Friday, May 29, 2009


"Under the Color of the Law"

US Code 18-2340 says,

"(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;"

The phrase "under the color of law" is unclear. Maybe 18-242 case law has cleared it up. But if it means "under the pretense of acting on behalf of the government, but actually breaking government rules", then using thumbscrews in interrogation is not torture. On the other hand, if it means, "while actually fulfilling one's official duties as ordered," then the SERE training is torture and illegal if done outside the US.

US Code 18-242 is the most important use of the phrase,but it is quite unhelpful:

This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.

This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.



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Monday, May 25, 2009


Authority in American Culture

Pastor Bayly's sermon yesterday on authority in America, "In Heaven and on Earth" (MP3 available), was very good. What is below was inspired by it, taking some of the themes and examples and expanding on them. They are notes, with little effort to put things in sequence, to introduce, or to conclude.

A good doctor knows which of his patients are in danger of heart attacks. When he first meets us for a check-up, he says, "Strip" and asks us lots of personal questions. We'll do anything to try to live a little longer. Or, more accurately, we will at least listen quietly as he tells us how to behave and say to ourselves, "It's his job to tell me all that. He has authority to say it, even if I don't intend to listen to his advice. After all, he cares about my health, even if I care more about other things like eating all the ice cream I want. I know he's right, and I knew it before I came in, but, after all, he wouldn't be a good doctor if he didn't bug me about it. "

A good pastor knows which of his people are in danger of adultery. But what happens if he tries to care for someone's soul as carefully as a doctor cares for the person's body? Nobody would ever think of going in to his pastor for a check-up. If he did, he would be offended if the pastor asked personal questions. And if the pastor tells him what to do, or warned him of future dangers, he would say to himself, "That's none of a pastor's business. I haven't done anything wrong, and I won't, and he's just meddling because he's a busybody; he must like bossing people around." Or, he might add, "Yes, I know I'm skirting on the edge of temptation, but since that's obvious, the pastor doesn't have to rub it in, and I know how to stay out of real danger."

In our culture we give our doctors lots of authority, but not our pastors. In fact, pastors are a lot lower on the hierarchy of authority than dental technicians.

Our culture is similarly deferential to government. Americans may be a little less deferential than Europeans, but not much less. If the government says, "Take off your shoes" at the airport, we do it, and we are happy to be degraded that way, because it shows the government cares about our safety, even though we know--or anyone would know if they gave it a moment's thought--- that taking off shoes doesn't really help safety at all. I say this because our government is truly elected, and the foot- stripping policy is obvious and simple enough that it wouldn't last if most people didn't like it.

Let's think about a couple of other examples. Suppose the church elders met 30 years ago and decided to tell the congregation, "You must all buy child seats for your cars and tie your children up in them." We would be outraged. In fact, suppose a father had told his wife, "We need to take the money we were going to spend going out on our next two date nights and buy a car seat, and you must always strap Joey into it, no matter how late you are or how much he cries." The wife would be outraged, and either fight or mutter to herself, "I at least deserve to be consulted. He doesn't know how much our date nights mean to me. And he's not the one who has to deal with getting Joey into the car seat just to travel half a mile to the grocery store."

But what in fact happened was that the government issued the command, with absolutely no consideration of our particular family budget or needs, and no ability to ask about exceptions for special circumstances, because the government is so distant from us that there's nobody to ask about them. And we loved it. Most of us thanked the elected officials for thus compelling us, by re- electing them. Others of us didn't love it. We muttered to ourselves about how stupid the regulation was in our particular cases. But few of us objected in principle to the idea that the government could tell us how to raise our children. We think the government does have that authority. And we truly think it is authority. The government does use violence to enforce its will-- in the sense that if you try to thwart it, the government will send men with guns to put you in jail, and to kill you if you fight them. But that is not the main reason we obey. Even if there are no police around, we obey, because we know it is the law, an authority, and we obey authority even if it is unjust and mistaken. Or, if we disobey, we do it guiltily, feeling in our hearts that we are doing something wrong.

A board of elders wouldn't issue an edict about child seats. But let's think about a couple of other examples. What about smoking? Suppose the elders said that smoking was a vice and nobody could remain a member in good standing if he smoked in public. What a legalistic, fundamentalist, church that would be! Or what if a man told his wife not to smoke when she's out shopping. What a tyrant! After all, he's not even there to be bothered by the smell of the smoke, so what business is it of his? But when the city council tells us not to smoke in public, we meekly obey, even if we grumble. It has authority; the church and the family do not.

I've been driving in the point, but let's think about one more example, the one Pastor Bayly used in his sermon. What if a teen- age girl wears short skirts in church, sitting up front and displaying plenty of leg so she can enjoy being noticed by men. The pastor tells the father, "Your daughter is dressing immodestly. Tell her to cover herself up more." What will the father's response be? He will be ashamed, for sure. In many many cases he will also be outraged by the pastor's interference. After all, his daughter is just wearing the kind of clothes lots of people wear every day. If the church is one where people dress up a little for worship, he'd accept the point--- for Sunday, at least. But if it is the typical American church where jeans and tennis shoes are perfectly acceptable, he'd feel singled out.

Consider the same admonition coming from a real authority: the government. If the girl's school sends a note home-- a cold, impersonal note-- saying that her skirt must reach down to at least within 1.5 inches o her knee, the parents will pass along the note to the girl and tell her to obey. The school secretary, after all, has authority.

That's just at school, of course. What if the government issued a skirt rule for all public places? We don't know the answer to that. But I would place my money on public acceptance of the new rule. A few radicals would object, protest, and be arrested. But most of us would accept it, especially if the newspapers added their support to the government.

Let's go back to the pastor telling the father about his daughter, though. The pastor's not the only weak figure in America. There's another reason the father would feel ashamed and outraged, a more subtle one. It's that he would feel he, too, lacks authority. He might like to tell his daughter to dress modestly, but he doesn't dare. His wife would object. She would say things like, "You're so legalistic. You don't really care. You object to her short skirt, but you don't even go to see her play volleyball at her school. If you really cared, you'd start spending more time with her. So don't talk about clothes. You don't know anything about how girls dress, anyway."

His daughter would certainly object. She's too old to spank, and she's buying the clothes herself. All her friends would think her father was totally unreasonable, or at least would tell her that when she complained.

The father would rather not tell his daughter to do things. So he gets angry at the pastor. He is all the more angry because he agrees with the pastor. He knows what the young men are imagining doing with his daughter-- and the old men, too. He knows she is enjoying knowing that the boys are thinking those thoughts. He knows he should be talking to her about it, but he doesn't have the guts. And he has the depressing feeling that even if he did go through that painful process, it wouldn't work. He'd end up getting his wife and daughter angry at him, with no real result. Maybe he'd win on that particular issue-- if he fought hard. But they'd pay him back double on every other issue. So he feels beaten in advance. Why does the pastor have to rub in his humiliation? If he, the father, has no authority, how can the pastor have it?

All these kind of thoughts are going through the mind of the pastor, too. He's in an even weaker position, since the angry church member can leave or can try to get him fired. That's why pastors ordinarily give up on specific admonishment. Maybe they're even right to do so, at least if they continue with general admonishment and with discipline for more serious sins. If so, the problem is even bigger-- it's so big that we have to give up the most effective form of church discipline entirely, saving up what little authority the church has for less costly expenditures of it or for only the most church-destroying sins.

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Saturday, May 23, 2009


From The Right Coast:

Brooks has gone from being highly annoying to well nigh unendurable. See here. It makes it worse, not better that what he says is largely correct. What's disgusting is the preening reasonableness, the "see, though I am a Republican, I too can praise our young President with the best of them." Gag me with a spoon. Obama went beyond not being "gracious", as close to criticizing our young President as brave Sir David is willing to go. Obama created a farrago of obfuscation behind the smoke of which he could escape a mess of his own making by taking credit for policies created by men and women smarter and braver than he, people he did the most to hypocritically revile when it served his purposes to do so. He served up an example of duplicity impressive even to veteran DC watchers. Watching him pull it off was like watching some creature on the Nature channel, profoundly impressive and disgusting at the same time. Then to have Miss Brooks come by and tell us, well, our President took the right policies andthen congratulate him for it. It's enough to make one want to become a fish farmer on Anarctica.


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Marty Lederman and OLC Independence

SOmething bound to be humorous is what the new OLC will do when the Obama higher-ups tell them to modify their memos. Already, the AG has said he will ignore one of them (on the constitutionality of the DC-in-Congress bill). For future reference, this Marty Lederman blog post will be useful. It says:

At this point, Alberto Gonzales nevertheless insisted that Levin include in his December 30, 2004 opinion the footnote (No. 8) about how the legal analysis did not affect all previously approved techniques! It's not clear why Levin assented to this -- it's an outrageous and inappropriate thing for a White House Counsel to do -- but the footnote was included

First, I should note that Lederman gives no sources his claim, even though he considers the action outrageous and noteworthy. So maybe he made it up. Whether he did or not, though, he is on record as objecting to the OLC modifying, even by the addition of clarifying notes, its memos in response to comments from other government agencies. We'll see if he objects the next time the State Dept. or Treasury suggests that one of the OLC memos could use an extra paragraph, or has omitted a relevant case.

Recall that one of the criticisms of the Yoo torture memo, though maybe not one made by Lederman, is that it was not widely circulated for comment within government and was thus deprived of input that would have improved its legal reasoning. If he had circulated it, and the State Dept. had given Yoo convincing evidence that his analysis of the president's wartime powers went too far, would Lederman have called it outrageous if Yoo had dropped that part of his memo? I myself think that is a good criticism, and see no problem with the OLC responding to comments from any source whatsoever.



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Waterboarding and Torture

I just posted this at VC:

Suppose waterboarding is torture, regardless of the motivation. Has this radio host thus conspired to commit torture (on himself) and is subject to the penalties of the federal statute?

The same point applies, of course, to the SERE training.

This was in response to a VC story about a radio host who had himself waterboarded to see what it was like.

Assistant AG Dan Levin had himself waterboarded too, before confirming that the technique was legal. That outraged current OLC staffer Marty Lederman, though I can't really see why he thinks it outrageous that someone would try out a technique on himself to see how bad it was.

The statute is found via

(a) Offense.— Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

Now that I see it, I see that the radio host is exempt (not "under color of law") and the SERE waterboarding arguably so (not "under his custody or physical control"). It might also be that the military and CIA are exempt, by the "color of law" condition, since in doing this to foreigners I don't know if they are bound by normal law.

Update: Suppose we had SERE training going on in Europe. Would that be covered by the statute?

Voluntariness does not enter into the definition of the crime. "custody or physical control" is the key. If a prisoner in Afghanistan volunteered to be waterboarded, and waterboarding is torture, the prisoner is still under custody of the government and so the statute would still apply.

This is not unreasonable, because voluntariness is not a defense for lots of crimes. That you volunteer to be cannibalized does not eliminate the crime, for example.

Thus, the question is whether a soldier is under custody or physical control of the government. Those are terms of art in law, so I don't know the answer.


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Friday, May 22, 2009


How Conservative Are Law Schools?

The Schuck-Leiter debate is pretty amazing. Prof. Schuck gives hard evidence on the paucity of donors to Republicans in top law schools and more evidence from the Lindgren survey that found that white Republican Catholic women were the most underrepresented group, and points out that while Prof. Leiter can name a few Republicans in law schools, he's skeptical Leiter can name any more. (At the ALEA conference last weekend, some law profs were trying to figure out if Berkeley had any except John Yoo, for example.) Schuck says that there are dozens on the left, to which Prof. Leiter replies:

I'm not sure about "dozens on the left," since I don't know of any top law faculty where social democrats, socialists, and Marxists outnumber conservatives and libertarians! But if you mean only that there are more Democrats, yes, that must surely be right—but my point was only that, even in the public law fields, there is no shortage of conservative viewpoints, and it just misleads the public to put out fake figures like "81% Democrats" based on shoddy studies.

Leiter says, " it has always struck me that law schools are far more intellectually diverse than, say, elite law firms, or the major media, or the U.S. Supreme Court, or the U.S. Senate." I'll give him the major media, but the other claims are fanciful. Does he really know about elite law firms? I bet they're at least 1/4 Republican, which is far more than any but a handful of law schools.

UVa-- one of the two most conservative according to Leiter, has a full 50% of its donors giving to Republicans.


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Thursday, May 21, 2009


The Environmentalist Religion

Tom Smith:
One thing I don't like about cap and trade is that I can no longer say,for example, how could the Aztecs devote their entire cultural-political system to something as irrational as sacrificing humans to the sun? Here we are engaged in something only somewhat more rational.

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Monday, May 18, 2009


An Earthquake

I didn't get to see any fires on my trip to California, but I did get to feel a 4.7 magnitude earthquake. My brother and I had our laptops at hand, and there is very good instant info on earthquakes from the government.



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Wednesday, May 13, 2009


Janet Napolitano for the Supreme Court?

Sandy Levinson at Balkinization says:
"Although I strongly hope that the President will appoint at least one person from the world of elective politics--Jennifer Granholm or Janet Napolitano easily qualify--I also assume that at least one of the coming two or three appointments will stick to what has become the custom of drawing on the existing bench."
Janet Napolitano? It says something about Obama, too, that he has short-listed her.

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Health Costs

The U.S. government has a tax expenditure of about $150 billion from exemption of employer-provided health insurance. That's about 10% of health care spending. (Statistical Abstract online, Table 459. Tax Expenditures Estimates Relating to Individual and Corporate Income Taxes by Selected Function: 2007 to 2010) That's much bigger than the home mortgage interest deduction ($95 billion). Add the health tax expediture to Medicaid and Medicare and we've got an even bigger government health care sector than before. Maybe that, US wealth, and state insurance coverage requirement regulation explain why the US spends so much on health care.


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Tuesday, May 12, 2009


A Fence Painting

From somewhere on the Web:



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Health Insurance Regulation

A question I've wondered about: how much of our high health care costs in America are due to government-mandated insurance features?

If the government let insurance companies choose whatever features they wanted to include or exclude, we would expect the efficient level of health care. Heart transplants, for example, might not be covered by most employers. Autism services almost certainly would not, since the moral hazard is too great.

Anyway: how onerous is regulation? Do we have a reason right there why Americans buy more health care than Europeans-- it's because it's a government mandate? Here is a good 2004 report listing mandatory state coverage, from an underwriters' trade association that is critical of it.


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Monday, May 11, 2009


Conservatism and Libertarianism

Whenever I grade my economics courses, I become fearful of how fragile capitalism is. Even my students, well above average in intelligence, and trained by my excellent self, don't really understand why a free market is good and call for government interventions uncritically and at the slightest excuse. Yet Americans favor the free market, and Western nations by and large are free, if a little corrupt in legal ways. Why?

One possibility is the lobbying by business counteracts the voters' natural desire to wreck the economy. Here's another possibility though: It is conservatism that is now rescuing the economy. Americans, at least, have a strong suspicion of government and of innovative policies. That protects us when understanding of economics does not.



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Saturday, May 9, 2009


Scare Force One (2009)

Note: I will be updating this blog post now and then, without noting what is new. The White House internal report on the New York City flyover was released late Friday afternoon, presumably so as to attract minimal media attention, and Louis Caldera, the head of the White House Military Office resigned. This looks like a cover-up to me.

The general impression one gets from the report is that the military is entirely to blame, and there is in fact no reason for Mr. Caldera to resign. He knew little about it, and assumed that the flight was routine, the public was prepared, F16's weren't involved, the flight wasn't low-altitude, and so forth. A large number of details are given, and the tone is severe, but the important questions are left unanswered.

In particular, the big questions are:

1. Whose idea was the mission? In particular, was it Mr. Caldera's? Mr. Obama's? The report says a lot about people not knowing the details of the mission, but knowing the date, etc. is different from knowing the general idea.

2. Who was on the airplane? Were campaign contributors on it? (Update: No, apparently. See the Gates letter to Senator McCain. "There were no non-duty personnel or passengers on board."

3. Why were F16's accompanying Air Force One?

4. Was everyone told to keep this a secret from the public? (Yes-- See the FAA instructions at The Potomac Current air traffic control blog. Note how it excludes mention of the White House, and that it says there is to be no publicity or warnings.) If so, why?

5. Did anybody in the military object to the mission?

6. Where do training missions commonly travel?

7. What was the purpose of the photo shoot? What was to be done with these particular photos?

8. Why is Director Caldera resigning if his role is as minimal and excusable as the Report implies?

Here are excerpts from the May 5 report by the White House Counsel, with my comments. I've posted a plain text version of the report at

Our review was limited to the White House's involvement in the April 27 flyover. We collected relevant documents from senior White House staff and from the leadership of the White House Military Office ("WHMO"). We interviewed the WHMO Director, Louis Caldera (the "Director"), and the WHMO Deputy Director, George Mulligan (the "Deputy Director"). We did not review the conduct of other federal agencies or departments that participated in the flyover, including the Department of Defense (the "DoD") or the Federal Aviation Administration (the "FAA"). DoD is conducting its own internal reviews into the April 27 flyover.

Not interviewing any of the people actually on the flight, or lower-level employees of WHMO is purposeful ignorance. Even if the purpose is just to review the top WHMO people--*especially* if it is-- you should ask other people what really happened. Especially if you're going to imply the military is to blame, as this report does.

WHMO is comprised of a headquarters staff and seven operational units that employ approximately 2,300 individuals. Most WHMO employees are military personnel who serve in the operational units, and each unit is led by a military commander. The Presidential Airlift Group ("P AG) is one of the seven operational units.

2,300 employees! Just for the executive branch! If they cost $50,000 dollars each, that comes to about $100 million dollars in defense spending just for the White House and whoever else gets ferried around. That's ridiculous.

The April 27 Flight Initial planning for the New York City flyover appears to have begun in March 2009 or earlier.

On Friday, April 3, 2009, representatives of the PAG, the FAA, and several local authorities held a teleconference to discuss "operational issues and public affairs / outreach issues."

Whoa! The report has just skipped over the question of whose idea this flyover was, and who ordered the PAG (the air force people) to do it. In other words, the report is going to skip the big decision and go straight to the petty details.

On Friday, April 3, 2009, representatives of the PAG, the FAA, and several local authorities held a teleconference to discuss "operational issues and public affairs / outreach issues." According to a written summary of the call, the participants discussed the details of the proposed flyover including the date, time, and location of the operation; the altitude of the plane (1,000 feet), and the preferred flight path. The participants recognized "the sensitivity of the aircraft involved," and concluded that "public affairs and outreach efforts must be carefully coordinated and timed."
So this meeting was for details such as the exact date and the flight path. Somebody else had already ordered that there be a photoshoot near the Statue of Liberty. Who?

Coordination with "the general public" was planned to commence two days before the flight. The written summary of the call further specified that "[n]o reference should be made to the Presidential aircraft in any public outreach." However, it suggested that public outreach could reference "DOD aircraft."
Was it decided that the public wouldn't be notified? Notice here that complete secrecy before the mission is not inconsistent with what the report says. "Public outreach" is very general, and might just mean the script for answering questions after the mission.

Note, too, that they decided to lie about the White House's role. Well, literally, Air Force One is Air Force, not White House, and a mission ordered by the White House against the advice of Air Force officials is still an Air Force mission, but I think "lie" is not too strong a word nonetheless.

Neither the Director nor the Deputy Director participated in or were aware of the April 3 teleconference.
Why should they be? They don't care about the exact date and they don't know anything about designing flight paths. The policy decisions had already been made; the April 3 meeting was about operational details.

On Thursday, April 9, the commander of the PAG, Colonel Scott Turner, sent an email to the Deputy Director addressing a number of issues, including a plan to conduct "a photo shoot over the Statute of Liberty on the 27th of this month." During the same time period- either shortly before or after the April 9 email-the Deputy Director spoke to Colonel Turner about the proposed flight. The Deputy Director advised Colonel Turner to determine whether it was feasible or not; if Colonel Turner encountered any problems or objections, the flyover would not go forward. According to the Deputy Director, Colonel Turner likely contacted him because the mission was unusual. If it had been a typical or routine training mission, the Air Force would not have notified the White House.
This makes it sound like it was Colonel Turner's idea. If it was, he should be severely punished, perhaps even court-martialed. That might be the case. But notice that this paragraph does not say that the Deputy Director hadn't heard of the idea before April 9, and it doesn't even exclude the possibility that he ordered it to take place. It does imply that the Deputy Director hadn't heard anything earlier and that he had no idea it was to be kept secret in advance, but it doesn't come out and say that. And this report is being written by smart lawyers, remember.

On Monday, April 20, the Deputy Director believes that he notified the Director for the first time about the proposed flyover. According to the Deputy Director, he briefly described the plan and stated that Colonel Turner was working on the details. He also suggested that when the plan was finalized, the Director may want to inform White House Deputy Chief of Staff Jim Messina. The Deputy Director believed that Mr. Messina would want notice because the plan involved the use of the Presidential aircraft and because it was unusual-i. e., it was a photo shoot near New York City and it required a high degree of coordination.
Again: this is the first time the Deputy Director talked about the flyover with the Director, but that's different from saying that the Director hadn't heard of it before. It could be that the Director ordered it done, and the Deputy Director was now filling him in on details such as the date.

On Thursday evening, April 23, Colonel Turner sent an email to the Deputy Director describing the final details of the flight. It stated that for security reasons, details about the flight would be treated as "FOUO" ("for official use only"). Federal, state, and local authorities would be notified on April 24, and coordination with the "general public" would begin "on or after 26 Apr."

What security reasons could there be? Was he afraid terrorists would come with missiles to shoot down an Air Force One with no passengers?

Colonel Turner responded that everything was ready to go and no objections or concerns had been raised.
This is important. The Report itself says concerns were raised at the April 3 meeting. So does this just mean that there were no new objections or concerns? Or maybe no objections in the previous day?

At 12: 11 PM on April 24, Colonel Turner sent another email to the Deputy Director stating that final preparations for the flight were moving forward. He stated that he had "sent a suggested response to any media queries" to public affairs. And he asked, "[ d]o you have any issues/reservations whatsoever?"
It sounds as if Colonel Turner was trying to protect himself here. Maybe he was aware of what a stupid idea this flight was.

Finally, the Director stated that he was not asked to approve the flight. If he had been asked to make a decision, he would have received a formal package requesting his approval and he would have expected earlier and more extensive discussions with Colonel Turner and the Deputy Director.
Well, yes, there was no reason for a formal decision procedure, if the policy decision had already been made in March-- especially if the Director himself (or the President) made the decision then.
We also asked the Deputy Director why he did not notify Messrs. Messina or Gibbs. He did not do so for two reasons. First, he believed-based on his discussions with Colonel Turner and the various emails he received-that experienced professionals had planned the mission, and they had taken necessary steps to ensure the public was notified.

Here the DD is blaming the air force for the fiasco. Maybe he's right, but maybe he's not. We're not given enough info.

On Saturday, April 25, Colonel Turner sent a detailed email that described the planned flyover to General Arthur Lichte, commander of the Air Force Air Mobility Command. The email stated: "Secretary Caldera and George Mulligan have both 'blessed' this event. They were to brief Jim Messina and Robert Gibbs for their awareness only. I wanted to make sure you were fully in the information loop." The email further stated that Colonel Turner had "sent a press release" to Air Force public affairs personnel "in the event there are any media queries" and that the "FAA Public Affairs office in New York is poised to answer any/all questions that arise from the New York IN ew Jersey area."
This does sound as if Col. Turner was to blame. It is the strongest evidence that the whole thing was his idea. But why would a colonel propose a photo shoot? And wouldn't Air Force people be sensitive to the idea that flying in cities is unusual, dangerous, and liable to scare people anywhere, even if they didn't remember 9-11?
According to the Director, this was the first time he learned that the flight reminded people of 9111 and there was a jet fighter trailing the 747 aircraft.

That's a strange sentence. It raises the question again of why fighters were there. Were they taking the pictures? Why not use a slow-flying, cheap, aircraft?

The Director stated that he had no idea that the plan called for the aircraft to fly at 1,000 feet; he feels terrible that the flight had caused harm; and he believes that the White House needed to apologize.

Just how is the airplane supposed to get close to the Statue of Liberty if it's flying at 20,000 feet?

We believe that WHMO's general structure-and specifically, the reporting relationship of WHMO's operational units (such as the PAG) to the White House and to the Military Service Branches-should be examined. We recommend a comprehensive study resulting in recommendations to the President regarding these structural issues.

Ah, yes-- a "structural issue" is at fault, rather than any individual person. Stupid. The problem is not that the White House doesn't get notified of every flight Air Force One makes. If it were, nobody would read such boring reports anyway. The problem is that somebody-- we should learn who--- ordered this particular flight.

Update: There is actually a plausible theory under which the White House can be exonerated: the Air Force Setup Theory. Usually the WHMO is a military officer. Usually the WHMO is somebody more respectable than Mr. Caldera. No doubt the military saw his appointment as a slap in the face. This could explain why experienced professionals would come up with the stupid idea of the flyover. They could propose it, start the planning, make sure it was done as incompetently as possible, and then get the blessing of the WHMO without informing him of the security details or the likely consequences. Then, they could anonymously plant rumors in the blogosphere that the plane was full of campaign contributors. This would provide the mood for the WHMO to be blamed. A full investigation might turn up the real culprits, but they might bet on an Administration desire to nip the scandal in the bud--- along with Administration uncertainty over whether an investigation might indeed show that an Obama appointee was culpable.



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Wednesday, May 6, 2009


Prosecuting OLC Lawyers

Bart DePalma has an interesting question about what crime might be prosecuted in connection with OLC lawyers. It's in the comments section; the post itself is uninteresting. See my comment late in the thread.

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Discrimination in Major Law Firms?

Interesting data is available showing the number of African, Asian, and Hispanic American lawyers and partners at 20+ major law firms. The common pattern is that the Partner/Lawyer ratio is much higher for African-Americans and Hispanic-Americans than for Asian-Americans. An interesting question is why. Three possibilities:

1. The firms discriminate in favor of blacks and make them partner more often.

2. The firms discriminate against blacks, and hire them as associates less often.

3. The past decade has had a surge in the number of Asian-American lawyers, who aren't old enough to go up for partner yet.

This could use further study.

Later: See Steve Sailer. Apparently, if a group difference is more than 4/5, you can sue. That's easy here. You'd get statistical significance even for individual law firms. An interesting legal question, though, is whether you could sue an entire industry on behalf of an industry class-- sue 20 law firms on behalf of the denied Asian associates-- if all of the law firms had the same discrimination pattern, but non individually statistically signfiicant, but jointly highly significant.

Something amusing about the lawsuit is that the likely best defense can't be used. It is: "We make lots more blacks partner because we discriminate against them at the associate level and their average quality is a lot higher than for asians."

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Tuesday, May 5, 2009


Closing Down Church Services Because of Flu

I wonder if this is true. It is shocking, especially in view of Roman theology:

While the Cinco de Mayo battle site stood closed, Puebla's Catholic churches -- bearing the United Nations seal of approval as "Patrimony of Humanity" -- were open for private prayer or tourist gawking, but in the archbishop's concession to the swine flu scare, without Sunday or weekday masses.

No martyrs in Mexico!


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Monday, May 4, 2009


The Dollar As an International Currency

I predict that the U.S. will have high and variable inflation in a few years. That makes standard U.S. government a risky investment. We are worried that the Chinese and others will bail out of it. Yet I think we can retain the benefits of being able to sell our debt to foreigners and Americans. We just need to delink the function of store of value from the function of medium of exchange. Here are three ways:

1. Issue more inflation-indexed bonds. We already have some. Foreigners, especially, should want them.

2. Issue bonds denominated in dollars but whose interest payments are in dollars equal to a fixed number of Swiss francs.

3. Issue bonds indexed not to inflation generally, but to a small basket of goods with stable relative prices. I am thinking of Hall's "plywood standard". This avoids the risk of the U.S. government changing the CPI or other ordinary price index.



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The Time To Get Swine Flu

I had a couple of thoughts on swine flu this morning.

1. This is the time to get it. I'm healthy, and the hospitals have plenty of room and the appropriate medications are in good supply. So if I could infect myself, I should do it. The only caveat is that maybe a vaccine will be available soon enough that I would never have to contract this strain of flu.

2. The pork producer I heard on the radio this morning did harm to his cause. He said that no Indiana hog had yet been found sick with swine flu. Even if that's true, it would make people avoid eating pork. If all that's between me and sickness is that the flu hasn't reached Indiana yet, we should all stop eating pork. But that fact is irrelevant. You can't get swine flu by eating pork from a sick pig, can you? I doubt it very much. What the pork producers should be saying is something like this:

"Not a single person in the world has contracted swine flu by eating pork. The way you get swine flu is by having people or pigs sneeze on you. So the main thing to keep in mind is: Don't kiss pigs."


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Cowen and Tabarrok Cover


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Sunday, May 3, 2009


The Torture Memo and Its Precursor

I came across a delicious pairing of OLC memos. I'll call them Memos A and B so as not to give away the punchline. I'll give you a clue: One is by Clinton (and Obama's) Dawn Johnsen. The other is by Bush's Jay Bybee, and John Yoo (but he doesn't have his name signed to it---Bybee was his boss).

Here are two excerpts:

Quote A1: "We have long recognized, and the Supreme Court has established a canon of statutory construction that statutes are to be construed in a manner that avoids constitutional difficulties so long as a reasonable alternative construction is available. ...

This canon of construction applies especially where an act of Congress could be read to encroach upon powers constitutionally committed to a coordinate branch of government. ..."

Quote B1: "It is a well settled principle of law, applied frequently by both the Supreme Court and the executive branch, that statutes that do not expressly apply to the President must be construed as not applying to him if such application would involve a possible conflict with his constitutional prerogatives....

Thus, where a statute does not by its express terms apply to the President, it may not be applied to him if doing so would raise a serious separation of powers concern...."

Okay. The two offices are agreed in principle. The OLC maintains continuity-- two professional lawyers giving good, lawyerly advice. (I happen to think it's a rotten idea to not let Congress constrain the President with statutes, but that's just me and the Constitution; I'm no lawyer.) But what would be a serious separation of powers concern?

Memo A says that it would seriously infringe on the separation of powers if Congress ordered the President to conduct war in a particular way. That memo is the most famous and controversial of the torture memos:

Quote A2: "Accordingly, we would construe Section 2340A to avoid this constitutional difficulty, and conclude that it does not apply to the President’s detention and interrogation of enemy combatants pursuant to his Commander-in-Chief authority."
-----Office of Legal Counsel, Jay. S. Bybee, " Memorandum for Alberto R. Gonzales Counsel to the President Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A, " doj-20020801.html (August 1, 2002, this web version May 17, 2008).

And what is the serious constitutional concern in Memo B, the Clinton one?

-- that requiring the President to notify nominees whose credit he checks that he's been looking over their financial record would infringe on his power to hire employees.

That's right-- the statute that threatens the separation of powers is the Consumer Credit Reporting Reform Act of 1996. (An act passed under the very President who is now objecting to its application to himself.) Here's a quote:

Quote B2: As noted above, section 2403(b)(3) of the CCRRA requires any person who uses a credit report for employment purposes to notify the subject of any adverse action based in whole or in part on the report. (1) To the extent this requirement were applied to the process under which potential nominees are considered by the President, it could impose a burden upon the unfettered nomination power accorded the President under the Constitution.
-----Office of Legal Counsel, Dawn Johnsen, "Application of Consumer Credit Reporting Reform Act of 1996 to Presidential Nomination and Appointment Process," (December 11, 1997).

What is especially peculiar is that Professor Johnsen has been a leading critic of the Torture Memos, claiming not just that they are wrong but that they are completely one-sided, poorly written, and leave out lots of relevant legal material. From a law review article by Professor Johnsen (Dawn E. Johnsen, "Faithfully Executing the Laws: Internal Legal Constraints on Executive Power," forthcoming, UCLA Law Review, (July 2007)):

p. 1583. Measured by this standard, the Torture Opinion utterly fails. In what unmistakably is an advocacy piece, OLC abandoned fundamental practices of principled and balanced legal interpretation....

p. 1584. "Yoo remains almost alone in continuing to assert that the Torture Opinion was “entirely accurate” and not outcome driven, notwithstanding the Bush Administration’s extraordinary repudiation of the Opinion."

She forgets, however, that about ten pages earlier she had told us that though the OLC had rewritten the memo (in particular, Yoo went on to argue that even if Congress had expressly included the President, the President would not be bound by that law), the OLC had maintained every single one of the legal conclusions Yoo had come to. The OLC just pulled back on some of the arguments for those conclusions . Thus, if Yoo's lawyering was incompetent and outcome-driven, it at least got all the same answers as everyone in the OLC even after he left:

p. 1573: "On December 30, 2004, six months after the leak and public disavowal of the Torture Opinion, OLC issued a new opinion (Replacement Opinion) that provides a more careful and accurate analysis of the federal anti-torture statute.... The definition of torture remains extremely narrow, and a footnote reassures recipients of earlier OLC advice—namely, the CIA— that the changes in analysis and tone do not affect the bottom line: “While we have identified various disagreements with the August 2002 Memorandum, we have reviewed this Office’s prior opinions addressing issues involving treatment of detainees and do not believe that any of their conclusions would be different under the standards set forth in this memorandum.”"

Perhaps the most common criticism of the Torture Memos by Professor Johnsen and others is this:

p. 1585: "The Opinion also fails to cite and apply the watershed Supreme Court opinion most relevant to assessing the constitutionality of the statute: Justice Jackson’s three-part framework set forth in Youngstown Sheet & Tube Co. v. Sawyer."

Note that her credit report memo didn't cite the case either. Both the torture and credit report memos are about whether the President is bound by statutes that don't expressly mention him and that constrain his constitutional powers. If Youngstown is relevant to one, it's relevant to the other.

But I looked it up, and I see that it's not relevant to either.

Youngstown is not about a President violating an Act of Congress. It is about a President seizing control of steel mills without any Congressional authorization, under the excuse that he is doing it in furtherance of a war effort. The famous opinion by Judge Jackson makes no claim that the President acted contrary to any Act of Congress. Jackson just argues, rather unconvincingly, that Congress's lack of authorizing legislation showed its opposition.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) CASE&court=US&vol=343&page=579.

Finally, Prof. Johnsen's gives an interesting test for whether an OLC opinion is outcome driven or not:

p. 1584: One way to test Yoo’s claim is to consider whether OLC would have written the opinion in the same manner if the President had preferred to receive an OLC opinion that concluded the federal anti-torture statute actually did tie his hands.

In Yoo's case, the answer is clear: if he was running the OLC, his opinion would have been the same even if Obama was President. That's because Yoo was on record even before he was appointed as being an advocate for a broad view of Presidential power. In fact, that's no doubt why Yoo was appointed to the job, and a President who wanted to tie his own hands would pick someone else.

How about applying the test to Dawn Johnsen's credit report memo? If President Clinton had wanted the OLC to require him to tell nominees that he was turning them down because of a bad credit report, would she have written the same opinion? I don't suppose she's ever written on credit reports, but what she was best known for was for being an advocate of a broad view of rights to privacy-- in the area of abortion. So one might have been surprised that she would find separation of powers to trump privacy.

Andrew McCarthy in National Review, "Lawyer’s Lawyer, Radical’s Radical Meet Obama DOJ nominee Dawn Johnsen " (March 2009) noticed the Johnsen credit report memo too.

Here are the relevant part of Memos A and B in more detail. First, from Memo A (sorry for any confusion here: it's a Section B of Memo A)

B. Interpretation to Avoid Constitutional Problems

As the Supreme Court has recognized, and as we will explain
further below, the President enjoys complete discretion in the
exercise of his Commander-in-Chief authority and in conducting
operations against hostile forces. ¶

Because both “[t]he executive power and the command of the
military and naval forces is vested in the President,” the {p.34}
Supreme Court has unanimously stated that it is “the President
alone [] who is constitutionally invested with the entire charge of
hostile operations.” Hamilton v. Dillin, 88 U.S. (21 Wall.) 73, 87
(1874) {justia, altlaw, lexisone} (emphasis added). ¶

That authority is at its height in the middle of a war.

In light of the President’s complete authority over the conduct of
war, without a clear statement otherwise, we will not read a
criminal statute as infringing on the President’s ultimate authority
in these areas. ¶

We have long recognized, and the Supreme Court has established
a canon of statutory construction that statutes are to be
construed in a manner that avoids constitutional difficulties so
long as a reasonable alternative construction is available. See, e.g.,
Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Constr.
Trades Council, 485 U.S. 568, 575 (1988) (citing NLRB v.
Catholic Bishop of Chicago, 440 U.S. 490, 499-501, 504 (1979))
(“[W]here an otherwise acceptable construction of a statute
would raise serious constitutional problems, [courts] will construe
[a] statute to avoid such problems unless such construction is
plainly contrary to the intent of Congress.”). ¶

This canon of construction applies especially where an act of
Congress could be read to encroach upon powers constitutionally
committed to a coordinate branch of government. See, e.g.,
Franklin v. Massachusetts, 505 U.S. 788, 800-1 (1992) (citation
omitted) (“Out of respect for the separation of powers and the
unique constitutional position of the President, we find that
textual silence is not enough to subject the President to the
provisions of the [Administrative Procedure Act]. We would
require an express statement by Congress before assuming it
intended the President’s performance of his statutory duties to
be reviewed for abuse of discretion.”); Public Citizen v. United
States Dep’t of Justice, 491 U.S. 440, 465-67 (1989) (construing
Federal Advisory Committee Act not to apply to advice given by
American Bar Association to the President on judicial
nominations, to avoid potential constitutional question regarding
encroachment on Presidential power to appoint judges).

In the area of foreign affairs, and war powers in particular, the
avoidance canon has special force. See, e.g., Dep’t of Navy v.
Egan, 484 U.S. 518, 530 (1988) (“unless Congress specifically has
provided otherwise, courts traditionally have been reluctant to
intrude upon the authority of the Executive in military and
national security affairs.”); Japan Whaling Ass’n v. American
Cetacean Soc’y, 478 U.S. 221, 232-33 (1986) (construing federal
statutes to avoid curtailment of traditional presidential
prerogatives in foreign affairs). ¶

We do not lightly assume that Congress has acted to interfere
with the President’s constitutionally superior position as Chief
Executive and Commander in Chief in the area of military
operations. See Egan, 484 U.S. at 529 (quoting Haig v. Agee, 453
U.S. 280, 293-94 (1981)). See also Agee, 453 U.S. at 291
(deference to Executive Branch is “especially” appropriate “in the
area ... of ... national security”).

In order to respect the President’s inherent constitutional
authority to manage a military campaign against al Qaeda and its
allies, Section 2340A must be construed as not applying to
interrogations undertaken pursuant to his Commander-in-Chief
authority. ¶

As our Office has consistently held during this Administration
and previous Administrations, Congress lacks authority under
Article I to set the terms and conditions under which the
President may exercise his authority as Commander in Chief to
control {p.35} the conduct of operations daring a war. ¶

See, e.g., Memorandum for Daniel J. Bryant, Assistant Attorney
General, Office of Legislative Affairs, from Patrick F. Philbin,
Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Swift Justice Authorization Act (Apr. 8, 2002); Memorandum for
Timothy E. Flanigan, Deputy Counsel to the President, from
John C. Yoo, Deputy Assistant Attorney General, Office of Legal
Counsel, ¶

Re: The President’s Constitutional Authority to Conduct Military
Operations Against Terrorists and Nations Supporting Them
(Sep. 25, 2001) (“Flanigan Memorandum”); ¶

Memorandum for Andrew Fois, Assistant Attorney General,
Office of Legislative Affairs, from Richard L. Shiffrin, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Defense
Authorization Act (Sep. 15, 1995). ¶

As we discuss below, the President’s power to detain and
interrogate enemy combatants arises out of his constitutional
authority as Commander in Chief. A construction of Section
2340A that applied the provision to regulate the President’s
authority as Commander-in-Chief to determine the interrogation
and treatment of enemy combatants would raise serious
constitutional questions. ¶

Congress may no more regulate the President’s ability to detain
and interrogate enemy combatants than it may regulate his ability
to direct troop movements on the battlefield. ¶

Accordingly, we would construe Section 2340A to avoid this
constitutional difficulty, and conclude that it does not apply to
the President’s detention and interrogation of enemy combatants
pursuant to his Commander-in-Chief authority.

This approach is consistent with previous decisions of our Office
involving the application of federal criminal law. ¶

For example, we have previously construed the congressional
contempt statute not to apply to executive branch officials who
refuse to comply with congressional subpoenas because of an
assertion of executive privilege. In a published 1984 opinion, we
concluded that

if executive officials were subject to prosecution for criminal
contempt whenever they carried out the President’s claim of
executive privilege, it would significantly burden and
immeasurably impair the President’s ability to fulfill his
constitutional duties. Therefore, the separation of powers
principles that underlie the doctrine of executive privilege also
would preclude an application of the contempt of Congress
statute to punish officials for aiding the President in asserting his
constitutional privilege.

Prosecution for Contempt of Congress of an Executive Branch
Official Who Has Asserted A Claim of Executive Privilege, 8 Op.
O.L.C. 101, 134 (May 30, 1984) {Lexis, Westlaw}. ¶

Likewise, we believe that, if executive officials were subject to
prosecution for conducting interrogations when they were
carrying out the President’s Commander-in-Chief powers, “it
would significantly burden and immeasurably impair the
President’s ability to fulfill his constitutional duties.” ¶

These constitutional principles preclude an application of Section
2340A to punish officials for aiding the President in exercising his
exclusive constitutional authorities. Id. {p.36}

And here's Dawn Johnsen's memo. Her conclusion is based entirely on the one argument that Congress binds the President only if the Act says so expressly, when separation of powers is an issue, so her memo is shorter and I'll give it in its entirety:

      The Consumer Credit Reporting Reform Act of 1996
("CCRRA"), 15 U.S.C.A. § 1681s-2 (West Supp. 1997), offers
heightened protections to individuals whose credit histories are
being examined by prospective employers. Section 2403(b)(3) of
the CCRRA amends section 604 of the Fair Credit Reporting Act
("FCRA") to require any person "using a consumer report for
employment purposes" to notify the consumer prior to taking
"any adverse action based in whole or in part on the report." Id.
You have requested our advice whether section 2403(b)(3) would
apply to the process used by the President in considering
individuals for nomination and appointment with the advice and
consent of the Senate or appointment to his personal staff. As
explained briefly below, we conclude that this provision of the
CCRRA does not apply to the President's decisions affecting
such positions.

      It is a well settled principle of law, applied frequently by both
the Supreme Court and the executive branch, that statutes that
do not expressly apply to the President must be construed as not
applying to him if such application would involve a possible
conflict with his constitutional prerogatives. See, e.g., Franklin v.
Massachusetts, 505 U.S. 788, 800-01 (1992). This Office has
described that principle as a "clear statement rule." See
Memorandum for Jack Quinn, Counsel to the President, from
Walter Dellinger, Assistant Attorney General, Office of Legal
Counsel, Re: Application of 28 U.S.C. Section 458 to Presidential
Appointments of Federal Judges at 3 (Dec. 18, 1995) ("Quinn
memo") (copy attached); see also Armstrong v. Bush, 924 F.2d
282, 289 (D.C. Cir. 1991), cert. denied, 117 S. Ct. 1842 (1997). As
the Quinn memo explains in greater detail, the clear statement
rule has two sources. First, a fundamental canon of statutory
interpretation requires that statutes be construed to avoid raising
serious constitutional questions. Quinn memo, at 3. Second, the
constitutional principle of separation of powers assures a division
of power among the federal government's three coordinate
branches. The clear statement rule "exists in order to protect
'th[is] usual constitutional balance' of power." Id. (citing Gregory
v. Ashcroft, 501 U.S. 452, 460-61 (1991)).

      Thus, where a statute does not by its express terms apply to
the President, it may not be applied to him if doing so would
raise a serious separation of powers concern. We first consider
the possible application of the CCRRA to the process by which
the President nominates non-inferior officers, subject to advice
and consent of the Senate. Application of the CCRRA in this
context would raise a serious separation of powers concern, for it
could interfere with a power committed to the President by the

    The Appointments Clause provides that the President

    shall nominate, and by and with the consent of the Senate,
shall appoint Ambassadors, other Public Ministers and Consuls,
Judges of the supreme Court, and all other Officers of the United
States . . . but the Congress may by Law vest the Appointment
of such inferior Officers, as they think proper, in the President
alone, in the Courts of Law, or in the Heads of Departments.

      U.S. Const. art. II, § 2, cl. 2. The Constitution thus vests in
the President alone the power to nominate non-inferior officers
of the United States. Although Congress has an important role in
the appointment of such officers by virtue of the Senate's
assigned responsibility to advise and consent with regard to such
appointments, any attempt by Congress to exercise power over
the process of nominating a particular individual to a non-inferior
office would raise a serious constitutional question. See Quinn
memo at 9; Federal Election Comm'n v. NRA Political Victory
Fund, 6 F.3d 821, 824 (D.C. Cir. 1993), cert. dismissed, 513 U.S.
88 (1994).

      As noted above, section 2403(b)(3) of the CCRRA requires
any person who uses a credit report for employment purposes to
notify the subject of any adverse action based in whole or in part
on the report. (1) To the extent this requirement were applied to
the process under which potential nominees are considered by
the President, it could impose a burden upon the unfettered
nomination power accorded the President under the
Constitution. The Constitution does not compel the President to
disclose to a nominee the reasons for his decision not to
nominate that person; indeed, it does not require that the
President have articulable reasons for not nominating someone.
To the extent section 2403(b)(3) would require an assessment
whether information contained in a credit report contributed to
an adverse decision, and then would further require
communication of that fact to a potential nominee, section
2403(b)(3) effectively places limitations on the President's
constitutional prerogative to nominate non-inferior officers of
the United States. We need not here decide whether Congress
may, consistent with the Constitution, impose such limitations; it
is enough for purposes of this analysis to conclude that such a
restriction potentially conflicts with the President's constitutional
responsibilities. Where, as here, a potential conflict exists, the
clear statement rule requires that the statutory requirement be
explicitly applied to the President.

      Neither the language nor the legislative history of the
CCRRA, however, contains any such express statement. The
definitions of "person" and "employment purposes" in section
603 of the FCRA do not explicitly refer to the President or to
presidential nominations. Nor does any other provision of the
FCRA or the CCRRA state specifically that the requirements of
these statutes apply equally with respect to the President as to
other potential employers. Respect for the separation of powers
and the "unique constitutional position of the President" require
such an explicit textual reference. Franklin v. Massachusetts, 505
U.S. at 800-01. The legislative history of the CCRRA similarly is
silent with respect to its specific application to presidential
nominees. What is clear from that history is that the primary
focus of the CCRRA was to grant the ordinary consumer greater
control over the use of his or her consumer credit report by
consumer reporting agencies. See 142 Cong. Rec. S11868, S11869
(daily ed. Sept. 30, 1996) (statement of Sen. Bryan, original
sponsor of CCRRA). The absence of any clear statement
including the President within the scope of the CCRRA, together
with the serious constitutional questions that such an
interpretation would raise, compels us to conclude that the
CCRRA does not apply to the President's use of credit
information with respect to potential presidential nominees for
non-inferior offices.

      We turn now to two other categories of appointees --
inferior officers appointed by the President with the Senate's
advice and consent and appointees to positions (other than
those requiring advice and consent) on the President's personal
staff. Application of the CCRRA to these categories of
appointees, at least in some circumstances, might well raise
separation of powers concern. However, we need not reach this
issue. We have already concluded that section 2403(b) would not
apply to the President, because it could do so only if there were a
clear statement to that effect. Given that conclusion, we would
be rewriting the statute if we to conclude that the President had
to follow the statute with regard to particular classes of potential
appointees. Therefore, our conclusion that the clear statement
rule prohibits application of section 2403(b)(3) to presidential
nominations for non-inferior offices applies equally to all
categories of individuals under consideration by the President for
nomination or appointment.


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Saturday, May 2, 2009





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Friday, May 1, 2009


United States v. Parker et al, 1983 Case

A lot of blogs have been talking about a supposed 1983 case, United States v. Parker et al., in connection with waterboarding and torture. I got caught up in trying to find it. The blogs (e.g. Andrew Sullivan) have been talking about how atrocious it is that Prof. Yoo didn't mention the case in his memo. Ironically, not a single blog gives a citation to the case. Most do not even give its name-- they just tell the story. I looked up United States v. Parker in Lexis, and came back with 14 cases, none of which was in 1983. From this, I wonder if the case really exists. Or, if it does, was it ever recorded? Was there some way John Yoo could have learned of its existence?

The search term "San Jacinto County Sheriff" doesn't turn up anything relevant either (17 results, if I remember rightly), and "Floyd Allen Baker" only turns up 2 irrelevant Iowa cases.


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