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?

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.

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.

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.

And Thou Shalt Not File Frivolous Lawsuits

In a bizarre attempt at combining law and religion in order to make a point about frivolous lawsuits, Nebraska state senator Ernie Chambers is suing God.

More surprisingly, God has responded. According to District Clerk John Fiend, the answer "miraculously appeared on the counter." Oh, those law clerks.

After only a month of law school, I can already sense that the myriad jurisdictional and enforcement issues involved in this case make it unlikely to succeed. On the off chance that Chambers is granted his injunction, the court obviously has no way to enforce its ruling.

Civ Pro Mini Quiz- Does this qualify as sufficient service of process?

But this case is an effort to make a statement about a much bigger issue than whether God is a terrorist: tort reform.

Chambers is using this lawsuit, which he admit is absurd, to make the point that anyone can sue anyone. But is that necessarily bad?

In our legal system, tort legislation (ideally) acts as a form of social insurance. It allows people a remedy when they are injured, and in many cases prevents people from bearing an undue financial burden. Additionally, the knowledge that anyone can be sued (theoretically) encourages people to be more careful in their interactions.

As a society we have consistently supported this idea. Congress, for example, has explicitly recognized the value of litigating relief by passing statues that allow victorious plaintiffs to claim attorneys' fees from defendants in certain kinds of cases. These laws are specifically designed to encourage lawsuits (and thereby discourage particular kinds of undesirable conduct).

On the other hand, the tort system does not appear to be working properly. Tort costs in the U.S. each year reportedly exceed $200 billion. According to Bureau of Justice statistics, less than half of all tort plaintiffs succeed at trial. For medical malpractice, the figure is closer to one quarter. Worse, the right people usually don't sue. According to a Harvard Study, less than 1 in 7 injuries caused by medical malpractice are ever litigated.

The issue is obviously far more complicated than this post can begin to cover, but it boils down to a fundamental question. Are we willing to pay the huge procedural costs of often frivolous lawsuits in order to protect the right of every American to sue when he or she is wronged?

The truth of the matter is, if we're willing to stomach the costs, the legal system seems to do a fine job of filtering out frivolous lawsuit. In fact, in the lawsuit Chambers is protesting, the Judge is considering sanctions for the plaintiff's counsel.

Chambers, however, prefers to demonstrate how frivolous lawsuits waste taxpayer dollars by, well, wasting taxpayer dollars. God has yet to weigh in on the issue.

John Roberts: Restrained Judicial Conservative or Conservative Judicial Activist

Today, the Columbia ACS and Federalist Society hosted a conversation between Emily Bazelon (Senior Editor of slate.com) and M. Edward Whelan III (President of the Ethics and Public Policy Center) focusing on what to expect from the Roberts Court.

Mr. Whelan opened by noting his initial uncertainty as to Chief Justice Robert's attitudes, and then declared his satisfaction with the Chief Justice thus far. Interestingly, Mr. Whelan defended the term "judicial activism," noting it is inherently apolitical, but involves the overriding of political decision-making. He also noted that judges can affect similar error through "judicial passivism" in refusing to enforce politically-created rights. Further, Mr. Whelan distinguished judicial restraint from stare decisis because judicial restraint involves deference to the political branches. Returning to Chief Justice Roberts in conclusion, Mr. Whelan expressed his approval.

Ms. Bazelon dove right into an analysis of Chief Justice Roberts emphasis on unanimity in his first term. Moving into the recently elapsed term, Justice Kennedy's role in the numerous 5-4 decisions places him, and rather than Chief Justice Roberts, as the driving mind on the Court. This leaves Chief Justice Robert's role as one of timing and pacing. Ms. Bazelon pointed to a deeper understanding of restraint, noting the Justice Scalia's frequent criticisms of his Chief for "faux judicial modesty." Robert's emphasis on "modesty" bespeaks a preference for incremental change in the Court's decisions and calls for a delicate respect for precedent. Returning to the issue of pacing and timing, Ms. Bazelon pointed out the conservatives on the Court are just younger than the liberals and thus have time on the court to be patient and can build a number of decisions to cut away at important precedents. She asserted that Chief Justice Roberts will ultimately be an activist judge because he will drive the law toward an end-state that he desires.

Professor Peter Strauss, our moderator, opened the question period with a detailed query as to the current Court's approach toward the rule of law and respect to precedents in the context of a "common law" statute. What ensued was a wide-ranging and considered discussion of a number of jurisprudential points. Student questions focused on the terminology and evolved-meaning of the term "judicial activism," and the interpersonal dynamics among the Justices on the Court.

In the midst of answering a question, Ms. Bazelon expressed her anxiety in relying upon Justice Kennedy for her hopes for the court. "Me, too," enjoined Mr. Whelan. Regardless of their position on the alleged activism of Chief Justice Roberts, both speakers agree that Justice Kennedy is the linchpin of the Court and it is that dynamic which will be the prime driver of the Court in the near future.


Columbia ACS would like to thank Emily Bazelon, Edward Whelan, and Professor Peter Strauss for joining us today and offering their important and interesting remarks.

Ahmadinejad on Campus

These remarks are entirely my own and I do not speak for ACS or the Columbia chapter thereof. I offer my responses to President Ahmadinejad's appearance with the sincere hope that this may be the beginning of a robust discussion here on columbiaacs.blogspot.com.

Today, the President of the Islamic Republic of Iran, Mahmoud Ahmadinejad, spoke and answered questions here at Columbia upon the invitation to join in the World Leaders' Forum. News vans, police, and passionate discourse all followed him here, and I - for one - cannot imagine a better use of the University's resources and good name.

Ahmadinejad is an indisputable threat to global security of the highest magnitude. He is also a genuinely bad person, a "petty and cruel dictator," in the words of University President Lee Bollinger. I join President Bollinger's condemnation without qualification. Ahmadinejad is, however, undeniably a "world leader," and it is, as noted by President Bollinger, the duty of the academy to host and critically engage with all viewpoints, ridiculous or otherwise.

Deeply embedded in the American conception of free speech is the idea that society benefits from a free trade of ideas in an open and diverse 'marketplace' of thought. It is only when juxtaposed with considered and rational ideas that the absurd and evil are revealed convincingly as such. Ahmadinejad began by dismissing Bollinger's criticisms as impolite as coming from a host, and moved to discuss the importance of scholarship as advancing civilization.

It was tactful of the Iranian President to frame his remarks as focused on the advance of knowledge. By entrenching his discussion in religious scripture, Ahmadinejad implied his fundamental and ultimately problematic thesis: truth is bestowed by God, and my God bestows my truth.

Predictably, Ahmadinejad used this platform as an opportunity to criticize the "big powers" of geopolitics. He pointed to American hypocrisy in preaching freedom abroad while denying privacy to its own citizens. A point well taken. He argued that the West uses science and scholarship to suppress indigenous cultures and the scientific advance of periphery nations, like his own. The intellectual leaders of the West, are divorced from human and cultural values, he argued, and this divorce renders Western science impure and unholy.

Ahmadinejad ended with two questions. First, he asked why more diverse scholarship investigating the Holocaust has not been produced. In a way, he turned President Bollinger's criticism of his government's stance toward the academic community back against the West. In that, he revealed an important and overlooked common ground: we must all observe and respect divergent viewpoints and secure safe spaces for such discourse.

Without phrasing it as a question, Ahmadinejad next asked why Iran should be denied the right enjoyed by other nations to develop a peaceful, civil nuclear program.

To me, Ahmadinejad's visit was an incredible intellectual opportunity and reminded me that the academy, and Columbia in particular, serves as an important and volatile center of international discourse. Ahmadinejad himself comes across as evasive, obfuscating, and an entertainer; ever playing the victim and avoiding any discussion of the magnitude of his inflammatory remarks.

In the end, President Bollinger's scathing introduction seemed, to me, to capture today's event aptly. Ahmadinejad cannot, with reason, refute the malevolence and irrationality of his publicly-expressed views. This is the lesson of the day: all views must be considered, but all must also be supported with reason and evidence. President Ahmadinejad's evasion and selective use of Western ideas are unpersuasive and uselessly polemical.

The President's Pen: Negating Congressional Initiative and Hampering Effective Policy

The presidential signing statement is not new. Its been around for a long, long time, but the frequency with which this President has employed it is staggering. Between 1817 and 1981, only 75 such statements were issued from the White House. As of June 2006, President Bush had issued over 600. (For an excellent overview of Bush's use of signing statements, www.beyondpartisan.org). It is true that Presidents Reagan and Clinton issued signing statements at a far greater rate than their predecessors, this executive has implemented the form for the purposes of participating in a purely legislative process: the determination of what issues federal legislation should address.

This is what bothers me most about President Bush's use of the signing statement. He is effectively telling Congress, "I understand that you have identified a social problem, but I disagree with the means you chose to address is (or perhaps that it is a problem at all). Thus, I will abandon my Constitutional duty of implementation, because you, vox populi, are talking jive."

It's fun to eviscerate democracy!

The first signing statement issued by President Bush is illustrative of this point. Congress, in passing the Animal Disease Risk Assessment, Prevention, and Control Act, instructed the Secretary of Agriculture to provide reports including legislative recommendations on various issues of animal disease prevention. President Bush's signing statement objected to Congress' temerity in telling his employee what to do. The merit of the administration's fundamental separation of powers argument here is beyond my capacity or present interest to assess, but this example is telling on a more basic level.

Here, Congress has responded to widespread public apprehension about diseases carried by animals and their potential communicability to humans or impact on the food supply. (Remember Avian Flu?) The President - whether or not he agreed that this was an important problem with a role for the federal government in tackling it (it looks like he did, given that his CDC has been training to deal with a potential Avian Flu pandemic) - squelched a useful avenue for the provision of valuable scientific expertise to the Legislature for reasons boiling down to a juvenile bureaucratic turf war. Congress saw a problem, realized it needed expert assistance to effectively legislate against it, and asked for that aid. President Bush ignored the public good, legislative and popular mandate, and the quest for effective policy solutions.

Perusing the index of signing statements published by ACS (pdf) is an interesting and frustrating endeavor. The exercise also reveals that President Bush has used signing statement to usurp judicial - in addition to legislative - powers. In many cases, the administration's reason for issuing a signing statement is that the particular provision at issue contravenes a constitutional provision or the Supreme Court's interpretation thereof. (Very often the signing statements invoke INS v. Chadha as prohibiting post-enactment participation of Congress in implementation decision-making).

While all government actors should consider the constitutionality of their actions at all times, the supreme arbiter of constitutionality is the Supreme Court (see e.g. Marbury v. Madison). This is especially true when applied to interpreting the Court's own precedents.

In the end, my overwhelming reaction to this important documentation of a little-known presidential tactic is quite blunt: I implore you Mr. President, KNOW YOUR ROLE. Let the Court and Congress to their respective jobs and you stick to the enduring inept execution of your own.

Everything You Always Wanted to Know About Contempt of Congress (But Were Afraid to Ask)

The good folks at the Congressional Research Service—the nonpartisan, public policy research arm of the United States Congress—have put together a comprehensive report on Congress’s contempt power.