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Washington Lawyer

Books in the Law

From Washington Lawyer, March 2016

By Joseph C. Goulden and Ronald Goldfarb

Engines of Liberty book coverEngines of Liberty: The Power of Citizen Activists to Make Constitutional Law

By David Cole
Basic Books, 2016
Review by Joseph C. Goulden

In a convincingly argued book, David Cole postulates that anyone who wishes to understand changes in constitutional law must go beyond lawyers and the courtroom. "Look behind any significant judicial development of constitutional law," he writes, "and you will nearly always find sustained advocacy by multiple groups of citizens, usually over many years and in a wide variety of venues." This is true, he asserts, regardless of whether the issue is liberal or conservative.

Cole, a professor at Georgetown University Law Center, makes his case by detailing the mobilization of public opinion that he asserts was responsible for three recent U.S. Supreme Court decisions: the legalization of gay marriage, the right of an individual to bear arms, and the protection of the rights of foreign nationals suspected of dealings with the enemy andimprisoned by the United States in wartime. Each of these decisions, he writes, was preceded by years of grassroots organization and litigation in lower courts that ultimately resulted in the desired Supreme Court decisions.

Professor Cole also lays out a "how to do it" format that should be invaluable to lawyers and other activists who strike out to "change the Court's minds" on positions previously thought to be invulnerable.

Perhaps the most striking about-face came on the issue of gun control. In 1991 retired Chief Justice Warren Burger, a conservative Republican, scoffed at the notion that the Second Amendment protects an individual right to bear arms as "one of the greatest pieces of fraud—I repeat the word 'fraud'—on the American public by special interest groups that I have ever seen in my lifetime." The Court said otherwise 17 years later, striking down a D.C. law banning the possession of handguns.[1] The Heller decision essentially reversed a skein of contrary decisions dating back decades.

Building a successful consensus can require years of effort and strategic planning. And advocates must resign themselves to skepticism and disappointment.

Consider gay marriage. As a student at Harvard Law School in the 1980s, Evan Wolfson attended a forum sponsored by the newly formed Lambda Legal Defense and Education Fund, a gay rights public interest firm. As Cole relates, "it dawned on Wolfson that one might devote a legal career to 'gay rights.'" Harvard offered not a single course in the field at the time.

When Wolfson decided to write a paper exploring a gay rights issue, Harvard's constitutional law professors thought the topic of gay marriage "was so far-fetched that none would agree to supervise it." He finally convinced a trusts and estates professor to oversee the project.

The barriers were obvious. The handful of gay marriage cases that were filed in state courts were usually dismissed, often with derision. When the Minnesota Supreme Court heard one such case in 1971, none of the seven justices asked the lawyer representing the same-sex couple a single question. In rejecting the claim, the court cited the book of Genesis, "an unusual source of constitutional law," Cole wryly comments.

And in 1986 the U.S. Supreme Court ruled it constitutionally permissible for states to make male gay sodomy a crime.[2] "If states could make it a crime for a same-sex couple to have sex," Cole writes, "surely such couples could not claim a constitutional right to marry."

But Wolfson persevered. He formed Freedom to Marry, a national group devoted exclusively to right-to-marriage equality. "Its considerable resources were directed almost entirely to work outside the courts:educating the public, recruiting and training volunteers, managing websites, consulting on referendum campaigns, and lobbying legislators, Cole writes.

As a guide, Wolfson looked to past struggles over marriage equality, notably law forbidding interracial marriages. The first state to strike down such a law was California in 1948;the Supreme Court did not follow suit until 1967.

Vermont was a major test. A gay task force pushed the message that "same-sex couples were just like other couples in their desire for stable . . . and loving relationships." It produced a video that debunked "stereotypes about gays and lesbians as licentious and libertine." An avalanche of federal courts reversed gay marriage bans—in 18 states in 2004 alone—clearing a path for the Supreme Court decision in 2015 that the U.S. Constitution requires recognition of same-sex marriage nationwide.[3]

On gun control, the National Rifle Association (NRA) and affiliated groups chose the legislative route, rather than the courts. Here the lead figure was Marion Hammer, NRA's first female president and long an influential state lobbyist. Cole describes her as "a seventy-six-year-old grandmother who to this day carries a Smith &Wesson .38 Special in her purse."

Florida is so friendly to gun legislation that it is often referred to as the "Gunshine State." Hammer and her allies worked "to set a precedent that can be exported to other states." In this instance, the target was the 1968 Gun Control Act passed by Congress that severely restricted the sale and ownership of guns.

But, as former NRA president David Keene notes, "90 per cent of the laws that the NRA has contended with over the last few decades have not been the federal laws but have been state and local restrictions." Thus a strategy: If the NRA could persuade states to recognize an individual right to bear arms under their own constitutions, "gun owners would, for all practical purposes, be protected against their principal regulators."

Thus the NRA started with states "most likely to be friendly" and used precedents won there to extend their gains to other states. Cities were stripped of regulatory authority. Gun control advocates, lacking NRA's grassroots presence, "did not have the money or staff to fight the NRA state by state." And the NRA relied heavily on endorsements, grading candidates on an A to F scale "for every state and federal legislative or executive office throughout the nation." Party affiliation does not matter;any incumbent with an A rating is endorsed (and likely receives a healthy campaign contribution).

Despite the Supreme Court's holding in Heller, Cole observes, "it remains the case that the most effective guardian of Second Amendment rights is not the courts, but the NRA."

The longest portion of Cole's book deals with the decades-old issue of the rights of alleged adversaries detained during a national emergency. Beginning with President Lincoln's suspension of habeas corpus during the Civil War, courts generally have given the executive branch unquestioned authority to deal with such persons, even U.S citizens.

But as Cole details, 9/11 and its aftermath (the USA Patriot Act, etc.) brought a multifold explosion of issues, including the detention of U.S. citizens at the Guantánamo prison, the denial of counsel to noncitizens held there, and the CIA's "enhanced interrogation" program, to name but a few.

Cole highlights the work of Michael Ratner of the Center for Constitutional Rights (CCR), a long-prominent human rights group, as being in the forefront of the post-9/11 litigation. When Ratner learned that President George W. Bush was holding "war on terror" suspects at Guantánamo without hearings or access to lawyers, he resolved to sue. What chance did he have? Cole asked him. "None whatsoever," Ratner replied. But, as he put it, "Wasn't that what the Magna Carta was all about?"

Given that many of the prisoners were foreign nationals, CCR and other activist groups sought sympathy in the detainees' home countries to bring pressure on the United States. British lawyer Clive Stafford Smith became, in effect, "the prime minister of the Guantánamo Bar," inciting foreign governments to demand rights for their citizens.

Both the Supreme Court and the White House, however reluctantly, sided with Ratner. By the time Bush left office, more than 500 of the 779 Guantánamo prisoners had been released, the CIA had stopped its controversial interrogation programs, and communications monitoring by the National Security Agency was subject to judicial review.

To be sure, Cole's recommended tactics are not universally popular. In an abortion case, Justice Antonin Scalia expressed strong distress "about the 'political pressure' directed to the Court: the marches, the mail, the protests aimed at inducing us to change our opinions." It was as if, he said, "we were engaged not in ascertaining an objective law, but in determining some kind of social consensus."[4]

With which Cole heartily disagrees. To be sure, he writes, "I am more confident than Justice Scalia that marches and mail do not directly influence the Court." Nonetheless, "the responsiveness of constitutional law to the evolution of social norms more generally is a historical fact . . . This flexibility is a strength, not a weakness. It keeps the Constitution alive for each generation, and ensures that it is not reduced to the dead hand of the past."


Joseph C. Goulden has written 18 nonfiction books, including The Superlawyers.

Notes

[1]District of Columbia v. Heller, 554 U. S. 570 (2008).
[2]Bowers v. Hardwick, 478 U.S. 186 (1986).
[3]Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
[4]Planned Parenthood of Southwestern Pennsylvania v. Casey, 505 U.S. 833(1992).

 

Power Wars book coverPower Wars: Inside Obama's Post-9/11 Presidency

By Charlie Savage
Little Brown and Company, 2015
Review by Ronald Goldfarb

President Obama has had a difficult presidency;haven't they all? As is said about wars, a president's problems begin on day one when everything changes from campaign days. It is too early to assess the whole Obama presidency. It isn't over, we are too close to it now, and with time we will learn things we can't know now.

That said, it isn't too soon to evaluate events since Obama's historic election in 2008, which admirers at the time, this reviewer included, saw as the beginning of what promised to be a special time. Our new president had changed prevailing racial presumptions (he was young and black), and the public looked ahead to exciting times.

In Power Wars,Pulitzer Prize-winning New York Times reporter Charlie Savage assesses one feature in the Obama presidency: his foreign affairs and national security record. As Savage and his publisher note, "this former constitutional scholar ended up entrenching drone strikes, a sprawling surveillance state, military trials for terrorism suspects, and—despite his promise to close the Guantanamo Bay wartime prison—the continued indefinite imprisonment of the detainees there whom he inherited." On this subject one could add other complaints: Obama's secrecy policies;the harsh treatment of journalists and whistleblowers;his continued defense of extreme rendition, including enhanced interrogation (torture) techniques such as waterboarding;and the expansion of pointless wars despite the fact that his election campaign took off on the proclamation that his essential difference with Hillary Clinton was his vote against the Iraq war. Seven years into his administration, we are still in Afghanistan with no end in sight.

The Obama presidency is praised by its fans for its accomplishments, as it should be. His lame duck presidency should burnish his record, which until the final inning has been deemed by some admirers-turned-critics as disappointing. If journalism is the first draft of history, Savage's expansive work here is a good start for evaluating the Obama foreign policy record.

Savage's book is most relevant because it offers a unique and thorough history of the American surveillance policy post-9/11, the inner machinations of the executive branch at the highest levels, the legal battles, the battling personalities, and the strange evolution from Bush to Obama in this critical area of law and policy. Savage does this in more detail than general readers may want, but he provides, as best journalism does, a remarkable first pass at history in doing so. The agony of the democratic process is there for readers to see.

Particularly for lawyers, readers of Washington Lawyer,are the reported ratiocinations of the government attorneys whose job it was to analyze international and domestic laws governing enhanced interrogation, drone killings, civilian versus military justice systems, the meaning of such policy language as "necessary and proportionate" and legally justified civilian bystander deaths, the need for presidential findings and for congressional oversight over executive action, and what Savage calls "uncharted territory," "esoteric legal issues," and the "legally edgy operation" of finding and killing Osama bin Laden. The latter came down to capturing Public Enemy Number One alive if he was "discovered virtually naked, alone, on his knees, and with his hands in the air . . . a tacit understanding was that killing was the preferred outcome." A cynical view would be that government lawyers were engaged in parsing language pertaining to provocative "wartime" practices to come to a desired conclusion, but a more generous one would be that well-meaning attorneys were employed to bring the rule of law to the deadly business of fighting terrorism, and the public should be thankful for it.

Along with President Obama's more hawkish positions than candidate Obama promised are his administration's practices governing transparency, leaks, and whistleblowers. Again, his promising electoral poetry evolved into pragmatic presidential prose. Savage relates specific stories of cruel treatment of reform-minded whistleblowers and the harassment of reporters.

Related to these issues are the Obama administration's policy of secrecy and the state secret defense, under which, based on a 1953 U.S. Supreme Court opinion, the mere invocation of "state secrets privilege" had courts deferentially block litigation without an independent judicial assessment of that claim. This judicially created Cold War doctrine was invoked by prior administrations and followed by President Obama despite his promise on day one of his presidency that there would be an "unprecedented level of openness in government." Secrecy, he promised, "is now over." Nineteen days later, the U.S. Department of Justice told a federal court in a pending case that the invocation of the claim of state secrets privilege to shield an excessive black site prison was the new administration's authorized position. That position was followed in "roughly fifteen cases left over from the Bush era," Savage reports.

The Obama presidency also adopted prior administrations' positions on the claim of executive privilege to protect the president from congressional inquiries. Remember the Nixon tapes? Presidents prefer autonomy regardless of what they proclaim while seeking the office.

The most current story Savage tells is the impact of Edward Snowden's revelations, and the lead-up to that extraordinary (and continuing) drama. Much of this story is known, but Savage's back stories flesh it out with details and research that make this important piece of history clearer. He is a critic, but not a partisan to the debate over civil liberties versus the need for surveillance. Through his remarkable sources and exceptional research, Savage describes the politics and personalities in play as the pendulum swings between privacy and security needs. For example, he tells how the "Snowden earthquake shifted the relationship between the government and communications companies," which no longer want to be partners with the National Security Agency, but only do what courts require.

There is much misinformation and passion about these questions, and Savage's book provides crucial facts that sober and balanced assessments require. The impact of Chief Justice John Roberts, and former Chief Justice William Rehnquist before him, on Foreign Intelligence Surveillance Court appointments, for example, is of particular, less known interest. As is Savage's reporting about the role of President Obama—ineffective—in all the goings-on ("he defended his decision not to roll back the post-9/11 surveillance state he had inherited").

As one who has studied and written about the Snowden phenomenon, I can't imagine a better, more total, and fair inside history of that dramatic event. At this late date, all indications are that if our government is to change its surveillance policies, it won't be because President Obama ushered in that change.

In the chapter "The Tug of War," Savage underscores the differences between a candidate's policy remarks and a president's later executive actions, and also the influence of lawyers in executive departments on critical issues. In case histories Savage shows how "the problems of the world and presidential war powers would look more complicated from the Oval Office than they had from the campaign trail." Savage also provides cases indicating that President Obama "would end up doing what he had indicated he could not do." He also shows how "the role of a government lawyer is different from that of a legal academic." The president, it is clear, leaves office with the country "on a war footing," and has been "less a transformative post-9/11 president than a transitional one."

***

Reviews of Savage's book are important because Power Wars is a long, hard read. The very details Savage discloses, and the very extensive research he presents, makes for fine scholarship but a tough read for the general readership. Reviews will provide what most readers will read, but the book itself is for those who are devoted to fulsome explanations of history in the making, the details that explain policies. Savage's book is "comprehensive" and "authoritative," as the New York Times review concluded, as it is objective, but the exposition is also "dry and forbidding" for others than readers with a special interest in foreign policy and national security.


Ronald Goldfarb is a Washington, D.C.- and Miami-based attorney, author, and literary agent whose reviews appear regularly in Washington Lawyer. E-mail him at rlglawlit@gmail.com.