prosecutor in fighting terrorism.

Co-sponsored by the Columbia Society of International Law and the Federalist Society.

Dinner Served

THIS WEEK @ ACS

10/29 - 11/2

TUESDAY October 30
12:20 PM, JG 101

Human Rights Institute event with Martin Scheinin

Martin Scheinin is the UN Special Rapporteur on the protection and promotion of Human Rights. Mr. Scheinin is a Finnish Law professor who has conducted investigations in the Philippines, South Africa, the United States and Israel and the Occupied Palestinian Territories, and will be speaking about his work in this increasingly relevant field of law.
Co-sponsored by Rightslink.

Lunch served

THIS WEEK @ ACS

10/15-10/19

WEDNESDAY October 17
12:15 PM, JG 105
Suing God: The Religion Clauses in the Roberts Court
Professor Marci Hamilton of the Cardozo School of Law, and Professor Steven Gey of the Florida State University College of Law, will discuss the future of the separation of church and state in light of recent Supreme Court decisions, such as Hein v. Freedom From Religion Foundation.

Professor Kent Greenawalt will be moderating.

Lunch served.

Top Gun: A Conversation with Jeh Johnson, CLS '82

Today, Jeh Johnson, CLS '82, joined the Columbia Chapter of the ACS and BLSA for a conversation about his time as General Counsel of the Air Force and the rule of law in the military.

Mr. Johnson focused on the balance between a mainstream legal career and a commitment to public service. Using his own biography as a touchstone, Mr. Johnson related a story all too familiar to law students: his first days of legal methods with Professor Peter Strauss. His career path - as a competitor in the Stone moot court, an associate at multiple New York firms, an assistant U.S. Attorney, partner at Paul Weiss, and general counsel of the Air Force - represents an evolution into a complete attorney: a socially conscious, efficient, and compelling advocate. The two most important pieces of career advice Mr. Johnson offered were: 1. never us a script; 2. be a U.S. Attorney. His war stories were not only entertaining, but demonstrative of the processes, tactics, and characteristics that constitute elite advocacy.

Mr. Johnson cites his experience at the Air Force and working with presidential candidates as the heart of why he originally came to CLS: to be a public servant.

He left us with the succinct words of wisdom: "Never lose your public interest interest."

Columbia ACS and BLSA would like to thank Mr. Johnson for his entertaining and enlightening visit.

Clive Stafford Smith Book Talk

On Wednesday, ACS and a slew of other campus group welcomed Columbia Law alum Clive Stafford Smith to discuss his book, Eight O’Clock Ferry to the Windward Side: Seeking Justice in Guantanamo Bay. After graduating from Columbia, Smith began defending capital cases, and quickly became appalled by the state of criminal justice in the United States. He has since broadened his focus to include the prisoners being held at Guantanamo Bay without legal representation, of whom he has now represented more than fifty.

Referring to his time at Columbia as a "complete waste," the irreverently charming Smith urged Columbia grads to avoid the straight subway line to Wall Street and do something meaningful with their lives. He described how, over the course of working on death penalty cases, he came to recognize the serious flaws in our justice system. As an example, he cited the "beyond reasonable doubt standard." In a survey of judges, Smith alleged that, when asked to quantify how sure they had to be in order to meet this standard, the average response was 83%, with some going as low as 75%. The logical conclusion is therefore that the average American judge expects almost 1 in 5 people convicted to be innocent.

Smith identified one of the major elements of false convictions as "snitches," or people who are willing to give the authorities names to save themselves jail time. These people, unsurprisingly, are not always truthful, but their confessions are given significant weight by police officers, prosecutors, and eventually juries.

Turning his attention to Gitmo, Smith pointed out that, if an open and transparent system like our criminal justice process has such serious flaws, things are bound to be exponentially worse in a closed, secret prison. In order to illustrate this, he offered examples of the appallingly low standard required to detain someone in Gitmo or one of its analogues. The enemy combatant label, by the admission of the U.S. Government, can extend to anyone who hears someone speaking kindly of a known terrorist and does not then report that person to the CIA.

Additionally, the United States offers a $5,000 bounty to anyone providing the identity of a terrorist. In countries like Afghanistan, this bounty is the equivalent of $250,000, and all that is required to receive it is the identity of a terrorist. Like snitches in the criminal justice system, there are no provisions for verifying the credibility of those who report "terrorists."

Once detained, Smith described, "enemy combatants" are abused in shocking ways. He recalled being appalled when he first heard his clients relate stories of the physical and psychological torture they were subjected to. Additionally, they are detained on unbelievably flimsy evidence. One of his clients is currently being held because, as a camera man for Al-Jazeera, he received camera training, which they qualify as "terrorist training."

Perhaps most disturbingly, Smith pointed out that Guantanamo is only a well-publicized example of the many secret prisons the U.S. currently runs throughout the world. In fact, it accounts for only 2.5% of such prisoners. Smith concluded his talk by taking questions and encouraging everyone in the audience to get involved, and to come "be exploited" by him in helping to represent the Guantanamo prisoners.

School Desegregation

On Friday, ACS welcomed Goodwin Liu, a Professor at Boalt Hall, to discuss the recent Seattle and Louisville desegregation cases, the lessons of Brown and Plessy and the Supreme Court’s performance as a protector of civil rights.

Professor Liu began with an overview of the Seattle and Louisville cases, which considered to what extent, if at all, school districts can use race as a factor to achieve diverse schools. Writing for the plurality, Chief Justice Roberts held that race cannot be used for this purpose. For the dissent, Justice Breyer found that not only would such use of race be acceptable, it is not even deserving of strict scrutiny. Justice Kennedy staked out a middle ground, noting that while school districts have a very important interest in racially diverse schools, school districts may not use race to classify individual students.

Liu examined these cases through the lens of Plessy. Justice Harlan’s lonely and famous dissent includes the often-quoted line “our constitution is colorblind and neither knows nor tolerates classes among its citizens.” However, Harlan wrote this sentence as only part of a broader paragraph and, Liu suggested, without context it has lost its intended meaning. In fact, Harlan’s words indicated a belief that the constitution does not permit a system of “racial caste” and that the 14^th amendment guarantees membership in American society.

The Plessy majority denied the social facts of the effects of segregation, claiming that if minorities felt slighted by “separate but equal,” it was a choice that they made, not something inherent in the doctrine. Roberts also denies social facts when he equates the white Louisville children denied the opportunity to attend their first choice school to the African American children of Brown. Liu noted that in detaching his reasoning from social meaning, Roberts has arrived at an interpretation of Brown that no members of the Brown Court would have accepted.

Professor Liu remarked that he was not surprised by the Court’s recent decision, due in part to the Court’s current membership but also due to the Court's history of failing to advance civil rights. Indeed, Liu argued, Congress has usually led this charge, with the Court often signing on after the fact. It is not that the Court has been unimportant to civil rights, Liu contended, but that Congress has traditionally led the way and that as a result most civil rights’ victories have had a basis in a majoritatarian process, which provides an authority the Court never could.

Liu used these lessons of history to argue for a specific model of civil rights advocacy which emphasizes not simply getting cases to the Supreme Court, but allowing issues to “percolate” through the legislature such that when they reach the Court, the Court need not lead so much as follow. Specifically for school district diversity, Liu suggested an approach in which Congress incentivizes intra-district diversity through requirements on federal funds.

6 Years at Gitmo: A Travesty, or A Good Start?

Today, the Columbia's chapters of the Federalist Society and ACS welcomed Professor George Fletcher, of Columbia Law School, and David Rivkin, of Baker Hostetler. Mr. Rivkin and Professor Fletcher debated the merits of the Military Commissions Act, and discussed other issues relating to the detention, treatment, and trial of detainees since 9/11.

After a brief introduction by Federalist Society President Nate Berry touching upon the solemnity of the day and importance of vibrant political debate, the debate began with Mr. Rivkin's remarks.

Mr. Rivkin opened his allotted time by rejecting the varied criticisms of the Bush administration's legal policy as an unprecedented assault on Constitutional protections. In great detail, Mr. Rivkin discussed the procedures under the Detainee Treatment Act as essentially fair.

Mr. Rivkin historically linked the current policies as to unlawful combatants with longstanding legal traditions and emphasized that the news-making cases were marginal and atypical.

The District of Columbia Court of Appeals is the relevant reviewing appellate court, and its scope of review is limited to procedural and constitutional questions. This scope of review has been upheld during World War II by the Supreme Court. Discussing habeas corpus, Mr. Rivkin dismissed the criticism that appellate courts would be unable to review questions of fact (i.e. if a petitioner is actually an enemy of combatant) by pointing to case law that would permit a review of pertinent facts.

In closing, Mr. Rivkin admitted that these procedures are limited when contrasted with domestic criminal law. However, he emphasized that the "laws of war" paradigm should be the basis of comparison because "if this isn't a state of armed conflict, I don't know what is," and in that contrast, the procedures relating to War on Terror detainees are "far more austere," in his words.

Professor Fletcher began his remarks with a professorial introduction, laying out in plain terms the academic points of the current habeas corpus debate. His focus was on fundamental questions: does the Constitution authorize the military commissions? They are operated by the executive branch, but, unlike similar court martial proceedings, their jurisdiction is over non-U.S. soliders. However, court martials are different because they are constitutionally designed as tools for managing the armed forces. Without a specific constitutional grant over the power to adjudicate cases involving enemy combatants, these military tribunals exist outside of the Constitution.

Professor Fletcher then offered an historical survey of the growth of these military tribunals. He emphasized that these tribunals had never received legislative consent. One 1920 statutory reference indicated that these tribunals were an expression of the international law of war. This proposition was only tested in Hamdan in 2005. Hamdan decided two issues: conspiracy (the central charge) was not part of the "law of war" and thus could not be charged in a military tribunal. The second central issue was Hamdan's inability to be present during testimony against him in the military tribunals. The court rejected this as a violation of the Geneva Conventions Common Article III. Five Justices applied the Geneva Conventions, but avoided making a constitutional decision.

Congress responded to Hamdan by creating a detailed set of military courts, however Article I of the Constitution does not grant Congress such a power. This deeply troubles Professor Fletcher.

Moving to address the "law of war, " accepting Mr. Rivkin's assertion that we are in the midst of war. His problem is that soldiers are not guilty of a crime in making a attack. Prisoners of war are not subject to prosecution. He views the problem as the Bush administration's attempt to pick and choose their favored attributes from both civil and wartime adjudicative procedures. This is the extraordinary development that merits critical attention.

Mr. Rivkin's brief response addressed some jurisdictional issues that Professor Fletcher discussed. Then Mr. Rivkin confronted a few "questions of fact." Military tribunals are not Article II courts, but rather under Article I. He then assured us that there are plenty of Supreme Court cases that upheld Article I bodies are appropriate for criminal adjudication, provided there is opportunity for judicial review. He also distinguished between the prosecutorial immunity for lawful enemy combatants to the lack of protection afforded to those labeled with the stigma of "unlawful enemy combatant."

Unfortunately, time did not permit Professor Fletcher's full response. His brief reply was to reject Mr. Rivkin's argument that the legacy of "unlawful enemy combatants" is longstanding, by describing the relevant WWII case initiating the doctrine. Professor Fletcher concluded by imploring the prosecution of actual and existing war crimes.

The exchange was observed and enjoyed by an over-flowing crowd of students and Columbia ACS would like to thank both Professor Fletcher and Mr. Rivkin for their lively debate and insights.

Tom Goldstein: Bloodbath & Beyond: The Coming Supreme Court Term

Columbia ACS Events Chair Quinn Arnsten reports on Tom Goldstein's visit to CLS:

"Tom Goldstein is the head of Akin Gump's Supreme Court practice and one of the foremost Supreme Court litigators in the country. He also runs SCOTUSblog.com which is an interesting blog that covers the day-to-day happenings of the Supreme Court.

"Right now, Mr. Goldstein is working on a second amendment case that will be going before the Supreme Court this term; it should be one of the most interesting cases they hear, so keep a look out. The D.C. Court of Appeals recently overturned D.C. gun legislation on the ground that it violated the 2nd Amendment.

"According to Mr. Goldstein, the current court is very conservative. Last term most of the close cases were decided 5-4 on ideological grounds. This fact has been used to rally progressives against republicans and created a loud cry for a democratic president.

"First, Mr. Goldstein discussed his personal background, outlining his experiences as a clerk and his early pro bono work in the Supreme Court. As a piece of professional advice, Mr. Goldstein noted that there is often a small circle of really smart people in any field; it is important to know and be cordial with them.

"Then, he moved on to discuss the recently elapsed term. Last year the court heard 72 cases—this is not very many for a Supreme Court term. Right now it is Justice Kennedy’s world and we just live in it. In every 5-4 case Kennedy was in the majority. In 70 out of 72 cases Kennedy was in the majority. This is extraordinary.

"A side note: most Supreme Court cases are decided on the briefs. Thus, oral advocacy isn’t really that important. However, to get to the position where you will do Supreme Court litigation you need to be a great oral advocate.

"Returning to the term, the Supreme Court treated business very kindly. The chamber of commerce won every case: “they had the best week ever for 52 weeks in a row.” Ledbetter is a case that clearly demonstrates this.

"The school desegregation cases from last term demonstrate the schism between liberals and conservatives on this issue. The two sides come nowhere near seeing where the other side is coming from. The plurality opinion took a completely unrealistic approach to what is feasible for elementary school admissions.

"Finally, Mr. Goldstein offered a brief look at exciting issues pending for the upcoming term, including gun control, Guantanamo Bay, the sentencing of a convicted child rapist, child pornography, and the disparity in sentences for crimes involving crack versus those involving cocaine.

"Goldstein predicts that the court will probably decide a number of these cases with opinions amenable to liberals. This will make it appear as though the court is shifting. However, this is not the case and it just happens that there is a freak set of cases this term.

"Goldstein's bottom line: the Supreme Court will act as a mobilizer for the right in the upcoming election. This is because the left will have won the majority of cases from the previous term."

Columbia ACS would like to sincerely thank Tom Goldstein for his candid and interesting remarks as well as his legal and advocacy work.

Neal Katyal: Lead Counsel for Hamdan

This evening, ACS along with SALSA, welcomed Neal Katyal to discuss the Supreme Courts’ 2006 decision in Hamdan v. Rumsfeld. Prof. Katyal was not only the lead counsel in Hamdan, he was co-counsel in Bush v. Gore, he clerked for Justice Breyer and Judge Calabresi, he served as National Security Adviser in the U.S. Justice Department, and he is currently the John Carroll Professor of Law at the Georgetown University Law Center.

Prof. Katyal first spoke about how he became involved in the case. He noted that as part of his job at the Justice Department and in his academic work, he has argued for a strong “Unitary Executive.” He distinguished this from the view of President Bush’s Administration which believes that when Congress has passed a law, through secret memos, the President can ignore that law when he feels that it unconstitutionally inhibits his power as Commander and Chief. For him, Hamdan is all about rejecting this view. “Congress calls the shots, not the President.” He cannot undo laws and treaties when he disagrees with them. There is some limited authority of the president in time of emergency, but this rarely happens in real life (only to Jack Bauer). There is some “residual emergency power” reserved by the President, but the question is how much and when—and the President’s answer has been as much as he wants and whenever.

In November of 2001, the President issued a military trial order and Katyal’s first impression was that it had to be a joke. The President was saying that he was going to set up a new trial system. He would define the offenses, the procedural rules, the rights (none), and the Federal Courts could not review it. Even as a person who favored a strong presidency, Katyal felt this went too far. The Administration argued that these trials where necessary and needed right away and there was no time to go to Congress. What if Osama bin Laden was caught before Congress acted? (He noted that Congress had passed by this time the Authorization for Use of Military Force and the Patriot Act).

It was for these reasons that Katyal began searching for a test case to challenge the President’s order. Charlie Swift (LCDR U.S. Navy) recommended Salim Ahmed Hamdan, who was the captured driver of bin Laden. Hamdan agreed to be represented by Katyal and Swift, and his case was filed. They argued that the trials violated the separation of powers, the Uniform Code of Military Justice ("UCMJ") which says how to conduct trials, and the Geneva Convention. The District Court agreed that this trial violated the separation of powers because it did not follow the UCMJ—specifically because Hamdan was kicked out of his own criminal trial. This apparently has not been allowed since the Star Chamber in England. At the D.C. Circuit they lost on appeal unanimously. Judge Williams, in his concurrence, did give some hope in rejecting the District Court’s decision that Common Article III of the Geneva Convention did not apply. Common Article III says that in all conflicts, the rights indispensable to all civilized people must be granted, but the Administration argued the since al-Qaeda did not sign the convention they do not get this protection. Katyal response was, “Whales didn’t sign the Whaling Convention.”

The Supreme Court granted cert, but Congress passed a bill to strip the case off of the Court’s docket. There was, however, an argument that the bill could be read to “grandfather” in Hamdan’s appeal. On 29 June 29th, 2006 the Court sided with Hamdan on all arguments. Katyal first impression upon leaving the court house was that the Court in a time of armed conflict told the President “No.” This guy with no financial means, who was accused of conspiring with one of this nation's worst enemies in its history, sued the President of the United States in the highest court in this land, and won. This is unique in this world. In many places, Hamdan would have been shot for doing this. Katyal quoted then Judge Roberts: “If the little guy’s argument is right, he wins.”

He then spoke about the Military Commissions Act (“MCA”) and his amazement that it was proposed by the President and passed by Congress in only three weeks. He believes it passed so fast because “it literally only effects people who cannot vote.” It only applies to green card holders and other non-citizens. American citizens, he said, “get the Cadillac of justice,” but if you are not a citizen “you get the beat up Chevy version of justice.” The first time Katyal met Hamdan, Hamdan asked Katyal why he was representing him when his last client was the Vice-President? Katyal thought of his parents, who came to the U.S. from India because of its commitment to equality and fairness. The MCA was violating this vision of America. Equal Protection of the laws under the 14th Amendment says “all persons” not “citizens.” This was done to overrule Dread Scott which limited constitutional rights to citizens only. Under the MCA, a separate trial system for foreigners has been set up, and it says that they only get a limited set of rights, while we get everything. That is why Katyal believes it is “doomed to fail.”

After the decision was handed down, the President and others in the Administration said that this would be a chance to paint Democrats as soft on the war on terror. Katyal expressed his shock that this was the President’s response. The first thing the President ever does is take an oath of office in which he swears to uphold the Constitution. The Supreme Court of the United States had just told the President that he violated the Constitution. The President, however, looked for the political gain that could be made from the decision. Since the war on terror has begun, no one has been brought to trial, and for Katyal “that is not a way to run a justice system.”

Katyal last spoke of a quote that was sent to him after the decision came out. It was the words written by Justice Rutledge in his dissent in the 1946 Supreme Court decision Yamashita v. Styer:

More is at stake than General Yamashita's fate. There could be no possible sympathy for him if he is guilty of the atrocities for which his death is sought. But there can be and should be justice administered according to law. In this stage of war's aftermath it is too early for Lincoln's great spirit, best lighted in the second inaugural, to have wide hold for the treatment of foes. It is not too early, it is never too early, for the nation steadfastly to follow its great constitutional traditions, none older or more universally protective against unbridled power than due process of law in the trial and punishment of men, that is, of all men, whether citizens, aliens, alien enemies or enemy belligerents. It can become too late.

This long-held attachment marks the great divide between our enemies and ourselves. Theirs was a philosophy of universal force. Ours is one of universal law, albeit imperfectly made flesh of our system and so dwelling among us. Every departure weakens the tradition, whether it touches the high or the low, the powerful or the weak, the triumphant or the conquered.

The person who sent it was not quoting the case. Rather, it was from a chapter on Rutledge written by one of the Justice’s former law clerks. That clerk, now Justice John Paul Stevens, made good on his boss’s promise fifty years later.

A good discussion followed Katyal’s remarks as well as a “delightful” reception. We would like to thank Professor Katyal for speaking with us this evening. We would also like to express thanks to Dechert LLP, Paul Weiss, Perkins Coie, Cleary Gottlieb Steen & Hamilton LLP, and Cravath, Swaine & Moore LLP for their generous support which made the evening possible.

PROPERTY RIGHTS POST-KELO

     Today, the Environmental Law Society, ACS, and Federalist Society welcomed John Echeverria of the Georgetown Environmental Law & Policy Institute, and Timothy Sandefur, of the Pacific Legal Foundation, to discuss the implications of the Supreme Court's 2005 decision in Kelo v. New London. The event began with Professor Tom Merrill offering a broad legal, political, and historical explication of the tension between property rights and government management of land use.
     Mr. Echeverria spoke first, beginning with a flat-out condemnation of the "regulatory takings agenda." He characterized this agenda as an effort to sabotage the workings of government in responsible management of land. The Takings Clause, Mr. Echeverria argues, should be applied narrowly to actual takings and invasions of property, citing an opinion written by Justice Scalia asserting such an interpretation. Mr. Echeverria traced the development of the "regulatory takings agenda" to the academic work of Richard Epstein, however declared it a "flop" given consistent Supreme Court holdings restricting the doctrine of regulatory takings to those situations in which regulation effectively constitutes an actual taking of the property. Turning to considerations of public policy, about half of the states have some sort of regulatory takings legislation. Aside from a referendum in Oregon (Measure 37), which Mr. Echeverria chalks up to electoral manipulation, the state policies are largely symbolic. Analyzing the slate of over 20 referendums at issue in the 2004 election, Mr. Echeverria optimistically points out that those propositions focused narrowly on eminent domain were successful, while those confounding that issue with regulatory takings failed. Concluding with an observation on the experience in Oregon, Mr. Echeverria notes that the regulatory takings argument for land-owner compensation fails because the regulation applies to all in the community, and therefore protects a complaining land-owner while inhibiting them. Therefore, those who seek compensation under the theory of regulatory takings really seek an individual exception to a mutually beneficial land-use regulation.
     Mr. Sandefur began his comments with a rejection of Mr. Echeverria's presentation and a plug for his recent book. Beginning at the beginning, Mr. Sandefur parsed the language of the 5th Amendment and sought to demonstrate the blurry line between physical takings and an outright and absolute restriction of the uses of a given property. Mr. Sandefur equated the post-Kelo world with Hobbes' nasty and brutish state of nature. The theories of John Locke informed the founders' thinking, and as such, the government is limited by theories of natural rights: the government cannot wrongfully abridge one's natural property right. Mr. Sandefur argued that "liberty trumps democracy," and that the Constitution created a government that should serve as a "bank guard" and restricted that guard from robbing the bank himself.
Attacking the tenets of progressive political thought, Mr. Sandefur generally criticized progressives' willingness to submit to majority views on the meaning rights. Mr. Sandefur went on to criticize the "rational basis" standard of review as a crippling and irrational judicial standard as the product of the progressive view. Coming around to the effects of Kelo, Mr. Sandefur points out that eminent domain reform has no natural constituency, while regulatory takings reform does have strong and financially-capable support. Mr. Sandefur characterized the argument against regulatory takings as "we can't afford it, so we should get it for free." He noted that forcing the government to pay for regulatory takings would compel more rational policy-making by forcing the government to bear the costs of their choices. Mr. Sandefur ended with his opening question: "what is a legitimate government interest." In crescendo, he asks: "If we don't know what a legitimate government interest is, what business do we have determining what a rational basis for one is?"
     Compelling argument throughout the hour, the issue of regulatory takings taps into deep philosophical questions about the purpose and powers of the federal government. The ACS, ELS, and FedSoc would like to thank both Mr. Echeverria and Mr. Sandefur for their dynamic, adversarial, entertaining, and genuinely thought-provoking comments.